CHAPTER I

LOCGOV - 001Province of Batangas v. Hon. Alberto Romulo (2004)

Art X of the Constitution markedly increased the powers of the local governments in order to accomplish the goal of a more meaningful local autonomy.

Facts: In 1998, Pres. Estrada issued EO 48 (Establishing a Program for Devolution Adjustment and Equalization) to "facilitate the process of

enhancing the capacities of LGUs in the discharge of the functions and services devolved to them by the Nat’l Gov’t Agencies concerned pursuant to the LGC."

The Oversight Committee was constituted and has been tasked to formulate and issue the appropriate rules and regulations necessary for its effective implementation.

The “Devolution Adjustment and Equalization Fund” was created to address the funding shortfalls of functions and services devolved to the LGUs and other funding requirements of the program.

The DBM was directed to set aside an amount to be determined by the Oversight Committee based on the devolution status appraisal surveys undertaken by the DILG. The initial fund was to be sourced from the available savings of the nat’l gov’t for CY 1998.

For 1999 and the succeeding years, the corresponding amount required to sustain the program was to be incorporated in the annual General Appropriations Acts (GAA).

The Oversight Committee has been authorized to issue the implementing rules and regulations (IRRs) governing the equitable allocation and distribution of said fund to the LGUs.

The Local Gov’t Service Equalization Fund (LGSEF) could not be released to the LGUs without the Oversight Committee’s prior approval.

The Oversight Committee laid down guidelines and mechanisms that the LGUs had to comply with before they could avail of funds from this portion of the LGSEF.

Petitioner’s arguments:The provisos in the GAAs and the OCD resolutions which earmarked the amount of P5B of the IRA of the LGUs for 1999, 2000 & 2001 for the LGSEF and imposed conditions for their release, violate the Constitution and the LGC.

1. Sec 6, Art X of the Constitution mandates that the "just share" of the LGUs shall be automatically released to them.

2. Secs 18 and 286 of LGC provide that the "just share" of the LGUs shall be "automatically and directly" released to them "without need of further action".

3. To subject the distribution and release of the P5B portion of the IRA, classified as the LGSEF, to compliance by the LGUs with the IRRs, including the mechanisms and guidelines prescribed by the Oversight Committee, contravenes the explicit directive of the Constitution that the LGUs' share in the national taxes "shall be automatically released to them." The use of the word "shall" must be given a compulsory meaning.

4. To vest the Oversight Committee with the authority to determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy as embodied in the Constitution and the LGC.

5. The possible disapproval by the Oversight Committee of the project proposals of the LGUs would result in the diminution of the latter's share in the IRA.

6. The assailed OCD resolutions provided for a different percentage sharing scheme of the IRA among the LGUs as provided in Sec 285 of the LGC (Provinces – 23%; Cities – 23%; Municipalities – 34%; and Barangays – 20%). Such modifications constitute an illegal amendment by the executive branch of a substantive law.

Respondent’s arguments:The assailed provisos in the GAAs of 1999, 2000 and 2001 and the assailed resolutions issued by the Oversight Committee are not constitutionally infirm.

1. Sec 6, Art X of the Constitution does not specify that the "just share" of the LGUs shall be determined solely by the LGC. The phrase "as determined by law" in the same Constitutional provision means that there exists no limitation on the power of Congress to determine what is the "just share" of the LGUs in the national taxes. In other words, Congress is the arbiter of what should be the "just share" of the LGUs in the national taxes.

2. Sec 285 of the LGC, which provides for the percentage sharing of the IRA among the LGUs, was not intended to be a fixed determination of their "just share" in the national taxes. Congress may enact other laws, including appropriations laws such as the GAAs of 1999, 2000 and 2001, providing for a different sharing formula. Sec 285 was merely intended to be the "default share" of the LGUs to do away with the need to determine annually by law their "just share." However, the LGUs have no vested right in a permanent or fixed percentage as Congress may increase or decrease the "just share" of the LGUs in accordance with what it believes is appropriate for their operation.

3. There is nothing in the Constitution which prohibits Congress from making such determination through the appropriations laws. If the provisions of a particular statute, the GAA in this case, are within the constitutional power of the legislature to enact, they should be sustained whether the courts agree or not in the wisdom of their enactment.

Issue: WON the assailed provisos contained in the GAAs of 1999, 2000 and 2001, and the OCD resolutions infringe the Constitution and the LGC (YES)

Held/Ratio:1987 Constitution

Art X of the Constitution has been devoted to guaranteeing and promoting the autonomy of LGUs. Sec 2 of Art X reiterates that “the territorial and political subdivisions shall enjoy local autonomy”.

Consistent with the principle of local autonomy, the Constitution confines the President's power over the LGUs to one of general supervision and not the power of control:

o Drilon v. Lim (enunciated the distinction between the 2 powers): An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules.

LGC of 1991 Sec 2 of LGC also amplifies the State policy on local autonomy. Sec 6, Art X of the Constitution reads: LGUs shall have a just share, as determined by law, in the national taxes which shall be

automatically released to them. This provision mandates that (1) the LGUs shall have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and (3) the "just share" shall be automatically released to the LGUs.

Secs 18 and 286 of LGC also underscore the automatic release of the LGU’s "just share":o Pimentel v. Aguirre: As a rule, the term "SHALL" (as provided in Sec 286 of LGC) is a word of command that must be given a

compulsory meaning. The provision is, therefore, IMPERATIVE. The entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA

or "just share" of the LGUs in the national taxes. To subject its distribution and release to the IRRs, and the guidelines by the Oversight Committee, makes the release not automatic – a flagrant violation of the constitutional and statutory mandate that the "just share" of the LGUs "shall be automatically released to them." The LGUs are placed at the mercy of the Oversight Committee.

The Oversight Committee's authority is limited to the implementation of LGC, not to supplant or subvert the same. Neither can it exercise control over the IRA of the LGUs.

The automatic release of the IRA was intended to guarantee and promote local autonomy as gleaned from the 1986 Constitutional Commission.

A basic feature of local fiscal autonomy is the constitutionally mandated automatic release of the shares of LGUs in the national internal revenue.

Sec 284 of the LGC provides that, beginning the 3rd year of its effectivity, the LGUs’ share in the national internal revenue taxes shall be 40%. This percentage is fixed and may not be reduced except “in the event the national government incurs an unmanageable public sector deficit" and only upon compliance with stringent requirements set forth in the same section.

o Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fixed in the LGC, are matters of general and substantive law. To permit Congress to undertake these amendments through the GAAs would be to give Congress the unbridled authority to unduly infringe the fiscal autonomy of the LGUs every year.

Digested by: L Agliam

LOCGOV - 002National Liga ng mga Barangay, represented by Alex David as President v. Hon. Paredes, DILG, and Manuel Rayos (2004)

Doctrine: The President only has the power of supervision, and not the power of control, over local government units including the Liga ng mga Barangay.

Facts: Private respondent Manuel Rayos, as Punong Barangay of one of the barangays in Caloocan City, filed a petition for prohibition and

mandamus against petitioner Alex David, another Punong Barangay in Caloocan, who is also the President of the Liga Caloocan Chapter and the Liga ng mga Barangay National Chapter. The subject of the case is irregularities in the notice, venue and conduct of the proposed synchronized Liga ng mga Barangay elections in 1997.

Due to the irregularities, Rayos failed to meet the deadline for the filing of the Certificate of Candidacy. The elections were held as scheduled notwithstanding the issuance of a TRO enjoining the holding of the general membership and election meeting of Liga Caloocan Chapter. Petitioner David was proclaimed President of the Liga Caloocan Chapter.

Rayos filed a separate petition for quo warranto against David, the Presiding Officer of the Sangguinang Panlungsod of Caloocan City, and DILG Sec. Barbers. Rayos argued that he was elected president of the Caloocan Chapter in a previously held election pursuant to Liga Caloocan Chapter Resolution/ Petition. The judge granted the TRO enjoining David, et. al., from proceeding with the synchronized elections for the Provincial and Metropolitan Chapters of the Liga.

DILG, through Sec. Barbers, filed a motion to be appointed as interim caretaker to manage and administer the affairs of the Liga until a new set of National Liga Officers have been elected. The DILG invoked the President’s power of general supervision over all local government units and the DILG Sec’s power of general supervision over all government units pursuant to A.O. No. 267 series of 1992.

David opposed DILG’s motion on the ground that its request to be appointed interim caretaker constitutes undue inference in the internal affairs of the Liga.

Before the DILG’s motion was acted on, the DILG issued a Memorandum Circular No. 97-176 enjoining all heads of government units from recognizing David and/ or honoring any of his pronouncements relating to the Liga.

Public respondent Judge Paredes ruled in favor of DILG’s motion upholding the authority of the DILG to exercise general supervisory jurisdiction over local government units pursuant to A.O. No. 267 series of 1992. Subsequently, DILG issued Memo Circular No. 97-193 providing supplemental guidelines for the synchronized elections for the provincial, metropolitan, and national chapters. DILG issued a certificate of appointment in favor of Rayos as President of Liga ng mga Barangay Caloocan Chapter.

Petitioner’s argument: Under A.O. No. 267 series of 1992, the power of general supervision of the President over local government units does not apply to

the Liga and its chapters because the Liga is not a local government unit. The order making DILG interim caretaker divested the incumbent officers and directors of the Liga of their right to their respective

offices without due process of law. Sec. 507 of the Loc. Gov. Code provides that the Liga shall be governed by its own constitution and by-laws; pursuant to such, they had a vested right to their elective positions and may not be removed by mere issuances of the DILG.

Even assuming the Liga could be considered a local government, there is an absence of legal basis for the appointment the DILG as interim caretaker.

The actions contemplated by the DILG as interim caretaker go beyond supervision and constitute control, as it sought and obtained authority to alter, modify, nullify or set aside actions of the Liga. Appointment of Rayos as Liga President while David was still occupying that position which was still subject of the quo warranto

proceedings. Issuance of DILG Memo Circular 97-173 providing supplemental guidelines for synchronized elections that replaced the

implementing rules adopted by the Liga pursuant to its constitution and by-laws and enjoined all heads of government units from recognizing David and/ or honouring any of his pronouncements relating to the Liga.

In the case of Taule v. Santos, the Court ruled that the DILG Sec. has no authority to pass upon the validity or regularity of the election of officers of the katipunan ng mga barangay or barangay councils.

Respondent’s arguments: The Liga members are subject to the power of supervision of the DILG since the DILG Sec. supervises the acts of local officials by

ensuring that they act within the scope of their prescribed powers and functions and since members of the various leagues, such as the Liga in this case, are themselves officials of local government units.

The DILG’s management and administration of the Liga affairs was limited only to the conduct of the elections; its actions were consistent with its rule-making power and power of supervision under existing laws.

The absence of a positive provision of law in support of petitioner’s argument against the appointment of DILG as interim caretaker allows the judge to apply a rule he sees fit pursuant to Art. 9 of the Civil Code which provides that, “if a law is silent, obscure or insufficient, a judge may apply a rule he sees fit to resolve the issue, as long as the rule chosen is in harmony with general interest, order, morals and public policy.”

Issue/s: WON respondent Judge acted with GAD in appointing DILG as interim caretaker to administer and manage the affairs of the National

Liga Board (YES). WON the Liga is a government organization that is subject to the power of supervision of the DILG Sec. over local governments.

WON the designation of DILG as interim caretaker has invested the DILG with control over the Liga and whether its Memo Circulars issued before and during its capacity as interim caretaker involve supervision or control

Held:On WON the Liga is a government organization subject to the power of supervision

The barangay serves as the primary planning and implementing unit of government policies, plans, programs, projects and activities in the community, and as a forum wherein the collective views of the people may be expressed, crystallized and considered, and where disputes may be amicably settled.

The Liga ng mga Barangay is the organization of all barangays. Its purpose is the determination of the representation of the Liga in the sanggunians, and the ventilation, articulation, and crystallization of issues affecting barangay government administration and securing solutions thereto, through proper and legal means. 

The Ligas are primarily governed by the provisions of the Local Government Code.  However, they are empowered to make their own constitution and by-laws to govern their operations. Sec. 507 of the Code provides:Sec. 507. Constitution and By-Laws of the Liga and the Leagues. - All other matters not herein otherwise provided for affecting the internal organization of the leagues of local government units shall be governed by their respective constitution and by-laws which are hereby made suppletory to the provision of this Chapter: Provided, That said Constitution and By-laws shall always conform to the provision of the Constitution and existing laws.

Pursuant to the Local Government Code, the Liga ng mga Barangay adopted its own Constitution and By-Laws. It provides rules on jurisdiction over all officers of the Liga. The Liga has also already promulgated rules for the conduct of its elections.

Section 4, Article X of the Constitution, provides that the President of the Philippines shall exercise general supervision over local governments. The 1935, 1973 and 1987 Constitutions uniformly differentiate the President’s power of supervision over local governments and his power of control of the executive departments bureaus and offices. 

In Mondano v. Silvosa, et al., the Court defined supervision as “overseeing, or the power or authority of an officer to see that subordinate officers perform their duties, and to take such action as prescribed by law to compel his subordinates to perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. 

In Taule v. Santos, the Court held that the Constitution permits the President to wield no more authority than that of checking whether a local government or its officers perform their duties as provided by statutory enactments.  Supervisory power is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.

In the case of Drilon v. Lim, the Court defined the extent of supervisory power: “…The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.   If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules.   He may not prescribe his own manner for the doing of the act.  He has no judgment on this matter except to see that the rules are followed…”

In Bito-Onon v. Fernandez, the Court held that the President’s power of the general supervision, as exercised therein by the DILG Secretary as his alter ego, extends to the Liga ng mga Barangay.

In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union created by law or by authority of law, whose members are either appointed or elected government officials.

On WON the designation of the Liga as caretaker invested DILG with control over it

Even before the designation, DILG issued Memorandum Circular No. 97-176, directing local government officials not to recognize David as the National Liga President and his pronouncements relating to the affairs of the Liga. 

The DILG’s prayer for appointment as interim caretaker “to manage and administer the affairs of the Liga, until such time that the new set of National Liga officers shall have been duly elected and assumed office” reveals the intention of the DILG to take control over the Liga. Even if said “caretakership” was contemplated to last for a limited time, or only until a new set of officers assume office, the fact remains that it was a conferment of control in derogation of the Constitution.

While the DILG was designated as caretaker, Sec. Barbers nullified the results of the Liga elections and laid down the supplemental guidelines for the 1997 synchronized elections; scheduled dates for the new provincial, metropolitan and national chapter elections; and appointed respondent Rayos as president of Liga Caloocan Chapter.

Furthermore, the DILG assumed control when it appointed respondent Rayos as president of the Liga Caloocan Chapter prior to the newly scheduled general Liga elections, although petitioner David’s term had not yet expired.  The DILG substituted its choice, who was Rayos, over the choice of majority of the punong barangay of Caloocan, who was the incumbent President, petitioner David. 

In this particular case, the most that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the elections to determine if they committed any violation of the Liga’s Constitution and By-laws and its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG should have ordered the Liga to conduct another election in accordance with the Liga’s own rules, but not in obeisance to DILG-dictated guidelines.  Neither had the DILG the authority to remove the incumbent officers of the Liga and replace them, even temporarily, with unelected Liga officers.

Digested by: Pao Agbayani

LOCGOV – 003Municipality of Catbalogan v Director of Lands (1910)

Land that is absolutely required by a municipality for its formation, such as a lot meant for the construction of a courthouse, is considered patrimonial property of the municipality and not of the national government.

Facts:1. The municipal president of Catbalogan, Samar applied to register a parcel of land with the Court of Land Registration. The parcel was

666.60 square meters. The Catbalogan courthouse was built on the land.2. The Director of Lands opposed the registration because the land was property of the United States and not property of Catbalogan.3. The lower court ruled in favor of Catbalogan. The Director of Lands, represented by the Attorney-General, appealed to the Supreme

Court.

Petitioner’s (Municipality of Catbalogan) arguments:1. The parcel of land was acquired through possession and material occupation for several years

2. The parcel was being occupied by Catbalogan as a duly organized municipal corporation.3. The parcel should be its property by virtue of Chapter 6 of Act 926, since it

a. Possessed the landb. Enclosed it with a fencec. Cultivated it for many years (around 40 to 45 years)d. Constructed a courthouse, an important municipal building, on it

Respondent’s (Director of Lands) arguments: 1. The land was not municipal property; it was property of the Insular Government. (i.e. the land was State property)2. The evidence that Catbalogan presented was insufficient and did not satisfy its claims.

Issue/s:To whom does the parcel of land belong to, the municipality of Catbalogan or the Insular Government? Municipality of Catbalogan

Held/Ratio:

The parcel of land belongs to Catbalogan because it is part of its patrimonial property.

Historical Basis1. During the beginning of the Spanish occupation, the policy was to seek out a “nucleus of inhabitants” and establish pueblos, and later

barrios, with the “nucleus of inhabitants” at the center.2. The administrative authority of a province, representing the Governor-general, had the authority to designate the territory of new

pueblos.3. The Spanish officials tasked to colonize the Philippines observed the Laws of the Indies in layouting new towns:

a. Law 6, Title 5, Book 4: within the boundaries of a town, there must be at least 30 residents, and each resident must have a house

b. Law 7, Title 5, Book 4: whoever wishes to establish a new town of only 10-30 residents shall be granted the time and territory necessary for the purpose and under the same conditions

c. Law 7, Title 7, book 4: manner of allotment of territory by the provincial governmenti. Allotment of territory for the entire pueblo itself

ii. Allotment of territory for public lands, pastures, common areas within the pueblo

iii. The remaining area will be divided into 4 parts, 1 for the principal financier of the pueblo, and 3 for the rest of the settlers

d. Law 8, Title 7, Book 4: casas reales (municipal buildings), the cabildo, the concejo, customs buildings, and the like shall be constructed between the main square and the church

e. Law 14, Title 7, Book 4: viceroys have the authority to designate common lands, pastures, and public lands for those pueblos which have none (BUT THEY CANNOT DESIGNATE AREAS MEANT FOR CHURCHES OR COURTHOUSES BECAUSE THAT AUTHORITY ONLY LIES WITH THE PROVINCIAL GOVERNMENT)

f. Law 1, Title 13, Book 4: viceroys have the authority to designate to each villa and lugar additional lands and lots which they may need, but the territory must not be detrimental to a third party and they must send statements of the designations to the government

4. The municipality of Catbalogan is the provincial seat of Samar. It is possibly the first and oldest pueblo in the province.5. The inhabitants of a pueblo, being required to build decent and habitable municipal buildings by paragraph 92 of the royal ordinances

of February 26, 1768, may be assumed to have built it on their own ground AFTER the provincial government had designated territory for it according to the Laws of the Indies.

6. The land designated for a church and the land designated for a courthouse is considered property of the municipality because no pueblo can exist administratively without having a church and a courthouse which represents the seat of its local authority and municipal government. The area meant for a church or a courthouse is granted by the provincial government, following the Laws of the Indies. Thus in this case, the parcel of land in question is patrimonial property of Catbalogan.

7. The courthouse and the church of a pueblo were always built on opposite sides of the plaza mayor (the main square). The plaza mayor was always within the inhabited area of the pueblo while the common areas or pastures were not. In this case, the parcel of land in question is well within the plaza mayor of Catbalogan and cannot be considered a common area or a pasture. The parcel of land is part of the municipal assets of Catbalogan. It is patrimonial property.

Civil Law Basis1. That Catbalogan has possession and ownership of the parcel further weakens the Director of Lands’ position.2. According to pertinent laws, a municipal corporation such as Catbalogan may validly own land:

a. Article 343, Civil Code: property of provinces or towns is divided into property for public use and patrimonial propertyb. Article 344, Civil Code: property for public use in provinces and towns comprises provincial and town roads, squares, streets,

fountains, public waters, promenades, and public works of general sercives supported by said towns or provinces. All other property is patrimonial

c. Section 2 of the Municipal Code:

“(a) Pueblos incorporated under this Act shall be designated as municipalities (municipios), and shall be known respectively by the names heretofore adopted. Under such names they may sue and be sued, contract and be contracted with, acquire and hold real and personal property for the general interest of the municipality, and exercise all the powers hereinafter conferred upon them.(b) All property and property rights vested in any pueblo under its former organization shall continue to be vested in the same municipality after its incorporation under this Act.”

3. Thus, based on these laws, municipalities like Catbalogan have the right to acquire real and personal property.4. Catbalogan should be considered the owner of the parcel because

a. upon its founding, it was given the land by the provincial government. It acquired exclusive ownership of the parcel for the purposes of erecting a courthouse. The records of the case show no contrary proof.

b. It had been occupying the property far longer than the period required for extraordinary prescription based on article 1959 of the Civil Code (occupation period: 40-45 years)

c. The presumption that it had been holding the land as an owner had not been rebutted

Other Opinions of the Court1. Catbalogan is the owner regardless of the fact that a document representing the record of the concession and award of the parcel was

not presented becausea. As a very old municipality, it has undergone many changes in staffb. While the original capitan pedaneo may have held the document, it would not be a surprise if through the course of his many

successors, the document may have been lostc. It would actually be more of a surprise if the document still existed

2. Despite the lack of the document, Catbalogan’s peaceful occupation of the parcel is more than enough to represent its title.3. Inapplicable laws and jurisprudence:

a. Law 8, Title 3, Book 6 and Article 53 of the ordinances of good governmentb. Royal decrees of February 28, 1883, August 1, 1883, and January 17, 1885c. Doctrine of City of Manila v Insular Government: the parcel in this case is a building lot absolutely required by Catbalogan at

the beginning of its organization; that case involved a common aread. Doctrine of Aguado v City of Manila: Catbalogan, in the exercise of the right of ownership over its own property, has a legally

recognized independent personality of its own and is not a mere deligate of the central authority

Digested by: Diane Agustin

LOCGOV - #4Mondano v. Silvosa (1955)

Doctrine: Local governments are only under the supervision (not control) of the executive department. Investigations and any other actions to be taken against any municipal official shall be made in conformity with the law.

Facts: The petitioner is the duly elected and qualified mayor of the municipality of Mainit, province of Surigao. Consolacion Vda. de Mosende filed a sworn complaint with the Presidential Complaints and Action Committee accusing him of (1) rape

committed on her daughter Caridad Mosende; and (2) concubinage for cohabiting with her daughter in a place other than the conjugal dwelling.

The Assistant Executive Secretary indorsed the complaint to the provincial governor for immediate investigation, appropriate action and report.

The petitioner appeared before the provincial governor in obedience to his summons. The provincial governor issued Administrative Order No. 8 suspending the petitioner from office.

Petitioner’s arguments: The petitioner prays for:

1. a writ of prohibition with preliminary injunction to enjoin the respondents from further proceeding with the hearing of the administrative case against him and

2. a declaration that the order of suspension issued by the respondent provincial governor is illegal and without legal effect.Respondent’s arguments: Section 79 (c)of the Revised Administrative Code clothes the department head with "direct control, direction, and supervision over all bureaus and offices under his jurisdiction . . ." and to

that end "may order the investigation of any act or conduct of any person in the service of any bureau or office under his Department and in connection therewith may appoint a committee or designate an official or person who shall conduct such investigations; . . ."

 Villena vs. Secretary of Interior upheld "the power of the Secretary of Interior to conduct at its own initiative investigation of charges against local elective municipal

officials and to suspend them preventively," on the board proposition "that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 11, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Departments, the heads of the various executive departments are assistants and agents of the Chief Executive."

Issue/s:WON the investigation conducted and the suspension imposed by the provincial board were valid and legal: NO.

Held/Ratio: Section 10, paragraph 1, Article VII, of the Constitution "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local

governments as may be provided by law, and take care that the laws be faithfully executed." The President has been invested with the power of control of all the executive departments, bureaus, or offices, but not of all local

governments over which he has been granted only the power of general supervision.Section 79 (c) of the Revised Administrative Code The Department head as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction, but

he does not have the same control of local governments as that exercised by him over bureaus and offices under his jurisdiction. His authority to order the investigation of any act or conduct of any person in the service of any bureau or office under his department is

confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already stated, the President exercises only general supervision.

Paragraph 1, section 10, Article VII, of the Constitution "general supervision over all local governments"

Supervision v. ControlSupervision overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.

Section 79 (c) of the Revised Administrative Code Provincial supervision over municipal officials belongs to the provincial governor who is authorized to "receive and investigate

complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude.

if the charges are serious, "he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question."

In the indorsement to the provincial governor the Assistant Executive Secretary requested immediate investigation, appropriate action and report on the complaint indorsed to him, and called his attention to section 2193 of the Revised Administrative Code which provides for the institution of judicial proceedings by the provincial fiscal upon direction of the provincial governor. If the indorsement of the Assistant

Executive Secretary be taken as a designation of the provincial governor to investigate the petitioner, then he would only be acting as agent of the Executive, but the investigation to be conducted by him would not be that which is provided for in sections 2188, 2189 and 2190 of the Revised Administrative Code. The charges preferred against the respondent are not malfeasances or any of those enumerated or specified in section 2188 of the

Revised Administrative Code, o Rape and concubinage have nothing to do with the performance of his duties as mayor nor do they constitute or involve" neglect

of duty, oppression, corruption or any other form of maladministration of office." Yes, the charges may involve moral turpitude, but before the provincial governor and board may act and proceed in accordance with the

provisions of the Revised Administrative Code referred to, a conviction by final judgment must precede the filing by the provincial governor of charges and trial by the provincial board.

Digested by Roe AnuncioLOCGOV – 005

Bernardo Hebron v. Eulalio Reyes (1958)

Facts:

1. In the general elections of 1951, Bernardo Hebron (petitioner), Liberal Party member was elected mayor, and Eulalio Reyes, Nacionalista Party member, was elected vice mayor of the municipality of Carmona, Cavite. (Term was then for 4 years).

2. In May 22 or 24, 1954, Mayor Hebron received a communication from the Office of the President that he will be investigated for administrative charges against him for alleged oppression, grave abuse of authority and serious misconduct in office, and suspending him from office until the termination of the administrative proceedings against him. The vice mayor was made to assume the office of acting mayor.

3. Mayor Hebron filed an action for quo warranto alleging that Reyes was illegally holding the office of mayor of Carmona since no decision from the Office of the President seemed to be forthcoming despite the termination of the hearings on the said charges against Hebron and because of the fact that his term was about to expire yet he remained suspended.

Respondent’s Arguments:

1. Respondent argues that the President has control over the administration of political subdivisions, such as municipalities by citing Sec. 79 (C ) of the RAC, which gives the department head direct control over all offices under his jurisdiction and may repeal or modify the decisions of the chief of said bureaus or offices when advisable in the public interest, AND Sec. 86 of the said Code gives

the Department of the Interior executive supervision over the administration of provinces, municipalities, chartered cities, and other local political subdivisions.

2. The President has an unqualified authority to order an investigation of any action or conduct of any person in the government services, per Sec. 64 (c) of the RAC.

3. The president has the power to remove officials conformably to law from office and to declare vacant the offices held by such removed officials, and for disloyalty, the president may remove a person at any time from any position of trust or authority in the government, per par. b of Sec. 64.

4. Under the Jones Law, the governor general had both control and supervision over all local governments and as successor to the governor general, the President likewise has both control and supervision over the local governments.

5. Authority of the president over the municipal corporations is not identical to that of state governors in the US because the president is executive, with more comprehensive powers, than those of the governors who are merely chief executives

6. Municipal corporations in the U.S. have the power of local self-government not given to our own political subdivisions and as such, our political subdivisions only have autonomy if granted by the central government, such autonomy being subject to government control.

7. The limitation imposed on the President (i.e., non interference in purely corporate affairs of the local governments) by the general supervision granted it does not apply to the said governments’ political affairs. Basis: Art. I, Sec. 2, RAC, stating that “The Government of the Republic of the Philippines is a term which refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the central Government or to the provincial or municipal branches or other form of local government.”

8. Respondent cited the case of Planas v. Gil to show that if the City of Manila was placed under the direct supervision of the Department of the Interior, so should Carmona, Cavite.

9. Respondent cited Villena v. Roque, where the President’s power of supervision was invoked to cause charges to be filed against Mayor Villena.

Issue: W/N a municipal mayor, not charged with disloyalty to the Republic of the Philippines, may be removed or suspended directly by the President of the Philippines, regardless of the procedure set forth in sections 2188 to 2191 of the Revised Administrative Code.

Held/Ratio:

1. The President’s power to remove or suspend local elective officers is controlled by certain provisions of the Revised Administrative Code (RAC)

a. Lacson v. Roque – President has no inherent power to remove or suspend local elective officers. Such removal and suspension are always controlled by the particular law applicable and its proper construction subject to constitutional limitation. The president is not empowered by any law nor by the constitution with sweeping authority to remove municipal officials.

i. Const. 1935, Art. 7, Sec. 10, par. 1: President’s exercise of general supervision over all local governments does not contemplate control. Also, the said supervisory authority is qualified by the proviso “as may be provided by law”, meaning that the provision requires legislative implementation (i.e., is not self-executing).

ii. Revised Administrative Code, Sec. 64 (b) states that the power to remove should conform to law (i.e., for any of the causes and in the manner prescribed by law and procedure) . Such causes are in Sections 2188 to 2191 of the Revised Administrative Code (RAC).1

iii. Villena v. Roque, on Sec. 2190 of the Revised Administrative Code (RAC): Sections 2188 to 2190 of the Revised Administrative Code must govern investigations against and suspensions of municipal officials, designed precisely to curb the ordering of indefinite temporary suspension of municipal officials

iv. Laws governing the suspension or removal of public officers must be strictly construed in their favor. Also, the procedure for suspension of an officer, when specified by law, is deemed mandatory and must be strictly complied with.

v. The language of Sections 2188 to 2191 of the Revised Administrative Code frowns upon prolonged or indefinite suspension of local elective officials.

b. RAC 2188 policy – mandates speedy termination of a case decreeing suspension in the interest of the public (i.e., determination of guilt or innocence of the official w/in the shortest time possible). Consequently, this requires special proceedings alone plus the right of appeal, without technicalities of pleading, practice and procedure.

1SEC. 2188. Supervisory authority of provincial governor over municipal officers. — The provincial governor shall receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office,

and conviction by final judgment of any crime involving moral turpitude. For minor delinquency, he may reprimand the offender; and if a more severe punishment seems to be desirable, he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question. Where suspension is thus effected the written charges against the officer shall be filed with the board within five days.SEC. 2189. Trial of municipal officer by provincial board. — When written charges are preferred by a provincial governor against a municipal officer, the provincial board shall, at its next meeting, regular or special, set a day, hour, and place for the trial of the same and notify the respondent thereof; and at the to and place appointed, the board shall proceed to hear and investigate the truth or falsity of said charges, giving the accused official full opportunity to be heard in his defense. The hearing shall occur as soon as may be practicable, and in case suspension has been effected, not later than ten days from the date the accused is furnished or has sent to him a copy of the charges, unless the suspended official shall, on sufficient grounds, request an extension of time to prepare his defense.The preventive suspension of a municipal officer shall not be for more than thirty days. At the expiration of the thirty days, the suspended officer shall be reinstated in office without prejudice to the continuation of the proceedings against him until their completion, unless the delay in the decision of the case is due to the fault, neglect, or request of the accused, in which case the time of the delay shall not be counted in computing the time of the suspension: Provided, That the suspension of the accused may continue after the expiration of the thirty days above mentioned in case of conviction until the Secretary of the Interior shall otherwise direct or the case shall finally be decided by said Secretary.SEC. 2190. Action by provincial board. — If, upon due consideration, the provincial board shall adjudge that the charges are not sustained, the proceedings shall be dismissed; if it shall adjudge that the accused has been guilty of misconduct which would be sufficiently punished by reprimand or further reprimand, it shall direct the provincial governor to deliver such reprimand in pursuance of its judgment; and in either case the official, if suspended, shall be reinstated.If in the opinion of the board the case is one requiring more severe discipline, and in case of appeal, it shall without unnecessary delay forward to the Secretary of the Interior, within eight days after the date of the decision of the provincial board, certified copies of the record in the case, including the charges, the evidence, and the findings of the board, to which shall be added the recommendation of the board as to whether the official ought to be suspended, further suspended, or finally dismissed from office; and in such case the board may exercise its direction to reinstate the official, if suspended.The trial of a suspended municipal official and the proceedings incident thereto shall be given preference over the current and routine business of the board.SEC. 2191. Action by Secretary of the Interior. — Upon receiving the papers in any such proceedings, the Secretary of the Interior shall review the case without unnecessary delay and shall make such order for the reinstatement, dismissal, suspension, or further suspension of the official, as the facts shall warrant and shall render his final decision upon the matter within thirty days after the date on which the case was received. Disciplinary suspension made upon order of the Secretary of the Interior shall be without pay. No final dismissal hereinunder shall take effect until recommended by the Department Head and approved by the President of the Philippines.

c. In this case, Hebron was suspended in May 1954, the records of the investigation was forwarded to the Executive Secretary in July 1954, but the decision has not been rendered on May 31, 1955 (when the complaint was filed) or before the expiration of Hebron’s term (December 31, 1955). Hebron’s indefinite suspension was not in accordance with the provisions of the RAC.

2. [On Respondent Argument 1] The president has control over all executive departments, bureaus and offices but not of all local governments, over which he only has supervision.

a. Mondano v. Silvosa – Const. 1935, Art. 7, Sec. 10, par. 1, gives the president control over all executive departments, bureaus or offices but only the exercise of general supervision over all local governments. As stated in RAC Sec. 79 C, the head of the Department of the Interior has direct control and supervision over all executive bureaus and offices but does not have the same control over local governments.

b. The argument that Section 79(C) of the RAC confers upon the department head the power to order the investigation of an official of a local government for malfeasance in office contravenes the provisions ofparagraph 1, section 10, Article VII, of the Constitution, since the President (and thus, his agents like the head of the department of the interior) only has supervision and not control of local governments. The argument would do away with the distinction between supervision (overseeing subordinate officers’ performance of their duties, necessitating only the taking of actions to make them perform their duties) and control (power to alter or modify or set aside the action of a subordinate officer and to substitute one’s judgment for the latter’s).

c. Sec. 79 (C) of the RAC and Sec. 37 of Act 4007 shows that Congress lodged the provincial supervision over municipal officials in the provincial governor who is authorized to investigate complaints against municipal officers for neglect of duty, oppression, corruption, maladministration of office and conviction by final judgment of any crime involving moral turpitude. Sec. 86 of the RAC does not add to the power of supervision of the head of the department of the interior over the administration of municipalities.

d. Gabriel v. Gov’t of Pampanga – President cannot even disapprove any ordinance or resolution of provincial boards (except when the same is illegal). The SC used it to reason that if he cannot even disapprove ordinances of provincial boards, then moreso can he not substitute his judgment in lieu of the judgment of municipal councils or provincial boards.

e. THUS, the word “offices” used in Sec. 79 (C ), over which the President has control, cannot be deemed to include local governments.

3. [On Respondent’s Argument 2] Despite what seems to be an unqualified grant of authority to investigate officials of the government, Sec. 64 (c) of the RAC cannot be construed literally w/o violating the constitution, as the president does not have an unqualified power to investigate officials of co-equal branches of government. The Presidents’ power to investigate is only in addition to his general supervisory authority and as such, its application to municipal corporations would violate the constitutional provision restricting the authority of the president over local governments to “general supervision”

4. [On Respondent Argument 3] Power of removal of the president must be exercised conformably to law (i.e., based on RAC 2188 to 2191)

a. Lacson v. Roque: President does not have the inherent power to remove or suspend municipal officers, for removal and suspension of public officers are always controlled by the particular law applicable and its construction is subject to constitutional limitations.

b. Alejandrino v. Quezon: Power of removal does not imply the authority to suspend for a substantial period of time (e.g., 1 year). The SC used this to buttress its point that Hebron’s suspension for more than 1 year and 7 mos. as beyond what is concomitant with the power of removal

5. Any conflict between Secs. 64 and 79 of the RAC and Secs. 2188 to 2191 of the RAC must be resolved in a way that Secs. 2188 to 2191 of the RAC (being specific provisions setting forth the procedure for disciplinary actions over municipal officials) must prevail over the former (w/c deals with powers of the president and department heads over government officers). Laxamana v. Baltazar adopted this view.

6. The opportunity of the provincial governor and provincial board to exercise the administrative powers of both under Secs. 2188 to 2190 of the RAC cannot be subject to repeal or suspension by the president, without legislation to that effect, since such repeal is tantamount to control over local governments by the president, which power is not granted to the president by the constitution.

a. Rodriguez vs. Montinola - the power of general supervision granted the President, in the absence of any express provision of law, may not generally be interpreted to mean that he, or his alter-ego, the Secretary of Finance, may direct the form and manner in which local officials shall perform or comply with their duties.

b. Since neither the secretary of the interior nor the president may disapprove the resolution of a provincial board (because such is tantamount to control) then neither could also suspend municipal officials without the administrative proceedings in Sec. 2188 to 2190 of the RAC.

7. [On Respondent Argument 4] The principle or philosophy governing the system of local governments necessitate that the power of the president over local governments is limited to general supervision as may be provided by law.

a. Dean Sinco: Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over the supervised party. Hence, the power of general supervision over local governments should exclude, in the strict sense, the authority to appoint and remove local officials.The Congress of the Philippines may pass laws which shall guide the President in the exercise of his power of supervision over provinces and municipalities; but it may not pass laws enlarging the extent of his supervisory authority to the power of control. To do so would be assuming the right to amend the Constitution which expressly limits the power of the President over local governments to general supervision.

b. Deliberations of the committee on provincial and municipal governments of the Constitutional Convention held in Manila in 1934 show that there was practical unanimity of opinion among the delegates that provincial and municipal governments should enjoy a certain degree of autonomy. It is, therefore, logical to conclude that the Constitution in limiting expressly the power of the President over local governments to mere general supervision expresses a concession to the general demand for some local autonomy.

8. [On Respondent Argument 5] The argument is immaterial as the case at bar deals with the president not as akin to an American Governor-General (and thus also possessing the power of control over local governments) but as President of the Philippines, the Philippines being a full sovereign state, over local governments created by Philippine laws. Based on the 1935 Constitution, the president has less powers over municipal corporations (only general supervision) compared to those possessed by fomer governors-general.

9. [On Respondent Argument 6] The local governments are subject to the control NOT of the executive, but of Congress, which has the authority to prescribe the procedure by which the President may exercise general supervision over the said local governments. Congress has control since it has the authority to create or abolish municipal corporations, define its jurisdiction and functions.

10. [ On Respondent Argument 7] The constitutional provision limiting the authority of the President over local governments to General supervision is unqualified and, hence, it applies to all powers of municipal corporations, corporate and political alike. E.g., municipal ordinances, enacted under the police power delegated to municipal corporations, involve the exercise of not corporate, but political authority but, admittedly, such ordinances are not subject to presidential control.

a. The corporate functions of local governments have never been under the control even of Congress, for, in the exercise of corporate, non-governmental or non-political functions, municipal corporations stand practically on the same level,vis-a-vis the National Government or the State as private corporations. Ergo, the limit of the President’s power was created specifically over the local governments’ political functions.

b. Villena v. Sec. of the Interior: rejected the argument that the Sec. of the Interior had authority to suspend a municipal mayor since the power to suspend is a governmental power over which the secretary has control (basically, it rejected the distinction made as to which function exercised by local governments –governmental or corporate – cannot be controlled by the executive)

11. [On Respondent Argument 8] Planas v. Gil is not in point because Manila also has the status of a province and as such, was under the direct supervision of the department of the interior, unlike regular municipalities like Carmona, Cavite (w/c is under the immediate supervision of the provincial governor). As such, Sections 2188 to 2191 of the RAC are not applicable to Manila, since its charter does not contain counterparts of the said sections

12. [On respondent Argument 9] Villena v. Roque is different from the case here because in Villena, the President’s power of supervision was invoked to cause the investigation to be made against Villena because the Provincial Board failed to act on charges against him for an unreasonable length of time. The invocation of the President’s supervisory power was reasonable to ensure that “the laws [will] be faithfully executed.” Here, the Provincial Board of Cavite never had a chance to investigate the charges against Hebron since the office of the Executive, from the beginning, assumed authority to act on said charges.Such assumption cannot be justified under the power of general supervision or the duty imposed on the executive to take care that laws be faithfully executed.

a. When the Executive Department acted in lieu of the Provincial Board of Cavite, it sought to control the said board, prohibiting it from performing its duties under RAC Secs. 2188 to 2191.

b. Villena v. Sec. of the Interior, J. Villareal Concurrence – Sec. of the Interior is not given the power to suspend a municipal elective officer pending charges. The power to suspend cannot be implied even from an arbitrary power to remove except where the power to remove is limited to cause. Provincial governors alone are expressly empowered to suspend municipal officers

i. J. Imperial concurrence – The Pres. under Secs. 64 (6) and 2191 of the RAC and Sec. 11 (1), Art. 7, 1935 Const. is vested with the power to expel and suspend municipal officials for grave misconduct

ii. The majority opinion in this case cited Sec. 2191 of the RAC as the source of the Executive’s power to suspend and remove municipal officials, but the provisions deals with the said powers on appeal from a decision of the Provincial Board in proceedings held under Secs. 2188 and 2190 of the Code. THUS, it does not serve as authority to justify a claimed grant of an original power to suspend either w/o an appeal from a decision of the provincial board, or w/o proceedings before the said board calling for the exercise of its disciplinary functions under the provisions of the RAC.

13.IN SUM, the procedure in RAC Secs. 2188 to 2191 for suspension and removal of municipal officials is mandatory. The national gov’t executive department may conduct investigations in exercise of its general supervision over local governments but only as a means to ascertain whether the provincial governor and the provincial board should take action

a. The executive may take measures to compel the gov. and board to take such action but the executive may not deprive them of the authority conferred them in RAC Secs. 2188 to 2190, for the assumption of those powers by the executive violates RAC 2191 since the executive’s authority is only appellate in character.

Paras Dissent: RAC declares that in addition to the President’s general supervisory authority, the Pres. shall have specific powers and duties expressly conferred or imposed on him by law, including the power to remove officials from office conformably to law and to order the investigation of any action or conduct of any person in the government service. The president has concurrent supervisory authority with the provincial governor to order an investigation of charges against an elective municipal official. The limit on the president’s power of removal is that it must be conformable to law, ie. For a cause provided by law (such as in Sec. 2188 of the RAC). In Planas v. Gil, the president’s power of supervision and his power of control in relation to ordering the investigation of an elective municipal official was distinguished. Paras argued that the supervisory authority to suspend and remove a subordinate official prescribed the administrative code refers to disciplinary action on account of his misconduct or malfeasance in office.The act complained of in Mondano vs. Silvosa , has no reference to the performance of duty on the part of the Mayor and is therefore not included even under the power of supervision of the Chief Executive. Thus, Paras argued that the ruling in Planas v. Gil, Villena v. Sec. of Interior, Lacson v. Roque and Villena v. Roque upholds the explicit supervisory authority of the President under Sec. 64 of the Revised Administrative Code to include that of ordering the investigation of elective municipal officials, and to remove or suspend them conformably to law, and must not be disturbed.

DIGESTED BY: Robert Beltejar (A2015)

LOCGOV - #006Ganzon v CA (1991)

Doctrine: For the sake of local autonomy, the legislature is not deprived of all authority over municipal corporations, in particular, concerning discipline. The Constitution still allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President.

Facts:1. Ten administrative complaints (abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation,

culpable violation of the Constitution, and arbitrary detention) were filed against Mayor Ganzon of Iloilo City by various personalities.

2. Cabaluna was a clerk in the City Health Office, but was assigned by Mayor Ganzon to a job suited for a non-career service employee while a utility worker was appointed to her former position. Mayor Ganzon did this because Cabaluna was a supporter of Ganzon's rival candidate Caram.

3. Dr. Ortigoza was assigned by Mayor Ganzon to perform a task not befitting her position as Assistant City Health Officer of Iloilo City, her office was padlocked without any explanation, salary was withheld, given the run-around treatment in the approval of her leave, and was the object of a well-engineered trumped-up charge in an administrative complaint filed by Dr. Rodolfo Villegas.

4. Finding probable grounds on both charges, the Secretary of the Department of Local Government issued a 60 day preventive suspension order on August 11, 1988 to last until October 11, 1988. Out of the 10, one of which is an arbitrary detention case filed by Erbite, a Barangay Tanod appointed by the former mayor of Iloilo. Erbite was arrested without a warrant of arrest and detained at the City Jail of Iloilo as per the order of Mayor Ganzon. Prima facie evidence was found to exists against Mayor Ganzon for the aforementioned case so the Secretary of the Department of Local Government issued a second 60 day preventive suspension dated October 11, 1988

5. The Secretary of the Department of Local Government issued another 60-day preventive suspension. This is the third suspension in 20 months. Vice-Mayor Mansueto Malabor was designated as acting mayor.

6. Mayor Ganzon instituted one action for prohibition against the Secretary of the Department of Local Government in the RTC. A writ of preliminary injunction was granted to him.

7. Mayor Ganzon then instituted another action for prohibition in the CA which were granted.8. A TRO was issued barring the Secretary of the Department of Local Government from implementing the suspension orders.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)1. Mayor Ganzon contends that the Secretary of Local Government is devoid, in any event, of any authority to suspend and remove local

officials.

2. Mayor Ganzon requested the Secretary of the Department of Local Government to lift his suspension because the suspension orders were made 90 days before the barangay elections.

3. Mayor Ganzon contends that the 1987 Constitution no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials.a. The Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase as may be

provided by law to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the Constitutional Commission.

4. The 1935 Constitution with regard to this topic was modified. a. 1935 Constitution - Sec. 10. The President shall have control of all the executive departments, bureaus, or offices, exercise general

supervision over all Local governments as may be provided by law, and take care that the laws be faithfully executed.b. 1987 Constitution - Sec. 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 functions.

c. Notice that in the 1987 Constitution, the phrase “as may be provided by law” was deleted. Mayor Ganzon contends that this is significant since: (1) the power of the President is "provided by law" and (2) hence, no law may provide for it any longer.

5. Provisions of the Local Government Code with regard to suspensionsa. Sec. 62. Notice of Hearing. — xxx No investigation shall be held within ninety days immediately prior to an election, and no preventive

suspension shall be imposed with the said period. If preventive suspension has been imposed prior to the aforesaid period, the preventive suspension shall be lifted.

b. Sec. 63. Preventive Suspension.2

Respondent’s arguments: None were mentioned in the case

Issue/s:1. WON the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to

investigate, suspend, discipline, and/or remove local officials? No.

2. WON the Constitution repealed Sections 62 and 63 of the Local Government Code? No.3. WON Mayor Ganzon’s three preventive suspension orders subsist. Yes.

Held/Ratio: (Note: include legal basis and jurisprudence)1. Deletion of the phrase “as may be provided by law” did not mean that the President was divested the power to investigate, suspend,

discipline and/or remove local officials

a. The omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs.

b. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline.

c. The Constitution still allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President.3

2(1) Preventive suspension may be imposed by the Minister of Local Government if the respondent is a provincial or city official, by the provincial governor if the respondent is an elective municipal official, or by the city or municipal mayor if the respondent is an elective barangay official(2) Preventive suspension may be imposed at any time after the issues are joined, when there is reasonable ground to believe that the respondent has committed the act or acts complained of, when the evidence of culpability is strong, when the gravity of the offense so warrants, or when 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. In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension. (3) At the expiration of sixty days, the suspended official shall be deemed reinstated in office without prejudice to the continuation of the proceedings against him until its termination. However ' if the delay in the proceedings of the case is due to his fault, neglect or request, the time of the delay shall not be counted in computing the time of suspension.3Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources, and

d. Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials.

e. Mayor Ganzon cannot rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President,Commissioner Blas Ople would not.

2. The Constitution did not repeal Sections 62 and 63 of the Local Government Codea. "Supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression

of local autonomy under the new Charter. In spite of the approval of the Charter, Batas Blg. 337 is still in force and effect.b. The Constitution, does nothing more than to break up the monopoly of the national government over the affairs of local governments

and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and inter-dependence between the central administration and local government units, or otherwise, to user in a regime of federalism. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self- government.

c. "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have)

3. Mayor Rodolfo Ganzon. may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally Since Mayor Ganzon is facing 10 administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all 10 cases yield prima facie findings. a. The sole objective of a suspension is simply "to prevent the accused from hampering the normal cause of the investigation with his

influence and authority over possible witnesses" or to keep him off "the records and other evidence. b. Under the Local Government Code, it cannot exceed sixty days. c. Imposing 600 days of suspension which is not a remote possibility Mayor Ganzon is to all intents and purposes, to make him spend

the rest of his term in inactivity. It is to make his suspension permanent. d. The length of his suspension would have, by the time he is reinstated, wipe out his tenure considerably. e. There is no need to inflict on Mayor Ganzon successive suspensions when apparently, the Secretary has had sufficient time to gather

the necessary evidence to build a case against the Mayor without suspending him a day longer. The Secretary is exercising that power oppressively and with a grave abuse of discretion.

Digested by: Jamie Chan

LOCGOV 007

Vilas v City of Manila

Factual Circumstance:

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.

Vilas, Trigas, and Aguado are creditors of the City of Manila under Spanish rule. After the Treaty of Paris and the cession of the Philippines to the United States, they are now bringing this suit to enforce the said obligation on the theory that the present City is the same juristic person as the old city. The Philippine Supreme Court denied relief, holding that the present municipality is a totally different corporate entity, and in no way liable for the debts of the Spanish municipality.

Argument of Petitioners:

The City of Manila is the same entity as the former municipality under Spanish rule hence liable.

Argument of Respondents:

The present City of Manila is a different entity hence no longer liable to the former’s obligations since there was change of sovereignty.

Issue: Whether, notwithstanding the cession of the Philippine Islands to the United States, followed by a reincorporation of the city, the present municipality is liable for the obligations of the city incurred prior to the cession to the United States.

Ruling of the Court: Yes

The contention that the liability of the city upon such obligations was destroyed by a mere change of sovereignty is wrong.

Act 183 of the Philippine Commission which is the present charter of Manila reads:

“…are hereby constituted a municipality, which shall be known as the city of Manila, and by that name shall have perpetual succession, and shall possess all the rights of property herein granted or heretofore enjoyed and possessed by the city of Manila as organized under Spanish sovereignty.'

Section 16 grants certain legislative powers to the board, and provides that it shall “take possession of all lands, buildings, offices, books, papers, records, moneys, credits, securities, assets, accounts, or other property or rights belonging to the former city of Manila, or pertaining to the business or interests thereof”

Section 69 provides “all city ordinances and orders in force at the time of the passage of this act, and not inconsistent herewith,' until modified or repealed by ordinances passed under this act.

The assertion of the City of Manila against liability rests upon the supposed analogy to the doctrine of principal and agent, the death of the principal (Spain) ending the agency (Ayuntamiento de Manila). Such assertion is false for it loses sight of the dual character of municipal corporations.

The US Supreme Court cited Lloyd v. New York where it is said:

'The corporation of the city of New York possesses two kinds of powers: one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty; the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government; and while in the exercise of the latter, is a corporate legal individual.'

In Chicago Co. v. McGlinn,  it was said:

'It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession, public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power—and the latter is involved in the former—to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed.'

The continuity of the corporate city was not inconsistent with military occupation or the constitution or institutions of the occupying power. Thus, the articles of capitulation concluded in these words: 'This city, its inhabitants and its private property of all descriptions, are placed under the special safeguard of the faith and honor of the American Army.' This was quoted in President McKinley's instructions of April 7, 1900, to the Philippine Commission.

The Treaty of Paris reads: 'And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments . . . having legal capacity to acquire and possess property in the aforesaid

territories renounced or ceded, or of private individuals.' Thus, the property and property rights of municipal corporations were protected and safeguarded precisely as were the property and property rights of individuals.

Corporate Identity and Liability were not extinguished as a result of the new Charter granted by the 1901 Philippine Comission. The inhabitants of the old city are the incorporators of the new. There is substantially identity of area. The new corporation is endowed with all of the property and property rights of the old. It has the same power to sue and be sued which the former corporation had.

Laying out of view any question of the constitutional guaranty against impairment of the obligation of contracts, there is, in the absence of express legislative declaration of a contrary purpose, no reason for supposing that the reincorporation of an old municipality is intended to permit an escape from the obligations of the old, to whose property and rights it has succeeded.

In Shapleigh v. San Angelo, supra, this court said in a similar case:

'The state's plenary power over its municipal corporations to change their organization, to modify their method of internal government, or to abolish them altogether, is not restricted by contracts entered into by the municipality with its creditors or with private parties. An absolute repeal of a municipal charter is therefor effectual so far as it abolishes the old corporate organization; but when the same or substantially the same inhabitants are erected into a new corporation, whether with extended or restricted territorial limits, such new corporation is treated as in law the successor of the old one, entitled to its property rights, and subject to its liabilities.'

Digested by: ChuaLOCGOV – 008

Lidasan vs COMELEC (1967)

Sanchez, J.

FACTS:

The Chief Executive signed into law House Bill 1247, known as RA 4790, Sec1 of which provides:“Sec. 1. Barrios Togaig, Madalum, Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tabangao, Tiongko, Colodan, Kabamakawan, Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos and Magolatung, (21 in total) in the Municipalities of Butig and Balabagan, Province of Lanao del Sur, are separated from said municipalities and constituted into a distinct and independent municipality of the same province to be known as the Municipality of Dianaton, Province of Lanao del Sur. The seat of government of the municipality shall be in Togaig.”

Apparently, 12 of the said barrios are part of Municipalities in Cotabato and not of Lanao del Sur.

Prompted by the coming elections, COMELEC adopted a resolution implementing RA 4790 for purposes of establishment of precints, registration of voters and for other election purposes.

o In effect, 12 barrios in the province of Cotabato are transferred to the province of Lanao del Sur; thus, changing the boundaries in thee 2 provinces.

The office of the President, through the Assistant Executive Secretary, recommended to COMELEC that the operation of the statute be suspended until clarified by correcting legislation.

o COMELEC, however, issued another resolution declaring that the statute should be implemented unless declared unconstitutional by the SC.

Bara Lidasan, a resident and taxpayer of a detached portion of Cotabato and a qualified voter, filed the original action for certiorari and prohibition praying that RA 4790 be declared unconstitutional; and that the COMELEC resolutions be nullified.

Petitioner’s Argument:

Constitutional requirement violated: that no bill which may be enacted into law shall embrace more than one subject which shall be expressed in the title of the bill.

o 2 subjects allegedly effected by RA 4790: Creation of the Municipality of Dianaton and the separation of several barrios from Cotabato.

o The title of the bill – An Act Creating the Municipality of Dianaton, in the Province of Lanao del Sur – provides no implication of the effect of the law to the Province of Cotabato.

Respondent’s Argument:

That the change in the two boundaries of the 2 provinces resulting in the substantial diminution of territorial limits of Cotabato province is merely the incidental results of the definition of the boundary of the Municipality of Dianaton and that therefore, reference to the fact that portions of Cotabato are taken away need not be expressed in the title of the law.

That in case RA 4790 is found erroneous, the law may still be salvaged with reference to the 9 barrios in the municipalities of Lanao del Sur that the nullification shall take effect merely on the 12 portions taken away from Cotabato because the title of the law will anyway cover the 9 barrios actually in the province of Lanao del Sur.

ISSUES:

1. Is RA 4790 unconstitutional?2. Can the law be salvaged as to the 9 barrios actually in the province of Lanao del Sur?

RULING:

1. YES, RA 4790 is unconstitutional. Compliance with the requirement [Art VI, Sec 21 (1), 1987 Consitution] that the title of the bill is to be couched in a language

sufficient to notify the legislators and the public and those concerned of the import of the single subject there of, is imperative. The

constitution does not exact of the Congress to read the entire text of the bill, thus, the title must be stated in such a way as to sufficiently express the subject of the statute.

o It does not require that the Congress employ such precision as to mirror even the minute details of the bill. It suffices if the title informs the legislators and persons interested of the nature, scope and consequences of the proposed law and its operation. The test of sufficiency is whether or not the title is misleading.

In this case, not a slightest intimation is there that communities in the adjacent province of Cotabato are incorporated in the new town in Lanao del Sur. It is not acceptable to say that the dismembering of the 12 barrios is a necessary incident of the creation of a new town that it may be reasonable inferred from the title of the law. Change of boundaries may be made without necessarily creating a new municipality and vice versa.

o Hume vs. Village of Fruitport : Very similar case, the title of the act is “An act to Incorporate the Village of Fruitport, in the County of Muskegon.” It creates the impression that the law affects only the County of Muskegon when Sec 1 of the law included territories of both Muskegon and Ottawa Michigan. The law was declared void.

2. NO, the law is null and void in its entirety. We are not to assume that the Congress would still have intended to create a new town with only the 9 barrios, excluding the 12 as

stated in the bill. Municipal Corporations perform twin functions:

o They serve as an instrumentality of the State in carrying out the functions of gvernmento They act as an agency of the community in the administration of local affairs It is in this character that they are a separate

entity acting in their own purposes and not a subdivision of the State. Thus, several factors (population, territory and income) come to the fore in the consideration whether a group is capable of maintaining itself as an independent municipality.

The bill, having in view the 21 barrios, stated that the territory has become a progressive community; that the average population is large; and that the collective income is sufficient to maintain an independent municipality. Thus, it cannot be said that the Congress intended to create Dianaton with only 9 barrios instead of the 21.

Digested by: Kaye de Chavez

LOCGOV - #9Republic v City of Davao (2002)

Doctrine: The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local government units are juridical persons. Therefore, LGUs are not excluded from the coverage of PD 1586.

Facts:The City of Davao filed an application with the Environmental Management Bureau (EMB), for a Certificate of Non-Coverage (CNC) for its proposed project, the Davao City Artica Sports Dome. The EMB Region XI denied the application, finding that the proposed project was within an environmentally critical area.

- The City of Davao must undergo the environmental impact assessment process to secure an Environmental Compliance Certificate, pursuant to Sec2, PD 1586 (Environmental Impact Statement System) in relation to Sec4 of PD 1151 (Philippine Environment Policy), before it can proceed with the construction of its project.

• Davao filed a petition for mandamus and injunction with the RTC, alleging that 1. Its proposed project was neither an environmentally critical project nor within an environmentally critical area; thus it was outside

the scope of the EIS system. 2. It was the ministerial duty of the DENR, through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of the

required documents.• RTC rendered judgment in favor of respondent.

1. There is nothing in PD 1586, in relation to PD 1151 and Letter of Instruction No. 1179 (prescribing guidelines for compliance with the EIA system), which requires LGUs to comply with the EIS law. Only agencies and instrumentalities of the national government, including government owned or controlled corporations, as well as private corporations, firms and entities are mandated to go through the EIA process for their proposed projects which have significant effect on the quality of the environment. An LGU, not being an agency or instrumentality of the National Government, is deemed excluded under the principle of expressio unius est exclusio alterius.

2. The site for the Artica Sports Dome was not within an environmentally critical area. Neither was the project an environmentally critical one. It therefore becomes mandatory for the DENR, through the EMB Region XI, to approve respondent’s application for CNC after it has satisfied all the requirements for its issuance.

• Petitioner filed MR, which was denied. Petitioner then filed the petition for review.• Upon change of administration, respondent filed a manifestation expressing its agreement with petitioner that, indeed, it needs to secure

an ECC for its proposed project. • While the petition has been rendered moot, the court decided to address the issue raised, for the guidance of the implementors of the EIS

law.

Petitioner’s arguments: • Petitioner: Republic, represented by (1) DENR Secretary Alvarez, (2) DENR-Region XI Regional Exec Director Baguilat, and (3) DENR-EMB-

Region XI Regional Derector, Engr. Lipayon• Petition for review on certiorari assailing the decision of the RTC, which granted the writ of mandamus and injunction in favor of the City

of Davao• The proposed project was within an environmentally critical area. The City of Davao must undergo the environmental impact assessment

process to secure an Environmental Compliance Certificate, pursuant to Sec2, PD 1586 (Environmental Impact Statement System) in relation to Sec4 of PD 1151 (Philippine Environment Policy), before it can proceed with the construction of its project

Respondent’s arguments: • Respondent: City of Davao, represented by Mayor De Guzman• Arguments in the RTC: Its proposed project was neither an environmentally critical project nor within an environmentally critical area;

thus it was outside the scope of the EIS system.

• It was the ministerial duty of the DENR, through the EMB-Region XI, to issue a CNC in favor of respondent upon submission of the required documents.

• (RTC in favor of Respondent) There is nothing in PD 1586, in relation to PD 1151 and Letter of Instruction No. 1179 (prescribing guidelines for compliance with the EIA system), which requires LGUs to comply with the EIS law. Only agencies and instrumentalities of the national government, including government owned or controlled corporations, as well as private corporations, firms and entities are mandated to go through the EIA process for their proposed projects which have significant effect on the quality of the environment. An LGU, not being an agency or instrumentality of the National Government, is deemed excluded under the principle of expressio unius est exclusio alterius.

Issue/s: W/N LGUs are required to comply with the EIS law (YES)W/N the site was within an environmentally critical area (NO)

Held/Ratio: Nature of LGUs• Section 15 of the Local Government Code, defines a local government unit as a body politic and corporate endowed with powers to be

exercised by it in conformity with law. - It performs dual functions, governmental and proprietary. - Governmental functions are those that concern the health, safety and the advancement of the public good or welfare as affecting the

public generally. - Proprietary functions are those that seek to obtain special corporate benefits or earn pecuniary profit and intended for private

advantage and benefit. - When exercising governmental powers and performing governmental duties, an LGU is an agency of the national government. When

engaged in corporate activities, it acts as an agent of the community in the administration of local affairs.• Section 16 of the Local Government Code provides for the duty of the LGUs to promote the people’s right to a balanced ecology. An LGU,

like the City of Davao, can not claim exemption from the coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has the duty to ensure the quality of the environment, which is the very same objective of PD 1586.

• Section 4 of PD 1586 states that “no person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative.”

- The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e., the local government units are juridical persons. Undoubtedly therefore, local government units are not excluded from the coverage of PD 1586.

Environmentally Critical Area

• The arguments, however, presuppose that a project is environmentally critical or within an environmentally critical area. Respondent has sufficiently shown that the Artica Sports Dome will not have a significant negative environmental impact because it is not an environmentally critical project and it is not located in an environmentally critical area.

• The trial court found that the Artica Sports Dome is not within an environmentally critical area. Neither is it an environmentally critical project.

• The Environmental Impact Statement System, which ensures environmental protection and regulates certain government activities affecting the environment, was established by Presidential Decree No. 1586.

• Proclamation No. 2146 was later issued, proclaiming the areas and types of projects which are regarded as environmentally critical and within the scope of the Environmental Impact Statement System established under PD 1586.

• The Artica Sports Dome in Langub is not among the projects or areas enumerated above. Neither is it analogous to any of them. Therefore, the project is not classified as environmentally critical, or within an environmentally critical area. It is therefore the ministerial duty of the DENR to issue the Certificate of Non-Coverage.

Digested by: De Leon

CHAPTER II

LOCGOV - # 010The Province of Negros Occidental v. COA, et al (2010)

Doctrine: LGUs are subject only to the power of general supervision of the President and the latter’s authority is limited to seeing to it that rules are followed and laws are faithfully executed which means that the President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.

Facts: The Sangguniang Panlalawigan of Negros Occidental passed Resolution No. 720-A on Dec. 21, 1994 allocating P4,000,000 of its retained

earnings for the hospitalization and health care insurance benefits of 1,949 officials and employees of the province. o After a public bidding, the Committee on Awards granted the insurance coverage to Philam Care.

The Province of Negros Occidental (represented by its then Governor Rafael L. Coscolluela) and Philam Care then entered into a Group Health Care Agreement involving a total payment of P3,760,000 representing the insurance premiums of its officials and employees which was paid on January 25, 1996.

After a post-audit investigation on January 23, 1997, the Provincial Auditor issued Notice of Suspension No. 97-001-101 suspending the premium payment because of lack of approval from the Office of the President as provided under AO No. 103. o The Provincial Auditor explained that the premium payment for health care benefits violated RA 6758 otherwise known as the Salary

Standardization Law. The Province complied with the directive post-facto and sent a letter-request dated January 12, 1999 to the OP. In a Memorandum dated January 26, 1999, then President Estrada directed the COA to lift the suspension but only in the amount of

P100,000. However, the Provincial Auditor ignored the directive of the President and instead issued Notice of Disallowance No. 99-005-101(96)

dated September 10, 1999 stating similar grounds as mentioned in Notice of Suspension No. 97-001-101. The Province appealed the disallowance to the COA however the latter affirmed the Provincial Auditor’s decision to disallow the health

benefits.o The COA ruled that under AO No. 103, no government entity, including a local government unit, is exempt from securing prior

approval from the President granting additional benefits to its personnel which is in conformity with the policy of standardization of compensation laid down in RA 6758.

o The COA added that Section 468(a)(1)(viii) of RA 7160 or the Local Government Code of 1991 relied upon by the Province does not stand on its own but has to be harmonized with Section 12 of RA 6758.

o Further, the COA stated that the insurance benefits from Philam Care, a private insurance company, was a duplication of the benefits provided to employees under the Medicare program which is mandated by law. -> Being merely a creation of a local legislative body,

the provincial health care program should not contravene but instead be consistent with national laws enacted by Congress from where local legislative bodies draw their authority.

The COA held the following persons liable: (1) all the 1,949 officials and employees of the province who benefited from the hospitalization and health care insurance benefits with regard to their proportionate shares; (2) former Governor Rafael L. Coscolluela, being the person who signed the contract on behalf of petitioner as well as the person who approved the disbursement voucher; and (3) the Sangguniang Panlalawigan members who passed Resolution No. 720-A.

However, the COA did not hold Philam Care and Provincial Accountant Merly P. Fortu liable for the disallowed disbursement as according to it, it was unjust to require Philam Care to refund the amount received for services it had duly rendered since insurance law prohibits the refund of premiums after risks had already attached to the policy contract.

Petitioner’s arguments: ( Note: include petitioner’s relief, position, and legal basis) Petitioner seeks via petition for certiorari to have declared that the COA acted in grave abuse of discretion in affirming the disallowance of

the benefits and to have such decision set aside. According to the Province, the payment of the insurance premium for the health benefits of its officers and employees was not unlawful

and improper since it was paid from an allocation of its retained earnings pursuant to a valid appropriation ordinance. -> The enactment was a clear exercise of its express powers under the principle of local fiscal autonomy which includes the power of LGUs to allocate their resources in accordance with their own priorities.

Petitioner adds that while it is true that LGUs are only agents of the national government and local autonomy simply means decentralization, it is equally true that an LGU has fiscal control over its own revenues derived solely from its own tax base.

The Province’s aforementioned arguments are consistent with the state policy of local autonomy as guaranteed by the 1987 Constitution, under Section 25, Article II and Section 2, Article X, and the Local Government Code of 1991.

The Province further relied on the Civil Service Commission’s Memorandum Circular No. 33, series of 1997, issued on 22 December 1997 which provided the policy framework for working conditions at the workplace. o In said circular, the CSC pursuant to CSC Resolution No. 97-4684 dated 18 December 1997 took note of the inadequate policy on basic

health and safety conditions of work experienced by government personnel. Thus, under CSC MC No. 33, all government offices including LGUs were directed to provide a health program for government employees which included hospitalization services and annual mental, medical-physical examinations

Later, CSC MC No. 33 was further reiterated in AO No. 402 which took effect on 2 June 1998. Sections 1, 2, and 4 of AO 402 state:Section 1.Establishment of the Annual Medical Check-up Program. – An annual medical check-up for government of officials and employees is hereby authorized to be established starting this year, in the meantime that this benefit is not yet integrated under the National Health Insurance Program being administered by the Philippine Health Insurance Corporation (PHIC).Section 2.Coverage. – x x x Local Government Units are also encouraged to establish a similar program for their personnel.Section 4.Funding. – x x x Local Government Units, which may establish a similar medical program for their personnel, shall utilize local funds for the purpose.

Respondent’s arguments: ( Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis) According to the respondents’, the benefits should be disallowed for contravening AO 103 and RA 6758.

Respondents maintain that although LGUs are afforded local fiscal autonomy, LGUs are still bound by RA 6758 and their actions are subject to the scrutiny of the DBM and applicable auditing rules and regulations enforced by the COA.

Additionally, the grant of additional compensation, like the hospitalization and health care insurance benefits in the present case, must have prior Presidential approval to conform with the state policy on salary standardization for government workers to prevent discontentment, dissatisfaction and demoralization among government personnel, national or local, who do not receive, or who receive less, productivity incentive benefits or other forms of allowances or benefits under the whereas clauses of AO No. 103.o Section 1 of AO 103 states that the President authorized all agencies of the national government as well as LGUs to grant the

maximum amount of P2,000 productivity incentive benefit to each employee who has rendered at least one year of service as of 31 December 1993. SECTION 1. All agencies of the National Government including government-owned and/or -controlled corporations and government financial institutions, and local government units, are hereby authorized to grant productivity incentive benefit in the maximum amount of TWO THOUSAND PESOS (P2,000.00) each to their permanent and full-time temporary and casual employees, including contractual personnel with employment in the nature of a regular employee, who have rendered at least one (1) year of service in the Government as of December 31, 1993.

o In Section 2, the President enjoined all heads of government offices and agencies from granting productivity incentive benefits or any and all similar forms of allowances and benefits without the President’s prior approval.SECTION 2.All heads of government offices/agencies, including government owned and/or controlled corporations, as well as their respective governing boards are hereby enjoined and prohibited from authorizing/granting Productivity Incentive Benefits or any and all forms of allowances/benefits without prior approval and authorization via Administrative Order by the Office of the President. Henceforth, anyone found violating any of the mandates in this Order, including all officials/agency found to have taken part thereof, shall be accordingly and severely dealt with in accordance with the applicable provisions of existing administrative and penal laws.

o AO 103 also states that all administrative authorizations to grant any form of allowances/benefits and all forms of additional compensation usually paid outside of the prescribed basic salary under R.A. 6758 (Salary Standardization Law) that are inconsistent with the legislated policy on the matter or are not covered by any legislative action are revoked.

Issue/s:WON COA committed GAD in affirming the disallowance of P3,760,000 for premium paid for the hospitalization and health care insurance benefits granted by the Province of Negros Occidental to its officials and employees

Held/Ratio: (Note: include legal basis and jurisprudence) Yes, the COA committed GAD in disallowing the benefits granted by the Province of Negros Occidental. The Court explained that from a close reading of the provisions of AO 103, the Province did not violate the rule of prior approval from the

President since Section 2 states that the prohibition applies only to "government offices/agencies, including government-owned and/or controlled corporations, as well as their respective governing boards" and that nowhere is it indicated in Section 2 that the prohibition also applies to LGUs.

According to the court, the requirement then of prior approval from the President under AO 103 is applicable only to departments, bureaus, offices and government-owned and controlled corporations under the Executive branch.

In other words, AO 103 must be observed by government offices under the President’s control as mandated by Section 17, Article VII of the ConstitutionSection 17. The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.

According to the court, the Province of Negros being an LGU, is merely under the President’s general supervision pursuant to Section 4, Article X of the Constitution: Section. 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 functions.

The court explained that the President’s power of general supervision means the power of a superior officer to see to it that subordinates perform their functions according to law, which 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.o Since LGUs are subject only to the power of general supervision of the President, the President’s authority is limited to seeing to it

that rules are followed and laws are faithfully executed which means that the President may only point out that rules have not been followed but the President cannot lay down the rules, neither does he have the discretion to modify or replace the rules.

o Thus, the grant of additional compensation like hospitalization and health care insurance benefits in the present case does not need the approval of the President to be valid.

The court added that while it is true that LGUs are still bound by RA 6758, the COA did not clearly establish that the medical care benefits given by the government at the time under Presidential Decree No. 1519were sufficient to cover the needs of government employees especially those employed by LGUs.

The SC also held that the Province correctly relied on CSC MC No. 33.o It explained that the CSC, through CSC MC No. 33, as well as the President, through AO 402, recognized the deficiency of the state of

health care and medical services implemented at the time. o RA No. 7875 or the National Health Insurance Act of 1995 instituting a National Health Insurance Program for all Filipinos was only

approved on 14 February 1995 or about two months after the Prvince of Negros’ Sangguniang Panlalawigan passed Resolution No. 720-A. -> Accordingly, even with the establishment of the NHIP, AO 402 was still issued 3 years later addressing a primary concern that basic health services under the NHIP either are still inadequate or have not reached geographic areas like that of petitioner.

In conclusion, the court said that the grant and release of the hospitalization and health care insurance benefits given to petitioner’s officials and employees were validly enacted through an ordinance passed by petitioner’s Sangguniang Panlalawigan.

Since the Province’s grant and release of the questioned disbursement without the President’s approval did not violate the President’s directive in AO 103, the COA then gravely abused its discretion in applying AO 103 to disallow the premium payment for the hospitalization and health care insurance benefits of petitioner’s officials and employees.

Petition GRANTED. COA decision REVERSED and SET ASIDE.

Dissenting opinion: (if any)

Digested by: Lindsey Supremo Fabella

LOCGOV - 011Buklod ng Magbubukid sa Lupaing Ramos, Inc. v. E.M. Ramos and Sons, Inc. (2011)

Doctrine: A state may not impair vested rights by legislative enactment, by the enactment or by the subsequent repeal of a municipal ordinance, or by a change in the constitution of the State, except in a legitimate exercise of the police power.

Facts: (WARNING: It’s a lengthy case.)- Nature: Consolidated Petitions for Review on Certiorari filed by the Buklod ng Magbubukid Sa Lupaing Ramos, Inc. (Buklod) and the

Department of Agrarian Regorm (DAR), assailing a decisionof the Court of Appeals in which it declared the parcels of land owned by E.M. Ramos and Sons, Inc. (EMRASON) in Cavite exempt from the coverage of the Comprehensive Agrarian Reform Program (CARP), thus, nullifying and setting aside the Decisionof the Office of the President.

- Several parcels of unirrigated land which form part of a larger expanse originally owned by the Manila Golf and Country Club was aquired by EMRASON for the purpose of developing the same into a residential subdivision known as "Traveller's Life Homes".

- The Municipal Council of Dasmariñas, Cavite, acting pursuant to Republic Act No. 2264, otherwise known as the "Local Autonomy Act", enacted Municipal Ordinance No. 1 entitled "An Ordinance Providing Subdivision Regulation and Providing Penalties for Violation Thereof." EMRASON applied for an authority to convert and development its property into a residential subdivision. Them Municipal Council of Dasmariñas, Cavite passed Municipal Ordinance No. 29-A approving EMRASON's application.

- The actual implementation of the subdivision project suffered delay because the property was mortgaged to, and the titles thereto were in the possession of, the Overseas Bank of Manila, which during the period material was under liquidation.

- On June 15. 1988, Republic Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law or CARL, took effect, ushering in a new process of land classification, acquisition and distribution. Then came the Aquino government's plan to convert the tenanted neighboring property of the National Development Company (NDC) into an industrial estate to be managed through a joint venture scheme by NDC and the Marubeni Corporation. Part of the overall conversion package called for providing the tenant-farmers, opting to remain at the NDC property, with three hectares each. However, the size of the NDC property turned out to be insufficient for both the demands of the proposed industrial project as well as the government's commitment to the tenant-farmers. To address this commitment, the Department of Agrarian Reform (DAR) was thus tasked with acquiring additional lands from the nearby areas. The DAR earmarked for this purpose the subject property of EMRASON. DAR Secretary Benjamin Leong sent out the first of four batches of notices of acquisition, each of which drew protest from EMRASON.

- EMRASON filed with the DARAB separate petitions to nullify the notices. The Legal Division of DAR rendered a decision declaring as null and void all the notices of acquisitions, observing that the property covered thereby is, pursuant to Department of Justice (DOJ) Opinion No. 44, series of 1990, exempt from CARP. Supposedly, this was pursuant to a DOJ Opinion rendered by then Justice Secretary Franklin Drilon, clarifying that lands already converted to non-agricultural uses before June 15, 1988 were no longer covered by

CARP.- Region IV DAR Regional Director motu propio elevated the case to the Office of the Agrarian Reform Secretary. DAR Secretary Ernesto

Garilao issued an order affirming the Notices of Acquisition MR denied -> Appeal to the Office of the President - Appeal dismissed by OP because EMRASON’s property has supposedly remained agricultural in classification and thus within the

coverage of the CARP because it failed to comply with the mandatory requirements and conditions of Municipal Ordinance Nos. 1 and 29-A, specifically, among others, the need for approval of the National   Planning   Commission through the Highway District Engineer, and the Bureau of Lands before final submission to the Municipal Council and Municipal Mayor, and there was a certification  of the  Human Settlements Regulatory Commission (HSRC)  in  1981  and the Housing and Land Use Regulatory Board (HLRB) in 1992 that the property is agricultural MR denied Petition for Review with the CA

- DAR had already prepared Certificates of Land Ownership Award (CLOAs) to distribute the subject property to farmer-beneficiaries.  However, a writ of preliminary injunction issued by the Court of Appeals enjoined the release of the CLOAs. Buklod, on behalf of the alleged 300 farmer-beneficiaries of the subject property, filed a Manifestation and Omnibus Motion, wherein it moved that it be allowed to intervene as an indispensable party.

- Court of Appeals ruled in favor of EMRASON because the subject property was already converted/classified as residential by the Municipality of Dasmariñas prior to the effectivity of the CARL. The appellate court reasoned mainly that “…the municipality, conformably with its statutory-conferred local autonomy, had passed a subdivision measure, I.e., Ordinance No. 1, and had approved in line thereto, through the medium of Ordinance No. 29-A, [EMRASON's] application for subdivision, or with like effect approved the conversion/classification of the lands in dispute as residential. Significantly, the Municipal Mayor of Dasmariñas, Cavite, in his letter of September 23, 1988 to [EMRASON], clarified that such conversion conforms with the approved development plan of the municipality”. (If interested in the discussion at CA level, please read the case)

Petitioner’s arguments: - DAR:

o The subject property could be compulsorily acquired by the State from EMRASON and distributed to qualified farmer-beneficiaries under the CARP since it was still agricultural land when the CARP became effective on June 15, 1988. Ordinance Nos. 1 and 29-A, approved by the Municipality of Dasmariñas on July 13, 1971 and July 9, 1972, respectively, did not reclassify the subject property from agricultural to non-agricultural. The power to reclassify lands is an inherent power of the National Legislature under Section 9 of Commonwealth Act No. 141, otherwise known as the Public Land Act, as amended, which, absent a specific delegation, could not be exercised by any local government unit (LGU). The Local Autonomy Act of 1959 - in effect when the Municipality of Dasmariñas approved Ordinance Nos. 1 and 29-A - merely delegated to cities and municipalities zoning authority, to be understood as the regulation of the uses of property in accordance with the existing character of the land and structures.  It was only Section 20 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which extended to cities and municipalities limited authority to reclassify agricultural lands.

o Even conceding that cities and municipalities were already authorized in 1972 to issue an ordinance reclassifying lands from agricultural to non-agricultural, Ordinance No. 29-A of the Municipality of Dasmariñas was not valid since it failed to comply with Section 3 of the Local Autonomy Act of 1959, Section 16(a) of Ordinance No. 1 of the Municipality of Dasmarinas, and Administrative Order No. 152, which all required review and approval of such an ordinance by the National Planning

Commission (NPC). Subsequent developments further necessitated review and approval of Ordinance No. 29-A by the Human Settlements Regulatory Commission (HSRC), which later became the Housing and Land Use Regulatory Board (HLURB).

o Reliance by the Court of Appeals on Natalia Realty, Inc. v. Department of Agrarian Reformis misplaced because the lands involved therein were converted from agricultural to residential use by Presidential Proclamation No. 1637, issued pursuant to the authority delegated to the President under Section 71, et seq., of the Public Land Act.

- Buklod:o Prior to Ordinance Nos. 1 and 29-A, there were already laws implementing agrarian reform, particularly: (1) Republic Act No.

3844, otherwise known as the Agricultural Land Reform Code, in effect since August 8, 1963, and subsequently amended by Republic Act No. 6389 on September 10, 1971, after which it became known as the Code of Agrarian Reforms; and (2) Presidential Decree No. 27, otherwise known as the Tenants Emancipation Decree , which took effect on November 19, 1972. Agricultural land could not be converted for the purpose of evading land reform for there were already laws granting farmer-tenants security of tenure, protection from ejectment without just cause, and vested rights to the land they work on.

o EMRASON failed to comply with Section 36 of the Code of Agrarian Reforms, which provided that the conversion of land should be implemented within one year, otherwise, the conversion is deemed in bad faith. Given the failure of EMRASON to comply with many other requirements for a valid conversion, the subject property has remained agricultural. Simply put, no compliance means no conversion.  In fact, Buklod points out, the subject property is still declared as "agricultural" for real estate tax purposes. Consequently, EMRASON is now estopped from insisting that the subject property is actually "residential."

o Land reform is a constitutional mandate which should be given paramount consideration. Pursuant to said constitutional mandate, the Legislature enacted the CARP. It is a basic legal principle that a legislative statute prevails over a mere municipal ordinance. ARGUMENT MOST RELEVANT TO THE TOPIC

Respondent’s arguments: - EMRASON:

o The subject property is exempt from CARP because it had already been reclassified as residential with the approval of Ordinance No. 29-A by the Municipality. EMRASON cites Ortigas & Co., Ltd. Partnership v. Feati Bank and Trust Co where this Court ruled that a municipal council is empowered to adopt zoning and subdivision ordinances or regulations under Section 3 of the Local Autonomy Act of 1959. EMRASON avows that the Municipality of Dasmariñas, taking into account the conditions prevailing in the area, could validly zone and reclassify the subject property in the exercise of its police power in order to safeguard the health, safety, peace, good order, and general welfare of the people in the locality. EMRASON describes the whole area surrounding the subject property as residential subdivisions (i.e., Don Gregorio, Metro Gate, Vine Village, and Cityland Greenbreeze 1 and 2 Subdivisions) and industrial estates (i.e., Reynolds Aluminum Philippines, Inc. factory; NDC-Marubeni industrial complex, San Miguel Corporation-Monterey cattle and piggery farm and slaughterhouse), traversed by national highways (i.e., Emilio Aguinaldo National Highway, Trece Martirez, Puerto Azul Road, and Governor's Drive). EMRASON mentions that on March 25, 1988, the Sangguniang Panlalawigan of the Province of Cavite passed Resolution No. 105 which declared the area where subject  property  is located as "industrial-residential-institutional mix."

o Ordinance No. 29-A of the Municipality of Dasmariñas is valid. Ordinance No. 29-A is complete in itself, and there is no more

need to comply with the alleged requisites which DAR and Buklod are insisting upon. EMRASON quotes from Patalinghug v. Court of Appeals that "once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail."

o Ordinance No. 29-A, reclassifying the subject property, was approved by the Municipality of Dasmariñas on July 9, 1972. Executive Order No. 648, otherwise known as the Charter of the Human Settlements Regulatory Commission (HSRC Charter) - which conferred upon the HSRC the power and duty to review, evaluate, and approve or disapprove comprehensive land use and development plans and zoning ordinances of LGUs - was issued only on February 7, 1981. The exercise by HSRC of such power could not be applied retroactively to this case without impairing vested rights of EMRASON.

o There is no absolute necessity of submitting Ordinance No. 29-A to the NPC for approval. Based on the language of Section 3 of the Local Autonomy Act of 1959, which used the word "may," review by the NPC of the local planning and zoning ordinances was merely permissive. EMRASON additionally posits that Ordinance No. 1 of the Municipality of Dasmariñas simply required approval by the NPC of the final plat or plan, map, or chart of the subdivision, and not of the reclassification and/or conversion by the Municipality of the subject property from agricultural to residential.  As for Administrative Order No. 152 dated December 16, 1968, it was directed to and should have been complied with by the city and municipal boards and councils. Thus, EMRASON should not be made to suffer for the non-compliance by the Municipal Council of Dasmarinas with said administrative order.

o Since the subject property was already reclassified as residential with the mere approval of Ordinance No. 29-A by the Municipality of Dasmarinas, EMRASON did not have to immediately undertake actual development of the subject property. Reclassification and/or conversion of a parcel of land are different from the implementation of the conversion.

o Buklod members are not farmer-tenants of the subject property. The subject property has no farmer-tenants because, as the Court of Appeals observed, the property is unirrigated and not devoted to any agricultural activity. The subject property was placed under the CARP only to accommodate the farmer-tenants of the NDC property who were displaced by the NDC-Marubeni Industrial Project. Moreover, the Buklod members are still undergoing a screening process before the DAR-Region IV, and are yet to be declared as qualified farmer-beneficiaries of the subject property. Hence, Buklod members tailed to establish they already have vested right over the subject property.

Issue/s: Whether the subject property could be placed under the CARP

Held/Ratio: SC affirms the Court of Appeals and rules in favor of EMRASON.- CARP   coverage limited to agricultural land

o Section 4, Chapter II of the CARL, as amended,24 particularly defines the coverage of the CARP, to wit: SEC. 4. Scope. - The Comprehensive Agrarian Reform Law of 1988 shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture: Provided, That landholdings of landowners with a total area of five (5) hectares and below shall not be covered for acquisition and distribution to qualified beneficiaries. More specifically, the following lands are covered by the CARL: (d) All private lands devoted to or suitable for agriculture regardless of the agricultural products raised or that can be raised thereon. Section 3(c), Chapter I of the CARL further narrows down the

definition of agricultural land that is subject to CARL to "land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land." The CARL took effect on June 15, 1988. To be exempt from the CARL, the subject property should have already been reclassified as residential prior to said date.

- The Local Autonomy Act of 1959 o The Local Autonomy Act of 1959, precursor of the Local Government Code of 1991, provided: SEC. 3. Additional powers of

provincial boards, municipal boards or city councils and municipal and regularly organized municipal district councils . - x x x Power to adopt zoning and planning ordinances. — Any provision of law to the contrary notwithstanding, Municipal Boards or City Councils in cities, and Municipal Councils in municipalities are hereby authorized to adopt zoning and subdivision ordinances or regulations for their respective cities and municipalities subject to the approval of the City Mayor or Municipal Mayor, as the case may be. Cities and municipalities may, however, consult the National Planning Commission on matters pertaining to planning and zoning.

o The Court observes that the OP, the Court of Appeals, and even the parties themselves referred to Resolution No. 29-A as an ordinance. Although it may not be its official designation, calling Resolution No. 29-A as Ordinance No. 29-A is not completely inaccurate.

Ortigas & Co. case, the Court found it immaterial that the then Municipal Council of Mandaluyong declared certain lots as part of the commercial and industrial zone through a resolution, rather than an ordinance, because:Section 3 of R.A. No. 2264, otherwise known as the Local Autonomy Act, empowers a Municipal Council "to adopt zoning and subdivision ordinances or regulations" for the municipality. Clearly, the law docs not restrict the exercise of the power through an ordinance. Therefore, granting that Resolution No. 27 is not an ordinance, it certainly is a regulatory measure within the intendment or ambit of the word "regulation" under the provision. As a matter oi' fact the same section declares that the power exists "(A)ny provision of law to the contrary notwithstanding x x x."

- While the subject property may be physically located within an agricultural zone under the 1981 Comprehensive Zoning Ordinance of Dasmarinas, said property retained its residential classification. According to Section 17, the Repealing Clause, of the 1981 Comprehensive Zoning Ordinance of Dasmarinas: "AH other ordinances, rules or regulations in conflict with the provision of this Ordinance are hereby repealed: Provided, that rights that have vested before the effectivity of this Ordinance shall not be impaired."

o Ayog v. Cusi, Jr.: That vested right has to be respected. It could not be abrogated by the new Constitution. Section 2, Article XIII of the 1935 Constitution allows private corporations to purchase public agricultural lands not exceeding one thousand and twenty-four hectares. Petitioners' prohibition action is barred by the doctrine of vested rights in constitutional law.

o The due process clause prohibits the annihilation of vested rights. "A state may not impair vested rights by legislative enactment, by the enactment or by the subsequent repeal of a municipal ordinance, or by a change in the constitution of the State, except in a legitimate exercise of the police power"

- A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to Ihose already in existence. Non-impairment of contracts or vested rights clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health, morals, peace, education, good order, safety, and general welfare of the people, x x x.

- EMRASON mentions Resolution No. 105, Defining and Declaring the Boundaries of Industrial and Residential Land Use Plan in the Municipalities of Imus and Parts of Dasmariflas, Carmona, Gen. Mariano Alvarez, Gen. Trias, Silang, Tanza, Naic, Rosario, and Trece Martires City, Province o[ Cavite, approved by the Sangguniang Panlalawigan of Cavite on March 25, 1988. The Sangguniang Panlalawigan determined that "the lands extending from the said designated industrial areas would have greater economic value for residential and institutional uses, and would serve the interest and welfare for the greatest good of the greatest number of people."50 Resolution No. 105, approved by the HLURB in 1990, partly reads: Tracts of land in the Municipality of Carmona from the People's Technology Complex to parts of the Municipality of Silang, parts of the Municipalities of Dasmariñas, General Trias, Trece Martires City, Municipalities of Tanza and Naic forming the strip of land traversed by the Puerto Azul Road extending two kilometers more or less from each side of the road which are hereby declared as industrial-residential-institutional mix. (Emphases supplied.)

o There is no question that the subject property is located within the afore-described area.  And even though Resolution No. 105 has no direct bearing on the classification of the subject property prior to the CARL - it taking effect only in 1990 after being approved by the HLURB - it is a confirmation that at present, the subject property and its surrounding areas are deemed by the Province of Cavite better suited and prioritized for industrial and residential development, than agricultural purposes.

- CARP exemption:o Section 4 of R.A. 6657 provides that the CARL shall "cover, regardless of tenurial arrangement and commodity produced, all

public and private agricultural lands." As to what constitutes "agricultural land," it is referred to as "land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land." The deliberations of the Constitutional Commission confirm this limitation. "Agricultural lands" arc only those lands which are "arable and suitable agricultural lands" and "do not include commercial, industrial and residential lands."

o Based on the foregoing, it is clear that the undeveloped portions of the Antipolo Hills Subdivision cannot in any language be considered as "agricultural lands." These lots were intended for residential use. They ceased to be agricultural lands upon approval of their inclusion in the Lungsod Silangan Reservation. Even today, the areas in question continue to be developed as a low-cost housing subdivision, albeit at a snail's pace, x x x The enormity of the resources needed for developing a subdivision may have delayed its completion but this does not detract from the fact that these lands are still residential lands and outside the ambit of the CARL.

Digest by: P.M.R. Gairanod

LocGov #12

AQUILINO Q. PIMENTEL, Jr., Sergio Tadeo (Assoc. of Brgy. Captains of Cabanatuan) and Nelson Alcantara (Brgy. Captain, QC), petitioners,vs.EXECUTIVE SECRETARY Paquito N. Ochoa and Secretary Corazon Juliano-Soliman of the DSWD, respondents.(July 27, 2012)

Doctrine: “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.

“The national government is, thus, not precluded from taking a direct hand in the formulation and implementation of national development programs especially where it is implemented locally in coordination with the LGUs concerned.”

Facts:This suit is a Petition for Certiorari and Prohibition.Petitioners question the constitutionality of certain provisions in the Gen. Appropriations Act of 2011 which allocated P21 Billion for the

Conditional Cash Transfer Program.

In 2007, DSWD started implementing a poverty reduction project named “Ahon Pamilyang Pilipino” in selected municipalities and cities.In 2008, DSWD issued A.O.16 setting the implementing guidelines of the already renamed project “Pantawid Pamilyang Pilipino Program

(4Ps)” also referred as CCTP.CCTP “provides cash grants to extreme poor households to allow the members of the families to meet certain human development

goals.” DSWD is the lead implementing agency.DSWD executed MOAs with participating LGUs outlining the obligation of both parties during the 5-year implementation period.Congress provided funding for the project in the amounts of P298K in 2008, P5 Billion in 2009, P10 Billion in 2010, and P21 Billion in

2011.

I. Petitioners’ arguments:They claim that the program is a “recentralization” of government functions that have already been devolved from the national

government to the local government units.Petitioners base their claim on Art. II, Sec. 254and Art. X, Sec. 35of the 1987 Constitution in relation to Sec. 17 of the LGC of 1991.While petitioners admit that that the wisdom of adopting a proverty reduction strategy such as the CCTP is with the legislature, they

take exception to the manner by which it is being implemented through DSWD. DSWD has “full control over the identification of beneficiaries and the manner by which services are to be delivered or conditionalities are to be complied with.”

They say that LGUs have the responsibility and functions of delivering social welfare, agricultural, and health services pursuant to Sec. 17 of the LGC. They assert that the P21 Billion should have been allocated directly of the LGUs.

II. Respondent’s arguments: *The Court did not say*

4 Art. II, Section 25. The State shall ensure the autonomy of local governments.5 Art. X, Section 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.

Issue/s:1. W/N the CCTP violate the said constitutional privisions and the Local Government Code? NO.

Held/Ratio:1. The Local Government Code vested upon the LGUs the duties and functions pertaining to the delivery of basic services and facilities.

To wit:

“Sec. 17 (a) Local government units shall endeavor to be self-reliant ..x x x.. Local government units shall likewise exercise such other powers ..x x x.. as are necessary to efficient and effective provision of the basic services and facilities.

“Sec. 17 (b) Such basic services and facilities include, but are not limited to, ..x x x..“Sec. 17 (c) Notwithstanding the provisions of subsection (b) hereof, x x x, programs and services funded by the national government

under the annual General Appropriations Act, x x x , are not covered under this Section, except in those cases where the local government unit concerned is duly designated as the implementing agency for such projects, facilities, programs, and services.”

The Court said: “The essence of this express reservation of power by the national government is that [the LGU] 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.”

Ganzon vs. CA: “the concept of local autonomy does not imply the conversion of local government units into “mini-states.”“The Constitution did not intend to sever “the relation of partnership and interdependence between the central administration and local

government units.””

Pimentel vs. Aguirre: “Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. To enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress.”

Limbona vs. Mangelin distinguishes: “Decentralization of Administrationwhen the central government delegates administrative powers to political subdivisions ..x x x.. it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns.

“Decentralization of Power involves an abdication of political power in favor of local government units.” Decentralization of power is beyond our constitutional concept of autonomy.

Digested by: Jay Garcia (A2015)LOCGOV - #13

CSC v. Agnes Ouida-Yu (2012)

J. Perlas-Bernabe

Doctrine: The policy of the State with respect to local governments involves Devolution which is the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities.

Facts:

1. Thru the Local Government Code of 1991, the national government implemented a devolution program which affected the Department of Health along with other government agencies.

2. Prior to the devolution, Dr. Fortunata Castillo was the:a. Provincial Health Officer II (PHO II) of the DOH Regional Office No. IX in Zamboanga City AND b. Head of both the Basilan Provincial Health Hospital and Public Health Services

3. Respondent Dr. Agnes Ouida P. Yu was Provincial Health Officer I (PHO I) 4. Upon the implementation of the devolution program, then Basilan Governor Salapuddin refused to accept Dr. Castillo as the

incumbent of the PHO II position that was to be devolved to the LGU of Basilana. DOH retained Dr. Castillo at the Regional Office No. IX in Zamboanga City where she would serve the remaining four years of her

public service. She retired in 1996.5. In 1994, Governor Salapuddin appointed Dr. Yu to the PHO II position6. In 1998, Republic Act No. 8543 (An Act Converting the Basilan Provincial Hospital in the Municipality of Isabela, Province of Basilan,

into a Tertiary Hospital Under the Full Administrative and Technical Supervision of the Department of Health, Increasing the Capacity to One Hundred Beds and Appropriating Funds Therefor) was passed hospital positions previously devolved to the LGU of Basilan were re-nationalized and reverted to the DOHa. The Basilan Provincial Health Hospital was later renamed the Basilan General Hospital, and the position of PHO II was then re-

classified to Chief of Hospital II.7. While Dr. Yu was among the personnel reverted to the DOH with the re-nationalization, she was made to retain her original item of

PHO II instead of being given the re-classified position of Chief of Hospital II. 8. In 2003, then DOH Secretary Manuel M. Dayrit appointed Dr. Domingo Remus A. Dayrit to the position of Chief of Hospital II9. Respondent Dr. Yu filed a letter of protest before the CSC claiming that she has a vested right to the position of Chief of Hospital II.

Respondent’s arguments:

a. The position of Chief of Hospital II to which Dr. Dayrit has been appointed is a mere conversion from the item of PHO II previously occupied by her

b. When the hospital was re-nationalized, the position of PHO II was refused re-nationalized by DOH alleging that it was an LGU-created position, that is, Basilan created it. Thus, instead of the undersigned being automatically re-appointed and later to be renamed Chief of Hospital II, pursuant to the Re-Nationalization Law, she was instead given an appointment still as PHO II but under a co-terminous status at the Center for Health and Development, DOH which position the undersigned refused to accept

10. CSC’s rulings/ Petitioner’s position:a. CSC granted Dr. Yu's protest and revoked the appointment of Dr. Dayrit as Chief of Hospital II and Secretary Dayrit was directed to

appoint Dr. Yu to said positionb. Upon MR, the CSC reversed and declared that the position of PHO II was never devolved to the Provincial Government of Basilan

but was retained by the DOH, hence, the PHO II position held by Dr. Yu was a newly-created position, therefore, she did not have a vested right to the Chief of Hospital II

c. Dr. Yu then filed a MR which was denied by the CSC 11. Dr. Yu elevated her case to the CA on petition for review raising the sole issue of whether the item of PHO II she previously occupied

was a devolved position or a locally created onea. CA ruled in favor of Dr. Yub. The CA cited several letters by DOH officials stating that the PHO II position was devolved to the local government

Issue:

W/n the court of appeals erred in holding that the pho ii position previously occupied by respondent Yu is a devolved positionNO

Ratio:

RELEVANT: Re Devolution:

1. Devolution is the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilitiesa. Section 17(i) of the LGCode prescribes the manner of devolution, as follows:

(i) The devolution contemplated in this 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.

Personnel of said national agencies or offices shall be absorbed by the local government units to which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said oversight committee:

Provided, further, That regional directors who are career executive service officers and other officers of similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national government, without any diminution of rank, salary or tenure.

b. To ensure the proper implementation of the devolution process, then President Aquino issued Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies Whose Functions Are To Be Devolved To The Local Government Units And For Other Related Purposes which states that: “2. The absorption of the NGA personnel by the LGU shall be mandatory, in which case, the LGUs shall create the equivalent positions of the affected personnel except when it is not administratively viable. (emphasis by digester)3. Absorption is not administratively viable when there is a duplication of functions unless the LGU opts to absorb the personnel concerned.4. The national personnel who are not absorbed by the LGUs under no. 3 above, shall be retained by the NGA concerned, subject to civil service law, rules and regulations.Xxx12. Except as herein otherwise provided, devolved permanent personnel shall be automatically reappointed by the local chief executive concerned immediately upon their transfer which shall not go beyond June 30, 1992. Xxx”

2. IN THIS CASE, based on the cited rules, it was mandatory for Governor Salapuddin to absorb the position of PHO II, as well as its incumbent, Dr. Castillo. The only instance that the LGU concerned may choose not to absorb the NGA personnel is when absorption is NOT administratively viable, meaning, it would result to duplication of functions, in which case, the NGA personnel shall be retained by the national governmenta. The absorption is automatic or‖involuntary either wholly or to a major extent so that any activity of the will is largely negligible

it connotes something mechanical, spontaneous and perfunctory3. Governor Salapuddin himself certified that said position was included in the 1992 OSCAS (Organization, Staffing and Compensation

Action) received from the DBM with its corresponding budget appropriationa. He declared that during the formal turn over program in 1993 attended by DOH officials, the item position of PHO II was among

the positions turned over to the Provincial Government b. Thus, the argument of CSC that only 53 plantilla positions, not 54, were devolved to the local government of Basilan does not hold

water4. However, Governor Salapuddin refused to reappoint Dr. Castillo to her devolved position in the LGU which was whimsical on the

Governor’s part because it lacks legal bases. Nonetheless, this refusal did not prevent the devolution of Dr.Castillo which, together with that of the PHO II position, took effect by operation of law

5. To solve his dilemma, Governor Salapuddin requested that Dr. Castillo be detailed instead at the DOH, which was confirmed by then Secretary Flavier

a. The drawing of Dr. Castillo's salary from the LGU of Basilan which Governor Salapuddin claimed to have allowed simply ―to accommodate her (Dr. Castillo) was, in fact, a necessary consequence of her devolution to the LGU and subsequent detail to the DOH (parent agencies pay the salary of the detailed employees)

b. A detail is defined and governed by EO29: A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission

6. Had Dr. Castillo felt aggrieved by her detail she could have appealed to the CSC, but she had not seen fit to question it may because she only has three more years until her retirement in 1996, and considering that she obviously would not suffer any diminution in salary and rank

7. DOH officials categorized her as a devolution non-viable employee by the mere fact that she was not accepted by the LGU of Basilan and not because of an actual non-viabilitya. Hence, in 1994, when Governor Salapuddin formally manifested his intention to stop the drawing of Dr. Castillo's salary from the

LGU in anticipation of his appointment of Dr. Yu to the PHO II position, Dr. Castillo ceased to be a detailed employee at the DOH Regional Office but was re-absorbed by the DOH as a devolution non-viable employee and, consequently, paid salaries and benefits from the Miscellaneous Personnel Benefits Fund that had been set aside under the Office of the Secretary of Health precisely for such employees

(NOT RELEVANT TO TOPIC) Re Abandonment by Dr. Castillo: She did not abandon her position

1. Abandonment of an office is the voluntary relinquishment of an office by the holder with the intention of terminating his possession and control thereof. Two essential elements of abandonment: a. An intention to abandon and, b. An overt or 'external' act by which the intention is carried into effect

2. Governor Salapuddin's refusal to accept Dr. Castillo negates voluntariness on the part of the latter to let go of her position. The risk of incurring the ire of a powerful politician effectively tied Dr. Castillo's hands

3. With Dr. Castillo's re-absorption by the DOH, her devolved position (PHO II) with the LGU of Basilan was left vacanta. Dr. Yu was validly appointed to the position of PHO II and acquired a vested right to its re-classified designation – Chief of Hospital

II. She should have been automatically re-appointed by Secretary Dayrit in accordance with the Guidelines

CONCURRING: Leonardo-De Castro

1. She agrees with the holding on the devolution but she opines that Dr. Castillo abandoned her position by acquiescence. Abandonment of office may be by non-user or acquiescence: Non-user refers to a neglect to use a right or privilege or to exercise an office while acquiescence is a silent appearance of consent by failure to make any objection or by submission to an act of which one had

knowledge. It exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right

2. Dr. Castillo’s manifest inaction to assert a legal right from 1992 up to her retirement from government service in 1996 constituted abandonment by acquiescence. The ponencia’s position (re retirement or fear of reprisal from the Governor) is speculative.

Digested by: Cielo (A2015)

LOCGOV - #015San Juan v. Civil Service Commission (1991)

Doctrine: Following the principle of local autonomy, the DBM may only appoint a Provincial Budget Officer from the list of qualified recommendees nominated by the Provincial Governor. If none are qualified among them, the DBM must explain to the Governor why no one met the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

Facts:- Following the vacancy of the position of “Provincial Budget Officer” (PBO) of the Province of Rizal, petitioner Rizal Governor Reynaldo

San Juan wrote Director Abella of DBM-Region IV, asking for his endorsement of the appointment of a certain Dalisay Santos as PBO of Rizal. She had been acting as PBO for two (2) months.

- Not heeding the request, Director Abella instead recommended to the DBM the appointment of private respondent Cecilia Almajose as PBO, on the finding that she was the most qualified (she was the only CPA among the nominees) following a comparative study of all Municipal Budget Officers in Rizal.

o DBM Undersecretary Cabaquit agreed, and signed her appointment papers as PBO of Rizal.

- Not knowing of the appointment, petitioner reiterated his request for the appointment of Dalisay Santos. To this DBM Regional Director Galvez replied that Santos and petitioner’s other recommendees did not meet the minimum requirements under a Local Budget Circular and required petitioner to submit at least three (3) other qualified nominees for PBO.

- Petitioner finally learned of private respondent’s appointment and filed a letter-protest with the DBM.- The DBM Bureau of Legal and Legislative Affairs ruled that DBM validly exercised its prerogative in appointing private respondent as

PBO since none of the petitioner’s nominees met the prescribed requirements, per Local Budget Circular No. 31. The DBM Secretary denied petitioner’s MR.

- Petitioner protested the appointment before the Civil Service Commission, which upheld private respondent’s appointment.- Hence, this petition.

Petitioner’s arguments: - Petitioner prays for the nullification of the CSC resolutions which upheld private respondent’s appointment as PBO of Rizal- As Governor, petitioner has the sole right and privilege to recommend the nominees to the position of PBO and that the appointee

should come only from his nominees.- Before the promulgation of EO 112, BP 337 (the old Local Government Code) vested upon the governor the power to appoint

the PBO. As such, petitioner assumes that the intent behind the grant of recommendatory powers in EO 112 with regard to appointments of PBOs is to make his recommendation part and parcel of the appointment process.

- Further, in light of the state policy of local autonomy, his recommendatory power should be given mandatory application. Such power cannot be validly defeated by a mere DBM administrative issuance reserving upon itself the right to fill-up vacancies in case the governor’s nominees do not meet DBM requirements.

- E.O. 112, Section 1:“All budget officers of provinces, cities and municipalities shall be appointed henceforth by the Minister of Budget and Management upon recommendation of the local chief executive concerned, subject to civil service law, rules and regulations and they shall be placed under the administrative control and technical supervision of the Ministry of Budget and Management.”

Respondent’s arguments: - Respondent argues that in the event the local chief executive’s recommendees do not meet the qualifications for the position of PBO,

it may validly exercise its prerogative to fill-in such position. In doing so, it should not be restricted to the list of recommendees in the final selection of the appointee, and may consider other nominees for the position.

- The recommendation of the local chief executive is thus merely directory, and not a condition sine qua non to the exercise of the DBM of its appointing prerogative.

- It must be considered that the PBO is a nationalized position under the control and supervision of the DBM Secretary, and appointees are primarily the choice of the national appointing official. This is necessary to preserve and maintain the independence of said officer from the LGU.

- Local Budget Circular No. 31, Sec. 6.0“The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief executive meet the prescribed requirements.”

Issue/s:- WoN the Department Head is free to appoint anyone in the event the persons recommended by the Governor are unqualified.

Held/Ratio: - NO. THE RECOMMENDATORY POWER OF THE GOVERNOR IS DIRECTORY, AND THE DBM MAY NOT APPOINT PERSONS OTHER

THAN THOSE RECOMMENDED BY GOVERNOR SHOULD THEY BE UNQUALIFIED.- Constitutional policy of local autonomy

o Where a law is capable of two interpretations, one in favor of centralized power and the other beneficial to local autonomy, it must be interpreted in favor of autonomy.

o The exercise by local governments of meaningful power and the establishment of local governments which manage their own affairs to the fullest extent possible with the least degree of supervision has been a national goal since the beginning of the 20th

century as can be gleaned from constitutional provisions and legislation. 1987 Const., Art. II, Sec. 25. “The state shall ensure the autonomy of local governments.” 1987 Const., Art. X, Sec. 2. “The territorial and political subdivisions shall enjoy local autonomy.”

o Executive intervention in local government affairs is limited to supervision which goes no further than “overseeing or the power or authority of an officer to see that subordinate officers perform their duties,” and taking actions to make them perform their duties should they fail or neglect to do the same. (Tecson v. Salas)

- Interpreting the recommendatory power of the Governor as purely directory goes against the spirit of the constitutional provisions on local autonomy, and ignores the right of local governments to develop self-reliance and resoluteness in the management of their own funds.

- As such, Local Budget Circular No. 31, Sec. 6.0 is ultra vires and must be set aside. The DBM may only appoint A PBO from the list of qualified recommendees nominated by the Provincial Governor. If none are qualified among them, the DBM must explain to the Governor why no one met the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

- The judicial appointment process may be look at by way of analogy. A president, in appointing justices and judges, cannot apply the procedure advanced by the DBM by rejecting all JBC nominees and appoint another person whom she feels is better qualified. There can be no reservation of the right to fill up a position with a person of the appointing power’s personal choice.

Digested by: Oyie Javelosa

LOCGOV – 15Pimentel v. Aguirre (2000)Doctrine: The Constitution vests the President with the power of supervision, not control, over local government units (LGUs). Such power enables him to see to it that LGUs and their officials execute their tasks in accordance with law. While he may issue advisories and seek

their cooperation in solving economic difficulties, he cannot prevent them from performing their tasks and using available resources to achieve their goals. He may not withhold or alter any authority or power given them by the law. Thus, the withholding of a portion of internal revenue allotments legally due them cannot be directed by administrative fiat.

Facts:

1. This is an original Petition for Certiorari and Prohibition seeking:a. To annul Section 1 of Administrative Order (AO) No. 372, insofar as it requires local government units to reduce their

expenditures by 25 percent of their authorized regular appropriations for non-personal services;b. To enjoin respondents from implementing Section 4 of the Order, which withholds a portion of their internal revenue

allotments.

2. On December 27, 1997, the President of the Philippines issued AO 372. The pertinent provisions are as follows:“SECTION 1. All government departments and agencies, including state universities and colleges, government-owned and controlled corporations and local governments units will identify and implement measures in FY 1998 that will reduce total expenditures for the year by at least 25% of authorized regular appropriations for non-personal services items…”

“SECTION 4. Pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld.”

3. On December 10, 1998, Pres. Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal revenue allotment (IRA) to be withheld from the LGUs.

Petitioner’s Arguments: Petitioner contends that the President, in issuing AO 372, was in effect exercising the power of control over LGUs. The Constitution vests in the President, however, only the power of general supervision over LGUs, consistent with the principle of local autonomy. Petitioner further argues that the directive to withhold ten percent (10%) of their IRA is in contravention of Section 286 of the Local Government Code and of Section 6, Article X of the Constitution, providing for thea utomatic release to each of these units its share in the national internal revenue.Respondent’s Arguments: The solicitor general, on behalf of the respondents, claims on the other hand that AO 372 was issued to alleviate the "economic difficulties brought about by the peso devaluation" and constituted merely an exercise of the President's power of supervision over LGUs. It allegedly does not violate local fiscal autonomy, because it merely directs local governments to identify measures that will reduce their total expenditures for non-personal services by at least 25 percent. Likewise, the withholding of 10 percent of the LGUs’ IRA does not violate the statutory prohibition on the imposition of any lien or holdback on their revenue shares, because such

withholding is "temporary in nature pending the assessment and evaluation by the Development Coordination Committee of the emerging fiscal situation."

Issue/s: WON whether Section 1 of AO 372, insofar as it "directs" LGUs to reduce their expenditures by 25 percent and Section 4 of the same issuance, which withholds 10 percent of their internal revenue allotments, are valid exercises of the President's power of general supervision over local governments. (NO)

Held/Ratio:

a. Scope of President’s Power of Supervision over LGUs Section 4 of Article X of the Constitution confines the President's power over local governments to one of general

supervision.  It reads as follows: "Sec. 4.    The President of the Philippines shall exercise general supervision over local governments. "

This provision has been interpreted to exclude the power of control.   Supervision and control are different:

i. In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties.  If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties.  Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter.

ii. The Chief Executive wielded no more authority than that of checking whether local governments or their officials were performing their duties as provided by the fundamental law and by statutes.  He cannot interfere with local governments, so long as they act within the scope of their authority. 

iii.  "Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body,"we said.

iv. Drilon v. Lim:.  Officers in control lay down the rules in the performance or accomplishment of an act.  If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves.  On the other hand, supervision does not cover such authority.  Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them.  If the rules are not observed, they may order the work done or redone, but only to conform to such rules.  They may not prescribe their own manner of execution of the act.  They have no discretion on this matter except to see to it that the rules are followed.

Under our present system of government, executive power is vested in the President. The members of the Cabinet and other executive officials are merely alter egos.  As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed.In contrast, the heads of political subdivisions are elected by the people.  Their sovereign powers emanate from the electorate, to whom they are directly accountable.  By constitutional fiat, they are subject to the President’s supervision only, not control, so long as their

acts are exercised within the sphere of their legitimate powers.  By the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law.

b. Extent of Local Autonomy: Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring local autonomy.

Ganzon v. Court of Appeals: local autonomy signified "a more responsive and accountable local government structure instituted through a system of decentralization."  The grant of autonomy is intended to "break up the monopoly of the national government over the affairs of local governments not   to end the relation of partnership and interdependence between the central administration and local government units ."  Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government

Decentralization simply means the devolution of national administration, not power, to local governments.  Local officials remain accountable to the central government as the law may provide.

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions.  Only administrative powers over local affairs are delegated to political subdivisions.  The purpose of the delegation is to make governance more directly responsive and effective at the local levels.  In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development.  But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal.  Thus, policy-setting for the entire country still lies in the President and Congress

c. Fiscal Autonomy of LGUs Under existing law, local government units, in addition to having administrative autonomy in the exercise of their functions,

enjoy fiscal autonomy as well.  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.  It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof.  They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not.  Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials, who in any case are partners in

Sec. 1 may be upheld as an advisory effected in times of national crisis. However, Section 4 of AO 372 cannot be upheld.   A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.  This is mandated by no less than the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." As a rule, the term "shall" is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative.

In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all.  The latter provision effectively encroaches on the fiscal autonomy of local governments.  Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs’ IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law.  Verily, laudable purposes must be carried out by legal methods.

Digested by: Kimmie

LOC GOV – No. 16

Tan v. Comelec (1986)J. Alampay

When the Constitution speaks of “the unit or units affected,” it means all of the people of the province (city, municipality, or barangay) if the province (city, municipality, or barangay) is to be divided or all of the people of two or more provinces (cities, municipalities, or barangays) if there be a merger. Congress cannot, by mere legislative fiat, diminish or restrict “the unit or units affected” referred to by the Constitution to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected.

Background

1. BP 885 (an act creating a new province—Negros del Norte) took effect in 1985. Thereafter, petitioners (residents of Negros Occidental) filed a petition for prohibition against respondents Comelec and Provincial Treasurer of Negros Occidental: to enjoin the former from conducting the plebiscite pursuant to said BP, and to enjoin the latter from disbursing the funds for said plebiscite. The BP provided that 3 cities and 8 municipalities (all in northern Negros) would constitute the new province, and that the territorial area of Negros del Norte would be 4,019 sq. km more or less.

2. The plebiscite was nevertheless conducted (participated in only by a select few voters, namely the residents of the 3 cities and 8 municipalities of the proposed new province and not by the voters of the entire Negros Occidental province), so petitioners filed a supplemental petition (recognizing that their initial petition to prohibit the conduct of plebiscite had been mooted) this time to prohibit respondent Comelec from issuing the official proclamation of the results of the plebiscite, and to compel respondent Comelec to hold another plebiscite wherein all the voters of the entire province of Negros Occidental shall be allowed to participate.

3. Sen. Ambrosio Padilla filed a motion that he be allowed to appear as amicus curiae, which was granted.

Petitioners’ Position

4. Petitioners argue that:

(a) BP 885 is unconstitutional and it is not in complete accord with the following provisions of the old LGC and the 1973 Constitution:

No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected. (Sec. 3, Art. XI, 1973 CONST. [now Sec. 10, Art. X, 1987 CONST.])

Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands.

The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Sec. 197, old Local Government Code [now, see Chap. II, LGC of 1991])

(b) The following section of BP 885 is void for being contrary to Sec. 3, Art. XI, 1973 CONST.:

SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province.

Sec. 3, Art. XI, 1973 CONST. contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite.

(c) The area which would comprise the new province of Negros del Norte, would only be about 2,856 square kilometres, evidently lesser than the minimum area prescribed by the LGC (3,500 sq. km).

Respondents’ Position

5. In general:

BP 885 should be accorded the presumption of constitutionality / legality. The said law is not void on its face and the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. The power of the Batasang Pambansa to enact BP 885 is unquestionable. BP 885 does not infringe the Constitution because the requisites of the (old) LGC have been complied with. The case is moot and academic in view of the proclamation of the new Province of Negros del Norte.

6. In particular:

(a) The remaining cities and municipalities of Negros Occidental not included in the area of the new Province of Negros del Norte do not fall within the meaning and scope of the term “unit or units affected,” as referred to in Sec. 3, Art. XI, 1973 CONST. (see par. 4[a], supra). BP 885 does not therefore violate the Constitution, per Paredes v. Executive Secretary(1984) (a plebiscite was conducted which was participated in exclusively by the people of the barangay that would constitute the new municipality; held—that the plebiscite is valid):

(i) Admittedly, this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the barangays to be separated, should be excluded in the plebiscite.

(ii) For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity.

(iii) Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice—their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it. That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia.

(b) The requisites under the old LGC for the creation of the new province of Negros del Norte have all been duly complied with. Contrary to petitioners’ contention, the requisite area of 3,500 square kilometers as so prescribed in the LGC for a new province to be created has been satisfied. BP 885 creating the new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019 sq. km, more or less.

(c) The petition has been rendered moot and academic considering that a plebiscite has been already conducted and as a result thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it. And because the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as “Negros del Norte.” Therefore, following the proclamation of Negros del Norte province, the appointments of the officials of said

province created were announced. The case should be dismissed for having been rendered moot and academic as the creation of the new province is now a fait accompli.

Ruling of the Court

7. The petition is not moot and academic:

“Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to yield to the respondents’ urging that, as there has been fait accompli then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief....”

8. Sec. 3, Art. XI, 1973 CONST. requires that there be first obtained “the approval of a majority of votes in the plebiscite in the unit or units affected” whenever a province is created, divided or merged and there is substantial alteration of the boundaries:

“It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate that the two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.”

9. In order to conform to the Constitution therefore, the plebiscite must be participated in by all the residents of Negros Occidental, the parent province, and the proposed Negros del Norte, the “units affected”:

“No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the Idol therein.”

10. The case of Paredes v. Executive Secretaryrelied upon by respondents should not be applied:

“This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is ‘one of those cases where the discretion of the Court is allowed considerable leeway’ and that ‘there is indeed an element of ambiguity in the use of the expression unit or units affected.’ The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted.

“The ruling in [Paredes] should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that ‘it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected.’”

11. The case of Paredes contained a strong dissent from Justice V. Abad Santos (“when the Constitution speaks of ‘the unit or units affected’ it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or all of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision”), reiterated by him in Lopez, Jr. v. Comelec (1985), involving a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. It is this dissenting opinion that guided the Court in deciding this case. The rulings in Paredes and Lopez, Jr. are therefore abandoned.

12. The present case is different from the cases relied upon by respondents:

“Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted. However, even this consideration no longer retains persuasive value.

“The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects of the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein.”

13. While it is true that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia, it cannot be said that in wording Sec. 4, BP 885 (see par. 4[b], supra), by mere

legislative fiat the unit or units affected referred in the Constitution can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected.

“Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners’ assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, ‘to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no “birth” but “amputation.”’ We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

“Indeed, the terms ‘created,’ ‘divided,’ ‘merged,’ ‘abolished’ as used in the constitutional provision do not contemplate distinct situation isolated from the mutually exclusive to each other. A Province may becreated where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered.

“It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true.”

14. The plebiscite conducted is declared null and void. However, the petitioners’ prayer that another plebiscite be conducted wherein all voters of Negros Occidental shall participate cannot be granted for lack of legal basis. “With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist.”

15. The created province of Negros del Norte does not even satisfy the area requirement in Sec. 197, (old) LGC:

“It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners..., that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte.

“Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the

marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious.

“The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the‘territory need not be contiguous if it comprises two or more islands.’ The use of the wordterritory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that ‘territory’ as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control.

“Said sentence states that the ‘territory need not be contiguous.’ Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent... ‘Contiguous,’ when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute... Therefore, in the context of the sentence above, what need not be ‘contiguous’ is the ‘territory’ the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term ‘territory’ embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with ‘land area’ only. The words and phrases used in a statute should be given the meaning intended by the legislature... The sense in which the words are used furnished the rule of construction...”

16. BP 885 is declared unconstitutional. The proclamation of the new province of Negros del Norte and the appointment of its officials are declared null and void.

Digester: P.R. Manalo (A2015)LOCGOV - 17Tan v. Perena (2005)

Doctrine:There is no dichotomy between affirming the power of the Sangguniang Bayan and subjecting it to limitations at the same time.

Facts: History of Laws:

PD 449 (Cockfighting Law of 1974) states that only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated.

Local Government Code of 1991 was subsequently enacted. Under said law, the municipal sangguniang bayan were empowered, “[a]ny law to the contrary notwithstanding,” to “authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks.”

In 1993, Sangguniang Bayan of Municipality of Daanbantayan Cebu enacted Municipal Ordinance No. 6 which states that there shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than its equal number of cockpits

based upon the population provided for in PD 449, provided however, that this specific section can be amended for purposes of establishing additional cockpits, if the Municipal population so warrants.

Shortly thereafter, the Sangguniang Bayan enacted Ordinance No. 7 (amending Ordinance No. 6) which states that there shall be allowed to operate in the Municipality of Daanbantayan, Province of Cebu, not more than three (3) cockpits.

In 1995, petitioner Tan applied with the Municipal Gamefowl Commission for the issuance of a permit/license to establish and operate a cockpit in Sitio Combado, Bagay, in Daanbantayan (Cebu). At the time of his application, there was already another cockpit in operation in Daanbantayan, operated by respondent Pereña, who was the duly franchised and licensed cockpit operator in the municipality since the 1970s. Pereña’s franchise was valid until 2002. Mayor Te issued a mayor’s permit allowing Tan “to establish/operate/conduct” the business of a cockpit.

Perena filed a complaint for damages in the RTC.

Perena’s arguments (complainant in RTC; respondent in SC) Respondent Pereña alleged that there was no lawful basis for the establishment of a second cockpit. She claimed that Tan conducted

his cockpit fights not in Combado, but in Malingin, at a site less than five kilometers away from her own cockpit. She insisted that the unlawful operation of Tan’s cockpit has caused injury to her own legitimate business, and demanded damages of at least Ten Thousand Pesos (P10,000.00) per month as actual damages, One Hundred Fifty Thousand Pesos (P150,000.00) as moral damages, and Fifty Thousand Pesos (P50,000.00) as exemplary damages. Pereña also prayed that the permit issued by Te in favor of Tan be declared as null and void, and that a permanent writ of injunction be issued against Te and Tan preventing Tan from conducting cockfights within the municipality and Te from issuing any authority for Tan to pursue such activity.

Perena claimed that the amendment authorizing the operation of not more than three (3) cockpits in Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974, which allowed for only one cockpit in a municipality with a population as Daanbantayan.

Tan’s arguments (defendant in RTC, petitioner in SC): Petitioners asserted that under the Local Government Code of 1991, the sangguniang bayan of each municipality now had the power

and authority to grant franchises and enact ordinances authorizing the establishment, licensing, operation and maintenance of cockpits.

Issue/s: Did the Local Government Code sufficiently repeal Section 5(b) of the Cockfighting Law, vesting as it does on LGUs the power and authority to issue franchises and regulate the operation and establishment of cockpits in their respective municipalities, any law to the contrary notwithstanding? NO.

Ratio: While the Local Government Code expressly repealed several laws, the Cockfighting Law was not among them. As laws are presumed

to be passed with deliberation and with knowledge of all existing ones on the subject, it is logical to conclude that in passing a statute it is not intended to interfere with or abrogate a former law relating to the same subject matter, unless the repugnancy between the

two is not only irreconcilable but also clear and convincing as a result of the language used, or unless the latter Act fully embraces the subject matter of the earlier.

Analyzing the history of the laws in the Philippines from the Spanish era to the present, it emphasizes that cockfighting “should neither be exploited as an object of commercialism or business enterprise, nor made a tool of uncontrolled gambling, but more as a vehicle for the preservation and perpetuation of native Filipino heritage and thereby enhance our national identity. Given the history of the laws, the phrase “any law to the contrary notwithstanding” in the local government code serves notice, in case it was still doubtful, that it is the sanggunian bayan concerned alone (not anymore the defunct Philippine Gamefowl Commission) which has the power to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks within its territorial jurisdiction.

While the sanggunian retains the power to authorize and license the establishment, operation, and maintenance of cockpits, its discretion is limited in that it cannot authorize more than one cockpit per city or municipality, unless such cities or municipalities have a population of over one hundred thousand, in which case two cockpits may be established.

There is no dichotomy between affirming the power and subjecting it to limitations at the same time. According to the SC: “We do not doubt the ability of the national government to implement police power measures that affect the subjects of municipal government, especially if the subject of regulation is a condition of universal character irrespective of territorial jurisdictions. Cockfighting is one such condition. It is a traditionally regulated activity, due to the attendant gambling involved or maybe even the fact that it essentially consists of two birds killing each other for public amusement.”

A municipal ordinance must not contravene the Constitution or any statute, otherwise it is void. Ordinance No. 7 unmistakably contravenes the Cockfighting Law in allowing three cockpits in Daanbantayan. Thus, no rights can be asserted by the petitioners arising from the Ordinance.

Digested by: Cari Mangalindan

LOCGOV - #18Batangas CATV, Inc, v. CA, Batangas City Sangguniang Panlungsod & Batangas City Mayor (2004)

Doctrine: Where there is no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject which is completely covered by a general statute of the legislature, may be rendered invalid.

Facts:

On July 28, 1986 the Batangas City Sangguniang Panlungsod enacted Resolution No. 210 granting Batangas CATV permit to construct, install and operate a CATV in Batangas City. Sec. 8 of the said resolution authorizes petitioner to charge its subscribers the maximum rates specified therein. However, any increase of rates would be subject to the approval of the Panlungsod.

In 1993 petitioner increased its subscriber rates from P88.00 to P180.00 per month without approval of the Panlungsod. The Batangas City mayor wrote petitioner a letter threatening to cancel its permit if it doesn’t secure the approval of the Panlungsod for the rate increase.

Petitioner filed for injunction assailing the Panlungsod’s authority to regulate rates charged by CATV operators because under EO 205, it was the National Telecommunications Commission which had the sole authority to regulate CATV operation in the Philippines. The trial court GRANTED the petition holding that the sole agency which can regulate CATV operations was the NTC and that LGUs cannot exercise regulatory powers over it without appropriate legislation.

The CA REVERSED: The Certificate of Authority to operate a CATV system is granted by the NTC, but this does not preclude the Panlungsod from regulating the operation of the CATV in their locality under the powers vested upon it by the LGC of 1983. Sec. 177 (now 457 in RA 7160) provides: ‘Section 177. Powers and Duties – The Sangguniang Panlungsod shall: a) Enact such ordinances as may be necessary to carry into effect and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to…promote the prosperity and general welfare of the community and the inhabitants thereof, and the protection of property therein;d) Regulate, fix the license fee for, and tax any business or profession being carried on and exercised within the territorial jurisdiction of the city… Under cover of the General Welfare Clause as provided in this section, LGUs can perform just about any power that will benefit their constituencies. Thus, local government units can exercise powers that are: (1) expressly granted; (2) necessarily implied from the power that is expressly granted; (3) necessary, appropriate or incidental for its efficient and effective governance; and (4) essential to the promotion of the general welfare of their inhabitants.

Petitioner filed a petition for review on certiorari.

Petitioner’s arguments: While the LGC of 1991 extends to LGUs to perform any act that will benefit their constituents, it does not authorize them to regulate

CATV operations since pursuant to EO 205, only NTC has that authority.Respondent’s arguments:

Resolution No. 210 was enacted pursuant to Sec. 177(c)&(d) of the LGC of 1983 which authorizes LGUs to regulate businesses, including the CATV industry.

Resolution No. 210 is in the nature of a contract between petitioner and respondents, it being a grant to the former of a franchise to operate a CATV system. To hold that E.O. No. 205 amended its terms would violate the constitutional prohibition against impairment of contracts.

Issue/s: W/N a LGU can regulate the subscriber rates charged by CATV (cable tv) operators within its territorial jurisdiction. (NO)

Held/Ratio: 1. For more than two decades the NTC has assumed regulatory power over the CATV industry. Presidential issuances have reinforced the NTC’s powers:

Pres. Marcos issued PD 1512 which granted Sining Makulay the exclusive franchise to operate CATV system in any place within the Philippines. It terminated all franchises, permits, or certificated for CATV systems previously granted by local governments and national government instrumentalities. Pres. Marcos subsequently issued letter of instruction 894 vesting upon the Chairman of the Board of Communications direct supervision over Sining Makulay. Thereafter he issued EO 546 integrating the Board of Communications and the Telecommunications Control Bureau to form the NTC.

Sining Makulay’s franchise was cut short by the People Power Revolution. Pres. Aquino issued EO 205 opening the CATV industry to all. It mandated the NTC to grant Certificates of Authority to CATV operators and to issue the necessary IRRs.

Pres. Ramos issued EO 436 restating NTC’s regulatory powers over the CATV operations: Sec. 2 The regulation and supervision of the cable television industry in the Philippines shall remain vested solely with the National Telecommunications Commission (NTC).

2. Note, however, that this does not mean LGUs are stripped of their general power to prescribe regulations under the general welfare clause of the LGC.

When EO 436 decrees that the "regulatory power" shall be vested "solely" in the NTC, it pertains to the "regulatory power" over those matters which are peculiarly within the NTC’s competence, such as, the determination of rates, issuance of certificates of authority, etc.

There is no dispute that the Panlungsod has been empowered to enact ordinances and approve resolutions under the general welfare clause of the LGC of 1983. It continues to posses such power is clear under Sec. 16 & 458 of RA 7160 (LGC of 1991).

The general welfare clause is the delegation in statutory form of the police power of the State to LGUs. Through this, LGUs may prescribe regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions. 

Like any other enterprise, CATV operation maybe regulated by LGUs under the general welfare clause, primarily because the CATV system uses public properties. The physical realities of constructing CATV system allow an LGU a certain degree of regulation over CATV operators.

3. However, in enacting Resolution No. 210, the respondents strayed from the well recognized limits of its power because: a. It violates the mandate of existing laws.

Resolution No. 210 is an enactment of an LGU acting as an agent of the national legislature. Necessarily, its act must reflect and conform to the will of its principal.

US v. Abendan: An ordinance enacted by virtue of the general welfare clause is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.

De la Cruz v. Paraz: Ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.

Resolution No. 210 contravenes EO 205 and EO 436 insofar as it permits respondent Panlungsod to usurp a power exclusively vested in the NTC, i.e., the power to fix the subscriber rates charged by CATV operators.

Where the state legislature has made provision for the regulation of conduct, it has manifested its intention that the subject matter shall be fully covered by the statute, and that a municipality, under its general powers, cannot regulate the same conduct.

o Keller v. State: Where there is no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts to regulate the subject which is completely covered by a general statute of the legislature, may be rendered invalid. x x x Where the subject is of statewide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the State.

EO 205, a general law, mandates that the regulation of CATV operations shall be exercised by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of the said law. Municipal ordinances are inferior in status and subordinate to the laws of the state. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid

Why? Magtajas v. Pryce: Municipal government are only agents of the national government. The delegate cannot be superior to the principal.

Contrary to respondents’ assertions, RA 7160 did not repeal EO 205, impliedly or expressedly. o It was not included in Sec. 534 of RA 7160 as one of the laws repealed by the RA. o It was not impliedly repealed as the RA and EO may be harmonized. The NTC, under EO 205, has exclusive jurisdiction over

matters affecting CATV operation, including specifically the fixing of subscriber rates, but does not preclude LGUs from exercising its general power, under RA 7160, to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of their constituents. In effect, both laws become equally effective and mutually complementary.

As a specialized agency, the NTC is in a better position than the LGU to regulate given the complexities that characterize the CATV industry.

b. It violates the State’s deregulation policy over the CATV industry. When the State declared a policy of deregulation, the LGUs are bound to follow. To rule otherwise is to render the State’s policy

ineffective. Being mere creatures of the State, LGUs cannot defeat national policies through enactments of contrary measures. In the case at bar, petitioner may increase its subscriber rates without respondents’ approval.

4. EO 205 does not violate constitutional prohibition against non-impairment of contracts. There is no law specifically authorizing the LGUs to grant franchises to operate CATV system. Whatever authority the LGUs had

before had been withdrawn when Pres. Marcos issued PD 1512 "terminating all franchises, permits or certificates for the operation of CATV system previously granted by local governments." 

The protection of the constitutional provision as to impairment of the obligation of a contract does not extend to privileges, franchises and grants given by a municipality in excess of its powers, or ultra vires.

Digested by: Korina Manibog (A2015)

019 – Local GovernmentLocal Autonomy and Decision-Making

Province of Rizal vs. Executive Secretary (2005)

Doctrine: The Local Government Code gives to local government units all the necessary powers to promote the general welfare of their inhabitants.

Facts:In 1988, the respondent Secretaries of DPWH and DENR and the Governor of the Metropolitan Manila Commission (MMC) entered

into a Memorandum of Agreement (MOA) which provides that the DENR agrees to allow MMC to utilize its land property located in San Mateo as a sanitary landfill site.

In 1989, the Sangguniang Bayan of San Mateo wrote MMC, DPWH, the Presidential Task Force on Solid Waste Management, Executive Secretary Macaraig. The letter pointed out that it had recently passed a Resolution banning the creation of dumpsites for Metro Manila within its jurisdiction. Petitioners also asked that they suspend and temporarily hold in abeyance all and any part of their operations with respect to the San Mateo Landfill Dumpsite. No action was taken on the letters.

It turns out that the land subject of the MOA and owned by the DENR was part of the Marikina Watershed Reservation Area. Therefore the officers of the Community Environment and Natural Resource Office (CENRO) submitted a memorandum which stated that the dumping site which is confined within the watershed reservation is in violation of the Revised Forestry Code. It recommended that the MMC dumping site must be totally stopped and discouraged without any political intervention and delay in order to save our healthy ecosystems.

In 1990, CENRO submitted another Investigation Report stating that there was no permit issued to the MMC to utilize these portions of land for dumping purposes and that the use of the areas as dumping site greatly affects the ecological balance and environmental factors in the community. The DENR Environmental Management Bureau granted the Metro Manila Authority (formerly MMC) an Environmental Compliance Certificate for the operation of a 2 ½ hectare garbage dumpsite.

The Laguna Lake Development Authority (LLDA) also sent a letter to MMA conveying its reservations on the choice of the sites for solid waste disposal inside the watershed of Laguna Lake. DENR Undersecretary Roque suspended the ECC of MMA because upon site investigation at the San Mateo Landfill Site, there was ground slumping and erosion which resulted from the improper development of the site.

In 1993, DENR Secretary Alcala sent MMA a letter stating that after a series of investigations by field officials of the DENR, the agency realized that the MOA entered into is a very costly error because the area agreed to be a garbage dumpsite is inside the Marikina Watershed Reservation.

In 1995, the Sangguniang Bayan of San Mateo issued a Resolution expressing a strong objection to the planned expansion of the landfill operation and requesting President Ramos to disapprove the draft Presidential Proclamation segregating 71.6 hectares from Marikina Watershed Reservation for the landfill site in San Mateo.

Despite various objections and recommendations raised by government agencies, the Office of the President signed Proclamation No. 635 (Excluding from the Marikina Watershed Reservation Certain Parcels of Land Embraced Therein for Use as Sanitary Landfill Sites And Similar Waste Disposal under the Administration of the MMDA) setting aside parts of the Marikina Watershed Reservation for use as a sanitary landfill and similar waste disposal applications. This was due to the garbage crisis plaguing Metro Manila and its environs.

Petitioners’ arguments:

The Province of Rizal, the municipality of San Mateo and various concerned citizens assailed the legality and constitutionality of Proclamation No. 635. The CA denied their petition for certiorari, prohibition and mandamus with application for a TRO. Petitioners, pending appeal, filed a Motion for TRO pointing out that the effects of the El Nino phenomenon would be aggravated by the relentless destruction of the Marikina Watershed Reservation, cutting down thousands of mature fruit trees and forest trees, and leveling hills and mountains to clear the dumping area. Garbage disposal operations are also conducted on a 24 hour basis with toxic and infectious wastes intensifying the air, ground and water pollution.

* In 1999, because of the gravity of the situation and the likelihood that violence will erupt among the parties, President Estrada issued a Memorandum ordering the closure of the dumpsite on December 31, 2000. The MMDA entered into MOA with the Provincial Government of Rizal, the Municipality of San Mateo and the City of Antipolo where the latter agreed to further extend the use of the dumpsite until its permanent closure in 2000.

Respondents’ arguments:Respondents point out that the Marikina Watershed Reservation, and thus the San Mateo Site, is located in the public domain.

Therefore, neither the Province of Rizal nor the municipality of San Mateo has the power to control or regulate its use since properties of this nature belong to the national, and not to the local governments.

Issue: W/N the San Mateo Landfill will remain permanently closed (YES)

Held/Ratio:The San Mateo site has adversely affected its environs and sources of water should always be protected. According to the cases of

Collado v. CA and Sta. Rosa Realty Development Corporation v. CA, “the most important product of a watershed is water, which is one of the most important human necessities. Protection of watersheds is an intergenerational responsibility that needs to be answered now.”

The Administrative Code of 1987 and EO No 192 entrust the DENR with the guardianship and safekeeping of the Marikina Watershed Reservation. However, although the DENR, a government agency, owns the Marikina Reserve and has jurisdiction over it, this power is not absolute, but is defined by the declared policies of the State, and is subject to the law and higher authority. Section 2, Title XIV, Book IV of the Administrative Code states:

1) The DENR shall be primarily responsible for the implementation of the foregoing policy.2) It shall, subject to law and higher authority, be in charge of carrying out the State’s constitutional mandate to control and supervise the exploration, development, utilization and conservation of the country’s natural resources.

The Local Government Code gives to local government units all the necessary powers to promote the general welfare of their inhabitants. The municipal mayors acted within the scope of their powers, and were in fact fulfilling their mandate. Section 16 allows every local government unit to 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, which involve promoting health and safety, enhancing the right of the people to a balanced ecology and preserving the comfort and convenience of their inhabitants.

Also, under the LGC, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities and prior approval of the project by the appropriate sanggunian. Lack of either requisite makes the project’s implementation illegal.

Digested by: Irah Peñalber (A2015)

LOCGOV - #20Veloso v COA (2011)Doctrine: The COA is endowed with enough latitude to determine, prevent and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds.

Facts: The City Council of Manila enacted Ordinance No. 8040, “An Ordinance Authorizing the Conferment of Exemplary Public Service

Award to Elective Local Officials of Manila Who Have Been Elected for 3 Consecutive Terms in the Same Position.” It was approved on Aug 23, 2002.

Sec 2 of said Ordinance provides: The EPSA shall consist of a Plaque of Appreciation, retirement and gratuity pay remuneration equivalent to the actual time served in the position for three (3) consecutive terms, subject to the availability of funds as certified by the City Treasurer.

A total of P9,923,257 was given to former councilors (petitioners in this case) based on said Ordinance. Atty. Espina, the Supervising Auditor of the City of Manila, issued an Audit Observation Memorandum (AOM) stating that the

payment to former councillors of Manila is without legal basis and such amount is excessive and tantamount to double compensation. Petitioners filed before the Legal and Adjudication Office (LOA)-Local of the COA a Motion to Lift the Notice of Disallowance. The

LOA-Local granted the motion, holding that the monetary reward given to former councilors can be one of gratuity and therefore cannot be considered as double compensation.

The COA reversed the decision of the LOA-Local.

Petitioner’s arguments: COA committed grave abuse of discretion in nullifying Ordinance 8040 because such act is essentially a judicial function. The power and authority of the COA to audit government funds and accounts does not carry with it in all instances the power to

disallow a particular disbursement. The monetary award given to former councilors was intended or given in return for the exemplary service rendered by its recipients. Citing Guevara v Gimenez, petitioners claim that the COA has no discretion or authority to disapprove payments. COA’s remedy is to

bring to the attention of the proper administrative officer such expenditures that, in its opinion, are irregular unnecessary, excessive or extravagant. This case was decided under the 1935 Constitution but petitioners argue that the same principle should be applied in this case.

The grant of the retirement and gratuity pay remuneration is a valid exercise of the powers of Sangguniang Panlungsod set forth in RA 7610.

Respondent’s arguments: The COA recognizes the local autonomy of LGU’s. However, the Salary Standardization Law (SSL) sets limitations thereof. There is no specific law passed by Congress which ordains the conferment of such monetary reward or gratuity to the former

councilors.

Issues: (1) [TOPICAL]w/n the COA has the authority to disallow the disbursement of local government funds (YES) (2) w/n the COA committed grave abuse of discretion in affirming the disallowance of the monetary award given to former councillors as authorized by Ordinance No. 8040 (NO)

Held/Ratio: LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the COA.

(1) The ruling in Guevara has already been overturned by the Court in Caltex Philippines, Inc v COA. Under the 1987 Constitution, the COA is vested with the authority to determine whether government entities comply with laws and regulations in disbursing government funds, and to disallow illegal or irregular disbursements of these funds.

Sec 2, par 2, Art IX-D of the 1987 Constitution provides: The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.

Section 11, Chapter 4, Subtitle B, Title I, Book V of the Administrative Code on 1987 states the same principle. Based on its mandate as the guardian of public funds, the COA is vested with broad powers over all accounts pertaining to

government revenue and expenditures and the uses of public funds and property.

(2) The power of the Sangguniang Panlungsod is limited by Sec 81 of RA 7610 which provides: The compensation of local officials and personnel shall be determined by the sanggunian concerned: Provided, That the increase in compensation of elective local officials shall take effect only after the terms of office of those approving such increase shall have expired: Provided, further, That the increase in compensation of the appointive officials and employees shall take effect as provided in the ordinance authorizing such increase; Provided however, That said increases shall not exceed the limitations on budgetary allocations for personal services provided under Title Five, Book II of this Code: Provided finally, That such compensation may be based upon the pertinent provisions of Republic Act Numbered Sixty-seven fifty-eight (R.A. No. 6758), otherwise known as the “Compensation and Position Classification Act of 1989.

The IRR of RA 7610 states the Constitutional provision that “no elective or appointive local official or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emoluments, office, or title of any kind from any foreign government.”

In Yap v COA, the Court held that the additional allowances and benefits must be shown to be necessary or relevant to the fulfillment of the official duties and functions of the government officers and employees. Thus, the monetary award given to petitioners is excessive and tantamount to double and additional compensation.

NOTE: The SC decided in favor of the COA but ruled that the petitioners need not refund the monetary award received by petitioners.

Digested by: Katz Rivera (A2015)

LOCGOC #21 – LOCAL AUTONOMY AND DECISION MAKING

PROVINCE OF BATANGAS vs. ROMULO (2004)

Doctrine: Local autonomy 'means a more responsive and accountable local government structure instituted through a system of decentralization.' Local autonomy includes both administrative and fiscal autonomy.

Facts:

1. On December 7, 1998, then President Joseph Ejercito Estrada issued Executive Order (E.O.) No. 48 entitled “Establishing a program for devolution, adjustment and equalization.”

a. The program was established to "facilitate the process of enhancing the capacities of local government units (LGUs) in the discharge of the functions and services devolved to them by the National Government Agencies concerned pursuant to the Local Government Code."

b. The Oversight Committee (referred to as the Devolution Committee in E.O. No. 48) constituted under Section 533(b) of Republic Act No. 7160 (The Local Government Code of 1991) has been tasked to formulate and issue the appropriate rules and regulations necessary for its effective implementation

2. In Republic Act No. 8745, otherwise known as the GAA of 1999, the program was renamed as the Local Government Service Equalization Fund (LGSEF).

3. The Oversight Committee (with then Executive Secretary Ronaldo B. Zamora as Chairman) passed Resolution Nos. OCD-99-003, OCD-99-005 and OCD-99-006. Under the allocation scheme adopted pursuant to Resolution No. OCD-99-005, the Five Billion pesos LGSEF was to be allocated as determined by the committee.

4. Aside from the criteria for eligibility released by the Oversight Committee, the LGUs were required to identify the projects eligible for funding under the one-billion-peso portion of the LGSEF and submit the project proposals thereof and other documentary requirements to the DILG for appraisal.

a. The guidelines required (a) the LGUs to identify the projects eligible for funding based on the criteria laid down by the Oversight Committee; (b) the LGUs to submit their project proposals to the DILG for appraisal; (c) the project proposals that passed the appraisal of the DILG to be submitted to the Oversight Committee for review, evaluation and approval. It was only upon approval thereof that the Oversight Committee would direct the DBM to release the funds for the projects.

5. On July 5, 2000, then President Estrada issued a Memorandum authorizing then Executive Secretary Zamora and the DBM to implement and release the 2.5 billion pesos LGSEF for 2000 in accordance with Resolution No. OCD-2000-023.

6. Thereafter, the Oversight Committee, now under the administration of President Gloria Macapagal-Arroyo, promulgated Resolution No. OCD-2001-29. Under this resolution, the amount of one billion pesos of the LGSEF was to be released in accordance with paragraph 1 of Resolution No. OCD-2000-23, to complete the 3.5 billion pesos allocated to the LGUs, while the amount of 1.5 billion pesos was allocated for the LAAP.

7. In view of the failure of Congress to enact the general appropriations law for 2001, the GAA of 2000 was deemed re-enacted, together with the IRA of the LGUs therein and the proviso earmarking five billion pesos thereof for the LGSEF.

8. On January 9, 2002, the Oversight Committee adopted Resolution No. OCD-2002-001 allocating the five billion pesos LGSEF for 2001.

9. Upon receipt of a copy of the above resolution, Gov. Mandanas wrote to the individual members of the Oversight Committee seeking the reconsideration of Resolution No. OCD-2002-001. He also wrote to Pres. Macapagal-Arroyo urging her to disapprove said resolution as it violates the Constitution and the Local Government Code of 1991.

10. But on January 25, 2002, Pres. Macapagal-Arroyo approved Resolution No. OCD-2002-001.11. The Province of Batangas, represented by its Governor, Hermilando I. Mandanas, filed the present petition for certiorari, prohibition

and mandamus under Rule 65 of the Rules of Court, as amended, to declare as unconstitutional and void certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly earmarked for each corresponding year the amount of five billion pesos (P5,000,000,000.00) of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release thereof.

12. Named as respondents are Executive Secretary Alberto G. Romulo, in his capacity as Chairman of the Oversight Committee on Devolution, Secretary Emilia Boncodin of the Department of Budget and Management (DBM) and Secretary Jose Lina of the Department of Interior and Local Government (DILG).

Petitioner’s Argument:

1. The petitioner submits that the assailed provisos in the GAAs and the OCD resolutions, insofar as they earmarked the amount of five billion pesos of the IRA of the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed conditions for the release thereof, violate the Constitution and the Local Government Code of 1991. Section 6, Article X of the Constitution is invoked as it mandates that the "just share" of the LGUs shall be automatically released to

them. Sections 18 and 286 of the Local Government Code of 1991, which enjoin that the "just share" of the LGUs shall be "automatically and directly" released to them "without need of further action" are, likewise, cited.

The petitioner posits that to subject the distribution and release of the five-billion-peso portion of the IRA, classified as the LGSEF, to compliance by the LGUs with the implementing rules and regulations, including the mechanisms and guidelines prescribed by the Oversight Committee, contravenes the explicit directive of the Constitution that the LGUs' share in the national taxes "shall be automatically released to them." The petitioner maintains that the use of the word "shall" must be given a compulsory meaning.

o To further buttress this argument, the petitioner contends that to vest the Oversight Committee with the authority to determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy as embodied in the Constitution and the Local Government Code of 1991.

The petitioner cites as an example the experience in 2001 when the release of the LGSEF was long delayed because the Oversight Committee was not able to convene that year and no guidelines were issued therefor. Further, the possible disapproval by the Oversight Committee of the project proposals of the LGUs would result in the diminution of the latter's share in the IRA.

o Another infringement alleged to be occasioned by the assailed OCD resolutions is the improper amendment to Section 285 of the Local Government Code of 1991 on the percentage sharing of the IRA among the LGUs. Said provision allocates the IRA as follows: Provinces – 23%; Cities – 23%; Municipalities – 34%; and Barangays – 20%.8 This formula has been improperly amended or modified, with respect to the five-billion-peso portion of the IRA allotted for the LGSEF, by the

assailed OCD resolutions as they invariably provided for a different sharing scheme. The modifications allegedly constitute an illegal amendment by the executive branch of a substantive law.

Respondent’s Argument:

1. The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petition on procedural and substantive grounds. On the latter, the respondents contend that the assailed provisos in the GAAs of 1999, 2000 and 2001 and the assailed resolutions issued by the Oversight Committee are not constitutionally infirm.

The respondents advance the view that Section 6, Article X of the Constitution does not specify that the "just share" of the LGUs shall be determined solely by the Local Government Code of 1991.

In other words, Congress is the arbiter of what should be the "just share" of the LGUs in the national taxes. Section 285 of the Local Government Code of 1991 was merely intended to be the "default share" of the LGUs to do away

with the need to determine annually by law their "just share." However, the LGUs have no vested right in a permanent or fixed percentage as Congress may increase or decrease the "just share" of the LGUs in accordance with what it believes is appropriate for their operation

2. The petition has already been rendered moot and academic as it no longer presents a justiciable controversy. The IRAs for the years 1999, 2000 and 2001, have already been released and the government is now operating under the 2003 budget.

3. Finally, the petitioner allegedly has no legal standing to bring the suit because it has not suffered any injury. In fact, the petitioner's "just share" has even increased.

Issues:

1. WON the petitioner has legal standing or locus standi to file the present suit? (YES)2. WON the issue had been rendered moot and academic? (NO)3. [TOPIC] WON the assailed provisos contained in the GAAs of 1999, 2000 and 2001, and the OCD resolutions infringe the Constitution

and the Local Government Code of 1991? (YES)

Held: Petition is GRANTED. The assailed provisos in the General Appropriations Acts of 1999, 2000 and 2001, and the assailed OCD Resolutions, are declared UNCONSTITUTIONAL

1. The Court holds that the petitioner possesses the requisite standing to maintain the present suit.

The petitioner, a local government unit, seeks relief in order to protect or vindicate an interest of its own, and of the other LGUs. This interest pertains to the LGUs' share in the national taxes or the IRA.

2. The substantive issue needs to be resolved notwithstanding the supervening events.

Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.

Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is "capable of repetition, yet evading review.

3. In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments.

Consistent with the principle of local autonomy, the Constitution confines the President's power over the LGUs to one of general supervision. This provision has been interpreted to exclude the power of control. The distinction between the two powers was enunciated in Drilon v. Lim:

An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules. He may not prescribe his own manner for doing the act. He has no judgment on this matter except to see to it that the rules are followed

The Local Government Code of 199120 was enacted to flesh out the mandate of the Constitution.21 The State policy on local autonomy is amplified in Section 2 thereof:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that 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. Toward this end, 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 process of decentralization shall proceed from the National Government to the local government units.

Section 6, Article X of the Constitution mandates that (1) the LGUs shall have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and (3) the "just share" shall be automatically released to the LGUs. The Local Government Code of 1991, among its salient provisions, underscores the automatic release of the LGUs' "just share" in this wise

Section 4 of AO 372 cannot, however, be upheld because a basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the National internal revenue.

o This is mandated by no less than the Constitution. o The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days

after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." As a rule, the term "SHALL" is a word of command that must be given a compulsory meaning. The provision is, therefore, IMPERATIVE.

4. To the Court's mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. It violates the principle of local autonomy mandated under our Constitution.

The LGSEF is part of the IRA or "just share" of the LGUs in the national taxes. To subject its distribution and release to the vagaries of the implementing rules and regulations, including the guidelines and mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not automatic, a flagrant violation of the constitutional and statutory mandate that the "just share" of the LGUs "shall be automatically released to them."

Indeed, the Oversight Committee exercising discretion, even control, over the distribution and release of a portion of the IRA, the LGSEF, is an anathema to and subversive of the principle of local autonomy as embodied in the Constitution. Moreover, it finds no statutory basis at all as the Oversight Committee was created merely to formulate the rules and regulations for the efficient and effective implementation of the Local Government Code of 1991 to ensure "compliance with the principles of local autonomy as defined under the Constitution."

o The Oversight Committee's authority is undoubtedly limited to the implementation of the Local Government Code of 1991, not to supplant or subvert the same. Neither can it exercise control over the IRA, or even a portion thereof, of the LGUs.

The concept of local autonomy was explained in Ganzon v. Court of Appeals in this wise:As the Constitution itself declares, local autonomy 'means a more responsive and accountable local government structure instituted through a system of decentralization.' The Constitution, as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government.

Local autonomy includes both administrative and fiscal autonomy. o The fairly recent case of Pimentel v. Aguirre is particularly instructive. The Court declared therein that local fiscal autonomy

includes the power of the LGUs to, inter alia, allocate their resources in accordance with their own priorities. Increasing or decreasing the IRA of the LGUs or modifying their percentage sharing therein, which are fixed in the Local Government

Code of 1991, are matters of general and substantive law. To permit Congress to undertake these amendments through the GAAs, as the respondents contend, would be to give Congress the unbridled authority to unduly infringe the fiscal autonomy of the LGUs, and thus put the same in jeopardy every year.

Digested by Loraine Saguinsin (A2015)

LOCGOV - # 022

ACORD v. Executive Secretary Zamora (2005)Petitioner/s: Alternative Center for Organizational Reforms and Development, Inc. (ACORD), et al.Respondent/s: Hon. Ronaldo Zamora, In His Capacity As Executive Secretary, Hon. Benjamin Diokno, In His Capacity As Secretary, Department of Budget and Management, Hon. Leonor Magtolis-Briones, In Her Capacity As National Treasurer, and the Commission on Audit.

Doctrine: A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.

Facts: (SC En Banc; Ponente: Carpio-Morales, J.; Nature: Petitions for Certiorari, Prohibition and Mandamus with Application for Temporary Restraining Order)1. Pursuant to Sec. 22, Art. VII of the Constitution mandating the President to submit to Congress a budget of expenditures within 30 days before the opening of every regular session, then Pres. Estrada submitted the National Expenditures Program for Fiscal Year 2000.

In the said Program, the Pres. proposed an Internal Revenue Allotment (IRA) of P121,778,000,000 following the formula provided for in Sec. 284 of the Local Government Code (LGC).

The President approved House Bill No. 8374. This bill became R.A. No. 8760, “An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines from January One to December Thirty-One, Two Thousand, and for Other Purposes.” (General Appropriations Act or GAA for the Year 2000).

o The act provides under XXXVII. Allocations to Local Government Units that the IRA for local government units shall amount to P111,778,000,000.

o Under the heading LIV. Unprogrammed Fund, it is provided that an amount of P10 Billion, apart from the P111,778,000,000 mentioned above, shall be used to fund the IRA, which amount shall be released only when the original revenue targets submitted by the President to Congress can be realized based on a quarterly assessment to be conducted by certain committees which the GAA specifies: the Development Budget Coordinating Committee, the Committee on Finance of the Senate, and the Committee on Appropriations of the House of Representatives.

o Thus, while the GAA appropriates P111,778,000,000 of IRA as Programmed Fund, it appropriates a separate amount of P10 Billion of IRA under the classification of Unprogrammed Fund, the latter amount to be released only upon the occurrence of the condition stated in the GAA.

2. Supreme Court: A number of NGOs and people's organizations, along with 3 barangay officials filed the petition at bar against respondents challenging the constitutionality of above-quoted provision of XXXVII referred to by petitioners as Section 1, XXXVII (A), and LIV Special Provisions 1 and 4 of the GAA (the GAA provisions).

Although the effectivity of the Year 2000 GAA has ceased, the Court proceeded to resolve the issues raised in the present case, it being impressed with public interest.

Batangas v. Romulo : Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.

Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is “capable of repetition, yet evading review.” For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted.

Petitioner’s argument/s: The petitioners ask that the XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA be declared unconstitutional because the GAA violated this constitutional mandate when it made the release of IRA contingent on whether revenue collections could meet the revenue targets originally submitted by the President, rather than making the release automatic.

Respondent’s argument/s: The above constitutional provision is addressed not to the legislature but to the executive, hence, the same does not prevent the legislature from imposing conditions upon the release of the IRA. Respondents thus infer that the subject constitutional provision merely prevents the executive branch of the government from “unilaterally” withholding the IRA, but not the legislature from authorizing the executive branch to withhold the same. In the words of respondents, “This essentially means that the President or any member of the Executive Department cannot unilaterally, i.e., without the backing of statute, withhold the release of the IRA.”

Issue/s: W/N the questioned provisions violate the constitutional injunction that the just share of local governments in the national taxes or the IRA shall be automatically released. (YES.)

Held/Ratio: 1. Ruling: The petition is granted. XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA are declared unconstitutional insofar as

they set apart a portion of the IRA, in the amount of P10 Billion, as part of the unprogrammed fund.2. Constitutionality of the GAA Provisions

Article X, Section 6 of the Constitution : 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.

Petitioners and respondents cite the exchange between Commissioner Davide and Commissioner Nolledo in the deliberations of the Constitutional Commission on Sec. 6, Art. X of the Constitution. In the exchange of statements, it is clear that although Commissioners Davide and Nolledo held different views with regard to the proper wording of the constitutional provision, they shared a common assumption that the entity which would execute the automatic release of internal revenue was the executive department.

Commissioner Davide referred to the national government as the entity that collects and remits internal revenue. Similarly, Commissioner Nolledo alluded to the Budget Officer, who is clearly under the executive branch.

As the Constitution lays upon the executive the duty to automatically release the just share of local governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing this duty. To hold that the executive branch may disregard constitutional provisions which define its duties, provided it has the backing of statute, is virtually to make the Constitution amendable by statute – a proposition which is patently absurd.

If the framers intended to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitution would have been worded differently. Since, under Art. X, Sec. 6 of the Constitution, only the just share of local governments is qualified by the words “as determined by law,” and not the release thereof, the plain implication is that Congress is not authorized by the Constitution to hinder or impede the automatic release of the IRA.

Batangas v. Romulo : o The Court interpreted Art. X, Sec. 6 of the Constitution as follows: When parsed, it would be readily seen that this provision

mandates that (1) the LGUs shall have a “just share” in the national taxes; (2) the “just share” shall be determined by law; and (3) the “just share” shall be automatically released to the LGUs.

o Webster's Third New International Dictionary defines “automatic” as “involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.” Further, the word “automatically” is defined as “in an automatic manner: without thought or conscious intention.” Being “automatic,” thus, connotes something mechanical, spontaneous and perfunctory.

o While “automatic release” implies that the just share of the local governments determined by law should be released to them as a matter of course, the GAA provisions, on the other hand, withhold its release pending an event which is not even certain of occurring. To rule that the term "automatic release" contemplates such conditional release would be to strip the term “automatic” of all meaning.

o The only possible exception to mandatory automatic release of the IRA is if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year.

Pimentel v. Aguirre : A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.

The Court recognizes that the passage of the GAA provisions by Congress was motivated by the laudable intent to “lower the budget deficit in line with prudent fiscal management.” o Pimentel v. Aguirre : The rule of law requires that even the best intentions must be carried out within the parameters of the

Constitution and the law. Verily, laudable purposes must be carried out by legal methods.

Digested by: Shelan Jane C. Teh

CHAPTER III

LOCGOV - #23Aldaba vs. COMELEC (2010)

Doctrine: First, certifications on demographic projections can be issued only if such projections are declared official by the National Statistics Coordination Board. Second, certifications based on demographic projections can be issued only by the NSO Administrator or his designated certifying officer.  Third, intercensal population projections must be as of the middle of every year.

Facts: Bulacan was previously represented in Congress by four legislative districts. The first legislative district comprised of Malolos City

and other municipalities. On May 1, 2009, RA 9591 lapsed into law, which amended Malolos’ City Charter by creating a separate legislative district for the city. At the time the legislative bills for RA 9591 were filed in Congress in 2007, the population of Malolos was only 223,069. However, the

bills relied on an undated certification issued by a Regional Director of the NSO that the projected population of Malolos will be 254,030 by the year 2010, using the population growth rate of 3.78 between 1995 to 2000.

Petitioner’s arguments: Petitioners are taxpayers, registered voters, and residents of Malolos City. They filed this original action for prohibition contending that RA 9591 is unconstitutional for failing to meet the minimum population

threshold of 250,000 for a city to merit representation in Congress, as per Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.

Respondent’s arguments: The Office of the Solicitor General contended that Congress’ use of projected population is non-justiciable because it involves a

determination on the wisdom of the standard adopted by the legislature to determine compliance with a constitutional requirement.

Issue: WON RA 9591 is unconstitutional.

Held/Ratio: YES. It violates Section 5(3), Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to the 1987 Constitution.

Section 5(3), Article VI of the 1987 Constitution requires that for a city to have a legislative district, the city must have “a population of at least two hundred fifty thousand.”

The legislative bill cites the undated Certification of Regional Director Alberto N. Miranda of Region III of the NSO as authority that the population of the City of Malolos “will be 254,030 by the year 2010.” This certification, which is based on demographic projections, is without legal effect because Regional Director Miranda has no basis and no authority to issue the Certification.

Pursuant to Section 6 of E.O. 135: First, certifications on demographic projections can be issued only if such projections are declared official by the National Statistics Coordination Board. Second, certifications based on demographic projections can be issued only by the NSO Administrator or his designated certifying officer. Third, intercensal population projections must be as of the middle of every year. 

o All these requirements are absent in the present case. Also, the 2007 Census places the population of Malolos at 223,069 as of 1 August 2007. Based on a growth rate of 3.78%, the

population of Malolos will grow to only 248,365 as of 1 August 2010. Even if the growth rate is compounded yearly, the population of Malolos of 223,069 as of 1 August 2007 will grow to only 249,333 as of 1 August 2010.

Section 3 of the Ordinance appended to the 1987 Constitution provides:“Any province that may be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election…”

Therefore, a city that has attained a population of 250,000 is entitled to a legislative district only in the “immediately following election.” In short, a city must first attain the 250,000 population, and thereafter, in the immediately following election, such city shall have a district representative.

There is no showing in the present case that the City of Malolos has attained or will attain a population of 250,000, whether actual or projected, before the 10 May 2010 elections.

Digested by: Vina Villarroya

LOCGOV - #24Navarro v. Ermita (2010)

Doctrine:R.A. No. 9355 failed to comply with either the territorial or the population requirement for the creation of the Province of Dinagat Islands.

The Constitution clearly mandates that the creation of local government units must follow the criteria established in the Local Government Code.Any derogation of or deviation from the criteria prescribed in the Local Government Code violates Sec. 10, Art. X of the Constitution.

Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code.

Facts:

The mother province of Surigao del Norte was created and established under R.A. No. 2786 on June 19, 1960. The province is composed of three main groups of islands: (1) the Mainland and Surigao City; (2) Siargao Island and Bucas Grande; and (3) Dinagat Island, which is composed of seven municipalities, namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto, San Jose, and Tubajon.

Based on the official 2000 Census of Population and Housing conducted by the National Statistics Office (NSO),2the population of the Province of Surigao del Norte as of May 1, 2000 was 481,416, broken down as follows:

Mainland 281,111Surigao City 118,534Siargao Island & Bucas Grande 93,354Dinagat Island 106,951

Under Section 461 of R.A. No. 7610 (“LGC”), a province may be created if it has an average annual income of not less than P20 million based on 1991 constant prices as certified by the Department of Finance, and a population of not less than 250,000 inhabitants as certified by the NSO, or a contiguous territory of at least 2,000 square kilometers as certified by the Lands Management Bureau. The territory need not be contiguous if it comprises two or more islands or is separated by a chartered city or cities, which do not contribute to the income of the province.

On April 3, 2002, the Office of the President, through its Deputy Executive Secretary for Legal Affairs, advised the Sangguniang Panlalawigan of the Province of Surigao del Norte of the deficient population in the proposed Province of Dinagat Islands.

In July 2003, the Provincial Government of Surigao del Norte conducted a special census, with the assistance of an NSO District Census Coordinator, in the Dinagat Islands to determine its actual population in support of the house bill creating the Province of Dinagat Islands. The special census yielded a population count of 371,576 inhabitants in the proposed province. The NSO, however, did not certify the result of the special census. On July 30, 2003, Surigao del Norte Provincial Governor Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as official, for all purposes, the 2003 Special Census in Dinagat Islands showing a population of 371,576.

The Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for calendar year 2002 to 2003 based on the 1991 constant prices was P82,696,433.23. The land area of the proposed province is 802.12 square kilometers.

On August 14, 2006 and August 28, 2006, the Senate and the House of Representatives, respectively, passed the bill creating the Province of Dinagat Islands. It was approved and enacted into law as R.A. No. 9355 on October 2, 2006 by President Gloria Macapagal-Arroyo.

On December 2, 2006, a plebiscite was held in the mother Province of Surigao del Norte to determine whether the local government units directly affected approved of the creation of the Province of Dinagat Islands into a distinct and independent province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.

On December 3, 2006, the Plebiscite Provincial Board of Canvassers proclaimed that the creation of Dinagat Islands into a separate and distinct province was ratified and approved by the majority of the votes cast in the plebiscite.6

On January 26, 2007, a new set of provincial officials took their oath of office following their appointment by President Gloria Macapagal-Arroyo. Another set of provincial officials was elected during the synchronized national and local elections held on May 14, 2007. On July 1, 2007, the elected provincial officials took their oath of office; hence, the Province of Dinagat Islands began its corporate existence.

Petitioner’s arguments: (1) The proposed Province of Dinagat Islands is not qualified to become a province because it failed to comply with the land area or the population requirement, despite its compliance with the income requirement. It has a total land area of only 802.12 square kilometers, which falls short of the statutory requirement of at least 2,000 square kilometers. Moreover, based on the NSO 2000 Census of Population, the total population of the proposed Province of Dinagat Islands is only 106,951, while the statutory requirement is a population of at least 250,000 inhabitants.

(2) When the Implementing Rules and Regulations conflict with the law that they seek to implement, the law prevails. In enacting R.A. No. 9355 into law, the House of Representatives and the Senate erroneously relied on paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code of 1991, which states that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." The preceding italicized provision contained in the Implementing Rules and Regulations is not expressly or impliedly stated as an exemption to the land area requirement in Section 461 of the Local Government Code.

Respondent’s arguments: (1) The Province of Dinagat Islands met the legal standard for its creation.

First, the Bureau of Local Government Finance certified that the average annual income of the proposed Province of Dinagat Islands for the years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25.Second, the Lands Management Bureau certified that though the land area of the Province of Dinagat Islands is 802.12 square kilometers, it is composed of one or more islands; thus, it is exempt from the required land area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules and Regulations Implementing the Local Government Code.Third, in the special census conducted by the Provincial Government of Surigao del Norte, with the assistance of a District Census Coordinator of the NSO, the number of inhabitants in the Province of Dinagat Islands as of 2003, or almost three years before the enactment of R.A. No. 9355 in 2006, was 371,576, which is more than the minimum requirement of 250,000 inhabitants.

(2) Governor Ace S. Barbers contends that although the result of the special census conducted by the Provincial Government of Surigao del Norte on December 2, 2003 was never certified by the NSO, it is credible since it was conducted with the aid of a representative of the NSO. He alleged that the lack of certification by the NSO was cured by the presence of NSO officials, who testified during the deliberations on House Bill No. 884 creating the Province of Dinagat Islands, and who questioned neither the conduct of the special census nor the validity of the result.

Issues:

(1) WON RA 9355, creating the new province of Dinagat Islands, complied with the constitution and statutory requirements under section 461 of the LGC of 1991.(2) WON the creation of Dinagat as a new province by the respondents is an act of gerrymandering.(3) WON the result of the plebiscite is credible and truly reflects the mandate of the people.

Held/Ratio: (1) NO. (The Court first discusses the constitutional requirements before it moves on to discuss the statutory requirements.)

CONSTITUTIONAL REQUIREMENTThe constitutional provision on the creation of a province in Section 10, Article X of the Constitution states:

SEC. 10. 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 local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected."

Pursuant to the Constitution, the Local Government Code of 1991 prescribed the criteria for the creation of a province, thus:SEC. 461. Requisites for Creation. -- (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.(b) The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers, and non-recurring income.15

As a clarification of the territorial requirement, the Local Government Code requires a contiguous territory of at least 2,000 square kilometers, as certified by the Lands Management Bureau. However, the territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities that do not contribute to the income of the province.

If a proposed province is composed of two or more islands, does "territory," under Sec. 461 of the Local Government Code, include not only the land mass above the water, but also that which is beneath it?

The Supreme Court cites the case of Tan v. COMELEC to resolve the question. Respondents in Tan insisted that when the Local Government Code speaks of the required territory of the province to be created, what is contemplated is not only the land area, but also the land and water over which the said province has jurisdiction and control. The respondents submitted that in this regard, the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province.

The Court in Tan stated that "[s]uch an interpretation is strained, incorrect and fallacious." It held:The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, [n]ext, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous," when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. x x x Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" — the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. x x x

The discussion of the Court in Tan on the definition and usage of the terms "territory," and "contiguous," and the meaning of the provision, "The territory need not be contiguous if it comprises two or more islands," contained in Sec. 197 of the former Local Government Code, which provides for the requisites in the creation of a new province, is applicable in this case since there is no reason for a change in their respective definitions, usage, or meaning in its counterpart provision in the present Local Government Code contained in Sec. 461 thereof.

The territorial requirement in the Local Government Code is adopted in the Rules and Regulations Implementing the Local Government Code of 1991 (IRR), thus:

ART. 9. Provinces.—(a) Requisites for creation—A province shall not be created unless the following requisites on income and either population or land area are present:(1) Income — An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and(2) Population or land area - Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

However, the IRR went beyond the criteria prescribed by Section 461 of the Local Government Code when it added the italicized portion above stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands." Nowhere in the Local Government Code is the said provision stated or implied. Under Section 461 of the Local Government Code, the

only instance when the territorial or land area requirement need not be complied with is when there is already compliance with the population requirement.

The Constitution requires that the criteria for the creation of a province, including any exemption from such criteria, must all be written in the Local Government Code. There is no dispute that in case of discrepancy between the basic law and the rules and regulations implementing the said law, the basic law prevails, because the rules and regulations cannot go beyond the terms and provisions of the basic law.

Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR stating that "[t]he land area requirement shall not apply where the proposed province is composed of one (1) or more islands" is null and void.

STATUTORY REQUIREMENTS UNDER SECTION 461 OF THE LGC OF 1991

R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains an approximate land area of eighty thousand two hundred twelve hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and approximately forty-seven (47) islets x x x." R.A. No. 9355, therefore, failed to comply with the land area requirement of 2,000 square kilometers.

The Province of Dinagat Islands also failed to comply with the population requirement of not less than 250,000 inhabitants as certified by the NSO. Based on the 2000 Census of Population conducted by the NSO, the population of the Province of Dinagat Islands as of May 1, 2000 was only 106,951.

Although the Provincial Government of Surigao del Norte conducted a special census of population in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified by the NSO as required by the Local Government Code. Moreover, respondents failed to prove that with the population count of 371,000, the population of the original unit (mother Province of Surigao del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time of the creation of the new province.

Respondents contended that the lack of certification by the NSO was cured by the presence of the officials of the NSO during the deliberations on the house bill creating the Province of Dinagat Islands, since they did not object to the result of the special census conducted by the Provincial Government of Surigao del Norte.

The contention of respondents does not persuade, because although the NSO representative to the Committee on Local Government deliberations dated November 24, 2005 did not object to the result of the provincial government’s special census, which was conducted with the assistance of an NSO district census coordinator, it was agreed by the participants that the said result was not certified by the NSO, which is the requirement of the Local Government Code. Moreover, the NSO representative, Statistician II Ma. Solita C. Vergara, stated that based on their computation, the population requirement of 250,000 inhabitants would be attained by the Province of Dinagat Islands by the year 2065. The computation was based on the growth rate of the population, excluding migration.

In fine, R.A. No. 9355 failed to comply with either the territorial or the population requirement for the creation of the Province of Dinagat Islands.

The Constitution clearly mandates that the creation of local government units must follow the criteria established in the Local Government Code.Any derogation of or deviation from the criteria prescribed in the Local Government Code violates Sec. 10, Art. X of the Constitution.

Hence, R.A. No. 9355 is unconstitutional for its failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code.

(2) The argument of petitioners is unsubstantiated. "Gerrymandering" is a term employed to describe an apportionment of representative districts so contrived as to give an unfair advantage to the party in power.

Fr. Joaquin G. Bernas, a member of the 1986 Constitutional Commission, defined "gerrymandering" as the formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. The Constitution proscribes gerrymandering, as it mandates each legislative district to comprise, as far as practicable, a contiguous, compact and adjacent territory.

As stated by the Office of the Solicitor General, the Province of Dinagat Islands consists of one island and about 47 islets closely situated together, without the inclusion of separate territories. It is an unsubstantiated allegation that the province was created to favor Congresswoman Glenda Ecleo-Villaroman.

Disposition:Republic Act No. 9355 (“An Act Creating the Province of Dinagat Islands”), is hereby declared unconstitutional. The proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared NULL and VOID. The provision in Article 9 (2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared NULL and VOID.

Digested by: MYD

LOCGOV - 25NAVARRO v. ERMITA (2011)

It must be borne in mind that the central policy considerations in the creation of local government units are economic viability, efficient administration, and capability to deliver basic services to their constituents, and the criteria prescribed by the Local Government Code (LGC), i.e., income, population and land area, are all designed to accomplish these results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each of these three criteria, placing emphasis on which of them should enjoy preferential consideration. Without doubt, the primordial criterion in the creation of local government units, particularly of a province, is economic viability. This is the clear intent of the framers of the LGC.

FACTS:* In 2006, RA 9355 (An Act Creating the Province of Dinagat Islands) was approved into law.* Comelec conducted a plebiscite for the ratification of the creation of the new province. Plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.* In the synchronized elections of May 14, 2007, the Dinagatnons elected their new set of provincial officials. * Petitioners Rodolfo Navarro, Victor Bernal and Rene Medina, former political leaders of Surigao del Norte filed before the SC a petition for certiorari and prohibition challenging the constitutionality of RA 9355.* On February 2010, the Court rendered its Decision granting the petition and declaring RA 9355 unconstitutional for failure to comply with the requirements on population and land area for the creation of a province under the LGC.

* Comelec issued Resolution No. 87906. COMELEC Resolution 8790 declared that if the decision on the 2010 case was declared final and executory, the Dinagat Islands would revert to its former status as a non-province. Consequently, the results of the May 2010 elections would have to be nullified, and a special election would have to be conducted for various positions (Governor, Vice-Governor, etc) for Surigao del Norte. Hence the intervenors became real parties in interest with the declaration finality of the 2010 case decision. (Hence, the imperative to grant this Urgent Motion.)* Movants-intervenors filed their motion for leave to intervene and to file motion for reconsideration. SC denied.* On October 5, 2010, the Court issued an order for Entry of Judgment stating that the decision in this case had become final and executory on May 18, 2010.

6RESOLUTION NO. 8790

             WHEREAS, Dinagat Islands, consisting of seven (7) municipalities, were previously components of the First Legislative District of theProvince  of Surigao del Norte.  In December 2006 pursuant to Republic Act No. 9355, the Province of Dinagat Island[s] was created and its creation was ratified on 02 December 2006 in the Plebiscite for this purpose;             WHEREAS, as a province, Dinagat Islands was, for purposes of the May 10, 2010 National and Local Elections, allocated one (1) seat for Governor, one (1) seat for Vice Governor, one (1) for congressional seat, and ten (10) Sangguniang Panlalawigan seats pursuant to Resolution No. 8670 dated 16 September 2009;              WHEREAS, the Supreme Court in G.R. No. 180050 entitled “Rodolfo Navarro, et al., vs. Executive Secretary Eduardo Ermita, as representative of the President of the  Philippines, et al.” rendered a Decision, dated 10 February 2010, declaring Republic Act No. 9355 unconstitutional for failure to comply with the criteria for the creation of a province prescribed in Sec. 461 of the Local Government Code in relation to Sec. 10, Art. X, of the 1987 Constitution;             WHEREAS, respondents intend to file Motion[s] for Reconsideration on the above decision of the Supreme Court;             WHEREAS, the electoral data relative to the: (1) position for Member, House of Representatives representing the lone congressional district of Dinagat Islands, (2) names of the candidates for the aforementioned position, (3) position for Governor, Dinagat Islands, (4) names of the candidates for the said position, (5) position of the Vice Governor, (6) the names of the candidates for the said position, (7) positions for the ten (10) Sangguniang Panlalawigan Members and, [8] all the names of the candidates for Sangguniang Panlalawigan Members, have already been configured into the system and can no longer be revised within the remaining period before the elections on May 10, 2010.             NOW, THEREFORE, with the current system configuration, and depending on whether the Decision of the Supreme Court in Navarro vs. Ermita is reconsidered or not, the Commission RESOLVED, as it hereby RESOLVES, to declare that: 

a.       If the Decision is reversed, there will be no problem since the current system configuration is in line with the reconsidered Decision, meaning that the Province of Dinagat Islands and the Province of Surigao del Norte remain as two (2) separate provinces;

 b.      If the Decision becomes final and executory before the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District, Surigao del

Norte. 

But because of the current system configuration, the ballots for the Province of Dinagat Islands will, for the positions of Member, House of Representatives, Governor, Vice Governor and Members, Sangguniang Panlalawigan, bear only the names of the candidates for the said positions. Conversely, the ballots for the First Legislative District of Surigao del Norte, will, for the position of Governor, Vice Governor, Member, House of Representatives, First District of Surigao del Norte and Members, Sangguniang Panlalawigan, show only candidates for the said position.  Likewise, the whole Province of Surigao del Norte, will, for the position of Governor and Vice Governor, bear only the names of the candidates for the said position[s].  Consequently, the voters of the Province of Dinagat Islands will not be able to vote for the candidates of Members, Sangguniang Panlalawigan, and Member, House [of] Representatives, First Legislative District, Surigao del Norte, and candidates for Governor and Vice Governor for Surigao del Norte.   Meanwhile, voters of the First Legislative District of Surigao del Norte, will not be able to vote for Members, Sangguniang Panlalawigan and Member, House of Representatives,  Dinagat Islands.  Also, the voters of the wholeProvince of Surigao del Norte, will not be able to vote for the Governor and Vice Governor,  Dinagat Islands.  Given this situation, the Commission will postpone the elections for Governor, Vice Governor, Member, House of Representatives, First Legislative District, Surigao del Norte, and Members, Sangguniang Panlalawigan, First Legislative District, Surigao del Norte, because the election will result in [a] failure to elect, since, in actuality, there are no candidates for Governor, Vice Governor, Members, Sangguniang Panlalawigan, First Legislative District, and Member, House of Representatives, First Legislative District (with Dinagat Islands) of Surigao del Norte.

 

* Hence, this Urgent Motion to Recall Entry of Judgment.

INTERVENORS-MOVANTS’ Position: The passage of RA 9355 (An Act Creating the Province of Dinagat Islands) operates as act of Congress amending Section 461 of the LGC.

The exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement.

The Operative Fact Doctrine is applicable.

Relief Sought: Recall entry of judgment dated October 29, 2010 and Reconsideration of such decision which upheld the unconstitutionality of RA 9355

Legal Basis:Section 461 of the LGCRequisites for Creation.

(a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office:Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it comprise two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province.(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers and non-recurring income.

Article 9 of the LGC IRR

c.       If the Decision becomes final and executory after the election, the Province of Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del Norte.  The result of the election will have to be nullified for the same reasons given in Item “b” above.   A special election for Governor, Vice Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with  Dinagat Islands) will have to be conducted.

                                   x x x x 

                        SO ORDERED. 

ART. 9. Provinces.—(a) Requisites for creation—A province shall not be created unless the following requisites on income and either population or land area are present:(1) Income—An average annual income of not less than Twenty Million Pesos (P20,000,000.00) for the immediately preceding two (2) consecutive years based on 1991 constant prices, as certified by DOF. The average annual income shall include the income accruing to the general fund, exclusive of special funds, special accounts, transfers, and nonrecurring income; and(2) Population or land area—Population which shall not be less than two hundred fifty thousand (250,000) inhabitants, as certified by National Statistics Office; or land area which must be contiguous with an area of at least two thousand (2,000) square kilometers, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed province is composed of one (1) or more islands. The territorial jurisdiction of a province sought to be created shall be properly identified by metes and bounds.

RESPONDENT’s Opposition: RA 9355 (An Act Creating the Province of Dinagat Islands) should be nullified for being unconstitutional.

When RA 9355 was passed, Dinagat had a land area of 802.12 sq. km. only and a population of only 106,951. The law on the matter (Section 461 of the LGC) requires that the province to be created either has 1) a continuous territory of at least 2,000 sq. km., as certified by the Lands Management Bureau; or 2) a population of at least 250,000 inhabitants as certified by the NSO.

Legal Basis:Section 10, Article X of the ConstitutionNo 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 local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Section 461 of the LGC(see above)

ISSUE: WON the creation of the Province of Dinagat Islands is valid despite failure to meet the requirements for the creation of a province as stated under Section 461 of the LGC (The Court considered the first two arguments of the intervenors-movants)

HELD/RATIO:The passage of RA 9355 (An Act Creating the Province of Dinagat Islands) operates as act of Congress amending Section 461 of the LGC.

With the formulation of the LGC-IRR, which amounted to both executive and legislative construction of the LGC, the many details to implement the LGC had already been put in place, which Congress understood to be impractical and not too urgent to immediately translate into direct amendments to the LGC. But Congress, recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No. 9355, following the exemption from the land area requirement, which, with respect to the creation of provinces, can only be found as an express provision in the LGC-IRR. In effect, pursuant to its plenary legislative powers, Congress breathed flesh and blood into that exemption in Article 9(2) of the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province of Dinagat.

The acts of Congress, in passing RA 9355, definitively show the clear legislative intent to incorporate into the LGC that exemption from the land area requirement

The exemption from territorial contiguity, when the intended province consists of two or more islands, includes the exemption from the application of the minimum land area requirement.

With respect to the creation of barangays, land area is not a requisite indicator of viability. However, with respect to the creation of municipalities, component cities, and provinces, the three (3) indicators of viability and projected capacity to provide services, i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be created is a municipality or a component city, respectively. This exemption is absent in the enumeration of the requisites for the creation of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group of islands would form part of the land area of a newly-created province than in most cities or municipalities.

It is, therefore, logical to infer that the genuine legislative policy decision was expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional oversight in Section 461 of the LGC—and to reflect the true legislative intent. It would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.

Consistent with the declared policy to provide LGUs genuine and meaningful local autonomy, contiguity and minimum land area requirements for prospective LGUs should be liberally construed in order to achieve the desired results. Moreover, such a very restrictive construction could trench on the equal protection clause as it actually defeats the purpose of local autonomy and decentralization as enshrined in the Constitution..

The provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, “The land area requirement shall not apply where the proposed province is composed of one (1) or more islands,” is declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID.

Digested by: Baldueza, Luz

LOCGOV –026

League of Cities vs. COMELEC (2008)

Doctrine:The criteria for in the creation of LGU’s must be in the Local Government Code and no other law. Exemptions from the application of such criteria must also be in the LGC>

Facts: During the 11th Congress, Congress did not act on bills converting 24 municipalities into cities. During the 12th Congress, Congress enacted R.A. No. 9009 (took effect on 30 June 2001). RA 9009 amended Sec. 450 of the LGC by

increasing the annual income requirement for conversion of a municipality into a city from P20M to P100M. After the effectivity of R.A. 9009, the House of Representatives of the 12th Congress adopted Joint Resolution No. 29, which sought to

exempt the 24 municipalities (those whose cityhood bills were not approved in the 11 th Congress, see above) from the P100M income requirement.

The 12th Congress ended without the Senated approving Joint Resolution No. 29. During the 13th Congress, Joint Resolution No. 29 (in the 12th Congress) was readopted as Joint Resolution No. 1. Senated failed to

approve the Joint Resolution No. 1. Sixteen (16) municipalities filed individual cityhood bills which contained a common provision – exemoting them from the P100M

income requirement. Senate and HoR approved the cityhood bills. The cityhood bills lapsed into law (Cityhood Laws).

Petitioner’s arguments:For Issue 1:The Cityhood Laws unconstitutional for violation of Section 10, Article X of the Constitution.

For Issue 2: The wholesale conversion of municipalities into cities will reduce the share of existing cities in the Internal Revenue Allotment because more cities will share the same amount of internal revenue set aside for all cities under Section 285 of the Local Government Code.

For Issue 3: The Cityhood Laws unconstitutional for violation of the equal protection clause.

Respondent’s arguments: None.

Issue 1:Whether the Cityhood Laws violate Section 10, Article X7of the Constitution (Yes)

Held/Ratio: The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code

and not in any other law. There is only one Local Government Code. Congress cannot write such criteria in any other law, like the Cityhood Laws.

The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the LGC and increased the income requirement to P100M. Section 450, as amended by RA 9009, does not contain any exemption from this income requirement.

The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 as amended by RA 9009.

Such exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

Issue 2:Whether the Cityhood Laws violate Section 6, Article X8 of the Constitution (Yes)

Held/Ratio: Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to implement a fair and equitable

distribution of national taxes to all local government units. If the criteria in creating local government units are not uniform and discriminatory, there can be no fair and just distribution of the

national taxes to local government units. A city with an annual income of only P20 million, all other criteria being equal, should not receive the same share in national taxes as

a city with an annual income of P100 million or more. The criteria prescribed in the LGC (land area, population and income), are material in determining the “just share” of local

government units in national taxes. Since the Cityhood Laws do not follow the income criterion in Section 450 of the Local Government Code, they prevent the fair and

just distribution of the Internal Revenue Allotment in violation of Section 6, Article X of the Constitution.

Issue 3:Whether the Cityhood Laws violate the equal protection clause (Yes)

7No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (Emphasis supplied)8Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. (Emphasis supplied)

Held/Ratio: The exemption provision merely states, “Exemption from Republic Act No. 9009 ─ The City of x x x shall be exempted from the

income requirement prescribed under Republic Act No. 9009.” This one sentence exemption provision contains no classification standards or guidelines differentiating the exempted municipalities from those that are not exempted.

The exemption will be based solely on the fact that the 16 municipalities had cityhood bills pending in the 11 th Congress when RA 9009 was enacted.

To be valid, the classification in the present case must be based on substantial distinctions, rationally related to a legitimate government objective which is the purpose of the law,9[23] not limited to existing conditions only, and applicable to all similarly situated.

No substantial distinction - The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. Municipalities with pending cityhood bills in the 11 th Congress might even have lower annual income than municipalities that did not have pending cityhood bills.

Not rationally related to a legitimate government objective - Municipalities with pending cityhood bills in the 11th Congress might even have lower annual income than municipalities that did not have pending cityhood bills. In short, the classification criterion not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

Limited to existing conditions - The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again.

Not applicable to all similarly situated - Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can.

Dissenting opinion:Vitug, J.

The Cityhood laws merely carry out the intent of R.A. No. 9009. Hence, they are in accordnce with the “criteria established in the LGC” pursuant to Section 10, Art. X of the Constitution.

Digested by: Delfin, Estelle Marielle

LOCGOV - 27League of Cities of the Philippines (LCP) v COMELEC (2009)

Doctrine:1. “Code” under Art. X, Section 10 does not refer solely to the LGC.2. Deliberations of the Congress on unapproved bills or resolutions are extrinsic aids.

9

Facts:Consolidated petitions for prohibition were filed assailing the constitutionality of 16 laws (cityhood laws) converting 16 municipalities into cities and seeking to enjoin the COMELEC from conducting plebiscites pursuant to the said cityhood laws.

Petitioner’s arguments:

1. Under Sec. 10, Art. X of the 1987 Constitution, the creation of political subdivisions must be “in accordance with the criteria established under the local government code.” The indicators or criteria must be written only in the local government code and not in any other statute. In this case, the criteria are under the LGC of 1991 and the cityhood laws that exempted the respondent LGUs from the income standard spelled out in the amendatory RA 9009 violates the Constitution.

The deliberations during the 11th and/or 12th Congress particularly those on the unapproved resolution exempting from RA 9009 certain municipalities, are without significance and would not qualify as extrinsic aids in construing cityhood laws since the said laws were passed during the 13th Congress.

2. The special treatment granted under the cityhood laws violates the equal protection clause.

Issue/s:

1) Whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the petition or also to the subsequent voting on the motion for reconsideration

2) Whether or not the cityhood laws violate Sec. 10, Art. X of the Constitution;3) Whether or not the cityhood laws violate the equal protection clause

Held/Ratio:

1. No. The supposedly infringed provision is not a new constitutional provision. It is a substantial reproduction of Art. XI, Sec. 3 of the 1973 constitution. The “code” similarly referred to in the 1973 and 1987 constitutions is clearly but a law Congress enacted. The rationale why the Constitution employs the clause “in accordance with the criteria established in the local government code” is to lay stress that it is Congress alone, and no other, which can impose the criteria (Court noted Fr. Bernas’ explanation on the same).

The Court also noted that at the time of the enactment of the 1987 Constitution, BP 337, the then LGC was still in place. Had the framers intended to isolate the embodiment of the criteria only in the LGC, then they would have referred to BP337. Moreover, they would not have provided for the enactment by Congress of a new LGC.

Consistent with its plenary power, Congress can, via either a consolidated set of laws or single-subject enactment, impose the criteria of viability and the same need not be embodied in the local government code. Pursuing the contention of petitioners that the criteria may not be provided for in any other law would result in the conclusion that RA 9009 is also unconstitutional which is illogical since they used the said law as an argument for the alleged unconstitutionality of the cityhood laws.Court also discussed that even assuming that conversion shall be in accordance with the criteria set forth in the LGC, the petitioner’s constitutional objections would still be untenable since RA 9009 intended the lgus covered by the cityhood laws to be exempt from the P100 Million income criterion. The following is the discussion of the Court on its exemption angle:

Originally, §164 of BP 337 provided as requirement an average regular annual income of at least 10 Million pesos. This was superseded by §450 of the LGC which provided for at least 20 Million pesos and was further amended by RA 9009 which provided that there should be an average annual income of at least 100 Million pesos for the last 2 consecutive years.

Looking at the deliberations, the Court stated that the rationale behind the enactment of RA 9009 is the mad rush of municipalities wanting to be converted into cities. Congress, however, knew of the pendency of several bills on cityhood at the time of such deliberations and has deliberated that the bills would not be affected (records of the deliberations).

The basis for the inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress of not according retroactive effect to RA 9009. [Court: The intent is the essence of the law and the primary rule of construction is to ascertain and to give effect to that intent. – Torres v. Limjap]

Court also used presumption of constitutionality.

Debates, deliberations and proceedings of Congress and the steps taken in the enactment of the law were part of the legislative history and may be consulted, if appropriate, as aids in the interpretation of the law. They are only immaterial if Congress is not a continuing legislative body.

2. No. Artificial persons are entitled to protection only insofar as their property is concerned (Smith, Bell & Co. v. Natividad (1919)). In this case, no deprivation of property results by virtue of the enactment of the cityhood laws. The claim that there would be a

reduction of IRA is presumptuous since the IRA is yet to be allocated. Municipalities cannot also claim violation of the equal protection clause since conversion would only affect its status as a political unit.

There is reasonable classification. Requisites: a) rest on substantial distinctions; (b) germane to the purpose of the law; c) not limited to the existing conditions only; and d) apply equally to all members of the same class.

The favorable treatment accorded the lgus subject of the cityhood laws rests on substantial distinctions. 1) Lgus have pending bills before the passage of RA 9009; 2) years before the enactment of RA 9009, they had already met the income criterion under the LGC; 3) it would be unfair “to change the rules in the middle of the game” (note: the process of conversion has already span 3 Congresses because of events such as the impeachment of then Pres. Estrada, the jueteng investigation, and the subsequent EDSA events that are not controlled by the municipalities)– Court citing Senator Lim’s sponsorship speech on the cityhood bills. The imperatives of fairness dictate that they should be given a legal remedy by which they would be allowed to prove that they have all the necessary qualification for city status using the criteria under the LGC before its amendment.

Germane to the purpose of the law: the exemption was meant to reduce the inequality occasioned by the passage of RA 9009. The laws positively promoted the equality and eliminated the inequality between the respondent municipalities and the 33 others whose cityhood bills were enacted during the 11th Congress. Note that all the aforementioned municipalities were all found to be qualified before the passage of RA 9009.

Court: to deny the same rights and privileges to the respondent municipalities is tantamount to denying the respondent municipalities the protective mantle of the equal protection clause. Thus, resulting in an absurd situation where an alleged violation is remedied by another violation the same clause.

The non-retroactive effect of RA 9009 is not limited in application only to conditions existing at the time of its enactment. The common exemption clause in the cityhood laws is an application of the non-retroactive effect of RA 9009. It is not a declaration of rights but a mere declaration of prior qualification and/or compliance with the non-retroactive effect of RA 9009. Uniform exemption would apply to municipalities that had pending cityhood bills before the passage of RA 9009 and were compliant with then §450 of the LGC. It is hard to imagine, however, if there are still municipalities out there belonging in context to the same class as the respondent lgus.

The existence of cities consequent to the approval of the creating, but challenged, cityhood laws in the plebiscites held in the affected lgus is now an operative fact. The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws.

Dissenting opinion: The dissent only discussed procedural matters as regards tie-vote on a motion for reconsideration and the finality of the November 18 decision.

Digested by: Leaño, Maria Ofelia S.

LOCGOV - #28League of Cities of the Philippines vs. COMELEC (2010)

Doctrine:  Section 10, Article X of the Constitution expressly provides that “no x x x city shall be created x x x except in accordance with the criteria established in the local government code.”  This provision can only be interpreted in one way, that is, all the criteria for the creation of cities must be embodied exclusively in the Local Government Code. In this case, the Cityhood Laws, which are unmistakably laws other than the Local Government Code, provided an exemption from the increased income requirement for the creation of cities under Section 450 of the Local Government Code, as amended by RA 9009. Clearly, the Cityhood Laws contravene the letter and intent of Section 10, Article X of the Constitution.

Facts: This case involves the 18 November 2008 decision of the Supreme Court En Banc which struck down 16 Cityhood Laws for violating

Section 10, Article X of the 1987 Constitution and the equal protection clause. After the finality of the 18 November 2008 Decision the

Court En Banc unprecedentedly reversed its decision by upholding the constitutionality of the Cityhood Laws in the Decision of 21 December

2009.

This case is a result of the reexamination of the Court of the motions for reconsideration filed before it and finds that such are meritorious

and accordingly reinstates the 18 November 2008 Decision declaring the 16 Cityhood Laws unconstitutional.

Petitioner’s arguments: *NOTE: This case is a continuation of the 2008 and 2009 decisions. The arguments presented by both parties were no longer discussed in detail. The focus of the decision is the analysis of the court.

Petitioners filed a motion for reconsideration regarding the December 21, 2009 decision of the SC reiterating their stand that the 16 Cityhood Laws are unconstitutional for being:

a. Violative of Section 10, Article X of the 1987 Constitution which provides that:

           No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.  (Emphasis supplied)

b. There is no substantial distinction between municipalities with pending cityhood bills in the 11 th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement.  The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality.  

Respondent’s arguments: NONE DISCUSSED

Issue/s:1. WoN the 16 Cityhood laws are unconsitutional2. WoN the operative fact doctrine made the 16 cityhood laws in question constitutional.

Held/Ratio:

FIRST ISSUE:

YES. The Constitution is clear.  The creation of local government units must follow the criteria established in the Local Government Code and

not in any other law. The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation

of a city, including the conversion of a municipality into a city. Thus Congress cannot write such criteria in any other law, like the Cityhood

Laws. 

 

The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, non-

discriminatory criteria found solely in the Local Government Code.  Any derogation or deviation from the criteria prescribed in the Local

Government Code violates Section 10, Article X of the Constitution.  

 

 RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the

creation of a city. Hence, there is a new requirement for all municipalities desiring to become a city to satisfy the P100 million income

requirement there being no exemption provided in the amendment. 

The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income

requirement in Section 450 of the Local Government Code, as amended by RA 9009.  Such exemption clearly violates Section 10, Article X of

the Constitution and is thus patently unconstitutional.   To be valid, such exemption must be written in the Local Government Code and not

in any other law, including the Cityhood Laws.

 On the issue of equal protection relating to municipalities with pending cityhood bills in the 11th Congress and municipalities that did not

have pending bills the SC held that the mere pendency of a cityhood bill in the 11 th Congress is not a material difference to distinguish one

municipality from another for the purpose of the income requirement.  

The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. The

classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not rationally related to the purpose of the law

which is to prevent fiscally non-viable municipalities from converting into cities. Limiting the exemption to the new income

requirement only to the 16 municipalities who had pending cityhood bills violates the requirement that the classification must apply to all

similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16

respondent municipalities can.

_____________________________________________________________________________________________SECOND ISSUE:

NO.   Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its

declaration of nullity, may be left undisturbed as a matter of equity and fair play.

The view of the minority that an unconstitutional law, if already implemented prior to its declaration of unconstitutionality by the Court, can

no longer be revoked and its implementation must be continued despite being unconstitutional will open the floodgates to the wanton

enactment of unconstitutional laws and a mad rush for their immediate implementation before the Court can declare them

unconstitutional.  

The operative fact doctrine is a rule of equity.  As such, it must be applied as an exception to the general rule that an unconstitutional law

produces no effects.  It can never be invoked to validate as constitutional an unconstitutional act as stated in Planters Products, Inc. v.

Fertiphil Corporation where the Court held that:

 The general rule is that an unconstitutional law is void. It produces no rights, imposes no duties and affords no protection. It has no legal effect. It is, in legal contemplation, inoperative as if it has not been passed. Being void, Fertiphil is not required to pay the levy. All levies paid should be refunded in accordance with the general civil code principle against unjust enrichment. Xxx

Digested by: Regina Patricia C. Rosales

LOCGOV - 029

League of Cities of the Philippines (LCP) v COMELEC, (Feb 2011)

Doctrine:The enactment of the Cityhood Laws is an exercise by Congress of its legislative power. The LGC is a creation of Congress through its law-making powers. Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009 and when it enacted the Cityhood Laws. Congress deemed it wiser to exempt respondent municipalities from belatedly imposed modified income requirement in order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside development and autonomy.

Facts:

Petitions for prohibition were filed by the League of Cities of the Philippines assailing the constitutionality of 16 laws converting the municipality covered thereby into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections (COMELEC) from conducting plebiscites pursuant to the subject laws.

In the Decision dated November 18, 2008, the Court En Banc granted the petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6, Article X, and the equal protection clause. In the Resolution dated March 31, 2009, the Court En Banc, denied the first motion for reconsideration. On April 28, 2009, the Court En Banc issued a Resolution, with a vote of 6-6,4 which denied the second motion for reconsideration for being a prohibited pleading.

In its June 2, 2009 Resolution, the Court En Banc clarified its April 28, 2009 Resolution. In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. Thus, the second motion for reconsideration was no longer a prohibited pleading. However, for lack of the required number of votes to overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.5

In another Decision dated December 21, 2009, the Court En Banc declared the Cityhood Laws as constitutional.

On August 24, 2010, the Court En Banc, through a Resolution resolved the Ad Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009, filed by petitioners, and the Ad Cautelam Motion for Reconsideration filed by petitioners-in-intervention, reinstating the November 18, 2008 Decision.

Considering these circumstances where the Court En Banc has twice changed its position on the constitutionality of the 16 Cityhood Laws, and especially taking note of the novelty of the issues involved in these cases, the Motion for Reconsideration of the “Resolution” dated August 24, 2010 deserves favorable action by this Court

Petitioner’s arguments:

Both the November 18, 2008 Decision and the August 24, 2010 Resolution impress that the Cityhood Laws violate the equal protection clause enshrined in the Constitution. Further, it was also ruled that Section 6, Article X was violated because the Cityhood Laws infringed on the “just share” that petitioner and petitioners-in-intervention shall receive from the national taxes (IRA) to be automatically released to them.

There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills, such that the mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement.

Respondent’s arguments:

Issue/s:1) Whether the 16 Cityhood Bills violate Article X, Section 10 of the Constitution? 2) Whether the Cityhood Laws violate Section 6, Article X and the equal protection clause of the Constitution?

Held/Ratio:

1) The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.

Article X, Section 10 provides— 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 local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Prior to the amendment, Section 450 of the LGC required only an average annual income of at least P20, 000,000.00 for the last two (2) consecutive years. Before R.A. No. 9009, was introduced by Senator Pimentel, there were 57 bills filed for conversion of 57 municipalities into component cities. During the 11th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained as pending bills. Among these 24 were the 16 municipalities that were converted into component cities through the Cityhood Laws.

Notwithstanding that the 11th and 12th Congress failed to act upon the pending cityhood bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the 13th Congress, when the Cityhood Laws were enacted. The exemption clauses found in the individual Cityhood Laws are the express articulation of that intent to exempt respondent municipalities from the coverage of R.A. No. 9009.

Congress saw the wisdom of exempting respondent municipalities from complying with the higher income requirement imposed by the amendatory R.A. No. 9009. These municipalities have proven themselves viable and capable to become component cities of their respective provinces. They were centres of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots.

The enactment of the Cityhood Laws is an exercise by Congress of its legislative power. Legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them. The Constitution, as the expression of the will of the people in their original, sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines. The grant of legislative power to Congress is broad, general, and comprehensive. The legislative body possesses plenary powers for all purposes of civil government. Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects, and extends to matters of general concern or common interest.

Without doubt, the LGC is a creation of Congress through its law-making powers. Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws was again exercised when Congress enacted the Cityhood Laws. When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of local government units—income, population, and land area. Congress deemed it fit to modify the income requirement with respect to the conversion of municipalities into component cities when it enacted R.A. No. 9009, imposing an amount of P100 million, computed only from locally-generated sources. However, Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed modified income requirement in order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside development and autonomy, especially accounting for these municipalities as engines for economic growth in their respective provinces.

R.A. No. 9009 amended the LGC. But it is also true that the Cityhood Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. For this reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on their strained and stringent view that the Cityhood Laws, particularly their exemption clauses, are not found in the LGC.

2) There was valid classification, and the Cityhood Laws do not violate the equal protection clause.

The equal protection clause of the 1987 Constitution permits a valid classification, provided that it: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.

The determination of the existence of substantial distinction with respect to respondent municipalities does not simply lie on the mere pendency of their cityhood bills during the 11th Congress. The existence of substantial distinction with respect to respondent municipalities covered by the Cityhood Laws is measured by the purpose of the law, not by R.A. No. 9009, but by the very purpose of the LGC, as provided in its Section 2 (a), thus—

SECTION 2. Declaration of Policy.—(a) It is hereby declared the policy of the State that 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. Toward this end, 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 process of decentralization shall proceed from the National Government to the local government units.

Substantial distinction lies in the capacity and viability of respondent municipalities to become component cities of their respective provinces. Congress, by enacting the Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the State’s partners in accelerating economic growth and development in the provincial regions, which is the very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th Congress and their relentless pursuit for cityhood up to the present. Truly, the urgent need to become a component city arose way back in the 11th Congress, and such condition continues to exist.

The justness in the act of Congress in enacting the Cityhood Laws becomes obvious considering that 33 municipalities were converted into component cities almost immediately prior to the enactment of R.A. No. 9009. In the enactment of the Cityhood Laws, Congress merely took the 16 municipalities covered thereby from the disadvantaged position brought about by the abrupt increase in the income requirement of R.A. No. 9009, acknowledging the “privilege” that they have already given to those newly-converted component cities, which prior to the enactment of R.A. No. 9009, were undeniably in the same footing or “class” as the respondent municipalities. Congress merely recognized the capacity and readiness of respondent municipalities to become component cities of their respective provinces.

Congress, who holds the power of the purse, in enacting the Cityhood Laws, only sought the well-being of respondent municipalities, having seen their respective capacities to become component cities of their provinces, temporarily stunted by the enactment of R.A. No. 9009. 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.

Dissenting opinion: CARPIO

As I have consistently opined, the 16 Cityhood Laws are unconstitutional.

First, the 16 Cityhood Laws violate Section 10, Article X of the 1987 Constitution. The Constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. There is only one Local Government Code. The Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for the creation of a city, including the conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the Cityhood Laws.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that moment the Local Government Code required that any municipality desiring to become a city must satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such exemption violates Section 10, Article X of the Constitution and is thus patently unconstitutional. To be valid, such exemption must be written in the Local Government Code and not in any other law, including the Cityhood Laws.

Second, the 16 Cityhood Laws violate the equal protection clause of the Constitution.

There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference to distinguish one municipality from another for the purpose of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or determine the level of income of a municipality. In short, the classification criterion—mere pendency of a cityhood bill in the 11thCongress—is not rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from converting into cities.

Moreover, the fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing at the time of passage of RA 9009. That specific condition will never happen again. This violates the requirement that a valid classification must not be limited to existing conditions only.

In addition, limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. The exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause.

I vote to DENY the motion for reconsideration of the Resolution dated 24 August 2010.

Digested by: Andrew Velasco

LOCGOV - 30

League of Cities of the Philippines v COMELEC (April 12, 2011)

Doctrine: Congressclearly intended that the LGUs covered by the Cityhood Laws be exempted from the coverage of RA 9009.

Facts:

The Resolution promulgated on February 15, 2011 granted the Motion for Reconsideration of the respondents presented against the Resolution dated August 24, 2010, reversed the Resolution dated August 24, 2010, and declared the 16 Cityhood Laws constitutional.

Under consideration is the Ad Cautelam Motion for Reconsideration filed by the petitioners vis-à-vis the Resolution promulgated on February 15, 2011.

Petitioner’s arguments:

The Court could no longer modify, alter, or amend its judgment declaring the Cityhood Laws unconstitutional due to such judgment having long become final and executory.

o The controversy on the Cityhood Laws ended with the April 28, 2009 Resolution denying the respondents’ second motion for reconsideration vis-à-vis the November 18, 2008 Decision for being a prohibited pleading, and in view of the issuance of the entry of judgment on May 21, 2009.

o Modifying, altering or amending the judgment would thereby violate rules of procedure, and the principles of res judicata and immutability of final judgments.

The Cityhood Laws violated Section 6 and Section 10 of Article X of the Constitution, as well as the Equal Protection Clause and the right of local governments to a just share in the national taxes.

The new income requirement of P100 million from locally generated sources is not arbitrary because it is not difficult to comply with.

There exists no issue with respect to the cityhood of its member cities, considering that they became cities in full compliance with the criteria for conversion at the time of their creation.

Respondent’s arguments:

Motion To Amend Resolution Of April 28, 2009 etc. was not another MR of the November 18, 2008 Decision, because it assailed the April 28, 2009 Resolution with respect to the tie-vote on the respondents’ Second MR.

The Motion To Amend Resolution Of April 28, 2009 etc. was filed on May 14, 2009, which was within the 15-day period from their receipt of the April 28, 2009 Resolution; thus, the entry of judgment had been prematurely made.

The requirements under RA 9009 do not apply to cityhood bills already pending with Congress upon the enactment of RA 9009. Respondent complied with the requirements in the LGC before the enactment of RA 9009.

Issue/s:1. WON the Court could still modify, alter or amend its resolution dated April 28, 2009, denying the respondents’ motion for

reconsideration of its November 18, 2008 Decision.2. WON the Cityhood Laws violated Section 6 and Section 10 of Article X of the Constitution as well as the Equal Protection Clause and

the right of local governments to a just share in the national taxes.

Held/Ratio:

1. Yes. The Court traced the events leading up to the questioned Resolution.

o 28 April 2009 Resolution: The Court ruled in favour of the petitioners saying that the MR to the 31 March 2009 Resolution is denied by a vote of

6-6. The Cityhood Laws are unconstitutional. Second MR of the 18 November 2008 is denied for being a prohibited pleading. No further pleadings shall be

entertained.o 2 June 2009 Resolution: clarification to the 28 April 2009 Resolution.

Although as a rule, a second motion for reconsideration is a prohibited pleading pursuant to Section 2, Rule 52 of the Rules of Civil Procedure10, when a motion for leave to file and admit a second motion for reconsideration is granted by the Court, the Court therefore allows the filing of the second motion for reconsideration and thus will is no longer be considered a prohibited pleading.

In the present case, the Court voted on the second motion for reconsideration filed by respondent cities. In effect, the Court allowed the filing of the second motion for reconsideration. However, for lack of the required number of votes to

10"No second motion for reconsideration of a judgment or final resolution by the same party shall be entertained."

overturn the 18 November 2008 Decision and 31 March 2009 Resolution, the Court denied the second motion for reconsideration in its 28 April 2009 Resolution.

Expunged, among others, the respondent’s Motion to Amend Resolution of April 28, 2009.o 21 December 2009 Resolution: declared the Cityhood Laws as constitutional.

Granted respondents MR of the 2 June 2009 Resolution which asserted that their Motion To Amend Resolution Of April 28, 2009 etc. was not another MR of the November 18, 2008 Decision, because it assailed the April 28, 2009 Resolution with respect to the tie-vote on the respondents’ Second MR.

o 24 August 2010 Resolution: reinstated 18 November 2008 Decision.o 15 February 2011: (herein assailed resolution) declared the Cityhood laws as constitutional.

Therefore, the June 2, 2009 Resolution clarified, the respondents’ Second MR was not a prohibited pleading in view of the Court’s voting and acting on it having the effect of allowing the Second MR

The same permitting effect occurred upon consideration of how the Court acted on the parties’ motions.

Moreover, by issuing the Resolutions dated September 29, 2009 and November 17, 2009, the Court: (a) rendered ineffective the tie-vote under the Resolution of April 28, 2009 and the ensuing denial of the Motion for Reconsideration of the Resolution of March 31, 2009 for lack of a majority to overturn; (b), re-opened the Decision of November 18, 2008 for a second look under reconsideration (which led to the 21 Dec 2009 Decision); and (c) lifted the directive that no further pleadings would be entertained.

The Court has frequently disencumbered itself under extraordinary circumstances from the shackles of technicality in order to render just and equitable relief.

On whether the principle of immutability of judgments and bar by res judicata apply herein, suffice it to state that the succession of the events recounted herein indicates that the controversy about the 16 Cityhood Laws has not yet been resolved with finality.

2. No

Congress clearly intended that the local government units covered by the Cityhood Laws be exempted from the coverage of R.A. No. 9009. The responses of Senator Pimentel during the deliberations (October 5, 2000) on Senate Bill No. 2157 made it obvious that R.A. No. 9009 would not apply to the conversion bills then pending deliberation in the Senate during the 11th Congress.

R.A. No. 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative intent to exempt, the House of Representatives adopted Joint Resolution No. 29, entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on Joint

Resolution No. 29. Even so, the House of Representatives readopted Joint Resolution No. 29 as Joint Resolution No. 1 during the 12th Congress. Again, the Senate failed to approve Joint Resolution No. 1.

The conversion bills of the respondents were individually filed in the House of Representatives, and were all unanimously and favorably voted upon by the Members of the House of Representatives and were likewise unanimously approved by the Senate.

o The acts of both Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the express articulations of the clear legislative intent to exempt the respondents, without exception, from the coverage of R.A. No. 9009.

o R.A. No. 9009, and, by necessity, the LGC, were amended, not by repeal but by way of the express exemptions being embodied in the exemption clauses.

Contrary to petitioner’s contention the P100 million requirement from locally generated sources is difficult to comply with.

o As indicated in the Resolution of February 15, 2011, fifty-nine (59) existing cities had failed as of 2006 to post an average annual income of P100 million.

o The large number of existing cities, virtually 50% of them, still unable to comply with the P100 million threshold income five years after R.A. No. 9009 took effect.

(RE: EPC) The local government units covered by the Cityhood Laws belong to a class of their own.

o They have proven themselves viable and capable to become component cities of their respective provinces.

o They are and have been centers of trade and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and other natural resources, and flourishing tourism spots.

The contention that there exists no issue with respect to the cityhood of petitioner’s member cities is too sweeping.o The Court points out that the previous income requirement of P20 million was definitely not insufficient to provide the

essential government facilities, services, and special functions vis-à-vis the population of a component city.o They also stressed that the increased income requirement ofP100 million was not the only conclusive indicator for any

municipality to survive and remain viable as a component city. And the imposition of the income requirement of P100 million from local sources under R.A. No. 9009 was arbitrary11.

11When the sponsor of the law chose the specific figure of P100 million, no research or empirical data buttressed the figure. Nor was there proof that the proposal took into account the after-effects that were likely to arise.

o While the Constitution mandates that the creation of local government units must comply with the criteria laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth.

o Moreover, if we were now to adopt the stringent interpretation of the Constitution the petitioners are espousing, the conversion laws of the recently converted cities San Juan and Navotas should also be struck down for being unconstitutional.

There is no indication of compliance with the requirements imposed by the LGC, for, although the two local government units concerned presumably complied with the income requirement of P50 million under Section 452 of the LGC and the income requirement of P100 million under the amended Section 450 of the LGC, they obviously did not meet the requirements set forth under Section 453 of the LGC12

The President had not classified San Juan and Navotas as highly urbanized cities upon proper application and ratification in a plebiscite by the qualified voters therein.

San Juan also did not qualify as a highly urbanized city because it had a population of only 125,558, contravening the required minimum population of 200,000 under Section 452 of the LGC.

(RE: IRA) The petitioner’s right to a just share in the national taxes is not violated.

o The share of local government units is a matter of percentage under Section 285 of the LGC 13, not a specific amount, and is also dependent on the number of existing cities, such that when the number of cities increases, then more will divide and share the allocation for cities.

o The allocation by the National Government is not a constant, and can either increase or decrease.This a necessary consequence of Section 285 and Section 286 of the LGC.

o Since the Cityhood Laws were adjudged as not violative of the Constitution and the LGC, the respondents are thus also entitled to their just share in the IRA allocation for cities.

Digested by: Dinnah Alconera

12Section 453. Duty to Declare Highly Urbanized Status.—It shall be the duty of the President to declare a city as highly urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein.

13Specifically, the share of the cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing (25%).

LOCGOV - # 31Aquino III and Robredo vs. COMELEC (April 7, 2010)Doctrine: Section 5(3) of Article VI of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province.

Population is just one of several other factors to be determined to compose a legislative district in a province.

Facts: Senator Benigno Aquino III and Mayor Jesse Robredo question the constitutionality of RA 9716 via petition for Certiorari and Prohibition under Rule 65.There were originally four legislative districts in Camarines Sur each with a population exceeding 250,000. RA 9716 reapportioned the composition of the first and second legislative district of the province of Camarines Sur thereby creating an additional legislative district. This left the first legislative district with a population of only 176,383 from its original 417,304.

Petitioner’s arguments: Save in the case of a newly created province, the constitution requires that each legislative district created by Congress must be

supported by a minimum population of at least 250,000 in order to be valid.

o “Article VI Sec. 5 (3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.”

o Intent of the framers of the 1987 constitution was to create a population minimum of 250,000 per legislative district.

When the Constitutional Commission fixed the original number of district seats in the House of Representatives to 200, they took into account the projected national population of 55,000,000 in 1986.

55 million people represented by 200 district representatives translates to roughly 250,000 people for every one (1) representative.

RA 9716 violates the principle of proportional representation provided in Article VI, Sec 5 par (1), (3) and (4) of the Constitution.14

14Article VI Sec 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional and sectoral parties or organizations.

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative

Respondent’s arguments: Substantive matter:

There is an apparent distinction between cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. o The existence of a 250,000 population condition but only as to the creation of a legislative district in a city and not to a

province. Procedural:

The petitioners should not have availed of Certiorari and Prohibition as a remedy but should have filed a petition for Declaratory Relief because it was to declare a law unconstitutional.

Petitioners have no locus standi as they have not proven that they will incur any substantial injury by the implementation of the law.Issue/s:1. W/N: RA 9716 is unconstitutional for creating a legislative district in a province with a population less than 250,000. NO.2. W/N: A petition for declaratory relief was the proper action in court and W/N: petitioners have locus standi. NO. Held/Ratio: 1. Section 5(3) of Article VI of the Constitution requires a 250,000 minimum population only for a city to be entitled to a representative, but not so for a province.

Any law duly enacted by Congress carries with it the presumption of constitutionality. There must be a clear showing that a specific provision of the constitution has been violated to be declared unconstitutional. There is no provision requiring a 250,000 minimum population requirement for the creation of a legislative district.

The second sentence of Section 5(3), Article VI of the Constitution provides: "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.”

The use of a comma to separate the phrase "each city with a population of at least two hundred fifty thousand" from the phrase "or each province" means that the 250,000 minimum population is only required for a city, but not for a province.

Mariano Jr. Vs. Comelec: Issue was the constitutionality of a law converting the Municipality of Makati to a Highly Urbanized City. Said law also created an additional legislative district. The Mariano case limited the application of the 250,000 minimum population requirement for cities only to its initial legislative district. While Section 5(3), Article VI of the Constitution requires a city to have a minimum population of 250,000 to be entitled to a representative, it does not have to increase its population by another 250,000 to be entitled to an additional district.

“Sec.461 of LGC Requisites for Creation. – (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(4) Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section.

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; OR(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office.”- the requirement of population is not an indispensable requirement, but is merely an alternative addition to the indispensable income requirement.

Records of the Constitutional Commission show population was not the sole determinant of the creation of a legislative district. Other factors were considered.

The factors mentioned during the deliberations on House Bill No. 4264 to be considered in the creation of legislative districts:(a) the dialects spoken in the grouped municipalities;(b) the size of the original groupings compared to that of the regrouped municipalities;(c) the natural division separating the municipality subject of the discussion from there configured District One; and(d) the balancing of the areas of the three districts resulting from the redistricting of Districts

The Constitution, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation. x x x. To ensure quality representation through commonality of interests and ease of access by the representative to the constituents, all that the Constitution requires is that every legislative district should comprise, as far as practicable, contiguous, compact and adjacent territory. – Bagabuyo vs. COMELEC

2. The issue is of transcendental importance, the rules of procedure must be set aside. – Jaworski vs. Pagcor.

Dissenting opinion: Carpio J, RA 9716 is unconstitutional for going against Sec. 5 Art. VI of the 1987 Constitution for the creation of legislative districts.

o Section 5(4) of Article VI mandates that "Congress shall make a reapportionment of legislative districts based on the standards" fixed in Section 5. These constitutional standards, as far as population is concerned, are: (1) proportional representation; (2) minimum population of 250,000 per legislative district; (3) progressive ratio in the increase of legislative districts as the population base increases; and (4) uniformity in apportionment of legislative districts "in provinces, cities, and the Metropolitan Manila area."

o The constitutional standard of proportional representation is rooted in equality in voting power -- that each vote is worth the same as any other vote,

o In terms of legislative redistricting, this means equal representation for equal numbers of people or equal voting weight per legislative district.

Section 5(1), Article VI of the 1987 Constitution provided that Members of the House "shall be elected from legislative districts in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x."

“on the basis of a uniform and progressive ratio" - the rule on proportional representation shall apply uniformly in the apportionment of every legislative district.

"on the basis of a uniform x x x ratio"- means that the ratio of one legislative district for every given number of people shall be applied uniformly in all apportionments, whether in provinces or cities or in metro manila.

The law goes against democracy and the republican system of government.

That the Constitution never meant to exclude provinces from the requirement of proportional representation is evident in the opening provision of Section 5(1), which states:The House of Representatives shall be composed of x x x members, x x x, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio x x x."

Mariano vs. Comelec and Bagabuyo vs. Comelec is inapplicable because when it was acting as a constitutional commission it exercised absolute power to relax the standards in Section 5, Article VI.

The Court in Mariano v. COMELEC took note of the certification by the NSO that at the time of the enactment of RA 7854, the population of Makati City was 508,174, entitling it to two representatives

Concurring and DissentingCarpio-Morales

Concurs with the ponencia as to the transcendental issue

Substantive portion petitioners rely on both Article VI, Section 5 (3) but also on Section 5 (1) of the same Article.  Both provisions must be read together in light of the constitutional requirements of population and contiguity.

Section 5 (3) of Article VI disregards the 250,000 population requirement only with respect to existing provinces whose population does not exceed 250,000 or to newly created provinces under the Local Government Code (as long as the income and territory requirements are met).

Nothing in Mariano reflects that the Court disregarded the 250,000 population requirement as it merely stated that Makati’s legislative district may still be increased as long as the minimum population requirement is met.

Bagabuyo vs. Comelec and Mariano vs. Comelec were both wrongly interpreted as the population of the legislative districts at the time were above 250,000

The Local Government Code likewise is not in point since Section 461 thereof tackles the creation of a province and not the reapportioning of a legislative district based on increasing population.

Digested by: Jamie Angeli T. Matias

LOCGOV – 32MMDA v. Bel-Air Village Association (BAVA)

Doctrine: Unlike its predecessor the MMA, the MMDA has more limited powers which does not include police power. Not being a political subdivision as well, MMDA is limited to the administration and implementation of basic services provided in its charter within the Metro Manila Area

Facts: MMDA through a letter notified BAVA that the former is requesting the latter to open Neptune Street (A private road owned by BAVA) to the public. On the same day of the receipt of the letter BAVA was informed that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. BAVA prayed for the issuance of a temporary restraining order and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. It was granted but the issuance of preliminary injunction was denied. On appeal to the CA however, the injunction was granted

Petitioner’s arguments: MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. Intermediate Appellate Court. From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public.

Respondent’s arguments: MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance.

Issue: W/N MMDA under its charter has authority to open Neptune Street with the intent to ease traffic in the Makati area without any ordinance.

Held: No. It is not the MMDA that has been given police power by the legislature but the local governments through its respective legislative bodies. MMDA is only given development authority for administration of “metro-wide15” services in Metro Manila.

The powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself “Sec. 2. The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters."

15"Metro-wide services" are those "services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila." There are seven (7) basic metro-wide services and the scope of these services cover the following: (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety.

Contrary to petitioner’s claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power.

Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA.

In the deliberations of R.A 7924 (Bill creating the MMDA) it was pointed out that the MMDA does not have its own political subdivision, it has no political personality, no power to tax, no police power. “It is only a council, it is an organization of political subdivision, powers, ‘no, which is not imbued with any political power.”

MMDA is not a political unit of government. The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA’s functions. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. This was explicitly stated in the last Committee deliberations prior to the bill’s presentation to Congress.

It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA.

Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling.

No Dissenting Opinion

Digested by: Pao Lorica

LOCGOV - 33Metropolitan Manila Development Authority v. Dante Garin

Doctrine:MMDA is not a political unit of government.The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA’s functions.  There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis

Facts:

1. Dante O. Garin, a lawyer, was issued a traffic violation receipt (TVR) and his driver’s license confiscated for parking illegally along Gandara Street, Binondo, Manila.

2. Printed on the TVR: YOU ARE HEREBY DIRECTED TO REPORT TO THE MMDA TRAFFIC OPERATIONS CENTER PORT AREA MANILA AFTER 48 HOURS FROM DATE OF APPREHENSION FOR DISPOSITION/APPROPRIATE ACTION THEREON.  CRIMINAL CASE SHALL BE FILED FOR FAILURE TO REDEEM LICENSE AFTER 30 DAYS.

3. GARIN addressed a letterto then MMDA Chairman Prospero Oreta requesting the return of his driver’s license, and expressing his preference for his case to be filed in court.

4. Garin did not receive a reply.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)

1. Garin filed the original complaint with application for preliminary injunction, contending that, in the absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring motorists of their licenses, pre-empting a judicial determination of the validity of the deprivation, thereby violating the due process clause of the Constitution. 

2. Garin contended that the provision violates the constitutional prohibition against undue delegation of legislative authority, allowing as it does the MMDA to fix and impose unspecified – and therefore unlimited - fines and other penalties on erring motorists.

3. In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and continues to suffer great and irreparable damage because of the deprivation of his license and that, absent any implementing rules from the Metro Manila Council, the TVR and the confiscation of his license have no legal basis.

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)

1. MMDA, represented by the Office of the Solicitor General, pointed out that the powers granted to it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and imposition of fines and penalties for traffic violations, which powers are legislative and executive in nature; the judiciary retains the right to determine the validity of the penalty imposed. 

2. MMDA further argued that the doctrine of separation of powers does not preclude “admixture” of the three powers of government in administrative agencies.

3. ]MMDA reiterates and reinforces its argument in the court below and contends that a license to operate a motor vehicle is neither a contract nor a property right, but is a privilege subject to reasonable regulation under the police power in the interest of the public safety and welfare. 

4. MMDA further argues that revocation or suspension of this privilege does not constitute a taking without due process as long as the licensee is given the right to appeal the revocation.

5. To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains the power to determine the validity of the confiscation, suspension or revocation of the license, the petitioner points out that under the terms of the confiscation, the licensee has three options:

1.  To voluntarily pay the imposable fine,

2.  To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or

3.  To request the referral of the TVR to the Public Prosecutor’s Office.

Issue/s: WON Sec. 5(f) of Rep. Act No. 7924 grants MMDA the power to confiscate and suspend or revoke drivers’ licenses without need of any other legislative enactment

Held/Ratio:No

1. We restate here the doctrine in Metro Manila Development Authority v. Bel-Air Village Association, Inc.as it applies to the case at bar: police power, as an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same.

2. Having been lodged primarily in the National Legislature, it cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the president and administrative boards as well as the lawmaking bodies of municipal corporations or local government units (LGUs).

3. Our Congress delegated police power to the LGUs in the Local Government Code of 1991.4. Metropolitan or Metro Manila is a body composed of several local government units.  With the passage of Rep. Act No. 7924 in 1995,

Metropolitan Manila was declared as a "special development and administrative region" and the administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. 

a. . . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA   police power, let alone legislative power . Even the Metro Manila Council has not been delegated any legislative power.

5. Unlike the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people's organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area.  All its functions are administrative in nature and these are actually summed up in the charter itself.

6. Clearly, the MMDA is not a political unit of government.  The power delegated to the MMDA is that given to the Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA’s functions.  There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. 

7. Insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers’ licenses without need of any other legislative enactment, such is an unauthorized exercise of police power.

8. Where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded – and in fact is duty-bound – to confiscate and suspend or revoke drivers’ licenses in the exercise of its mandate of transport and traffic management, as well as the administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs.

9. This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector, which may enforce, but not enact, ordinances.

10. This is also consistent with the fundamental rule of statutory construction that a statute is to be read in a manner that would breathe life into it, rather than defeat it,[and is supported by the criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute.[

Digested by: Michael Marlowe G. Uy

LOCGOV - 034

THE METROPOLITAN MANILADEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority, Petitioners, - versus - VIRON TRANSPORTATION CO., INC., Respondent.

HON. ALBERTO G. ROMULO, Executive Secretary, the METROPOLITAN MANILADEVELOPMENT AUTHORITY and BAYANI FERNANDO as Chairman of the Metropolitan Manila Development Authority, Petitioners, - versus MENCORP TRANSPORTATION SYSTEM, INC., Respondent. (15 August 2007)

Carpio-Morales, J. 

Doctrine:The MMDA cannot order the closure of respondents’ terminals not only because no authority to implement the Project has been granted nor legislative or police power been delegated to it, but also because the elimination of the terminals does not satisfy the standards of a valid police power measure.

Petitioner: MMDA, Bayani Fernando in his capacity as Chairman of MMDA

Respondent/s: Viron Transportation Co., and MencorpTransportation System, bus companies

Facts:

President Arroyo issued EO 179 in February of 2003. It referred to the plan recommended by MMDA to decongest traffic in the Metro Manila Area by removing bus terminals along major thoroughfares and instead replacing them with 4 interim intermodal terminals integrating exisiting transport modes. MMDA is designated as the implementing body of EO 179. This was referred to as the Greater Manila Mass Transport System Project ( the Project ).

Pursuant to the E.O., the Metro Manila Council (MMC), the governing board and policymaking body of the MMDA, issued Resolution No. 03-07 series of 20037 expressing full support of the Project. Recognizing the imperative to integrate the different transport modes via the establishment of common bus parking terminal areas, the MMC cited the need to remove the bus terminals located along major thoroughfares of Metro Manila.

RTC OF MANILA : On February 24, 2003, Viron Transport Co., Inc. (Viron), a domestic corporation engaged in the business of public transportation with a provincial bus operation, filed a petition for declaratory relief before the RTC of Manila.

In its petition which was docketed as Civil Case No. 03-105850, Viron alleged that the MMDA, through Chairman Fernando, was "poised to issue a Circular, Memorandum or Order closing, or tantamount to closing, all provincial bus terminals along EDSA and in the whole of the Metropolis under the pretext of traffic regulation." This impending move, it stressed, would mean the closure of its bus terminal in Sampaloc, Manila and two others in Quezon City. Viron insisted that the authority of MMDA does not include the power to direct provincial bus operators to abandon their existing bus terminals to thus deprive them of the use of their property. Viron then asked the trial court to construe the scope, extent, and limitation of the power of the MMDA to regulate under RA 7924 (the act creating the MMDA). Meanwhile, Mencorp. Transportation was another bus company who also filed a case asking for the declaration of unconstitutionality of EO 179.

The two petitions were subsequently consolidated and RTC Manila Br. 26 first ruled for MMDA, upholding the constitutionality of RA 7924 and that EO 179 is a valid exercise of police power BUT eventually declared EO 179 unconstitutional and also denied MMDA's reconsideration, hence the present case.

ISSUES Petitioners’ Arguments

(MMDA)

Respondents’ Arguments

(Viron Transportation,

Mencorp Transportation)

SC RULING

1. Is there a justiciable controversy in this case?

SC: YES.

There is NO justiciable controversy in this case, since there is nothing in the body of EO 179 which mentions/orders the CLOSURE and ELIMINATION of bus terminals along the major roads of Metro Manila.

Viron and Mencorp failed to produce any letter or communication from the Executive Department apprising the bus companies of an immediate plan to close their bus

There is justiciable controversy in this case since the MMDA has begun implementation of EO179.

The project, as could be gleaned from the MMDA's answer itself, is not anymore anticipatory or conjectural so the removal of the bus terminals is not anymore just a proposal but an impending action on the part of MMDA. Respondents have the right to challenge the EO's constitutionality.

The EO clearly provides MMDA’s plan to decongest traffic by ELIMINATING the bus terminals now located along the major roads of Metro Manila and providing more access to mass

terminals. MMDA also

insists that the EO is a mere administrative issuance, and therefore creates no relation to third persons (but the Court here ruled that the EO will definitely affect third persons, since the creation of mass transportation terminals will entail the removal of existing bus terminals that belong to the bus companies.)

transport system by creating mass transport facilities. The E.O. was made effective immediately.

 The MMDA’s resolve to immediately implement the Project is also evident from telltale circumstances, foremost of which was the passage by the MMC of Resolution No. 03-07, Series of 2003 expressing its full support of the immediate implementation of the Project. 

Under the circumstances, for respondents to wait for the actual issuance by the MMDA of an order for the closure of respondents’ bus terminals would be foolhardy for, by then, the proper action to bring would no longer be

for declaratory relief which, under Section 1, Rule 6of the Rules of Court, must be brought before there is a breach or violation of rights.

2. Does the MMDA have the authority to close the existing bus terminals, as per EO 179?SC: NO.

The real issue concerns the President’s authority to undertake or to cause the implementation of the Project.

They assert that the authority of the President is derived from E.O. No. 125, "Reorganizing the Ministry of Transportation and Communications Defining its Powers and Functions and for Other Purposes," her residual power and/or E.O. No. 292, otherwise known as the Administrative Code of 1987.

They add that the E.O. is also a valid exercise of the police power.

Respondents posit that the MMDA is devoid of authority to order the elimination of their bus terminals under the E.O. which, they argue, is unconstitutional because it violates both the Constitution and the Public Service Act; and that neither is the MMDA clothed with such authority under R.A. No. 7924.

(See ruling below this table)

SC Ruling on Second Issue:

According to EO 125, then President Aquino mandated the DOTC to be the primary policy, planning, programming, coordinating, implementing, regulating and administrative entity to promote, develop and regulate networks of transportation and communications.  The grant of authority to the DOTC includes the power to   establish   and   administer comprehensive and integrated programs for transportation and communications.

It is the DOTC Secretary who has the authority to issue such orders, rules, regulations and other issuances as may be necessary to ensure the effective implementation of the law. Since the DOTC Secretary has the power to establish and administer programs and projects for transportation, it follows that the President has the same authority to implement The Project as in the present case. Such authority springs from the President’s power of control over all executive departments as well as the obligation for the faithful execution of the laws under Article VII, Section 17 of the Constitution, as reflected in the Admin Code.

MMDA has no police power, let alone legislative power. In light of the administrative nature of its powers and functions, the MMDA is devoid of authority to implement the Project as

envisioned by the EO; hence it could not have been validly designated by the President to undertake the Project. It follows that the MMDA cannot validly order the elimination of the respondents’ terminals. Police power rests primarily with the legislature, such power may be delegated, as it is in fact increasingly being delegated.

By virtue of a valid delegation, the power may be exercised by the President and administrative boards as well as by the lawmaking bodies of municipal corporations or local government under an express delegation by the LGC of 1991.

While it is true that it is within the authority of the President to order implementation of the Project, the designation of the MMDA as the implementing agency for the Project may not be sustained.  It is ultra vires, there being no legal basis therefor.  

Under the provisions of EO 125 (Admin Code), it is the DOTC and not the MMDA which is authorized to establish and implement a project such as the one presented in this case. Thus, the President, although authorized to establish or cause the implementation of the Project, must exercise the authority through the instrumentality of the DOTC which, by law, is the primary implementing and administrative entity in the promotion, development and regulation of networks of transportation, and the one so authorized to establish and implement a project such as the Project in question.

By designating the MMDA as the implementing agency of the Project, the President clearly overstepped the limits of the authority conferred by law, rendering E.O. No. 179 ultra vires. 

RA 7924 (Act creating the MMDA) also does not specifically grant the MMDA any power that has been delegated to it by EO 179. In Metropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, Inc, the Court has settled that the scope of the

function of MMDA as an administrative, coordinating and policy-setting body.

“Unlike the legislative bodies of the local government units, there is no provision in R.A. No. 7924 that empowers the MMDA or its Council   to ‘enact ordinances, approve resolutions and appropriate funds for the general welfare’ of the inhabitants of Metro Manila.  The MMDA is, as termed in the charter itself, a ‘development authority.’  It is an agency created for the purpose of laying down policies   and coordinating with the various national government agencies, people’s organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself.” (emphasis supplied by SC)

Court also mentions the ruling in Metropolitan Manila Development Authority v. Garin that the MMDA is not vested with police power.

Even assuming arguendo that police power was delegated to the MMDA, its exercise of such power does not satisfy the two tests of a valid police power measure, thatthe police power legislation must be firmly grounded on public interest and welfare and a reasonable relation must exist between the purposes and the means.

In Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc . , two city ordinances were passed by the Sangguniang Panlungsod of Lucena, directing public utility vehicles to unload and load passengers at the Lucena Grand Central Terminal, which was given the exclusive franchise to operate a single common terminal.  Declaring that no other terminals shall be situated, constructed, maintained or established inside or within the city of Lucena, the sanggunian declared as inoperable all temporary terminals therein.

The ordinances were challenged before this Court for being unconstitutional on the ground that, inter alia, the measures constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies.

Citing De la Cruz v. Parasand Lupangco v. Court of Appeals, this Court held that the assailed ordinances were characterized by overbreadth, as they went beyond what was reasonably necessary to solve the traffic problem in the city.   And it found that the compulsory use of the Lucena Grand Terminal was unduly oppressive because it would subject its users to fees, rentals and charges. 

Measures calculated to promote the safety and convenience of the people using the thoroughfares by the regulation of vehicular traffic present a proper subject for the exercise of police power.

Finally, an order for the closure of respondents’ terminals is not in line with the provisions of the Public Service Act. The establishment, as well as the maintenance of vehicle parking areas or passenger terminals, is generally considered a necessary service to be provided by provincial bus operators like respondents, hence, the investments they have poured into the acquisition or lease of suitable terminal sites.  Eliminating the terminals would thus run counter to the provisions of the Public Service Act.

Dispositive: WHEREFORE, the Petition is, in light of the foregoing disquisition,  DENIED.  E.O. No. 179 is declared NULL and VOID for being ultra vires.

Digested by: Kriszanne Ceñidoza

LOCGOV - 35Disomangcop v Datumanong (2005)

Doctrine: Autonomous regions find their basis in the Constitution. Once these regions have their Organic Acts voted upon favorably in a plebiscite, the National Government, including the Congress, has limited control over them. Some powers are ceded in favor of the autonomy of these regions. Once powers have been devolved to the region, the Central Agency cannot "take back" such devolved powers by virtue of Department Orders or Republic Acts. Such action would result to an amendent to the Organic Act which should also be subjected to a plebiscite.

Petitioner: Arsadi Disomangcop and Ramir Dimalotang, Officer-in-Charge and District Engineer/Engineer II, respectively, of the First Engineering District of DPWH-ARMMRespondent: Simeon Datumanong and Emilia Boncodin, Sec of DPWH and DBM, respectively

Facts:1. Pursuant to the Constitutional mandate, RA 6734 was enacted creating ARMM. In the plebiscite, only Lanao Del Sur, Maguindanao,

Sulu and Tawi-tawi voted in favor, and so the four provinces became ARMM.2. Then President Aquino, by November 6, 1990, had already signed 7 EOS devolving to ARMM the powers of 7 cabinet departments,

namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and natural resources.

3. Nine years later, then Sec of DPWH Vigilar issued Dept. Order 119 creating the Marawi Sub-District Engineering Office. Two years later, President Estrada signed into law RA 8999 establishing an Engineering District in Lanao del Sur.

4. Later on Congress passed RA 9054 which strengthened ARMM's organic law (amended RA 6734). It was ratified in a plebiscite held on Aug 14, 2001. RA 6734 and RA 9054 are collectively referred to as the ARMM Organic Acts.

5. Petitioners filed a petition with then DPWH Secretary Datumanong seeking to revoke DO 119. No action was taken on this petition.6. Petitioners filed this petition in their capacity as Officer-in-Charge and District Engineer/Engineer II, respectively, of the First

Engineering District of the Department of Public Works and Highways, Autonomous Region in Muslim Mindanao (DPWH-ARMM) in Lanao del Sur.

Petitioners’ Side:1. Petitioners assert that they will suffer actual injury as a result of the DO 119 and the RA.2. The explanatory note to House Bill No. 995 (H.B. 995) from which the law originated is questionable. Prior to the sponsorship of the

law, no public hearing nor consultation with the DPWH-ARMM was made. The House Committee on Public Works and Highways (Committee) failed to invite a single official from the affected agency.

3. D.O. 119 was issued with grave abuse of discretion and that it violates the constitutional autonomy of the ARMM. They point out that the challenged Department Order has tasked the Marawi Sub-District Engineering Office with functions that have already been devolved to the DPWH-ARMM First Engineering District in Lanao del Sur.

Respondents’ Side:1. Petitioners have no legal standing to assail the constitutionality of the law and the department order. They note that petitioners have

no personal stake in the outcome of the controversy.2. The powers of the autonomous regions did not diminish the legislative power of Congress.3. DO 119 was issued pursuant to EO 124 signed and approved by Pres. Aquino in her residual legislative powers.

ISSUES:1. WON petitioners have legal standing to assail DO 119 and RA 8999.2. WON RA 8999 is unconstitutional.3. WON the Autonomous Regional Government (ARG) of the ARMM was given the control and supervision of the DPWH within the area.4. WON DO 119 is unconstitutional

Held:1. YES. Petitioners are charged with the duty and responsibility of supervising and implementing all public works projects to be

undertaken and being undertaken in Lanao del Sur which is the area of their jurisdiction. Thus, it is not far-fetched that the creation of the Marawi Sub-District Engineering Office under D.O. 119 and the creation of and appropriation of funds to the First Engineering District of Lanao del Sur as directed under R.A. 8999 will affect the powers, functions and responsibilities of the petitioners and the DPWH-ARMM. As the two offices have apparently been endowed with functions almost identical to those of DPWH-ARMM First Engineering District in Lanao del Sur, it is likely that petitioners are in imminent danger of being eased out of their duties and, not remotely, even their jobs. Such injury is direct and immediate. Thus, they can legitimately challenge the validity of the enactments subject of the instant case.

2. YES ( but note that the court said that it was not necessary to declare R.A. No. 8999 unconstitutional for the adjudication of the case because the challenged law never became operative and was superseded or repealed by a subsequent enactment.) - The ARMM Organic Acts are deemed a part of the regional autonomy scheme. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite. Hence, the provisions thereof cannot be amended by an ordinary statute, such as R.A. 8999 in this case. The amendatory law has to be submitted to a plebiscite.

a. The court noted the deliberations of the concom regarding the requirement of a plebiscite and concluded that the first ARMM Organic Act, R.A. 6074 (first ARMM Organic Act), as implemented by E.O. 426, devolved the functions of the DPWH in the ARMM which includes Lanao del Sur (minus Marawi City at the time) to the Regional Government. By creating an office with previously devolved functions, R.A. 8999, in essence, sought to amend R.A. 6074. The amendatory law should therefore first obtain the approval of the people of the ARMM before it could validly take effect. Absent compliance with this requirement, R.A. 8999 never became operative.

b. The court also held that it may be resolved on the reasoning that R.A. 8999 was impliedly repealed and superseded by R.A. 9054 (second ARMM Organic Act). Where a statute of later date clearly reveals an intention on the part of the legislature to abrogate a prior act on the subject, that intention must be given effect.

c. R.A. 9054 is anchored on the 1987 Constitution. It advances the constitutional grant of autonomy by detailing the powers of the ARMM covering, among others, Lanao del Sur and Marawi City, one of which is its jurisdiction over regional urban and rural planning. R.A. 8999, however, ventures to reestablish the National Government’s jurisdiction over infrastructure programs in Lanao del Sur. R.A. 8999 is patently inconsistent with R.A. 9054, and it destroys the latter law’s objective.

3. YES.a. The 1987 Constitution mandates regional autonomy to give a bold and unequivocal answer to the cry for a meaningful,

effective and forceful autonomy. The idea behind the Constitutional provisions for autonomous regions is to allow the separate development of peoples with distinctive cultures and traditions.

b. In the Philippine setting, the need for regional autonomy is more pressing in the case of the Filipino Muslims and the Cordillera people who have been fighting for it. Their political struggle highlights their unique cultures and the unresponsiveness of the unitary system to their aspirations. Regional autonomy is also a means towards solving existing serious peace and order problems and secessionist movements.

c. However, the creation of autonomous regions does not signify the establishment of sovereignty distinct from that of the Republic, as it can be installed only “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.” Regional autonomy is the degree of self-determination exercised by the local government unit vis-à-vis the central government.

d. To implement this, a necessary prerequisite of autonomy would be decentralization. In Cordillera Broad Coalition v. Commission on Audit, it was said that “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.” And by regional autonomy, the framers intended it to mean “meaningful and authentic regional autonomy.

e. To this end, Section 16, Article X limits the power of the President over autonomous regions. In essence, the provision also curtails the power of Congress over autonomous regions.

f. This is true for subjects over which autonomous regions have powers, as specified in Sections 18 and 20, Article X of the 1987 Constitution. Expressly not included therein are powers over certain areas. Worthy of note is that the area of public works is not excluded and neither is it reserved for the National Government.

g. Section 1 and 2 of E.O. 426 officially devolved the powers and functions of the DPWH in ARMM to the Autonomous Regional Government (ARG). Also, Congress itself through in section 20, Article VI of R.A. 9054 transferred and devolved the administrative and fiscal management of public works and funds for public works to the ARG. The devolution of the powers and functions of the DPWH in the ARMM and transfer of the administrative and fiscal management of public works and funds to the ARG are meant to be true, meaningful and unfettered.

h. With R.A. 8999, however, this freedom is taken away, and the National Government takes control again.The challenged law creates an office with functions and powers which, by virtue of E.O. 426, have been previously devolved to the DPWH-ARMM, First Engineering District in Lanao del Sur.

i. E.O. 426 clearly ordains the transfer of the control and supervision of the offices of the DPWH within the ARMM to the ARG. Among its other functions, the DPWH-ARMM, under the control of the Regional Government shall be responsible for highways,

flood control and water resource development systems, and other public works within the ARMM. Its scope of power includes the planning, design, construction and supervision of public works. According to R.A. 9054, the reach of the Regional Government enables it to appropriate, manage and disburse all public work funds allocated for the region by the central government.

j. The continued enforcement of R.A. 8999, therefore, runs afoul of the ARMM Organic Acts and results in the recall of powers which have previously been handed over. This should not be sanctioned, elsewise the Organic Acts’ desire for greater autonomy for the ARMM in accordance with the Constitution would be quelled.

4. YES.a. D.O. 119 creating the Marawi Sub-District Engineering Office which has jurisdiction over infrastructure projects within

Marawi City and Lanao del Sur is violative of the provisions of E.O. 426 which was issued pursuant to RA 6734( the first ARMM Organic Act). E.O. 426 sought to implement the transfer of the control and supervision of the DPWH within the ARMM to the Autonomous Regional Government.

b. The office created under D.O. 119, having essentially the same powers, is a duplication of the DPWH-ARMM First Engineering District in Lanao del Sur formed under the aegis of E.O. 426. The department order, in effect, takes back powers which have been previously devolved under the said executive order. D.O. 119 runs counter to the provisions of E.O. 426.

c. The fact that the department order was issued pursuant to E.O. 124—signed and approved by President Aquino in her residual legislative powers—is of no moment. It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one

d. E.O. No. 124, upon which D.O. 119 is based, is a general law reorganizing the Ministry of Public Works and Highways while E.O. 426 is a special law transferring the control and supervision of the DPWH offices within ARMM to the Autonomous Regional Government. The latter statute specifically applies to DPWH-ARMM offices. E.O. 124 should therefore give way to E.O.

e. Also, in the repealing clause of R.A. 9054 (the 2nd ARMM Organic Act) states that “all laws, decrees, orders, rules and regulations, and other issuances or parts thereof, which are inconsistent with this Organic Act, are hereby repealed or modified accordingly.” With the repeal of E.O. 124 which is the basis of D.O. 119, it necessarily follows that D.O. 119 was also rendered functus officio by the ARMM Organic Acts.

Dispositive: Writs of certiorari and prohibition are GRANTED. Mandamus DENIED.

Digested by: Wiggy

LOCGOV - #36SEMA v. COMELEC (2008)

Doctrine: ARMM Regional Assembly has no power to create provinces and cities because their creation necessarily includes the creation of legislative districts, which only Congress can create.

FACTS:

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first

legislative district consists of Cotabato City and eight municipalities.  Maguindanao forms part of the ARMM. Although under the

Ordinance, Cotabato City forms part of Maguindanao’s first legislative district, it is not part of the ARMM but of Region XII.

          The ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054, [5] enacted Muslim

Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in the

first district of Maguindanao. Cotabato City, although part of Maguindanao’s first legislative district, is not part of

theProvince of Maguindanao.

The Sangguniang Panlungsod of Cotabato City requested the COMELEC to “clarify the status of Cotabato City in view of the

conversion of the First District of Maguindanao into a regular province” under MMA Act 201.

The COMELEC issued Resolution No. 7902, subject of these petitions, renaming the legislative district in question as

“Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City).”

ISSUES Petitioner’s Arguments Respondents’ Arguments

Supreme Court Ruling

Procedural(a) whether the writs of Certiorari, Prohibition,

and Mandamus are proper to test the constitutionality of COMELEC Resolution No. 7902; and

(b) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato City mooted the petition.

(a) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its administrative, not quasi-judicial, power and

(b) Sema’s prayer for the writ of prohibition became moot with the proclamation of respondent Didagen P. Dilangalen on 1

(a)The writs of Certiorari and Mandamus are inappropriate. However, the Court has long recognized that the writ of Prohibition is appropriate to test the constitutionality of election laws, rules and regulations.

(b) NO. Respondent Dilangalen’s proclamation does not moot the petition. This case does not concern respondent’s election. Rather, it involves an inquiry into the validity of COMELEC Resolution

June 2007 as representative of the legislative district of Shariff Kabunsuan Province with Cotabato City.

No. 7902, as well as the constitutionality of MMA Act 201 and Sec. 19, Article VI of RA 9054.

Substantive(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays, is constitutional

(1) Constitutional(a) Sec 19, Art VI of RA 9054 is a valid delegation by Congress to the ARMM of the power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts, legislative powers over “other matters as may be authorized by law for the promotion of the general welfare of the people of the region”

(b) it is a valid amendment to Section 6 of RA 7160

(c)If construed literally, it would contravene the Constitution. Thus, Section 19 “should be

(1) Unconstitutional(a) the power to create provinces was not among those granted to the autonomous regions under Section 20, Article X of the Constitution and

(b) the grant under Section 19, Article VI of RA 9054  to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X of the Constitution and the Equal Protection Clause

(1) Sec. 19, Art VI of RA 9054 is unconstitutional. Thus, MMA Act 201 is void.Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution.   Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution.  The ARMM Regional Assembly cannot create a

(2) whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the first legislative district of Maguindanao, despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

construed as prohibiting the Regional Assembly from prescribing standards x x x that do not comply with the minimum criteria” under RA 7160.

(2) NO.(a) Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanao’s

province without a legislative district because the Constitution mandates that every province shall have a legislative district. 

Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution.  Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

(2) COMELEC Resolution No. 7902 is valid.

Felwa does not apply to the present case because in Felwa the new provinces were created by a national law enacted by Congress itself.  Here, the new province was created merely by a regional law enacted by the ARMM Regional Assembly.  

What Felwa teaches is

first legislative district

(b) Felwa v. Salas stated that “when a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute — which cannot provide otherwise — nor by apportionment, but by operation of the Constitution, without a reapportionment”;

that the creation of a legislative district by Congress does not emanate alone from Congress’ power to reapportion legislative districts, but also from Congress’ power to create provinces which cannot be created without a legislative district.  Thus, when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that “each province shall have at least one representative” in the House of Representatives. This does not detract from the constitutional principle that the power to create legislative districts belongs exclusively to Congress.  It merely prevents any other legislative body, except Congress, from creating provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts.  In short, only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only Congress has the power to

create, or trigger the creation of, a legislative district.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities.   Thus, we declare VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

LOCGOV - 37Kida vs Senate (2011)

Doctrine: Synchronizing ARMM elections to coincide with the country’s regular national and local elections is not violative of the Constitution and of the autonomy of the ARMM. RA 10153 is constitutional

Facts:- Consti Art. X Secs. 15-22 mandated the creation of autonomous regions in Muslim Mindanao and the Cordilleras - On Aug 1, 1989, RA 6734 (“An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao”) was enacted. A

plebiscite was held on Nov. 6, 1990 and the ARMM was fully established (Lanao del Sur, Maguindanao, Sulu, and Tawi Tawi assented). The said law scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification

- RA 9054 (“An Act to Strengthen and Expand the Organic Act for the ARMM, Amending for the Purpose Republic Act No. 6734…”) was enacted, which provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001.

- RA 9140 was then passed on June 22, 2001, resetting the first regular elections originally scheduled under RA 9054, to November 26, 2001.

- RA 9054 was ratified in a plebiscite on August 14, 2001, and Basilan and Marawi joined ARMM- RA 9333 was passed to reset the ARMM elections to the 2nd Monday of August 2005, and reset on the same date every 3 years

thereafter. This RA was not ratified.- So, following RA 9333, the next ARMM regional elections should have been held on August 8, 2011. COMELEC had begun preparations

for these elections and had accepted certificates of candidacies for the various regional offices to be elected. - But on June 30, 2011, RA 10153 (“An Act Providing for the Synchronization of the Elections in the Autonomous Region in Muslim

Mindanao (ARMM) with the National and Local Elections and for Other Purposes”) was passed. It reset the ARMM elections from August 8, 2011 to the second Monday of May 2013 and every 3 years thereafter to coincide with the country’s regular national and local elections. Said law also granted the President the power to “appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.”

- COMELEC stopped the preparations for the ARMM election after RA 10153 was enacted- Several petitions for certiorari, mandamus, and prohibition challenged the validity of RA 10153, even while it was in the form of

House Bill No 4146 and Senate Bill No 2756. The SC issued a TRO enjoining the implementation of RA 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011.

 Petitioner’s arguments (in general): (Petitioners are Datu Michael Abas Kida, in his personal capacity and as representative of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., Congressman Edcel Lagman as HReps member, Atty. Romulo Macalintal, Louis “Barok” Biraogo, some ARMM voters, and Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections))

- The petitioners assailing RA 9140, RA 9333, and RA 10153 assert that these laws amend RA 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective.

- The petitions assailing RA 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the “elective and representative” character of the executive and legislative departments of the ARMM.

- the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections shall have assumed office. Corollarily, they also argue that the power of appointment also gave the President the power of control over the ARMM, in complete violation of Section 16, Article X of the Constitution.

Respondents’ arguments:(Respondents are the Senate, then COMELEC Chairman Sixto Brillantes, Senate President Enrile, HReps Speaker Belmonte, DBM Secretary Abad, Executive Secretary Ochoa, etc. represented by the OSG)Basic argument: RA 10153 is valid

the Constitution mandates synchronization, citing the Transitory Provisions of the Constitution (Art XVIII Secs 1, 2, 5 on the elections of the Members of Congress, the President and the Vice-President.

RA 9333 does not constitute an amendment to RA 9054, as it merely filled the void left by RA 9054 in failing to schedule the succeeding regular elections in the ARMM. Thus, the twin requirements in RA 9054 in the enactment of the assailed laws are irrelevant.

o Alternatively, the plebiscite requirement in RA 9054 is limited only to cover amendatory laws affecting “substantive matters,” as opposed to “administrative concerns” such as fixing election dates

The supermajority requirement is unconstitutional as (1) save in exceptional cases not applicable to the present petitions, the Constitution only requires a simple majority of a quorum in each House of Congress to enact, amend or repeal laws; and (2) the rule against the passage of irrepealable laws.

the President’s authority under RA 10153 to appoint OICs is pursuant to Section 16, Article VII of the Constitution authorizing the President to appoint “those whom he may be authorized by law to appoint.”

The granting of the President control over the ARMM is analogous to Section 7, Article XVIII of the Constitution, authorizing the President for a limited period to appoint sectoral representatives in the House of Representatives.

Congress chose to authorize under RA 10153 the President to appoint OICs who will hold office until 30 June 2013, so the legislative mandate must be respected

Issues:I.    Whether the 1987 Constitution mandates the synchronization of elections (YES, impliedly)II.   Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution (NO) III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite

 A.   Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054? (NO)B.   Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws? (YES)C.   Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution? (YES)

 IV. Whether RA No. 10153 violates the autonomy granted to the ARMM (NO) V.   Whether the grant of the power to appoint OICs violates the Constitution (NO) VI. Whether the proposal to hold special elections is constitutional and legal.

Held/Ratio:The SC dismissed the petitions and upheld the constitutionality of RA 10153 in toto

I.    Whether the 1987 Constitution mandates the synchronization of elections  (YES, impliedly)

Respondent OSG’s argument: - the Constitution mandates synchronization, citing the Transitory Provisions of the Constitution (Art XVIII Secs 1, 2, 5)

Court:- agreed with the OSG- such Transitory Provisions show the intent of the framers for Congress to synchronize national and local elections. Such can also be

seen from the ConCom deliberations- The objective behind setting a common termination date for all elective officials, done among others through the shortening the

terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections – whether national or local – to once every 3 years

- Osmena vs COMELEC: from the wording of the above-mentioned Sections, the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their office tenure on the same day or occasion.

- The ARMM elections should be included among the elections to be synchronized as it is a “local” election based on the wording and structure of the Constitution. The SC used the principal in statutory construction that the words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails (People vs Derilo)

- “local” ordinarily means something that primarily serves the needs of a particular limited district, often a community or minor political subdivision. ARMM regional elections for governor, vice-gov, and regional assembly representatives are thus covered

- Under the Consti, autonomous regions are considered one of the forms of local governments, as evident from Article X entitled “Local Government,” especially Secs 15-21. Sec 1 Art X specifically provides that an autonomous region is considered a form of local government

II.   Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution (NO)Petitioner’s arguments:

- RA 10153 is invalid for its alleged failure to comply with Consti Section 26(2), Article VI (which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bill’s immediate enactment)

- no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met

Court:- Tolentino vs Sec of Finance: The presidential certification dispensed with the requirement not only of printing and distribution but

also that of three readings on separate days- Here, records show that the President wrote to the Speaker of the HReps to certify the necessity of the immediate enactment of a law

synchronizing the ARMM elections with the national and local elections. - The Tolentino case also said that “the factual basis of presidential certification of bills, which involves doing away with procedural

requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review”, i.e., not a judicial review

- Both the HReps and the Senate recognized the President’s certification so they enacted RA 10153- There is nothing to justify judicial review here- In any case, despite the President’s certification, the two-fold purpose that underlies the requirement for three readings have been

met: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process. Legislative deliberations show that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views

 III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite A.   Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054? (NO)

Petitioner’s argument:

- RA 9333 and RA 10153 did not comply with RA 9054 Art XVII Sec 1 (reamendment or revision by Congress upon 2/3 separate voting of Senate and HReps) and Sec 3 (amendment effective only when approved by a majority vote in plebiscite)

Court:- There is no amendment of RA 9054- RA 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. There is then a

need for Congress to fix the date of the subsequent ARMM elections, which it did in RA 9333 and RA 10153. They are not amendments; they only filled a gap in RA 9054

- ARMM-related legislations (RA 7647, RA 8176, RA 8746, RA 8753, and RA 9012) were all enacted to fix the dates of the ARMM elections independent of the organic acts. We can thus see the intent of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts 

B.   Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws? (YES)

- Assuming that RA 9333 and RA 110153 did amend RA 9054, the supermajority (2/3) voting requirement in RA 9054 Art XVII Sec 1 is unconstitutional as it gives RA 9054 the character of an irrepealable law by requiring more than what the Constitution demands.

- Consti Art VI Sec 16(2) only requires that as long as majority of the members of the HReps or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts.

- RA 9054 requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend it. This is higher than what the Consti requires.

- City of Davao vs GSIS: “Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience”

C. Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution? (YES)

- Consti Art X Sec 18 only states that the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. Thus, only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act – require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region’s judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution

- The date of the ARMM elections is not an amendment that would require a plebiscite to be effective

 IV. Whether RA No. 10153 violates the autonomy granted to the ARMM (NO)

- synchronization of national and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections

- RA 7166 is already existing and it provides for the synchronization of local elections with the national and congressional elections- What RA 10153 did is just to reiterate this synching- To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMM’s regular elections (which should have

been held in August 2011 based on RA 9333) with the fixed schedule of the national and local elections (fixed by RA 7166 to be held in May 2013)

During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA 9054, until those elected in the synchronized elections assume office;(2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA 10153, also until those elected in the synchronized elections assume office.

 V.   Whether the grant of the power to appoint OICs violates the Constitution (NO)

As to the three options:

First Option: Holdover Option – Unconstitutional - Violates Consti Art X Sec 8 (The term of office of elective local officials… shall be three years)- Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the

Constitution; they cannot extend their term through a holdover.- The Consti must prevail over other laws, as in this case re: term of local officials- Osmena vs COMELEC: the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the

Constitution, extend the term of the incumbent beyond the period as limited by the Constitution- There is the argument that the holdover period is effectively another term mandated by Congress, the net result is for Congress to

create a new term and to appoint the occupant for the new term. This is a circumvention of the Consti and cannot be allowed. Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President

- There are cases where the Court ruled that the elective officials could hold on to their positions in a hold over capacity (Sambarani v. COMELEC, Adap v. Comelec, and Montesclaros v. Comelec) but they are only to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution

- This case is regarding ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly – whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution.

- Assuming that the holdover is permissible (RA 9054 Art VII Sec 7), the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident

- Congress, in passing RA 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA 9054 by completely removing this provision

Second Option: Holding of Special Election – COMELEC has no authority to order such- The power to fix the date of elections is essentially legislative in nature (Sec 8 Art VI; Sec 4(3) Art VII, Sec 3 Art X)- The foregoing provisions support the conclusion that no elections may be held on any other date for the positions of President, Vice

President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power

- Congress has already decided to postpone the scheduled August 2011 elections and setting another date – May 13, 2011 – for regional elections synchronized with the presidential, congressional and other local elections. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections.

- The judiciary cannot contravene this legislative act because doing so would constitute judicial legislation- the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited

to enforcing and administering all laws and regulations relative to the conduct of an election. Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant. There is only one case under BP 881 Secs 5 and 6 which allow the COMELEC to postpone elections, and that is when there is a failure of elections due to (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision

- the postponement of the ARMM elections is by law, and is pursuant to the constitutional mandate of synchronization of national and local elections.

- Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office.

- Not even Congress and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the constitutionally mandated three years as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena.

Third Option: President to appoint OICs – valid- the power to appoint is essentially executive in nature, and the limitations on or qualifications to the exercise of this power should be

strictly construed; these limitations or qualifications must be clearly stated in order to be recognized- the appointing power is embodied in Section 16, Article VII of the Constitution. This provision classifies into 4 groups the officers that

the President can appoint

o First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution;

o Second, all other officers of the government whose appointments are not otherwise provided for by law;o Third, those whom the President may be authorized by law to appoint; ando Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone

- This case falls under the third category. The President’s authority to appoint OICs comes from RA 10153- Petitioner’s argument: the Constitution requires that the ARMM executive and legislative officials to be “elective and representative

of the constituent political units.”- Court: this problem arose only from a mistaken appreciation of the law. RAN 10153 does not amend RA 9054 in terms of structure of

government. What RA No. 10153 in fact only does is to “appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.” This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections. In short, RA 10153 provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail

- The proper question is: given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?

- The answer is NO. Synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the community’s choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units and the adjustments of sub-provinces to the status of provinces. These measures, too, are used in light of the wider national demand for the synchronization of elections

- The “representative” character of the chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the “elective” aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications.

Other Constitutional Concerns raised in the oral arguments- Argument: upholding the constitutionality of RA 10153 would set a dangerous precedent of giving the President the power to cancel

elections anywhere in the country, thus allowing him to replace elective officials with OICs.o NO. The Congress here was the one who “cancelled” the elections. If RA 10153 cancelled the regular August 2011 elections, it

was for a very specific and limited purpose – the synchronization of elections. It was a temporary means to a lasting end – the synchronization of elections.

- Argument: Vacuum of governance in the ARMM for 21 months

o Mindanao history is fraught with violence. It would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-Governor and a fully functioning Regional Legislative Assembly can be done away with even temporarily. The appointment of OICs under the present circumstances is an absolute necessity.

o Menzon vs Petilla: President has the power to appoint OICs. Especially here, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise.

- Argument: while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM

o this is contrary to a basic principle in constitutional construction – ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole, and one mandate should not be given importance over the other except where the primacy of one over the other is clear (Ang-Angco vs Castillo)

o Synchronization is an interest that is as constitutionally entrenched as regional autonomy. Congress reconciled these two in enacting RA 10153. Regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances.  

- Argument: ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its own electoral processes from the rough and tumble of nationwide and local elections.

o while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination.

o ConCom delibs on Section 17, Article X: autonomy is a measure of self-government within the larger political framework of the nation

o the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution. 

  

Dissent by Carpio

Position: - RA 9333 is constitutional. - RA 10153, as to the synchronization, is constitutional. However, the President’s power to appoint OICs (Secs 3-5) in place of elective

ARMM officials, is unconstitutional.

- RA 9054 Sec 7(1) Art VII, authorizing ARMM elective officials to hold over until the election and qualification of their successors, and Secs 1 and 3 Art XVII – unconstitutional

Ratio:- Congress found sufficient in passing RA 10153 the factual bases cited by Pres. Aquino certification of HB 4146 and SB 2756 as

emergency measures. There is no reason to depart from Tolentino vs Sec of Finance- RA 9333 and RA 10153 supplement RA 9054. RA 9054 only provided for the first ARMM elections in Sec 7 Art XVIII. Congress, in the

exercise of its plenary legislative power, provided for the scheduling of the succeeding regular elections by enacting RA 9333. RA 10153 was enacted pursuant to the same power. The original ARMM Organic Act, RA 6734, also only confined itself to the first regular elections, so there arose the issue of the succeeding elections that needed to be legislated on by Congress. RA 9333 and RA 10153 are therefore separate, stand-alone statutes that do not amend any provision of RA 9054.

- RA 9140 pertains only to the fixing of the date of the plebiscite for (Sec 1) and the schedule of the first regular ARMM elections (Sec 2) of RA 9054. After the plebiscite and the elections were held in 2001, RA 9140 is rendered functus officio and thus there is no need to review its validity

- Assuming that RA 9333 and RA 10153 indeed amended RA 9054 as petitioners vigorously insist, there is still no need to comply with the requisites laid down in RA 9054 for laws amending said law, because the requirements are unconstitutional. The 2/3 supermajority vote (both houses voting separately, 2/3 majority required) requirement is unconstitutional as it requires more votes than the Consti (Sec 16 (2), Art VI which requires only a simple majority of each house to do business). It also violates the doctrine barring the passage of irrepealable laws as a current Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution. The simple majority requirement was based on practice, so it is almost impossible to get a 2/3 supermajority presence, much less supermajority vote. The autonomy of ARMM does not extend to shackling Congress

- A plebiscite is mandatory only in approving creation or expansion of the ARMM (Consti Art X, Secs 10 as to creation and 18 as to altering boundaries of LGUs). RA 9054, although it mandates in Sec 3 Art XVII the holding of a plebiscite to approve any amendment to or revision of its provisions, cannot be literally interpreted. Such plebiscite requirement must be limited to the creation or expansion of ARMM, otherwise, it would expand the scope of the subject matter that the Constitution requires to be submitted to a plebiscite, which is not allowed.

- ARMM elections can be synchronized with existing national and local elections as ARMM is an LGU falling under Art X of the Consti. That Article on Local Governments provide for the term and election of local officials.

- However, Congress’ power to synchronize national and local elections does not include the appointment of OICs in place of elective officials. The positions declared by the Consti as elective must be filled up by election, not by appointment. Appointment to these elective offices will violate the Constitution

- RA 10153 Secs 3-5 (power of President to appoint OICs in the ARMM) are unconstitutional. ARMM is an LGU to be headed by elected officials. There is no bar to holding a special election for the 21-month gap caused by the synchronization. RA 6734, the ARMM Organic Act, as amended by RA 9054, mandated popular election for the executive and legislative officials of ARMM, as the implementation of Art X Sec 18 of the Consti. RA 10153 would, in effect, negate the implementation in RA 9054 by making the

executive and legislative offices in the ARMM appointive. Though said provisions of RA 10153 mirrored the appointive powers of Pres. Cory in the Freedom Constitution, the factual circumstances are different now and such cannot be applied in the present case.

- Although Art VII Sec 16 gives the President the power to appoint, he may only exercise that on appointive offices, not elective ones. He may however appoint an OIC ARMM Governor based on Sec 4 Art X of the Consti (general supervision powers) pending the holding of special local elections to keep the essential government services functioning. There is no absolute necessity to appoint OICs in the ARMM Regional Legislative Assembly as there is an automatic reenactment of the ARMM bdget is the Regional Legislative Assembly fails to pass the appropriation bill.

- Sec 7(1) Art VII of RA 9054 authorizes the hold over of ARMM officials until the successors are elected. That is unconstitutional as Sec 8 Art X of the Consti provides that the term of office of elective local officials (except barangay officials) is limited to three years. RA 9054 is thus an indirect contravention of the constitution as it extends the term of the ARMM officials. We follow the case of Osmeña which said that “it is not competent of the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the [C]onstitution has…prescribed the term.” The reason is twofold: First, the power of Congress to fix the terms of public offices stems from (1) its inherent power to create such public offices or (2) a constitutionally delegated power to that effect. Thus, if a public office is created by the Constitution with a fixed term, or if the term of a public office created by Congress is fixed by the Constitution, Congress is devoid of any power to change the term of that office. Holdovers are also contrary to democratic republicanism as they indirectly contravene the holding of periodic elections. The other laws postponing the elections in the ARMM had holdover provisions but that is immaterial now because the validity of those laws were never challenged.

- The basis for holding special elections is Sec 5 BP 881, which says that COMELEC can hold special elections when for any serious cause, the holding of an election becomes impossible in any political subdivision

Dissent by Velasco

Position- I agree with the Carpio dissent that Congress’ power to synchronize elections does not include the power to authorize the President

to appoint officers-in-charge in place of elective officials- There should be a holdover of the ARMM officials pending the holding of the special elections and the election and qualification of

their successors. The appointment of an OIC is unconstitutional.

Ratio - RA 9054 Sec 7(1) Art VII provides for the holdover of the incumbent. The decision used the case of Osmeña vs COMELEC to declare

that provision unconstitutional. However, the issue in that case is about the desynchronization of elections, not the holdover. Thus, the discussion on holdover is only obiter.

- Assuming that such was not an obiter, still, the present case and Osmeña do not have the same factual circumstances, so Osmeña cannot be applied based on stare decisis.

o In Osmeña, RA 7065 provided for synchronization of the national and local elections in 1995 but it also prescribed that the national elections will be held in May, 1992 while the local elections will be held in November 1992. There is also no provision

for the President to appoint OICs. Meanwhile, in RA 10153, the law provided for synchronization in May 2013 but suspended the elections scheduled in August, 2011 and authorized the President to appoint OICs.

o the Court in Osmeña said that the holdover of elective officials espoused by RA 7065 violated Sec. 2, Art. XVIII and Sec. 8, Art. X of the Constitution by adopting and applying certain selected American jurisprudence as cited in AmJur and CJS. However, the cited American cases are actually inapplicable to Osmeña and the present case as they say that in the absence of constitutional restrictions, outgoing officers are entitled to holdover until such time as their successors will qualify

- Many American cases laid down the rule allowing holdover of officials beyond the term set by the Constitution as long as there is no constitutional proscription against it. The Osmeña case did not completely quote AmJur. Osmeña quoted only “it is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term” which has no application to the instant case, because the cases upon which it is anchored are factually dissimilar to the present case. The second sentence in the annotation saying that “when the legislature has the power to fix the commencement of the term, a provision for holding over under such circumstances is not in violation of a constitutional provision that the term of no officer shall be extended to a longer period than that for which he is elected or appointed, and such a provision … is not violative of a constitutional provision that the legislature shall not create any office, the tenure of which shall be longer than a prescribed number of years ...” however applies squarely to RA 9054 Sec. 7, Art. VII

- RA 6734 did not provided for the commencement of the term of the Governor, Deputy Governor and the Members of the Regional Legislative Assembly of ARMM. Congress thus enacted RA 9054 to fix the date of the elections. That law also provided for the holdover of said officials until their successors shall have been duly elected and qualified. Following the jurisprudence in CJS, the holdover provision of RA 9054 is valid

- neither Sec. 2, Art. XVIII or Sec. 8, Art. X of the Constitution contain any provision against a holdover by an elective local official of his office pending the election and qualification of his successor. Thus, the Constitution does not bar a holdover situation. Accordingly, Congress may legislate what elective positions can be accorded holdover privilege of the incumbent officials.

- The Constitution also gave the legislature (1) the power to create the executive and legislative offices in the ARMM, with the sole limitation that they be elective and representative, and therefore, (2) the authority to determine the commencement of the term of the ARMM local officials. Hence, in conformity with the American cases as cited in CJS, the holdover clause in Sec. 7(1), Art. VII of RA 9054 is constitutional

- AmJur also provides that a holdover occasioned by a legislation postponing an election, which is not passed for the sole purpose of extending official terms but which merely effects an extension as an incidental result, is valid

- A holdover is not technically an extension of the term of the officer but a recognition of the incumbent as a de facto officer, which is made imperative by the necessity for a continuous performance of public functions. He is not a de jure officer during the holdover period as he holds the office only temporarily until the vacancy can be filled by competent authority

- Adap vs COMELEC: the application of the holdover principle preserves continuity in the transaction of official business and prevents hiatus in government pending the assumption of a successor into office

- RA 9054, by providing a holdover of the incumbent officials did NOT extend the term of said officials as it merely provided for a procedure in case the scheduled elections for one reason or another do not push through and COMELEC resets the elections pursuant to its power under Sec. 5 of the Omnibus Election Code (BP 881)

- the power of holdover in the imagined statute does NOT lengthen the prescribed terms of offices of said officials under the Constitution, unless said law also postpones the elections as in RA 10153. In such a case, I agree that the postponement of the elections and the attendant holdover provision are clear contraventions of the Constitution. In RA 9054, however, the elections are fixed but with the corollary holdover provision in case elections are not held.

- while the LGC does not authorize the holdover of elective officials, there is nothing to prevent Congress from subsequently enacting a law that effectively amends the general law for local governments and empowers, pursuant to its law making power under the Constitution, local officials to hold over in case of failure of elections or in case all the elective officials failed to qualify. RA 9054 did not violate the Constitution, because there is no prohibition in the Constitution against the holdover of elective officials. Consequently, Congress by law may provide for holdover as it did in RA 9054 and other laws postponing elections in the ARMM, namely, RA 7647, RA 8746, RA 8753, RA 8953 and RA 9140.

- To allow the President to appoint the ARMM Governor pending the holding of the special elections is invalid for violating the Constitutional mandate on the ARMM organic act to make the executive and legislative officers be elective positions (Art X Sec 18(1)). Any appointment of a governor is invalid in view of this Constitutional mandate. Art VII Sec 16 provides that the appointing power of the President is limited only to appointive offices. Thus, Secs 3-5 of RA 10153 is unconstitutional as it deprives the ARMM electorate of the right to choose their governor and legislator.

- The holdover provision will not affect the elective and representative nature of the contested offices as there are definite periodic elections provided by law, and the holdover is only a stopgap solution

- If we are to ensure democratic values, then the holding over of a duly elected official is undeniably the proper remedial action than the appointment of OICs who were not elected by the people and were merely chosen by the President whose choices may be viewed, rightly or wrongly, as biased, he being the titular head of the administration political party.

- the appointment of a person by the President thwarts the popular will by replacing the person who has been previously elected by the ARMM electorate to govern them. On the other hand, an approval of the holdover of the incumbents pending the election and qualification of their successsors is a ratification of the constitutional right of the people of the ARMM to select the their own officials

- the authority granted the President to appoint the ARMM Governor cannot be excused by an expanded interpretation of the President’s power of “general supervision” over local governments as it is basic that “general supervision” does NOT authorize the President or any of his alter egos to interfere with local affairs (Pimentel vs Aguirre)

February 28, 2012 Resolution- Synchronization mandate includes ARMM elections

o While the Constitution does not expressly instruct Congress to synchronize the national and local elections, the intention can be inferred from the following provisions of the Transitory Provisions (Article XVIII) of the Constitution

o ConCom delibs on these provisions contemplated the 1992 elections as the first actual synchronized elections from the President to the municipal officials. After 1992, there shall be an election every three years

o We reiterate Osmena vs COMELEC: the Constitution has mandated synchronized national and local electionso The ARMM is not mentioned specifically in the transitory provisions because it was not yet created at that time, but that does

not mean that it is not covered by said constitutional provisions. The Consti is a “continuing instrument to govern”

o Besides, Consti Art X Sec 1 on Local Government shows the intention of the Consti to classify autonomous regions such as ARMM as local governments

o That the Constitution mentions only the “national government” and the “local governments,” and does not make a distinction between the “local government” and the “regional government,” is particularly revealing, betraying as it does the intention of the framers of the Constitution to consider the autonomous regions not as separate forms of government, but as political units which, while having more powers and attributes than other local government units, still remain under the category of local governments. Since autonomous regions are classified as local governments, it follows that elections held in autonomous regions are also considered as local elections.

o Using verba legis (“that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed.”), “local” (something “that primarily serves the needs of a particular limited district, often a community or minor political subdivision”) in “local elections” would cover ARMM

o the fact that the ARMM possesses more powers than other provinces, cities, or municipalities is not enough reason to treat the ARMM regional elections differently from the other local elections. Ubi lex non distinguit nec nos distinguire debemus.  When the law does not distinguish, we must not distinguish

 - RA No. 10153 does not amend RA No. 9054

o RA 9054 only provides for the first ARMM elections, and not the succeeding regular ARMM elections. In providing for the date of the regular ARMM elections, RA 9333 and RA 10153 clearly do not amend RA 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the first election, RA 9333 and RA 10153 merely filled the gap left in RA 9054.

o It cannot be implied from RA 9054 that the succeeding elections are to be held three years after the date of the first ARMM regional elections because this would be enlarging the scope of the statute.

o Since RA 10153 does not amend, but merely fills in the gap in RA 9054, there is no need for RA 10153 to comply with the amendment requirements set forth in Article XVII of RA 9054.

- Supermajority vote requirement makes RA No. 9054 an irrepealable lawo the supermajority vote requirement set forth in Section 1, Article XVII of RA 9054 is unconstitutional for violating the

principle that Congress cannot pass irrepealable laws.o Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court has the duty to strike

down such act for interfering with the plenary powers of Congress.o Duarte vs Dade: This (current) legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in

advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.o each House of Congress has the power to approve bills by a mere majority vote, provided there is quorum. In requiring all

laws which amend RA 9054 to comply with a higher voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA 9054, clearly violated the very principle which we sought to establish in Duarte.

o We highlight an important point in the Carpio dissent: “Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress’ amendatory

powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution.”

- Plebiscite requirement in RA No. 9054 overly broado Section 18, Article X of the Constitution provides that “[t]he creation of the autonomous region shall be effective when

approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose” This means that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act[21] – require ratification through a plebiscite.

o While we agree with the petitioners’ underlying premise that sovereignty ultimately resides with the people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the petitioners’ interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite requirement before becoming effective, this would lead to impractical and illogical results – hampering the ARMM’s progress by impeding Congress from enacting laws that timely address problems as they arise in the region, as well as weighing down the ARMM government with the costs that unavoidably follow the holding of a plebiscite

o Presidential appointments of OICs under Sec 3 of RA 10153 does not change the basic structure of the ARMM regional government, and thus does not have to be ratified by a plebiscite

- Unconstitutionality of the holdover provisiono The clear wording of Section 8, Article X of the Constitution expresses the intent of the framers of the Constitution to

categorically set a limitation on the period within which all elective local officials can occupy their offices. We have already established that elective ARMM officials are also local officials; they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover capacity. Short of amending the Constitution, Congress has no authority to extend the three-year term limit by inserting a holdover provision in RA 9054. Thus, the term of three years for local officials should stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by Congress.

o Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA 9054), the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.

o Congress, in passing RA 10153 and removing the holdover option, has made it clear that it wants to suppress the holdover rule expressed in RA 9054. Congress, in the exercise of its plenary legislative powers, has clearly acted within its discretion when it deleted the holdover option, and this Court has no authority to question the wisdom of this decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this Court, to decide how to fill the vacancies in the ARMM regional government which arise from the legislature complying with the constitutional mandate of synchronization.

 - COMELEC has no authority to hold special elections

o Section 5 and Section 6 of BP 881 address instances where elections have already been scheduled to take place but do not occur or had to be suspended because of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and other analogous circumstances.

o  In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of synchronization of national and local elections. Obviously, this does not fall under any of the circumstances contemplated by Section 5 or Section 6 of BP 881. 

o RA 10153 has already fixed the date for the next ARMM elections and the COMELEC has no authority to set a different election date.

o  Even assuming that the COMELEC has the authority to hold special elections, and this Court can compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly elected officials in order to synchronize the ARMM elections with the May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials to three years.         

- President’s authority to appoint OICso The power to appoint has traditionally been recognized as executive in nature based on Section 16, Article VII of the

Constitutiono This is an improvement from the 1935 Consti counterpart: while in the 1935 Constitution, the various appointments the

President can make are enumerated in a single sentence, the 1987 Constitution enumerates the various appointments the President is empowered to make and divides the enumeration in two sentences. Thus, in the 1987 Consti, there are 4 groups of appointees (please see discussion in the 2011 case)

o Any limitation on or qualification to the exercise of the President’s appointment power should be strictly construed and must be clearly stated in order to be recognized. Given that the President derives his power to appoint OICs in the ARMM regional government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution; the President’s appointment power thus rests on clear constitutional basis.

o There is no incompatibility between the President’s power of supervision over local governments and autonomous regions, and the power granted to the President, within the specific confines of RA 10153, to appoint OICs.

  - RA No. 10153 as an interim measure

o Congress enacted RA 10153 primarily to heed the constitutional mandate to synchronize the ARMM regional elections with the national and local elections. To do this, Congress had to postpone the scheduled ARMM elections for another date, leaving it with the problem of how to provide the ARMM with governance in the intervening period, between the expiration of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

o we have to judge RA 10153 by the standard of reasonableness in responding to the challenges brought about by synchronizing the ARMM elections with the national and local elections. In other words, “given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?”

- Executive is not bound by the principle of judicial courtesyo Petitioner questions the  propriety of the appointment by the President of Mujiv Hataman as acting Governor and Bainon

Karon as acting Vice Governor of the ARMM. They argue that since our previous decision was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the parties, the President, in recognition of the principle of judicial courtesy, should have refrained from implementing our decision until we have ruled with finality on this case.

o the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper for a lower court to suspend its proceedings for practical and ethical considerations. In other words, the principle of “judicial courtesy” applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court or court of origin. Consequently, this principle cannot be applied to the President, who represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of separation of powers, on which our whole system of government is founded upon

o the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot, have the effect of making our ruling any less effective or binding. Regardless of how close the voting is, so long as there is concurrence of the majority of the members of the en banc who actually took part in the deliberations of the case, a decision garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc and must be respected as such.

      Digested by: MoralesMB

LOCGOV - #38Case (Ordillo vs COMELEC)

Doctrine: Congress never intended that a single province may constitute the autonomous region.

Facts: People of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao and the city of Baguio cast their votes in a

plebiscite held pursuant to RA6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region"

Results of the plebiscite showed that the creation of the Region was approved by a majority of 5,889 votes in only the Ifugao Province and was overwhelmingly rejected by 148,676 votes in the rest of the provinces and city above-mentioned

COMELEC issued Resolution No. 2259 stating that the Organic Act for the Region has been approved and/or ratified by majority of the votes cast only in the province of Ifugao

Secretary of Justice issued a memorandum for the President reiterating the COMELEC resolution and providing that, the province of Ifugao being the only province which voted favorably, it alone, legally and validly constituted the CAR

Congress enacted RA 6861 setting the elections in the CAR of Ifugao Even before the issuance of the COMELEC resolution, the Executive Secretary issued a Memorandum granting authority to wind up

the affairs of the Cordillera Executive Board and the Cordillera Regional Assembly created under EO 220 Ordillo et al then filed a petition with COMELEC to declare the non-ratification of the Organic Act for the Region President issued AO 160 declaring that the Cordillera Executive Board and Cordillera Regional Assembly and all the offices created

under EO 220 were abolished in view of the ratification of the Organic Act

Petitioner’s arguments: Relief: (1) declare null and void COMELEC resolution No. 2259, the memorandum of the Secretary of Justice, the memorandum of the

Executive Secretary, Administrative Order No. 160, and Republic Act No. 6861 and prohibit and restrain the respondents from implementing the same and spending public funds for the purpose and (2) declare Executive Order No. 220 constituting the Cordillera Executive Board and the Cordillera Regional Assembly and other offices to be still in force and effect until another organic law for the Autonomous Region shall have been enacted by Congress and the same is duly ratified by the voters in the constituent units

Position: There can be no valid Cordillera Autonomous Region in only one province Legal Basis: Constitution and Republic Act No. 6766 require that the said Region be composed of more than one constituent unit

Respondent’s arguments: Position: Ifugao alone may validly constitute CAR Jurisprudence: Abbas vs COMELEC. The Abbas case laid down the rate on the meaning of majority in the phrase "by majority of the

votes cast by the constituent units called for the purpose" found in the Constitution, Article X, Section 18. It stated: ". . . [I]t is thus clear that what is required by the Constitution is simple majority of votes approving the Organic Act in individual constituent units and not a double majority of the votes in all constituent units put together, as well as in the individual constituent units” hence, ". . . [i]t is believed that the creation of the Cordillera Autonomous Region (CAR) as mandated by R.A. No. 6766 became effective upon its approval by the majority of the votes cast in the province of Ifugao. And considering the proviso in Section 13 (a) that only the provinces and city voting favorably shall be included in the CAR, the province of Ifugao being the only province which voted favorably — can, alone, legally and validly constitute the CAR."

Legal Basis: Constitution, Article X, Section 18

Issue/s: Whether or not the province of Ifugao alone may validly constitute CAR?

Held/Ratio: NO Violative of the Constitution

o The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region primarily because Article X, Section 15 of the 1987 Constitution is clear that: "There shall be created autonomous regions in Muslim Mindanao and in the Cordillera consisting 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 this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines". The keywords — provinces, cities, municipalities and geographical areas connote that "region" is to be made up of more than one constituent unit. The term "region" used in its ordinary sense means two or more provinces. Ifugao is a province by itself. To become part of a region, it must join other provinces, cities, municipalities, and geographical areas. It joins other units because of their common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. The Constitutional requirements are not present in this case

Contrary to the language and intent of RA 6766o Also, a reading of the provisions of Republic Act No. 6766 strengthens the petitioner's position that the Region cannot be

constituted from only one province. Article III, Sections 1 and 2 of the Statute provide that the Cordillera Autonomous Region is to be administered by the Cordillera government consisting of the Regional Government and local government units. Congress thus never intended that a single province may constitute the autonomous region while Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative power in the Cordillera Assembly whose members shall be elected from regional assembly districts apportioned among provinces and the cities composing the Autonomous Region. If we follow the respondent's position, the members of such Cordillera Assembly shall then be elected only from the province of Ifugao creating an awkward predicament of having two legislative bodies — the Cordillera Assembly and the Sangguniang Panlalawigan — exercising their legislative powers over the province of Ifugao. And since Ifugao is one of the smallest provinces in the Philippines, population-wise, it would have too many government officials for so few people. Article XII, Section 10 of the law creates a Regional Planning and Development Board composed of the Cordillera Governor, all the provincial governors and city mayors or their representatives, two members of the Cordillera Assembly, and members representing the private sector. The Board has a counterpart in the provincial level called the Provincial Planning and Development Coordinator. If it takes only one person in the provincial level to perform certain functions while on the other hand it takes an entire Board to perform almost the same tasks in the regional level, it could only mean that a larger area must be covered at the regional level. The respondent's theory of the Autonomous Region being made up of a single province must,

therefore, fail. Article XXI, Section 13 (B) (c) alloting the huge amount of Ten Million Pesos (P10,000,000.00) to the Regional Government for its initial organizational requirements cannot be construed as funding only a lone and small province. These sections of Republic Act No. 6766 show that a one province Cordillera Autonomous Region was never contemplated by the law creating it.

The Abbas case is not applicable. It established the rule to follow on which provinces and cities shall comprise the autonomous region in Muslim Mindanao which is, consequently, the same rule to follow with regard to the autonomous region in the Cordillera. However, there is nothing in the Abbas decision which deals with the issue on whether an autonomous region, in either Muslim Mindanao or Cordillera could exist despite the fact that only one province or one city is to constitute it

Digested by: Sabrina Louise M. De Guzman

LOCGOV - #039

Cordillera Broad Coalition vs. COA

Petition to assail constitutionality of EO 220

The Constitution outlines a complex procedure for the creation of an autonomous region in the Cordilleras. A Regional Consultative Commission shall first be created. The President shall then appoint the members of a Regional Consultative Commission from a list of nominees from multi-sectoral bodies. The commission shall assist the Congress in preparing the organic act for the autonomous region. The first Congress under the 1987 Constitution within eighteen months shall pass the organic act from the time of its organization and enactment into law. Thereafter there shall be held a plebiscite for the approval of the organic act. Only then, after its approval in the plebiscite, shall the autonomous region be created.

Petitioners: Cordillera Broad Coalition, Yaranon and Bautista assisted by their spouses, Brett and Hamada

Respondents: COA, Exec. Secretary Macaraig, Sec. of Finance Hon. Jayme, Sec. of Budget and Management Carague, OIC National Treasurer Cajucom

Facts:

1. April 1986: Fr. Conrado M. Balweg, S.V.D., broke off on ideological grounds from the Communist Party of the Philippines (CPP) and its military arm the New People's Army (NPA).

2. President Aquino called on all revolutionary forces to a peace dialogue. The CPLA heeded this call of the President. 3. September 13, 1986: After the preliminary negotiations, President Aquino and some Cabinet members flew to Mt. Data in the

Mountain Province and signed with Fr. Balweg (as Commander of the CPLA) and Ama Mario Yag-ao (as President of Cordillera Bodong Administration, the civil government of the CPLA) a ceasefire agreement that signified the cessation of hostilities.

4. The parties arrived at an agreement in principle: The Cordillera people shall not undertake their demands through armed and violent struggle but by peaceful means.

5. March 27, 1987: Ambassador Pelaez (acting as Chief Negotiator of the government) flew to the Mansion House, Baguio City, and signed with Fr. Balweg (as Chairman of the Cordillera panel) a joint agreement.

6. Pursuant to the above joint agreement, EO220 was drafted by a panel of the Philippine government and of the representatives of the Cordillera people.

7. July 15, 1987: President Corazon C. Aquino signed the joint draft into law, known now as EO220.8. EO220 created the Cordillera Administrative Region (CAR), which covers the provinces of Abra, Benguet, Ifugao, Kalinga-Apayao and

Mountain Province and the City of Baguio.9. Petitioners filed petitions to assail the constitutionality of EO220. 10. During the pendency of this case, RA6766 entitled "An Act Providing for an Organic Act for the Cordillera Autonomous Region," was

enacted and signed into law. The Act recognizes the CAR and the offices and agencies created under EO220 and its transitory nature is reinforced in Art. XXI of RA 6766.

1. Issue:

Petitioner

By issuing EO220, the President, in the exercise of her legislative powers prior to the convening of the first Congress under the 1987 Constitution, has virtually pre-empted Congress from its mandated task of enacting an organic act and created an autonomous region in the Cordilleras.

SC: EO220 does not create the autonomous region contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic act and the creation of an autonomous region. In short, it prepares the ground for autonomy. As

the creation of an autonomous region will take time, the President has deemed it fit to provide for some measures to address the urgent needs of the Cordilleras.

CAR is "the interim autonomous region in the Cordilleras.”

SC: The Constitution provides for a basic structure of government in the autonomous region composed of an elective executive and legislature, and special courts with personal, family and property law jurisdiction. Using this as a guide, we find that EO220 did not establish an autonomous regional government. It created a region, covering a specified area, for administrative purposes with the main objective of coordinating the planning and implementation of programs and services.

2. Issue: EO220 contravenes the Constitution by creating a new territorial and political subdivision.

SC: CAR is not a public corporation or a territorial and political subdivision. It does not have a separate juridical personality, unlike provinces, cities and municipalities. Neither is it vested with the powers that are normally granted to public corporations, ex. The power to sue and be sued, the power to own and dispose of property, the power to create its own sources of revenue, etc. CAR was created primarily to coordinate the planning and implementation of programs and services in the covered areas.

3. Issue: The creation of the CAR contravened the constitutional guarantee of the local autonomy for the provinces (Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province) and city (Baguio City) that compose the CAR.

SC: The constitutional guarantee of local autonomy in the Constitution refers to the administrative autonomy of local government units or, the decentralization of government authority. The creation of autonomous regions in Muslim Mindanao and the Cordilleras contemplates the grant of political autonomy and not just administrative autonomy these regions.

Dispositive: Dismissed for lack of merit.

LOCGOV – 40

Bagabuyo vs COMELECDec 8, 2008

Doctrine: The criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay and does not apply to mere legislative apportionement.

Facts: Cagayan de Oro was originally composed of one legislative district. In 2006 RA 9371 increased the CDO’s legislative districts from one to two. For the election of May 2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second district, depending on their place of residence. The constituents of each district would elect their own representative to Congress as well as eight members of the Sangguniang Panglungsod. COMELEC then issued Resolution 7837 implementing RA 9371.

Bagabuyo assailed the validity of the said law and he went immediately to the Supreme Court. He was contending that the 2nd district was created without a plebiscite which was required by the Constitution.

Petitioner’s arguments: Nature and relief prayed for: Petition for certiorari, prohibition, and mandamus,with a prayer for the issuance of a temporary restraining order and a writ of preliminary injunction to prevent the COMELEC from Resolution No. 7837 on the ground that Republic Act No. 9371  - the law that Resolution No. 7837 implements - is unconstitutional

Position:1. RA 9371 is unconstitutional because it constitutes as a creation, division, merger, abolition or substantial alteration of boundaries of

cities under Section 10, Article X of the Constitution which requires that a plebiscite be held.2. RA 9371 violates the principle of equality of representation. The distribution of the legislative districts is unequal. District 1 has only

93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of rural barangays while District 2 is composed mostly of urban barangay.

Respondent’s arguments:

 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases assailing the constitutionality of a statute;

2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution and was not in any way create, divide, merge, bolish, or substantially alter the boundaries of Cagayan de Oro.

Issue/s:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be dismissed on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro City, or does it involve the division and conversion of a local government unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

Held/Ratio:

1)The case was considered as sufficiently important as to constitute an exception to the hierarchy of courts rule.

2) RA 9371 merely provides for legislative re-apportionment and thus a plebiscite is not required in the case at bar.

RA 9371 merely increased the representation of Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; the criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of boundaries of a local government unit took place; and R.A. No. 9371 did not bring about any change in Cagayan de Oro’s territory, population and income classification; hence, no plebiscite

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core provision - Section 1 - provides:

SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro is hereby apportioned to commence in the next national elections after the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is not divided along territorial lines. Its territory remains completely whole and intact; there is only the addition of another legislative district and the delineation of the city into two districts for purposes of representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts.

3) No it does not violate the equality of protection clause.

The law clearly provides that the basis for districting shall be the number of the inhabitants of a city or a province, not the number of registered voters therein.

The petitioner, unfortunately, did not provide information about the actual population of Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office which shows thatbarangays comprising Cagayan de Oro's first district have a total population of 254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity in the population sizes of the districts.a The Constitution, however, does not require mathematical exactitude or rigid equality as a standard in gauging equality of representation.In fact, for cities, all it asks is that "each city with a population of at least two hundred fifty thousand shall have one representative," while ensuring representation for every province regardless of the size of its population.

Digested by: Kesterson Kua

LOCGOV - # 41Samson vs. Aguirre (1999)

Doctrine: (see sections in bold and italics)

Facts:

President Ramos signed into law RA 8535, creating the City of Novaliches out of 15 barangays of Quezon City. 

Petitioner’s arguments:

Petitioner Moises S. Samson, incumbent councilor of the first district of Quezon City, seeks the following reliefs:• that RA 8535 be declared unconstitutional, • that the Executive Secretary be enjoined from ordering the implementation of RA 8535• that the COMELEC be enjoined from holding a plebiscite for the creation of the City of Novaliches,• that the Department of Budget and Management be enjoined from disbursing funds for said plebiscite.• issuance of a preliminary injunction or TRO,

According to petitioner, RA 8535 is unconstitutional because:

a) it failed to conform to the criteria established by the Local Government Code particularly, Sections 7, 11(a) and 450(a), as to the requirements of income, population and land area; seat of government; and no adverse effect to being a city of Quezon City, respectively, and its Implementing Rules as provided in Article 11(b)(1) and (2), as to furnishing a copy of the Quezon City Council of barangay resolution; and

b) The said law will in effect amend the Constitution.

Petitioner says that according to the minutes of the public hearings conducted by the Senate Committee on Local Government on the proposed charter of the City of Novaliches, certifications as to income, population, and land area were not presented to Congress during the deliberations, and that there is no certification attesting to the fact that the mother LGU Quezon City would not be adversely affected by the creation of the City of Novaliches

Respondent’s arguments:

Petitioner had the burden of proof to overcome the legal presumption that Congress considered all the legal requirements under the Local Government Code of 1991 in passing R.A. 8535.

Petition is devoid of any pertinent document supporting petitioner’s claim that R.A. 8535 is unconstitutional.

Issue/s:

Is RA 8535 unconstitutional? NO.

Held/Ratio: (Note: include legal basis and jurisprudence)

Every statute is presumed valid. Every law is presumed to have passed through regular congressional processes. A person asserting the contrary has the burden of proving his allegations clearly and unmistakably. (Victoriano v. Elizalde Rope Workers’ Union)

The Local Government Code and Rules and Regulations Implementing the Code provide for the creation of a local government unit or its conversion from one level to another level based on verifiable indicators.

A city shall not be created unless the following requisites on income and either population or land area are present:

(1) Income – an average annual income of not less than (P20,000,000.00), for immediately preceding two (2) consecutive years.(2) Population or land area – not less than (150,000) inhabitants, as certified by NSO; or land area which must be contiguous with an area of at least (100) square kms, as certified by LMB. The territory need not be contiguous if it comprises two (2) or more islands or is separated by a chartered city or cities which do not contribute to the income of the province. The land area requirement shall not apply where the proposed city is composed of one (1) or more islands.

The creation of a new city shall not reduce the land area, population, and income of the original LGU or LGUs at the time of said creation to less than the prescribed minimum requirements.

The bill that eventually became RA 8535 originated in the House of Representatives. Petitioner did not present any proof that no certifications were submitted to the House Committee on Local Government. The presumption stands that the law passed by Congress had complied with all the requisites therefor.

Present during the public hearings held by the Senate Committee on Local Government were resource persons from different government offices including the Bureau of Local Government Finance and the National Statistics Office, who estimated that the income and population requirements will be met and exceeded by the proposed City of Novaliches. There is no need to consider the land area since under the Local Government Code, the proposed city must comply with requirements as regards income and population or land area .  Compliance with either requirement, in addition to income, is sufficient.  The official statements of these resource persons, who were present with other officers armed with official statistics and reference materials, could serve the same purpose contemplated by law requiring certificates. 

The omission of providing for a seat of government is not fatal to the validity of RA 8535. Under Section 12 of the Local Government Code, the City of Novaliches can still establish a seat of government after its creation.  The Code provides:

“SECTION 12.  Government Centers. – Provinces, cities, and municipalities shall endeavor to establish a government center where offices, agencies, or branches of the National Government, local government units, or government-owned or –controlled corporations may, as far as practicable, be located. xxx”

While Section 12 speaks of the site of government centers, such site can very well also be the seat of government, “from where governmental and corporate service shall be delivered.”

Petitioner failed to present any concrete evidence with regard to the alleged adverse effect on Quezon City by the creation of the City of Novaliches.  Quezon City Mayor Ismael Mathay, Jr., was present during the deliberations of the Senate Committee on Local Government, and made no mention of anything concerning such adverse effects. The fact that he did not raise any adverse issue during the public hearings on RA 8535, stressing instead his concern on the matter of inclusion of all Quezon City voters in the plebiscite that would decide the fate of the City of Novaliches, is indicative of the non-existence of such negative issues.   Moreover, in the plebiscite as contemplated on R.A. 8535, all persons concerned will obviously have the opportunity to raise those issues even before they vote on the principal question of the cityhood of Novaliches.

That the Quezon City Council was not furnished a copy of the petition of concerned barangays calling for the creation of the City of Novaliches will also not render invalid RA8535. The Quezon City Council members are obviously aware of the petition.   The matter has been widely publicized in the mass media.

The proposed creation of the City of Novaliches will not result in a prohibited amendment of the Constitution.  The ordinance appended to the Constitution merely apportions the seats of the House of Representatives to the different legislative districts in the country.  Nowhere does it provide that Metro Manila shall forever be composed of only 17 cities and municipalities as claimed by petitioner. 

Digested by: JM Arcilla (for A2015)

LOCGOV – 042Robert Tobias vs. Hon. Benjamin Abalos (1994)

The inhabitants of San Juan were properly excluded from the plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.

Facts: Prior to the enactment of RA 7675 (An Act Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known as

the City of Mandaluyong), the municipalities of Mandaluyong and San Juan belonged to only 1 legislative district. Hon. Ronaldo Zamora, the incumbent congressional rep. of this legislative district, sponsored the bill which eventually became RA

7675. Pres. Ramos signed RA 7675 into law on Feb 9, 1994. A plebiscite was held on Apr 10, 1994, pursuant to the LGC. The people of Mandaluyong were asked whether they approved of the

conversion of the Municipality of Mandaluyong into a highly urbanized city as provided under RA 7675. The turnout at the plebiscite was only 14.41% of the voting population.

Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results, RA 7675 was deemed ratified and in effect.

Petitioner’s arguments:RA 7675, viz. Art. VIII, Sec 49 is unconstitutional for being violative of the Constitution.

1. RA 7675 contravenes with the "one subject-one bill" rule, as enunciated in Art VI, Sec 26(1) of the Constitution (see Held/Ratio #1).2. There is no mention in RA 7675 of any census to show that Mandaluyong and San Juan had each attained the minimum requirement

of 250,000 inhabitants to justify their separation into 2 legislative districts (see Held/Ratio #2).3. RA 7675 violates the present limit on the number of representatives as set forth in Art VI, Sec 5(1) of the Constitution (see Held/Ratio

#3).4. Sec 49 of RA 7675 preempts the right of Congress to reapportion legislative districts (see Held/Ratio #4).5. (TOPICAL) The people of San Juan should have been made to participate in the plebiscite on RA 7675 as it involved a change in their

legislative district (see Held/Ratio #5).6. RA 7675 has resulted in "gerrymandering" (see Held/Ratio #6).

Respondent’s arguments:1. The statutory conversion of Mandaluyong into a highly urbanized city with a population of not less than 250,000 complies with the "1

city-1 representative" proviso in the Constitution: …Each city with a population of at least 250,000, or each province, shall have at least 1 representative" [Art VI, Sec 5(3)].

2. With regards to gerrymandering, Rep. Ronaldo Zamora, the author of RA 7675, is the incumbent rep of the former San Juan/Mandaluyong district. By dividing San Juan/Mandaluyong, Rep. Zamora's constituency has been diminished, which could hardly be considered as favorable to him.

Issue: WON the plebiscite was held pursuant to Sec 10 of the LGC (YES)

Held/Ratio:1. The creation of a separate congressional district for Mandaluyong is not a subject separate and distinct from the subject of its

conversion into a highly urbanized city but is a natural and logical consequence of its conversion into a highly urbanized city.2. It is not required that all laws emanating from the legislature must contain all relevant data considered by Congress in the enactment

of said laws.3. Art VI, Sec 5(1) of the Constitution shows that the present limit of 250 members is not absolute. The Constitution clearly provides

that the House of Rep shall be composed of not more than 250 members, "unless otherwise provided by law." It means that the present composition of Congress may be increased, if Congress itself so mandates through a legislative enactment. Thus, the increase in congressional representation mandated by RA 7675 is constitutional.

4. It was Congress itself which drafted, deliberated upon and enacted RA 7675, including Sec 49 thereof. Congress cannot possibly preempt itself on a right which pertains to itself.

5. (TOPICAL) The principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the plebiscite as they had nothing to do with the change of status of Mandaluyong.

6. Respondent Sol-Gen is correct (see Respondent’s argument’s #2).

Digested by: L Agliam

LOCGOV - 043Municipality of San Narciso Quezon, et. al. v. Hon. Mendez, et. al. (1994)

Doctrine: Curative laws, which in essence are retrospective, and aimed at giving validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with, are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights.

Facts: In 1959, President Garcia issued E.O. 353 creating the municipal district of San Andres Quezon by segregating some barrios from the

municipality of San Narciso. In 1965, E.O. 174 officially recognized San Andres to have gained the status of a fifth class municipality. In 1989, the municipality of San Narciso filed a petition for quo warranto against the officials of San Andres. The petition sought the

declaration of nullity of E.O. 353 and prayed that the local officials be permanently ordered to refrain from performing the duties and functions of their respective offices.

Petitioner’s argument:

E.O. 353 as a presidential act was a clear usurpation of the inherent powers of the legislature (Pelaez v. Auditor General). An unconstitutional act is not a law, creates no office and is inoperative such as though it has never been passed. Sec. 442 (d) of the Loc. Gov. Code (reproduced below) was inapplicable to the municipality of San Andres since the enactment

referred to legally existing municipalities and not to those whose mode of creation had been void ab initio. Even assuming that the enactment of the Loc. Gov. Code converted the municipality of San Andres into a de facto municipality,

petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353 since the petition for quo warranto had been filed prior to the passage of said law.

Respondent’s arguments: Since it was at the instance of petitioner municipality that the municipality of San Andres was given life through E.O. 353, petitioner

municipality is estopped from questioning the creation of the new municipality. Because the municipality of San Andres has been in existence since 1959, its corporate personality could no longer be assailed. Petitioner municipality was not the proper party to bring the action in a petition for quo warranto, the State acting through the

Solicitor General being the proper one. The case has become moot and academic with the enactment of the Loc. Gov. Code, specifically citing Sec. 442 (d):

Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.

Issue/s: WON the enactment of the Loc. Gov. Code converted the municipality of San Andres, which was created by an Executive Order, into a

de facto municipal corporation (YES)

Held: It was only after almost 30 years that the municipality of San Narciso decided to challenge the legality of E.O. 353. In the meantime,

San Narciso and San Andres began and continued to exercise the powers and authority of a duly created local government unit. Public interest demands that a quo warranto proceeding challenging the legality of a political subdivision must be timely raised.

Granting that E.O. 353 was void for being an unconstitutional delegation of legislative power, peculiar circumstances in this case evidences that San Andres has attained a status of a de facto municipal corporation.

San Andres had been in existence for more than 6 years when Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of E.O. 353.

Certain governmental acts evidences the State’s recognition of the continued existence of San Andres. After 5 years as a municipal district, E.O. 174 classified it as a fifth class municipality. Sec. 31 of BP. 129 considered San Andres to have been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for

the province of Quezon. Under the ordinance apportioning the seats of the House of Representatives, San Andres has been considered to be one of the 12

municipalities composing the Third District of the province of Quezon.

Sec. 442 (d) of the Loc. Gov. Code gives the effect that municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of the Code shall henceforth be considered as regular municipalities.

Indeed, the power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights.

Digested by: Pao Agbayani

LOCGOV - #044 Navarro v Executive Secretary (2010)

Doctrine: Allegations of fraud and irregularities during the plebiscite cannot be resolved in a special civil action for certiorari

Facts:1. PGMA approved into law R.A. No. 9355 (An Act Creating the Province of Dinagat Islands).2. COMELEC conducted the mandatory plebiscite for the ratification of the creation of the province under the Local Government Code (LGC)

which resulted in the approval of the people from both the mother province of Surigao del Norte and the Province of Dinagat Islands (Dinagat).a. Whether the local government units directly affected approved of the creation of the Province of Dinagat Islands into a distinct and

independent province comprising the municipalities of Basilisa, Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon.b. The result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative votes.

3. Petitioners Navarro, Bernal and Medina as taxpayers filed a petition for certiorari under Rule 65 of the Rules of Court seeking to nullify RA 9355 for being unconstitutional.

Petitioner’s arguments: 1. Navarro, Bernal and Medina prayed that R.A. No. 9355 be declared unconstitutional, and that all subsequent appointments and elections

to the new vacant positions in the newly created Province of Dinagat Islands be declared null and void. They also prayed for the return of the municipalities of the Province of Dinagat Islands and the return of the former districts to the mother Province of Surigao del Norte.

2. Navarro, Bernal and Medina allege that the creation of the Dinagat Islands as a new province, if uncorrected, perpetuates an illegal act of Congress, and unjustly deprives the people of Surigao del Norte of a large chunk of its territory, Internal Revenue Allocation and rich resources from the area.

3. Navarro, Bernal and Medina contend that the 100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat, Cagdianao and Libjo was contrary to human experience, and that the results were statistically improbable. Petitioners admit that they did not file any electoral protest questioning the results of the plebiscite, because they lacked the means to finance an expensive and protracted election case.

Respondent’s arguments: 1. Respondent Governor Geraldine B. Ecleo-Villaroman of the Province of Dinagat Islands contends that Navarro, Bernal and Medina do not

have the legal standing to question the constitutionality of the creation of the Province of Dinagat, since they have not been directly injured by its creation and are without substantial interest over the matter in controversy.

2. Governor Ecleo-Villaroman alleges that the petition is moot and academic because the existence of the Province of Dinagat Islands has already commenced; hence, the petition should be dismissed.

Issue: WON the result of the plebiscite is credible and truly reflects the mandate of the people. Yes.

Held/Ratio: 1. Allegations of fraud and irregularities in the conduct of a plebiscite are factual in nature; hence, they cannot be the subject of this special

civil action for certiorari under Rule 65 of the Rules of Court, which is a remedy designed only for the correction of errors of jurisdiction, including grave abuse of discretion amounting to lack or excess of jurisdiction.

2. Navarro, Bernal and Medina should have filed the proper action with the Commission on Elections. However, Navarro, Bernal and Medina admittedly chose not to avail themselves of the correct remedy.

Digested by: Jamie Chan

CHAPTER IV

LOCGOV - #45Calanza v. PICOP (2009)

Doctrine: Sangunniang Panlungsods exercise original jurisdiction over boundary disputes. The RTC exercises appellate jurisdiction over said disputes.

Facts: Petitioners filed with the Mines and Geo-Sciences Development Service of the DENR of Davao City applications for small-scale mining

permits for the purpose of extracting gold. The governor of Davao Oriental approved the applications and issued six small-scale mining permits The mining areas applied for by petitioners were within PICOP’s logging concession area under Timber License Agreements. Petitioners

negotiated with PICOP for their entry but were turned down on the ff grounds:o PICOP has the exclusive right of occupation, possession and control over the area being a logging concessionaire thereof; o Petitioners’ mining permits are defective since they were issued by the governor of Davao Oriental when in fact the mining area is

situated in Barangay Pagtilaan, Municipality of Lingig, Surigao del Sur.

Petitioner’s arguments: Petitioners filed a Complaint with the RTC of Davao Oriental for Injunction with Prayer for the Issuance of a Restraining Order, Damages and Attorney’s Fees against PICOP. Prayer: PICOP or its agent be enjoined from preventing and prohibiting them from entering into the mining site.Respondent’s arguments: PICOP: RTC of Davao Oriental has no jurisdiction over the complaint: The issuance of petitioners’ permits were void ab initio for violating Section 5 of Republic Act No. 7076, otherwise known as the People’s

Small-Scale Mining Act of 1991, which allegedly prohibits the issuance of mining permits over areas covered by forest rights such as TLAs or forest reservations unless their status as such is withdrawn by the competent authority.

Issue/s:WON the RTC of Davao Orinetal has jurisdiction: NO.

Held/Ratio: There is boundary dispute when a portion or the whole of the territorial area of a Local Government Unit (LGU) is claimed by two or more LGUs.

Section 118 of the 1991 Local Government Code

Sec. 118. Jurisdictional Responsibility for Settlement of Boundary Dispute. – Boundary disputes between and among local government units shall, as much as possible, be settled amicably. To this end:

(a) Boundary disputes involving two (2) or more barangays in the same city or municipality shall be referred for settlement to the sangguniang panlungsod or sangguniang bayan concerned.(b) Boundary disputes involving two (2) or more municipalities within the same province shall be referred for settlement to the sangguniang panlalawigan concerned.(c) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the sanggunians of the provinces concerned.(d) 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, shall be jointly referred for settlement to the respective sanggunians of the parties.(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.

*Sanggunians = the provincial boards of the different provinces

Section 119 of the 1991 Local Government Code Appeal. - 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 x x x.

The RTC does not have original nor appellate jurisdiction. RTC cannot exercise appellate jurisdiction over the case since there was no petition that was filed and decided by the sangguniang

panlalawigans of Davao Oriental and Surigao del Sur. Neither can the RTC assume original jurisdiction over the boundary dispute since the Local Government Code allocates such power to

the sangguniang panlalawigans of Davao Oriental and Surigao del Sur.

___

Other issue:Petitioners’ small-scale mining permits are legally questionable.

Republic Act No. 7076 Approval of the applications for mining permits and for mining contracts are vested in the Provincial/City Mining Regulatory Board. The governor of Davao Oriental is not competent to issue the permits.

Digested by Roe Anuncio

LOCGOV – 046

City of Pasig v. COMELEC and Municipality of Cainta, Province of Rizal

Municipality of Cainta, Province of Rizal v. COMELEC City of Pasig (1999)

Facts:

1. Petitions in this case concern the propriety of suspension of plebiscite proceedings pending the resolution of boundary disputes between Cainta and Pasig City. The City of Pasig claims the proposed Barangay Karangalan and proposed Barangay Napico as areas under its jurisdiction while Cainta claims the proposed barangays encroached upon areas within its jurisdiction

2. The City Council of Pasig passed and approved Ordinance 21, Series of 1996, creating Barangay Karangalan upon the petition of residents of Karangalan Village to be segregated from Barangays Manggahan and Dela Paz. Plebiscite on the creation of the barangay was set.

3. City of Pasig also issued Ordinance 52, Series of 1996 creating Barangay Napico, with a plebiscite also set.4. Cainta sought to suspend or cancel the plebiscites and filed petitions with the COMELEC.5. COMELEC ruled in favor of Cainta and ordered the plebiscite for Barangay Karangalan to be held in abeyance. The COMELEC

dismissed Cainta’s petition with respect to the plebiscite for the creation of Barangay Napico for being moot, as the creation of the said barangay has been ratified and pparoved by majority of the votes cast in a plebiscite.

Cainta Argument: The proposed barangays involve areas included in the boundary dispute subject of a pending case before RTC of Antipolo, Br. 74 for settlement of boundary dispute, so plebiscites should be suspend or cancelled until the pending case has been decided by the court.

Pasig Argument: No prejudicial question is posed by the boundary dispute since a prejudicial question contemplates a civil and criminal action and does not come into play where both cases are civil, as in the instant case

Issue: W/N the plebiscites scheduled for the creation of Barangays Karangalan and Napico should be suspended or cancelled in view of the pending boundary dispute between the two local governments.

Held/Ratio: YES

1. The civil case involving the boundary dispute between Cainta and Pasig presents a prejudicial question w/c must first be decided before the plebiscites for the creation of the barangays may be held.

a. Vidad v. RTC of Negros Oriental - In the interest of good order, courts can suspend action on one case pending the final outcome of another case closely interrelated or linked to the first.

b. City of Pasig cannot deny that portions of the areas covered by the proposed barangays are included in the boundary dispute case pending before the Regional Trial Court of Antipolo.  Whether the areas in controversy shall be decided as within the

territorial jurisdiction of the Municipality of Cainta or the City of Pasig has material bearing to the creation of the proposed Barangays Karangalan and Napico.  

i. Requisite for the creation of a barangay is for its territorial jurisdiction to be properly identified by metes and bounds or by more or less permanent natural boundaries.

ii. Mariano, Jr. v. Commission on Elections – The boundaries [of a local government unit] must be clear for they define the limits of the territorial jurisdiction of a local government unit.  It can legitimately exercise powers of government only within the limits of its territorial jurisdiction.  Beyond these limits, its acts are ultra vires.

2. Holding of a plebiscite with respect to Barangay Napico does not render Cainta’s petition moot since the issues in Cainta’s petition before COMELEC against the holding of a plebsicite is still pending before the RTC of Antipolo.

a. Tan v. Commission on Elections – Fact that plebiscite has been held a new province proclaimed and its officials appointed does not mean that the court cannot inquire into the legality of the existence of the said new province.

DISPOSITIVE: Plebiscite on the creation of Barangay Karangalan must be held in abeyance pending the resolution of the boundary dispute between Cainta and Pasig in RTC Antipolo, and the plebiscite ratifying the creation of Barangay Napico should be set aside.

DIGESTED BY: Robert Beltejar (A2015)

LOCGOV - #47

MUNICIPALITY OF KANANGA, Represented by its Mayor, Hon. GIOVANNI M. NAPARI, petitioner, vs. Hon. FORTUNITO L. MADRONA, Presiding Judge, Regional Trial Court of Ormoc City (Branch 35); and the CITY OF ORMOC, Represented by its Mayor, Hon. EUFROCINO M. CODILLA SR.,respondents. (2003)

Doctrine: Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city, it follows that regional trial courts have the power and the authority to hear and determine such controversy.

Facts:

A boundary dispute arose between the Municipality of Kananga and the City of Ormoc. By agreement, the parties submitted the issue to amicable settlement. No amicable settlement was reached. The City of Ormoc filed before the RTC of Ormoc City a complaint to settle the boundary dispute. Petitioner municipality filed a motion to dismiss, claiming that the court has no jurisdiction over the subject matter, but the RTC denied the same.

Petitioner’s arguments:

Petitioner seeks to annul the Order issued by the RTC of Ormoc City (Branch 35), denying the motion to dismiss.

Peitioner argues that:the respondent court has no jurisdiction over the subject matter of the claim;there is no cause of action; anda condition precedent for filing the complaint has not been complied with

Petitioner asserted in its Motion to Dismiss that Ormoc was an independent chartered city, so Section 118 of the 1991 Local Government Code (LGC) applies. It provides:

“Sec. 118.  Jurisdictional Responsibility for Settlement of Boundary Disputes.  – Boundary disputes between and among local government units shall, as much as possible, be settled amicably.  To this end: xxx“(d) 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, shall be jointly referred for settlement to the respective sanggunians of the parties.“(e) In the event the sanggunian fails to effect an amicable settlement within sixty (60) days from the date the dispute was referred thereto, it shall issue a certification to that effect.  Thereafter, the dispute shall be formally tried by the sanggunian concerned which shall decide the issue within sixty (60) days from the date of the certification referred to above.”

Respondent’s arguments:

In denying the petitioner's Motion to Dismiss, respondent held that:

• it had jurisdiction over the action under BP 129• Section 118 of the Local Government Code had been substantially complied with, because both parties already had the occasion to

meet and thresh out their differences; both agreed to elevate the matter to the trial court via a resolution.• Section 118 governed venue; hence, the parties could waive and agree upon it under Section 4(b) of Rule 4 of the Rules of Court.

Issue / Held:

Whether respondent court may exercise original jurisdiction over the settlement of a boundary dispute between a municipality and an independent component city. YES

Ratio:

On the application of Section 118 of the LGC

Both parties aver that the governing law at the time of the filing of the Complaint is Section 118 of the 1991 Local Government Code (LGC), Under this provision, the settlement of a boundary dispute between a component city or a municipality on the one hand and a highly urbanized city on the other -- or between two or more highly urbanized cities -- shall be jointly referred for settlement to the respective sanggunians of the local government units involved.

There is no question that Kananga is a municipality constituted under Republic Act No. 542.12. However, Ormoc is not a highly urbanized, but an independent component, city created under Republic Act No. 179.

“Sec. 89.  Election of provincial governor and members of the Provincial Board of the Province of Leyte.  – The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte.”

Under Section 451 of the LGC, a city may be either component or highly urbanized.  Ormoc is deemed an independent component city, because its charter prohibits its voters from voting for provincial elective officials.  It is a city independent of the province.  In fact, it is considered a component, not a highly urbanized, city of Leyte in Region VIII by both BP 643, which calls for a plebiscite; and the Omnibus Election Code, which apportions representatives to the defunct Batasang Pambansa.  There is neither a declaration by the President of the Philippines nor an allegation by the parties that it is highly urbanized.

Inasmuch as Section 118 of the LGC finds no application to the instant case, the general rules governing jurisdiction should then be used. The applicable provision is found in Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691.

Since there is no law providing for the exclusive jurisdiction of any court or agency over the settlement of boundary disputes between a municipality and an independent component city of the same province, respondent court committed no grave abuse of discretion in denying the Motion to Dismiss. RTCs have general jurisdiction to adjudicate all controversies except those expressly withheld from their plenary powers. They have the power not only to take judicial cognizance of a case instituted for judicial action for the first time, but also to do so to the exclusion of all other courts at that stage. Indeed, the power is not only original, but also exclusive.]

On condition precedent

A joint session was held, but no amicable settlement was reached. A resolution to that effect was issued, and the sanggunians of both local government units mutually agreed to bring the dispute to the RTC for adjudication.

Digested by: JM Arcilla (for A2015)

CHAPTER V

LOCGOV - #48 Rimando v Naguilan Emission Testing Center

Doctrine: A mayor cannot be compelled by mandamus to issue a business permit because it is a discretionary act.

Facts:

Naguilan Emission (The Company) represented by its President Llarenas filed a mandamus case before the RTC against Mayor Rimando of Naguilian, La Union to compel the latter to issue a business permit.

The Company has been operating its Emission Testing business on a previously government owned lot since 2005 which was already certified by DENR to be alienable and disposable. In 2007 the Company applied for renewal of business license but the mayor refused unless the company signs a contract of lease with the municipality.

The RTC denied the petition ruling that the Municipality owned the lot hence it had the right to compel a contract of lease based on the Revenue Code of the Municipality. Also, the granting of a business permit is discretionary hence it is not subject to an action of mandamus.

The CA disagreed saying that first the action is already moot since the business period has already lapsed. Also the tax declaration in favor of the Municiaplity was insufficient basis to require the contract of lease. Also Sangguniang Bayan Resolution No. 2007-81 was void for failing to comply with the LGC. CA held that the mayor cannot be held liable for damages since it was the performance of official duties covered under the presumption of good faith. Eitherway the action has been mooted since the term of the mayor has already expired.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)

Mayor Rimando in his MR argued that a petition for mandamus is not the proper vehicle to determine the issue on the ownership of the subject land.

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)

Same arguments as in the facts above. The case did not discuss Naguilan’s arguments in detail.

Issue/s: W/N a mayor can be compelled by mandamus to issue a business permit.

Held/Ratio:

No.

The SC agreed with the CA that the petition for mandamus has already become moot and academic owing to the expiration of the period intended to be covered by the business permit. The demanded permit for 2008-2009 has already been superseded by the passage of time and the expiration of the petitioner’s term as mayor.

Also, a mayor cannot be compelled by mandamus to issue a business permit since the exercise of the same is a delegated police power hence, discretionary in nature as pronounced in Roble Arrastre v Villaflor citing Section 444(b)(3)(iv) of the LGC. As Section 444(b)(3)(iv) so states, the power of the municipal mayor to issue licenses is pursuant to Section 16 of the LGC (The General Welfare Clause)

Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the power of the respondent mayor to issue license and permits is circumscribed, is a manifestation of the delegated police power of a municipal corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to the question of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but certainly, not of mandamus.

Dissenting opinion: (if any)

Digested by: Chua

LOCGOV – 049

Gancayco vs City Government of QC and MMDA (2011)

Sereno, J.

FACTS:

Retired Justice Gancayco bought a parcel of land along EDSA.

At the time when there was yet not Building Code, the QC council issued Ordinace No. 2904, entitled “An Ordinance Requiring the Construction of Arcades, for Commercial Buildings to be Constructed in Zones Designated as Business Zones in the Zoning Plan of QC, and providing Penalties in Violation thereof.”

o An Arcade is any portion of a building above the first floor projecting over the sidewalk beyond the first storey wall used as protection for pedestrians against rain or sun.

o Under the Ordinance, the city council required that the arcade is to be created by constructing the wall of the ground floor facing the sidewalk a few meters away from the property line.  Thus, the building owner is not allowed to construct his wall up to the edge of the property line, thereby creating a space or shelter under the first floor. In effect, property owners relinquish the use of the space for use as an arcade for pedestrians, instead of using it for their own purposes.

The ordinance covered the property of Justice Gancayco.o Sometime in 1965, Justice Gancayco sought the exemption of a two-storey building being constructed on his property from the

application of Ordinance No. 2904 that he be exempted from constructing an arcade on his property.o City Council acted favorably on Justice Gancayco’s request and issued Resolution No. 7161, S-66, “subject to the condition that

upon notice by the City Engineer, the owner shall, within reasonable time, demolish the enclosure of said arcade at his own expense when public interest so demands.”

Decades after, in March 2003, the MMDA conducted operations to clear obstructions along the sidewalk of EDSA in Quezon City pursuant to Metro Manila Council’s (MMC) Resolution No. 02-28, Series of 2002 which authorized the MMDA and local government units to “clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places in Metro Manila of all illegal structures and obstructions.”

o MMDA sent a notice of demolition to Justice Gancayco alleging that a portion of his building violated the National Building Code of the Philippines (Building Code) in relation to Ordinance No. 2904. The MMDA gave him 15 days to clear the portion of the building that was supposed to be an arcade along EDSA.

o Justice Gancayco did not comply with the notice. After the lapse of the 15 days, the MMDA proceeded to demolish the party wall, or what was referred to as the “wing walls,” of the ground floor structure. At the time of the demolition, the affected portion of the building was being used as a restaurant.

Justice Gancayco filed a petition for TRO/Preliminary Injunction seeking to prohibit the MMDA and City Government of QC from demolishing his property.

Petitioner’s Arguments:

That the ordinance authorized the taking of private property without due process of law and just compensation, because the construction of an arcade will require 67.5 square meters from the 375 square meter property.

That the ordinance was selective and discriminatory in its scope and application when it allowed the owners of the buildings located in the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to Seattle Streets to construct arcades at their option (questioning the zoning created by QC).

Alternately, he prayed for the payment of just compensation should the court hold the ordinance valid.

Respondent’s Arguments:

That the ordinance was a valid exercise of police power, regulating the use of property in a business zone. It is not an exercise of the power of eminent domain that will entitle the petitioner just compensation.

That Justice Gancayco could not seek the nullification of an ordinance that he had already violated, and that the ordinance enjoyed the presumption of constitutionality.

ISSUE: WON the ordinance is constitutional (a valid exercise of police power)

RULING: YES!

MMDA v. Bel-Air Village Association : Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body.

o Is there a valid delegation of police power in this case? YES! Congress expressly granted the city government, through the city council, police power by virtue of Republic Act No.

537, or the Revised Charter of Quezon City. On the powers of the city government to regulate the construction of buildings, the Charter also expressly provided that

the city government had the power to regulate the kinds of buildings and structures that may be erected within fire limits and the manner of constructing and repairing them.

o Is the issuing of a zoning ordinance a valid exercise of the police power delegated? YES! Social Justice Society v. Atienza: The power to establish zones for industrial, commercial and residential uses is derived

from the police power itself and is exercised for the protection and benefit of the residents of a locality.

In the case at bar, it is clear that the primary objectives of the city council of Quezon City when it issued the questioned ordinance ordering the construction of arcades were the health and safety of the city and its inhabitants; the promotion of their prosperity; and the improvement of their morals, peace, good order, comfort, and the convenience. These arcades provide safe and convenient passage along the sidewalk for commuters and pedestrians, not just the residents of Quezon City. More especially so because the contested portion of the building is located on a busy segment of the city, in a business zone along EDSA.

OBITER: MMDA illegally demolished the property of Justice Gancayco. The penalty prescribed by Ordinance No. 2904 itself does not include the demolition of illegally constructed buildings in case of violations. Instead, it merely prescribes a punishment of “a fine of not more than two hundred pesos (P200.00) or by imprisonment of not more than thirty (30) days, or by both such fine and imprisonment at the discretion of the Court.”

Digested by: Kaye de Chavez

LOCGOV - #50The Learning Child and Spouses Alfonso v Ayala Alabang Homeowners Association (2010)

Facts:Ayala Land, Inc. sold a parcel of land to the spouses Yuson. Spouses Yuson subsequently sold the same to the spouses Alfonso. A Deed of Restrictions was annotated in TCT No. 149166 issued to the spouses Alfonso, as had been required by ALI, indicating that: "the property shall be used exclusively for... a preparatory (nursery and kindergarten) school, which may include such installations as an office for school administration, playground and garage for school vehicles."

Ayala Land turned over the right and power to enforce the restrictions on the property to the Ayala Alabang Village Association.Spouses Alfonso opened The Learning Child Center Pre-school, a preparatory school initially consisted of nursery and kindergarten classes. Later, TLC was expanded to include a grade school program, the School of the Holy Cross, which provided additional grade levels as the pupils who initially enrolled advanced.AAVA wrote several letters to TLC and the spouses Alfonso, (1) protesting the TLC’s and the spouses Alfonso’s violation of the Deed of Restrictions, (2) requesting them to comply with the same, and (3) ordering them to desist from operating the grade school and from operating the nursery and kindergarten classes in excess of the two classrooms allowed by the ordinance.

AAVA filed with the RTC an action for injunction, (1) alleging breach of contract by the defendant spouses, particularly of the Deed of Restrictions, the contents of which likewise appear in the Deed of Absolute Sale. (2) It also alleged violation of

(a) MMC Ordinance No. 81-01, otherwise known as the Comprehensive Zoning Ordinance for the National Capital Region, which classified Ayala Alabang Village for zoning purposes as a low-density residential area, or R-1, thereby limiting the use of the subject property to the establishment or operation of a nursery and kindergarten school, which should not exceed two classrooms, and

(b) Barangay Ordinance No. 03, Series of 1991, prohibited parking on either side of any street measuring eight meters in width. TLC is adjacent to Balabac and Cordillera Streets, which are both less than eight meters in width. AAVA prayed that defendants be restrained from continuing the operation of the school.

RTC rendered its Decision in favor of AAVA, ruling that the operation of the grade school and the nursery and kindergarten classes in excess of two classrooms was in violation of a contract to which the defendants are bound. The restrictions were an easement which an owner of a real estate may validly impose. Furthermore, by allowing parking on either side of the streets adjacent to the school, the defendants likewise violated Barangay Ordinance No. 3.TLC and the spouses Alfonso filed a MR, alleging that with the passage of Muntinlupa Zoning Ordinance No. 91-39 reclassifying the subject property as “institutional,” there ceased to be a legal basis for the RTC to uphold the Deed of Restrictions on the title of the spouses Alfonso. The RTC agreed with the spouses Alfonso and set aside its earlier Decision, ruling that with the reclassification by Muntinlupa Zoning Ordinance No. 91-39 of the subject property, the earlier residential classification can no longer be enforced.

Citing Ortigas & Co. Limited Partnership v. Feati Bank & Trust Co., while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute since it has to be reconciled with the legitimate exercise of police power by the municipality.

AAVA moved for a reconsideration of the above RTC Order, which the RTC denied. AAVA filed a Notice of Appeal. The CA set aside the RTC Resolution, reinstating the earlier RTC decision. TLC and the spouses Alfonso moved for a reconsideration. The CA denied the MR. TLC and the spouses Alfonso filed Petition for Review with the SC.

The Municipality of Muntinlupa passed Resolution No. 94-179 correcting an alleged typographical error in the description of a parcel of land under the heading “Institutional Zone” in Appendix B of Ordinance No. 91-39, adjusting the description “Lot 25, Block 1, Phase V, Ayala Alabang” to “Lot 25, Block 3, Phase V, Ayala Alabang.” Lot 25, Block 3, Phase V is the subject property wherein TLC is located.

The Municipality wrote a letter to the Metropolitan Manila Zoning Administration Office, informing the latter of the enactment of Muntinlupa Resolution No. 94-179. The Municipality filed a Petition for the approval of Resolution No. 94-179 with the HLURB. HLURB issued its Resolution, deferring action and remanding the same to the Sanguniang Bayan of Muntinlupa for the conduct of the required public hearings as mandated by the “Uniform Guidelines for Rezoning of the Metro Manila Area.”

Resolution No. 94-179 is not a case of a mere correction of an error but an actual rezoning of the property into an institutional area, and therefore remanded the same to the Sanguniang Bayan of Muntinlupa for the conduct of the required public hearings.

The Municipality of Muntinlupa, TLC and the spouses Alfonso appealed the HLURB Resolution to the Office of the President.OP rendered its Decision, holding that Resolution No. 94-179 is a mere rectifying issuance to an alleged typographical error in Ordinance No. 91-39, and therefore does not need for its validity compliance with the mandatory requirements of notice and hearing.The OP likewise ruled that Ayala Corporation agreed that the “lot (shall) be used for school and related activities”, thereby effectively freeing the appellants from the deed restriction that the “Lots (shall) be used exclusively for residential purposes.” The Muntinlupa Zoning Ordinance itself classifies the area occupied by the appellants’ school as an “institutional zone” and not a residential area.

AAVA and the adjacent property owners filed a Petition for Review with the CA. The CA agreed with the Office of the President that being merely a rectifying issuance and not a rezoning enactment, the questioned Resolution did not have to comply with the mandatory requirements of notice and hearing. However, the CA found the OP to have exceeded its authority when it ruled that the Deed of Restrictions had lost its force and effect in view of the passage of Ordinance No. 91-39.

Petitioner’s arguments: Petitoner: The Learning Child Inc and Sps Alfonso, owners of TLCEffect of Ordinance No. 91-39:

TLC and the spouses Alfonso insist on the applicability of Ortigas in the case at bar, and likewise cited Presley v. Bel-Air Village Association, Inc. in order to drive home its point that reclassification of properties is a valid exercise of the state’s police power, with which contractual obligations should be reconciled.

Deed of Restrictions: The AAVA had allegedly abrogated said restrictions by its own acts.1. AAVA Village Manager admitted bthat AAVA had previously approved the proposed construction of a school building with 24

classrooms2. While the case was submitted for resolution with the CA, AAVA authorized the construction of a new “school building extension.”3. ALI itself requested the reclassification of the subject property as institutional4. ALI assented to the reclassification of the subject property to institutional

Respondent’s arguments: Respondents: AAVAMuntinlupa Resolution No. 94-179:

Muntinlupa Resolution No. 94-179 is not a mere rectifying enactment and that Notice and hearing are required under the Uniform Guidelines for the Rezoning of the Metropolitan Manila Area, contained in Resolution No. 12, series of 1991, of the then Metropolitan Manila Commission. Even assuming arguendo that there was a typographical error in the said zoning ordinance, the proper remedy is to legislate a new zoning ordinance, following all the formalities therefor, citing the leading case of Resins, Incorporated v. Auditor General.The power to evaluate, approve or disapprove zoning ordinances lies with the HLURB under Article IV, Section 5(b) of Executive Order No. 648. The decisions of administrative agencies on matters pertaining to their jurisdiction will generally not be disturbed by the courts.

Effect of Ordinance No. 91-39:Even where the exercise of police power is valid, the same does not operate to automatically negate all other legal relationships in existence since the better policy is to reconcile the conflicting rights and to preserve both instead of nullifying one against the other, citing the case of Co v. Intermediate Appellate Court.[37] AAVA thus adopt the finding of the Court of Appeals that even assuming that the subject property has been validly reclassified as an institutional zone, there is no real conflict between the Deed of Restrictions and said reclassification.

Issue/s:1. W/N Muntinlupa Resolution No. 94-179 is valid;2. W/N TLC and the spouses Alfonso should be enjoined from continuing the operation of a grade school in the subject property.

a. W/N Muntinlupa Municipal Ordinance No. 91-39, as allegedly corrected by Muntinlupa Resolution No. 91-179, has the effect of nullifying the provisions of the Deed of Restrictions on the subject property; and

b. W/N AAVA is estopped from enforcing the Deed of Restrictions.

Held/Ratio: Validity of Muntinlupa Resolution No. 94-179. Muntinlupa Resolution No. 94-179, being a mere corrective issuance, is not invalidated by the lack of notice and hearing as AAVA contends.

The purpose of Muntinlupa Resolution No. 94-179 is clearly set forth in its whereas clauses. There was indeed a typographical error in Appendix B of Ordinance No. 91-39 is the fact that both the Official Zoning Map of Muntinlupa and that of the Ayala Alabang Village show that the subject property, described as “Lot 25, Block 3, Phase V of Ayala Alabang” is classified as “institutional.” Neither the Official Zoning Map of Muntinlupa nor that of the Ayala Alabang Village classify “Lot 25, Block 1, Phase V of Ayala Alabang” as institutional. Resins was decided on the principle of separation of powers, that the judiciary should not interfere with the workings of the executive and legislative branches of government. In Resins, there is a presumption of regularity in favor of the enrolled bill, which the courts should not speculate on. In the case at bar, it is the curative Muntinlupa Resolution No. 94-179 which is entitled to a presumption of regularity.The Court of Appeals affirmed the Decision of the OP, which had set aside the HLURB ruling. The authority of the HLURB is subordinate to that of the OP and the acts of the former may be set aside by the latter. The HLURB and the then MMC were both tasked to regulate the rezoning of the Metropolitan Manila area. The then Municipality of Muntinlupa submitted Resolution No. 94-179 to both the HLURB and the MMC for their appropriate action. The MMC approved Muntinlupa Resolution No. 94-179, and this approval should be given more weight than the disapproval of the HLURB since it was the MMC itself which issued the Uniform Guidelines for the Rezoning of the Metropolitan Manila Area (MMC Resolution No. 12, Series of 1991), the issuance alleged by AAVA to have been violated by the Municipality of Muntinlupa.

Effect of Ordinance No. 91-39, as corrected by Resolution No. 94-179 to the Deed of Restrictions

The RTC cited the Ortigas case and held that the earlier residential classification can no longer be enforced due to the reclassification by Muntinlupa Municipal Ordinance No. 91-39 of the subject property.

In Ortigas, the restriction of exclusive use for residential purposes was contained in the Deeds of Sale of the subject properties at the insistence of developer Ortigas & Co. and was annotated in the corresponding titles thereof. Feati Bank and Trust Co. eventually acquired the subject properties from the successor-in-interest of the original buyers; the deeds of sale and the TCTs issued likewise reflected the same restriction. The then Municipal Council of Mandaluyong passed a Resolution declaring the area to which the subject property is situated as an industrial and commercial zone. Ortigas & Co. later on sued Feati Bank, seeking an injunction to restrain the latter from completing a commercial bank building on the premises. The Court held that the Mandaluyong Resolution was passed in the

exercise of police power. Since the motives behind the passage of the questioned resolution is reasonable, and it being a legitimate response to a felt public need, not whimsical or oppressive, the non-impairment of contracts clause of the Constitution will not bar the municipality’s exercise of police power.

The CA set aside the RTC Resolution and reinstated the original RTC Decision enjoining TLC and the spouses Alfonso from the operation of the school beyond nursery and kindergarten classes with a maximum of two classrooms. The CA held that there is no conflict between the Deed of Restrictions, which limited the use of the property for the establishment of a preparatory school, and the provisions of the Muntinlupa Zoning Ordinance No. 91-39, which reclassified the subject property as “institutional.”

The Court of Appeals continued that there are valid grounds for it not to apply the Ortigas case cited by the RTC Resolution, holding that while the subject property in said case was found in an area classified as industrial and commercial, “a study of the location of defendants’ school would clearly reveal that the same is situated within a residential area – the exclusive Ayala Alabang Village.”

The restriction limits the use of the subject property for preparatory (nursery and kindergarten) school, without regard to the number of classrooms. The two-classroom limit is actually imposed by MMC Ordinance No. 81-01, the Comprehensive Zoning Ordinance for the National Capital Region, which classified Ayala Alabang Village as a low density residential area or an “R-1 zone.”

The principal permitted uses of a “low-density residential area” or “R-1 zone,” is that no building, structure or land used, and no building or structure shall be erected or altered in whole or in part except for one or more of the following:"… Nursery and kindergarten schools, provided that they do not exceed two (2) classrooms." However principal uses of an institutional site include "Nursery and kindergarten schools;"

In the Ortigas case the Court ruled that "since it is now unprofitable, nay a hazard to the health and comfort, to use Lots Nos. 5 and 6 for strictly residential purposes, defendants-appellees should be permitted, on the strength of the resolution promulgated under the police power of the municipality, to use the same for commercial purposes. "

In the case at bar, the subject property, though declared as an institutional lot, nevertheless lies within a residential subdivision and is surrounded by residential lots. The area surrounding TLC did not undergo a radical change similar to that in Ortigas but rather remained purely residential to this day. The lot occupied by TLC is located along one of the smaller roads within the subdivision. With its operation of both a preparatory and grade school, TLC’s student population had already swelled to around 350 students at the time of the filing of this case. The greater traffic generated by TLC’s expanded operations will affect the adjacent property owners enjoyment and use of their own properties.

AAVA’s and ALI’s insistence on (1) the enforcement of the Deed of Restrictions or (2) the obtainment of the approval of the affected residents for any modification of the Deed of Restrictions is reasonable. The then Municipality of Muntinlupa did not appear to have any special justification for declaring the subject lot as an institutional property. The Municipal Planning and Development Officer of Muntilupa, testified that in declaring the subject property as institutional the municipality simply adopted the classification used in a zoning map purportedly submitted by ALI itself. It is therefore proper to reconcile the apparently conflicting rights of the parties. In Ortigas, the court ruled that "the zoning ordinance, while valid as a police measure, was not intended to affect existing rights protected by the impairment clause. It is always a wise policy to reconcile apparently conflicting rights under the Constitution and to preserve both instead of nullifying one against the other."

Deed of Restrictions. It cannot be said that AAVA abrogated the Deed of Restrictions. Neither could it be deemed estopped from seeking the enforcement of said restrictions.

Estoppel by deed is “a bar which precludes one party from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted in it."TLC and the spouses Alfonso failed to prove by clear and convincing evidence the gravity of AAVA’s acts so as to bar the latter from insisting compliance with the Deed of Restrictions. The alleged assent of AAVA to the construction of additional classrooms is not at all inconsistent with the provisions of the Deed of Restrictions, which merely limit the use of the subject property “exclusively for the establishment and maintenance thereon of a preparatory (nursery and kindergarten) school which may include such installations as an office for school administration, playground and garage school vehicles.”There was no intention on the part of AAVA to abrogate the Deed of Restrictions nor to waive its right to have said restrictions enforced. A thorough examination of the records of the case furthermore shows that AAVA consistently insisted upon compliance with the Deed of Restrictions

Digested by: DE LEON

LOCGOV - # 051Ortigas & Co. v. FEATI Bank (1979)NOTE: THE G.R. NO. AND DATE PROVIDED IN THE SYLLABUS PERTAINS TO A DIFFERENT CASE.

Doctrine: While non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power

Facts: Plaintiff Ortigas is a limited partnership and defendant Feati Bank and Trust Co. is a corporation duly organized and existing in

accordance with the laws of the Philippines. o Ortigas & Co. is engaged in real estate business, developing and selling lots to the public, particularly the Highway Hills Subdivision

along EDSA, Mandaluyong, Rizal. On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad Angeles, as vendees, entered into separate

agreements of sale on installments over two parcels of land, known as Lots Nos. 5 and 6, Block 31, of the Highway Hills Subdivision, situated at Mandaluyong, Rizal.

On July 19, 1962, the said vendees transferred their rights and interests over the aforesaid lots in favor of one Emma Chavez and upon completion of payment of the purchase price, Ortigas & Co. executed the corresponding deeds of sale in favor of the latter.

Both the agreements (of sale on installment) and the deeds of sale contained the stipulations or restrictions which were later annotated in the TCTs covering the lands in issue stating that:

1. The parcel of land subject of this deed of sale shall be used the Buyer exclusively for residential purposes, and she shall not be entitled to take or remove soil, stones or gravel from it or any other lots belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed at any time in said lot must be, (a) of strong materials and properly painted, (b) provided with modern sanitary installations connected either to the public sewer or to an approved septic tank, and (c) shall not be at a distance of less than 2 meters from its boundary lines.

Eventually, defendant-appellee FEATI Bank acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and 106092 issued in its name, respectively and the building restrictions were also annotated therein.

Ortigas & Co. claims that the restrictions annotated in the TCTs were imposed as part of its general building scheme designed for the beautification and development of the Highway Hills Subdivision which forms part of the big landed estate of plaintiff-appellant where commercial and industrial sites are also designated or established.

FEATI Bank, upon the other hand, maintains that the area along the western part of EDSA from Shaw Boulevard to Pasig River, has been declared a commercial and industrial zone, per Resolution No. 27, dated February 4, 1960 of the Municipal Council of Mandaluyong, Rizal. 9

o According to FEATI, Ortigas 'completely sold and transferred to third persons all lots in said subdivision facing EDSA" and the subject lots thereunder were acquired by it "only on July 23, 1962 or more than 2 years after the area ... had been declared a commercial and industrial zone ...

On or about May 5, 1963, FEATI Bank began laying the foundation and commenced the construction of a building on Lots Nos. 5 and 6, to be devoted to banking purposes, but which it claims could also be devoted to, and used exclusively for, residential purposes.

The following day, Ortigas & Co. demanded in writing that FEATI Bank stop the construction of the commercial building on the said lots. o FEATI Bank refused to comply with the demand, contending that the building was being constructed in accordance with the zoning

regulations, it having filed building and planning permit applications with the Municipality of Mandaluyong, and it had accordingly obtained building and planning permits to proceed with the construction.

Ortigas & Co. filed a case against FEATI Bank before the trial court. TC: upheld the position of FEATI Bank and dismissed the complaint, holding that the subject restrictions were subordinate to Municipal

Resolution No. 27. It predicated its conclusion on the exercise of police power of the said municipality, and stressed that private interest should "bow down to general interest and welfare. " In short, it upheld the classification by the Municipal Council of the area along EDSA as a commercial and industrial zone, and held that the same rendered "ineffective and unenforceable" the restrictions in question as against FEATI Bank. The TC decision further emphasized that it "assumes said resolution to be valid, considering that there is no issue raised by either of the parties as to whether the same is null and void.

After it’s MR was denied, Ortigas & Co. filed a notice of appeal before the SC there being only a question of law.

Petitioner’s arguments: In it’s brief before the SC, Ortigas & Co. claims that the TC erred when it sustained the view that Resolution No. 27, series of 1960 of the

Municipal Council of Mandaluyong, Rizal is valid because it did so in the exercise of its police power and when it did not consider in its decision the non-impairment of contractual obligations (pursuant to the Constitution).

Respondent’s arguments: Claims that Resolution No. 27 of the Municipal Council of Mandaluyong, Rizal declaring the area involved as a commercial and industrial

zone is a valid exercise of police power pursuant to the Constitution and can supersede contractual stipulations of the parties involved.

Issue/s:

1. WON Resolution No. 27 is a valid exercise of police power2. WON said Resolution can nullify or supersede the contractual obligations assumed by FEATI Bank

Held/Ratio:1. According to the SC, it is not proper to decide upon WON the TC erred in sustaining the validity of Resolution No. 27 as an exercise

of police power because in the first place, the validity of the said resolution was never questioned before the lower court. The court said that as a rule, a question of law or of fact which may be included in an appellant's assignment of errors if those have been

raised in the court below, and are within the issues framed by the parties so that the other party may not be taken by surprise. ->For it is well-settled that issues or defenses not raised or properly litigated or pleaded in the Court below cannot be raised or entertained on appeal.

The court noted that in this particular case, the validity of the resolution was admitted at least impliedly, in the stipulation of facts below when plaintiff-appellant did not dispute the same. o The only controversy left as stated by the TC was WON the resolution of the Municipal Council of Mandaluyong prevails over the

restrictions constituting as encumbrances on the lots in question. o Having admitted the validity of the subject resolution below, even if impliedly, Ortigas & Co. cannot now change its position on

appeal. Furthermore, even assuming arguendo that it was not yet too late for Ortigas & Co. to raise the issue of the invalidity of the municipal

resolution in question, the court was still of the opinion that its posture is unsustainable. o Section 3 of R.A. No. 2264 (Local Autonomy Act) empowers a Municipal Council "to adopt zoning and subdivision ordinances or

regulations"; for the municipality. o Clearly, the law does not restrict the exercise of the power through an ordinance. -> Thus, granting that Resolution No. 27 is not an

ordinance, it certainly is a regulatory measure within the intendment or ambit of the word "regulation" under the provision.o The court noted that an examination of Section 12 of the same law which prescribes the rules for its interpretation likewise reveals

that the implied power of a municipality should be "liberally construed in its favor" and that "(A)ny fair and reasonable doubt as to the existence of the power should be interpreted in favor of the local government and it shall be presumed to exist."

o The same section further mandates that the general welfare clause be liberally interpreted in case of doubt, so as to give more power to local governments in promoting the economic conditions, social welfare and material progress of the people in the community.

o The only exceptions under Section 12 are existing vested rights arising out of a contract between "a province, city or municipality on one hand and a third party on the other," in which case the original terms and provisions of the contract should govern. -> However, the court said that the exceptions clearly do not apply in this case.

2. Yes, it can. According to the court, while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be

reconciled with the legitimate exercise of police power (i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people). o The court said that police power is "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most

powerful attribute of government, the exercise of the power may be judicially inquired into and corrected only if it is capricious,

'whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee.

o Philippine Long Distance Company vs. City of Davao, et al . ->police power "is elastic and must be responsive to various social conditions; it is not, confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life."

o Vda. de Genuino vs. The Court of Agrarian Relations, et al ., "We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power.”

The SC said that Resolution No. 27 was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality.o It explained that judicial notice may be taken of the conditions prevailing in the area, especially where lots Nos. 5 and 6 are located

which not only front the highway; industrial and commercial complexes have flourished about the place while EDSA supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route.

o Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.

As to the scope of police power, the court cited Calalang v. Williams et al:o (citing Dobbins v. Los Angeles) 'the right to exercise the police power is a continuing one, and a business lawful today may in the future,

because of changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good.'

o (citing People v. Pomar ) it was observed that 'advancing civilization is bringing within the scope of police power of the state today things which were not thought of as being with in such power yesterday.

Therefore, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. -> Persons may be subjected to all kinds of restraints and burdens, in order to secure the general comfort health and prosperity of the state and to this fundamental aim of our Government, the rights of the individual are subordinated.

As for the need to reconcile the non-impairment clause of the Constitution and the valid exercise of police power, the court cited the US case of Helvering v. Davisthe conflict "between one welfare and another, between particular and general was resolved as follows: “Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation What is critical or urgent changes with the times.”

According to the court, since the motives behind the passage of Resolution No. 27 are reasonable, and it being a " legitimate response to a felt public need," not whimsical or oppressive, the non-impairment of contracts clause of the Constitution will not bar the municipality's proper exercise of the power. o It noted that police power legislation then is not likely to succumb to the challenge that thereby contractual rights are rendered

nugatory."o Philippine American Life Ins. Co. v. Auditor General, Liberation Steamship Co., Inc. v. Court of Industrial Relations and Maritime Company

of the Philippines v. Reparations Commission ->were also cited by the court in support of its positionthat laws and reservation of essential attributes of sovereign power are read into contracts agreed upon by the parties.

The court also rejected Ortigas & Co.’s unqualified reliance on American jurisprudence and authorities to bolster its theory that the municipal resolution in question cannot nullify or supersede the agreement of the parties embodied in the sales contract, as that, it claims, would impair the obligation of contracts in violation of the Constitution.

According to the court, the views set forth in American decisions and authorities are not per se controlling in the Philippines, the laws of which must necessarily be construed in accordance with the intention of its own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto.

In conclusion, the court said that it is clear that even if the subject building restrictions were assumed by the FEATI Bank as vendee of Lots Nos. 5 and 6, the contractual obligations so assumed cannot prevail over Resolution No. 27, of the Municipality of Mandaluyong, which has validly exercised its police power through the said resolution.

Trial Court decision AFFIRMED.

Dissenting opinion: ABAD SANTOS, J. Asserts that Resolution No. 27 cannot be described as promotive of the health, morals, peace, education, good order or safety and general

welfare of the people of Mandaluyong because accordingly, its effect is the opposite. o According to Justice Abad Santos, for the serenity, peace and quite of a residential section would by the resolution be replaced by the

chaos, turmoil and frenzy of commerce and industry. o Furthermore, to characterize the ordinance as an exercise of police power would be retrogressive because it will set back all the

efforts of the Ministry of Human Settlements to improve the quality of life especially in Metro Manila. He concluded by saying that since Resolution No, 2-1 was not enacted in the legitimate exercise of police power, it cannot impair the

restrictive covenants which go with the lands that were sold by the Ortigas & Co.

Digested by: Lindsey Supremo Fabella

LOCGOV - 052Social Justice Society v. Atienza, Jr. (2007)

Doctrine: Example of an LGU exercise of police powerOrdinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

Facts: - Nature: Original petition for mandamus in which petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S.

Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027.- On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027. Respondent mayor approved the

ordinance. Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described

as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of the society. Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation.

- However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU) with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was] the most viable and practicable option."

- The Sangguniang Panlungsod ratified the MOU in Resolution No. 97. In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 2002. Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 13 extending the validity of Resolution No. 97 and authorizing Mayor Atienza to issue special business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance.

- Petitioners filed this original action for mandamus praying that Mayor Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.

Petitioner’s arguments: - Respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA 7160), to enforce

Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Respondent’s arguments:

- Ordinance No. 8027 has been superseded by the MOU and the resolutions.- The ordinance and MOU are not inconsistent with each other and that the latter has not amended the former. MOU did not in any way

prevent him from enforcing and implementing it. MOU should be considered as a mere guideline for its full implementation. Court notes that this is inconsistent with the first argument

Issue/s: - WON a petition for mandamus is a proper remedy- WON the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027

Held/Ratio: Petition granted. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027.

- Under Rule 65, Section 3 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the clear and imperative duty of respondent to do the act required to be done. Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue.

o SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila.

A mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest. Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the city’s ordinances. Respondent never questioned the right of petitioners to institute this proceeding.

o The Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city." One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so.

In Dimaporo v. Mitra, Jr. : These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.

- No need to resolve the second issue.o Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it

binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.

o Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack on the Pandacan Terminals. No reason exists why such a protective measure should be delayed.

Digest by: P.M.R. Gairanod

LocGov #53

(Feb. 13, 2008)SOCIAL JUSTICE SOCIETY (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon, petitioners,vs.Jose L. ATIENZA, JR., Mayor of City of Manila, respondent.Intervenors: Department of Energy (representing the Government), Chevron Phil., Petron and Pilipinas Shell (oil companies).

Doctrine: “In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives of the government.”

“However, the interference must be reasonable and not arbitrary.”

Facts:This is a Motion for Reconsideration filed by intervenors Dept. of Energy and the oil companies of the Court’s decision on March 7,

2007.The original action was a Petition for Mandamusfiled by SJS, Cabigao and Tumbokon, seeking to compel Mayor Atienza to enforce

Ordinance 8027. The ordinance reclassified an area covering the Pandacan Oil Terminals of the oil companies from Industrial II to Commercial I. It also directed the businesses which are disallowed under the new classification to cease and desist from operating their businesses within six months from the effectivity date.

Hence, this motion to intervene and MR.The oil companies bring to the Cout’s attention that a case has been filed by these oil companies in the Manila RTC 39 for the annulment

of the Ordinance 8027 and injunctive reliefs, which the RTC granted.Thereafter, Manila city council passed another Ordinance known as Manila Comprehensive Land Use Plan which was approved by the

Mayor. Because of this, the oil companies withdrew their complaint in RTC 39. Shell and Chevron filed new cases in branch 20 , and Petron filed a new case in branch 41.

Injunctive reliefs were prayed for against the new Ordinance which the RTC branch 41 granted.During the oral arguments, the parties also submitted to the Supreme Court the issue of the constitutionality of Ordinance 8027,

notwithstanding the same issue is pending in the RTC.NOTE: The question of constitutionality is the main issue dealing with Powers of the Local Government.

I. Oil Companies’ arguments:The oil companies mainly argue that the Ordinance is unfair and oppressive since it does not only regulate but also absolutely prohibits

them from doing business.It is also unfair and oppressive because they have already invested billions of Pesos in the depot and its closure will result in huge losses

in income and tremendous costs in constructing new facilities.They also take the position that the ordinance has discriminated against them despite the fact many buildings in Pandacan do not comply

with the building code.They also argue that 8027 is inconsistent with the DOE Act of 1992 and the Oil Deregulation Law of 1998. They say that the legislature

have declared it a policy “to ensure a continuous, adequate, and economic supply of energy” and that the DOE is empowered to “administer programs for distrbution, conservation, stockpiling, storage of energy resources.” 8027 allegedly frustrates this state policy and

II. Respondent’s arguments:Oil companies are merely prohibited from conducting operations in the Pandacan area. They are not prohibited from conducting

business in appropriate zones in the City of Manila.

Respondent likewise counter that DOE’s regulatory power does not preclude LGUs from exercising their police power.

Issue/s:2. W/N intervenors should be allowed to intervene?3. W/N Branch 39 and Branch 41’s injunctive reliefs are legal impediments to the execution of the 2007 decision? 4. W/N the new Ordinance 8119 (Comprehensive Land Use Plan) is an impediment to execution of Supreme Court 2007 decision?5. W/N the Ordinance 8027 is constitutional?

Held/Ratio:2. YES, they should be allowed to intervene because they have a real interest. (non-topical)

3. No, the injunctive reliefs are not legal impediments to the execution of the 2007 decision. While the intervenors were rightly granted the injunctive reliefs by the RTC to prevent irreparable injury, “the mere fact that the ordinance is alleged to be unconstitutional or invalid will not entitle a party to have its enforcement enjoined. The presumption is all in favor of validity.” (non-topical)

4. No, the new Ordinance 8119 did not supersede Ordinance 8027.The Court was not informed of the new ordinance before it issued its 2007 decision. The law which direct the city courts to take judicial

notice of city ordinances is to take discretion away from the judge, it is not intended to direct the court to actively search and monitor passed ordinances.

Also, the Court agrees with respondent that Ord. 8119 was merely meant to carry over 8027’s purpose. As can be gleaned from the minutes of the city council sessions.

5. Yes, it is constitutional.“For an ordinance to be valid, it must 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.

Ordinance 8027 was passed by the city council in the exercise of its police power. “This power flows from the recognition that salus populi est suprema lex (the welfare of the people is the supreme law).”

Sec. 16 of the LGC is the General Welfare clause which states: “Every local government shall exercise the powers expressly granted. ..x x x.. the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology…”

LGUs like the City of Manila exercise police power through their respective legislative bodies. Sec. 458 of the LGC gives the power to enact ordinances to the Sangguniang Panlungsod.

Sec 458 (2) (a) (viii) of the LGC grants the Sanggunian the power to “reclassify land within the jurisdiction of the city.”Police power of the city is also granted in the Revised Charter of Manila, Sec. 18: “To enact all ordinances it may deem necessary and

proper for the sanitation and safety, …. general welfare of the city…”In the exercise of police power, property rights of individuals may be subjected to restraints and burdens in order to fulfill the objectives

of the government.“However, the interference must be reasonable and not arbitrary.”

The Court agrees with the respondent that the oil companies are not absolutely prohibited. As to the issue of loss of profits the court said that “in the exercise of police power, there is a limitation on or restriction of property interests to promote public welfare which involves no compensable taking.”

“The restriction imposed to protect lives, public health and safety from danger is not a taking. It is merely the prohibition or abatement of a noxious use which interferes with paramount rights of the public.”

“Police power proceeds from the principle that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the right of the community.”

“The properties of the oil companies and other businesses situated in the affected area remain theirs. Only their use is restricted although they can be applied to other profitable uses permitted in the commercial zone.”

As to the argument that the ordinance has discriminated against the oil companies, the court said: “An ordinance based on reasonable classification does not violate the constitutional guaranty of the equal protection of the law.”

“The law may treat and regulate one class differently from another class provided there are real and substantial differences to distinguish one class from another.”

There is reasonable classification here.

The ordinance is not inconsistent with the DOE Act and Oil Deregulation. Nothing it the said statutes prohibits the City of Manila from enacting ordinances in the exercise of its police power. The principle of local autonomy is enshrined in the Consitution: “The State shall ensure the autonomy of local governments.”

Likewise, the power of the President over local governments is one of general supervision and NOT control. Thus, the President or his alter-egos, department heads, cannot interfere with the activities of the local governments, so long as they are within their authority.

Digested by: Jay Garcia (A2015)

LOCGOV - #54

Lucena Grand Terminal v. JAC (2005)

J. Carpio-Morales

Doctrine: To be a valid exercise of police power, an ordinance must have a lawful subject (public interest) and lawful method (reasonably necessary). IN THIS CASE, while the ordinances have valid a subject, that is for public safety, the method used (i.e. banning of terminals) is characterized by overbreadth.

Facts:

(Note: Respondent/ Petitioner’s arguments embedded, but indicated, in the Ratio)

1. Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to and from Lucena City filed a petition for prohibition and injunction against the City of Lucena, its Mayor, the Sangguniang Panlungsod of Lucena before the Regional Trial Court (RTC) of Lucena Citya. Petitioner Lucena Grand Terminal allowed to intervene b. Note that JAC also operates a terminal for its buses in Lucena

2. Respondent JAC assails the constitutionality of City Ordinance Nos. 1631 and 1778 based on the following GROUNDS: a. invalid exercise of police powerb. an undue taking of private property, and c. a violation of the constitutional prohibition against monopolies

3. Ordinance No. 1631 grants the Lucena Grand Terminal an exclusive franchise to construct, finance, establish, operate, and maintain a common bus-jeepney terminal facility in the City of Lucena for 25 years (renewable for the same period). During its existence, the City Government shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal.

4. Ordinance No. 1778 prohibits all buses, mini-buses and out-of-town passenger jeepneys from entering the city without proceeding to the common terminal, for picking-up and/or dropping of their passengers. All temporary terminals in the City are declared inoperable and no other terminals shall be situated inside or within the City shall be allowed.

5. The purpose of these ordinances, as the “Explanatory Note” explains is to alleviate the worsening traffic condition in Lucena 6. Ruling of the RTC:

a. Ordinance 1631 is a valid exercise of police power insofar as it grants a franchise to Lucena Grand Terminal. But the provision prohibiting the government from granting to any third party a franchise to operate a terminal is ultra vires

b. Ordinance 1778 is null and void as an invalid, oppressive and unreasonable exercise of the police powerc. Petitioner’s MR was denied

7. CA affirmed RTC

Issues: Whether the trial court has jurisdiction over the case, it not having furnished the Office of the Solicitor General copy of the orders it issued therein YES

Whether Lucena properly exercised its police power when it enacted the subject ordinances NO

Ratio:

On Jurisdiciton (IRRELEVANT)

1. Petitioner’s argument: the trial court failed to serve a copy of its assailed orders upon the Office of the Solicitor General, it never acquired jurisdiction over the case. Petitioner cited the Rules of Court.16

2. SC: These Rules did not constitute jurisdictional defects. In fact, Rule 3, Section 22 gives the courts in any action involving the “validity” of any ordinance, inter alia, “discretion” to notify the Solicitor General. ection 4 of Rule 63, which more specifically deals with cases assailing the constitutionality, not just the validity, of a local government ordinance, directs that the Solicitor General “shall

16SEC. 22. Notice to the Solicitor General.—In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court in its discretion , may require the appearance of the Solicitor General who may be heard in person or through representative duly designated by him. (Emphasis and underscoring supplied)

SEC. 3. Notice on Solicitor General. – In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question.

SEC. 4.  Local government ordinances. – In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local government unit involved shall be similarly notified and entitled to be heard.  If such ordinance is alleged to be unconstitutional , the Solicitor General shall also be notified and entitled to be heard .

also be notified and entitled to be heard.”  Respondent actually served a copy of its petition upon the Office of the Solicitor General on October 1, 1998, two days after it was filed.  The Solicitor General has issued a Certification to that effect

On Validity (RELEVANT)

1. The local government may be considered as having properly exercised its police power only if the following requisites are met:  a. the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and

(Lawful subject)b. the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly

oppressive upon individuals (Lawful method)2. There is a lawful subject traffic congestion is a public concern, a menace to public safety according to Calalang v. Williams. Public

welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty

3. Respondent’s argument The ordinances were enacted to benefit the private interest of petitioner a. SC: No evidence to support allegation of improper motivation

4. But improper means was employed for being characterized by overbreadth a. They go beyond what is reasonably necessary to solve the traffic problem. Also, since the compulsory use of the terminal operated

by petitioner would subject the users thereof to fees, rentals and charges, such measure is unduly oppressive, as correctly found by the appellate court

b. The traffic congestion was caused by the indiscriminate loading and unloading of passengers but terminals per se do not, however, impede or help impede the flow of traffic.  If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the specifications.

5. Petitioner’s arguments: a. Other solutions for the traffic problem have already been tried but proven ineffective (bus owners and operators to put up their

terminals “outside the poblacion of Lucena City” but it only resulted in the relocation of terminals to other well-populated barangays, thereby giving rise to traffic congestion in those areas)Supreme Court: Sangguniang Panlungsod could have defined, among other considerations, in a more precise manner, the area of relocation to avoid such consequences.

b. The challenged ordinances were enacted pursuant to the power of the Sangguniang Panlungsod to “[r]egulate traffic on all streets and bridges; prohibit encroachments or obstacles thereonSupreme Court: The buses, NOT the terminals are encroaching upon public roads. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals.

c. Terminals are public nuisances

Supreme Court: The operation of terminals is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community. Even if they are, they are at most they are nuisance per accidens, not per se.Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial proceedings, as was done in the case at bar

d. The ordinances have actually been proven effective in easing traffic congestionSupreme Court: Whether an ordinance is effective is an issue different from whether it is reasonably necessary.  It is its reasonableness, not its effectiveness, which bears upon its constitutionality.  If the constitutionality of a law were measured by its effectiveness, then even tyrannical laws may be justified whenever they happen to be effective.

6. With respect to resolutions of various barangays in Lucena City supporting the establishment of a common terminal, the SC said that the weight of popular opinion must be balanced with that of an individual’s rights, as the right of JAC in this case

Digested by: Cielo Goño (A2015)

LOCGOV - #055Parayno v. Jovellanos (2006)

Doctrine:A local government is considered to have properly exercised its police powers under the General Welfare clause given the concurrence of the following: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the state; and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive.

Facts:- Petitioner owned a gasoline filling station in Calasiao, Pangasinan.- Some residents petitioned the Sangguniang Bayan (SB) of Calasiao for the closure or transfer of the station to another location on

account of health and safety risks.- Following the investigation of municipal officers, the SB issued Resolution No. 50, recommending to the Mayor the closure or transfer

of the gasoline station, due to the following:o Violation of Sec. 44 of the Official Zoning Code of Calasiao, which prohibits the placement of gasoline service stations within

100m away from any school, church or hospital, as it lies within 100m from a school and a church;o The station is in a thickly populated area, thus endangering the lives and safety of people;o Residents are exposed to the irritating smell of gasoline, leading to of colds, asthma, coughs, etc.o It hampers the flow of traffic.

- Petitioner filed an action for prohibition and mandamus before RTC Dagupan, which dismissed the same on the ground that it would endanger the lives and safety of people should it catch fire.

- Petitioner elevated the case to the CA, which likewise dismissed the same.

- Hence, this appeal.

Petitioner’s arguments:- Petitioner prays for the reversal of the CA judgment dismissing her petition for prohibition and for the issuance of an injunction

against the SB resolution calling for the closure or transfer of her gasoline station.- Petitioner’s business is a gasoline FILLING station, not a gasoline SERVICE station. Hence, it is not within the ambit of Sec. 44. The

principle of ejusdem generis does not operate to take her business within the coverage of the same provision because the law clearly intended to make a distinction between the two.

- The closure or transfer of her gas station is an invalid exercise of the municipality’s police powers.- An HLURB case filed against her predecessor by the private respondent had resolved the same issues in favor of the former, and had

thus effectively barred this action based on the principle of res judicata.

Respondent’s arguments:- While Sec. 44 does not expressly mention gasoline filling stations, a gasoline filling station falls within the former’s coverage following

the principle of ejusdem generis.- The municipality itself was not a party to the HLURB decision, hence one of the requisites for the application of res judicata was not

met.

Issue/s:- WoN gasoline filling stations falls under the contemplation of Sec. 44 of the zoning regulations;- WoN the Municipality properly exercised its police power;- WoN the action is barred by res judicata per the HLURB decision.

Held/Ratio:NO, THE LAW CLEARLY MADE A DISTINCTION BETWEEN GASOLINE FILLING STATIONS AND GASOLINE SERVICE STATIONS. EJUSDEM GENERIS IS NOT APPLICABLE.

NO, THE MUNICIPALITY IMPROPERLY EXERCISED ITS POLICE POWER UNDER THE GENERAL WELFARE CLAUSE- Under the LGC’s General Welfare Clause (Sec. 16), a municipality has the power to take actions and enact measures to promote the

health and general welfare of its constituents.Section 16. General Welfare.― Every 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 technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents xxx.

- A local government is considered to have properly exercised its police powers given the concurrence of the following requisites:o The interests of the public generally, as distinguished from those of a particular class, require the interference of the state;

(refers to EQUAL PROTECTION CLAUSE) ando The means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly

oppressive. (refers to DUE PROCESS CLAUSE) (Lucena Grand Central Terminal v. JAC Liner [2005])- In the instant case, the Municipality of Calasiao failed to comply with the due process clause.

o In making the claim that the station was within 100m from a school or church, records do not show that any attempt at measurement was made, notwithstanding the importance of such fact in ascertaining the existence of a zoning violation. None of the municipal offices tapped to investigate did so.

o It sought to abate the gas station as a nuisance without judicial proceedings – which is only possible when dealing with a nuisance per se (i.e. one affecting the immediate safety of persons and property). A gas station is not such a nuisance, and hence cannot be closed down or transferred summarily.

YES, THE ISSUES IN THIS CASE ARE BARRED BY THE PREVIOUS HLURB DECISION BASED ON THE PRINCIPLE OF RES JUDICATA.

Digested by: Oyie Javelosa

LOCGOV – 56White Light Corp v. City of Manila (2009)Doctrine: The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect. The police measure shall be struck down as an arbitrary intrusion into private rights. The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of.Facts:

1. This petition concerns a Manila city ordinance (Ordinance No. 7744) entitled “An Ordinance Prohibiting Short-Time Admission, Short-Time17 Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila” prohibiting motels and inns within the Ermita-Malate area from offering short-time admission as well as pro-rated or “wash up” rates for such abbreviated stays. The constitutional rights to liberty, due process and equal protection of law are assailed.

2. Malate Tourist and Development Corporation (MTDC), owner of Victoria Court Malate, filed a complaint for declaratory relief with preliminary injunction against the respondent City of Manila represented by Mayor Lim before the RTC. Thereafter, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached complaint-in-intervention, which was approved by the RTC. These 3 companies are components of the Anito Group of Companies, which owns and operates several hotels and motels in Metro Manila.

3. RTC notified the SolGen of the proceedings pursuant to the ROC.4. MTDC withdrew from the case.5. RTC issued a TRO directing the City to cease and desist from enforcing the ordinance. Thereafter, RTC issued a writ of preliminary

injunction ordering the city to desist from the enforcement of the Ordinance. Later, the SolGen filed his Comment arguing that the Ordinance is constitutional.

6. RTC declared that the ordinance is null and void as:a. It “strikes at the personal liberty of the individual guaranteed and jealously guarded by the Constitution. b. Reference was made to the provisions of the Constitution encouraging private enterprises and the incentive to needed

investment, as well as the right to operate economic enterprises. c. The illicit relationships the Ordinance sought to dissuade could nonetheless be consummated by simply paying for a 12-hour

stay.7. CA reversed the decision as the Ordinance as it did not violate the right to privacy or the freedom of movement:

a. It only penalizes the owners or operators of establishments that admit individuals for short time stays.    b. The virtually limitless reach of police power is only constrained by having a lawful object obtained through a lawful method.

The lawful objective of the Ordinance is satisfied since it aims to curb immoral activities. There is a lawful method since the establishments are still allowed to operate.

c. The adverse effect on the establishments is justified by the well-being of its constituents in general.d. Liberty is regulated by law.

8. Hence, this appeal.         Petitioner’s arguments:

1. MTDC: Declare Ordinance unconstitutional insofar as it includes motels and inns as prohibited establishments. As owners of Victoria Court in Manila, it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours.

2. WLC, TC, STDC: the Ordinance directly affects their business interests as operators of drive-in-hotels and motels in Manila3. Petitioners argued that the Ordinance is unconstitutional and void since

17 Less than 12 hours or renting out of rooms more than 2x a day

a. It violates the right to privacy and the freedom of movementb. It is an invalid exercise of police powerc. It is an unreasonable and oppressive interference in their business

Respondent’s arguments:

1. The Ordinance is a legitimate exercise of police power pursuant to:a. Section 458 (4)(iv) of the Local Government Code, which confers on cities, among other local government units “the power to

regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides and transports”

b. Article III, Section 18(kk) of the Revised Manila Charter, thus: “to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment for a single offense”

Issue/s: WON Ordinance 7744 is valid (NO, ORDINANCE IS UNCONSTITUTIONAL)

Held/Ratio:The police measure shall be struck down as an arbitrary intrusion into private rights. The Ordinance makes no distinction between places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and renting out a room more than twice a day. The ban is rooted in the police power as conferred on local government units by the LGC through such implements as the general welfare clause.

All three ordinances concerning the regulation of motels, inns, and other establishments in the City of Manila were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments.

This is another case about the extent to which the State can intrude into and regulate the lives of its citizens.a. Validity of an Ordinance:

i. Philippine jurisprudence : For an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law. The test of a valid ordinance is as follows:(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;

(6) Must not be unreasonable.ii. Validity on substantive due process grounds – Carolene Products case: Since the judiciary would defer to the legislature unless there

is a discrimination against a “discrete and insular” minority or infringement of a “fundamental rights”, standards of judicial review were established: Strict scrutiny for laws dealing with freedom of the mind or restricting the political process

o Focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.

o In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.  The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage,judicial accessand interstate travel.

o Rational basis standard of review for economic legislation

o Laws or ordinances are upheld if they rationally further a legitimate governmental interest Heightened or immediate scrutiny for evaluating classifications based on gender and legitimacy.

o Governmental interest is extensively examined and the availability of less restrictive measures is considered b. Police power: Police power has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant.

It is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls, movie theaters, gas stations and cockpits. The scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nation’s legal system, its use has rarely been denied.

The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals are unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not sanctify any and all means for their achievement.

Those means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to the people.

c. Right to Liberty: Note that the rights contemplated in this case encompass not only the rights of the owners of the establishments but also those of their patrons. The rights at stake herein fall within the same fundamental rights to liberty upheld in City of Manila v. Hon. Laguio, Jr.

Liberty is "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." In accordance with this case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work

where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.

Roth v. Board of Regents: the term denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.

d. General Welfare [TOPICAL]

The Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights.

It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded.

Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights.    As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected.However, this is not in any way meant to take it away from the vastness of State police power whose exercise enjoys the presumption of validity.

A plain reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all susceptible to illicit patronage and subject them without exception to the unjustified prohibition.

Those still steeped in Nick Joaquin-dreams of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the modern metropolis wherever in the world. The solution to such perceived decay is not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring a new grandeur to   Manila.

The behavior which the Ordinance seeks to curtail is already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use.     These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments.

Individual rights may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare.  The State is a leviathan that must be restrained from needlessly intruding into the lives of its

citizens. However well-intentioned the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement of the judiciary provided that such measures do not trample rights this Court is sworn to protect.The notion that the promotion of public morality is a function of the State is as old as Aristotle. The advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a society with relatively little shared morality among its citizens could be functional so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of different interests.

Our democracy is distinguished from non-free societies not with any more extensive elaboration on our part of what is moral and immoral, but from our recognition that the individual liberty to make the choices in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their expression of consent to do so when they take the oath of office, and because they are entrusted by the people to uphold the law.

Even as the implementation of moral norms remains an indispensable complement to governance, that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the tension may often be left to the courts to relieve, it is possible for the government to avoid the constitutional conflict by employing more judicious, less drastic means to promote morality. Digested by: Kimmie Manalo 

LOC GOV – No. 57

Albon v. Fernando (2006)J. Corona

LGUs have police power to prescribe reasonable regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions. Part of this police power is to enact ordinances, such as ordinances providing for the funding of repairs of sidewalks. In this connection, sidewalks are considered public property. Sidewalks of private residential subdivisions are private property and may not be publicly funded , unless they have been donated by the subdivision owner to the local government.

Background

1. The City of Marikina undertook public works projects to widen, clear, and repair the existing sidewalks of Marikina Greenheights Subdivision. It was undertaken by the city government pursuant to an ordinance, like other infrastructure projects relating to roads, streets, and sidewalks previously undertaken by the city.

2. Petitioner Albon then filed a taxpayer’s suit for certiorari, prohibition, and injunction with damages with the RTC of Marikina against respondents (City Mayor Bayani Fernando, City Engineer Alfonso Espirito, Asst. City Engineer Anaki Maderal, and City Treasurer Natividad Cabalquinto).

3. The trial court dismissed petitioner’s action, ruling that the city government of Marikina was authorized to carry out the undertaking pursuant to its inherent police power. Citing White Plains Association v. Legaspi (1991) [held—that when (a strip of land) was withdrawn from the commerce of man as the open space required by law to be devoted for the use of the general public, its ownership was automatically vested in the (LGU) and/or the Republic of the Philippines, without need of paying any compensation to (the developer), although it is still registered in the latter’s name. Its donation by the owner/developer is a mere formality], the court a quo classified the roads and sidewalks inside the Marikina Greenheights Subdivision as public property. Petitioner’s MR was denied.

4. Petitioner’s petition for certiorari, prohibition, injunction, and damages before the CA was likewise dismissed. The appellate court ruled that the questioned ordinance was valid and that the sidewalks of the subdivision were public property, giving imprimatur to the trial court’s ruling. His MR was also denied.

5. Hence this petition.

Petitioner’s Position

6. Petitioner argued before the RTC that:

(a) It was unconstitutional and unlawful for respondents to use government equipment and property, and to disburse public funds of the City of Marikina for the grading, widening, clearing, repair and maintenance of the existing sidewalks ofMarikinaGreenheights Subdivision, for the reason that said sidewalks are private property, the subdivision being owned by a private corporation. Thus, the city government could not use public resources on them, and in doing so, respondents violated the constitutional proscription against the use of public funds for private purposes (Sec. 9, Art. VI), as well as Sec. 335 and 336, LGC, and the Anti-Graft and Corrupt Practices Act.

(b) There was no appropriation for the project.

Respondents’ Position

7. None (N.B. the Court did not seem to have required the respondents to comment, or if it did and the respondents actually submitted their comment, nothing regarding their position was mentioned by the Court at all).

Ruling of the Court

8. LGUs, like the City of Marikina, have police power:

“Like all LGUs, the City of Marikina is empowered to enact ordinances for the purposes set forth in the Local Government Code (RA 7160). It is expressly vested with police powers delegated to LGUs under the general welfare clause of RA 7160 (Sec. 16 thereof). With this power, LGUs may prescribe reasonable regulations to protect the lives, health, and property of their constituents and maintain peace and order within their respective territorial jurisdictions.

“Cities and municipalities also have the power to exercise such powers and discharge such functions and responsibilities as may be necessary, appropriate or incidental to efficient and effective provisions of the basic services and facilities, including infrastructure facilities intended primarily to service the needs of their residents and which are financed by their own funds. These infrastructure facilities include municipal or city roads and bridges and similar facilities.”

9. The lower courts were correct in holding that the questioned ordinance is valid:

“There is no question about the public nature and use of the sidewalks in theMarikinaGreenheights Subdivision. One of the ‘whereas clauses’ of PD 1216 (Defining ‘Open Space’ in Residential Subdivisions and Amending Section 31 of PD 957 Requiring Subdivision Owners to Provide Roads, Alleys, Sidewalks and Reserve Open Space for Parks or Recreational Use), which amended PD 957 (Regulating the Sale of Subdivision Lots and Condominiums, Providing Penalties for Violations Thereof) declares that open spaces, roads, alleys and sidewalks in a residential subdivision are for public use and beyond the commerce of man. In conjunction herewith, PD957, as amended by PD 1216, mandates subdivision owners to set aside open spaces which shall be devoted exclusively for the use of the general public.

“Thus, the trial and appellate courts were correct in upholding the validity of [the questioned ordinance]. It was enacted in the exercise of the City of Marikina’s police powers to regulate the use of sidewalks...”

10. The lower courts however erred when they invoked White Plains Association (1991):

“The ruling in the 1991 White Plains Association decision relied on by both the trial and appellate courts was modified by this Court in 1998 in White Plains Association v. Court of Appeals. CitingYoung v. City of Manila(1941) this Court held in its 1998 decision that subdivision streets belonged to the owner until donated to the government or until expropriated upon payment of just compensation.

“The word ‘street,’ in its correct and ordinary usage, includes not only the roadway used for carriages and vehicular traffic generally but also the portion used for pedestrian travel. The part of the street set aside for the use of pedestrians is known as a sidewalk.

“Moreover, under subdivision laws, lots allotted by subdivision developers as road lots include roads, sidewalks, alleys and planting strips. Thus, what is true for subdivision roads or streets applies to subdivision sidewalks as well. Ownership of the sidewalks in a private subdivision belongs to the subdivision owner/developer until it is either transferred to the government by way of donation or acquired by the government through expropriation.”

11. Sec. 335, LGC is clear and specific that no public money or property shall be appropriated or applied for private purposes, in consonance with the fundamental principle in local fiscal administration that local government funds and monies shall be spent solely for public purposes (Sec. 305[b], LGC):

“In Pascual v. Secretary of Public Works(1960)the Court laid down the test of validity of a public expenditure: it is the essential character of the direct object of the expenditure which must determine its validity and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the State resulting from the promotion of private interests and the prosperity of private enterprises or business does not justify their aid by the use of public money.

“In Pascual, the validity of RA 920 (“An Act Appropriating Funds for Public Works”) which appropriated P85,000 for the construction, repair, extension and improvement of feeder roads within a privately-owned subdivision was questioned. The Court held that where the land on which the projected feeder roads were to be constructed belonged to a private person, an appropriation made by Congress for that purpose was null and void.

“In Young v. City of Manila (1941) the City of Manila undertook the filling of low-lying streets of the Antipolo Subdivision, a privately-owned subdivision. The Court ruled that as long as the private owner retained title and ownership of the subdivision, he was under the obligation to reimburse to the city government the expenses incurred in land-filling the streets.”

12. The subdivision laws provide that it is the registered owner or developer of a subdivision who has the responsibility for the maintenance, repair and improvement of road lots and open spaces of the subdivision prior to their donation to the concerned LGU. The owner or developer shall be deemed relieved of the responsibility of maintaining the road lots and open space only upon securing a certificate of completion and executing a deed of donation of these road lots and open spaces to the LGU.

“Therefore, the use of LGU funds for the widening and improvement of privately-owned sidewalks is unlawful as it directly contravenes Section 335 of RA 7160. This conclusion finds further support from the language of Section 17 of RA 7160 which mandatesLGUs to efficiently and effectively provide basic services and facilities. The law speaks of infrastructure facilities intended primarily to service the needs of the residents of the LGU and ‘which are funded out of municipal funds.’ It particularly refers to ‘municipal roads and bridges’ and ‘similar facilities.’

“Applying the rules of ejusdem generis, the phrase ‘similar facilities’ refers to or includes infrastructure facilities like sidewalks owned by the LGU. Thus, RA 7160 contemplates that only the construction, improvement, repair and maintenance of infrastructure facilities owned by the LGU may be bankrolled with local government funds.”

13. There are factual matters that need to be addressed:

“Clearly, the question of ownership of the open spaces (including the sidewalks) in Marikina Greenheights Subdivision is material to the determination of the validity of the challenged appropriation and disbursement made by the City of Marikina. Similarly significant is the character of the direct object of the expenditure, that is, the sidewalks.

“Whether V.V. Soliven, Inc. [private corporation who owns Marikina Greenheights Subdivision] has retained ownership of the open spaces and sidewalks or has already donated them to the City of Marikina, and whether the public has full and unimpeded access to the roads and sidewalks of Marikina Greenheights Subdivision, are factual matters. There is a need for the prior resolution of these issues before the validity of the challenged appropriation and expenditure can be determined.”

14. The case is therefore remanded.

Digester: P.R. Manalo (A2015)

LOCGOV - 58City of Manila v. Chinese Community (1919)

Doctrine: When the statute does not designate the property to be taken nor how may be taken, then the necessity of taking particular property is a question for the courts.

Facts: In 1916, the City of Manila presented a petition in the Court of First Instance, praying that certain lands, therein particularly

described, be expropriated for the purpose of constructing a public improvement (extension of Rizal Avenue). Defendants (Chinese Community, Tambuntind, De Delgado, etc) conteds (a) that no necessity existed for said expropriation and (b)

that the land in question was a cemetery, which had been used as such for many years, and was covered with sepulchres and monuments, and that the same should not be converted into a street for public purposes.

CoFI: denied the expropriation.

Petitioner’s arguments: Once it has established the fact, under the law, that it has authority to expropriate land, it may expropriate any land it may desire; that

the only function of the court in such proceedings is to ascertain the value of the land in question; that neither the court nor the owners of the land can inquire into the advisible purpose of purpose of the expropriation or ask any questions concerning the necessities therefor; that the courts are mere appraisers of the land involved in expropriation proceedings, and, when the value of the land is fixed by the method adopted by the law, to render a judgment in favor of the defendant for its value.

Section 248 of the Charter of Manila gives the Supreme Court authority to inquire into the right of expropriation on the part of the plaintiff. If the Supreme Court on appeal shall determine that no right of expropriation existed, it shall remand the cause to the Court of First Instance with a mandate that the defendant be replaced in the possession of the property and that he recover whatever damages he may have sustained by reason of the possession of the plaintiff.

It is contended on the part of the plaintiff that the phrase in said section, "and if the court shall find the right to expropriate exists," means simply that, if the court finds that there is some law authorizing the plaintiff to expropriate, then the courts have no other function than to authorize the expropriation and to proceed to ascertain the value of the land involved; that the necessity for the expropriation is a legislative and not a judicial question.

Respondent’s arguments: There exists no necessity for the construction of the road. It was not necessary or expedient to expropriate said land for street

purposes. Existing street and roads furnished ample means of communication for the public in the district covered by such proposed expropriation. That the plaintiff was without right or authority to expropriate said cemetery or any part or portion thereof for street purposes; and that the expropriation, in fact, was not necessary as a public improvement.

Issue/s: WON the court may inquire into and and hear proof upon, the necessity of the expropriation proceedings by the city of Manila. Yes. When the statute does not designate the property to be taken nor how may be taken, then the necessity of taking particular property is a question for the courts.

Held/Ratio: According to its Charter (Sect 2429 of Act No. 2711), the city of Manila has authority to expropriate private lands for public purposes. Whether the courts can intervene except for the purpose of determining the value of the land in question depends largely upon

particular constitutional or statutory provisions. If the legislature under proper authority should grant the expropriation of a certain or particular parcel of land for some

specified public purpose, that the courts would be without jurisdiction to inquire into the purpose of that legislation. If, upon the other hand, however, the Legislature should grant general authority to a municipal corporation to expropriate

private land for public purposes, we think the courts have ample authority in this jurisdiction. The power of the court is not limited to examine the statutes simply for the purpose of ascertaining whether a law exists authorizing

the petitioner to exercise the right of eminent domain and whether or not a law exists permitting the plaintiff to expropriate. The right of expropriation is not an inherent power in a municipal corporation, and before it can exercise the right some law

must exist conferring the power upon it. The court can also determine if the right or authority is being exercised in accordance with the law. In this case there, two

conditions imposed upon the authority of the City: (1) the land must be private and (2) the purpose must be public

Wheeling, etc. R. R. Co. vs. Toledo, Ry, etc., Co (U.S. Case): But when the statute does not designate the property to be taken nor how may be taken, then the necessity of taking particular property is a question for the courts. Where the application to condemn or appropriate is made directly to the court, the question (of necessity) should be raised and decided in limene.

Whether the purpose for the exercise of the right of eminent domain is public, is a question of fact. The courts were granted by law the the right to inquire into, and hear proof upon those questions.

The general power to exercise the right of eminent domain must not be confused with the right to exercise it in a particular case. The power of the legislature to confer, upon municipal corporations and other entities within the State, general authority to exercise the right of eminent domain cannot be questioned by the courts, but that general authority of municipalities or entities must not be confused with the right to exercise it in particular instances. The moment the municipal corporation or entity attempts to exercise the authority conferred, it must comply with the conditions accompanying the authority. The necessity for conferring the authority upon a municipal corporation to exercise the right of eminent domain is admittedly within the power of the legislature. But whether or not the municipal corporation or entity is exercising the right in a particular case under the conditions imposed by the general authority, is a question which the courts have the right to inquire into.

The conflict in the authorities upon the question whether the necessity for the exercise of the right of eminent domain is purely legislative and not judicial, arises generally in the wisdom and propriety of the legislature in authorizing the exercise of the right of eminent domain instead of in the question of the right to exercise it in a particular case (Creston Waterworks Co. vs. McGrath –U.S. Case)

Furthermore, the record does not show conclusively that the plaintiff has definitely decided that their exists a necessity for the appropriation of the particular land described in the complaint. Exhibits clearly indicate that the municipal board believed at one time that other land might be used for the proposed improvement, thereby avoiding the necessity of distributing the quiet resting place of the dead.

Also, the city of Manila cannot appropriate it for public use. The city of Manila can only expropriate private property. The cemetery in question seems to have been established under governmental authority, may be used by the general community of Chinese. The cemetery is public property.

Dissenting opinion: 1. Street: It may be admitted that, upon the evidence before us, the projected condemnation of the Chinese Cemetery is unnecessary and perhaps ill-considered. Nevertheless I concur with Justice Moir in the view that the authorities of the city of Manila are the proper judges of the propriety of the condemnation and that this Court should have nothing to do with the question of the necessity of the taking.

2. Moir

It is a right of the city government to determine whether or not it will construct streets and where, and the court's sole duty was to see that the value of the property was paid the owners after proper legal proceedings ascertaining the value.

Digested by: Cari Mangalindan

LOCGOV - #59Favis v. City of Baguio & the Shell Company of the Phils, Ltd. (1969)

Doctrine: To determine whether a municipal body has a power to vacate or withdraw a street from public use, look at its charter. If empowered, the city council is the authority competent to determine whether or not a certain property is still necessary for public use.

Facts: Antonio Favis bought a parcel of land (Lot 2E3B3B2) from the Assumption Convent, Inc. The said lot is bounded on the southwest by

Lot 2E3B3B1 (proposed road) owned by Assumption Convent, Inc. and part of subdivision plan PSD 2179. Simultaneous with the sale, Assumption donated to the Baguio City Lot 2E3B3B1 for road purposes. This donated road was used by

Favis as his means of egress and ingress from his residence to a public street (Lapu-Lapu St). Lapu-Lapu St. is actually Lot 27 in the amendatory plan and is a portion of a big tract of land known as Baguio Market subdivision,

registered in the name of the city. From its intersecting point with Dagohoy Street and going northward, Lapu-Lapu Street is 8 m wide. It abruptly ends as it meets

portions of two lots — the donated road aforementioned and the lot owned by Olmina Fernandez. Fernandez' lot is fenced, with buildings; and there is a sharp depression of at least 2 meters at the precise point it meets Lapu-Lapu Street. Ocular inspection conducted by the trial court disclosed that at the exact connecting point of Lapu-Lapu Street and the donated road (which leads to appellant's land), the road opening is only 2.5 meters wide.

Lot 25 (400 sq m) of the Baguio Market Subdivision is northernmost in said subdivision. Immediately next to it, to the north, is the lot of Olmina Fernandez aforesaid. As far back as June, 1947, the City, by virtue of Resolution No. 115 of the City Council of Baguio leased this Lot 25 to Shell for a ten-year period renewable for another ten years. Shell constructed thereon a service station.

In 1961, the City Council of Baguio passed Resolution No. 132 authorizing the City thru its Mayor to lease to Shell two parcels of land: Lot 25 of the Market Subdivision (Lot A on sketch plan) & a parcel of land containing an area of 100 sq. m. more or less, marked as "Lot B" on the sketch plan. Note: Lot 25 (Lot A) is the same lot leased to Shell way back in June, 1947 and the lease of Lot B is merely an addition. This additional area taken from Lapu-Lapu Street is 5 m wide and 20 meters long and abuts Lot 25.

Subsequently, the City, thru its Mayor entered into a formal contract of lease with Shell. Shell filed for a building permit to construct a bigger station on the leased premises. The Office of the City Engineer noted that Lot B is

for public use, and may not be leased.

Antonio C. Favis lodged a letter-protest against the additional lease made in favor of Shell. He claimed that it would diminish the width of Lapu-Lapu Street to five meters only; that it would destroy the symmetry of the said street thus making it look very ugly; and that the City was bereft of authority to lease any portion of its public streets in favor of anyone.

The City Council of Baguio passed Resolution No. 215, amending Resolution No. 132 by converting that "portion of Lapu-Lapu Street lying southeast from Lot B of the sketch plan beginning at this portion's intersection with Dagohoy Street, into an alley 5.00 meters wide (4 m. now in actual use); declaring for this purpose, that said Lot B shall not be a part of this alley.

Favis commenced suit for the annulment of the lease contract with damages. He prayed that (1) defendants be ordered to stop, remove and/or demolish whatever constructions had been introduced at the additional leased area on Lapu-Lapu Street; (2) the building permit and contract of lease entered into by and between the defendants be cancelled and revoked for being null and void; and (3) defendants be directed to pay damages. Favis filed a complaint for the restoration of the original measurement (8 m wide) of the dead end.

Issue: W/N the resolutions are valid. (YES)

Petitioner’s arguments: (Respondent’s argument were not restated in the case)1. The questioned resolutions narrowed down, much to his prejudice, the width of Lapu-Lapu Street at its connecting point with the donated road which, in turn, leads to his land. The reduction of the usable width from 8 m to 4 m cannot be done because said resolutions violate EO 113 issued by Pres. Magsaysay:IV. MUNICIPAL ROADS: All highways not included in the above classifications, Municipal and city roads shall have a right-of-way of not less than ten (10) meters; provided that the principal streets of town sites located on public lands shall have a width of sixty (60) meters and all other streets a width of not less than fifteen (15) meters.

HELD: The 2.5 meter opening connecting the donated road and Lapu-Lapu Street has always been that wide since the donated road was

opened. The occupancy by Shell of a portion of the road right-of-way did not in any way put appellant to any more inconvenience than he already had. 

The resolutions in question do not have the effect of decreasing the width of the opening because said opening is far from the leased portion of Lapu-Lapu St. The said leased portion is on the left side of Lapu-Lapu Street, whereas the opening lies on the right uppermost part of Lapu-Lapu Street. That leased strip does not reach said opening.

The EO could not have been violated because even before its promulgation, Lapu-Lapu St. was only 8 m wide, and the said EO did not demand widening to 10 m of existing streets. Doing so would have entailed huge expenditure on municipal corporations as well which have streets less than 10 meters wide for compensation for the expropriation of private property would have to be given.

2. The city council does not have the power to close city streets like Lapu-Lapu St. He asserts that since municipal bodies have no inherent power to vacate or withdraw a street from public use, there must be a specific grant by the legislative body to the city or municipality concerned.

HELD:

The city is explicitly empowered to close a city street pursuant to subsection (L) of Sec. 2558 of the Baguio Charter which grants it the power:To provide for laying out, opening, extending, widening, straightening, closing up, constructing, or regulating, in whole or in part, any public plaza, square, street, sidewalk, trail, park, waterworks, or water remains, or any cemetery, sewer, sewer connection or connections, either on, in, or upon public or private property

Unson v. Lacson illustrates the converse rule. In that case there was no legal provision specifically vesting in the City of Manila the power to close Callejon del Carmen. The significance of this silence becomes apparent when contrasted with section 2246 of the Revised Administrative Code, explicitly vesting in municipal councils of regularly organized municipalities the power to close any municipal road, street, alley, park or square, provided that persons prejudiced thereby are duly indemnified, and that the previous approval of the Department Head shall have been secured. The express grant of such power to the aforementioned municipalities and the absence of said grant to the City of Manila lead to no other conclusion than that the power was intended to be withheld from the latter.

Appellant may not challenge the city council's act of withdrawing a strip of Lapu-Lapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street.

The city council is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed.

Deemed as material factors which a municipality must consider in deliberating upon the advisability of closing a street are: "the topography of the property surrounding the street in the light of ingress and egress to other streets; the relationship of the street in the road system throughout the subdivision; the problem posed by the 'dead end' of the street; the width of the street; the cost of rebuilding and maintaining the street as contrasted to its ultimate value to all of the property in the vicinity; the inconvenience of those visiting the subdivision; and whether the closing of the street would cut off any property owners from access to a street."

Factors considered by the City Council of Baguio in vacating a portion of Lapu-Lapu St: that portion of the road does not have much traffic, being in fact a dead end street and the conversion of this portion would neither prejudice nor damage any person or property; in the subdivision scheme of the burned area of the City Market Subdivision, already approved by the City Council, provision was made for another road behind Lapu-Lapu Street interesecting Dagohoy Street; the 2.5 opening is sufficient for Plaintiff to enter and exit from the lot he purchased & the present road rendered narrow is sufficient for the needs of the plaintiff; and that the portion leased to Shell Company was not necessary for public use.

Since the leased strip of 100 square meters was withdrawn from public use, it necessarily follows that such leased portion becomes patrimonial property (Art. 422 of the CC). Therefore, it may be given in lease. Note that among the charter powers given the City of Baguio (Sec. 2541) is to "lease real property, for the benefit of the city"

3. Appellant argues that by reducing the original width of Lapu-Lapu Street, his entrance and exit to and from his property has become very difficult; it was now impossible for his big trucks and trailers to turn around; it made the area around it very dangerous in case of fire; and that it has caused perpetual danger, annoyance, irreparable loss and damage to the public in general & plaintiff in particular.

HELD:

The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. To warrant recovery of damages, the property owner must show that the situation is such that he has sustained special damages.

No private right of appellant has been invaded. In fact, the court has found that the remaining portion of Lapu-Lapu St., is sufficient for the needs of appellant and that the leased portion subject of this suit was not necessary for public use. Furthermore, it is physically impossible to connect Lapu-Lapu Street in its entire width — 8 m — with the area donated to the City because the only outlet between them is 2.5 m wide.

Also, appellant has testified that turning around at the original Lapu-Lapu St. or at the junction of Lapu-Lapu St. and the donated road has not been tried before and that his trucks actually do their maneuvering at the intersection of Dagohoy Street and Lapu-Lapu Street. 

The Constitution does not undertake to guarantee to a property owner the public maintenance of the most convenient route to his door. When he acquires city property, he does so in tacit recognition of these principles. If, subsequent to his appreciation, the city authorities abandon a portion of the street to which his property is not immediately adjacent, he may suffer loss because of the inconvenience imposed, but the public treasury cannot be required to recompense him.

Digested by: Korina Manibog

060 – Local GovernmentPower to Open and Close Roads; Factors to Consider in Vacating a Street

Sangalang vs. Intermediate Appellate Court (1989)

Doctrine: The opening of streets to traffic by the Mayor which was warranted by the demands of common good is a valid exercise of police power.

Facts: Petitioner Bel-Air Village Association (BAVA) allege that Jupiter Street is for the exclusive use of Bel-Air Village residents. Petitioner also relies on its ownership of the streets which it should not be deprived without due process of law and without just

compensation.

Respondents allege that upon the instructions of Mayor Nemesio T. Yabut, studies were made by the other respondents on the feasibility of opening streets in Bel-Air Village calculated to alleviate traffic congestions along the public streets adjacent to Bel-Air Village.

Respondents also claim that the representatives of petitioner, particularly its president, Rufino Santos had agreed to the opening of Bel-Air Village streets. Regarding Jupiter Street, the Municipality opened it because public welfare demanded its opening which allegation the petitioner never questioned. With respect to Orbit Street, whose opening was temporarily suspended, it was opened

only after another meeting attended by Rufino Santos who agreed to the opening of the street from J.P. Rizal Avenue up to Imelda Avenue and later up to Jupiter Street, subject to certain conditions.

Respondents specifically cited Section 44 of the Land Registration Act No. 496.

Issue: W/N the Mayor of Makati could have validly opened Jupiter and Orbit Streets to vehicular traffic (YES)

Held/Ratio:The Supreme Court cited its ruling in a prior case also entitled Sangalang vs. IAC, that the opening of Jupiter Street was warranted by

the demands of the common good, in terms of traffic decongestion and public convenience. The opening of Orbit Street is also upheld for the same rationale.

BAVA’s claims that the demolition of the gates at Orbit and Jupiter Streets amounts to deprivation of property without due process of law or expropriation without just compensation are without merit. The act of the Mayor falls within the police power. Police power, unlike the power of eminent domain, is exercised without provisions for just compensation.

The fact that the opening up of Orbit Street to vehicular traffic has led to the loss of privacy of Bel-Air residents, does not render the exercise of police power unjustified. The duty of a local executive is to take care of the needs of the greater number, in many cases, at the expense of the minority.

Digested by: Irah Peñalber (A2015)

LOCGOV - #61Figuracion v Libi (2007)Doctrine: The Resolutions issued by Cebu City, in exercise of its regular and official functions, constitute clear and positive evidence of the intention of Cebu City to return or reconvey to the former owner, by way of sale, the portion of the expropriated property.Facts:

Galileo Figuracion was the owner of Lot No. 899-D-2 in Cebu City. In 1948, the local government of Cebu City expropriated the said lot, consisting of 474 sq. m., to be part of N. Escario Street. Cebu City paid P23,700 for this lot.

The Cebu City Resolution No. 330 was passed, approving the reconveyance to Isagani Figuracion, successor-in-interest of Galileo Figuracion, of the unused portion of Lot 899-D-2. This unused portion was designated as Lot 899-D-2-A, consisting of 84 sq. m.

2 years later, a resurvey was conducted and it was found out that Lot 899-D-2-A actually measures 130 sq. m. Therefore, the Sangguniang Panlungsod issued Resolution No. 2345 approving the reconveyance of 130 sq. m. of Lot 899-D-2.

[First Case]The respondents were using Lot 899-D-2-A and refused to vacate the same despite demand. Petitioners filed a complaint for unlawful detainer in the MTC.

o MTC declared petitioners entitled to the possession of said lot and ordered respondents to remove the fence they had constructed therein. RTC and the CA affirmed.

[Second Case] Respondents filed a complaint for easement, asking that they be granted a right of way over the said lot. However, respondents amended their complaint twice, resulting in a different cause of action. The amended complaint prayed for the annulment of Resolutions No. 330 and 2345, the deed of sale in favor of Isagani Figuracion and the TCT.

o RTC decided in favor of respondents, nullifying Resolutions No. 330 and 2345, the Deed of Sale and the TCT. CA affirmed.

Petitioner’s arguments (regarding the second case): The complaint filed by the respondents is barred by the MTC decision in the first case, as affirmed by the RTC and CA. Petitioners also challenge the legal standing of respondents to question the Sangguniang Panlungsod resolutions.

Respondent’s arguments: When they bought Lot No. 899-D-1, they did so in the belief that they had an outlet to Escario Street through Lot No. 899-D-2, then

owned by the local government of Cebu City. Lot 899-D-2, being a road lot, cannot be the subject of sale since it is outside the commerce of man.

Issue: w/n respondents have a legal standing to question the reconveyance of Lot 899-D-2-A (NO) [TOPICAL] w/n the reconveyance of the subject lot by Cebu City to the petitioners is valid (YES)

Held/Ratio: Respondents have no interest in the title or possession of Lot No 899-D-2-A. They are not the proper parties to file for annulment of

petitioners’ title. The case filed by respondents is for reversion of the subject lot. Reversion is a proceeding by which the State seeks the return of

lands of the public domain or the improvements thereon through the cancellation of private title erroneously or fraudulently issued over it.

Section 101 of the Public Land Act states: All actions for the reversion to the government of lands of the public domain or improvements thereon shall be instituted by the Solicitor General or the officer acting in his stead, in the proper courts, in the name of the Commonwealth [now Republic] of the Philippines.

The sole interest of the respondents is in the use of the property as access to Escario Street. Such interest is merely tangential to any issue regarding the ownership and possession of the property. It is not sufficient to vest legal standing to respondents to sue for the reversion of the property.

[TOPICAL]

The general rule is local roads used for public service are considered public property under the absolute control of Congress. However, under Section 10, Chapter II of the Local Government Code, the Congress delegated to political subdivisions some control of local roads.

Section 21 of the LGC provides: Closure and Opening of Roads-(a) A local government unit may, pursuant to an ordinance, permanently or temporarily close or open any local road, alley, park, or square falling within its jurisdiction: Provided, however, That in case of permanent closure, such ordinance must be approved by at least two-thirds (2/3) of all the members of the sanggunian, and when necessary, an adequate substitute for the public facility that is subject to closure is provided.

Through RA 3857, the Revised Charter of Cebu City, the Congress delegated to said political subdivision the following authority to regulate its city streets: Section 31. Legislative powers. Any provision of law and executive orders to the contrary notwithstanding, the City Council shall have the following legislative powers: xx to close any city road, street, alley, boulevard, avenue, park or square. Property thus withdrawn from public servitude may be used or conveyed for any purpose for which other real property belonging to the city may be lawfully used or conveyed.

The other requirement for a valid reconveyance is establishing that the former owner or his successors-in-interest have the right to repurchase said property.

o As held by the Court in Fery v Municipality of Cabanatuan: When private land is expropriated for a particular public use, and that particular public use is abandoned, does the land so expropriated return to its former owner? The answer to that question depends upon the character of the title acquired by the expropriator, whether it be the State, a province, a municipality, or a corporation which has the right to acquire property under the power of eminent domain. If, for example, land is expropriated for a particular purpose, with the condition that when that purpose is ended or abandoned the property shall return to its former owner, then, of course, when the purpose is terminated or abandoned the former owner reacquires the property so expropriated. If, for example, land is expropriated for a public street and the expropriation is granted upon condition that the city can only use it for a public street, then, of course, when the city abandons its use as a public street, it returns to the former owner, unless there is some statutory provisions to the contrary. If, upon the contrary, however, the decree of expropriation gives to the entity a fee simple title, then, of course, the land becomes the absolute property of the expropriator, whether it be the State, a province, or municipality, and in that case the non-user does not have the effect of defeating the title acquired by the expropriation proceedings.

The Court also held in Moreno v Mactan-Cebu International Airport Authority that where there is preponderant evidence of the existence of a right to repurchase, the former owner of an expropriated property is entitled to exercise such option once the public purpose for which the local government initially intended the expropriated property is abandoned or not pursued.

It was also held in the cases Mactan-Cebu International Airport Authority v CA, Reyes v National Housing Authority and Air Transportation Office v Gopuco, Jr. that where there is insufficient evidence that the former owners of expropriated properties were granted the right to repurchase the same, the latter may not insist on recovering their properties even when the public purpose for which said properties were expropriated is abandoned.

There can be no doubt that Cebu City repudiated its right to use the subject lot for other public purpose. Instead, it recognized the right of the former owner or his successor-in-interest to repurchase the same.

Digested by: Katz Rivera (A2015)

LOCGOV #62 – POWER OF EMINENT DOMAIN

SPOUSES YUSAY vs. COURT OF APPEALS, CITY MAYOR AND CITY COUNCIL OF MANDALUYONG CITY (2011)

Doctrine: Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance in order to exercise the power of eminent domain.

Facts:

1. The petitioners owned a parcel of land with an area of 1,044 square meters situated between Nueve de Febrero Street and Fernandez Street in Barangay Mauway, Mandaluyong City. Half of their land they used as their residence, and the rest they rented out to nine other families.

2. On October 2, 1997, the Sangguniang Panglungsod of Mandaluyong City adopted Resolution No. 552, Series of 1997, to authorize then City Mayor Benjamin S. Abalos, Sr. to take the necessary legal steps for the expropriation of the land of the petitioners for the purpose of developing it for low cost housing for the less privileged but deserving city inhabitants.

3. Notwithstanding that the enactment of Resolution No. 552 was but the initial step in the City’s exercise of its power of eminent domain granted under Section 19 of the Local Government Code of 1991, the petitioners became alarmed, and filed a petition for certiorari and prohibition in the RTC, praying for the annulment of Resolution No. 552 due to its being unconstitutional, confiscatory, improper, and without force and effect.

4. On January 31, 2001, the RTC ruled in favor of the City and dismissed the petition for lack of merit, opining that certiorari did not lie against a legislative act of the City Government. However, on February 19, 2002, the RTC, acting upon the petitioners’ motion for reconsideration, set aside its decision and declared that Resolution No. 552 was null and void.

5. In its decision promulgated on October 18, 2002, the CA concluded that the reversal of the January 31, 2001 decision by the RTC was not justified because Resolution No. 552 deserved to be accorded the benefit of the presumption of regularity and validity absent any sufficient showing to the contrary.

Petitioner’s Argument:

1. Petitioner’s insists that the terms "resolution" and "ordinance" are synonymous and that the resolution issued by the Sangguniang Panglungsod is a prerequisite in its exercise of the power of eminent domain. Hence such issue can adjudicated.

2. Petitioner also argues that its Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation.

Issues:

1. WON certiorari lies to assail the issuance of a resolution by the Sanggunian Panglungsod? (NO)2. WON the petition should be dismissed? (YES)

Held: SC affirms the decision promulgated on October 18, 2002 in CA-G.R. SP No. 70618.

1. Certiorari does not lie to assail the issuance of a resolution by the Sanggunian Panglungsod.

Certiorari did not lie against the Sangguniang Panglungsod, which was not a part of the Judiciary settling an actual controversy involving legally demandable and enforceable rights when it adopted Resolution No. 552, but a legislative and policy-making body declaring its sentiment or opinion

Nor did the Sangguniang Panglungsod abuse its discretion in adopting Resolution No. 552. To demonstrate the absence of abuse of discretion, it is well to differentiate between a resolution and an ordinance.

2. The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of Appeals committed no reversible error in affirming the trial court’s Decision which dismissed the expropriation suit.

A resolution like Resolution No. 552 that merely expresses the sentiment of the Sangguniang Panglungsod is not sufficient for the purpose of initiating an expropriation proceeding.

Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain:1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property.

2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless.

3. There is payment of just compensation, as required under Section 9 Article III of the Constitution and other pertinent laws.

4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter.

o If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance.

The argument of the petitioner that its Sangguniang Bayan passed an ordinance on October 11, 1994 which reiterated its Resolution No. 93-35, Series of 1993, and ratified all the acts of its mayor regarding the subject expropriation, is of no merit.

o In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing.

In view of the absence of the proper expropriation ordinance authorizing and providing for the expropriation, the petition for certiorari filed in the RTC was dismissible for lack of cause of action.

3. Prohibition does not lie against expropriatio.n

The rule and relevant jurisprudence indicate that prohibition was not available to the petitioners as a remedy against the adoption of Resolution No. 552, for the Sangguniang Panglungsod, by such adoption, was not exercising judicial, quasi-judicial or ministerial functions, but only expressing its collective sentiment or opinion.

o Here, however, the remedy of prohibition was not called for, considering that only a resolution expressing the desire of the Sangguniang Panglungsod to expropriate the petitioners’ property was issued. As of then, it was premature for the petitioners to mount any judicial challenge, for the power of eminent domain could be exercised by the City only through the filing of a verified complaint in the proper court.

Before the City as the expropriating authority filed such verified complaint, no expropriation proceeding could be said to exist. Until then, the petitioners as the owners could not also be deprived of their property under the power of eminent domain

Digested by Loraine Saguinsin (A2015)

LOCGOV - # 063 Province of Camarines Sur v. CA (1993)Petitioner/s: Province of Camarines Sur, Represented by Gov. Luis R. Villafuerte and Hon. Benjamin V. Panga (as Presiding Judge of RTC Branch 33 at Pili, Camarines Sur) Respondent/s: Court of Appeals (Third Division); Ernesto San Joaquin and Efren San Joaquin (San Joaquins)

Doctrine: The power of expropriation is superior to the power to distribute lands under the land reform program.

Facts: (SC First Division; Ponente:Quiason, J.; Nature: Appeal by Certiorari)

1. The Sangguniang Panlalawigan of the Province (SP) of Camarines Sur (Camarines Sur) passed Resolution No. 129, which authorizes the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site. ( Purpose of expropriation: To establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees.)2. RTC, Pili, Camarines Sur (presided by the Hon. Panga):

2 separate cases for expropriation: Filed by Camarines Sur (through its Governor) pursuant to the Resolution against the San Joaquins.

Motion for the issuance of a writ of possession filed by Camarines Sur: The San Joaquins failed to appear. Motion to dismiss (MTD) filed by the San Joaquins:

o Ground: Inadequacy of the price o ered for their property. ffo Denied . RTC authorized Camarines Sur to take possession of the property upon the deposit with the Clerk of Court of

P5,714.00. Writ of possession issued by the RTC. 2 Motions filed by the San Joaquins: Motion for relief from the order, authorizing Camarines Sur to take possession of their

property and Motion to admit an amended MTD; Both motions denied.3. Court of Appeals

San Joaquins’ prayer (Private respondents in the SC) : o That Resolution No. 129 of the SP be declared null and void; o That the complaints for expropriation be dismissed; and o That the following orders be set aside (a) denying the MTD, (b) allowing Camarines Sur to take possession of the property

subject of the expropriation, and (c) denying the motion to admit the amended MTD. o That an order be issued to restrain the RTC from enforcing the writ of possession, and thereafter to issue a writ of injunction.

Solicitor General (asked by the CA to give his Comment to the petition):o There was no need for the approval by the O ce of the President of the exercise by the SP of the ffi right of eminent domain

under Section 9 of the Local Government Code (LGC) (B.P. Blg. 337). o Camarines Sur must first secure the approval of the Department of Agrarian Reform (DAR) of the plan to expropriate the lands of

petitioners for use as a housing project. CA set aside the RTC orders : (a) allowing Camarines Sur to take possession of San Joaquins’ lands; and (b) denying the admission of

the amended MTD. CA ordered the RTC: To suspend the expropriation proceedings until after Camarines Sur shall have submitted the requisite

approval of the DAR to convert the classification of the property of the private respondents from agricultural to non-agricultural land.

Petitioner’s argument(s): The petitioner asks for the CA decision to be set aside and for the expropriation of the said property to be allowed based on the following.

It has the authority to initiate the expropriation proceedings under Sections 4 and 7 LGC. The expropriations are for a public purpose.

Its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law or CAR Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the DAR before a parcel of land can be reclassified from an agricultural to a non-agricultural land.

Respondent’s argument(s): The Province of Camarines Sur must comply with Section 65 CAR Law and must first secure the approval of the DAR of the plan to expropriate the lands of the San Joaquins.

Issue/s: W/N the expropriation of agricultural lands by local government units (LGU) is subject to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program. (NO.)

Held/Ratio: 1. Ruling:

Petition granted and the CA decision set aside insofar as it: o Nullifies the RTC's order allowing the Province of Camarines Sur to take possession of private respondents'

property; o Orders the trial court to suspend the expropriation proceedings; and o Requires the Province of Camarines Sur to obtain the approval of the DAR to convert or reclassify private respondents’

property from agricultural to non-agricultural use. CA decision is affirmed insofar as it sets aside the RTC order (denying the amended MTD of the private respondents).

2. The expropriation of agricultural lands by LGU is not subject to the prior approval of the DAR. Heirs of Juancho Ardana v. Reyes: The Court viewed the power of expropriation as superior to the power to distribute lands

under the land reform program. Joslin Mfg. Co. v. Providence: In delegating the power to expropriate, the legislature may retain certain control or impose certain

restraints on the exercise thereof by the local governments.o While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise

of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. Section 9 LGC: This does not intimate in the least that LGUs must first secure the approval of the DAR for the conversion of

lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. CAR Law : There is no provision, which expressly subjects the expropriation of agricultural lands by LGUs to the control of the

DAR. Sec. 65 CAR Law : This was the closest provision of law that the CA could cite to justify the intervention of the DAR in

expropriation matters. The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award."

Rules on conversion of agricultural lands found in Secs. 4 (k) and 5 (1) E.O No. 129 - A, Series of 1987 : This cannot be the source of the authority of the DAR to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the DAR the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries.

Schulman v. People: Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication

To sustain the CA would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the DAR, because all of these projects would naturally involve a change in the land use. In e ect, it would then be the DAR to scrutinizeff whether the expropriation is for a public purpose or public use.

U.S. Ex Rel Tennessee Valley Authority v. Welch and State ex rel Twin City Bldg. and Invest. Co. v. Houghton: It is the legislative branch of the LGU that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use

Other Issue/s:1. Validity of Resolution No. 129.

When the CA ordered the suspension of the proceedings until the Camarines Sur shall have obtained the authority of the DAR to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use.

2. The expropriation of the property authorized by the Resolution is for a public purpose.

Heirs of Juancho Ardano v. Reyes (1983) and Sumulong v. Guerrero (1987) :o 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.

o Old concept : 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.”

o New concept : “Public use” means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project.

Sumulong v. Guerrero :“Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly a ects public health, safety, theff environment and in sum the general welfare.”

The establishment of a pilot development center 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. The housing project also satisfies the public purpose requirement of

the Constitution. 3. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property, are unfounded.

Municipality of Talisay v. Ramirez (1990) : The rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property.

Digested by: Shelan Jane C. Teh

LOCGOV - #64Masikip vs. Pasig City (2006)

Doctrine: The right to take private property for public purposes necessarily originates from “the necessity” and the taking must be limited to such necessity.

Facts: Lourdes Dela Paz Masikip (petitioner) owns a parcel of land with an area of 4,521 square meters located at Caniogan, Pasig City. Pasig City (respondent) notified petitioner of its intention to expropriate a 1,500 square meter portion of her property to be used for

the “sports development and recreational activities” of the residents of Barangay Caniogan. This was pursuant to Ordinance No. 42 enacted by the then Sangguniang Bayan of Pasig.

Petitioner refused. Subsequently, respondent filed with the trial court a complaint for expropriation. The trial court ruled in favor of respondent on the ground that there is a genuine necessity to expropriate the property for the sports

and recreational activities of the residents of Pasig. CA affirmed.

Petitioner’s arguments: Petitioner filed this petition for review on certiorari assailing the decision of the CA. Petitioner contends that respondent failed to establish a genuine necessity which justifies the condemnation of her property. While

she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity for the proposed use and purposes. 

According to petitioner, there is already an established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan.

Respondent’s arguments:

Respondent maintains that there is a genuine necessity to expropriate the property for the sports and recreational activities of the residents of Pasig.

Issue: WON Pasig City has established genuine necessity for expropriating petitioner’s property.

Held/Ratio: NO. There is no genuine necessity. US v. Toribio: This Court defined the power of eminent domain 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.”

Section 19 of the Local Government Code of 1991 prescribes the delegation by Congress of the power of eminent domain to local government units and lays down the parameters for its exercise, thus:

“SEC. 19.  Eminent Domain. – A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws…”

The right to take private property for public purposes necessarily originates from “the necessity” and the taking must be limited to such necessity.

City of Manila v. Chinese Community of Manila: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.

City of Manila v. Arellano Law College: “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.”

Applying this standard, we hold that respondent has failed to establish that there is a genuine necessity to expropriate petitioner’s property. 

Our scrutiny of the records shows that the Certification issued by the Caniogan Barangay Council, the basis for the passage of Ordinance No. 42, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, and not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioner’s lot is the nearest vacant space available. 

The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan.

Digested by: Vina Villarroya

LOCGOV - #65

BARANGAY SINDALAN, et al. v. CA et al. (2007)

Doctrine:The power of eminent domain can only be exercised for public use and with just compensation. Taking an individual’s private property is a deprivation which can only be justified by a higher good—which is public use—and can only be counterbalanced by just compensation. Without these safeguards, the taking of property would not only be unlawful, immoral, and null and void, but would also constitute a gross and condemnable transgression of an individual’s basic right to property as well.

Petitioner: BARANGAY SINDALAN, SAN FERNANDO, PAMPANGA, rep. by BARANGAY CAPTAIN ISMAEL GUTIERREZ

Respondent: CA, JOSE MAGTOTO III, and PATRICIA SINDAYAN (Registered owners of the parcel of land sought to be expropriated)

Facts:Pursuant to a resolution passed by the barangay council, petitioner Barangay Sindalan, San Fernando, Pampanga, represented by Barangay Captain Ismael Gutierrez, filed a Complaint for eminent domain against respondent spouses Jose Magtoto III and Patricia Sindayan.

Petitioner sought to convert a portion of respondents’ land into Barangay Sindalan’s feeder road, claiming that respondents’ property was the most practical and nearest way to the municipal road. Pending the resolution of the case at the trial court, petitioner deposited an amount equivalent to the fair market value of the property.

Respondents alleged that the expropriation of their property was for private use, that is, for the benefit of the homeowners of Davsan II Subdivision, instead of the residents of Sitio Paraiso.

Prior to the filing of the expropriation case, said subdivision was linked to MacArthur Highway through a pathway across the land of a certain Torres family. Before the passage of the barangay resolution, the wives of the subdivision owner and the barangay captain had proposed buying a right-of-way for the subdivision across a portion of respondents’ property. These prospective buyers, however, never returned after learning the price that the respondents ascribed to their property.

Trial court ruled in favor of petitioners. CA reversed and set aside the decision of the trial court.

Petitioner filed petition for review on certiorari before Supreme Court

Issue: WON the proposed exercise of the power of eminent domain is for a public purpose.

Petitioner’s argument:The taking of the property is for public use.

Respondents’ counter-argument:Expropriation of their property was for private use, that is, for the benefit of the homeowners of Davsan II Subdivision.

SC Ruling: The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without just compensation, and (2) that no person shall be deprived of his/her life, liberty, or property without due process of law.

In this jurisdiction, “public use” is defined as “whatever is beneficially employed for the community.”

Petitioner’s Argument:There are at least 80 houses in the place and about 400 persons will be benefited with the use of a barangay road.

SC Ruling:While the number of people who use or can use the property is not determinative of whether or not it constitutes public use or purpose, the factual milieu of the case reveals that the intended use of respondents’ lot is confined solely to the Davsan II Subdivision residents and is not exercisable in common. Worse, the expropriation will actually benefit the subdivision’s owner who will be able to circumvent his commitment to provide road access to the subdivision, and also be relieved of spending his own funds for a right-of-way.

Considering that the residents who need a feeder road are all subdivision lot owners, it is the obligation of the Davsan II Subdivision owner to acquire a right-of-way for them.

Public funds can be used only for a public purpose.

Digested by: MYD

LOCGOV – 066JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION, INC. v. MUNICIPALITY (now CITY) OF PASIG, METRO MANILA (2005)

Eminent domain is strictly construed against the State or agent exercising it. The State has the burden of showing that it complied with the requirements of law (Section 19 of the LGC as well as Article 33 of the IRR). The requirements are 1. ordinance 2. public use 3. just compensation 4. written, valid, and definite offer refused by property owner. There was no valid and definite offer in this case.

FACTS: The Municipality of Pasig (Pasig) decided to expropriate 51 sq. m. out of the 1,791 sq. m. property of the Cuangcos to make an access road

from E.R. Santos Street to Bgy. Sto Tomas Bukid, Pasig. The purpose for this is so that fire trucks could pass through in case of conflagration.

The Sangguniang Bayan of Pasig approved an ordinance authorizing Mayor to initiate expropriation proceedings. Engr. Jose Reyes sent a letter inviting Cuancos to his office to discuss the project and the price.

The municipality filed an expropriation complaint and deposited 15% of the market value of the land with the RTC, based on the latest tax declaration.

RTC issued a writ of possession over the property. Municipality caused the annotation of a notice of lis pendens at the dorsal portion of the TCT under the name of JILCSFI which purchased

the property. Municipality constructed the cemented road. It was called Damayan Street. Cuancos responded that the land has already been sold to JILSCFI. JILSCFI intervened. RTC held that there was substantial compliance with a valid offer requirement under Sec. 19 of the LGC. CA affirmed the RTC order. MR denied.

ISSUE/S:1) WON the municipality complied with Sec. 19 of the LGC requiring a valid and definite offer to acquire the property prior to the filing

of the complaint - NO2) WON the property which is already intended to be used for public purposes may still be expropriated by the respondent - YES3) WON the requisites for an easement for right-of-way under Articles 649 to 657 of the NCC may be dispensed with - NO

PETITIONER’s Position: The law requires a valid and definite offer and that such offer was not accepted as a condition precedent for the filing of an expropriation

complaint. o The photocopy of the letter of Engr. Reyes cannot be considered because the trial court did not admit it in evidence. Assuming

such letter was admissible, mere notice of intent to purchase is not equivalent to an offer to purchase. Eminent domain must be strictly construed against the power exercising it as it is necessarily in derogation of the property rights of a

person. The local government should comply with the requirements of easement of right-of-way; hence the road must be established at the point

least prejudicial to the owner of the property. If the property is already devoted to another public use, its expropriation should not be allowed.

Relief Sought: Reconsideration of RTC decision declaring the municipality of Pasig as having the right to expropriate and take possession of the subject property

Legal Basis: Sec. 19 of the LGC

RESPONDENT’s Opposition: CA already resolved the issues raised. The Ching Cuancos were deemed to have admitted that an offer had been made because they failed to specifically deny the allegation in

the complaint.

Legal Basis: Sec. 19 of the LGC; Art. 33 of the IRR of the LGC

HELD/RATIO:1. NO.The right of eminent domain is usually understood to be an ultimate right of sovereign power to appropriate any property within its territorial sovereignty for a public purpose.

The exercise of the right of eminent domain is necessarily in derogation of private rights. It is one of the harshest proceedings known to the law. The authority to condemn is to be strictly construed in favour of the owner and against condemnor.

Art. 19 of the LGC provides the legal basis for the grant of power of eminent domain to local governments. The following are the requisites for the valid exercise of the eminent domain by a LGUs:1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted.

Article 35 of the IRR of the LGC requires that the offer be in writing. It shall specify the property to be acquired, the reasons for its acquisition, and the price offered. The purpose of the offer is to encourage settlements and voluntary acquisition of property to avoid the expense and delay of a court action. The right to an offer is a substantial right of the property owner, not merely pro forma.

In this case, no offer was made. The municipality offered the letter only to prove its desire or intent to acquire the property for a right-of-way. The letter is merely an invitation for one of the co-owners, Lorenzo Ching Cuanco, to a conference to discuss the project and the price that may be mutually acceptable to both parties.

The annotation of the notice of lis pendens at the dorsal portion of the TCT is NOT substantial compliance with the requisite of valid offer. The notice of lis pendens is a notice to the whole world of the pendency of an action involving the same property and a warning that those who acquire an interest in the property do so at their own risk. Also, the lis pendens was annotated long after the complaint had been filed in the RTC against the Ching Cuancos.

As can be gleaned from their answer to the complaint, the Ching Cuancos specifically denied the allegation for want of sufficient knowledge to form a belief as to its correctness. (Sec. 10, Rule 8 of the Rules of Court)

2) YES. Public use experiences constant growth. Whatever is beneficially employed for the community is a public use. That only a few would actually benefit from the expropriation of property does not necessarily diminish the essence and character of public use.

3) YES. They need not comply with the NCC requirements on easements. Pasig just needs to show that there is a need for the road and indeed there is based on the testimonies of several residents that there are no vehicle-passable roads currently in the area. However, the problem here is that the RTC did not perform an ocular inspection to verify these statements, thus its findings of fact were disregarded by the Supreme Court. Petition granted in favor of JILSCFI.

DIGESTED BY: LUZ BALDUEZA

LOCGOV - #67Antonio vs. Geronimo (2005)

Doctrine:Expropriation has no binding legal effect unless a formal expropriation proceeding has been instituted. 

Facts: The parcels of land subject of this case were involved in an unlawful detainer suit in the MTC.

o Catolos, the registered owner of the parcels of land, instituted an action for unlawful detainer against Antonio et. A (petitioners). o Catolos allowed petitioners stay on the lots without requiring them to pay rental on the condition that they will vacate upon

demand. They did not vacate despite Catolos’ demand.o MTC Judge Geronimo decided in favor of Catolos. MTC issued a writ of demolition of the properties on said lots.

Partial demolition had already taken place (i.e. case was already at the execution stage) when the Sangguniang Bayan of Rizal, Antipolo passed two Resolutions: 1) Resolution No. 61-95 authorized the Mayor to acquire the properties for expropriation for public purposes/socialized housing and 2) Resolution No. 88-95 authorized Mayor to secure financing for the acquisition of the land.

SBayan passed another resolution requesting the MTC that the demolition be held in abeyance. Demolition proceeded despite the resolution. Petitioners filed a Motion to Stay Execution on the ground that supervening events have rendered the execution unjust and inequitable.

MTC denied this motion. Petitioners filed a R65 petition for certiorari to set aside the order denying the motion to stay execution and to enjoin respondents from

continuing with the demolition.

Petitioner’s arguments: For Issue 1:

The resolution decreeing expropriation of the property subject of the ejectment case filed by the Sangguniang Bayan constitutes a supervening event which makes execution of the ejectment decision unjust and impractical. 

For Issue 2: Commonwealth Act No. 538 does not require that an action for expropriation be filed in court before the suspension of the action for

ejectment shall be automatically suspended . It shall be sufficient where the competent authority advises in writing the owner of the intention of the government to acquire his land. 

For Issue 3: The requirement on the payment of rents as a precondition to the availment of the benefits of suspension under Commonwealth Act

No. 538 does not apply to them because they were allowed by private respondent to occupy the premises without paying rent. 

Respondent’s arguments:

For Issue 2: CA No. 538 applies only to cases wherein expropriation proceedings are filed. The two Sbayan Resolutions expressing expressing the

intent to expropriate the properties evinced merely an intention to expropriate and not the actual expropriation proceeding. 

For Issue 3:

Assuming that there exists an expropriation proceeding, petitioners still cannot avail of the automatic suspension of the ejectment case because they failed to pay their current rentals and deposit them with the court. 

Issue 1:Whether the issuance of the Resolutions for expropriation by an LGU constitutes a supervening event so as to suspend the writ of execution in an ejectment case (No)

Held/Ratio: The general rule is if judgment is rendered against the defendant, it is immediately executory. Among the exceptions is the occurrence

of supervening events which have brought about a material change in the situation of the parties and would make the execution inequitable.

Local government units may exercise the power of eminent domain, subject to the limitation embodied under the law.  There are two relevant laws, the LGC and RA No. 7279 (UDHA).

The requirements for the valid exercise of the power of eminent domain under Sec. 19 of LGC are the following: o 1. An ordinance authorizing the local chief executive to exercise pursue expropriation proceedings over a particular private

property; o 2. power of ED is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless;o 3. payment of just compensation, as required under Constitution, and laws; o 4. valid and definite offer previously made to the owner but not accepted.

o No ordinance was passed by the SBayan, only Resolutions.  In its stead were Resolution Nos. 61-95 and 88-95.   No ordinance, mere resolution

o Resolution is not the same as an ordinance. Municipality of Paranaque v. V.M. Realty Corporation and Heirs of Suguitan v. City of Mandaluyong:

A local government unit cannot authorize an expropriation of private property through a mere resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently — a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian member.

If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. The power of eminent domain necessarily involves a derogation of a fundamental or private right of the people.  Accordingly, the manifest change in the legislative language — from "resolution" under the BP 337 to "ordinance" under RA 7160 — demands a strict construction.

Non-compliance with other requirements of law o Assuming arguendo that instead of resolutions, an ordinance was passed, the taking of the private property did not comply with other

requirements of law. o The UDHA is the governing law in the the local expropriation of property for purposes of urban land reform and housing. (See Sec. 

9. Priorities in the Acquisition of Land18 and Sec.  10. Modes of Land Acquisition19) o The records do not show compliance with the abovementioned rules in expropriation for socialized housing.  No attempt was made to

acquire the first five (5) lands mentioned in Section 9.  Neither were the other modes of acquisition exhausted, as mandated by Section 10.  An examination of the resolutions readily shows that the purpose for which they were passed is to save petitioners from the impending demolition.

Issue 2:Whether a formal expropriation proceeding has to be filed for an expropriation to have binding legal effect (Yes)

18Sec.  9. Priorities in the Acquisition of Land.— Lands for socialized housing shall be acquired in the following order: 

(a) Those owned by the government or any of its subdivisions, instrumentalities, or agencies, including government-owned or -controlled corporations and their subsidiaries; (b) Alienable lands of the public domain; (c) Unregistered or abandoned and idle lands; (d) Those within the declared Areas for Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired;  (e) Bagong Lipunan Improvement of Sites and Services or BLISS sites which have not yet been acquired; and  (f) Privately-owned lands. Where open-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands. 19Sec.  10. Modes of Land 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 models of acquisition have been exhausted: Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court.For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local government units, or by the National Housing Authority primary through negotiated purchase: Provided, That qualified beneficiaries who are actual occupants of the land shall be given the right of first refusal. 

[NB: The Court looked at a list of laws enacted afterCommonwealth Act No. 538 (1940) and the rationale behind them to determine whether C.A. No. 358 applies only to cases where there exist actual expropriation proceedings.20] 

o Section 5 of R.A. 1162: “From the approval of said Act and until the expropriation herein provided, no ejectment proceedings shall be instituted or prosecuted against any tenant or occupant if he pays his current rentals.”

o The interpretation of Section 5 of R.A. 1162 by the Court is that an action for ejectment is deemed suspended only when an expropriation proceeding  is actually commenced. 

o Teresa Realty v. Potenciano: The remedies granted to tenants under section 5, Republic Act No. 1162 or its amendment, do not and can not apply where expropriation proceedings have not been commenced under pain of unconstitutionality.

o Congress approved another similar law, Republic Act No. 2616, Section 4. o J.M. Tuason & Co., Inc. v. Court of Appeals, et al. and Republic of the Philippines v. J.M. Tuason & Co., Inc., et. al.: The Court imposed

guidelines for the implementation of R.A. No. 2616, such that an ejectment proceeding cannot be barred or suspended unless an action for expropriation is actually filed.

o Familara v. J.M. Tuason: To hold that the mere declaration of an intention to expropriate, without instituting the corresponding proceeding therefor before the courts, with assurance of just compensation, would already preclude the exercise by the owner of his rights of ownership over the land, or bar the enforcement of any final ejectment order that the owner may have obtained against any intruder into the land, is to sanction an act which is indeed confiscatory and therefore offensive to the Constitution. For it must be realized that in a condemnation case, it is from the condemnor's taking possession of the property that the owner is deprived of the benefits of ownership, such as possession, management and disposition thereof. Before that time, the proprietary right of the owner over his property must be recognized.

o Cuatico v. Court of Appeals: The Court struck down Republic Act No. 3453 21for being confiscatory because it allows the continuance of the occupation of the  land  on  the part of the tenant indefinitely even if no expropriation proceedings are taken or contemplated, thus taking from the owner his property without compensation and depriving him of his dominical rights of ownership over it without due process in violation of the Constitution. 

Issue 3:Whether the benefit of suspension of the ejectment case under C.A. 358 is available to persons who do not pay rentals with permission of the owner of the property (No)

o Javier v. Araneta: C.A. 538 refers to a “tenant” when it talks about who may avail of the benefits of the suspension. The word “tenant” does not include a squatter, because a squatter is “a person who settles or  locates  on  land,  inclosed  or  uninclosed,  with no  bona  fide  claim  or  color of title, and without the consent of the owner; and it does not appear that petitioner has

20Sec. 1 of Commonwealth Act No. 538 (1940): When the Government seeks to acquire, through purchase or expropriation proceedings, lands belonging to any estate or chaplaincy (capellania), any action for ejectment against the tenants occupying said lands shall be automatically suspended xxx

21SEC. 4.        Upon approval of this amendatory Act, no ejectment proceedings shall be instituted or prosecuted against the present occupants of any lot in said Tatalon Estate, and no ejectment proceedings already commenced shall be continued xxx

paid to the land owner the current rents as they became due or has deposited the same with the court where the action for ejectment has been instituted.

o Only tenants who have been in faithful payment of rentals may invoke the benefits under CA No. 358.

Digested by: Delfin, Estelle Marielle

LOCGOV -68ORTEGA v CITY OF CEBU (2009)

Doctrine: Stages of Expropriation-1) Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety

of its exercise in the context of the facts involved in the suit; 2) Determination by the court of the just compensation for the property sought to be taken.

Though the ascertainment of just compensation is a judicial prerogative, the appointment of commissioners to ascertain just compensation for the property sought to be taken is a mandatory requirement in expropriation cases.

An ordinance appropriating public funds is required for the payment of just compensation. The remedy for collecting just compensation (absent any ordinance appropriating funds) is through mandamus, not garnishment.

Facts: One-half of the land owned by the Ortega spouses was expropriated by the City of Cebu through Ordinance No. 1519 (giving authority

to the Mayor to expropriate and appropriating P3, 248, 400.00 or P1, 150.oo/sq. meter

The amount will be charged against Account No. 8-93-310, Continuing Appropriation, Account No. 101-8918-334, repurchase of lots for various projects. The value of the land was determined by the Cebu City Appraisal Committee in Resolution No. 19, series of 1994, dated April 15, 1994.

A complaint for Eminent domain was filed with the RTC by the City of Cebuo March 13, 1998 Decision : declared that Cebu had authority to take the property and fixed the just compensation at P31, 416,

000.00 or P11, 000/ sq. mo This became final and executory for failure of the City of Cebu to appeal.o A Writ of Execution was issued. RTC subjected Account No. 101-8918-334 under garnishment to collect P3, 284, 400.00

pursuant to Ord. No. 1519 City of Cebu filed Omnibus Motion to Stay Execution, Modification of Judgment and Withdrawal of the Case.

o contended that the price set by the RTC as just compensation to be paid to the Spouses Ortega is way beyond the reach of its intended beneficiaries for its socialized housing program.

o DENIED.MR: DENIED (thereafter they appealed to the CA)

While the appeal was pending with the CA, a Notice of Garnishment to Philippine Postal Bank, P. del Rosario and Junquera Branch Cebu City, was served garnishing Cebu City’s bank deposit therein.

o The City of Cebu filed before the RTC a Motion to Dissolve, Quash or Recall the Writ of Garnishmento Contended that Account No. 101-8918-334 is not actually an existing bank account and that the garnishment of Cebu City’s

bank account with Philippine Postal Bank was illegal, because government funds and properties may not be seized under writ of execution or garnishment to satisfy such judgment, on obvious reason of public policy.

o DENIEDMR: DENIED

CA: partially granted appeal Motion to Stay Execution was granted Motion to Modify Judgment and Withdraw from the Expropriation Proceedings was denied.

Petitioner’s arguments: Decision dated March 13, 1998 was already final and executory. Garnishment was proper for they were entitled to compensation based on the March 13, 1998 Decision

Respondent’s arguments: Omnibus Motion to Stay Execution, Modification of Judgment and Withdrawal of the (Expropriation) Case should be allowed.

o the just compensation fixed by the RTC is too high, and the intended expropriation of the Spouses Ortegas’ property is dependent on whether Cebu City would have sufficient funds to pay for the same.

The garnishment of accounts with the Philippine Postal Bank was illegal.o appropriated for a different purpose by its Sangguniang Panglungsodo government funds and properties may not be seized under writ of execution or garnishment to satisfy such judgment, on

obvious reason of public policy.

Issue/s:

1. Whether the CA erred in affirming the RTC’s denial of Cebu City’s Omnibus Motion to Modify Judgment and to be allowed to Withdraw from the Expropriation Proceedings.

2. Whether the deposit of Cebu City with the Philippine Postal Bank, appropriated for a different purpose by its Sangguniang Panglungsod, can be subject to garnishment as payment for the expropriated lot covered by City Ordinance No. 1519.

Held/Ratio:1. NO, the CA did not err in denying the Omnibus Motion to Modify Judgment and Motion to Withdraw from the Expropriation

Proceedings.

Section 4, Rule 67 of the Rules of Court on Expropriation22 shows that basically there are 2 stages in expropriation proceedings: 1) Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit; 2) Determination by the court of the just compensation for the property sought to be taken.

An order of expropriation denotes the end of the first stage of expropriation. Its end then paves the way for the second stage—the determination of just compensation, and, ultimately, payment. An order by the trial court fixing just compensation does not affect a prior order of expropriation.

o Thus, the Cebu City can no longer ask for modification of the judgment (March 13, 1998), much less, withdraw its complaint, after it failed to appeal even the first stage of the expropriation proceedings.

Cebu City cannot claim that it is entitled to withdraw just because the compensation fixed by the RTC is allegedly too high.o It is well-settled in jurisprudence that the determination of just compensation is a judicial prerogative.o Though the ascertainment of just compensation is a judicial prerogative, the appointment of commissioners to ascertain just

compensation for the property sought to be taken is a mandatory requirement in expropriation cases. While it is true that the findings of commissioners may be disregarded and the trial court may substitute its own estimate of the value, it may only do so for valid reasons; that is, where the commissioners have applied illegal principles to the evidence submitted to them, where they have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly inadequate or excessive.23

22SEC. 4. Order of expropriation. – If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, 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.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid.After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.23NPC v dela Cruz and Porform Dev. Corp. v Phil. Natl. Railways

2. NO, the deposit of Cebu City with the Philippine Postal Bank cannot be subjected to garnishment.

The proper remedy of the Spouses Ortega is to file a mandamus24 case against Cebu City in order to compel its Sangguniang Panglungsod to enact an appropriation ordinance for the satisfaction of their claim.

It should also be noted that the Philippine Postal Bank issued a Certification certifying that Account No. 8-93-310 (Continuing Account) and Account No. 101-8918-334 are not bank account numbers with Philippine Postal Bank.

It is a settled rule that government funds and properties may not be seized under writs of execution or garnishment to satisfy judgments, based on obvious consideration of public policy. Disbursements of public funds must be covered by the corresponding appropriation as required by law. The functions and public services rendered by the State cannot be allowed to be paralyzed or disrupted by the diversion of public funds from their legitimate and specific objects, as appropriated by law.

the trial court has no authority to garnish the Municipality’s other bank account absent any showing that an ordincance has been passed appropriating from its public funds an amount corresponding to the balance due25

Digested by: Dinnah Alconera

LOCGOV - #69

ONGSUCO VS. MALONES (2009)

Doctrine:

A case where the issue raised is a purely legal question, well within the competence; and the jurisdiction of the court and not the administrative agency is an exception to the rule on exhaustion of administrative remedies.

The revenues of a local government unit do not consist of taxes alone, but also other fees and charges.Rentals and goodwill fees are revenues and for it to be valid must comply with the requirements in section 186 of the LGC.

Section 186 of the Local Government Code prescribes that the public hearing be held prior to the enactment by a local government unit of an ordinance levying taxes, fees, and charges. Subsequent efforts to comply with such requirement cannot validate an ordiance.

24Municipality of Makati v CA25Municipality of Makati v CA

Facts: This is a Petition for Review on Certiorari under Rule 45 assailing the Decision of the Court of Appeals which affirmed the RTC decision dismissing the special civil action for Mandamus/Prohibition with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, filed by petitioners Evelyn Ongsuco and Antonia Salaya against respondent Mayor Mariano Malones of the Municipality of Maasin, Iloilo.

 Petitioners are stall holders at the Maasin Public Market. The Office of Respondent informed petitioners of a meeting scheduled on  11

August 1998 concerning the municipal public market. On 17 August 1998, the Sangguniang Bayan of Maasin approved Municipal Ordinance No. 98-01, entitled “The Municipal Revised Revenue Code.”  The Code contained a provision for increased rentals for the stalls and the imposition of goodwill fees in the amount of P20,000.00 and P15,000.00 for stalls located on the first and second floors of the municipal public market, respectively.  The same Code authorized respondent to enter into lease contracts over the said market stalls and incorporated a standard contract of lease for the stall holders at the municipal public market. 

On 18 September 1998, the Sangguniang Bayan of Maasin approved Resolution No. 68 moving to have the meeting dated 11 August 1998 declared inoperative as a public hearing, because majority of the persons affected by the imposition of the goodwill fee failed to agree to the said measure.  However this resolution was vetoed by respondent. Another purported public hearing was held on 22 January 1999.

 On 9 June 1999, respondent then wrote a letter to petitioners informing them that they were occupying stalls in the newly renovated

municipal public market without any lease contract, as a consequence of which, the stalls were considered vacant and open for qualified and interested applicants.

The RTC ruled that petitioners could not avail themselves of the remedy of mandamus or prohibition.  It reasoned that mandamus would not lie in this case where petitioners failed to show a clear legal right to the use of the market stalls without paying the goodwill fees imposed by the municipal government. They also dismissed the case for failure of petitioners to exhaust administrative remedies. This was affirmed by the CA.

Petitioner’s arguments: Petitioners filed before the RTC a Petition for Prohibition/Mandamus, with Prayer for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction. They argued that:

1. A public hearing was mandatory in the imposition of goodwill fees.  According to Section 186 of the Local Government Code an ordinance levying taxes, fees, or charges shall not be enacted without any prior hearing conducted for the purpose.  

2. Municipal Ordinance No. 98-01, imposing goodwill fees, is invalid on the ground that the conferences held on 11 August 1998 and 22 January 1999 could not be considered public hearings.  

According to Article 277(b)(3) of the Implementing Rules and Regulations of the Local Government Code:

 (3) The notice or notices shall specify the date or dates and venue of the public hearing or hearings.  The initial public

hearing shall be held not earlier than ten (10) days from the sending out of the notice or notices, or the last day of publication, or date of posting thereof, whichever is later.  

 The letter from respondent was sent to stall holders on 6 August 1998 and the meeting was held on 11 August 1998, only five days after notice.

 Respondent’s arguments: Respondent on the other hand argued that:

1. Municipal Ordinance No. 98-01is not per se a tax or revenue measure, but involves the operation and management of an economic enterprise of the Municipality of Maasin thus, there was no mandatory requirement to hold a public hearing for the enactment thereof. 

2. Even granting that a public hearing was required, respondent insisted that public hearings took place on 11 August 1998 and 22 January 1999.

Issue/s:1. Whether or not there is a need to exhaust administrative remedies2. Whether or not a public hearing pursuant to sec. 186 of the LGC is required for the municipal revenue code to be valid?3. Whether or not there was a valid public hearing?

Held/Ratio:

1. NO/NONE. - The rule on the exhaustion of administrative remedies is intended to preclude a court from arrogating unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence.  Thus, a case where the issue raised is a purely legal question, well within the competence; and the jurisdiction of the court and not the administrative agency, would clearly constitute an exception. In this case, the parties are not disputing any factual matter, the sole issue petitioners raised before the RTC  was whether Municipal Ordinance No. 98-01 was valid and enforceable despite the absence, prior to its enactment, of a public hearing held in accordance with Article 276 of the Implementing Rules and Regulations of the Local Government Code.  This is undoubtedly a pure question of law, within the competence and jurisdiction of the RTC to resolve.

2. YES. - Article 219 of the Local Government Code provides that: 

Article 219.  Power to Create Sources of Revenue.—Consistent with the basic policy of local autonomy, each LGU shall exercise its power to create its own sources of revenue and to levy taxes, fees, or charges, subject to the provisions of this Rule.  Such taxes, fees, or charges shall accrue exclusively to the LGU.

 Article 221(g) of the Local Government Code of 1991 defines “charges” as:

XXX (g)  Charges refer to pecuniary liability, as rents or fees against persons or property. 

Evidently, the revenues of a local government unit do not consist of taxes alone, but also other fees and charges.   And rentals and goodwill fees, imposed by Municipal Ordinance No. 98-01 for the occupancy of the stalls at the municipal public market, fall under the definition of charges. For the valid enactment of ordinances imposing charges Section 186 of the Local Government Code must be complied with: 

Section 186.  Power to Levy Other Taxes, Fees or Charges.—xxx Provided, further, That the ordinance levying such taxes, fees or charges shall not be enacted without any prior public hearing conducted for the purpose.

 And according Section 277 of the Implementing Rules and Regulations of the Local Government Code the publication of Tax Ordinance and Revenue Measures require written notices and public hearing which shall not be held earlier than ten (10) days from the sending out of the notice or notices, or the last day of publication, or date of posting thereof, whichever is later.

3. NO/NONE. - There is no dispute herein that the notices sent to petitioners and other stall holders at the municipal public market were sent out on 6 August 1998, informing them of the supposed “public hearing” to be held on 11 August 1998.  Even assuming that petitioners received their notice also on 6 August 1998, the “public hearing” was already scheduled, and actually conducted, only five days later, on 11 August 1998 which contravenes Article 277(b)(3) of the Implementing Rules and Regulations of the Local Government Code

The defect in the enactment of Municipal Ordinance No. 98 was not cured when another public hearing was held on 22 January 1999, after the questioned ordinance was passed by the Sangguniang Bayan and approved by respondent on 17 August 1998.  Section 186 of the Local Government Code prescribes that the public hearing be held prior to the enactment by a local government unit of an ordinance levying taxes, fees, and charges.  

Digested by: Regina C. Rosales

LOCGOV - #70

GSIS v CITY TREASURER and CITY ASSESSOR of the CITY OF MANILA, (2009)

Doctrine: GSIS enjoys full tax exemption. As an instrumentality of the national government, it is itself not liable to pay real estate taxes assessed by the City of Manila. Following the “beneficial use” rule, however, accrued real property taxes are due from the Katigbak property, leased as it is to a taxable entity. But the corresponding liability for the payment thereof devolves on the taxable beneficial user.

Facts:

Petitioner GSIS owned two parcels of land, one located at Katigbak, Manila, and the other, at Concepcion cor. Arroceros Sts., also in Manila. Both the GSIS and the Metropolitan Trial Court of Manila occupy the Concepcion-Arroceros property, while the Katigbak property was under lease.

The City Treasurer of Manila send a letter to GSIS informing them of the unpaid real property taxes due on the GSIS properties for years 1992 to 2002, as follows: (a) PhP 54,826,599.37 for the Katigbak property; and (b) PhP 48,498,917.01 for the Concepcion-Arroceros property. The letter warned of the inclusion of the subject properties in the scheduled October 30, 2002 public auction of all delinquent properties in Manila should the unpaid taxes remain unsettled before that date.

The City Treasurer of Manila issued separate Notices of Realty Tax Delinquency for the GSIS properties, with a warning of seizure and/or sale. GSIS wrote back emphasizing the GSIS’ exemption from all kinds of taxes, including realty taxes, under RA 8291.

GSIS filed a petition for certiorari and prohibition with prayer for a restraining and injunctive relief before the Manila RTC. GSIS prayed for the nullification of the assessments thus made and that respondents City of Manila officials be permanently enjoined from proceedings against GSIS’ property. GSIS later amended its petition to include the fact that: (a) the Katigbak property has, since November 1991, been leased to and occupied by the Manila Hotel Corporation (MHC), which has contractually bound itself to pay any realty taxes that may be imposed on the subject property; and (b) the Concepcion-Arroceros property is partly occupied by GSIS and partly occupied by the MeTC of Manila.

Petitioner’s arguments:

Petitioner’s posture that both its old charter, Presidential Decree No. (PD) 1146, and present charter, RA 8291 or the GSIS Act of 1997, exempt the agency and its properties from all forms of taxes and assessments, inclusive of realty tax

Respondent’s arguments:

Respondents counter that GSIS may not successfully resist the city’s notices and warrants of levy on the basis of its exemption under RA 8291, real property taxation being governed by RA 7160 or the Local Government Code of 1991

Issue/s:3) Whether GSIS under its charter is exempt from real property taxation; 4) Assuming that it is so exempt, whether GSIS is liable for real property taxes for its properties leased to a taxable entity5) Whether the properties of GSIS are exempt from levy.

Held/Ratio:

GSIS is exempt from Real Property Tax

In 1936, in Commonwealth Act No. (CA) 186, the GSIS was set up as a non-stock corporation. Section 26 of CA 186 provided exemption from any legal process and liens but only for insurance policies and their proceeds. In 1977, PD 1146, (Revised Government Service Insurance Act of 1977), provided for an expanded insurance system for government employees. Sec. 33 thereof held that the System, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds

In 1991, RA 7160, provided the exercise of local government units (LGUs) of their power to tax, the scope and limitations thereof, and the exemptions from taxations. The general provision on withdrawal of tax exemption privileges in Sec. 193 of the LGC, and the special provision on withdrawal of exemption from payment of real property taxes in the last paragraph of the succeeding Sec. 234, provides:

SEC. 193. Withdrawal of Tax Exemption Privileges. – Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code.

SEC. 234. Exemption from Real Property Tax. – x x x 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 corporation are hereby withdrawn upon the effectivity of this Code.

The Congress withdrew, subject to certain defined exceptions, tax exemptions granted prior to the passage of RA 7160. The full tax exemption granted to GSIS under PD 1146, particular insofar as realty tax is concerned, was deemed withdrawn.

RA 8291 took effect in 1997. Under it, the full tax exemption privilege of GSIS was restored. Sec. 39 of RA 8291 reads:

GSIS, its assets, revenues including all accruals thereto, and benefits paid, shall be exempt from all taxes, assessments, fees, charges or duties of all kinds. These exemptions shall continue unless expressly and specifically revoked and any assessment against the GSIS as of the approval of this Act are hereby considered paid.

Real property taxes assessed and due from GSIS are thus considered paid.

1) GSIS an instrumentality of the National Government

In Manila International Airport Authority v. Court of Appeals, a case involving real estate tax assessments by a Metro Manila city on the real properties administered by MIAA, argues for the non-tax liability of GSIS for real estate taxes. There, the Court held that MIAA does not qualify as a GOCC, not having been organized either as a stock corporation, its capital not being divided into shares, or as a non-stock corporation because it has no members. MIAA is rather an instrumentality of the National Government and, hence, outside the purview of local taxation by force of Sec. 133 of the LGC providing in context that “unless otherwise provided,” local governments cannot tax national government instrumentalities. And as the Court pronounced in Manila International Airport Authority, the airport lands and buildings MIAA administers belong to the Republic of the Philippines, which makes MIAA a mere trustee of such assets.

Likewise, while created under CA 186 as a non-stock corporation, GSIS is not a GOCC. Second, the subject properties under GSIS’s name are likewise owned by the Republic. The GSIS is but a mere trustee of the subject properties which have either been ceded to it by the Government or acquired for the enhancement of the system. Third, GSIS manages the funds for the life insurance, retirement, survivorship, and disability benefits of all government employees and their beneficiaries. This undertaking constitutes an essential and vital function of the government.

2) the leased Katigbak property shall be taxable pursuant to the “beneficial use” principle

Sec. 234(a), exempts from real estate taxes real property owned by the Republic, unless the beneficial use of the property is, for consideration, transferred to a taxable person. This exemption, however, must be read in relation with Sec. 133(o) of the LGC, which prohibits LGUs from imposing taxes or fees of any kind on the national government, its agencies, and instrumentalities. Thus read together, the provisions allow the Republic to grant the beneficial use of its property to an agency or instrumentality of the national government. Such grant does not necessarily result in the loss of the tax exemption. The tax exemption the property of the Republic or its instrumentality carries ceases only if, as stated in Sec. 234(a) of the LGC of 1991, “beneficial use thereof has been granted, for a consideration or otherwise, to a taxable person.” GSIS, as a government instrumentality, is not a taxable juridical person under Sec. 133(o) of the LGC. GSIS, however, lost in a sense that status with respect to the Katigbak property when it contracted its beneficial use to MHC, a taxable person. As declared in Testate Estate of Concordia T. Lim, “the unpaid tax attaches to the property and is chargeable against the taxable person who had actual or beneficial use and possession of it regardless of whether or not he is the owner.” Actual use refers to the purpose for which the property is principally or predominantly utilized by the person in possession thereof. Being in possession and having actual use of the Katigbak property since November 1991, MHC is liable for the realty taxes assessed over the Katigbak property from 1992 to 2002.

3) GSIS Properties is Exempt from Levy

The clear import of the third paragraph of Sec. 39, RA 8291 provides:

SEC. 39. Exemption from Tax, Legal Process and Lien. – x x x.

The funds and/or the properties referred to herein as well as the benefits, sums or monies corresponding to the benefits under this Act shall be exempt from attachment, garnishment, execution, levy or other processes issued by the courts, quasi-judicial agencies or administrative bodies

The governing law, RA 8291, in force at the time of the levy prohibits it. And in the final analysis, the proscription against the levy extends to the leased Katigbak property, the beneficial use doctrine, notwithstanding.

Digested by: Andrew Velasco

LOCGOV – 71

Quezon City v Bayan Telecommunications, Inc.,(2006)

Doctrine: Congress may grant an exemption, previously withdrawn through the enactment of the LGC, through subsequent legislation since the grant of taxing powers to lgus under the Constitution and teh LGC does not affect the power of Congress to grant exemptions.

Facts:Bayantel is a legislative franchise holder under RA 3259 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting. §14 of RA 3259 reads:

Section 14. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay.

(b) The grantee shall further pay to the Treasurer of the Philippines each year, within ten days after teh audit and approval of the accounts as prescribed in this Act, one and one-half per centum of all gross receipts from the business transacted under this franchise by the said grantee.

On July 20, 1992, Congress enacted RA 7633 which amended the original franchise. The said contained the following provision:

Sec. 11 The grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay. In addition thereto, the grantee, its successors or assigns shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the

telephone or other telecommunications businesses transacted under this franchise by the grantee, its successors or assigns and the said percentage shall be in lieu of all taxes on this franchise or earnings hereof. Provided, that the grantee, its successors or assigns shall continue to be liable for income taxes payable under Title II of the National Internal Revenue Code...

In 1993, QC, pursuant to its taxing power under §5, Article X of the Constitution, in relation to §232 of the LGC enacted City Ordinance No. SP-91, S-93 otherwise known as the Quezon City Revenue Code (QCRC). §6 of the QCRC reiterated the withdrawal of exemption under §234 of the LGC.

On March 16, 1995, RA 7925, otherwise known as the Public Telecommunications Policy Act of the Philippines was enacted. §23 of RA 7925 provides:

Sec. 23. Equality of Treatment in the Telecommunications Industry. – Any advantage, favor, privilege, exemption, or immunity granted under existing franchise, or may hereafter may be granted, shall ipso facto become part of previously granted telecommunications franchises sand shall be accorded immediately and unconditionally to eht grantees of such franchises. Provided, however, That the foregoing shall neither apply to nor affect provisions of telecommunications franchises concerning territory covered by the franchise, the life span of the franchise, or the type of service authorized by the franchise. [Note: The Court did not discuss this in the decision except as part of the facts]

On January 7, 1999, Bayantel wrote the office of the City Assessor seeking the exclusion of its real properties in the city from the roll of taxable real properties. This request was denied. Bayantel appealed to the Local Board of Assessment Appeals.

Because Bayantel did not pay the real property tax assessed. Notices of delinquency for the amount of P43,878,208.18, were sent by the QC Treasurer. This was followed by the issuance of several warrants of levy against Bayantel’s properties with the public auction scheduled on July 30, 2002.

Threatened with the imminent loss, Bayantel withdrew their appeal and instead filed with the QC RTC a petition for prohibition with an urgent application for a temporary restraining order.

Petitioner’s arguments: 1. Bayantel failed to avail itself of the administrative remedies provided for under the LGC. The appeal mechanics constitute as

Bayantel’s plain and speedy remedy2. The language of §11 of RA 7633 is neither clear nor unequivocal. Bayantel was in no time given any express exemption from the

payment of real property tax.

Respondent’s arguments: 1. The appeal to the LBAA is not a speedy and adequate remedy.2. Bayantel is only liable to pay the same taxes, as any other persons or corporations on all its real or persona properties, exclusive of its

franchise.

Note: RTC: owing to the phrase “exclusive of the franchise” found in §11 of RA 7633 = exemption or properties used actually, directly and exclusivey in the conduct of its business under the franchise.

Issue/s:4) Whether or not Bayantel is required to exhaust all administrative remedies before seeking judicial relief with the trial court5) Whether or not Bayantel’s real properties in QC are exempt from real property taxes under its legislative franchise

Held/Ratio:3. No. Petitions for prohibition are governed by the provision of Rule 65 of the Rules of Court. In this case, with the reality that

Bayantel’s real properties were already levied upon on account of its non-payment of real estate taxes, the appeal to the LBAA is not a speedy and adequate remedy within the context of §2 of Rule 65.

Moreover, Court held, citing Ty v. Trampe, one of the recognized exceptions to the exhaustion of administrative remedies rule is when only legal issues are to be resolved.

Note: The Court did not overlook the fact that an appeal to the LBAA requires prior payment under protest of the amount of the taxes assessed. However, the Court noted that with the prevailing Asian financial crisis the said amount would have been difficult to raise up and thus, the appeal may not be considered as a plain, speedy and adequate remedy.

4. §11 of RA 7633 is an express and real intention on the part of Congress to remove from the LGC’s delegated taxing power, all of Bayantel’s properties that are actually, directly, and exclusively used in the pursuit of its franchise.

The Court noted that §14 of RA 3259 grants an exemption in favor of Bayantel. According to the Court, the legislative intent expressed in the phrase “exclusive of this franchise” cannot be construed other than distinguishing between 2 sets of properties: a) those actually, directly, and exclusively used in its radio or telecommunications business, and b) those properties which are not so used. This section grants to lgus the power to tax teh franchisee’s properties falling under the second category (Note: under the 1935 and 1973 Constitutions the power solely depended upon an enabling law). However, the delegation under the same is limited to

impositions over properties not falling under the first category. Ultimately, properties falling under the first category are exempt from taxes.

However, such exemption was expressly withdrawn by the enactment of the LGC, specifically §234.

The Court also noted that by virtue of §5, Art. X of the Constitution, lgus are empowered to levy taxes and pursuant to this power QC enacted the QCRC. However, such enactment does not effectively withdrew the tax exemption enjoyed by Bayantel since the power of lgus to tax is limited.

Mactan Cebu Internation Airport Authority Case: The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by the local legislative bodies, no longer merely by valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution.

Fr. Bernas, Commissioner of the 1986 Constitutional Commission: Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. Xxx The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations.

The power of QC to tax is limited by §232 of the LGC. Under the said provision, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of the lgu.

PLDT v. City of Davao: The grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions...

Aware that the LGC has already withdrawn Bayantel’s former exemption, Congress opted to pass RA 7633 using exactly the same defining phrase “exclusive of this franchise” which was the basis for Bayantel’s exemption prior to the LGC. The Court views this subsequent legislation as an express and real intention on the part of Congress to once again remove from the LGC’s delegated taxing power all of Bayantel’s properties that are actually, directly exclusively used in the pursuit of its franchise.

Digested by: Leaño, Maria Ofelia S.

LOCGOV - 72Manila International Airport Authority vs. CA (City of Paranaque) (July 20, 2006)Doctrine: Government Instrumentalities are exempt from real estate tax that are imposable by the local government unless. The only exception is when the legislature clearly intended to tax government instrumentalities for the delivery of essential public services for sound and compelling policy considerations. There must be express language in the law empowering local governments to tax national government instrumentalities.Facts:

MIAA operates NAIA in Paranaque City under EO 903 (as amended) or the MIAA Charter. The OGCC issued Opinion no. 061 which stated that the LGC of 1991 withdrew the exemption to Real Estate Tax granted by Sec. 21 of

the MIAA charter. Paranaque city sent final notices of Tax Delinquency for the taxable years 1992-2001. The city of Paranaque through its city treasurer issued warrants of levy on the airport lands and buildings. The Mayor of Paranaque

threatened to sell the property at public auction. Petitioners sought a clarification of the Op. no. 061. OGCC issues Opinion no. 141 stating that Sec. 206 of the LGC requires those

exempt from real estate tax to show proof of the exemption. Such proof was Sec. 21 of the MIAA charter. MIAA filed with the CA a petition for prohibition and injunction with preliminary injunction and TRO to restrain the City of

Paranaque from imposing real estate tax and levying against and auctioning for public sale the Airport lands and buildings. CA dismissed the case on procedural grounds (fling beyond 60-day reglementary period). MR’s were denied. Hence present petition

for review Meanwhile, the City of Parañaque posted notices of auction sale in theBarangay Halls of three barangays, in the public market of

another barangay and in the main lobby of the Parañaque City Hall. The City of Parañaque published the notices in the 3 and 10 January 2003 issues of the Philippine Daily Inquirer, a newspaper of

general circulation in the Philippines. The notices announced the public auction sale of the Airport Lands and Buildings to the highest bidder on 7 February 2003, 10:00

a.m., at the Legislative Session Hall Building of Parañaque City. A TRO was issued the day before the auction

Petitioner’s arguments: Title to the real properties is under the name of MIAA but the real owner of the property is the Republic of the Philippines as they are

for the benefit of the general public. They are thus inalienable and not subject to real estate tax by local governments. Sec. 21 of the MIAA charter exempts it from paying real estate tax. Sec 234 of the LGC also exempts it from paying Real Estate Tax

since the real owner of the airport land and buildings Is the Republic of the Philippines. Exempt from taxation on the principle that the government cannot tax itself.

Respondent’s arguments: Sec. 193 of the LGC expressly withdrew the tax exempt privileges of government owned and controlled corporations Statutory construction: the express mention of one person, thing, or act excludes all others. Mactan International Airport vs. Marcos LGC has withdrawn the exemption from real estate tax granted to international airports. The deletion of the phrase "any government-owned or controlled so exempt by its charter" in Section 234(e) of the Local

Government Code withdrew the real estate tax exemption of government-owned or controlled corporations. The deleted phrase appeared in Section 40(a) of the 1974 Real Property Tax Code enumerating the entities exempt from real estate tax.

Sec. 193 of LGC withdraws all tax exemptions from all persons whether juridical or natural.Issue: W/N: MIAA is exempt from Real Estate Tax imposed by the local government? YESHeld/Ratio: 1. MIAA is not a government owned and controlled corporation it is an instrumentality of the government

A GOCC is not exempt from real estate tax. A GOCC is defined under the administrative code of 1987 as an agency organized as a stock or a non-stock corporation.

MIAA is not a stock corporation because it has no capital stock divided into shares. It is not a non-stock corporation because it has no members.(as required by the corp code)

MIAA is a government instrumentality vested with corporate powers.

Section 2(10) of the Introductory Provisions of the Administrative Code defines a government "instrumentality" as follows:(10) Instrumentality refers to any agency of the National Government, not integrated within the department framework, vested with 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.

A government instrumentality  falls under Section 133(o) of the Local Government Code, which states: SEC. 133. Common Limitations on the Taxing Powers of Local Government Units.  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:x x x x (o) Taxes, fees or charges of any kind on the National Government, its agencies and instrumentalities and local government units

Section 133(o) recognizes the basic principle that local governments cannot tax the national government, which historically merely delegated to local governments the power to tax.

While the 1987 Constitution now includes taxation as one of the powers of local governments, local governments may only exercise such power "subject to such guidelines and limitations as the Congress may provide."

When Congress grants an exemption to a national government instrumentality from local taxation, such exemption is construed liberally in favor of the national government instrumentality

There is no point in national and local governments taxing each other, unless a sound and compelling policy requires such transfer of public funds from one government pocket to another.

There is also no reason for local governments to tax national government instrumentalities for rendering essential public services to inhabitants of local governments. The only exception is when the legislature clearly intended to tax government instrumentalities for the delivery of essential public services for sound and compelling policy considerations. There must be express language in the law empowering local governments to tax national government instrumentalities. Any doubt whether such power exists is resolved against local governments.

2. Real Property owned by the Republic is not Taxable

SEC. 234. 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;

This exemption should be read in relation with Section 133(o) of the same Code, which prohibits local governments from imposing "[t]axes, fees or charges of any kind on the National Government, its agencies and instrumentalities x x x

3. No Withdrawal of Tax Exemption under Sec. 193 of LGC

Sec. 193 provides withdrawal of tax exemptions for all persons juridical and natural unless provided by the code. IT is provided under Sec. 133 (o) that instrumentalities are exempt from taxes imposed by the LGC

Dissenting opinion: Tinga J.

Case should have been decided in accordance with the Mactan Precedent which said that as a General Rule: (Sec 133) the taxing powers of local government units cannot extend to the levy of "taxes, fees and charges of any kind on the National Government, its agencies and instrumentalities, and local government units.” Exceptions: (Sec.234 (a))  when the beneficial use of real property is granted to a taxable person.

 The exemptions from real property taxes are enumerated in Section 234, which specifically states that only real properties owned "by the Republic of the Philippines or any of its political subdivisions" are exempted from the payment of the tax. Clearly, instrumentalities or GOCCs do not fall within the exceptions under Section 234.

The full text of Admin Code includes GOCC’s as government instrumentalities.

MIAA is a GOCC and is thus subject to tax.

Digested by: Jamie Angeli T. Matias

LOCGOV – 73Quezon City and the City Treasurer v. ABS-CBN Broadcasting Corp

Doctrine:

Facts: The QC revenue code imposed a franchise tax26 on businesses operating within its jurisdiction. R.A 7966 granted ABS-CBN a franchise which included a provision stating that “the grantee, its successors or assigns, shall pay a franchise tax equivalent to three percent (3%) of all gross receipts of the radio/television business transacted under this franchise by the grantee, its successors or assigns, and the said percentage tax shall be in lieu of all taxes on this franchise or earnings thereof”. ABS-CBN developed the opinion that it should not be liable to pay taxes and paid under protest the local franchise tax imposed by QC.

Petitioner’s arguments: Quezon City argued that the "in lieu of all taxes" provision in R.A. No. 9766 could not have been intended to prevail over a constitutional mandate which ensures the viability and self-sufficiency of local government units. Further, that taxes collectible by and payable to the local government were distinct from taxes collectible by and payable to the national government, considering that the Constitution specifically declared that the taxes imposed by local government units "shall accrue exclusively to the local governments." Lastly, the City contended that the exemption claimed by ABS-CBN under R.A. No. 7966 was withdrawn by Congress when the Local Government Code (LGC) was passed. Section 193 of the LGC provides:

Section 193. Withdrawal of Tax Exemption Privileges. - Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or -controlled corporations, except local water districts, cooperatives duly registered under R.A. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code.

Respondent’s arguments: Claims that the franchise tax was unconstitutional and because of the phrase “in lieu of all taxes” it is no longer liable for franchise tax

RTC ruled that the "in lieu of all taxes" provision contained in Section 8 of R.A. No. 7966 absolutely excused ABS-CBN from the payment of local franchise tax imposed under Quezon City Ordinance No. SP-91, S-93. The intent of the legislature to excuse ABS-CBN from payment of local franchise tax could be discerned from the usage of the "in lieu of all taxes" provision and from the absence of any qualification except income taxes. Had Congress intended to exclude taxes imposed from the exemption, it would have expressly mentioned so in a fashion similar to the proviso on income taxes.

26ten percent (10%) of one percent (1%) for 1993-1994, twenty percent (20%) of one percent (1%) for 1995, and thirty percent (30%) of one percent (1%) for 1996 and the succeeding years thereafter, of gross receipts and sales derived from the operation of the business in Quezon City during the preceding calendar year

CA dismissed the petition of Quezon City and its Treasurer. According to the appellate court, the issues raised were purely legal questions cognizable only by the Supreme Court.

Issue: W/N ABS-CBN was liable for franchise tax despite the phrase “in lieu of all taxes” in its charter

Held: Yes. The "in lieu of all taxes" provision in its franchise does not exempt ABS-CBN from payment of local franchise tax. First, The present controversy essentially boils down to a dispute between the inherent taxing power of Congress and the delegated authority to tax of local governments under the 1987 Constitution and effected under the LGC of 1991.

The power of the local government of Quezon City to impose franchise tax is based on Section 151 in relation to Section 137 of the LGC. Such taxing power by the local government, however, is limited in the sense that Congress can enact legislation granting exemptions. In the case of Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao, the SC has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. There, the Court wrote:"Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations."

Congress has the inherent power to tax, which includes the power to grant tax exemptions. On the other hand, the power of Quezon City to tax is prescribed by Section 151 in relation to Section 137 of the LGC which expressly provides that notwithstanding any exemption granted by any law or other special law, the City may impose a franchise tax. It must be noted that Section 137 of the LGC does not prohibit grant of future exemptions.

Second, The "in lieu of all taxes" provision in the franchise of ABS-CBN does not expressly provide what kind of taxes ABS-CBN is exempted from. It is not clear whether the exemption would include both local, whether municipal, city or provincial, and national tax. What is clear is that ABS-CBN shall be liable to pay three (3) percent franchise tax and income taxes under Title II of the NIRC. But whether the "in lieu of all taxes provision" would include exemption from local tax is not unequivocal.

As adverted to earlier, the right to exemption from local franchise tax must be clearly established and cannot be made out of inference or implications but must be laid beyond reasonable doubt. Verily, the uncertainty in the "in lieu of all taxes" provision should be construed against ABS-CBN. ABS-CBN has the burden to prove that it is in fact covered by the exemption so claimed. ABS-CBN miserably failed in this regard.

The cases cited by ABS-CBN differ from the case at bar because in the said cases, the franchises were expressly exempt. Since ABS-CBN failed to justify its claim for exemption from local franchise tax, by a grant expressed in terms "too plain to be mistaken" its claim for exemption for local franchise tax must fail.

Lastly, ABS-CBN's claims for exemption must fail on twin grounds. First, the "in lieu of all taxes" clause in its franchise failed to specify the taxes the company is sought to be exempted from. Neither did it particularize the jurisdiction from which the taxing power is withheld. Second, the clause has become functus officio because as the law now stands, ABS-CBN is no longer subject to a franchise tax. It is now liable for VAT since R.A. No. 8424 was passed confirming the 10% VAT liability of radio and/or television companies with yearly gross receipts exceeding P10,000,000.00.

No Dissenting OpinionDigested by: Pao Lorica

LOCGOV - 74Quezon City v. Bayan Telecommunications

Doctrine: Under Sec. 232 of the Local Government Code, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever.

Facts:

1. Bayantel is a legislative franchise holder under Republic Act (Rep. Act) No. 3259 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting.

2. Of relevance to this controversy is the tax provision of Rep. Act No. 3259, embodied in Section 14 thereof, which reads: SECTION 14. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay.

3. Local Government Code of 1991" (LGC), took effect. Section 232 of the Code grants local government units within the Metro Manila Area the power to levy tax on real properties.

4. Barely few months after the LGC took effect, Congress enacted Rep. Act No. 7633, amending Bayantel’s original franchise.

5. It is undisputed that within the territorial boundary of Quezon City, Bayantel owned several real properties on which it maintained various telecommunications facilities. 

6. In 1993, the government of Quezon City, pursuant to the taxing power vested on local government units by Section 5, Article X of the 1987 Constitution, infra, in relation to Section 232 of the LGC, supra, enacted City Ordinance No. SP-91, S-93, otherwise known as the Quezon City Revenue Code (QCRC), imposing, under Section 5 thereof, a real property tax on all real properties in Quezon City, and,

reiterating in its Section 6, the withdrawal of exemption from real property tax under Section 234 of the LGC, supra. Furthermore, much like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in general.

7. Conformably with the City’s Revenue Code, new tax declarations for Bayantel’s real properties in Quezon City were issued by the City Assessor and were received by Bayantel.

8. Bayantel wrote the office of the City Assessor seeking the exclusion of its real properties in the city from the roll of taxable real properties. With its request having been denied, Bayantel interposed an appeal with the Local Board of Assessment Appeals (LBAA). And, evidently on its firm belief of its exempt status, Bayantel did not pay the real property taxes assessed against it by the Quezon City government.

9. Quezon City Treasurer sent out notices of delinquency for the total amount ofP43,878,208.18, followed by the issuance of several warrants of levy against Bayantel’s properties preparatory to their sale at a public auction set on July 30, 2002.

10. Threatened with the imminent loss of its properties, Bayantel immediately withdrew its appeal with the LBAA and instead filed with the RTC of Quezon City a petition for prohibition with an urgent application for a temporary restraining order (TRO) and/or writ of preliminary injunction, thereat docketed as Civil Case No. Q-02-47292, which was raffled to Branch 227 of the court.

11. Lower Court: came out with its challenged Decision of June 6, 2003, the dispositive portion of which reads:

a. WHEREFORE, premises considered, pursuant to the enabling franchise under Section 11 of Republic Act No. 7633, the real estate properties and buildings of petitioner [now, respondent Bayantel] which have been admitted to be used in the operation of petitioner’s franchise described in the following tax declarations are hereby DECLARED exempt from real estate taxation

12. The lower court resolved the issue in the affirmative, basically owing to the phrase "exclusive of this franchise" found in Section 11 of Bayantel’s amended franchise, Rep. Act No. 7633

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)Petitioners filed a petition for review on certiorari under Rule 45 of the Rules of Court to nullify and set aside the following issuances of the Regional Trial Court (RTC) of Quezon City, Branch 227, in its Civil Case No. Q-02-47292. 1) Decision dated June 6, 2003, declaring respondent Bayan Telecommunications, Inc. exempt from real estate taxation on its real properties located in Quezon City; and2) Order dated December 30, 2003, denying petitioners’ motion for reconsideration.

For petitioners, the language of Section 11 of Rep. Act No. 7633 is neither clear nor unequivocal. The elaborate and extensive discussion devoted by the trial court on the meaning and import of said phrase, they add, suggests as much. It is petitioners’ thesis that Bayantel was in no time given any express exemption from the payment of real property tax under its amendatory franchise.

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)

Bayantel states it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise, as found in Section 11 of its amended franchise, RA No. 7633.

Issue/s:  WON Bayantel’s real properties in Quezon City are exempt from real property taxes under its legislative franchise

Held/Ratio: Yes

1. There seems to be no issue as to Bayantel’s exemption from real estate taxes by virtue of the term "exclusive of the franchise" qualifying the phrase "same taxes on its real estate, buildings and personal property," found in Section 14, supra, of its franchise, Rep. Act No. 3259, as originally granted.

2. The legislative intent expressed in the phrase "exclusive of this franchise" cannot be construed other than distinguishing between two (2) sets of properties, be they real or personal, owned by the franchisee, namely, (a) those actually, directly and exclusively used in its radio or telecommunications business, and (b) those properties which are not so used. It is worthy to note that the properties subject of the present controversy are only those which are admittedly falling under the first category.

3. Section 14 of Rep. Act No. 3259 effectively works to grant or delegate to local governments of Congress’ inherent power to tax the franchisee’s properties belonging to the second group of properties indicated above, that is, all properties which, "exclusive of this franchise," are not actually and directly used in the pursuit of its franchise.

4. While Section 14 of Rep. Act No. 3259 may be validly viewed as an implied delegation of power to tax, the delegation under that provision, as couched, is limited to impositions over properties of the franchisee which are not actually, directly and exclusively used in the pursuit of its franchise. Necessarily, other properties of Bayantel directly used in the pursuit of its business are beyond the pale of the delegated taxing power of local governments. In a very real sense, therefore, real properties of Bayantel, save those exclusive of its franchise, are subject to realty taxes.

5. However, with the LGC’s taking effect on January 1, 1992, Bayantel’s "exemption" from real estate taxes for properties of whatever kind located within the Metro Manila area was, by force of Section 234 of the Code, supra, expressly withdrawn. But, not long thereafter, however, or on July 20, 1992, Congress passed Rep. Act No. 7633 amending Bayantel’s original franchise. Worthy of note is that Section 11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision, i.e., Section 14, supra, of Bayantel’s original franchise under Rep. Act No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section 14 of Rep. Act No. 7633. In concrete terms, the realty tax exemption heretofore enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of the LGC, has been restored by Section 14 of Rep. Act No. 7633.

6. The Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987 Constitution local governments are empowered to levy taxes. And pursuant to this constitutional empowerment, juxtaposed with Section 232 of the LGC, the Quezon City government enacted in 1993 its local Revenue Code, imposing real property tax on all real properties found within its territorial jurisdiction. And as earlier stated, the City’s Revenue Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax exemption privileges in general.

7. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. As we explained in Mactan Cebu International Airport Authority:

a. The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy.

8. Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units’ delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, .the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is [still] primarily vested in the Congress."

9. In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local government’s delegated power to tax under the aegis of the 1987 Constitution

10. There can really be no dispute that the power of the Quezon City Government to tax is limited by Section 232 of the LGC which expressly provides that "a province or city or municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvement not hereinafter specifically exempted."

11. Under this law, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever.

12. In Philippine Long Distance Telephone Company, Inc. (PLDT) vs. City of Davao, this Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes.

13. The issue in this case no longer dwells on whether Congress has the power to exempt Bayantel’s properties from realty taxes by its enactment of Rep. Act No. 7633 which amended Bayantel’s original franchise. The more decisive question turns on whether Congress actually did exempt Bayantel’s properties at all by virtue of Section 11 of Rep. Act No. 7633.

14. Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already withdrawn Bayantel’s former exemption from realty taxes, Congress opted to pass Rep. Act No. 7633 using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was the basis for Bayantel’s exemption from realty taxes prior to the LGC. In plain language, Section 11 of Rep. Act No. 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay."

15. The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGC’s delegated taxing power, all of the franchisee’s (Bayantel’s) properties that are actually, directly and exclusively used in the pursuit of its franchise.

Digested by: Michael Marlowe G. Uy

LOCGOV - 075Yamane v. BA LepantoLuz Yamane, in her capacity as the City Treasurer of Makati, Petitioner, vs. BA Lepanto Condominium Corporation. (25 October 2005) Tinga, J.

Petition for tax refund

Doctrine: Ambiguity as to the application of an LGU tax on an individual shall be strictly construed against the LGU.

Petitioner: Makati City Treasurer Yamane, assessed BA Lepanto Condo Corp. for business taxRespondent: BA Lepanto Condo Corp., corporation of association of various condo unit owners

Facts:Respondent BA-Lepanto Condominium Corporation (the “Corporation”) is a duly organized condominium corporation constituted in accordance with the Condominium Act, which owns and holds title to the common and limited common areas of the BA-Lepanto Condominium (the “Condominium”), situated in Paseo de Roxas, Makati City. Its membership comprises the various unit owners of the Condominium.

The Corporation is authorized, under Article V of its Amended By-Laws, to collect regular assessments from its members for operating expenses, capital expenditures on the common areas, and other special assessments as provided for in the Master Deed with Declaration of Restrictions of the Condominium.

1. Respondent was assessed by the petitioner City Treasurer for P1,601,013.77 as payment for city business taxes, fees and charges.

2. The Notice of Assessment was silent as to the statutory basis of the business taxes assessed. 3. The respondent paid the assessment under protest.

Petitioner’s Arguments (Yamane, Makati City Treasurer):1. Collection of dues effected primarily with end goal of

a. to get full appreciative living values for condo ownersb. to command better prices for those occupants who would sell the units in the future

2. Corporation activity “is a profit venture making” (Note: Even the court did not fully understand what the treasurer was trying to say. )3. Articles of Incorporation specifically empowers BA Lepanto to acquire, own, hold, enjoy, lease, operate and maintain, and to convey, sell, transfer mortgage or otherwise dispose of real or personal property.

Respondent’s Arguments (BA Lepanto, taxpayer):1. No statutory basis for assessment.2. While Sec. 3A.02(m) of the Makati Revenue Code provides for the imposition of business tax on owners or operators of any business, BA Lepanto is not such an operator or owner of a business.

a. LGC and Makati Code define “business” as “trade or commercial activity regularly engaged in as a means of livelihood or with a view to profit.”b. Operations of BA Lepanto:

i. not for profitii. hold title over the common areas of the Condominiumiii. manage the Condominium for the unit ownersiv. hold title to the parcels of land on which the Condominium was located

c. not authorized under its by-laws to enter into profit-making activities

Issue: Is BA Lepanto liable for business tax? (Differently stated: can an LGU, under the Local Government Code, impel a condominium corporation to pay business taxes?)

Held: NO. Besides the failure of Yamane to show the statutory basis for such assessment, BA Lepanto does not fall within the definition of “business” as set forth under the LGC and the NIRC, and by its corporate purpose as provided under the Condominium Act.

SC Ruling:1. The Court overlooked the procedural lapse regarding appellate jurisdiction exercised by CA in the interest of justice.27

27 “From these premises, it is evident that the stance of the City Treasurer is correct as a matter of law, and that the proper remedy of the Corporation from the RTC judgment is an ordinary appeal under Rule 41 to the Court of Appeals. However, we make this pronouncement subject to two important qualifications. First, in this particular case there are nonetheless significant reasons for the Court to overlook the procedural error and ultimately uphold the adjudication of the jurisdiction exercised by the Court of Appeals in this case. Second, the doctrinal weight of the pronouncement is confined to cases and controversies that emerged prior to the enactment of Republic Act No. 9282, the law which expanded the jurisdiction of the Court of Tax Appeals (CTA).”“Be that as it may, characteristic of all procedural rules is adherence to the precept that they should not be enforced blindly, especially if mechanical application would defeat the higher ends that animates our civil procedure—the just, speedy and inexpensive disposition of every action and proceeding. Indeed, we have repeatedly upheld—and utilized ourselves—the discretion of courts to nonetheless take cognizance of petitions raised on an erroneous mode of appeal and instead treat these petitions in the manner as they should have appropriately been filed. The Court of Appeals could very well have treated the Corporation’s petition for review as an ordinary appeal.”

2. The power of local government units to impose taxes within its territorial jurisdiction derives from the Constitution itself, which recognizes the power of these units “to create its own sources of revenue 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.” These guidelines and limitations as provided by Congress are in main contained in the Local Government Code of 1991 (the “Code”), which provides for comprehensive instances when and how local government units may impose taxes. The significant limitations are enumerated primarily in Section 133 of the Code, which include among others, a prohibition on the imposition of income taxes except when levied on banks and other financial institutions. None of the other general limitations under Section 133 find application to the case at bar.

3. Yamane has failed to show statutory basis for assessment:a. Section 143 of LGC enumerating businesses on which LGUs may impose taxes include:

i. manufacturers, wholesalers, distributors, dealers of any article of commerce of whatever nature; ii. those engaged in the export or commerce of essential commodities; iii. contractors and other independent contractors; iv. banks and financial institutions

b. Section 3A.02(m) of the NIRC [catch-all phrase] also includes “owners or operators of any business not specified above”c. However, Yamane’s notice of assessment, which stands as the first instance the taxpayer is officially made aware of the pending tax liability, failed to be sufficiently informative to apprise BA Lepanto of the legal basis of the tax.d. Requisites under Sec 195 of the LGC for the notice of assessment [although not requiring that ordinance be stated]:

i. the nature of the tax, fee or chargeii. the amount of deficiency, surcharges, interests and penalties.

e. However, the Court may not rule that there has been a due process violation since it was not raised by BA Lepanto. 4. BA Lepanto does not fall within the definition of business in the LGC and is thus exempt from local business taxation.

a. Under the Condominium Act, a condominium corporation is precluded from engaging in corporate activities other than the holding of the common areas, the administration of the condominium project, and other acts necessary, incidental or convenient to the accomplishment of such purposesb. By-laws do not provide maintaining a livelihood or the obtaining of profitc. While Section 3A.02(f) is quite exhaustive in enumerating the class of businesses taxed under the provision, the listing, while it does not include condominium-related enterprises, ends with the abbreviation “etc.”, or “et cetera”.

i. The SC held that lack of definiteness in the use of “etc” cannot be held as to provide basis for imposition of tax on BA Lepanto.d. The Court rejected Yamane’s argument since:

i. if any profit is obtained by the sale of the units, it accrues not to the corporation but to the unit owner28

28Besides, we shudder at the thought of upholding tax liability on the basis of the standard of “full appreciative living values”, a phrase that defies statutory explication, commonsensical meaning, the English language, or even definition from Google. The exercise of the power of taxation constitutes a deprivation of property under the due process clause, and the taxpayer’s right to due process is violated when arbitrary or oppressive methods are used in assessing and collecting taxes. The fact that the Corporation did not fall within the enumerated classes of taxable businesses under either the Local Government Code or the Makati Revenue Code already forewarns that a clear demonstration is essential on the part of the City Treasurer on why the Corporation should be taxed anyway. “Full appreciative living values” is nothing but blather in search of meaning, and to impose a tax hinged on that standard is both arbitrary and oppressive.

ii. if the unit owner does obtain profit from the sale of the corporation, the owner is already required to pay capital gains tax on the appreciated value of the condominium unit29

e. That the Articles of Incorporation provides for such capacity to sell, transfer, mortgage etc. any real property is limited by its stated corporate purposes limited by the Condominium Act.f. The only exception to this is when the unit owners of a condominium would band together to engage in activities for profit under the shelter of the condominium corporation.

  

Dispositive: Petition denied. Assessment on BA Lepanto dismissed

Digested by: Kriszanne Ceñidoza

LOCGOV – 76Secretary of Finance v Ilarde (2005)

Petitioner: Secretary of FinanceRespondents: Ricardo Ilarde (RTC Judge, Branch 26, Iloilo City) and Cipriano Cabaluna Jr.

Doctrine: The Secretary of Finance has no authority to prescribe rates contrary to the RPT Code. To accept the Secretary’s premise that E.O. No. 73 had accorded the Ministry of Finance the authority to alter, increase, or modify the tax structure would be tantamount to saying that E.O. No. 73 has repealed or amended P.D. No. 464. Repeal of laws should be made clear and expressed.

Facts:1. Cabaluna was the Regional Director of Regional Office No. VI of the Department of Finance in Iloilo City. He also co-owned several real

properties (several lots and a residential house and lot) located in Iloilo City.2. Cabaluna failed to pay the land taxes on two of his lots for the years 1986-1992 and the land taxes on three lots for the years 1991-

1992. The computation of the delinquent taxes showed that he was charged more than 24% by way of penalties.3. He paid his land taxes and his receipts contained the notation “paid under protest”. After retirement, he filed a formal letter of protest

with the City Treasurer of Iloilo. The Assistant City Treasurer turned down the protest citing Section 4 of Joint Assessment Regulations No 1-8530 and Local Treasury Regulations No 2-85.

29The City Treasurer also contends that the fact that the Corporation is engaged in business is evinced by the Articles of Incorporation, which specifically empowers the Corporation “to acquire, own, hold, enjoy, lease, operate and maintain, and to convey, sell, transfer mortgage or otherwise dispose of real or personal property.” What the City Treasurer fails to add is that every corporation organized under the Corporation Code is so specifically empowered. Section 36(7) of the Corporation Code states that every corporation incorporated under the Code has the power and capacity “to purchase, receive, take or grant, hold, convey, sell, lease, pledge, mortgage and otherwise deal with such real and personal property . . . as the transaction of the lawful business of the corporation may reasonably and necessarily require . . . .” Without this power, corporations, as juridical persons, would be deprived of the capacity to engage in most meaningful legal relations.

30(c) The penalty of two percent (2%) per month of delinquency, or twenty-four percent (24%) per annum, as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that it is paid for in full.

4. Petitioner then filed a Petition for Declaratory Relief with Damages before Respondent judge’s sala. Ilarde ruled in favor of Cabaluna declaring as null and void Section 4(c) of Joint Assessment Regulation No. 1-85 and Local Treasury Regulation No. 2-85; (2) declaring that in no case shall the total penalty exceed twenty-four per centum of the delinquent tax as provided for in Section 66 of P.D. 464 otherwise known as the Real Property Tax Code; and (3) ordering the City Treasurer of Iloilo City to refund and/or reimburse Cipriano P. Cabaluna the amounts paid in excess of twenty-four percent (24%). Petitioner appeals.

Petitioners’ Side:1. Judge’s ruling was premised on erroneous grounds.2. Private respondent cannot question the validity of the regulation which he himself upheld and applied to other property as the

regional director of finance for region VI.3. The regulations’ departure from the RPT Code is sanctioned by EO 73 and its implementing guidelines, Joint Local

Assessment/Treasury Regulations No. 2-86 (these guidelines do not provide a limit to the penalty)4. Respondents’ recourse is to file a case questioning the validity of 2-86.5. 2-86 was borne out of EO 73. 2-86 is consistent with the assailed regulations, hence, EO 73 has the effect of validating these

regulations.6. The Minister of Finance under section 2 of EO 73 has the authority to promulgate necessary rules and regulations to implement the

EO. This is blanket authority to tinker with the rates of penalty in delinquency taxes7. The regulations are not inconsistent with the RPT Code as it only applies to simple delinquency and not cases wherein there was

failure to promptly pay the real property tax due, including the increase in tax due and demandable for the tax year as a result of the application of the 1984 New or Revised Assessment of the value of the subject property

Respondents’ Side:1. The computation was erroneous since the rate applied exceeded 24% in contravention of section 66 of PD 464 (Real Property Tax

Code)2. Both regulations are unconstitutional.

Issue:1. Whether or not Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 are valid2. What is the proper rate of penalty for delinquent real property taxes3. Whether or not the penalties for delinquent real property tax imposed by petitioner on the properties of private respondent are valid.

Held:1. No. These regulations are repugnant to the Real Property Tax Code, the law prevailing at the time material to the case.

a. Section 66 contains a proviso stating: Provided, That in no case shall the total penalty exceed twenty-four per centum of the delinquent tax.

b. In comparison, the regulations state that: the penalty of two percent (2%) per month of delinquency or twenty-four percent (24%) per annum as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that the delinquency is paid for in full. The penalty imposed under the regulations has no limit as the penalty shall be continuously imposed on the unpaid tax until it is paid in full.

c. It is the validity of said regulations, not Joint Local Assessment/Treasury Regulations No. 2-86, that is sought to be resolved herein and petitioner should not depart from the issue on hand.

d. The underlying principle behind E.O. No. 73, as gleaned from the whereas clauses and Section 1 thereof, is to advance the date of effectivity of the application of the Real Property Tax Values of 1984 from 01 January 1988, the original date it was intended by E.O. No. 1019 to take effect for purposes stated therein, to 01 January 1987. E.O. No. 73 did not, in any way, alter the structure of the real property tax assessments as provided for in P.D. No. 464 or the Real Property Tax Code.

e. E.O. No. 73 did not touch at all on the topic of amendment of rates of delinquent taxes or the amendment of rates of penalty on delinquent taxes. E.O. No. 73, particularly in Section 2 thereof, has merely designated the Minister of Finance to promulgate the rules and regulations towards the implementation of E.O. No. 73, particularly on the application of the Real Property Values as of 31 December 1984, which is the general purpose for enacting said executive order. What is patent from the above-quoted Section 3 of E.O. No. 73 is the repeal of E.O. No. 1019, not Section 66 of P.D. No. 464

f. Neither did E.O. No. 1019 directly or indirectly vest upon the Department of Finance the right to fiddle with the rates of penalty. Even assuming that E.O. No. 1019 had, such authority would have been automatically stripped off from it upon the express repeal of E.O. No. 1019 by e.o. No. 73 on the 25th of November 1986.

g. Despite the promulgation of E.O. No. 73, P.D. No. 464 in general and Section 66 in particular, remained to be good law. To accept petitioner's premise that E.O. No. 73 had accorded the Ministry of Finance the authority to alter, increase, or modify the tax structure would be tantamount to saying that E.O. No. 73 has repealed or amended P.D. No. 464. Repeal of laws should be made clear and expressed. The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. There is no such inconsistency here. Jurisprudence is to the effect that it is only Republic Act No. 7160 or the Local Government Code of 1991, which repealed the Real Property Tax Code or P.D. No. 464.16

h. The implementing rules cannot add to or detract from the provisions of the law it is designed to implement. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law they are intended to carry into effect, which in this case is merely to antedate the effectivity of the 1984 Real Property Tax values inasmuch as this is the raison d'être of E.O. No. 73.

i. The fact that Cabaluna was responsible for the issuance and implementation of Regional Office Memorandum Circular No. 04-89 which implemented Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 does not put him in estoppel from seeking the nullification of said Regulations at this point.

i. He is suing as a plain taxpayer and not as the regional directorii. His official acts could not have stripped him of his rights as a taxpayer

iii. An invalid regulation cannot be made valid by any act/endorsement of any official. Estoppel cannot make an invalid regulation valid.

2. 24%.a. the law applicable for purposes of computation of the real property taxes due for the years 1986 to 1991, including the

penalties and interests, is still Section 66 of the Real Property Tax Code of 1974 or P.D. No. 464.(two per centum on the amount of the delinquent tax for each month of delinquency or fraction thereof but "in no case shall the total penalty exceed twenty-four per centum of the delinquent tax.")

b. However, from 01 January 1992 onwards, the proper basis for the computation of the real property tax payable, including penalties or interests, if applicable, must be Rep. Act No. 7160, known as the Local Government Code, which took effect on the 1st of January 1992 inasmuch as Section 534 thereof had expressly repealed P.D. No. 464 or the Real Property Tax Code. Section 5(d) of Rep. Act No. 7160 provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such contracts were vested.

3. No. (see 1)

Dispositive:Petition denied.

Digested by: Wiggy

LOCGOV - #77SMART COMMUNICATIONS, INC. v. THE CITY OF DAVAO (2008)

Doctrine: The “in lieu of all taxes” clause in a legislative franchise should expressly and categorically state that the exemption applies to both local and national taxes; otherwise, it only applies to national internal revenue taxes and not to local taxes.

Facts:Smart filed a special civil action for declaratory relief for the ascertainment of its rights and obligations under the Tax Code of the City of Davao [Sec. 1, Art 10]31, which imposes a franchise tax on businesses enjoying a franchise within the territorial jurisdiction of Davao

RTC: denied. (a) the ambiguity of the “in lieu of all taxes” provision in R.A. No. 7294, on whether it covers both national and local taxes, must be resolved

against the taxpayer.(b)  tax exemptions are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority and, thus, those who

assert a tax exemption must justify it with words too plain to be mistaken and too categorical not to be misinterpreted. (c) Re: violation of the non-impairment clause of the Constitution

Mactan Cebu International Airport Authority v. Marcos: the city’s power to tax is based not merely on a valid delegation of legislative power but on the direct authority granted to it by the fundamental law.  

(d) While thepower to tax may be subject to restrictions or conditions imposed by Congress, any such legislated limitation must be consistent with the basic policy of local autonomy

31Notwithstanding any exemption granted by any law or other special law, there is hereby imposed a tax on businesses enjoying a franchise, at a rate of seventy-five percent (75%) of one percent (1%) of the gross annual receipts for the preceding calendar year based on the income or receipts realized within the territorial jurisdiction of Davao City.

Petitioner’s arguments: Its telecenter in Davao City is exempt from payment of franchise tax to the City: (a) there is clear legislative intent to exempt it from the provisions of  R.A. 7160 since its franchise (RA 7194) was issued subsequent to RA 7160; (b) Sec 137 of  R.A. No. 7160 can only apply to exemptions already existing at the time of its effectivity and not to future exemptions; (c) the power of the City of Davao to impose a franchise tax is subject to the “in lieu of all taxes” clause found in Sec 9 of R.A. No. 7294; such clause exempts it from all taxes, both local and national, except the national franchise tax (now VAT), income tax, and real property tax;(d) the imposition of franchise tax by the City of Davao would amount to a violation of the constitutional provision against impairment of contracts, since the franchise is in the nature of a contract between the government and Smart

Respondent’s arguments: the Constitution [Art X, Sec 5] granted local government units the power to create their own sources of revenue

Issue: WON Smart is liable to pay the franchise tax imposed by the City of Davao

Held/Ratio: YES 1) Prospective Effect of RA 7160

Sec 137, in relation to Sec 151 of R.A. No. 7160, allowed the imposition of franchise tax by the local government units; while Sec 193 thereof provided for the withdrawal of tax exemption privileges granted prior to the issuance of R.A. No. 7160 except for those expressly mentioned therein.The Court agrees with Smart’s contention that it is not covered by Sec 137, in relation to Sec 151 of R.A. No. 7160, because its franchise was granted after the effectivity of the said law. The withdrawal of tax exemptions or incentives provided in R.A. No. 7160 can only affect those franchises granted prior to the effectivity of the law.  The intention of the legislature to remove all tax exemptions or incentives granted prior to the said law is evident in the language of Section 193 of R.A. No. 7160. No interpretation is necessary.

2) The “in lieu of all taxes” clause in RA7294 R.A. No. 7294 is not definite in granting exemption to Smart from local taxation. Section 9 of R.A. No. 7294 imposes on Smart a franchise tax equivalent to three percent (3%) of all gross receipts of the business transacted under the franchise and the said percentage shall be in lieu of all taxes on the franchise or earnings thereof. R.A. No 7294 does not expressly provide what kind of taxes Smart is exempted from. It is not clear whether the “in lieu of all taxes” provision in the franchise of Smart would include exemption from local or national taxation.The uncertainty in the “in lieu of all taxes” clause in R.A. No. 7294 must be construed strictly against Smart which claims the exemption. Smart has the burden of proving the exemption. However, it failed to do so.

Thus, the doubt must be resolved in favor of the City of Davao. The “in lieu of all taxes” clause applies only to national internal revenue taxes and not to local taxes. The franchise tax that the City of Davao may impose must comply with Secs 137 and 151 of R.A. No. 7160.  *Note: In this case, Sec 9 of RA 7294 has been repealed by the VAT Law [Sec 20, RA 7716], which imposes a uniform 10% VAT on all telecommunications companies. Thus, Smart is no longer paying the franchise tax imposed in RA 7294.

3) Non-impairment Clause of the Constitutionthere is no violation of Article III, Section 10 of the 1987 Philippine Constitution.  The franchise of Smart does not expressly provide for exemption from local taxes. Absent the express provision on such exemption under the franchise, we are constrained to rule against it. The “in lieu of all taxes” clause in Section 9 of R.A. No. 7294 leaves much room for interpretation. Due to this ambiguity in the law, the doubt must be resolved against the grant of tax exemption.Moreover, Smart’s franchise was granted with the express condition that it is subject to amendment, alteration, or repeal. Tolentino v. Secretary of Finance: It is enough to say that the parties to a contract cannot, through the exercise of prophetic discernment, fetter the exercise of the taxing power of the State

Digested by: Barbie Perez

LOCGOV – 78

Vergara vs. Ombudsman (2009)

Doctrine:Ratification by the City Council is not a condition sine qua non for the local chief executive to enter into contracts on behalf of the city. The law requires prior authorization from the City Council and in this case, Resolution No. 280 is the City Council’s stamp of approval and authority for Mayor Lajara to purchase the subject lots.

Facts:- City Council of Calamba issued Resolution No. 115, authorizing Mayor Lajara to negotiate with landowners within the vicinity of

Barangays Real, Halang, and Uno, for a new city hall site.- On 29 October 2001, the City Council passed Resolution No. 280, authorizing Mayor Lajara to purchase several lots owned by Pamana

Inc. with a total area of 55,190 square meters for the price of P129,017,600.Mayor Lajara was also authorized to execute, sign and deliver the required documents.

- Consequently, the City Government of Calamba, through Mayor Lajara, entered into the following agreements:a. Memorandum of Agreement with Pamana and Prudential Bank – discussed the terms and conditions of the sale (the total

purchase price would be payable in installments)b. Deed of Sale

c. Deed of Real Estate Mortgaged. Deed of Assignment of Internal Revenue Allotment (IRA)

- On 19 November 2001, the above documents were endorsed to the City Council.

Petitioner’s arguments: - Petitioner alleged that all these documents were not ratified by the City Council.- Petitioner stated that he called the attention of the City Council on the following observations:

o TCT Nos. 66141, 66142, 66143, 61705 and 66140 were registered under the name of Philippine Sugar Estates Development Company (PSEDC) and neither Pamana nor Prudential Bank owned these properties. Petitioner pointed out that although PSEDC had executed a Deed of Assignment in favor of Pamana to maintain the road lots within the PSEDC properties, PSEDC did not convey, sell or transfer these properties to Pamana. Moreover, petitioner claimed that the signature of Fr. Efren O. Rivera (Fr. Rivera) in Annex A of the Deed of Assignment appeared to be a forgery. Fr. Rivera had also submitted an Affidavit refuting his purported signature in Annex A.

o Petitioner claimed that there was no relocation survey prior to the execution of the Deed of Sale.o Petitioner alleged that with respect to the two lots covered by TCT No. 61703 with an area of 5,976 square meters and TCT No.

66140 with an area of 3,747 square meters, Fr. Boyd R. Sulpico (Fr. Sulpico) of the Dominican Province of the Philippines had earlier offered the same for only P300 per square meter.

o Petitioner contended that TCT Nos. 66141, 66142, 66143 and 61705 are road lots. The dorsal sides of the TCTs bear the common annotation that the road lots cannot be closed or disposed without the prior approval of the National Housing Authority and the conformity of the duly organized homeowners’ association.

o Petitioner claimed that an existing barangay road and an access road to Bacnotan Steel Corporation and Danlex Corporation were included in the Deed of Sale.

- Hence, petitioner filed a complaint in the Ombudsman against private respondents for violation of Section 3(e) of RA 3019.- Upon motion for reconsideration, petitioner alleged that the Ombudsman did not consider the issue that Calamba City paid for lots

that were either easement/creeks, road lots or access roads. Petitioner alleged that it is erroneous to conclude that the price was reasonable because Calamba City should not have paid for the creeks, road lots and access roads at the same price per square meter. Petitioner claimed that the additional evidence of overpricing was a letter from Fr. Sulpico who offered the road lots covered by TCT Nos. 61703 and 66140 atP300per square meter

Respondent’s arguments: - The Ombudsman issued a Resolution finding no probable cause to hold any of the respondents liable for violation of Section 3(e) of

RA 3019.o the subject properties have been transferred and are now registered in the name of Calamba City under new Certificates of

Titleo the reasonableness of the purchase price for the subject lots could be deduced from the fact that Calamba City bought them

at P3,800 per square meter, an amount lower than their zonal valuation  at P6,000 per square meter

o the terms and conditions of payment were neither onerous nor burdensome to the city government as it was able to immediately take possession of the lots even if it had paid only less than ten percent of the contract price and was even relieved from paying interests on the installment payments

o the total purchase price was paid under liberal terms as it was paid in installments for one year from date of purchaseo the parties agreed that the last installment of P25,000,000 was subject to the condition that titles to the properties were first

transferred to Calamba Cityo the absence of a relocation survey did not affect the validity of the subject transactions

- To warrant conviction under Section 3(e) of RA 3019, the following essential elements must concur:o the accused is a public officer discharging administrative, judicial, or official functions;o he must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and o his action caused undue injury to any party, including the government, or gave any private party unwarranted benefits,

advantage, or preference in the discharge of his functions.- The Ombudsman  contended that when Mayor Lajara entered into and implemented the subject contracts, he complied with the

resolutions issued by the City Council.- The Ombudsman held that the various actions performed by Mayor Lajara in connection with the purchase of the lots were all

authorized by the Sangguniang Panlungsod as manifested in the numerous resolutions. With such authority, it could not be said that there was evident bad faith in purchasing the lands in question. The lack of ratification alone did not characterize the purchase of the properties as one that gave unwarranted benefits to Pamana or Prudential Bank or one that caused undue injury to Calamba City.

- On the alleged overpricing of the lots covered by TCT Nos. 61703 and 66140, the Ombudsman ruled that it could be discerned from Fr. Sulpico’s affidavit that the said parcels of land were excluded from the offer, being creek easement lots.

- The Ombudsman explained that ratification by the City Council was not a condition sine qua non for the local chief executive to enter into contracts  on behalf of the city. The law requires prior authorization from the City Council and in this case, Resolution Nos. 115 and 280 were the City Council’s stamp of approval and authority for Mayor Lajara to purchase the subject lots.

Respondent Mayor Lajara and City Treasurer Baroro:- It is not sound practice to depart from the policy of non-interference in the Ombudman’s exercise of discretion to determine whether

to file an information against an accused.  - In the assailed Resolution and Order, the Ombudsman stated clearly and distinctly the facts and the law on which the case was based

and as such, petitioner had the burden of proving that grave abuse of discretion attended the issuance of the Resolution and Order of the Ombudsman.

- Respondents claimed that out of the six PSEDC-owned lots that were sold to Calamba City, the ownership of the four lots had already been  transferred to Pamana as evidenced by the new TCTs.  They added that even if TCT Nos. 66140 and 61703 were still in PSEDC’s name, ownership of these lots had been transferred to Pamana as confirmed by Fr. Sulpico, the custodian of all the assets of the Dominican Province of the Philippines.

- Respondents also refuted the alleged overpricing of the lots covered by TCT Nos. 66140 and 61703. Respondents contended that Fr. Sulpico’s letter offering the lots at P350 per square meter had been superseded by his own denial of said offer during the meeting of the Sangguniang Panlungsod on 14 November 2002.

- On the absence of ratification by the City Council, respondents explained that Section 22 of Republic Act No. 7160 spoke of prior authority and not ratification. Respondents pointed out that petitioner did not deny the fact that Mayor Lajara was given prior authority to negotiate and sign the subject contracts. In fact, it was petitioner who made the motion to enact Resolution No. 280.

- On the non-conduct of a relocation survey, respondents noted that while a relocation survey may be of use in determining which lands should be purchased, the absence of a relocation survey would not, in any manner, affect the validity of the subject transactions.

Issue: WON all the documents pertaining to the purchase of the lots should bear the ratification by the City Council of Calamba (NO)

Held/Ratio: - Ratification by the City Council is not a condition sine qua non for the local chief  executive to enter into contracts on behalf

of the city. The law only requires prior authorization from the City Council.- Section 22(c), Title I of RA 7160 (LGC) provides: Unless otherwise provided in this Code, no contract may be entered into by the local

chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned.- Section 455, Title III of the LGC enumerates the powers, duties, and compensation of the Chief Executive: Represent the city in all its

business transactions and sign in its behalf all bonds, contracts, and obligations, and such other documents upon authority of the Sangguniang Panlungsod or pursuant to law or ordinance

- Clearly, when the local chief executive enters into contracts, the law speaks of prior authorization or authority from the Sangguniang Panlungsod and not ratification. It cannot be denied that the City Council issued Resolution No. 28032 authorizing Mayor Lajara to purchase the subject lots.

- As aptly pointed out by the Ombudsman, ratification by the City Council is not a condition sine qua non for Mayor Lajara to enter into contracts. With the resolution issued by the Sangguniang Panlungsod, it cannot be said that there was evident bad faith in purchasing the subject lots. The lack of ratification alone does not characterize the purchase of the properties as one that gave unwarranted benefits to Pamana or Prudential Bank or one that caused undue injury to Calamba City.

Issue 2: Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction when the Ombudsman dismissed for lack of probable cause the case against respondents for violation of Section 3(e) of RA 3019 (NO)

Held/Ratio- The Office of the Ombudsman is vested with the sole power to investigate and prosecute, motu proprio or on complaint of any person,

any act or omission of any public officer or employee, office, or agency when such act or omission appears to be illegal, unjust, improper, or inefficient.The Ombudsman’s power to investigate and to prosecute is plenary and unqualified.

32A RESOLUTION AUTHORIZING THE CITY MAYOR OF CALAMBA, HON. SEVERINO J. LAJARA TO PURCHASE LOTS OF PAMANA INC. WITH A TOTAL AREA OF FIFTY FIVE THOUSAND SQUARE METERS (55,000 SQ. M.) SITUATED AT BARANGAY REAL, CITY OF CALAMBA FOR A LUMP SUM PRICE OF ONE HUNDRED TWENTY NINE MILLION SEVENTEEN THOUSAND SIX HUNDRED PESOS (P129,017,600), SUBJECT TO THE AVAILABILITY OF FUNDS, AND FOR THIS PURPOSE, FURTHER AUTHORIZING THE HON. MAYOR SEVERINO J. LAJARA TO REPRESENT THE CITY GOVERNMENT AND TO EXECUTE, SIGN AND DELIVER SUCH DOCUMENTS AND PAPERS AS MAYBE SO REQUIRED IN THE PREMISES.

- The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should the Ombudsman find  the complaint insufficient in form or substance, or the Ombudsman may proceed with the investigation if, in the Ombudsman’s view, the complaint is in due form and substance

- This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman’s constitutionally mandated powers. However, this Court is not precluded from reviewing the Ombudsman’s action when there is grave abuse of discretion, in which case the certiorari jurisdiction of the Court may be exceptionally invoked pursuant to Section 1, Article VIII of the Constitution. These exceptions are not present in this case.

- A perusal of the records shows that the findings of fact by the Ombudsman are supported by substantial evidence. As long as substantial evidence supports it, the Ombudsman’s ruling will not be overturned. Petitioner, in arguing that the Ombudsman committed grave abuse of discretion, raises questions of fact. This Court is not a trier of facts, more so in the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack of jurisdiction or grave abuse of discretion can be raised.

Digested by: Morales, MB

LOCGOV - #79Case (City of Caloocan vs CA)

Doctrine: It is the mayor who has the authority to file suits "for the recovery of funds and property" on behalf of the city, even without the prior authorization from the Sanggunian.

Facts: Sangguniang Panlungsod (Sanggunian) of Caloocan City passed Ordinance No. 068 authorizing the city mayor, then Mayor Macario

Asistio, Jr. to negotiate and enter into a contract of sale of the patrimonial property of the city Mayor Asistio, on behalf of Caloocan City, and Jose C. Go of Ever Gotesco (Gotesco), executed a Deed of Absolute Sale over the

aforementioned property However, the Commission on Audit (COA) disapproved the Deed of Sale. Nonetheless, on motion for reconsideration, the COA

approved the proposed sale on the condition that the selling price is pegged at a different price Sanggunian passed an ordinance amending Ord. No. 068, directing that an amended deed of absolute sale be executed between the

City and Gotesco, the terms and conditions of which be pursuant to the COA decision

The ordinance was initially vetoed by then incumbent mayor, Reynaldo O. Malonzo (Malonzo), on the ground that since the deed of sale earlier executed was valid and subsisting it was not incumbent upon him to execute an amended deed of conveyance over the same property; the Sanggunian, however, passed Resolution No. 0609 overriding the veto

Gotesco executed an "Express Consent to the Novation of the Deed of Absolute Sale" with an "Amended Deed of Absolute Sale" embodying the amendments prescribed by Ord. No. 0236. Mayor Malonzo received the documents but refused to sign the amended deed of sale

Department of Interior and Local Government opined that the deed of absolute sale may be registered with the Register of Deeds of Caloocan City, the registration being a mere ministerial act on the part of the latter. Thereafter, Gotesco tendered payment for the property, as well as for transfer tax and and real estate tax to the City Treasurer and to Malonzo but these payments were refused

Gotesco filed Civil Case No. C-18274, seeking the consignation of the purchase price and tax payments Land Registration Authority allowed the registration of the subject deed of sale Caloocan City filed a petition for prohibition with application for preliminary injunction and prayer for the issuance of a temporary

restraining order before the Regional Trial Court of Caloocan. Another case was filed for annulment of sale and cancellation of title Three cases therefore are involved: 1. Civil case for consignation by Gotesco 2. Petition for prohibition with application for

preliminary injunction and prayer for the issuance of a temporary restraining order by Malonzo to prevent registration of the sale 3. Civil case for annulment of sale and cancellation of title by Malonzo

Gotesco filed a petition for certiorari with the Court of Appeals, assailing the denial of its motion to dismiss. Appellate court dismissed the petition. Gotesco moved for reconsideration of the Decision, raising as grounds therefore that i) Caloocan City and its counsel, the City Legal Officer, are guilty of forum-shopping; ii) there exists between the parties in Civil Cases Nos. C-18274, C-18308, C-18337, the elements of litis pendentia and/or res judicata; iii) the City Legal Officer is without authority to execute the verification, as well as the certification against forum-shopping in the Complaint docketed as Civil Case No. C-18337; and iv) the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its questioned Order

Court of Appeals reversed its earlier ruling and granted the petition, and ordered the dismissal of Civil Case No. C-18337

Petitioner’s arguments: Relief: Reversal of CA decision Position: The Court of Appeals had no basis for reversing its earlier Decision since private respondents did not present any new

evidence or novel arguments, such that their motion for reconsideration contained mere reiterations of their original submissions in their petition. Petitioner insists that it is not guilty of forum-shopping since the cases it filed involved different issues and causes of action. Thus, petitioner argues, there being different causes of action, issues and objectives between the cases, it cannot be said that forum-shopping exists. Likewise, there can be no res judicata among the cases since i) they have different causes of action; ii) the evidence presented in Civil Case No. C-18308 are not sufficient to sustain the cause of action in the second case; iii) there is no identity of parties; and iv) there is no identity of subject matter. Further, petitioner contends that its petition was seasonably filed and

perfected, and complied with the material date rule. Further, said petition was filed in accordance with the powers and duties of a mayor, as per the Charter of the City of Caloocan, as well as under the Local Government Code (R.A. 7160), and thus needs no authority from the Sanggunian in order to institute actions or suits on behalf of the city

Respondent’s arguments: Position: Petition was filed out of time. Also, the petition is defective in form since i) it violated the material data rule; ii) it was

instituted by a non-party, Reynaldo O. Malonzo, and not by the City of Caloocan, as in fact in the attached verification, Malonzo referred to himself as the "petitioner in the above-entitled case," and there was no resolution from the City Council authorizing him to file the instant petition; and iii) petitioner failed to attach a copy of the complaint in Civil Case No. C- 18274, which is material and relevant to the instant petition. Court of Appeals is correct in ruling that forum-shopping and litis pendentia exist. The factual allegations in the three (3) subject cases and even the annexes attached to the complaint are practically one and the same; even the principal parties are identical. Additionally, the causes of action in C-18337 are both subject of judicial inquiry in C-18274 and C-18337, thereby rendering it dismissible on the ground of litis pendentia or res judicata.

Issue/s: Whether or not the case should be dismissed?

Held/Ratio: YES The City Legal Officer has no authority to institute the action. It is the mayor who has the authority to file suits "for the recovery of

funds and property" on behalf of the city, even without the prior authorization from the Sanggunian. Civil Case No. C-18308 was filed by Malonzo to enjoin the registration of what he deemed to be an anomalous deed of sale, while Civil Case No. C-18337 was instituted to annul the Deed of Absolute Sale and to cancel the title issued to Gotesco. Obviously, these suits were filed, initially to preserve, and subsequently to recover, the property subject of the said suits, to protect the interests of the City of Caloocan over the said parcel of land. Thus, it can be said that the institution of Civil Cases Nos. C-18308 and C-18337 was made within the bounds of Malonzo’s authority as the city mayor.

o Sec. 455 of the Local Government Code provides, among others, the powers and duties of a city mayor, thus: (a) The city mayor, as the chief executive of the city government, shall exercise such powers and perform such duties and functions as provided by this Code and other laws. (b) For efficient, effective, and economical governance the purpose of which is the general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall: (3) Initiate and maximize the generation of resources and revenues, and apply the same to the implementation of development plans, program objectives and priorities as provided for under Section 18 of this Code, particularly those resources and revenues programmed for agro-industrial development and countryside growth and progress and, relative thereto shall: (ix) Institute or cause to be instituted administrative or judicial proceedings for violation of ordinances in the collection of taxes, fees or

charges, and for the recovery of funds and property; and cause the city to be defended against all suits to ensure that its interests, resources and rights shall be adequately protected

o Meanwhile, Section 9 of the Charter of the City of Caloocan provides: The Mayor shall have immediate control over the executive and administrative functions of the different departments of the city, subject to the supervision of the President of the Philippines. He shall have the following general powers and duties: (d) To cause to be instituted judicial proceedings to recover property and funds of the city wherever found, to cause to be defended all suits against the city, and otherwise to protect the interests of the city

However, being the proper party to file such suits, the mayor must necessarily be the one to sign the certification against forum-shopping, and not the City Legal Officer, who, despite being an official of the City, was merely its counsel and not a party to the case. Thus, the Court of Appeals was correct in holding that the certification against forum-shopping in Civil Case No. C-18337 is defective for having been signed by the City Legal Officer and not by Malonzo. This factor alone could well have led to the dismissal of Civil Case No. C-18337

However, an even more compelling reason dictates that Civil Case No. C-18337 must be dismissed at all events. This is forum-shopping

o For litis pendentia to be a ground for the dismissal of an action, the following requisites must concur: (a) identity of parties, or at least such parties who represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity with respect to the two preceding particulars in the two cases is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other case

o The Court finds that the cases involve the same principal parties, to wit: the City of Caloocan and Gotesco Investments, Inc., while the other parties were merely impleaded as nominal parties

o Civil Cases Nos. C-18337 and C-18308 are based on the same set of facts, that is, the failure to execute an Amended Deed of Sale pursuant to City Ordinance No. 068. On the other hand, Civil Cases Nos. 18308 and 18274 question the nature of, and the procedure undertaken in the transfer of ownership of the subject land. Basically, the same set of evidence will have to be presented to support the causes of action in the three (3) cases, which as indicated earlier is characterized by singularity. Thus, a finding in one will sustain a finding in the other. The causes of action in Civil Case No. C-18337 being similarly subject of judicial inquiry in Civil Cases Nos. C-18274 and C-18337, Civil Case No. C-18337 is dismissible on the ground of litis pendentia. Moreover, the aforesaid cases are intimately related and/or intertwined with one another such that the judgment that may be rendered in one, regardless of which party would be successful, would amount to res judicata in the other

Digested by: Sabrina Louise M. De Guzman

LOCGOV – 80Department of Public Services Labor Unions vs. CIR

Petition for Review

The mayor and members of the municipal board are agents of the state; therefore, immune from suit.

Petitioner: Department of Public Services Labor Unions Respondent: CIR, Mayor Lacson and The Municipal Board of the City of Manila

Facts: 1. RA1880, amending Sec. 562 of the Revised Administrative Code, as amended provides: i. that the legal number of hours in every branch of the government service as well as in GOCCs shall be 8 hours a day, for 5 days a week, or a total of 40 hours a week, except those "for school, courts, hospitals and health clinics or where the exigencies of the service so require.”

2. This is a reduction from the existing 7-day work week days as required in view of the exigencies of the service.

3. Petitioners sought for its enforcement and filed a case in the CIR vs. the Mayor and Municipal Board of Manila.

4. The petition also prays for the recovery of overtime compensation.

5. Respondents - MTD: CIR has no jurisdiction over the subject matter of the case and the petition states no cause of action.

6. CIR: Sustained the motion and dismissed the petition.

Petitioner: 1. The petitioning union is composed of employees and laborers of the Department of Public Services of the City of Manila. The principal duties and functions of said department as defined in Sec. 80 of the city's Revised Charter, RA409, as amended, are as follows: i. "(a). . care, custody and cleaning of all public buildings including, markets and slaughterhouses and buildings rented for city purposes; public toilets; collection and disposal garbage, refuse, contents of toilets and cesspools and all her offensive and dangerous substances within the city."

2. We seek the enforcement of RA1880.

3. CIR has jurisdiction.

Respondents:

1. CIR has no jurisdiction over the subject matter of the case and that the petition states no cause of action.

1. Issue: W/N the Mayor and Members of the Municipal Board are immune from suit?

Held: Yes.

SC:

It is obvious from the nature of the duties imposed upon, and performed by the Department of Public Services that the City of Manila, through that department, is not functioning in its proprietary or private capacity, but rather in its governmental or public character. As was held in the case of Curry vs. City of Highland Park (242 Mich. 614, 219 N.W. 745), "The collection and disposal of garbage and acting in conserving the public health is governmental wherein the municipality acts for the state." This must be so, for, surely, in the collection and disposal of garbage, the City of Manila does not obtain any special corporate benefit or pecuniary profit, but acts in the interest of health, safety and the advancement of the public good or welfare as affecting the public generally. Such being the case, it follows that the Industrial Court has no jurisdiction to take cognizance of the case. The rule is settled that in the performance of its governmental functions, a municipal corporation, like the City of Manila, acts as an agent of the State, and as such, is immune from suit unless consent thereto has been given. Such consent must be expressed in unequivocal language and here no consent of the Government has been given.

2. Issue: W/N the Union can compel the Mayor and the Members of the Board to implement the RA? No.

The law was implemented by EO 251 promulgated by the President on June 26, 1957, with the proviso that "when the interest of the Public service so require, the head of any department, bureau, or office may extend the daily hours of labor for any or all of the employees under him, and may likewise require any or all of them to do overtime work not only on work days but also on holidays." This is in accordance with Sec. 566 of the Revised Administrative Code. It is to be observed that there is nothing in the law in question or in the implementing order that imposes upon the respondent Mayor or Municipal Board of Manila the duty to apply the benefit of said law to all employees and laborers of the city government. On the contrary, the law gives to the respondent Mayor ample authority and discretion to extend their work schedule beyond the prescribed number of days and hours of labor. If the members of the petitioning union are required to work seven days a week, as before the enactment of RA1880, it must be because their work is demanded by the "exigencies of the service." Indeed, if the number of their work days is reduced, or if they are given days-off on Saturdays and Sundays, including holidays, public health and sanitation would be undermined and endangered by the non-collection of garbage and other refuse matters, not to mention the foul odor

that would fill the city atmosphere in those two or more days.

3. Issue: W/N the Union is entitled to overtime pay? No.

Since the members of the petitioner are government employees appointed under the Civil Service Law and their salaries, wages, or emoluments are fixed by law or ordinance, they have no right to overtime compensation for work required of them in the interest of the service beyond the number of days and hours prescribed by RA 1880. The city government may, of course, grant its employees overtime compensation, for extra hours of work, but the granting of such compensation is, at best, a matter of administrative policy that is discretionary and dependent upon the city's financial conditions.

Dispositive: CIR affirmed.

LOCGOC - 81

Municipal Board of Cebu City vs Court of Tax Appeals

Dec 26, 1964

Doctrine: Municipal Corporations posses the power to sue and be sued.

Facts:

Appeal from CTA to SC Private respondent University of Southern Philippines Foundation applied with the City Assessor of Cebu an application for

exemption of several properties from real estate tax. The City Assessor disallowed the exemption of several lots. The University then appealed the finding of the City Assessor to the Board of Assessment Appeals of Cebu who decided in favor of the

University. The City Assessor, represented by the Municipal Board then appealed the decision to the Court of Tax Appeals who dismissed the

case.

Petitioner’s Arguments:

(Not stated in the case)

Respondent’s Argument:

The CTA ruled that the Board of Assessment Appeals is merely the instrumentality of the City of Cebu and the latter being a governmental agency is not among those who may appeal to the Court of Tax Appeals enumerated in Section 11 of Republic Act No. 1125.

Issue:

WON the City of Cebu can appeal from the decision of the Board of Assessment Appeals under Sec. 11 of Republic Act No. 1125 which provides:

SEC 11. Who may appeal; effect of appeal. — Any person, association or corporation adversely affected by a decision or ruling of the Collector of Internal Revenue, the Collector of Customs or any provincial or city Board of Assessment Appeals may file an appeal in the Court of Tax Appeals within thirty days after the receipt of such decision or ruling.

Held:

The City of Cebu constitutes a political body corporate created by a special charter (Commonwealth Act No. 58), endowed with the powers which pertain to a municipal corporation. As such, it possesses the capacity to sue and be sued. It is authorized to levy real estate taxes for its support.

In the decision of the Board of Assessment Appeals of Cebu City exempting the lots in question from the payment of real property tax, no entity is more adversely affected than the City of Cebu, for it stands to lose a yearly income equivalent to the realty tax: seven-eights of one per centum on the assessed value of said lots.

In the case of City of Manila and the City Assessor of Manila vs. The Board of Assessment Appeals, et al. (L-18784, April 30, 1964), the SC ruled that the City of Manila is a corporation adversely affected by the decision of the Board of Assessment Appeals. The city charters of Manila

and Cebu have similar provisions in respect to benefits derived from the collection and levy of real property taxes and thus, there was no reason to deviate from such finding.

As to the personality of the Municipal Board to represent the City of Cebu in this suit, Sec. 58 of Commonwealth Act No. 58 expressly vests in the Municipal Board the authority to appeal from the decision of the City Assessor to the Board of Assessment Appeals. This indicates legislative intent to lodge in the Municipal Board the right to represent the City in an appeal from an adverse decision of the Board of Assessment Appeals.

Digested by:

Kesterson Kua

LOCGOV - #082Calleja v CA (1967)

Doctrine: The Municipal Attorney of a municipality, duly appointed in accordance with the provisions of Republic Act 2264, is the legal officer of the municipality, and as such legal officer he may appear in court as counsel for the municipality or any municipal officer who is a party in a case in his official capacity. Municipal Atty. has authority under the law to sign the notice of appeal, as counsel for his respondents; and the notice of appeal, which he had thus signed — even if he had signed it alone, without being accompanied by the Provincial Fiscal — is valid and produces the legal effect of bringing the appeal, from the decision in the precious civil case, properly to the Court of Appeals.

Facts:1. Calleja is one of the nineteen civil service eligible employees of the Municipality of Iriga, who were separated from the service when their

positions were abolished by the municipal council for lack of funds.

2. Calleja and the others filed an action for mandamus before the CFI of Camarines Sur against the Municipality of Iriga, the Members of the Municipal Council, and the Municipal Treasurer, praying for their reinstatement and payment of their back salaries. This was granted by the CFI.

3. A copy of the decision was furnished the Provincial Fiscal who represented the Municipality of Iriga. The Provincial Fiscal did not file a notice of appeal from this decision except on the last day for perfecting the appeal it was Municipal Atty. Felix (who collaborated with the Provincial Fiscal in representing the Municipality of Iriga) who filed a notice of appeal and an appeal bond.

4. Calleja filed a motion objecting to the approval of the appeal by the CFI on the ground that the notice of appeal was not signed by the Provincial Fiscal who is the only official who can legally represent the Municipality of Iriga and its officers. Therefore, the appeal was not perfected and it should not be given due course. CFI overruled Calleja’s decision.

5. Calleja filed a motion to set aside this order, to which motion municipal Atty. Silvestre Felix filed an objection which was approved by the Provincial Fiscal. After the denial of Calleja's motion, the case was forwarded to the CA.

6. Calleja filed in the CA a motion to dismiss the appeal in the above-mentioned case reiterating the same grounds that he adduced in objecting to the approval of the appeal in the lower court. This motion was again opposed by Atty. Felix, with the approval of the Provincial Fiscal. CA denied Calleja's motion to dismiss.

7. Calleja filed a petition for certiorari in the SC, by way of an appeal from the order of the CA denying his motion to dismiss respondents' appeal.

Petitioner’s arguments:1. Calleja wants the appeal of the officials of Municipality of Iriga to be dismissed.2. Calleja contends that the only official who can legally represent in court respondent municipality and its officers who are sued in their

official capacities is the Provincial Fiscal as provided in Section 1681 and 1683 of the Revised Administrative Code, and that Republic Act 2264 had not repealed or modified said provisions.

3. Calleja contends that, inasmuch as the Provincial Fiscal is the officer empowered to appear for the respondents, the resolution of the Municipal Council of Iriga authorizing Municipal Atty. Silvestre Felix to represent the municipality in all cases wherein the municipality, or any officer thereof in his official capacity, is a party, was ultra vires.

4. Calleja contends that granting that said attorney may be allowed to appear in the case his appearance should be with the consent, control and under the direction of the Provincial Fiscal. It is the stand of Calleja that when the Provincial Fiscal himself did not appeal the decision of the Court of First Instance of Camarines Sur in Civil Case No. 5077, nor did he sign along with Municipal Atty. Felix the notice of appeal in said notice of appeal had been perfected in said case, so that respondents' appeal was not properly brought to the Court of Appeals, and, therefore, that appeal should be dismissed pursuant to the provisions of Section 1, paragraph (b) of Rule 50 of the Rules of Court.

Respondent’s arguments: (None was mentioned by the Court)

Issue: WON Atty. Silvestre Felix, in his capacity as Municipal Attorney for the Municipality of Iriga, who appeared in collaboration with the Provincial Fiscal as counsel for respondent municipality and its officials has the authority, under the law, to sign the notice of appeal in said case, without the accompanying signature or conformity of the Provincial Fiscal. Yes.

Held/Ratio: (Note: include legal basis and jurisprudence)1. The Municipal Council of Iriga, Camarines Sur, approved Resolution No. 36, series of 1961, creating the office of Municipal Attorney for

the Municipality of Iriga, pursuant to the provisions of Section 3, paragraph 3 (a) of Republic Act 2264, entitled "An Act Amending the Laws Governing Local Governments by Increasing their Autonomy and Reorganizing Provincial Governments" which took effect on June 19, 1959. The pertinent provision of this law reads:Municipal councils of municipalities and regularly organized municipal districts shall have authority:(a) To create a legal division or office in their respective municipalities to be headed by an attorney-at-law appointed by the mayor with the approval of the council and whose compensation shall be fixed by such council. Such head of office shall be known as the municipal attorney and shall act as legal counsel of the municipality and perform such duties and exercise such powers as may be assigned to him

by the council. A member of the council who is an attorney-at-law may be appointed as such municipal attorney without any further compensation."

2. Resolution No. 36, series of 1961, approved by the Municipal Council of Iriga provides, among others, as follows:Sec. 2. The Municipal Attorney shall be the chief legal adviser of the municipality. He shall have the following duties:(a) He shall represent the municipality in all cases wherein the municipality, or any officer thereof, in his official capacity, is a party.

3. It is by virtue of the foregoing provisions of law and the resolution of the Municipal Council of Iriga that Atty. Silvestre Felix, as the duly appointed Municipal Attorney of Iriga, appeared as counsel, and signed the notice of appeal, for the respondent Municipality of Iriga and its officials.

4. Sections 1681 and 1683 of the Revised Administrative Code provide that the Provincial Fiscal is the law officer, legal adviser, and legal counsel of the province and its subdivisions, which necessarily include the municipalities therein.

a. Section 1681 of the Revised Administrative Code, "the provincial fiscal shall be the law officer of the province and as such shall therein discharge the duties x x x it shall also be his duty, consistently with other provisions of the law, to represent in (the) courts the Government of the Philippines and the officers and branches thereof in all civil actions and special proceedings and generally to act in such province in all matters wherein said Government, or any branch or officers thereof, shall require the service of a lawyer;" and that under Section 1683 of the same Code the "provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in those cases specified therein, or unless disqualified to do so”.

5. We believe, nevertheless, that the aforequoted provisions of the Administrative Code have been modified by Section 3, paragraph 3 (a) of Republic Act 2264, otherwise known as the Local Autonomy Act, which we have hereinbefore quoted.

6. Section 3, paragraph 3 (a) of Republic Act 2264 provides that the municipality may create the office of Municipal Attorney who shall act as the legal counsel of the municipality.

7. It is apparent, therefore, that the two laws have one thing in common — that is, that they provide for a legal officer or counsel for the municipality.

8. Both officials, i.e., the Provincial Fiscal and the Municipal Attorney, can act as the legal officer and/or counsel of the municipality. This interpretation is but an implementation of the purpose for which Republic Act 2264 was enacted — that is, to increase the powers of, and give more autonomy to, the local government which, in this particular case, is the municipal government.

9. The enactment of Republic Act 2264 had the effect of modifying the provisions of Sections 1681, 1682 and 1683 of the Revised Administrative Code insofar as said sections may be applied to municipalities that have duly appointed Municipal Attorneys.

10. The rulings of this Court in the cases of Municipality of Bocaue, et al. v. Manotok, et al., (G.R. No. L-6528, May 25, 1953) and Enriquez v. Jimenez (G.R. No. L-12617, April 29, 1960), which are invoked by Calleja, have no application in the present case because in those two cases what was in issue was the power of the municipality to employ private counsel, instead of availing of the services of the Provincial Fiscal in cases in court where the municipality was a party; and the facts of those cases had taken place before the enactment of Republic Act 2264 (June 19, 1959). when those cases came up, the municipalities were not yet empowered to create the office of Municipal Attorney.

Digested by: Jamie Chan

LOVGOV – 83Province of Cebu v. IAC, Atty Pablo Garcia (1987)

In the law of municipal corporations, “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.”

Facts:1. While then incumbent Gov. Espina was on official business in Manila, Vice-Gov Almendras and 3 members of the Provincial Board

enacted Resolution No. 188, donating to the City of Cebu 210 province-owned lots located in the City of Cebu and authorizing Vice-Gov Almendras to sign the deed of donation on behalf of the province.

2. The deed of donation was immediately executed in behalf of the Province of Cebu by Vice-Gov Almendras and accepted in behalf of the City of Cebu by Mayor Sergio Osmeña, Jr. The donation was later approved by the Office of the Pres through Exec Sec Juan Cancio.

3. Upon Gov Espina’s return from Manila, he denounced as illegal and immoral the action of his colleagues in donating practically all the patrimonial property of the province of Cebu, considering that the latter's income was less than 1/4 of that of the City of Cebu.

4. To prevent the sale or disposition of the lots, the petitioner Province of Cebu (officers and members of the Cebu Mayor's League along with some taxpayers), including respondent Atty. Garcia, filed a case seeking to have the donation declared illegal, null, and void against the City of Cebu, City Mayor Sergio Osmena, Jr. and the Cebu provincial officials responsible for the donation of the province-owned lots.

5. The Provincial Board passed a resolution authorizing the Provincial Atty, Alfredo Baguia, to enter his appearance for the Province of Cebu and for the incumbent Gov, Vice-Gov and members of the Provincial Board in this case.

6. A compromise agreement was reached between the province of Cebu and the city of Cebu and was approved by the court and a decision was rendered on its basis cancelling the deed of donation.

7. For services rendered in this case, respondent Atty Garcia filed a Notice of Attorney's Lien, praying that his statement of claim of attorney's lien in said case be entered upon the records pursuant to Sec 37, Rule 138 of the Rules of Court.

8. Petitioner Province of Cebu opposed stating that the payment of attorney's fees and reimbursement of incidental expenses are not allowed by law and settled jurisprudence to be paid by the Province.

9. TC: favored Atty Garcia P30k atty's fees on the basis of quantum meruit10. CA: modified the atty’s fees 5% of the market value of the properties involved in the litigation as of the date of the filing of the

claim in 1975

Petitioner’s arguments:

1. Atty Garcia's claim for compensation on the grounds of his employment as counsel for the Province of Cebu by then Gov Rene Espina was unauthorized and violative of Secs 1681-1683 in rel. to Sec 1679 of the Revised Admin Code and that the claim for atty's fees is beyond the purview of Sec 37, Rule 138 of the Rules of Court.

2. Gov Espina was not authorized by the Provincial Board, through a board resolution, to employ Atty Garcia as counsel of the Province of Cebu.

3. As a gen rule, an attorney cannot recover his fees from one who did not employ him or authorize his employment.

Respondent Atty Garcia’s arguments:1. How can Gov Espina be expected to secure authority from the Provincial Board to employ him as counsel for the Province of Cebu

when the very officials from whom authority is to be sought are the same officials to be sued. It is impossible that the Vice-Gov and the members of the Provincial Board would pass a resolution authorizing Gov Espina to hire a lawyer to file a suit against themselves.

Issue: WON Atty Garcia’s is entitled for compensation (YES)

Held/Ratio: The matter of representation of a municipality by a private attorney has been settled in:

o Ramos v. CA: collaboration of a private law firm with the fiscal and the municipal attorney is not allowed. The law, in requiring that the local gov’t should be represented in its court cases by a gov’t lawyer, like its municipal

attorney and the provincial fiscal, intended that the local gov’t should not be burdened with the expenses of hiring a private lawyer. The interests of the municipal corp would be best protected if a gov’t lawyer handles its litigations. It is expected that the municipal atty and the fiscal would be faithful and dedicated to the corp's interests, and as civil service EEs, they could be held accountable for any misconduct or dereliction of duty.

o Sec 1683 of the Revised Admin Code: …When the interests of a provincial gov’t and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.

The above provision as complemented by Sec 3 of the Local Autonomy Law is clear in providing that only the provincial fiscal and the municipal attorney can represent a province or municipality in its lawsuits. The provision is mandatory.

The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it (De Guia v. The Auditor General; Municipality of Bocaue, et al. v. Manotok; Enriquez v. Hon Gimenez) as when he represents the province against a municipality.

However, above rule is subject to exception because of equity and the facts surrounding the case at bar:1. The provincial board authorization required by law to secure the services of special counsel becomes an impossibility. The

Provincial Board would never have given such authorization. The controversy in this case involved an intramural fight between

the Provincial Gov on one hand and the members of the Provincial Board on the other. Obviously, it is unthinkable for the Provincial Board to adopt a resolution authorizing the Gov to employ Atty. Garcia to act as counsel for the Province of Cebu for the purpose of filing and prosecuting a case against the members to the same Provincial Board.

2. Atty Garcia’s representation of the Province of Cebu became necessary because of the Provincial Board's failure or refusal to direct the bringing of the action to recover the properties it had donated to the City of Cebu.

o The Board effectively disqualified the Provincial Fiscal from representing the Province of Cebu when it directed the Fiscal to appear for its members in the civil case filed by Atty. Garcia, and others, to defend its passing and approving Provincial Board Resolution 186. How then could the Provincial Fiscal represent the Province of Cebu in the suit to recover the properties in question? How could Gov Espina be represented by the Provincial Fiscal or seek authorization from the Provincial Board to employ special counsel?

o The law obliges no one to perform an impossibility. Neither could a prosecutor be designated by the DOJ since Malacanang had already approved the questioned donation.

3. As for petitioner’s liability for Atty Garcia’s services, the gen rule that an atty cannot recover his fees from one who did not employ him, is subject to its own exception.

o Until the contrary is shown, an attorney is presumed to be acting under authority of the litigant whom he purports to represent (Azotes v. Blanco).

o His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client (Rep v. Phil Resources Dev’t Corp).

o Even where an attorney is employed by an unauthorized person to represent a client, the latter will be bound where it has knowledge of the fact that it is being represented by an attorney in a particular litigation and takes no prompt measure to repudiate the assumed authority. Such acquiescence in the employment of an attorney as occurred in this case is tantamount to ratification (Tan Lua v. O'Brien).

o The act of the successor provincial board and provincial officials in allowing respondent Atty Garcia to continue as counsel and in joining him in the suit led the counsel to believe his services were still necessary.

4. The court applied the rule in the law of municipal corps: "that 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 of implied municipal liability has been said to apply to all cases where money or other property of a party is received under such circumstances that the general law, independent of express contract implies an obligation upon the municipality to do justice with respect to the same." (38 Am. Jur. Sec. 515, p. 193).

5. The petitioner cannot set up the plea that the contract was ultra vires and still retain benefits thereunder. Having regarded the contract as valid for purposes of reaping some benefits, the petitioner is estopped to question its validity for the purposes of denying answerability.

o It was Gov Espina who filed the case against Cebu City and Mayor Osmena. Garcia just happened to be the lawyer. Still Atty. Garcia is entitled to compensation. To deny private respondent compensation for his professional services would amount to a deprivation of property without due process of law (Cristobal v. Employees' Compensation Commission).

6. The 30% or even 5% of properties already worth P120M in 1979 as compensation for Atty Garcia’s services is simply out of the question. The case handled by Atty. Garcia was decided on the basis of a compromise agreement where he no longer participated. The decision was rendered after pre-trial and without any hearing on the merits. TC correctly determined the reasonable fees for the private lawyer on the basis of quantum meruit at P30k.

Digested by: L Agliam

LOCGOV - 084Municipality of Pililla, Rizal v. CA and Philippine Petroleum Corporation (1994)

Doctrine: Only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits except in situations where the provincial fiscal is disqualified to represent it.

Facts: The RTC of Tanay, Rizal rendered judgment in a civil case in favor of petitioner municipality of Pililla against Philippine Petroleum

Corporation (PPC). The judgment ordered PPC to pay petitioner deficiencies on business taxes due under the municipal tax ordinance. The judgment became final and executory.

In connection with the execution of the judgment, Atty. Mendiola filed a motion before the RTC of Morong, Rizal, in behalf of petitioner municipality for the examination of PPC’s gross sales for the purpose of computing the business tax due. PPC argued that the mayor of Pillillia have already received payment of the business due as evidenced by the quitclaim documents executed by the mayor. The Court denied the motion for examination and execution.

Atty. Mendiola filed a MR proposing a higher amount of liability on the part of PPC. RTC denied the MR. Atty. Mendiola filed a petition for certiorari with the SC which was subsequently referred to the CA. PPC filed a motion questioning

Atty. Mendiola’s authority to represent petitioner municipality. The CA dismissed the petition for having been filed by a private counsel but without prejudice to the filing of a similar petition by the municipality of Pililla through the proper provincial or municipal legal officer.

Petitioner’s argument: Petitioner’s position: PPC is liable to a greater amount of business deficiency taxes than was previously adjudged by the court. Re: the rule on the validity of the representation of a municipal corporation by a private counsel (stated below), the exception covers

situations where the provincial fiscal refuses to handle the case as in this case. PPC cannot raise Atty. Mendiola’s lack of authority for the first time on appeal.

Respondent’s arguments:

Respondent’s position: It has already paid its deficiency taxes which was received by the mayor evidenced by quitclaim documents signed by the mayor himself.

Atty. Mendiola, as a private counsel, has no authority to represent a municipal corporation pursuant to Sec. 1683 of the Revised Administrative Code.

Issue/s: WON Atty. Mendiola, as a private counsel, may represent the municipality of PIilla in this case (NO)

Held: In Ramos v. CA and Province of Cebu v. IAC, the Court held that private attorneys cannot represent a province or municipality in

lawsuits. Under Sec. 1683 of the Revised Administrative Code complemented by Section 3, Republic Act No. 2264, the Local Autonomy

Law, only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory.

Section 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. — The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province.When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province, a special attorney may be employed by its council.

The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. For this exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. In this case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law.

The exception does not include situations where the provincial fiscal refuses to handle the case. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office.

Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code.

The lack of authority of Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's motion for execution of his lien, which was filed with the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said municipality.

The contention of Atty. Mendiola that PPC cannot raise for the first time on appeal his lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings.

Even assuming that the representation of the municipality by Atty. Mendiola was duly authorized, said authority is deemed to have been revoked by the municipality when it entered into a compromise agreement with PPC with regard to the execution of the judgment in its favor and thereafter filed personally with the court below two pleadings entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim". A client, by appearing personally and presenting a motion by himself, is considered to have impliedly dismissed his lawyer.

Digested by: Pao Agbayani

CHAPTER VI

LOCGOV – 085City of Manila v Teotico (1968)(Teotico v City of Manila in syllabus)

Although the rule is that special laws such as the Manila City Charter prevail over general laws like the Civil Code, damages arising from tort form an exception. In a situation where a person falls into a city manhole and gets injured, the Civil Code must prevail over the Manila City Charter.

Facts:4. Genaro Teotico was a practicing public accountant, a businessman, and a professor at the University of the East. He held responsible

positions in several business firms and was a member of several civic organizations.5. On January 27, 1958, Teotico was waiting for a jeep at loading and unloading zone at the corner of Old Luneta and P. Burgos Avenue,

Manila.6. He managed to hail a jeepney. As he was walking towards the jeepney to board it, he fell into an uncovered and unlighted manhole

(aka catch basin).7. His head hit the rim of the manhole, causing his eyeglasses to break. The broken pieces of his glasses pierced his left eyelid.8. Bystanders brought him to the Philippine General Hospital, after which, he was brought home.9. Aside from his wounded eyelid, his other injuries were

a. Contusions on his left thigh, left upper arm, right leg and upper lipb. Abrasion on his right infra-patella regionc. Allergic reaction to the anti-tetanus injections given to him at the hospital.

10. Teotico filed a complaint for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer, and chief of police.

11. CFI Manila ruled in favor of Teotico. CA affirmed and additionally sentenced the City to pay damages worth P6750.0012. The City of Manila moved to reconsider, raising the issue of which law governed the case, Section 4 of the Manila City Charter (RA

409), or Article 2189 of the Civil Code.13.Section 4 of the Manila City Charter provides that:

“The city shall not be liable or held for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions”

14. Article 2189 of the Civil Code provides that:Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or supervision.

Petitioner’s (Teotico) arguments:1. He was prevented from engaging in his customary occupation for 20 days. As a result, he has lost income of P1000.00 (P50.00 daily).2. He was subjected to humiliation and ridicule by his business associates and friends.3. While he was being treated, he was under constant fear and anxiety for the welfare of his minor children because he was their sole

support.4. He had to pay a private practitioner P1400.00 to treat him for his allergic reaction to the anti-tetanus shots from PGH.5. Because of the filing of this case, he is obligated to pay his counsel P2000.00.

Respondent’s (City of Manila) arguments:

At the level of the CFI and CA3. It has always been the policy of the Storm Drain Section (under the Office of the City Engineer of Manila) that whenever any reports

are received of the loss of manhole covers, the manholes are immediately attended to either by replacing the cover or by covering the manhole with steel matting.

4. Oral and documentary evidence that the Storm Drain Section, Office of the City Engineer of Manila, received a report of the uncovered condition of the manhole Teotico fell into on January 24, 1958, but that it was covered on the same day.

5. Another report that the iron cover of the same manhole was missing on January 30, 1958, but that the cover was replaced the next day.

6. The Storm Drain Section never received a report that the manhole was uncovered from January 25 to January 29 (recall that Teotico fell into the manhole on January 27).

7. Stealing of iron manhole covers was rampant because of the scrap iron business, which was lucrative at the time.8. The Office of the City Engineer had already filed complaints in court regarding the rampant theft of the covers9. In order to prevent the theft, the City has changed the position and layout of Manila’s manholes by constructing them under the

sidewalks, covered by concrete cement covers, with openings on the side of the gutter.a. These changes were being undertaken by the city whenever funds were available.

At the level of the Supreme Court10.Section 4 of the Manila City Charter should prevail over the Civil Code because the former is a special law intended exclusively for

Manila, while the Civil Code is a general law applicable to the entire Philippines.

11.The City cannot be held liable to Teotico for damages becausea. The accident occurred in a national highwayb. It was not negligent

Issue/s:Which law applies to the case, Section 4 of the Manila City Charter, or Article 2189 of the Civil Code? Article 2189

Held/Ratio:

Applicable Law1. Territorially speaking, the Manila City Charter is indeed a special law and the Civil Code is merely general legislation.2. However:

a. Section 4 of the Charter establishes a general rule which regulates the City’s liability for damages or injury to persons or property arising from the negligence or failure of city officers to enforce or attempt to enforce the provisions of the Charter or any other law or ordinance.

b. Article 2189 of the Civil Code is a particular prescription making provinces, cities and municipalities liable for damages for the death or injury of persons due to the defective condition of public works under their control or supervision.

3. Thus, in this case, Section 4 of the Charter is a general rule despite being technically classed as a special law, while Article 2189 of the Civil Code is the exception despite being technically classed as a general law. Since the cause of action of this case is based on the defective condition of a road, the exception espoused by Article 2189 must apply.

Re: national highway and lack of negligence1. That the accident occurred on a national highway or that the City was not negligent are both questions of facts not made in the

Answer of the City. It was made for the first time in its motion to reconsider the CA’s decision. Questions of fact cannot be set up for the first time on appeal, much less on motion for reconsideration.

2. Teotico alleged in his complaint (both original and amended) that his injuries were due to the defective condition of a street under the supervision and control of the City.

a. In its Answer, the City alleged that "the streets aforementioned were and have been constantly kept in good condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and duties as imposed upon them by law,” impliedly admitting that it indeed had P. Burgos avenue under its control and supervision.

3. Under Article 2189, it is not necessary that the defective roads or streets belong to the province, city or municipality for liability to attach. What the Article only requires is control or supervision.

4. Article 2189 of the Civil Code is further supported by Section 18x of the Manila City Charter, which, inter alia, says that the City has the legislative power and responsibility to provide suitable protection against injury to persons or property, and that it must construct and repair ditches, drains, sewers, and culverts.

a. Section 18x has not been withdrawn nor restricted by RA 917 or EO 113, both of which the City relies upon.b. RA 917 governs the disposition or appropriation of highway funds and giving of aid to provinces, chartered cities and

municipalities in the construction of roads and streets within their respective boundaries.c. EO 113 implements the provisions of RA 917 and provides that the construction, maintenance and improvement of roads shall

be done by Highway District Engineers and Highway City Engineers under the supervision of the Commissioner of Public Highways

Digested by: Diane Agustin

LOCGOV - #86Guilatco v. City of Dagupan (1989)

Doctrine: Supervision and control determines the liability of a municipal corporation.

Facts:A civil action for recovery of damages filed by the petitioner Guilatco was filed against the City of Dagupan. A court interpreter was about to board a tricycle when she accidentally fell into a manhole. She was hospitalized, operated on, and

confined. Upon discharge, she still had to wear crutches. She was unable to perform her religious, social, and other activities.RTC ruled against the City of Dagupan.CA reversed the RTC decision.

Petitioner’s arguments: The manhole was located on a sidewalk in Perez Blvd. over which the City of Dagupan exercises supervision and control. This supervision and control is exercised through the City Engineer who receives salary from the City. Legal basis: Article 2189 of the Civil Code and the charter of the City of Dagupan

Respondent’s arguments: It is the Ministry of Public Works and Highways who exercises supervision and control over Perez Blvd., the boulevard being a national

highway. The City Engineer is an ex-officio engineer of the Ministry and receives honorarium from the latter.

Issue/s:

WON the City of Dagupan is liable for the injuries sustained by petitioner: YES.

Held/Ratio: Article 2189, 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.

It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach Only the exercise of control or supervision is required.

This control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer. Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand pesos per annum. He shall have the following duties:x x x(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private sewers, and their connection with the public sewer system.

The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by the Municipal Board.

The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.

Although the City Engineer receives an honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium.

Digested by Roe Anuncio

LOCGOV – 087

Leonardo Palafox et al. v. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (1958)

Doctrine: A state cannot be held for the acts or omissions of its employees, unless the said employees are special agents of the said state.

Facts:

1. Sabas Torralba was employed as driver of the Ilocos Norte provincial government, for the office of the District Engineer. On Sept. 30, 1948, Torralba ran over Proceto Palafox while he (Torralba) was driving his freight truck in the performance of his duties. Palafox died. (Palafox is the father of the petitioner-appellants)

2. Torralba pleaded guilty to homicide and reckless imprudence and was sentenced accordingly. 3. The heirs filed an action against Ilocos Norte, the district engineer, the provincial treasurer and Torralba.

Issue: W/N the province of Ilocos Norte may be held liable for the negligence of Torralba

Held/Ratio: No

1. A declaration must first be made that Torralba was a special agent of Ilocos Norte for the said province to be held liable for Torralba’s negligence and not merely one on whom the duty of driving the truck was assigned.

a. Merritt v. Gov’t of the Philippines - There was no such finding as the driver was not a special agent of the government.

b. Also, this principle applies only to the Insular government (i.e., the national government) and does not apply to the provincial or municipal governments.

2. Liability arising from respondeat superior only arises if the act is in furtherance of an employee’s or agent’s corporate or proprietary business function.

a. If the negligent employee was engaged in the performance of governmental duties, the state (or the province, in this case, is not liable)

b. The driver here worked for the construction or maintenance of roads, which are governmental activities, and as such, the death caused by the negligence of the said driver and the liability arising therefrom cannot be imputed to the province of Ilocos Norte.

Digested by: Robert Beltejar

LOCGOV – 88San Juan v CA (2005)

A municipality’s lack of knowledge of the excavation and condition of a road does not relieve it of liability for any injuries caused by such excavation. A municipality has the continuous obligation to maintain road safety, regardless of whether it is a municipal road or a national road. What is important is that the road comes under its supervision and control. This obligation is not suspended while a street is being repaired.

Facts:1. Metropolitan Waterworks and Sewerage System hired Kwok Cheung Waterworks System Construction (KC) to install water service

connections.2. LC was tasked to conduct and effect excavations for the laying of water pipes and tapping of water to the respective houses of water

concessionaires at the corner of M. Paterno and Santolan Road, San Juan, Metro Manila. Santolan Road is a national road.3. On May 20, 1988, KC dispatched 5 of its workers to conduct digging at Santolan Road. The workers installed 4 barricades around the

area. Made of GI pipes, these barricades were:a. 2 inches thickb. 1.3 meters widec. 1.2 meters high

4. Digging was conducted from 9AM to 3PM. Only ¾ of the task was completed.5. Around 10PM-11PM of May 31, Priscilla Chan was driving her car along Santolan Road. The road was flooded due to the heavy rain. In

the shotgun seat beside her was Assistant City Prosecutor and private respondent Laura Biglang-awa.6. Chan’s left front wheel abruptly fell into a manhole where the KC workers had made excavations. As a result, Biglang-awa’s right

humerus (upper arm bone) was fractured and had to be treated extensively.7. Officer Ramos of the San Juan Police Station arrived at the scene and noted in his Traffic Accident Investigation Report that he did not

see any barricades at the scene.8. Biglang-awa filed a complaint for damages against MWSS, the Municipality of San Juan, and several San Juan municipal officials.9. RTC Pasig ruled in favor of Biglang-awa. CA affirmed and increased moral damages to P50k and exemplary damages to P50k.10. San Juan appealed the decision through certiorari under Rule 45.

Petitioner’s (San Juan) arguments:1. Section 149 1z of the Local Government Code

Section 149. Powers and Duties. – (1) The sangguniang bayan shall:(z) Provide for the construction, improvement, repair and maintenance of municipal streets, avenues, alleys, sidewalks, bridges, parks and other public places, and regulate the use thereof, and, and prohibit the construction or placing of obstacles or encroachments on them;

a. San Juan alleges that under this section, it is only obliged to provide for the construction, improvement, repair and maintenance of only municipal streets and other public places

b. Because Santolan Road is a national road, it cannot be liable for Biglang-awa’s injuries.2. Section 8, Ordinance 82-01 of the Metropolitan Manila Commission

“In the event of death, injury and/or damages caused by the non-completion of such works and/or failure of one undertaking the work to adopt the required precautionary measures for the protection of the general public or violation of any of the terms or conditions of the permit, the permittee/excavator shall assume fully all liabilities for such death, injury or damage arising therefrom. For this purpose, the excavator/permittee shall purchase insurance coverage to answer for third party liability.”

a. Thus, only the Project engineer of KC (Battad) and MWSS can be held liable

Issue/s:Should San Juan be held liable for Biglang-awa’s fractured humerus? YES.

Held/Ratio:1. Based on City of Manila v Teotico, ownership of roads or other public works is not a controlling factor in determining the liability of a

province, city or municipality. It is sufficient that the province/city/municipality has control or supervision over the road/public work:“At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that the province, city or municipality have either "control or supervision" over said street or road”

2. San Juan failed to take note of the other provisions of Section 149 of the Local Government Code.a. Section 149-1bb provides that the sangguniang bayan shall regulate the drilling and excavation of the ground for water pipes,

adopt measures to ensure public safety against manholes and the like, and provide just compensation or relief for persons suffering from them (the manholes etc)

b. Section 149-1bb therefore gives San Juan the power to regulate the drilling and excavation of the ground for the purposes of laying pipes. That it can “regulate” means that San Juan has supervision and/or control over all excavations within its territory, regardless of whether or not the area is a national road.

c. Section 149-1bb is not affected by the term “municipal road.” Neither can it be inferred that the regulation mentioned therein applies only to situations involving municipal roads.

3. San Juan’s liability for injuries caused by its failure to regulate drilling and excavation of the ground for pipelaying purposes attaches regardless of whether such acts are performed on a national or municipal road, as long as such road is within its territorial jurisdiction.

4. The Supreme Court agrees with the following CA pronouncements:a. Although DPWH issued a permit to KC for excavation on Santolan Road, San Juan is not relieved of its liability to Biglang-awa

for its own gross negligence. Even without the permit, it was mandatory upon San Juan to take necessary precautions to avoid accidents.

b. San Juan cannot avoid its obligation to maintain and ensure road safety just because the permit for excavation was issued by another government entity, and not by itself.

c. San Juan’s lack of knowledge of the excavation and condition of the road from May 20 to May 30, 1988 does not relieve it of responsibility. The obligation of San Juan to maintain road safety within its territory is not suspended while a street is being repaired.

d. Santolan Road and the Greenhills area nearby are both busy areas. A large hole in the middle of Santolan road could not have been missed by San Juan authorities. It is the obligation of San Juan to constantly monitor the conditions of the roads running through it to ensure motorists’ safety.

i. Todd v City of Troy: “It is the duty of the municipal authorities to exercise an active vigilance over the streets; to see that they are kept in a reasonably safe condition for public travel. They cannot fold their arms and shut their eyes and say they have no notice.”

5. San Juan cannot seek refuge under Section 8 of Ordinance 82-01 of the Metropolitan Manila Commission either.a. Although this law makes the permittee/excavator liable, there is no provision in the Ordinance that exempts Metro Manila

municipalities from liabilities caused by their own negligence.b. Therefore, nothing prevents the Court from applying other relevant laws concerning San Juan’s liability for Biglang-awa’s

injuries.

Digested by: Diane Agustin

LOCGOV - #89 Vice Mayor Vicencio v COA

Doctrine:There is no inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local government unit, unlike that provided for the city mayor. Hence his power to enter into contracts must be expressly granted by ordinance.

Facts:

The City Council of Malabon presided by Acting Mayor Galauran approced City Ordinance No. 15-2003, entitled “An Ordinance Granting Authority to the City Vice- Mayor, Hon. Jay Jay Yambao, to Negotiate and Enter into Contract for Consultancy Services for Consultants in the Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern”

As a result Galauran entered into the “2003 Consultancy Contracts” with Vijigam Virtucio and Dabalus. In 2004 Vicencio was elected Vice Mayor and he also became the Presiding Officer of the SPM and, at the same time, the head of the Sanggunian Secretariat.cra

Vicencio then decided to hire consultants to aid the Sanggunian Secretariuat. He asked the City Legal Officer Diaz whether the Sangguniang Panglunsod still needs to ratify the newly entered consultancy contracts given that the service of the former consultants hired by the former administration already ended.

Atty. Diaz categorically stated that ratification was no longer necessary, provided that the services to be contracted were those stipulated in the ordinance.

On 21 January 2005, the SPM adopted City Ordinance No. 01-2005 or the Appropriations Act of Malabon. P792,000 was earmarked for consultancy services under the Legislative Secretariat.cralaw

As a result Vicencio entered into the second series of consultancy contracts (2005 Consultancy Contracts) with Catindig and Atty. De Los Santos and later on with Amiana.

The City Auditing Office however disallowance the disbursement of the salary of the consultants claiming that City Ordinance No. 15-2003 which was the basis of the 2005 consultancy contracts only authorized former Vice Mayor Tambao and not incumbent Vice Mayor Vicencio and it only covered the period June to December 2003. Also progress accomplishment reports, method of selection and copies of approve contracts were not attached to the disbursement vouchers.cralaw

Vice Mayor Vicencio appealed to the Adjudication and Settlement Board of the COA which affirmed the City Audior. The COA Chairperson affirmed.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)

Petitioner Vicencio contends that the ordinance authorizes the Office of the Vice-Mayor, and not Vice-Mayor Yambao in particular, to enter into consultancy contracts. Notably, it was even Hon. Vice-Mayor Benjamin C. Galauran, who was acting Vice-Mayor at the time, who entered into the 2003 Consultancy Contracts. Petitioner also argues that there is no indication from the preamble of the ordinance, which can be read from the minutes of the SPM meeting, that the ordinance was specifically designed to empower only Vice-Mayor Yambao, or to limit such

power to hire for the period June to December 2003 only.cralaw

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)

Same arguments as the auditing office.

Issue/s: W/N a vice mayor can enter into consultancy contracts pursuant to an ordinance expressly granting the former mayor power.

Held/Ratio:

No.

The SC affirmed the City Auditor’s decision.

Under Sec. 456 of the LGC, there is no inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local government unit, unlike that provided for the city mayor. Hence his power to enter into contracts must be expressly granted by ordinance. Ordinance No. 15-2003 specifically authorized Vice-Mayor Yambao to enter into contracts for consultancy services. As this is not a power or duty given under the law to the Office of the Vice-Mayor, Ordinance No. 15-2003 cannot be construed as a continuing authority for any person who enters the Office of the Vice-Mayor to enter into subsequent, albeit similar, contracts.cralaw

Ordinance No. 15-2003 is clear and precise and leaves no room for interpretation. It only authorized the then City Vice-Mayor to enter into consultancy contracts in the specific areas of concern. Further, the appropriations for this particular item were limited to the savings for the period June to December 2003. This was an additional limitation to the power granted to Vice-Mayor Yambao to contract on behalf of the city. The fact that any later consultancy contract would necessarily require further appropriations from the city council strengthens the contention that the power granted under Ordinance No. 15-2003 was limited in scope. Hence, petitioner was without authority to enter into the 2005 Consultancy Contracts.cralaw

Section 103 of P.D. 1445 declares that expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the of1icial or employee found to be directly responsible therefor. The public official's personal liability arises only if the expenditure of government funds was made in violation of law. In this case, petitioner's act of entering into a contract on behalf of the local government unit without the requisite authority therefor was in violation of the Local Government Code. While petitioner may have relied on the opinion of the City Legal Officer, such reliance only serves to buttress his good faith. It does not, however, exculpate him from

his personal liability under P.D. 1445.cralaw

Dissenting opinion: (if any)

Digested by: Chua

LOCGOV – 090Municipality of Tiwi vs. Betito (2010)Del Castillo, J.FACTS:

This case is an offshoot of NPC vs Province of Albay amd Salalima vs Guingona. In the NPC vs Albay case, the Court found the NPC liable to the Province of Albay for unpaid real estate taxes. These properties were

geothermal plants in the Municipality of Tiwi. The properties were sold at an auction sale to satisfy NPC’s tax liability. As the sole bidder, Albay acquired the properties.

NPC entered into a Memorandum of Agreement with the Province of Albay where the former agreed to settle its liabilities by installments and the latter to give back the properties to NPC upon full payment of the liabilities.

Mayor Corral, then mayor of Tiwi, formally requested Governor Salalima to remit the rightful share of Tiwi in the tax payments of NPC. Governor Salalima declined the request saying that the initial payments constituted “earnest money” and that the amount to be collected is yet to be validated.

Meanwhile, NPC requested a clarification from the Office of the President as to the extent of the shares of the local government units in the real estate tax collections.

Sangguniang Bayan of Tiwi passed Resolution No 15-92 authorizing Mayor Corral to hire a lawyer to represent Tiwi in the recovery of their rightful share in the realty taxes.

o Mayor Corral sought the services of Atty. Betito and Atty. Lawenko. They entered into a Contract of Legal Services wherein the lawyers shall receive a contingent fee of 10% on whatever amount of realty taxes recovered through their efforts.

Office of the President issued an opinion that Tiwi is entitled to a share in the realty taxes and that NPC may remit such share directly to them.

o From then on, NPC remitted to Tiwi its share of the taxes.o As an apparent reaction, the Sangguniang Panlalawigan of Albay authorized the Provincial Treasurer to sell the subject

properties and declared all payments already made to them forfeited in favor of Albay. Because of the continued refusal to remit Tiwi’s share of the initial payments, several cases were filed, one of which is the Salalima vs

Guingona Jr case.

The present controversy arose when Atty. Betito sought to enforce the Contract for Legal Services claiming his right to 10% of the benefit to Tiwi.

Petitioner’s Argument/s (Municipality of Tiwi): Petitioners admitted that they passed Resolution No. 15-92 but denied that it did not authorize Mayor Corral to enter into the

Contract for Legal Services. They allege that she exceeded her authority when she bound the Municipality to a 10% contingent fee. They further allege that the contract should have been limited to the execution of the decision in NPC vs Albay. Lastly, they argue that the contract was not ratified by the Sangguniang Bayan in order to become effective.

o They also raise the defense that the collection of the share was not through the efforts of the respondent but pursuant to the opinion of Chief Presidential Legal Counsel Antonio Carpio.

Respondent’s Arguments (Betito): That the Contract of Legal Services was not limited to the execution of the NPC vs Albay Case but to other services done pursuant to

the Contract.o The resolution states that the Mayor is authorized to hire the services of a lawyer to represent the interest of the Municipality

of Tiwi and its barangays. That the Contract of Legal Services is valid and enforceable due to petitioners failure to specifically deny the same under oath. Moreover, that the law does not require that the subject contract be ratified by the Sangguniang Bayan in order to become

enforceable. What the law requires is an authorization which in this case as in the form of the Resolution 15-92.ISSUE: WON the Municipality of Tiwi is bound by the Contract of Legal Services?RULING: YES but only insofar as the execution of the NPC vs. Albay decision is concerned. The Municipality of Tiwi cannot be held liable for all other cases handled by the respondent for Tiwi is not related to execution of the NPC decision. Case is REMANDED to determine which of the results (recovery of Tiwi) actually stemmed from the efforts of the respondent.

Mayor was authorized to enter into the Contract; Prior authorization not ratificationo Sec 444 of the LGC: The Chief Executive: Powers, Duties, Functions and Compensation. — x x x

(b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: x x x

(1) Exercise general supervision and control over all programs, projects, services, and activities of the municipal government, and in this connection, shall: x x x

(vi) Upon authorization by the sangguniang bayan, represent the municipality in all its business transactions and sign on its behalf all bonds, contracts, and obligations, and such other documents made pursuant to law or ordinance; xxx

o Pursuant to this provision, the municipal mayor is required to secure the prior authorization of the Sangguniang Bayan before entering into a contract on behalf of the municipality. In the instant case, the Sangguniang Bayan of Tiwi unanimously passed

Resolution No. 15-92 authorizing Mayor Corral to hire a lawyer of her choice to represent the interest of Tiwi in the execution of this Court’s Decision in NPC v Albay.

o The law speaks of prior authorization and not ratification with respect to the power of the local chief executive to enter into a contract on behalf of the local government unit.25 This authority, as discussed above, was granted by the Sangguniang Bayanto Mayor Corral as per Resolution No. 15-92.

The scope of the service is limited to the execution to the NPC vs Albay caseo The resolution was clear in its whereas clause that the purpose for the grant of authority was for the execution of the NPC case.

any service not related to it is beyond the scope of the authority of the lawyer and therefore cannot hold the Municipality liable for the contingent fee.

Digested by: Kaye de Chavez

LOCGOV - #91Fajardo v Hon. Alfredo S. Lim (2006)

Facts:During the incumbency of Mayor Lopez, the city of Manila undertook a “Land for the Landless Program.” The city purchased squatter-infested properties for the purpose of selling them to the occupants at cost. Among the properties were the lots in Tondo owned by petitioners.

The City Appraisal Committee approved Appraisal Resolution No. 1-5-1990 fixing the market value of the “Fajardo Estate” at P1,600.00 per square meter.The city purchased six of the lots of the “Fajardo Estate” consisting of 8,772.40 square meters at P1,600.00 per square meter or for a total selling price of P13,955,840.00. The city also purchased the two remaining lots of the “Fajardo Estate” consisting of 11,666 square meters also for P1,600 per square meter or a total of P18,666,880.00. Mayor Lopez then signed the disbursement voucher and PNB Check No. 906350 dated August 10, 1992 payable to petitioners. This was approved on pre-audit by the City Auditor. The City Cashier, the City Disbursing Officer, and the City Treasurer certified as to the availability of funds.

Newly elected Mayor Lim subsequently assumed office. He then appointed Marzan as the new City Administrator. As such, Marzan was required to countersign the check payment under Sections 344 and 345 of the Local Government Code of 1991. But Colonel Balagtas, Mayor Lim’s financial and budget consultant, advised Marzan not to sign the check as there seemed to be something suspicious about the transaction, given the large amount involved.

Mayor Lim instructed Marzan to withhold the check until the questionable purchase of the lots had been cleared. Marzan then informed petitioners that per order of the Mayor, their check could not be released. Marzan received a letter from petitioners demanding the release of the check. The City Legal Officer opined that there is no legal obstacle to release the check.

Mayor Lim reiterated his instruction not to release the check, explaining that he directed his aide, Herrera, to investigate the matter. Herrera merely made computations showing the difference between the acquisition cost and the selling price.

Petitioners filed with the RTC a Petition for Mandamus With Damages against Mayor Lim and Marzan. RTC rendered its Decision in favor of petitioners. The Dispositive portion is as follows.

WHEREFORE, the Petition is GRANTED and judgment is rendered as follows:1.      Respondent Marzan is ordered to countersign immediately PNB Check No. 906350 and, thereafter, to deliver the same

check to Fajardo and Nogales; and if the same is not feasible, then should coordinate with the City Treasurer for the issuance of another check for the same amount as replacement of the old check;

2.      Respondent Marzan is likewise ordered to pay in his personal capacity Nogales and Fajardo, the following sums: 

(a)     P800,000.00 as and for damages suffered because of lost income and investment opportunities for the non-issuance of the P18,666,880.00 check, with the legal interest from the filing of the petition until the same is fully paid;

(b)     P200,000.00 as moral damages;(c)     P100,000.00 as exemplary damages;(d)     P50,000.00 as and for attorney’s fees; and(e)     The costs of suit. Respondent Lim is absolved of any civil liability for the non-issuance of the questioned check.

Both parties appealed to the Court of Appeals. Petitioners alleged that the award of damages should be increased and insisted that Mayor Lim should be held solidarily liable with Marzan. Mayor Lim and Marzan claimed that mandamus is not the proper remedy and maintained that the latter should not be held liable for damages.

CA affirmed the RTC judgment with the modification, deleting therefrom the award for damages, attorney’s fees, and costs of suit.Petitioners filed a MR insisting that the trial court should not have deleted the award of damages. Respondents Mayor Lim and Marzan filed with the SC petitions for review on certiorari. It was denied on the ground that the CA did not commit any reversible error.CA decision was not acted upon as it had lost jurisdiction when respondents filed their Petition for Review on Certiorari with the SC.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)Petitioner: Rafael Fajardo and Rogelio Nogales, owners of the propertyOn Damages: The CA should have held respondents liable for damages.On Jurisdiction: Until and unless a petition for review on certiorari is given due course by this Court, the Court of Appeals never loses jurisdiction over a case pending before it.

Respondent’s arguments: Respondents: Manila Mayor Alfredo Lim and Ramon Marzan, former City Administrator of ManilaOn Mandamus and Damages: Mandamus is not the proper remedy. Marzan should not be held liable for damages.

On Jurisdiction: When they filed with this Court their petition for review on certiorari, the CA lost jurisdiction over the case, specifically over petitioners’ Motion for Reconsideration then pending before it. The CA thus deferred to the exercise by this court of its jurisdiction. Had the CA resolved petitioners’ MR, there could be a possibility that its Resolution and that of SC might be opposite to each other.

Issue/s:(1) whether both respondents should be held liable jointly and severally for damages; and (2) whether the filing with this Court of a petition for review on certiorari divested the Court of Appeals of its jurisdiction

Held/Ratio: On Damages This is a factual issue. The jurisdiction of this Court in cases brought before it from the Court of Appeals, via Rule 45 of the 1997 Rules of Civil Procedure, is limited to reviewing errors of law. The Court is not a trier of facts.On JurisdictionRespondents seasonably filed with the SC a Petition for Review on Certiorari. Upon the filing of this petition, the SC assumed jurisdiction over the case, regardless of whether or not the said petition would be given due course. CA had no more jurisdiction over the case.

Digested by: DE LEON

CHAPTER VII

LOCGOV - # 092Boracay Foundation Inc. v. The Province of Aklan (represented by Governor Carlito S. Marquez), The Philippine Reclamation Authority, and the DENR-EMB (Region VI) (2012)

Doctrine:Under the LGC, 2 requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian.  Absent either of these mandatory requirements, the project’s implementation is illegal.

Facts: This case is an original petition for the issuance of an Environmental Protection Order in the nature of a continuing mandamus under the

Rules of Procedure for Environmental Cases. The parties to the case are as follows:

o Boracay Foundation, Inc. (petitioner) -> is a duly registered, non-stock domestic corporation whose purpose is “to foster a united, concerted and environment-conscious development of Boracay Island, thereby preserving and maintaining its culture, natural beauty and ecological balance, marking the island as the crown jewel of Philippine tourism, a prime tourist destination in Asia and the whole world.” 

o Province of Aklan (respondent Province) -> a political subdivision of the government created pursuant to RA No. 1414, represented by Honorable Carlito S. Marquez (the Provincial Governor).

o  Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates Authority (PEA) -> is a government entity created by PD No. 1084, which states that one of the purposes for which respondent PRA was created was to reclaim land, including foreshore and submerged areas. It eventually became the lead agency primarily responsible for all reclamation projects in the country under Executive Order No. 525, series of 1979.  

o DENR-EMB (Regional Office VI) -> government agency in the Western Visayas Region authorized to issue environmental compliance certificates regarding projects that require the environment’s protection and management in the region.

The case involves Boracay Island which was declared a tourist zone and marine reserve in 1973 under PD No. 1801. -> The island comprises the barangays of Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.

In 2005, Boracay 2010 Summit was organized by petitioner Boracay Foundation and participated in by representatives from national government agencies, LGUs, and the private sector. o The Summit aimed “to re-establish a common vision of all stakeholders to ensure the conservation, restoration, and preservation of

Boracay Island” and “to develop an action plan that [would allow] all sectors to work in concert among and with each other for the long term benefit and sustainability of the island and the community.”

o The Summit yielded a Terminal Report showing that there was a need to expand the port facilities at Caticlan due to congestion in the holding area of the existing port, caused by inadequate facilities, thus tourists suffered long queues while waiting for the boat ride going to the island.

The SangguniangBarangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008 on April 25, 2008 stating that:o it had learned that respondent Province had filed an application with the DENR for a foreshore lease of areas along the shorelines of

Barangay Caticlan;o It has strong opposition to said application, as the proposed foreshore lease practically covered almost all the coastlines of said

barangay, thereby technically diminishing its territorial jurisdiction, once granted, and depriving its constituents of their statutory right of preference in the development and utilization of the natural resources within its jurisdiction;

o The Province of Aklan did not conduct any consultations with the SangguniangBarangay of Caticlan regarding the proposed foreshore lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent Province.

On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution No. 2008-369, formally authorizing Governor Marquez to enter into negotiations towards the possibility of effecting self-liquidating and income-producing development and livelihood projects to be financed through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section 299 of the Local Government Code. 

Governor Marquez then sent a letter to respondent PRA on March 12, 2009 expressing the interest of the Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan, Municipality of Malay for commercial purposes. -> the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to this foreshore lease application, through Resolution No. 044.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring Program(EPRMP) to DENR-EMB RVI, as an initial step for securing an Environmental Compliance Certificate (ECC).

The Sangguniang Panlalawigan later decided to expand the reclamation project to 40 hectares. The Province gave an initial presentation of the project with consultation to the Sangguniang Bayan of Malay. PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and authorized its CEO to enter into a MOA with

respondent Province for the implementation of the reclamation project. On April 27, 2010, DENR-EMB RVI issued to the Province ECC-R6-1003-096-7100 (the questioned ECC) for Phase 1 of the Reclamation

Project to the extent of 2.64 hectares to be done along the Caticlan side beside the existing jetty port. It was at this point that the Province of Aklan deemed it necessary to conduct a series of what it calls “information-education campaigns,”

which provided the venue for interaction and dialogue with the public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of Barangay Caticlan and Boracay, the stakeholders, and the NGOs.o Petitioner claims that during the “public consultation meeting” belatedly called by respondent Province on June 17, 2010, the

Province presented the Reclamation Project and only then detailed the actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds; the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40) hectares from 2.64 hectares.

o In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its strong opposition to the Province’s project and denied its request for a favorable endorsement of the Project.

The Boracay Foundation informed PRA of its opposition to the reclamation project, for the reason that, based on the opinion of Dr. Porfirio M. Aliño, an expert from the UPMSI, which he rendered based on the documents submitted by respondent Province to obtain the ECC, a full EIA study is required to assess the reclamation project’s likelihood of rendering critical and lasting effect on Boracay

considering the proximity in distance, geographical location, current and wind direction, and many other environmental considerations in the area.o The Province came up with its own study undertaken by the MERF-UPMSI which allegedly revealed that the project will have

insignificant effects on the environment. On June 1, 2011, Boracay Foundation filed a Petition for Environmental Protection Order/Issuance of the Writ of Continuing Mandamus

before the SC. ->the SC issued a Temporary Environmental Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition.

The Province immediately issued an order to the Provincial Engineering Office and the concerned contractor to cease and desist from conducting any construction activities.

Petitioner’s arguments (Boracay Foundation Inc.) TOPICAL: PRA had required respondent Province to obtain the favorable endorsement of the LGUs of Barangay Caticlan and Malay Municipality

pursuant to the consultation procedures as required by the Local Government Code which the Province failed to do in violation of not only of laws on EIS but also of the Local Government Code as latter did not enter into proper consultations with the concerned LGUs. o It noted the fact that the Liga ng mga Barangay-Malay Chapter also expressed strong opposition against the project.

It cited Sections 26 and 27 of the Local Government Code, which require consultations if the project or program may cause pollution, climactic change, depletion of non-renewable resources, etc. -> According to petitioner, respondent Province ignored the LGUs’ opposition expressed as early as 2008. o Boracay Foundation also emphasized that the Province belatedly called for public “consultation meetings” on June 17 and July 28,

2010, after an ECC had already been issued and the MOA between respondents PRA and Province had already been executed. o According to Boracay Foundation, these were not consultations but mere “project presentations.”

Boracay Foundation claims that the Province, aided and abetted by respondents PRA and DENR-EMB, ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental projects are in line with sustainable development of natural resources as the project was conceptualized without considering alternatives.

Respondent’s arguments (Province of Aklan) TOPICAL : With regard to petitioner’s allegation that the Province failed to get the favorable endorsement of the concerned LGUs in violation of the

Local Government Code, the Province contended that consultation vis-à-vis the favorable endorsement from the concerned LGUs as contemplated under LGC are merely tools to seek advice and not a power clothed upon the LGUs to unilaterally approve or disapprove any government projects.

Furthermore, such endorsement is not necessary for projects falling under Category B2 (designated category of the project) unless required by the DENR-EMB RVI, under Section 5.3 of DENR DAO 2003-30.

The province further argues that DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and certifications as a pre-requisite for the issuance of an ECC.

The Province also claims to have conducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local Government Code.

o The vehement and staunch objections of both the Sangguniang Barangay of Caticlan and the Sangguniang Bayan of Malay, according to respondent Province, were not rooted on its perceived impact upon the people and the community in terms of environmental or ecological balance, but due to an alleged conflict with their “principal position to develop, utilize and reap benefits from the natural resources found within its jurisdiction” which according to the province are not within the purview of the Local Government Code.

According to the province posits that the spirit and intent of Sections 26 and 27 of the LGC is to create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in harmonizing its views and concerns about the project. o This means that the duty to consult does not automatically require adherence to the opinions during the consultation process and it is

allegedly not within the provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the project in the guise of requiring the proponent of securing its favorable endorsement. -> In this case, Boracay Foundation is calling a halt to the project without providing an alternative resolution to harmonize its position and that of the Province.

It also claimed that petitioner will not stand to suffer immediate, grave and irreparable injury or damage from the ongoing project because the petitioner’s perceived fear of environmental destruction brought about by its erroneous appreciation of available data is unfounded and does not translate into a matter of extreme urgency. -> Thus, under the Rules of Procedure on Environmental Cases, the TEPO may be dissolved.

Respondent’s arguments (PRA): It explained that because it is mandated by law to be the national government’s arm in regulating and coordinating all reclamation

projects in the Philippines, it is tasked to exercise of its regulatory functions, to diligently evaluate, based on its technical competencies, all reclamation projects submitted to it for approval. o Once the reclamation project’s requirements set forth by law and related rules have been complied with (as it claimed the province of

Aklan was able to do so in this case), PRA is mandated to approve the same.

Respondent’s arguments ( DENR-EMB RVI ): Asserts that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required pursuant to the DENR

Memorandum Circular No. 2007-08, entitled “Simplifying the Requirements of ECC or CNC Applications”NOTE: The Province of Aklan filed a Manifestation and Motion for the Petition to be dismissed for being MOOT and ACADEMIC as it could no longer push through with the reclamation project which the court however denied because it found that the province could still push through with the other parts of the project.

Issue/s:WON there was proper, timely, and sufficient public consultation for the project

Held/Ratio:No, there was none. According to the SC, the LGC establishes the duties of national government agencies in the maintenance of ecological balance, and

requires them to secure prior public consultation and approval of local government units for the projects described therein.o In this case, the national agency involved is PRA. -> Even if the project proponent is the local government of Aklan, it is the PRA which

authorized the reclamation, being the exclusive agency of the government to undertake reclamation nationwide which was the

reason why it was necessary for the Province to go through PRA and to execute a MOA, wherein the PRA’s authority to reclaim was delegated to respondent Province.

o DENR-EMB RVI, regional office of the DENR, is also a national government institution which is tasked with the issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the one at bar.

The court said that the project involved in this case can be classified as a national project that affects the environmental and ecological balance of local communities, and is covered by the requirements found in the following Local Government Code provisions:

Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

 Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution.

The court cited the case of Lina, Jr. v. Paño where it held that the projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27, including those that (1) may cause pollution, which is what is involved in this case.

It then cited its ruling in Province of Rizal v. Executive Secretary where it ruled that under the LGC, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian.  -> Absent either of these mandatory requirements, the project’s implementation is illegal.

Accordingly, the information dissemination conducted months after the ECC had already been issued was insufficient to comply with this requirement under the LGC.  

Moreover, the SC cited DENR DAO 2003-30 which in essence shows that in cases requiring public consultations, the same should be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. -> In this case, the Province had already filed its ECC application before it met with the local government units of Malay and Caticlan.

The court also rejected the claim of DENR-EMB RVI that no permits and/or clearances from National Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08. o The court found that the LGC requirements of consultation and approval apply in this case because a Memorandum Circular cannot

prevail over the Local Government Code, which is a statute and which enjoys greater weight under our hierarchy of laws. The court noted that subsequent to the information campaign of Province, the Municipality of Malay and the Liga ng mga Barangay-Malay

Chapter still opposed the project. -> Thus, when respondent Province commenced the implementation project, it violated Section 27 of the LGC, which clearly enunciates that “[no] project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained.”

Finally, the SC said that the lack of prior public consultation and approval is not corrected by the subsequent endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both undoubtedly achieved at the urging and insistence of Province.

Petition PARTIALLY GRANTED. TEPO is converted to writ of continuing mandamus.

Digested by: Lindsey Supremo Fabella

LOCGOV - 093Filinvest Land, Inc. v. Flood-affected Homeowners of Meritville Alliance (2007)

Doctrine: “Metro-wide services” are those “services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila.” These basic “metro-wide services” include:      (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management;  (5) urban renewal, zoning and land use planning, and shelter services; (6)  health and sanitation, urban protection, and pollution control; and (7) public safety.  The “powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system, and administration.”  The Court then holds that the MMDA is a “development authority.”   In other words, the MMDA is “an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations, and the private sector for the efficient and expeditious delivery of basic services” in the Metropolitan Manila area.   

Facts: - Nature: Petition for Review on Certiorari assailing a Decision of the Court Appeals - Filinvest Land, Inc., petitioner, is a domestic corporation engaged in realty development business.  Among its real estate development

ventures is Meritville Townhouse Subdivision (Meritville), the first low-cost townhouse project in Pulang Lupa, Las Piñas City.  The project site is located near the heavily-silted Naga River. Respondents, who purchased their housing units from petitioner, are fifty-four of the residents of Meritville. 

- The area around Meritville was developed. New subdivisions were built with elevations higher than that of Meritville.  This development turned Meritville into a catch basin from rains during the wet season and from water coming from the Naga River every time it overflows.

- Due to perennial flood, respondents’ townhouses suffered severe damages. On various dates, respondents sent letters to petitioner demanding that it address the problem. Petitioner then installed in the area a pumping station with a capacity of 6,000 gallons per minute.  It also improved the drainage system. But these measures were not enough.  Thus, the National Home Mortgage Finance Corporation declared the affected townhouses “unacceptable collaterals.”

- Respondents filed with the HLURB a complaint against petitioner, praying that petitioner be ordered to upgrade the elevation of the affected areas and repair the units. In the alternative, they asked petitioner to transfer them to its other flood-free housing projects,

allowing them to “sell-back” their affected units. - During the proceedings before the HLURB, the Arbiter conducted an ocular inspection of the area and found that the pump provided

by the owner/developer could not accommodate the volume of flood water and operation of the said pump was creating disturbing loud noise despite enclosed housing provided by the owner/developer. The Arbiter also found that petitioner failed to secure the conformity of the affected homeowners before it installed its drainage system; and that it did not “observe honesty and good faith in solving the issue at bar.” HLURB sided with the homeowners. appeal HLURB Board of Commissioners affirmed Appeal to the Office of the President OP dismissed the appeal Petition for review with the CA CA affirmed OP judgment MR denied present petition

Petitioner’s arguments: - They’re not responsible for the effects of the flooding.- Under Republic Act No. 7924, it is the Metro Manila Development Authority (MMDA) which should shoulder the responsibility,

invoking Section 3, which partly reads: SEC. 3. Scope of MMDA Services. – Metro-wide services under the jurisdiction of the MMDA are those services which have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units (LGUs) comprising Metropolitan Manila. These services shall include: xxx (d) Flood control and sewerage management, which include the formulation and implementation of policies, standards, programs and projects for an integrated flood control, drainage and sewerage system.

Respondent’s arguments: Respondents’ specific arguments weren’t provided in the case but the main argument, as stated in the facts, is that petitioner is responsible for the effects of the flooding in the subdivision.

Issue/s: Whether the flooding in the Meritville has been caused by petitioner’s negligenceHeld/Ratio: Petition granted. CA decision reversed. It is the city government of Las Piñas City which has the duty to control the flood in Meritville Townhouse Subdivision

- Negligence cannot be attributed to petitioner.o Article 1170 of the Civil Code - Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and

those who in any manner contravene the tenor thereof, are liable for damages.o Philippine National Construction Corporation v. Court of Appeals: Negligence is “the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do.”  It is the failure to observe that degree of care, precaution and vigilance that the circumstances just demand, whereby that other person suffers injury.   

o Bank of the Philippine Islands v. Casa Montessori Internationale: Negligence is never presumed but must be proven by whoever alleges it.   In determining whether or not a party acted negligently, the constant test is: “Did the defendant in doing the negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.”

o Meritville is the first subdivision to be developed in the locality and that subsequent developments elevated the surrounding areas to a level higher by more than one meter than that of Meritville.  Naturally, the water from these surrounding areas would flow to the lower area which is Meritville. Prior to these developments, there was no flooding in the subdivision. 

o Also, Naga River has remained heavily silted and undredged.  Due to the heavy silting, the river could not take the volume of water flowing into it, thus causing the flooding of the area. Article 502 of the Civil Code provides that rivers and their natural bed are of public dominion. As Naga River is a public property, hence, it is the government which should address the problem.

- Re MMDA argument of petitioner:o Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc.: “Metro-wide services” are those “services which

have metro-wide impact and transcend local political boundaries or entail huge expenditures such that it would not be viable for said services to be provided by the individual local government units comprising Metro Manila.” These basic “metro-wide services” include:      (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management;  (5) urban renewal, zoning and land use planning, and shelter services; (6)  health and sanitation, urban protection, and pollution control; and (7) public safety.  The “powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system, and administration.”  The Court then holds that the MMDA is a “development authority.”   In other words, the MMDA is “an agency created for the purpose of laying down policies and coordinating with the various national government agencies, people’s organizations, non-governmental organizations, and the private sector for the efficient and expeditious delivery of basic services” in the Metropolitan Manila area.   

o Petitioner, therefore, cannot seek relief from the MMDA as its services only involve laying down policies and coordination with other agencies relative to its primary functions.

o What is pertinent to respondents’ cause is Section 17 of the Local Government Code-- (a)    Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local government units shall likewise 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 enumerated herein. (b)   Such basic services and facilities include, but are not limited to the following:

For a Municipality: (viii) Infrastructure facilities intended primarily to service the needs of the residents of the municipality and which are funded out of the municipal funds including but not limited to municipal roads and bridges; school buildings and other facilities for public elementary and secondary schools; clinics, health centers and other health facilities necessary to carry out health services; communal irrigation, small water impounding projects and other similar projects, fish ports; artesian wells, spring development, rainwater collectors and water supply systems; seawalls, dikes, drainage and sewerage; and flood control, traffic signals and road signs, and similar facilities.

x x x4) For A City:All the services and facilities of the municipality and province x x x

Digest by: P.M.R. Gairanod

LOCGOV – 094

Arsadi M. DISOMANGCOP and Ramir M. Dimalotang, petitioners,vs.Secretary of the DPWH Simeon A. DATUMANONG and the Secretary of Budget and Management Emilia T. Boncodin, respondents.(Nov. 25, 2004)

Doctrine: “The creation of autonomous regions contemplates the grant of political autonomy. It serves as a break from Congress’ control over local government affairs.”

Facts:This is a Petition for certiorari, prohibition, mandamus with prayer for TRO or WPI, questioning the constitutionality of R.A.8999

which established an Engineering District in the 1st District of Lanao de Sur, and the validity of Department Order no. 119 of DPWH which created a Marawi Sub-district Engineering Office.

After the enactment of the organic law of the ARMM (R.A. 6734) in 1989, Pres. Corazon Aquino had signed 7 executive orders to implement the Organic Act of ARMM including EO 426 devolving to the Autonomous Regional Government of the ARMM the powers of 7 cabinet departments namely: (1) local government; (2) labor and employment; (3) science and technology; (4) public works and highways; (5) social welfare and development; (6) tourism; and (7) environment and national resources.

In 1999, the DPWH Secretary issued DO 119. It created the Marawi Sub-District Engineering Office which was supposed to have jurisdiction over national infrastructure projects and facilitiesunder the DPWH within Marawi city and Lanao del Sur. Personnel of the Sub-District shall be national government employees.

2 years later, Erap signed into law the questioned RA 8999 “establishing an Engineering District in the First District of the Province of Lanao del Sur and appropriating funds therfor.”

Later in 2001, ARMM expanded by the passage of RA 9054. Basilan and Marawi city joined ARMM. This was ratified by a plebiscite.Herein petitioners (officer-in-charge and district engineers of the 1st Engineering District of the DPWH in Lanao del Sur petitioned

DPWH secretary to revoke its DO 119 and the non-implementation of RA 8999. They were not heeded to they filed this instant petition for certiorari, prohibition, mandamus with TRO and/or WPI.

I. Petitioners’ reliefs prayed for/arguments:1. They seek to annul DO 119.

2. They seek to prohibit the DPWH secretary from implementing DO 119 and RA 8999. They want the funds for projects intended for Lanao del Sur and Marawi City to be released to DPWH-ARMM First Engineering District in Lanao del Sur only and NOT to the Marawi Sub-District Engineering Office and other agencies.

3. They want to compel the DPWH secretary to let DPWH-ARMM First Engineering District in Lanao del Sur implement all public work projects within its jurisdiction.

They allege that the DO’s issuance was tainted with grave abuse of discretion because it violated the constitutional autonomy of the ARMM.

They say that functions of the Marawi Sub-District have already been devolved to the DPWH-ARMM First District in Lanao del Sur.They also allege that RA 8999 was not thoroughly studied and was tainted with politics because it was skillfully timed during Erap’s

impeachment proceedings.

II. Respondents’ arguments:Respondents counter that DO was validly made because it was issued in accordance with EO 124 (Reoganizing Ministry of Public Works

and Highways) of 1987.As for the constitutionality of RA 8999, they said that the powers of the autonomous regions did not diminish the legislative power of

Congress.

(NON-TOPICAL) They also attack the legal standing of the petitioners saying they have no personal stake in the outcome of the controversy. (NOTE: this challenge to their legal standing did not succeed because of “paramount interests involved” ie. Autonomy of ARMM.)

Issue/s:1. W/N RA 8999 is constitutional? DO 119 valid?

Held/Ratio:1. It is not necessary to declare RA 8999 as unconstitutional because it never became operative . RA 8999 sought to amend an Organic Act

(the ARMM Organic Act which was ratified by a plebiscite) which it cannot do without a plebiscite.2. Plebiscite Requirement: Only another legislative enactment which was ratified by a plebiscite can amend a law which was also ratified by

a plebiscite. The expanded ARMM Organic Act is one such law which could amend the 1989 ARMM Organic Act because the former was also ratified.

3. Another perspective is that the Expanded ARMM Organic Act repealed RA 8999 in so far as the latter is antagonistic to the thrust of the Organic Act which seeks to advance the constitutional grant of autonomy.

Limbona vs. Mangelin: “Autonomy is either decentralization of administration or decentralization of power.”Cordillera Broad Coalition v. COA: “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.“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.”

“Section 16, Article X, limits the power of the President over autonomous regions. In essence, the provision also curtails the power of Congress over autonomous regions.”

However, this break from Congress’ control is applicable only to subjects over which the Autonomous regions have power specified in Sec. 18 and 20 on Art. X of the Constitution. Public works is not excluded from the powers of the autonomous regions neither is it granted to the National Government.

EO 426 already devolved the the public works functions of the DPWH to the autonomous region government.Furthermore, RA 9054 also devolved the administration and finsacl management of public works to the autonomous regional

government.In creating a new Engineering district, RA 8999 is taking control again and taking away the freedom of the autonomous region. It

runs afoul of the ARMM Organic Acts.

4. DO 119 (creating Marawi sub-district) is violative of EO 426 (devolving power of departments to ARMM), the latter implements ARMM Organic Act.

5. It is a basic statutory construction rule that general law gives way to special law. EO 426 is a special law devolvin DPWH powers to ARMM-DPWH, while EO 124 on which DO 119 was based is a general law dealing with the reorganization of the them MPWH. Also, EO 426 is a later enactment.

6. The repeal of RA 8999 (by the Expanded Organic Act (RA 9054) and the functus officio (no more function) state of DO 119 provides necessary basis for writs of certiorari and prohibition. But the mandamus to release funds to petitioners is not granted because funds should be appropriated through the Regional Assembly Public Works Act passed by the ARMM Regional Assembly.

Digested by: Jay Garcia (A2015)

LOCGOV - #095

Province of Batangas v. Romula (2004)

J. Callejo

Doctrine: The power of the President (national government) over the LGUs involves only supervision, not control. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them.

Facts:

1. In 1998, then President Estrada issued E.O. 48 which established a program for devolution adjustment of LGUs. For this purpose, an Oversight Committee for Devolution (OCD) has been tasked to formulate and issue the appropriate rules and regulations necessary for its effective implementation.

2. A “Devolution Adjustment and Equalization Fund” was created which was initially sourced from the available savings of the national government

3. For 1999 onwards, the program was renamed as the LOCAL GOVERNMENT SERVICE EQUALIZATION FUND (LGSEF). Under the GAAs, 5 billion were earmarked for LGSEF to be used for the funding requirements of projects and activities arising from the full and efficient implementation of devolved functions and services of LGUs a. The amount shall be released to the LGUs subject to the implementing rules and regulations, by the Oversight Committee

4. The Oversight Committee passed various resolutions, approved by the President, providing for the rules and allocation schemes under which the LGSEF will be allocated (the case has copies of the Resolutions)a. For 1999: the P2 billion of the 5Billion of the LGSEF was allocated as follows: Provinces – 40%; Cities – 20%; Municipalities –

40%.b. For 2000: the P3.5 billion of the LGSEF was allocated in this manner: Provinces – 26%; Cities – 23%; Municipalities – 35%;

Barangays – 26%c. For 2001: P3 billion of the LGSEF was allocated, thus: Provinces – 25%; Cities – 25%; Municipalities – 35%; Barangays – 15%

5. The Oversight Committee also formulated criteria for eligibility under the program under which the LGU must identify the projects where the fund will be used

6. The Province of Batangas, represented by its Governor Hermilando I. Mandanas, filed the petition for certiorari, prohibition and mandamus to declare as unconstitutional and void certain provisos contained in the General Appropriations Acts (GAA) of 1999, 2000 and 2001, insofar as they uniformly earmarked for each corresponding year the amount of 5 billion pesos of the Internal Revenue Allotment (IRA) for the Local Government Service Equalization Fund (LGSEF) and imposed conditions for the release

7. The named respondents include Executive Secretary Alberto G. Romulo, in his capacity as Chairman of the Oversight Committee on Devolution, Secretary Emilia Boncodin of the Department of Budget and Management (DBM) and Secretary Jose Lina of the Department of Interior and Local Government (DILG)

8. The Petitioner’s Arguments: a. The Resolutions and GAA provisos with respect to the 5B LGSEF are violative of Section 6, Article X of the Constitution which

mandates that the “just share” of the LGUs shall be automatically released to them. This is buttressed by Sections 18 and 286 of the LGCode, which enjoin that the “just share” of the LGUs shall be “automatically and directly” released to them “without need of further action”.

b. To vest the Oversight Committee with the authority to determine the distribution and release of the LGSEF, which is a part of the IRA of the LGUs, is an anathema to the principle of local autonomy. One result of which is delay in the release in funds as what happened in 2001.

c. There is improper amendment to Section 285 of the LGC on the percentage sharing of the IRA among the LGUs. Said provision allocates the IRA as follows: Provinces – 23%; Cities – 23%; Municipalities – 34%; and Barangays – 20%

9. The Respondents’ Arguments: a. Section 6, Article X of the Constitution does not specify that the “just share” of the LGUs shall be determined solely by the LGC and

Congress may amend it thru the GAA. Section 285 of the LGC, which provides for the percentage sharing of the IRA among the LGUs, was not intended to be a fixed determination of their “just share” or the default share.

b. On procedural grounds, the petition allegedly raises factual issues which should be properly threshed out in the lower courts, not this Court, not being a trier of facts.

c. The petition has already been rendered moot and academic as it no longer presents a justiciable controversy because the IRAS for the years 1999, 2000 and 2001, have already been released and the government is now operating under the 2003 budget.

d. Finally, the petitioner allegedly has no legal standing to bring the suit because it has not suffered any injury.

Held/ Ratio:

Procedural:

1. The petitioner has locus standi to maintain the present suit Petitioner possesses the requisite standing to maintain the present suit as local government unit which seeks relief in order to protect or vindicate an interest of its own, and of the other LGUs. This interest pertains to the LGUs’ share in the national taxes or the IRA.

2. The petition involves a significant legal issue pertaining to the constitutionality of GAA provisos and OCD (Oversight Committee) resolutions

3. The substantive issue needs to be resolved notwithstanding the supervening events because they pertain to grave violation of the Constitution and questions “capable of repetition, yet evading review.”

Substantive Issue The SC Ruled for Petitioners and held the provisos and resolutions as unconstitutional

1. The Constitution and the LGC both stressed the importance of Local Autonomy. Consistent with the principle of local autonomy, the Constitution confines the President’s power over the LGUs to one of general supervisiona. Drilon v. Lim: Control is when an officer may, in his discretion, order the act undone or re-done by his subordinate or he may even

decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done but only to conform to the prescribed rules.

2. Pursuant to this principle, both the Constitution (Section 6, Article X) and the LGC mandates that: a. the LGUs shall have a “just share” in the national taxes; b. the “just share” shall be determined by law; and c. the “just share” shall be automatically released to the LGUs. note that the provisions use the term shall indicating that they are

imperative3. Under the assailed provisos in the GAAs of 1999, 2000 and 2001, a portion of the IRA in the amount of five billion pesos was

earmarked for the LGSEF, and these provisos imposed the condition that “such amount shall be released to the local government units subject to the implementing rules and regulations, including such mechanisms and guidelines for the equitable allocations and distribution by the Oversight Committee on Devolution.”

4. To the Court’s mind, the entire process involving the distribution and release of the LGSEF is constitutionally impermissible. The LGSEF is part of the IRA or “just share” of the LGUs in the national taxes. To subject its distribution and release to guidelines by the OCD makes the release notautomatica. Note that the automatic release of the IRA was precisely intended to guarantee and promote local autonomy can be gleaned from

the records of the 1986 Constitutional Commission, particularly between Messgrs. Maambong and Nolledo5. The concept of local autonomy was explained in Ganzon v. Court of Appeals:It ‘means a more responsive and accountable local

government structure instituted through a system of decentralization.’ Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism because it is still subject to regulation, however limiteda. Decentralization means devolution of national administration – but not power – to the local levelsb. There is decentralization of administration when the central government delegates administrative powers to political

subdivisions in order to broaden the base of government power and in the process to make local governments ‘more responsive and accountable’ and ‘ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.’ The President exercises ‘general supervision’ over them, but only to ‘ensure that local affairs are administered according to law.’

c. Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local governments [sic] units declared to be autonomous.

6. Local autonomy includes both administrative and fiscal autonomya. 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. It extends to the preparation of their budgets, and local officials in turn have to work within the constraints thereof.

b. The SC cited the case of Pimentel v. Aguirree wherein it struck down as unconstitutional Section 4 of AO 372 which ordered the withholdingof a part of the IRA the same is true with the LGSEF which should be voided

7. The SC also stressed that the LGC provides that the LGUs’ share in the national internal revenue taxes shall be 40%. This percentage is fixed and may not be reduced except “in the event the national government incurs an unmanageable public sector deficit" and only upon compliance with stringent requirements. IN THIS CASE, there is no allegation that the national internal revenue tax collections for the fiscal years 1999, 2000 and 2001 have fallen compared to the preceding three fiscal years.

8. Section 285 then specifies how the IRA shall be allocated among the LGUs (see Facts, #8d), this percentage sharing cannot be amended by the GAAa. A general appropriations bill is a special type of legislation, whose content is limited to specified sums of money dedicated to a

specific purpose or a separate fiscal unit, any provision which is intended to amend another law is considered an “inappropriate provision” which are unconstitutional.

b. The LGC rule on just sharing or allocation can be amended only by another substantive law

Digested by: Cielo Goño (A2015)

LOCGOV - #096Alternative Center for Organizational Reforms and Development, Inc. (ACORD) v. Executive Secretary Zamora (2005), supra

(This is a supra case, in this instance falling under the topic “Intergovernmental relations; between the national government and other local government units”. Since there really was nothing to add and this student could not seem to link this case with the topic under which it was assigned, the contents of this digest have been lifted from Digest #022 prepared by Shelan Teh, with the imprimatur of the A2015 subject handler. – ed.

P.S. I guess the point is, an example of national government-LGU linkage is how it’s the former that releases the IRA of the latter. I don’t know. I really don’t know.)

“Doctrine: A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.

Facts: (SC En Banc; Ponente: Carpio-Morales, J.; Nature: Petitions for Certiorari, Prohibition and Mandamus with Application for Temporary Restraining Order)1. Pursuant to Sec. 22, Art. VII of the Constitution mandating the President to submit to Congress a budget of expenditures within 30 days before the opening of every regular session, then Pres. Estrada submitted the National Expenditures Program for Fiscal Year 2000.

In the said Program, the Pres. proposed an Internal Revenue Allotment (IRA) of P121,778,000,000 following the formula provided for in Sec. 284 of the Local Government Code (LGC).

The President approved House Bill No. 8374. This bill became R.A. No. 8760, “An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines from January One to December Thirty-One, Two Thousand, and for Other Purposes.” (General Appropriations Act or GAA for the Year 2000).

o The act provides under XXXVII. Allocations to Local Government Units that the IRA for local government units shall amount to P111,778,000,000.

o Under the heading LIV. Unprogrammed Fund, it is provided that an amount of P10 Billion, apart from the P111,778,000,000 mentioned above, shall be used to fund the IRA, which amount shall be released only when the original revenue targets submitted by the President to Congress can be realized based on a quarterly assessment to be conducted by certain committees which the GAA specifies: the Development Budget Coordinating Committee, the Committee on Finance of the Senate, and the Committee on Appropriations of the House of Representatives.

o Thus, while the GAA appropriates P111,778,000,000 of IRA as Programmed Fund, it appropriates a separate amount of P10 Billion of IRA under the classification of Unprogrammed Fund, the latter amount to be released only upon the occurrence of the condition stated in the GAA.

2. Supreme Court: A number of NGOs and people's organizations, along with 3 barangay officials filed the petition at bar against respondents challenging the constitutionality of above-quoted provision of XXXVII referred to by petitioners as Section 1, XXXVII (A), and LIV Special Provisions 1 and 4 of the GAA (the GAA provisions).

Although the effectivity of the Year 2000 GAA has ceased, the Court proceeded to resolve the issues raised in the present case, it being impressed with public interest.

Batangas v. Romulo : Supervening events, whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation of the Constitution. Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public.

Another reason justifying the resolution by this Court of the substantive issue now before it is the rule that courts will decide a question otherwise moot and academic if it is “capable of repetition, yet evading review.” For the GAAs in the coming years may contain provisos similar to those now being sought to be invalidated, and yet, the question may not be decided before another GAA is enacted.

Petitioner’s argument/s: The petitioners ask that the XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA be declared unconstitutional because the GAA violated this constitutional mandate when it made the release of IRA contingent on whether revenue collections could meet the revenue targets originally submitted by the President, rather than making the release automatic.

Respondent’s argument/s: The above constitutional provision is addressed not to the legislature but to the executive, hence, the same does not prevent the legislature from imposing conditions upon the release of the IRA. Respondents thus infer that the subject constitutional provision merely prevents the executive branch of the government from “unilaterally” withholding the IRA, but not the legislature from authorizing the executive branch to withhold the same. In the words of respondents, “This essentially means that the President or any member of the Executive Department cannot unilaterally, i.e., without the backing of statute, withhold the release of the IRA.”

Issue/s: W/N the questioned provisions violate the constitutional injunction that the just share of local governments in the national taxes or the IRA shall be automatically released. (YES.)

Held/Ratio: 1. Ruling: The petition is granted. XXXVII and LIV Special Provisions 1 and 4 of the Year 2000 GAA are declared unconstitutional insofar as

they set apart a portion of the IRA, in the amount of P10 Billion, as part of the unprogrammed fund.2. Constitutionality of the GAA Provisions

Article X, Section 6 of the Constitution : 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.

Petitioners and respondents cite the exchange between Commissioner Davide and Commissioner Nolledo in the deliberations of the Constitutional Commission on Sec. 6, Art. X of the Constitution. In the exchange of statements, it is clear that although Commissioners Davide and Nolledo held different views with regard to the proper wording of the constitutional provision, they shared a common assumption that the entity which would execute the automatic release of internal revenue was the executive department. Commissioner Davide referred to the national government as the entity that collects and remits internal revenue. Similarly, Commissioner Nolledo alluded to the Budget Officer, who is clearly under the executive branch.

As the Constitution lays upon the executive the duty to automatically release the just share of local governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing this duty. To hold that the executive branch may disregard constitutional provisions which define its duties, provided it has the backing of statute, is virtually to make the Constitution amendable by statute – a proposition which is patently absurd.

If the framers intended to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitution would have been worded differently. Since, under Art. X, Sec. 6 of the Constitution, only the just share of local governments is qualified by the words “as determined by law,” and not the release thereof, the plain implication is that Congress is not authorized by the Constitution to hinder or impede the automatic release of the IRA.

Batangas v. Romulo : o The Court interpreted Art. X, Sec. 6 of the Constitution as follows: When parsed, it would be readily seen that this provision

mandates that (1) the LGUs shall have a “just share” in the national taxes; (2) the “just share” shall be determined by law; and (3) the “just share” shall be automatically released to the LGUs.

o Webster's Third New International Dictionary defines “automatic” as “involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton.” Further, the word “automatically” is defined as “in an automatic manner: without thought or conscious intention.” Being “automatic,” thus, connotes something mechanical, spontaneous and perfunctory.

o While “automatic release” implies that the just share of the local governments determined by law should be released to them as a matter of course, the GAA provisions, on the other hand, withhold its release pending an event which is not even certain of occurring. To rule that the term "automatic release" contemplates such conditional release would be to strip the term “automatic” of all meaning.

o The only possible exception to mandatory automatic release of the IRA is if the national internal revenue collections for the current fiscal year is less than 40 percent of the collections of the preceding third fiscal year, in which case what should be automatically released shall be a proportionate amount of the collections for the current fiscal year. The adjustment may even be made on a quarterly basis depending on the actual collections of national internal revenue taxes for the quarter of the current fiscal year.

Pimentel v. Aguirre : A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue.

The Court recognizes that the passage of the GAA provisions by Congress was motivated by the laudable intent to “lower the budget deficit in line with prudent fiscal management.” o Pimentel v. Aguirre : The rule of law requires that even the best intentions must be carried out within the parameters of the

Constitution and the law. Verily, laudable purposes must be carried out by legal methods.”

(Barely) digested by: Oyie Javelosa

LOCGOV – 97Province of Rizal v. Executive Secretary (2005)Doctrine: The Administrative Code of 1987 and Executive Order No. 192 entrust the DENR with the guardianship and safekeeping of the Marikina Watershed Reservation and our other natural treasures. However, although the DENR, an agency of the government, owns the Marikina Reserve and has jurisdiction over the same, this power is not absolute, but is defined by the declared policies of the state, and is subject to the law and higher authority. Facts:

1. At the height of the garbage crisis plaguing Metro Manila and its environs, parts of the Marikina Watershed Reservation were set aside by the Office of the President, through Proclamation No. 635 dated 28 August 1995, for use as a sanitary landfill and similar waste disposal applications. This site extending to more or less 18 hectares, had already been in operation since 19 February 1990 for the solid wastes of Quezon City, Marikina, San Juan, Mandaluyong, Pateros, Pasig, and Taguig.

2. This is a petition filed by the Province of Rizal, the municipality of San Mateo, and various concerned citizens for review assailing the legality and constitutionality of Proclamation No. 635.

3. 17 November 1988: the respondent Secretaries of DPWH and DENR and the Governor of the Metropolitan Manila Commission (MMC) entered into a Memorandum of Agreement (MOA), which provides:

a. The DENR agrees to immediately allow the utilization by the MMC of its land located at Pintong Bocaue in San Mateo, Rizal as a sanitary landfill site, subject to whatever restrictions that the government impact assessment might require.

b. Upon signing of this Agreement, the DPWH shall commence the construction/development of said dumpsite.c. The MMC shall:

i. Take charge of the relocation of the families within and around the site; ii. Oversee the development of the areas as a sanitary landfill;

iii. Coordinate/monitor the construction of infrastructure facilities by the DPWH in the said site; and iv. Ensure that the necessary civil works are properly undertaken to safeguard against any negative environmental impact

in the area.4. 7,8, 10 Feb 1989: Sangguniang Bayan of San Mateo wrote MMC, DPWH, the Presidential Task Force on Solid Waste Management,

pointing out that it had recently passed a Resolution banning the creation of dumpsites for Metro Manila garbage within its jurisdiction. They sought to ask the addressees to “suspend and temporarily hold operations in the San Mateo Landfill Dumpsite.” No action was taken on these letters.

5. It appears that the land subject of the MOA of 17 November 1988 and owned by the DENR was part of the Marikina Watershed Reservation Area.

6. 31 May 1989: forest officers of the Forest Engineering and Infrastructure Unit of the Community Environment and Natural Resource Office, (CENRO) DENR-IV, Rizal Province, submitted a Memorandum on the “On-going Dumping Site Operation of the MMC inside the Marikina Watershed Reservation, located at Barangay Pintong Bocaue, San Mateo, Rizal, and nearby localities.” Said Memorandum provides that the Dumping Site is confined within the Watershed Reservation. Moreover, such illegal Dumping Site operation inside the Watershed Reservation is in violation of P.D. 705 (Revised Forestry Code). Thus, they recommend that the MMC Dumping Site Inside Marikina Watershed Reservation must totally be stopped and discouraged to save our healthy ecosystems and to avoid much destruction, useless efforts and loss of millions of public funds over the land.

7. On two occasions, CENRO submitted Investigation Reports to the Regional Director of DENR emphasizing the ongoing operations in the dumpsite without DENR permit, the detrimental effects of the continuous operations to the inhabitants near the site, the adverse effects to the ecological balance and environmental factors to the community, and that the Dump Site is found within the Marikina Watershed.

8. 19 Feb 1990: DENR Environmental Management Bureau, granted MMA (previously MMC) an Environmental Compliance Certificate (ECC) for the operation of a two-and-a-half-hectare garbage dumpsite. ECC was subject to the provisions of PD 1586 (Establishing an Environmental Impact Statement System)

a. Section 4. “No persons, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate.”

b. Proclamation No. 2146 designates “all areas declared by law as national parks, watershed reserves, wildlife preserves, and sanctuaries” as “Environmentally Critical Areas.”

9. 9 March 1990: respondent Laguna Lake Development Authority (LLDA) sent a letter to convey their reservation on the choice of the sites for solid waste disposal inside the watershed of Laguna Lake pursuant to MWSS’ scheduled abstraction of water from the lake to serve the needs of about 1.2 million residents. LLDA is accelerating its environmental management program to upgrade the water quality of the lake in order to make it suitable as a source of domestic water supply the whole year round. The said program regards dumpsites as incompatible within the watershed because of the heavy pollution, including the risk of diseases, generated by such activities which would negate the government’s efforts to upgrade the water quality of the lake.

10. 31 July 1990: ECC was suspended because ground slumping and erosion have resulted from improper development of the site. They believe that this will adversely affect the environmental quality in the area if the proper remedial measures are not instituted in the design of the landfill site.

11. 21 June 1993: Acting Mayor of San Mateo, the Barangay Captain and the Chairman of the Pintong Bocaue Multipurpose Cooperative (PBMC) wrote then President Ramos expressing their objections to the continued operation of the MMA dumpsite for causing “unabated pollution and degradation of the Marikina Watershed Reservation.”

12. 14 July 1993: another Investigation Report was submitted to the DENR Undersecretary for Environment and Research noting various interviews with inhabitants near the dump site who are suffered soil erosion on their lots, water pollution and exposure to bad odor. Recommendations in this report include the relocation of landfill and the approval of the Integrated Social Forestry Project.

13. 16 November 1993: DENR Secretary sent MMA Chairman a letter stating that “after a series of investigations by field officials” of the DENR, the agency realized that the MOA entered into on 17 November 1988 “is a very costly error because the area agreed to be a garbage dumpsite is inside the Marikina Watershed Reservation.” He then strongly recommended that all facilities and infrastructure in the garbage dumpsite in Pintong Bocaue be dismantled, and the garbage disposal operations be transferred to another area outside the Marikina Watershed Reservation to protect “the health and general welfare of the residents of San Mateo in particular and the residents of Metro Manila in general.”

14. 6 June 1995: petitioner Villacorte, Chairman of the PBMC, wrote President Ramos informing the President of the issues involved, that the dumpsite is located near three public elementary schools and that its location “violates the municipal zoning ordinance of San Mateo and, that HLURB had denied the then MMA chairman’s application for a locational clearance on this ground.”

15. 21 August 1995: the Sangguniang Bayan of San Mateo issued a Resolution “expressing a strong objection to the planned expansion of the landfill operation in Pintong Bocaue and requesting President Ramos to disapprove the draft Presidential Proclamation segregating 71.6 Hectares from Marikina Watershed Reservation for the landfill site in Pintong Bocaue, San Mateo, Rizal.”

16. Despite the various objections and recommendations raised by the government agencies aforementioned, the Office of the President signed and issued Proclamation No. 635 on 28 August 1995, “Excluding from the Marikina Watershed Reservation Certain Parcels of Land Embraced Therein for Use as Sanitary Landfill Sites and Similar Waste Disposal Under the Administration of the Metropolitan Manila Development Authority.”

a. The pertinent portions thereof state:

i. “WHEREAS, there is now an urgent need to provide for, and develop, the necessary facilities for the disposal of the waste generated by the population of Metro Manila and the adjoining provinces and municipalities, to ensure their sanitary and /or hygienic disposal;”

ii. Section 1. General – That certain parcels of land, embraced by the Marikina Watershed Reservation, were found needed for use in the solid waste disposal program of the government in Metropolitan Manila, are hereby excluded from that which is held in reserve and are now made available for use as sanitary landfill and such other related waste disposal applications.

iii. Section 2. Purpose – The areas being excluded from the Marikina Watershed Reservation are hereby placed under the administration of the Metropolitan Manila Development Authority, for development as Sanitary Landfill, and/or for use in the development of such other related waste disposal facilities that may be used by the cities and municipalities of Metro Manila and the adjoining province of Rizal and its municipalities.

17. 6 September 1995: Director Wilfrido S. Pollisco of the Protected Areas and Wildlife Bureau wrote the DENR Secretary to express the bureau’s stand against the dumpsite at Pintong Bocaue emphasizing that the mere presence of a garbage dumpsite inside a watershed reservation is definitely not compatible with the very purpose and objectives for which the reservation was established.

18. 24 November 1995: the petitioners Municipality of San Mateo and the residents of Pintong Bocaue, represented by Jovito Salonga, sent two letter to President Ramos requesting him to reconsider Proclamation No. 635.

19. 4 March 1996: then chairman of the MMDA [formerly MMA]) addressed a letter to Senator Salonga, stating the need for a dumping site, DENR compliance, amount of money spent on the project, and its exclusion from the Marikina Watershed Reservation.

20. 22 July 1996: the petitioners filed before the CA for certiorari, mandamus with TRO. This was DENIED.21. Hence, this petition.22. NOTE that pending appeal, petitioner filed a motion for TRO pointing out the detrimental effects of El Niño will be aggravated by the

destruction of the Marikina Watershed Reservation (MWR). They noted that MMDA expanded the area of the dumpsite inside the MWR and the 24-hour operations of the dumpsite.

23. A rally was staged to stop dump trucks from reaching the site. MMDA thus agreed to abandon the dumpsite after 6 months.24. 19 July 1999: then President Estrada issued a Memorandum ordering the closure of the dumpsite on 31 December 2000. Accordingly,

on 20 July 1999, the Presidential Committee on Flagship Programs and Projects and the MMDA entered into a MOA with the Provincial Government of Rizal, the Municipality of San Mateo, and the City of Antipolo, wherein the latter agreed to further extend the use of the dumpsite until its permanent closure on 31 December 2000

25. 11 January 2001: President Estrada directed DILG Secretary Alfredo Lim and MMDA Chairman Binay to reopen the San Mateo dumpsite “in view of the emergency situation of uncollected garbage in Metro Manila, resulting in a critical and imminent health and sanitation epidemic.”

26. Claiming the above events constituted a “clear and present danger of violence erupting in the affected areas,” the petitioners filed an Urgent Petition for Restraining Order on 19 January 2001.

27. 24 January 2001: SC issued the TRO. Meanwhile, on 26 January 2001, RA 9003 (The Ecological Solid Waste Management Act of 2000) was signed into law by President Estrada.

Petitioner’s Arguments:

1. San Mateo dump site is inside the protected area – the Marikina Watershed Reservation2. The activities in the dumpsite are detrimental to inhabitants

Respondent’s Arguments:1. The Marikina Watershed Reservation, and thus the San Mateo Site, is located in the public domain. They allege that as such, neither the Province of Rizal nor the municipality of San Mateo has the power to control or regulate its use since properties of this nature belong to the national, and not to the local governments

Issue/s:

1. WON the Marikina Watershed Reservation and San Mateo Site is subject to the control or regulation of the LGU or national governments (National through DENR)

2. WON Proclamation 635 violates the Local Government Code (YES)

Held/Ratio:

The reorganization act of DENR defines and limits its powers over the country’s natural resources Cruz v. Secretary of Environment and Natural Resources: “one of the fixed and dominating objectives of the 1935 Constitutional

Convention was the nationalization and conservation of the natural resources of the country. There was an overwhelming sentiment in the convention in favor of the principle of state ownership of natural resources and the adoption of the Regalian doctrine. State ownership of natural resources was seen as a necessary starting point to secure recognition of the state’s power to control their disposition, exploitation, development, or utilization.”

The Regalian doctrine was embodied in the 1935 Constitution, in Section 1 of Article XIII on “Conservation and Utilization of Natural Resources.” This was reiterated in the 1973 Constitution under Article XIV on the “National Economy and the Patrimony of the Nation,” and reaffirmed in the 1987 Constitution in Section 2 of Article XII on “National Economy and Patrimony33,”

Clearly, the state is zealous in preserving as much of our natural and national heritage as it can, enshrining as it did the obligation to preserve and protect the same within the text of our fundamental law.

It was with this objective in mind that the respondent DENR was mandated by then President Corazon C. Aquino, under Section 4 of Executive Order No. 192 otherwise known as “The Reorganization Act of the Department of Environment and Natural Resources,” to be “the primary government agency responsible for the conservation, management, development and proper use of the country’s environment and natural resources, specifically forest and grazing lands, mineral resources, including those in reservation and watershed areas, and lands of the public domain. It is also responsible for the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos.”

33Sec. 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

Oposa v. Factoran: The right to a balanced and healthful ecology is a fundamental legal right that carries with it the correlative duty to refrain from impairing the environment. This right implies the judicious management and conservation of the country’s resources, which duty is reposed in the DENR under Section 4 of Executive Order No. 19234. This policy is also restated in the Admin Code35that stresses the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment.

In sum, the Administrative Code of 1987 and Executive Order No. 192 entrust the DENR with the guardianship and safekeeping of the Marikina Watershed Reservation and our other natural treasures. However, although the DENR, an agency of the government, owns the Marikina Reserve and has jurisdiction over the same, this power is not absolute, but is defined by the declared policies of the state, and is subject to the law and higher authority. Section 2, Title XIV, Book IV of the Administrative Code of 1987, while specifically referring to the mandate of the DENR, makes particular reference to the agency’s being subject to law and higher authority.

With great power comes great responsibility. It is the height of irony that the public respondents have vigorously arrogated to themselves the power to control the San Mateo site, but have deftly ignored their corresponding responsibility as guardians and protectors of this tormented piece of land.

The local government code gives to local government units all the necessary powers to promote the general welfare of their inhabitants Proclamation No. 635 is subject to the provisions of the Local Government Code, which was approved four years earlier. Section 2(c) of the LGC declares that it is the policy of the state “to require all national agencies and offices to conduct periodic

consultations with appropriate local government units, non-governmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions.” Likewise, Section 27 requires prior consultations before a program shall be implemented by government authorities and the prior approval of the sanggunian is obtained.

The municipal mayors acts during the rally were within the scope of their powers, and were in fact fulfilling their mandate. Section 16 allows every local government unit to “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, which involves promoting health and safety, enhancing the right of the people to a balanced ecology, and preserving the comfort and convenience of their inhabitants.

Lina , Jr. v. Paño: Section 2(c), requiring consultations with the appropriate local government units, should apply to national government projects affecting the environmental or ecological balance of the particular community implementing the project.

Section 27 of the Code should be read in conjunction with Section 26 as follows:o SECTION 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. It shall be the duty of every

national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land,

34 Note also Sec. 3. Declaration of Policy. - It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization; development and conservation of our natural resources.35SEC. 1. Declaration of Policy. - (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources.

range-land, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

The projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose effects are among those enumerated in Section 26 and 27. Those that: (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain animal or plant species from the face of the planet; and (6) other projects or programs that may call for the eviction of a particular group of people residing in the locality where these will be implemented.

Under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal.

Laws pertaining to the protection of the environment were not drafted in a vacuum. Congress passed these laws fully aware of the perilous state of both our economic and natural wealth. It was precisely to minimize the adverse impact humanity’s actions on all aspects of the natural world, at the same time maintaining and ensuring an environment under which man and nature can thrive in productive and enjoyable harmony with each other, that these legal safeguards were put in place. They should thus not be so lightly cast aside in the face of what is easy and expedient.

Digested by: Kimmie Manalo

LOC GOV – No. 98

Sampiano v. Indar (2009)J. Leonardo-de Castro

The automatic release of the IRA under Section 286, LGC is a mandate to the national government through the Department of Budget and Management to effect automatic release of the said funds from the treasury directly to the local government unit, free from any holdbacks or liens imposed by the national government. However, this automatic release of the IRA from the national treasury does not prevent the proper court from deferring or suspending the release thereof to particular local officials when there is a legal question presented in the court pertaining to the rights of the parties to receive the IRA or to the propriety of the issuance of a TRO or a preliminary injunction while such rights are still being determined.

Background

1. This is an administrative case filed by complainants Sampiano (incumbent mayor of Balabagan, Lanao del Sur) et al. (members of the Sangguniang Bayan) against respondent judge. Complainants charged respondent with gross ignorance of the law, grave abuse of authority,

manifest partiality, and serious acts of impropriety in connection with the issuance of an order in the case for prohibition and injunction with TRO entitled “Ogka v. PNB-Marawi.”

2. It appears that Sampiano filed before the Comelec a petition for annulment of proclamation with prayer for preliminary injunction / TRO against his rival mayoralty candidate, his uncle Ogka. The Comelec then issued three orders, pursuant to which Sampiano was ordered to act, perform, and discharge the duties, functions, and responsibilities as mayor “to prevent paralysis to public service” pending determination and final resolution of the controversy.

3. Aggrieved, Ogka filed an urgent MR before the Comelec. He also wrote the chief legal counsel of PNB-Marawi and asked him not to release Balabagan’s share in the internal revenue allotment (IRA) pending the resolution of the mayoralty controversy, citing Sec. 2, Rule 19 of the Comelec rules of procedure which provides that an MR, if not pro forma, suspends execution of the decision. But PNB-Marawi released the IRA, pursuant to a Comelec order.

4. So Ogka filed a special civil action for prohibition and injunction with TRO and preliminary injunction with the RTC presided by respondent judge. The petition prayed that a TRO be immediately issued upon the filing of the petition ordering PNB-Marawi to cease and desist from releasing Balabagan’s IRA, and for Sampiano to cease and desist from withdrawing Balabagan’s share in the IRA. The petition also prayed that after notice and hearing, a writ of preliminary injunction be issued.

5. Respondent then issued an order setting the petition for hearing, and directing PNB-Marawi to hold or defer the release of the IRA unless otherwise ordered by the court. According to Sampiano, during the hearing, his counsel asked respondent judge is the abovementioned order of deferral was a TRO, to which respondent judge replied in the negative. Thereafter, Sampiano’s counsel asked respondent judge to immediately lift said order so as not to deprive the officials and employees of Balabagan from receiving their salaries. Respondent judge however did not heed the request.

6. Hence this administrative complaint. After requiring respondent to comment, the OCA recommended that respondent judge be fined 10k for gross ignorance of the law and for violating the rule on injunctions.

Complainants’ Position

7. Complainants argue that:

(a) Respondent judge lacked jurisdiction over Ogka’s petition inasmuch as the petition was for the enforcement of election laws, over which Comelec has exclusive jurisdiction.

(b) The order of deferral (of the release of Balabagan’s IRA) is a “super order” because, not only was it issued ex parte, but it also directed PNB-Marawi to hold or defer the release of the IRA “until ordered otherwise by the court.” Said order is like a TRO and a writ of preliminary injunction, the issuance of which requires prior notice and hearing. A TRO has a limited life of 20 days while a writ of preliminary injunction is effective only during the pendency of the case and only after posting the required injunction bond.

(c) Respondent judge violated Sec. 286, LGC which provides for the automatic release of the share of the LGU from the national government.

Respondent’s Position

8. Respondent denies the charges against him, prays that the complaint be dismissed, and counters that:

(a) He has jurisdiction over the petition filed by Ogka as it was not concerned with the enforcement of election laws, as in fact it was a petition for prohibition and injunction. He thus took cognizance of the petition since the same asked for the auxiliary remedies of TRO and preliminary injunction for the “enforcement of a legal right or a matter that partakes a question of law” and not therefore the enforcement of election laws.

(b) The order of deferral did not freeze the IRA but merely held or deferred its release to any person including Ogka, a party to the election and who holds a “Comelec proclamation” which was not invalidated.

(c) He did not encroach upon Comelec’s power to enforce the election laws because he neither contracted nor annulled any Comelec order. Under BP 129, the RTC has exclusive original jurisdiction in the issuance of writs of prohibition and injunctions. Hence, he simply applied Rule 58 of the Rules of Court. No bond was required of Ogka because the deferral order was only an “initiatory” action necessary to determine whether it warrants the issuance of the TRO and preliminary injunction.

(d) He did not violate the LGC because Sec. 286 of the same, on the automatic release of IRA, is not a shield or immunity to the authority of the courts to interfere, interrupt, or suspend its release when there is a legal question presented before it in order to determine the rights of the parties concerned.

Ruling of the Court

9. Respondent judge has jurisdiction over Ogka’s petition for prohibition and injunction, as it was not concerned with the enforcement of election laws. It is basic that jurisdiction is determined by the allegations of the complaint and the law. Ogka’s petition prayed that PNB-Marawi be ordered to cease and desist from releasing Balabagan’s share in the IRA to Sampiano or his agents. Undoubtedly, the RTC has jurisdiction.

10. Respondent judge did not violateSec. 286, LGC:

“Sampiano’s claim that the [deferral order] was in contravention of Section 286 of the LGC on the automatic release of the share of the local government unit is untenable. We agree with respondent Judge that the automatic release of the IRA under Section 286 is a mandate to the national government through the Department of Budget and Management to effect automatic release of the said funds from the treasury directly to the local government unit, free from any holdbacks or liens imposed by the national

government. However, this automatic release of the IRA from the national treasury does not prevent the proper court from deferring or suspending the release thereof to particular local officials when there is a legal question presented in the court pertaining to the rights of the parties to receive the IRA or to the propriety of the issuance of a TRO or a preliminary injunction while such rights are still being determined.”

11. Respondent judge however violated the rule on injunctions (Sec. 5, Rule 58) because the deferral order was in the nature of a TRO or preliminary injunction, which order was issued ex parte (life—72 hours only) but the effects of which lasted for 11 days (note: deferral order issued without notice and hearing). Only a TRO issued after a summary hearing can last for a period of 20 days.

12. The recommendation of the OCA is adopted.

Digester: P.R. Manalo (A2015)

LOCGOV - 99De Villa v. City of Bacolod (1990)

Doctrine: The local executives have general and operational supervision over local police units, but no power of administrative supervision or control over them; hence, absence of recommendation from the local chief executive does not invalidate the replacement of a Station Commander made by the INP Director General. At best, the participation of the local chief executive is recommendatory but the power to relieve or reassign a city INP Station Commander is lodged with the INP Director General under existing laws.

Facts: Petitioner (Lt. de Villa), then Director General of the Integrated National Police (INP), relieved respondent Lt. Ploteña as Bacolod City

INP Station Commander and assigned him to the PC Provincial Headquarters in Bacolod City. The city of Bacolod filed with the RTC of Bacolod a complaint for declaratory relief and/or injunction with prayer for issuance of a

writ of preliminary mandatory injunction to declare the relief of Ploteña as invalid and illegal.

Complainant’s (Respondent) arguments: INP Director General had no power to relieve the Station Commander of Bacolod City without consulting the local chief executive or

the mayor. BASIS: EO 1027, Section 4: Once the reassignments herein required are in place, no further reassignment or detail of policemen

outside their respective towns or cities of residence shall be made without the approval of the Municipal or City Mayor concerned. No appointment of new policemen in any municipality or city shall be made, except upon the recommendation of the Municipal or City

Mayor therein. The new appointees shall, as a general rule, be residents of the city or municipality to where they are assigned or stationed.

Defendant’s (Petitioner) arguments: Defendants (herein petitioners) claimed that Gen. de Villa, as Director General of the INP, has the power and authority under PD 765,

PD 1162 and EO 1012 to replace Ploteña. PD 765:1. Section 7: Authority of the President of the Philippines over the Integrated National Police. — In the exercise of its power to

maintain peace, law, order and public safety, the Integrated National Police shall be subject to the command and general supervision of the President of the Philippines and shall function directly under the Department of National Defense.

2. Section 9: The power of administrative supervision and control by city and municipal governments over their respective local police forces, jails and fire departments as defined under existing laws and charters, notwithstanding the transition periods provided in the abovementioned Decrees on integration, shall be transferred to, and exercised by the Chief of Constabulary as Director-General of the Integrated National Police;

EO 1012: Provincial Governors, City Mayors and Municipal Mayors shall have the power to exercise general supervision over units and elements of the INP stationed or assigned in their respective jurisdictions, and shall accordingly exercise the powers and authorities provided for in Section 1(d) of said Presidential Decree No. 1162.

Issue/s: WON the relief of Ploteña as Station Commander of Bacolod City by INP Director General De Villa was valid. YES.

Ratio: Power of Control: The power of control, undefined in PD 765, has been jurisprudentially defined (with reference to the president's

power of control) as the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his duties and to substitute the judgment of the former for that of the latter.

Power of Supervision: power of a superior officer to see to it that subordinates perform their functions according to law. Executive Orders 1012 and 1027 did not remove administrative supervision and control over police units from the INP chief, what is

given to local executives over local police units is general and, at most, operational supervision and direction. The local executives have general and operational supervision over local police units, but no power of administrative supervision or

control over them; hence, absence of recommendation from the local chief executive does not invalidate the replacement of a Station Commander made by the INP Director General. At best, the participation of the local chief executive is recommendatory but the power to relieve or reassign a city INP Station Commander is lodged with the INP Director General under existing laws.

To sustain the position of the respondents, a deadlock can ensue; an intransigent local executive would be in a position to nullify the power of administrative supervision and control vested by law in the PC Chief/INP Director General.

Digested by: Cari Mangalindan

LOCGOV - #100Sison v People (2010)

Doctrine: There shall be in every province, city or municipality a Committee on Awards to decide the winning bids and questions of awards on procurement and disposal of property. RA 7160 requires that when the head of the office  or  department requesting  the  requisition  sits  in  a dual capacity, the participation of a Sanggunian member is necessary.

Facts: Petitioner Rolando E. Sison was the municipal mayor of Calintaan, Occidental Mindoro while Rigoberto de Jesus was the municipal

treasurer. On July 18, 1994, state auditor Elsa E. Pajayon conducted a post-audit investigation which revealed that during petitioner’s

incumbency, no public bidding was conducted for the purchase of a Toyota Land Cruiser, 119 bags of Fortune cement, an electric generator set, certain construction materials, two Desert Dueler tires, and a computer and its accessories. There were also irregularities in the documents supporting the acquisitions.

Thus, petitioner and de Jesus were indicted before the Sandiganbayan in seven separate Informations for seven counts of violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. He was found guilty.

Petitioner’s arguments: Petitioner admitted no public bidding was conducted. He answered that the purchases were done through personal canvass because

no public bidding could be conducted since all the dealers of the items were based in Manila. No one would bid anyway.

Respondent’s arguments: Not stated in the case.

Issue/s: W/N petitioner complied with the requirements of a personal canvass. (NO)

Held/Ratio:

Sec. 366 of RA 7160 provides the exceptions to the rule that acquisitions must be by public bidding:(1) personal canvass of responsible merchants;(2) emergency purchase;(3) negotiated purchase;(4) direct purchase from manufacturers or exclusive   distributors and(5)  purchase from other government entities. Sec. 367 provides for limitations on the resort to this mode of procurement:Upon approval by the Committee on Awards, procurement of supplies may be affected after personal canvass of at least three (3) responsible suppliers in the locality by a committee of three (3) composed of the local general services officer or the municipal or barangay treasurer, as the case may be, the local accountant, and the head of office or department for whose use the supplies are being procured. The award shall be decided by the Committee on Awards.Purchases under this Section shall not exceed the amounts specified hereunder for all items in any one (1) month for each local government unit:1st class – P150, 0002nd to 3rd class – P40, 0004th class and below – P20, 000 Sec. 364 of RA 7160 also mandates:

Section 364. The Committee on Awards.—There shall be in every province, city or municipality a Committee on Awards to decide the winning bids and questions of awards on procurement and disposal of property.The Committee on Awards shall be composed of the local chief executive as chairman, the local treasurer, the local accountant, the local budget officer, the local general services officer, and the head of office or department for whose use the supplies are being procured, as members. In case a head of office or department would sit in a dual capacity a member of the sanggunian elected from among its members shall sit as a member. The Committee on Awards at the barangay level shall be the sangguniang barangay. No national official shall sit as member of the Committee on Awards. Use of “shall” connoted that this is mandatory.

As applied in this case: Personal canvass was effected solely by petitioner, without the participation of the municipal accountant and the municipal treasurer. Worse, there was no showing that that the award was decided by the Committee on Awards.

RA 7160 requires that when the head of office  or  department requesting  the  requisition  sits  in  a dual capacity, the participation of a Sanggunian member is necessary. Petitioner disregarded this requirement by signing in a dual capacity—as chairman and member (representing the head of office for whose use the supplies were being procured). That is strictly prohibited. None of the regular members of the Committee on Awards may sit in a dual capacity. Where any of the regular members is the requisitioning party, a special member from the Sanggunian is required.

He also clearly spent more than P20,000—or beyond the threshold amount per month allowed.

Lastly, petitioner is guilty of Sec. 3 of Anti-Graft and Corrupt Practices Act because he was negligent in all the purchases that were made under his watch. Petitioner admitted that the canvass sheets sent out by de Jesus to the suppliers already contained his signatures.Petitioner also admitted that he knew the provisions of RA 7160 on personal canvass but he did not follow the law because he was merely following the practice of his predecessors. Damage to another party is not required when the official is accused of giving any private party any advantage/preference, as in this case.

Digested by: Korina Manibog

CHAPTER VIII

101 – Local GovernmentPeople’s Law Enforcement Board

Carpio vs. Executive Secretary (1992)

Doctrine: The grant of disciplinary powers over PNP members to the People’s Law Enforcement Boards and city and municipal mayors is not in derogation of the NAPOLCOM’s power of control over the PNP.

Facts: Petitioner Antonio Carpio filed a petition to declare the unconstitutionality of RA 6975 entitled “An Act Establishing the Philippine

National Police Under a Reorganized Department of the Interior and Local Government, and for Other Purposes According to petitioner: RA 6975 emasculated the National Police Commission by limiting its power to “administrative control” over

the Philippine National Police (PNP), and therefore, “control” remained with the Department Secretary under whom both the National Police Commission and the PNP were placed.

Petitioner also asserts there is a manifest derogation of the power of control of the NAPOLCOM over the PNP when RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the Governors and Mayors, respectively; the power of “operational supervision and control” over police units in city and municipal mayors; participation in appointments to the positions of Senior Superintendent to Deputy Director-General as well as the administration of qualifying entrance examinations in the Civil Service Commission; disciplinary powers over PNP members in the People’s Law Enforcement Boards and city and municipal mayors. By vesting in the local executives the power to choose the officers in question, the Act went beyond the Constitution’s intent.

Issue: W/N there is usurpation of the power of control of the NAPOLCOM (None)

Held/Ratio:

Every presumption should be indulged in favor of constitutionality. SC: 1) The President has control of all executive departments, bureaus and offices. The presidential power of control over the

executive branch extends over all executive officers. 2) As a corollary rule to the control powers of the President, is the Doctrine of Qualified Political Agency – all executive and administrative organizations are adjuncts of the Executive Department, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, unless disapproved or reprobated by the Chief Executive are presumptively the acts of the Chief Executive.

Also, that the NAPOLCOM and the PNP are placed under the reorganized Department of Interior and Local Government is merely an administrative realignment which does not detract from the mandate of the Constitution that the national police force shall be administered and controlled by a national police commission.

Under Section 51 full control remains with the National Police Commission. There is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, local executives are only acting as representatives of the NAPOLCOM. The local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) to be recommended by PNP officials.

The grant of disciplinary powers over PNP members to the People’s Law Enforcement Boards (PLEB) and city and municipal mayors is not in derogation of the commission’s power of control over the PNP. Pursuant to the Act, the Commission exercises appellate jurisdiction, through the regional appellate boards, over decisions of both the PLEB and the said mayors. Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for in the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs.

As a disciplinary board primarily created to hear and decide citizen’s complaints against erring officers and members of the PNP, the establishment of PLEBs in every city, and municipality would all the more help professionalize the police force.

Digested by: Irah Peñalber (A2015)

LOCGOV - #102Ignacio v Banate, Jr (1987)Doctrine: The appointee to a Sangguniang Panlungsod who sits there as a representative of the barangays must meet the qualifications required by law for the position. An unqualified person cannot be appointed a member even in an acting capacity.

Facts: Roberto Ignacio was elected Barangay Captain of Bgy. Tanza, Roxas City on May 17, 1982. His term was for 6 years, which

commenced on June 7, 1982. Thereafter, he was elected President of the Association of Barangay Councils (Katipunang Panlungsod Ng Mga Barangay) in Roxas

Ciy, in accordance with the LGC and the IRR of the Katipunan. By virtue of his being the President of the Katipunang Panlungsod ng mga Barangay, Pres. Marcos appointed him as member of the

Sangguniang Panlungsod or City Council. He took his oath of office on June 24, 1982. On May 9, 1986 Minister Aquilino Pimentel designated Leoncio Banate, Jr. as member of the Sangguniang Panlungsod of Roxas City to

replace Ignacio.

Petitioner’s arguments: Respondent Banate is not qualified to be a member of the Sangguniang Panlungsod and to replace him as the representative of the

Katipunan Ng Mga Barangay of Roxas City because his membership in the city council as Katipunan President is governed by the LGC. Sec 173 of the LGC provides: Composition and Compensation. — Sangguniang Panlungsod as the legislative body of the city, shall be

composed of the vice-mayor, as presiding officer, the elected sangguniang panlungsod members, and the members who may be appointed

by the President of the Philippines consisting of the presidents of the katipunan panlungsod ng mga barangay and the kabataang barangay city federation.

Petitioner’s appointment as member of the Sangguniang Panlungsod was by virtue of his having been elected by the Katipunang Panlungsod Ng Mga Barangay, while Banate is not an officer, much less President of the Katipunan and has not been duly elected for any said positions.

The appointment of Banate is invalid because it is the President of the Philippines and not the Minister of Local Governments who has the power and authority to appoint the President of the

Respondent’s arguments: Petitioner, as an appointive local government official who assumed office under the 1973 Constitution, is covered by the provisions

of Sec 2, Article III of Proclamation No 3 issued by president Aquino, which provides: “All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986."

As regards the appointing power of Minister Pimentel, respondents argued that under the provisions of Sec 2, Article III of Proclamation No. 3 (the Provisional Constitution), the power to delegate or appoint officers-in-charge in replacement of local government officials byMinister Pimentel, as alter ego of the President of the Philippines, has been upheld by the SC in several cases.

Issue: w/n the appointment of Banate as replacement of Ignacio in the Sangguniang Panlungsod is valid (NO)

Held/Ratio: Banate, Jr., not being a Barangay Captain and never having been elected president of the association of barangay councils, cannot be appointed a member of the sangguniang panlungsod.

The appointee to a Sangguniang Panlungsod who sits there as a representative of the barangays must meet the qualifications required by law for the position. An unqualified person cannot be appointed a member even in an acting capacity. Banate lacks the eligibility and qualification required by law.

Sec 3, par 1 of BP Blg 51 (An Act Providing for the Elective or Appointive Positions in Various Local Governments and for Other Purposes) provides that: “xx, there shall be appointive sangguniang panlungsod members consisting of the president of the city association of barangay councils, the president of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the president wherever, as determined by the sangguniang panglungsod, said sectors are of sufficient number in the city to warrant representative.”

Ignacio, as one who was appointed under the 1973 Constitution continues in office until the appointment and qualification of his successor. Since the appointment of his successor, Banate, is not validm the tenure of Ignacio could not be terminated on that basis alone.

As regard to the power of Minister Pimentel to appoint a public officer, his authority to designate or appoint local officials in an acting capacity has been upheld by the SC.

Digested by: Katz Rivera (A2015)

LOCGOV #103 – LIGA NG MGA BARANGAY

RAUL GALLAROSSA vs. HON. EUDARLIO VALENCIA, SANGGUNIANG BAYAN OF SORSOGON AND RODOLFO LASAY (1993)

Doctrine: Every barangay is represented in the liga ng mga barangay by the punong barangay, or in his absence or incapacity, by a sanggunian member duly elected for the purpose among its members. The principal aim of the liga ng mga barangay is to promote the development of barangays and secure the general welfare of their inhabitants.

Facts:

1. Petitioner Raul A. Galarosa, is the incumbent president of the Katipunang Bayan or Association of Barangay Councils (ABC) of the municipality of Sorsogon, province of Sorsogon, and was appointed as a member of the Sanggunian Bayan (SB) of Sorsogon pursuant to Executive Order No. 342 in relation to Section 146 of Batas Pambansa Blg. 337, the quondam local government code.

2. In August 1992, private respondent Rodolfo Lasay, the incumbent barangay captain of barangay Gimaloto of the municipality of Sorsogon and an aspirant for the position of president of the ABC (which then became the Liga of Barangay) of the said municipality, filed with the court a quo against the public respondent SB of Sorsogon a petition for declaratory relief and injunction with a prayer for the issuance a temporary restraining order. He sought the determination by the court of the "appropriate, proper interpretation of the provision of Sec. 494 of Republic Act

No. 7160" and of "whether or not the President of the Association of Barangay Captains can continue holding office despite the termination of the Terms of Office of the Sangguniang Bayan of Sorsogon on June 30, 1992.

o Section 494 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, which provides as follows:Sec. 494. Ex officio Membership in Sanggunians. — The duly elected presidents of the Liga [ng mga Barangay] at the municipal, city and provincial levels, including the component cities and municipalities of Metropolitan Manila, shall serve as ex-officio members of the sanggunian bayan, sanggunian panglunsod, and sanggunian panlalawigan, respectively. They

shall serve as such only during their term of office as presidents of the liga chapters, which in no case shall be beyond the term of office of the sanggunian concerned.

3. On 24 March 1993, the respondent Judge handed down a decision in favor of Lasay. The respondent judge ruled that Article 210 of the Rules and Regulations does not expressly provide that the term of office of the

ABC presidents as ex officio members of the SB shall go beyond the term of the SB concerned; since the term of the sanggunian concerned expired on 30 June 1992, it stands to follow that the ex officio membership of the liga president in the said sanggunian, by express mandate of law, likewise ended on the said date.

4. Petitioner filed the instant case with the SC.

Petitioner’s Argument:

1. Petitioner argues that the respondent judge erred when he ruled that the petitioner despite his incumbency as the representative of the Association of Barangay Councils of the Municipality of Sorsogon, has no longer any legal basis or right to his ex-officio membership in the Sangguniang Bayan of the Municipality of Sorsogon.

Respondent’s Argument:

1. Lasay sought to enjoin the SB of Sorsogon from recognizing Galarosa as an ex officio member of the SB and from allowing him to participate in its deliberations, and to direct it to hold in abeyance the payment of Galarosa's salaries.

2. He posited the theory that the term of office of Galarosa as an ex officio member of the SB of Sorsogon is coterminous with that, of the said SB which expired on 30 June 1992; hence there was a need for the new election of an ABC representative.

3. He also avers that Memorandum Circular No. 92-38 of the DILG, which is relied upon by Galarosa, violates and contravenes the clear mandate of Section 494 of the Code which provides that in no case shall the membership of the ex officio members of the SB extend beyond the term of the SB concerned, which ended on 30 June 1992.

Issue:

1. WON Galarosa term as ex-officio member of SB ends with the end of the term of the latter? (YES)2. WON Galarosa can continue to serve as a member of the SB beyond 30 June 1992, the date when the term of office of the elective

members of the SB of Sorsogon expired? (YES but thru holding over authority)

Held: Judgment is hereby rendered REVERSING and SETTING ASIDE the decision of the respondent Judge in Civil Case No. 5575 of Branch 52 of the Regional Trial Court of Sorsogon, Sorsogon.

1. The Local Government Code significantly altered the previous law and rules relative to the membership of the presidents of the katipunang bayan or the ABC. While ABC presidents could remain as such because their term of office as ABC presidents have not yet ended, their term of office as members of the sangguniang bayan has expired on June 1992.

The forerunner of the liga ng mga barangay is the “Katipunan ng mga Barangay” under Section 108 of B.P. Blg. 337, which was known as the katipunang bayan in municipalities, katipunang panglungsod in cities, katipunang panlalawigan in provinces, and katipunan ng mga barangay on the national level. Each barangay therein was represented by the punong barangay. The katipunang bayan was also referred to as the Association of Barangay Councils or ABC for short.

o Immediately prior to the passage of the Local Government Code of 1991, the katipunang bayan or ABC in a municipality was composed of the barangay captains who were elected in the barangay elections of 28 March 1989 held pursuant to R.A. No. 6679. Their term ends in 1994.

Section 494 of the Local Government Code of 1991 provides for the ex officio membership in the respective sanggunians of the duly elected presidents of the liga at the municipality, city, and provincial levels, including the component cities and municipalities of Metro Manila. The liga referred to therein is the liga ng mga barangay. Section 491 of the Code provides for its creation and purpose.

o Every barangay is represented in the liga ng mga barangay by the punong barangay, or in his absence or incapacity, by a sanggunian member duly elected for the purpose among its members. The principal aim of the liga ng mga barangay is to promote the development of barangays and secure the general welfare of their inhabitants.

The Local Government Code of 1991does not explicitly provide that upon its effectivity the katipunan ng mga barangay under B.P. Blg. 337 automatically became the liga ng mga barangayunder the Local Government Code

The LGC does not also provide that the president of the ABC automatically became the president of the liga whose term as ex officio member of the first sangguniang bayan under the 1987 Constitution is coterminous with that of the other regular members of the SB or until 30 June 1992 pursuant to Section 494 of the Local Government Code in relation to Section 2, Article XVIII of the 1987 Constitution 20 and Section 5 of R.A. No. 6636.

o Absent such explicitness and considering (1) that the opening clause of Section 491 is expressed in the future tense such that the liga can only be deemed to exist upon the effectivity of the Local Government Code of 1991 and (2) that Section 494 speaks of "duly elected presidents of the liga" thereby clearly implying an election after the organization of the liga, the conclusion to be drawn is that the legislature never intended that Section 494 would apply to the incumbent presidents of the katipunang bayan.

Notwithstanding the prospective character of Section 494 of the Local Government Code of 1991, the fact remains that the presidents of the katipunang bayan or ABC who were appointed as members of the sangguniang bayan by the President through the Secretary of Local Government by virtue of E.O. No. 342, were appointed to the sangguniang bayan whose regular members were elected in the 18 January 1988 local elections and whose terms expired on 30 June 1992. It is to be presumed that they could not have been appointed for a term beyond that of the sangguniang bayan.

o This is evident from both Section 110(3) of B.P. Blg. 337 and Circular No. 89-09 of the Department of Local Government which respectively provide that the term of office of the ABC presidents therein determined is "without prejudice to their term of office as member of the sanggunian to which they were accordingly appointed' and "without prejudice however, to the terms on [sic] their appointments as members of the sanggunian, to which they may be correspondingly be appointed."

Accordingly, while ABC presidents could remain as such after 30 June 1992 because their term of office as ABC presidents have not yet ended, their term of office as members of the Sangguniang Bayan has expired on 30 June 1992.

o It may be recalled that under R.A. No. 6679, the term of office of the punong barangay elected in the 28 March 1989 election (of which election Galarosa was won) for barangay officials was five years commencing on 1 May 1989 and ending 31 May 1994.

2. There is, however, no law which prohibits them from holding over as members of the sangguniang bayan. On the contrary, the aforementioned IRR, prepared and issued by the Oversight Committee upon specific mandate of Section 533 of the Local Government Code, expressly recognizes and grants that hold-over authority to ABC presidents. So while his term of office has expired, Galarosa can stay as member of the Sangguniang Bayan until officers of the Liga are elected.

Be that as it may, following the generally accepted principle that laws shall have prospective effect unless the contrary if expressly provided (Section 19, Chapter 5, Introductory Provisions, Administrative Code of 1987), the applicability of the provisions Section 494 Local Government Code of 1991 (RA 7160) and Article 210 (d) (3), Rule XXIX of the IRR, does not contemplate of the incumbent sanggunian members, appointive or elective.

This principle is buttressed by Article 210 (f), Rule XXIX of the IRR which declares, in part, the "pending election of the presidents of the municipal, city, provincial, and metropolitan chapters of the liga, the incumbent presidents of the association of barangay councils in the municipality, city, province, and Metropolitan Manila shall continue to act as presidents of the corresponding liga chapters under this Rule.

The rule is settled that unless " "holding over be expressly or impliedly prohibited, the incumbent may continue to hold over until some one else is elected and qualified to assume the office."

o The purpose is to prevent the hiatus in the government pending the time when the successor may be chosen and inducted into office. 24 Section 494 of the Local Government Code could not have been intended to allow a gap in the representation of the barangays, through the presidents of the ABC, in the sanggunian.

Since the term of office of the punong barangays elected in the 28 March 1989 election and the term of office of the presidents of the ABC have not yet expired and taking into account the special role conferred upon and the broader powers and functions invested in the barangays by the Code as a basic political unit, a primary planning and implementing unit of government policies in the community, and as forum wherein the collective views of the people may be expressed and considered and where disputes may be amicably settled, it would be in harmony with sound logic to infer that the Code never intended to deprive the barangays of their representation in the sangguniang bayan during the interregnum when the liga has yet to be formally organized with the election of its officers.

SC therefore holds that Galarosa, as president of the ABC of Sorsogon, can legally and validly hold over as a member of the sangguniang bayan of Sorsogon, Sorsogon, until the election of the first set of officers of the liga ng mga barangay, unless he is sooner removed for cause.

Digested by Loraine Saguinsin (A2015)

LOCGOV - #104SB of Barangay Don Mariano Marcos v. Punong Barangay Severino Martinez (2008)Petitioner/s: The Sangguniang Barangay of Barangay Don Mariano Marcos, Municipality of Bayombong Province of Nueva Viscaya Represented by Barangay Kagawad Jose Cenen Santos, Mario Bacud, Walter Francisco, Rosita Sebastian, Laureta Cabauatan, Cecilia Alindayu and Mely SimanganRespondent/s: Punong Barangay Severino Martinez

Doctrine: Sec. 61 LGC provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panlungsod (SP) or Sangguniang Bayan (SB). However, the SP or SB cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Sec. 60 LGC.

Facts: (SC Third Div.; Ponente: Chico-Nazario, J.; Nature: Pet. for Review on Certiorari under Rule 45 Rules of Court)1. Petitioner Sangguniang Barangay (SB) is the legislative body of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya. The SB is the disciplining authority over elective barangay officials pursuant Sec. 61 of R.A. No. 7160 (Local Government Code or LGC).2. Respondent Martinez is the incumbent Punong Barangay of the said local government unit (LGU).3. Sangguniang Barangay

Administrative charge of Dishonesty and Graft and Corruption via a verified complaint: Filed by petitioner against Martinez. o Amended administrative complaint for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act :

Filed by petitioner against Martinez. He was charged as such due to acts he allegedly committed in relation to the barangay’s solid waste management project and seminar/lakbay-aral. It was also alleged that several attempts to discuss said problems during sessions were all in vain because respondent declined to discuss it and would adjourn the session.

o Martinez failed to file an Answer and was declared in default. He was placed under preventive suspension (60 days). o The SB rendered its decision which imposed upon Martinez the penalty of removal from office. This was conveyed to the

Municipal Mayor of Bayombong (Mayor Bagasao) for its implementation. o Mayor Bagasao issued a Memorandum : SB is not empowered to order Martinez’s removal from service. However, the Decision

remains valid until reversed and must be executed by him. For the meantime, he ordered the indefinite suspension of Martinez since the period of appeal had not yet lapsed.

4. RTC, Branch 27, Bayombong, Nueva Vizcaya (The case was initially heard by Br. 28, but later raffled to Br. 27.) Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction : Filed by Martinez

against petitioner, the SB and Mayor Bagasao questioning the validity of its decision. Ruling : The SB of Bayombong exceeded its jurisdiction. The proper courts, and not the petitioner, are empowered to remove an

elective local official from office, in accordance with Sec. 60 of the LGC. Thus, the SB Order removing Martinez from service is void.

Mayor Bagasao cannot prevent Martinez from assuming his office on the basis of a void order. Lastly, Martinez properly availed himself of the remedy of Special Civil Action.

Motion for Reconsideration filed by Petitioner: Denied.

Petitioner’s argument(s): The petitioners ask for the RTC decision to be set aside and for the decision of the SB that Martinez be removed from office to be implemented based on the following.

Administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod (SP) or SB concerned, which can, thereafter, impose a penalty of removal from office. The courts are merely tasked with issuing the order of removal, after the SP or SB finds that a penalty of removal is warranted.

An interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. The RTC, in allowing the petition to be filed before it, created an exception to the doctrine of exhaustion of administrative remedies. If

the SB had no power to remove Martinez from office, then Martinez should have sought recourse from the Sangguniang Panlalawigan.

Respondent’s argument(s): The SB has no jurisdiction over a case involving the removal of a local elective official from office.

Issue/s: W/N the Sangguniang Bayan may remove Martinez (an elective local official) from office. (NO.)

Held/Ratio: 1. Ruling: The instant Petition is denied and the assailed Decision of the Bayombong RTC is affirmed.2. The Sangguniang Bayan may not remove Martinez (an elective local official) from office.

Sec. 60 LGC conferred upon the courts the power to remove elective local officials from office. During the Senate deliberations on the LGC,the legislative intent to confine to the courts (i.e., RTC, the Sandiganbayan and the

appellate courts) jurisdiction over cases involving the removal of elective local officials was evident. Salalima v. Guingona, Jr. : The power to remove elected officials is exclusively vested in the proper courts as expressly provided for in

the last paragraph of Sec. 60 LGC. The Court invalidated Art. 125, Rule XIX of the Rules and Regulations Implementing the LGC of 1991 since the Oversight Committee that prepared the said rules and regulations exceeded its authority when it granted to the “disciplining authority” the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez.

Pablico v. Villapando : The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority.

Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision clearly demotes the courts to nothing more than an

implementing arm of the SP or SB. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Sec. 60 LGC.

Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings. Elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted.

Sec. 61 LGC provides for the procedure for the filing of an administrative case against an erring elective barangay official before the SP or SB. However, the SP or SB cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Sec. 60 LGC. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the RTC.

The most extreme penalty that the SP or SB may impose on the erring elective barangay official is suspension . If it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court.

Other Issue/s:1. Capable of repetition yet evading review: Although Martinez’s term as Punong

Barangay expired upon the holding of the 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court settled the legal question as it is capable of repetition yet evading review.

2. Doctrine of separation of powers: The 1987 Constitution is explicit in defining the scope of judicial power. It establishes the authority of the courts to determine in an appropriate action the validity of acts of the political departments. It speaks of judicial prerogative in terms of duty (Par. 2, Sec. 1, Art. VIII, 1987 Constitution). The doctrine of separation of powers is not absolute in its application. It should be applied in accordance with the principle of checks and balances. The removal from office of elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. The LGUs are not deprived of the right to discipline local elective officials. They are prevented from imposing the extreme penalty of dismissal.

3. Doctrine of exhaustion of administrative remedies: The doctrine of exhaustion of administrative remedies calls for resort first to the

appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review. As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, it is apparent that the SB acted beyond its jurisdiction when it issued the assailed Order removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal Thus, his direct recourse to regular courts of justice was justified.

Castro v. Gloria : Where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. The reason behind providing an exception to the rule on exhaustion of administrative remedies is that issues of law cannot be resolved with finality by the administrative officer.

In Martinez’s petition before the RTC, only a legal question was raised, one that will ultimately be resolved by the courts. Hence, appeal to the administrative officer concerned would only be circuitous and, therefore, should no longer be required before judicial relief can be sought.

Digested by: Shelan Jane C. Teh

CHAPTER IX

LOCGOV - #105Amora, Jr. vs. COMELEC and Olandria (2011)

Doctrine: A petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false.

Facts: Petitioner Sergio Amora, Jr. filed his Certificate of Candidacy (COC) for Mayor of Candijay, Bohol. To oppose Amora, the Nationalist People’s Coalition (NPC) fielded Trygve L. Olaivar for the mayoralty post. Respondent Arnielo S.

Olandria was one of the candidates for councilor of the NPC in the same municipality. Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged that Amora’s COC was not properly

sworn contrary to the requirements of the Omnibus Election Code (OEC) and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his Community Tax Certificate (CTC) to the notary public,

Atty. Granada, instead of presenting competent evidence of his identity. Amora, on the other hand, contends that the Petition for Disqualification is actually a Petition to Deny Due Course or cancel a

certificate of candidacy. Effectively, the petition of Olandria is filed out of time. Amora won the elections. However, COMELEC ruled in favor of Olandria.

Petitioner’s arguments: Petitioner filed this petition for certiorari imputing grave abuse of discretion on the part of COMELEC. Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the purported

ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that Section 73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds

for disqualification, specifically, the qualifications and disqualifications of elective local officials under the Local Government Code (LGC) and the OEC. Thus, Olandria’s petition was filed way beyond the reglementary period of 25 days from the date of the filing of the disputed COC.

Moreover, Amora maintains that his COC is properly notarized and not defective, and the presentation of his CTC to the notary public to whom he was personally known sufficiently complied with the requirement that the COC be under oath.

Respondent’s arguments: Respondent reiterated his arguments above.

Issue: WON Amora is disqualified.

Held/Ratio: NO. it was grave abuse of discretion to uphold Olandria’s claim that an improperly sworn COC is equivalent to possession of a ground for

disqualification Section 68 of the OEC provides:

“SEC. 68. Disqualifications. – Any candidate who, in an action or protest in which he is 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, sub-paragraph 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 a permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the elections laws.”

Section 40 of the LGC provides:SEC. 40. Disqualifications. – The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;(b) Those removed from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;(d) Those with dual citizenship;(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;(f) 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; and(g) The insane or feeble-minded.

The Olandria petition is not based on any of the grounds for disqualification as enumerated in the foregoing statutory provisions. Nowhere therein does it specify that a defective notarization is a ground for the disqualification of a candidate.

A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishment fit for the position of mayor.

Fermin vs. COMELEC: A petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified under

Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC.

Miranda vs. Abaya: A candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a candidate.

Section 2 of the 2004 Rules on Notarial Practice:Sec. 2. Affirmation or Oath. — The term “Affirmation” or “Oath” refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public;(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as defined by these Rules; and(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives.  Thus, the alleged defect in the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance.

Digested by: Vina Villarroya

LOC GOV - # 106 Valles v. COMELEC (2000)

Doctrine: The mere fact that a person is a holder of a foreign passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against his/her claim of Filipino citizenship.

The phrase ‘dual citizenship’ in RA 7160, Section 40(d) and in RA 7854, Section 20 must be understood as referring to ‘dual allegiance’. Persons with mere dual citizenship do not fall under this disqualification.

For candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. A declaration in the COC that one is a Filipino citizen and that he/she will support and defend the Constitution and will maintain true faith and allegiance thereto, which is under oath, operates as an effective renunciation of foreign citizenship.

Petitioner: Cirilo R. VallesPosition not mentioned; he questioned the qualification of Rosalind to run as governor

Respondents: COMELEC Rosalind Ybasco Lopez She ran for governor; her citizenship was questioned

Facts:Rosalind Ybasco Lopez was born in Australia, to the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. At the age of fifteen, she left Australia and came to settle in the Philippines.

In 1952, she was married to Leopoldo Lopez, a Filipino citizen. She continuously participated in the electoral process not only as a voter but also as candidate. She served as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. In the 1992, 1995 and 1998 elections, she ran for governor. Her candidacy was questioned in the three elections on the ground that she is an Australian citizen. The COMELEC dismissed all three petitions for disqualification.

The third petitioner, Cirilo Valles, filed a petition for certiorari before the Supreme Court.

Petitioner’s Arguments:1. Lopez had renounced her Filipino citizenship based on the admitted facts:

a. In 1988, private respondent registered herself with the Bureau of Immigration as an Australian national and was issued Alien Certificate of Registration No. 404695 dated September 19, 1988

b. On even date, she applied for the issuance of an Immigrant Certificate of Residence (ICR)c. She was issued Australian Passport No. H700888 on March 3, 1988

2. On COMELEC’s finding that Lopez had renounced her Australian citizenship and had her Australian passport cancelled, the said acts did not automatically restore her status as a Filipino citizen. For her to reacquire Philippine citizenship, she must comply with the mandatory requirements for repatriation under Republic Act 8171.

3. Coupled with her alleged renunciation of Australian citizenship, she has effectively become a stateless person and as such, is disqualified to run for a public office in the Philippines.

4. Even on the assumption that Lopez had dual citizenship, still, she is disqualified to run for governor of Davao Oriental, citing Section 40 of RA 7160.

5. When citizenship is raised as an issue in judicial or administrative proceedings, the resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the same, citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration.

Respondents’ Counter-Arguments:

1. Lopez is a Filipino citizen and therefore, qualified to run for a public office because: a. Her father is a Filipino citizen, and by virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine

Constitutionb. She was married to a Filipino, thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473c. She renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of

Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manilad. There are the COMELEC Resolutions in EPC No. 92-54 and SPA Case No. 95-066 (two previous cases filed against her), declaring

her a Filipino citizen duly qualified to run for the elective position of Davao Oriental governor

Issue: WON Lopez is disqualified to run for local elective office for being an Australian citizen?

Held: No. Lopez is a Filipino citizen, hence, she is qualified to run for governor.

SC:

1. The Philippine law on citizenship adheres to the principle of jus sanguinis. A child follows the nationality or citizenship of the parents regardless of the place of his/her birth. Lopez was born to Telesforo Ybasco who, based on the organic acts36 existing at that time, is considered a Filipino citizen37.

2. The mere fact that Lopez was a holder of an Australian passport and had an alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express.

a. Aznar vs. COMELEC: an application for an alien certificate of registration does not amount to an express renunciation or repudiation of one’s citizenship

b. Mercado vs. Manzano : the application for an alien certificate of registration and the holding of a foreign passport are mere acts of assertion of foreign citizenship before it is effectively renounced.

c. At the most, private respondent had dual citizenship - she was an Australian and a Filipino, as well.3. Under Commonwealth Act 63, the fact that a child of Filipino parent/s was born in another country has not been included as a ground

for losing one’s Philippine citizenship.4. Mercado vs. Manzano: “dual citizenship” as used in the Local Government Code pertains to dual allegiance.5. The fact that Lopez had dual citizenship did not automatically disqualify her from running for a public office. It was ruled that for

candidates with dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their COC, to terminate their status as persons with dual citizenship.

36 Philippine Bill of 1902 and Jones Law37 Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided therein including their children are deemed to be Philippine citizens

6. On January 15, 1992, Lopez executed a Declaration of Renunciation of Australian Citizenship, duly registered in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11, 1992, the Australian passport of private respondent was cancelled, as certified to by Second Secretary Richard F. Munro of the Embassy of Australia in Manila.

7. The principle of res judicata generally does not apply in cases hinging on the issue of citizenship. However, in the case of Burca vs. Republic, an exception to this general rule was recognized. Res judicata may be applied in cases of citizenship if all of the following are present: 1) a person’s citizenship be raised as a material issue in a controversy where said person is a party; 2) the Solicitor General or his authorized representative took active part in the resolution thereof, and 3) the finding on citizenship is affirmed by the Supreme Court.

Dispositive: Petition DISMISSED. CA Resolutions AFFIRMED.

Digested by: MYD

LOCGOV - 107MORENO v. COMELEC (2006)

The phrase “within two (2) years after serving sentence” should be interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment – the placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40 (a) of the LGC.

During the period of probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.

FACTS: Norma Mejes filed petition to disqualify Moreno from running for Punong Barangay in 2002 elections in Barangay Cabugao, Daram, Samar

with COMELEC. The petition was based on the fact that Moreno was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to

suffer imprisonment of 4 months and 1 day to 2 years and 4 months by the RTC. However, Moreno was placed on probation instead of serving his sentence. Later, trial court discharged Moreno's probation. Comelec division resolved to disqualify Moreno based on findings of investigating officer. Comelec en banc affirmed.

PETITIONER’s Position: The termination of his probation restored to him all civil rights he lost as a result of his conviction, including the right to vote and be voted for in the 2002 elections.

He applied for and was granted probation within the period specified therefor. As a result, he never served a day of his sentence. The disqualification under Section 40 (a) of the LGC does not apply to him.

a) The Probation Law should be read as an exception to the LGC because it is a special law which applies to probationers.b) The disqualification under the LGC applies only to those who have served their sentence and not to probationers because

probationers do not serve the adjudged sentence.c) Even assuming that he is disqualified, his subsequent election as Punong Barangay constitutes an implied pardon of his previous

misconduct.

Relief Sought: Reconsideration of Comelec en banc Resolution disqualifying him from running for the elective office of Punong Barangay of Barangay Cabugao, Daram, Samar

Legal Basis:Sec. 16 of the Probation Law of 1976Termination of Probation. After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted.The probationer and the probation officer shall each be furnished with a copy of such order.Section 40 (a) of the LGCDisqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;… xxx …

RESPONDENT’s Opposition:Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thereafter. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office.

Legal Basis:Section 40 (a) of the LGC (See above)

Dela Torre v. Comelec: Conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40 (a) of the LGC subsists and remains totally unaffected notwithstanding the grant of probation.

ISSUE: WON Moreno is disqualified from running for Punong Barangay despite being convicted of the crime of Arbitrary Detention

HELD/RATIO:During the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.

The period within which a person is under probation cannot be equated with service of the sentence adjudged. The accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period imposed upon Moreno were suspended upon the grant of probation.

Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.

Moreno's sentence was NOT served

Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.

Those who have not served their sentence by reason of the grant of probation should not be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code has not even begun to run.

The LGC does not specifically disqualify probationers from running for a local elective office.

The disqualification under Sec. 40(a) LGC covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification.

Digested by: Baldueza, Luz

LOCGOV - 108Rodriguez vs. COMELEC (1996)

Doctrine:A fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed.

Facts:

Rodriguez (petitioner) won against Marquez (respondent) for the gubernatorial position in the 1992 elections. Marquez filed a petition for quo waranto before COMELEC. The ground was that Rodriguez was a “fugitive from justice”, a ground for

disqualification/ineligibility under Section 40(e) of the LGC. According to Marquez, there were pending charges, filed on November 12, 1985 in the US against Rodriguez, for fraudulent insurance claims, grand theft and attempted grand theft of personal property.

Marquez petition: COMELEC dismissed the QW petition. Marquez filed a certiorari case before the SC (Marquez petition). In the Marquez petition, the SC defined a “fugitive from justice” as not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. The SC did not rule on whether or not the Rodriguez was a fugitive from justice but it remanded the case to COMELEC to decide on this issue.

In the 1995 elections, Rodriguez and Marquez were again rivals for the gubernatorial position. Marquez filed a petition for disqualification before the COMELEC on the ground that Rodriguez is a “fugitive from justice”. During the filing of the disqualification case, the MARQUEZ petition was still pending in the SC.

The COMELEC consolidated the QW petition [NB: At this point, SC had already remanded the Marquez decision to COMELEC] and the disqualification case.

o COMELEC Consolidated Resolution: The COMELEC found Rodriguez to be a "fugitive from justice" based on 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles Municipal Court against Rodriguez and 2. an authenticated copy of the felony complaint. He is therefore disqualified from running for governor and his certificate of candidacy is set aside.

Rodriguez won the 1995 elections. COMELEC suspended the proclamation of Rodriguez. The COMELEC Consolidated Resolution and the resolution suspending his

proclamation gave rise to the instant petition for certiorari. The COMELEC filed a report, in compliance with the order of the court, entitled “xxx COMMISSION'S EVALUATION": Rodriguez is NOT

a "fugitive from justice" as defined in the main opinion of the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution.

Petitioner’s arguments:For Issue 1:NB: The arguments of Rodriguez were not expressly mentioned in the SC decision. The following are his arguments in the other proceedings:

MR in the Marquez petition: In the MR, Rodriguez attached a certification from the Commission on Immigration showing that he (Rodriguez) left the US on June 25, 1985 — roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied this MR.

Answer in the COMELEC proceedings in the Consolidated QW and disqualification cases: Long before the felony complaint was allegedly filed, Rodriguez was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally.

Respondent’s arguments:For Issue 1:

NB: The COMELEC flip-flopped in the proceedings. The COMELEC initially declared Rodriguez as a fugitive from justice in the Consolidated Resolution. It then changed its position in the “xxx Commission’s Evaluation.”

Consolidated Resolution position: FUGITIVE FROM JUSTICE Rodriguez’s allegation in the Answer was not even fortified with any attached document to show when he left the United States and

when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived

The fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent.

Commission’s Evaluation: NOT A FUGITIVE FROM JUSTICE Intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because

evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985).

For Issue 2: The definition of the term 'fugitive from justice' contemplates other instances not explicitly mentioned in the main opinion in the

Marquez petition. From the rulings in King v. Noe and Hughes v. Pflanz, the objective facts sufficient to constitute flight from justice are: (a) a person

committed a 'crime' or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode.

Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from justice.’ Mere commission of a 'crime' without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition.

Attention is directed at the use of the word 'crime' which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in the Marquez decision: The disqualification for being a fugitive does not involve the issue of the

presumption of innocence, the reason for disqualification being that a person 'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his ‘flight from justice.

King v. US: It is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction.

Therefore, it appears that the mere fact there are pending charges in the US and that petitioner Rodriguez is in the Philippines make him a fugitive from justice.

Issue 1:Whether Rodriguez is a fugitive from justice (No)

Held/Ratio: Definition in Marquez decision: Includes not only those who flee after conviction to avoid punishment but likewise who, after being

charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction.

And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez arrived in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 and June 26 of 1995, which arrival preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost five (5) months.

It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak of yet at such time.

The SC quoted pertinent portions from the COMELEC’s decision:

o A voluminous copy of an investigation report on the alleged crimes committed, which led to the filing of the charges, was offered for admission to show the intent of Rodriguez to evade the law. However, investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of those who would be charged. The conclusion that it was impossible for Rodriguez not to have known of said investigation of such magnitude is misleading.

o That it was 17 days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. After the EDSA Revolution, Rodriguez served as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. He was elected governor in 1988, 1992 and 1995.

o Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice.

o The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines.

o Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission.

o However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate

to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office.

Issue 2:Whether one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight (No)

Held/Ratio: The "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from justice" (which is at variance with

the MARQUEZ Decision)

People v. Pinuila: Whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court.

The same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the Marquez Decision and the instant petition. The Marquez Decision was an appeal from Marquez’s QW petition before the COMELEC. The instant petition is also an appeal from the QW petition although the COMELEC resolved the latter jointly with the disqualification case.

Therefore, what was irrevocably established as the controlling legal rule in the Marquez Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize.

Dissenting opinion: J. Vitug Congress must have intended for the ordinary connotation of the phrase “fugitive from justice” to prevail. It might be understood as

referring to one who, having committed or being accused of having committed a crime in one jurisdiction, cannot be found therein or is absent for any reason from that jurisdiction that thereby forestalls criminal justice from taking its due course.

Digested by: Delfin, Estelle Marielle

LOCGOV – 109Mercado v. Manzano (1990)

Doctrine:

1. A candidate still has interest in the matter of litigation if at the time he sought to intervene there was no proclamation yet.2. Dual citizenship under §40 of the LGC means dual allegiance3. By filing a certificate of candidacy, Manzano elected Philippine citizenship and in effect renounced his American citizenship.

Facts:Manzano was born in San Francisco, California to Filipino parents. As such, he acquired US citizenship by operation of the US constitution and laws under the principle of jus soli. He was also a Filipino citizen by operation of the 1935 Constitution since he was born to Filipino parents.

During the May 11, 1998 elections, Manzano, Mercado, and Daza ran for vice mayor for the city of Makati where Manzano emerged as the winner. Manzano’s proclamation was, however, suspended, in view of a pending petition for disqualification by a certain Mamaril. COMELEC’s 2nd Division in its resolution dated May 7, 1998 granted the petition and ordered the cancellation of the certificate of candidacy of Manzano on the ground that he is a dual citizen and hence, disqualified from running for any elective local position pursuant to §40 of the LGC. COMELEC en banc reversed the decision of the 2nd Division and found for Manzano.

Petitioner’s arguments: 1. Congress, through §40 of the LGC has commanded in explicit terms the ineligibility of persons possessing dual allegiance to hold local

elective office.2. Merely taking part in the Philippine elections is not sufficient evidence of renunciation. In any event, the alleged renunciation was

made when Manzano was already 37 years old, and as such, it was ineffective since it should have been made when he reached the age of majority.

Respondent’s arguments: 1. Under the following provisions of Rule 8 of the Rules of Procedure of the COMELEC, Mercado has no right to intervene:

Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. xxx

Section 3. Discretion of Commission. In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor’s rights may be fully protected in a separate action or proceeding.

Mercado has neither legal interest in the matter of litigation nor an interest to protect because he is a defeated candidate for the vice-mayoralty post of Makati City who cannot be proclaimed even if Manzano be ultimately disqualified by final and executory judgment.

2. COMELEC: By participating in Philippine elections in 1992, 1995, and 1998, Manzano has effectively renounced his US citizenship under American law

Issue/s:

6) Whether or not Mercado has personality to bring the suit7) Whether or not Manzano may run for local elective office8) Whether or not Manzano has elected Philippine citizenship

Held/Ratio:

5. Yes. At the time the motion for leave to file intervention was filed there had been no proclamation of the winner of the vice-mayoralty election and Mercado’s purpose was precisely to have Manzano disqualified from running for an elective local position. If Mamaril, a registered voter of Makati City can file a petition for Manzano’s disqualification, so can Mercado.

Mercado’s interest in the matter in litigation is not any less because he filed the motion after Manzano had been shown to have garnered the highest number of votes among the candidates. Mercado’s right to intervene at that stage of the proceedings for the disqualification is clear from §6 of RA 6646 (Electoral Reforms Law of 1987) which provides that:

“Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted.  If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.”

Labo v. COMELEC does not apply in this case since the same applies only to cases in which the election of the respondent is contested and the question is whether one who placed second to the disqualified may be declared the winner.

The failure of the COMELEC En Banc to resolve petitioner’s motion for intervention was tantamount to a denial of the motion, which justified the filing of this petition for certiorari.  As the COMELEC En Banc decided the merits of the case, the present petition properly

deals not only with the denial of petitioner’s motion for intervention but also with the substantive issues respecting private respondent’s alleged disqualification on the ground of dual citizenship.

6. Yes, since dual citizenship is not a ground for disqualification.

Dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by said states. Such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli.   Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.

On the other hand, dual allegiance of citizens, under Art. IV, §5 of teh Constitution, is inimical to the national interest and should be dealt with by the law.

Commissioner Blas Ople who insisted on the inclusion of the said provision explained its necessity: dual allegiance is not dual citizenship... When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance...

In including the said provision in the Constitutional Commission, the concern was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence the phrase “dual citizenship” in RA 7160 must be understood as referring to dual allegiance.

Unlike those with dual allegiance, who must be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship. By electing Philippine citizenship, the candidate at the same time, forswear all allegiance to the other country of which they are also citizens, and thereby terminate their status as dual citizens regardless of whether from the point of view of the foreign state, such an individual has not effectively renounced his foreign citizenship.

7. By filing a certificate of candidacy, Manzano elected Philippine citizenship and in effect renounced his American citizenship.

The COC contained the ff statements under oath:6. I AM A FILIPINO CITIZEN (STATE IF “NATURAL-BORN” OR “NATURALIZED”)     NATURAL-BORN

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF  MAKATI, PROVINCE OF NCR .

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED.  I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION.  I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

Frivaldo v. COMELEC: By the laws if the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor...

Although Manzano admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the US in April 22, 1997, this does not mean that he is still not a Filipino. (Finding was made by applying mutatis mutandis the case of Aznar v. COMELEC)

Digested by: Leaño, Maria Ofelia S.

LOCGOV - #110ABELLA VS. COMELEC (1991)

Facts: Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that Larrazabal was a resident of Ormoc City like her husband who was earlier disqualified from running for the same office.

The COMELEC referred the case to its Law Department for proper action on the ground that the petition was a violation of Section 74 of the Election Code and, pursuant to it rules, should be prosecuted as an election offense under Section 262 of the Code. When such issued was raised to the Supreme Court, the court held that the pertinent provision is Section 78 in relation to Section 6 of R.A. No. 6646.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any 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.Section 6 of R.A. 6646 states as follows:Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and,

upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. ...xxx xxx xxxThe above-stressed circumstances should explain the necessity for continuing the investigation of the private respondent's challenged disqualification even after the election notwithstanding that such matter is usually resolved before the election. Independently of these circumstances, such proceedings are allowed by Section 6 of RA. 6646 if for any reason a candidate is not declared by final judgment before an election to be disqualified ...

In line with the Court's directive, the COMELEC conducted hearings to resolve the qualification of Larrazabal on the basis of two (2) legal issues raised by Silvestre T. de la Cruz namely, Larrazabal's lack of legal residence in the province of Leyte and her not being a registered voter in the province, as required by Title II, Chapter I, Section 42, B.P. Blg. 337, in relation to Article X, Section 12 of the Constitution, to wit:

Sec. 42. Qualification. — (1) An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Pilipino, or any other local language or dialect.xxx xxx xxxSec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor of Kananga, Leyte.

Petitioner’s Arguments: (Larrazabal)

On the issue of Residence

Larrazabal avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte.  She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else." She argued that her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erase or remove her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City.

Alternative ArgumentThat being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.Section 89 of Republic Act No. 179 creating the City of Ormoc provides:Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte — The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanized city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. While a Component City whose charter prohibits its voters from participating in the elections for provincial office, is indeed independent of the province, such independence cannot be equated with a highly urbanized city; rather it is limited to the administrative supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise prohibited from running for the provincial offices."Respondent’s Arguments:

On the issue of Residence

“Petitioner has established her residence at Ormoc City from 1975 to the present and not at Kananga, Leyte. Her attempt to purportedly change her residence one year before the election by registering at Kananga, Leyte to qualify her to ran for the position of governor of the province of Leyte clearly shows that she considers herself already a resident of Ormoc City. The petitioner did not present evidence to show that she and her husband maintain separate residences, she at Kananga, Leyte and her husband at Ormoc City.”

 ISSUE #1: WON the petitioner was qualified to run as governor? (Does the prohibition to vote likewise prohibit the voters to run for provincial offices) No. Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and

entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official."   ISSUE #2: WON the candidate who got the second highest vote may be proclaimed as governor when the candidate for such position was disqualified No. The Supreme Court held that while it is true that the first petition was to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the Abella lost in the election. He was repudiated by the electorate. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election.The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion. 

Digested by: Regina C. Rosales

LOCGOV - #111FRIVALDO vs. COMMISSION ON ELECTIONS (1996)

Doctrine: The citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected.

Facts:

Juan Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon. Raul R. Lee filed a petition with the Comelec praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines," and that his Certificate of Candidacy be cancelled. The Second Division of the Comelec promulgated a Resolution declaring that Frivaldo as disqualified to run for the Office of Governor of Sorsogon on the ground that he was not a citizen of the Philippines. Frivaldo’s certificate of candidacy was cancelled.

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections. On May 11, 1995, the Comelec en banc affirmed the Resolution of the Second Division. The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes showed that Frivaldo garnered the highest number of votes, followed by Raul Lee.

Lee filed a supplemental petition praying for his proclamation as the duly-elected Governor of Sorsogon. The Comelec directed the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate. Accordingly, Lee was proclaimed governor of Sorsogon.

Frivaldo filed with the Comelec a new petition praying for the annulment of the proclamation of Lee and for his own proclamation. Alleging that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted. As such, when the said order (dated June 21, 1995) (of the Comelec) was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor. In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec, the Vice-Governor— not Lee — should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution holding that Lee, not having garnered the highest number of votes, was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, having garnered the highest number of votes, and having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725, is qualified to hold the office of governor of Sorsogon

Lee filed a motion for reconsideration which was denied by the Comelec. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

Petitioner’s arguments: Despite lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections. Moreover, he claims having successfully reacquired citizenship by repatriation under

P.D. No. 725. That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. He insists that he—not Lee—should have been proclaimed as the governor when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship.Frivaldo argues that he filed his application for repatriation with the Office of the President in Malacanang Palace on August 17, 1994. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application

Respondent’s arguments: First, Lee argues P.D. No. 725 had "been effectively repealed," asserting that "then President Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions No. 270 dated April 11, 1975, as amended."

Second. Lee argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 and approved in just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits thereof."

Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to Public office" Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not — and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court.

Issue/s:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

Held/Ratio: YES

The Local Government Code expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor. As Frivaldo had been declared by this Court as a non-citizen, it is incumbent upon him to show he reacquired citizenship, that he possesses the qualifications prescribed under R. A. 7160. Under Philippine law, citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation

Anent Lee’s first argument, the memorandum dated March 27, 198724 cannot be construed as a law authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones and a repeal may be express or implied. No express repeal was made because President Aquino in her memorandum did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. She did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist.

With regard to Lee’s second argument, the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. The requirements of repatriation under P.D. No. 725 are not difficult to comply with. This is not unusual since in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. Frivaldo, was a natural-born citizen who faithfully served his country a prior to his naturalization in the United States — a naturalization made only to escape a dictatorship — and who, after the fall of the dictator, wasted no time in returning to his country of birth to offer once more his services to his people.

Regarding Lee’s third argument, the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).

The difficult objection is that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one — if he was not a citizen at the time of such registration.

The answer lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. The voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration—not the actual voting—is the core of this "qualification." In other words, the law's

purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern — and not anywhere else.

Frivaldo emphasized—and Lee has not disputed — that he was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration. His counsel maintained that Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995.

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

Another reason why the issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code gives any voter the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.

Generally, under the Civil Code, laws shall have no retroactive effect, unless the contrary is provided. But an exception is when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.

But how can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994? It is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events —

i.e., situations and transactions existing even before the law came into being — in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo—having already renounced his American citizenship — was, may be prejudiced for causes outside their control.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship—long before May 8, 1995. At best, Frivaldo was stateless in the interim — when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship.

Dissenting opinion, Davide J:

I depart from the view in the ponencia that Section 39 of the Local Government Code of 1991 does not specify the time when the citizenship requirement must be met, and that it suffices that citizenship be possessed upon commencement of the term of the office involved;

Section 39 prescribes the qualifications of elective local officials and not those of an elected local official. These adjectives are not synonymous. Elective local officials refers to the nature of the office, which requires the process of voting by the electorate involved; while elected local official refers to a victorious candidate for an elective office. The section unquestionably refers to elective — not elected— local officials. It falls under Title Two entitled ELECTIVE OFFICIALS; under Chapter 1 entitled Qualifications and Election, and paragraph (a) thereof begins with the phrase "An elective local official," while paragraphs (b) to (f) thereof speak of candidates.

Thus, Section 39 refers to no other than the qualifications of candidates for elective local offices and their election. Hence, in no way may the section be construed to mean that possession of qualifications should be reckoned from the commencement of the term of office of the elected candidate.

It is not true that Section 39 does not specify the time when the citizenship requirement must be possessed. I submit that Philippine citizenship must be possessed, not merely at the commencement of the term, but at the latest on the election day itself. Section 39 is not ambiguous nor uncertain that it meant this to be, as one basic qualification of an elective local official is that he be "A REGISTERED VOTER IN THE BARANGAY, MUNICIPALITY, CITY OR PROVINCE WHERE HE INTENDS TO VOTE." This means that he possesses all the qualifications to exercise the right of suffrage. The fundamental qualification for the exercise of this sovereign right is the possession of Philippine citizenship. No less than the

Constitution makes it the first qualification, as Section 1, Article V thereof provides that “Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, x x x”

Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) expressly provides for the qualifications of a voter.:

SEC. 117. Qualifications of a voter — Every citizen of the Philippines, not otherwise disqualified by law, xxx

This Court twice voided Frivaldo's election as Governor in the 1988 and 1992 elections on the ground that for lack of Philippine citizenship—he being a naturalized american citizen—he was DISQUALIFIED to be elected as such and to serve the position. This disqualification nullified Frivaldo's registration as a voter and declared it void ab initio. Our judgments were self-executory. Thus, he was never considered a registered voter for the elections of May 1992, and May 1995, as there is no showing that Frivaldo registered anew as a voter for the latter elections. Even if he did —in defiance of his disqualification—this did not make him a Filipino citizen, hence it was equally void ab initio.

The second reason in the ponencia as to why the citizenship disqualification should be reckoned not from the date of the election nor the filing of the certificate of candidacy, but from the date of proclamation, is that quo warranto is not the sole remedy available to question a candidate's ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of a petition to deny due course to or cancel the certificate of candidacy on the ground that any material representation contained therein is false. Section 74, in turn, requires that the person filing the certificate of candidacy must state, inter alia, that he is eligible for the office, which means that he has all the qualifications (including citizenship) and none of the disqualifications as provided by law. The petition under Section 78 may be filed at any time not later than 25 days from the filing of the certificate of candidacy.

Further, Frivaldo's repatriation may not be given retroactive effect. Such goes against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege.

Under P.D. No. 725, the steps to reacquire Philippine citizenship by repatriation under the decree are: (1) filing the application; (2) action by the committee; and (3) taking of the oath of allegiance if the application is approved. It is only UPON TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to have reacquired Philippine citizenship. If the decree had intended the oath taking to retroact to the date of the filing of the application, then it should not have explicitly provided otherwise.

P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the marriage of a Filipina to an alien and through naturalization in a foreign country of natural-bom Filipino citizens. It involves then the substantive right of citizenship. It means, in reality, the acquisition of "a new right,". Therefore, it may not be said to merely remedy or cure a defect considering that one who has lost Philippine citizenship does not have the right to reacquire it. The Constitution provides that citizenship, once lost, may only be reacquired in the manner provided by law. Moreover, it has also been observed that the idea is implicit from many of the cases that remedial statutes are statutes relating to procedure and not substantive rights.

If for the sake of argument, P.D. No. 725 is a curative or remedial statute, it would be an inexcusable error to give it a retroactive effect since it explicitly provides the date of its effectivity (June 5, 1975)

Digested by: Andrew Velasco

LOCGOV - 112Labo v COMELEC (1992)

Doctrine: The ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected unless the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate.

Facts:

Ramon Labo, Jr., and Roberto Ortega filed their candidacy for mayor of Baguio City in the last May 11, 1992.

A disqualification proceeding (GR No. 105384) against Labo was filed by Ortega before the COMELEC seeking to cancel Labo's certificate of candidacy on the ground that Labo made a false representation when he stated therein that Labo is a "natural-born" citizen of the Philippines. Ortega presented (on May 4 1992) the decision of this Court in Labo v. COMELEC (1989) declaring Labo not a citizen of the Philippines as evidence.

Summons were issued on March 27, 1992 followed by a telegram on April 1, 1992. However, Labo failed to file his answer within the required period given. He submitted his Answer only after Ortega already presented his evidence.

(May 9, 1992) COMELEC ruled in favour of Ortega and cancelled LAbo’s certificate of candicacy. o (May 10, 1992) COMELEC later clarified that Labo can still be voted upon in the May 11 elections because the Order cancelling

his COC will only be final and executory 5 days after its promulgation.o (May 13, 1992) COMELEC also resolved, motu proprio to suspend the proclamation of Labo in the event he wins in the

elections for the City Mayor of Baguio. (May 15, 1992) petitioner Labo filed the instant petition for review docketed as G.R. No. 105111 with prayer, among others, for the

issuance of a TRO to set aside the May 9, 1992 resolution of respondent Comelec; to render judgment declaring him as a Filipino citizen; and to direct respondent Comelec to proceed with his proclamation in the event he wins in the contested elections.

Ortega’s urgent motion filed with the COMELEC for the implementation of its May 9, 1992 resolution cancelling Labo's certificate of candidacy was denied because of Labo’s pending petition with the SC.

o Ortega, thereafter, filed a petition for mandamus praying for the implementation of COMELEC’s May 9, 1992 resolution.

Petitioner Labo’s arguments: He is a Filipino citizen. There was a lack of trial on the merits as well as the lack of opportunity to be heard in Labo v. COMELEC (1989). Vance v. Terrazas(1980) held that in proving expatriation, an expatriating act an intent to relinquish citizenship must be proved by a

preponderance of evidence.o There was no finding was made either by the Commission on Immigration or the Comelec as regards his specific intent to

renounce his Philippine citizenship Comelec abbreviated proceedings in SPA No. 92-029 (petition for the cancellation of his COC) which denied him adequate

opportunity to present a full-dress presentation of his case: a) only one (1) day was set for hearing of the case,  i.e., May 4, 1992; b)

two days later, May 6, 1992 the hearing was set; c) instead of holding a hearing, the Comelec issued the questioned resolution on May 9, 1992.

Section 72 of the Omnibus Election Code "operates as a legislatively mandated special repatriation proceeding" and that it allows his proclamation as the winning candidate since the resolution disqualifying him was not yet final at the time the election was held.

He reacquired his Filipino citizenship because of his application for reacquisition of Philippine citizenship filed before the Office of the Solicitor General pursuant to PD 725 and Letter of Instruction No. 270.

Respondent Ortega’s arguments: Since the SC did not issue a TRO as regards the May 9, 1992 resolution of respondent Comelec cancelling Labo's certificate of

candidacy, said resolution has already become final and executory. Because of said finality, the candidate receiving the next highest number of votes should be declared Mayor of Baguio City.

o If the name of respondent LABO were deleted from the list of candidates, herein petitioner (Ortega) will be entitled to be proclaimed as Mayor-elect of Baguio City.

Issue/s:(GR No. 105111)

1. WON COMELEC abbreviated proceedings (cancellation of Labo’s COC) thereby denying Labo of adequate opportunity to present a full-dress presentation of his case.

2. WON COMELEC can suspend the proclamation of Labo in the event that he wins.3. WON Labo has reacquired his Filipino citizenship.

(GR No. 105384)4. WON the May 9, 1992 COMELEC Resolution cancelling Labo’s COC can be implemented.5. WON Ortega, as the candidate receiving the next highest number of votes, should be proclaimed as the winner because of the

disqualification of Labo.

Held/Ratio:

1. No. Summons were issued by respondent Comelec as early as March 27, 1992 followed by a telegram on April 1, 1992. Came April 15,

1992, petitioner Ortega filed a motion to declare petitioner Labo in default. Over-extending him (Labo) the benefit of due process, respondent Comelec issued another order dated April 24, 1992, this time directing the Acting City Election Registrar of Baguio to personally serve the summons. The alleged delay in the resolution of SPA No. 92-029 can only be attributed to petitioner Labo and no one else.

Labo also failed to offer any evidence to show existing facts and supervening events that preclude the application of the Labo (1989) decision.

The Vance v Terrazas case was also raised by Labo in the 1989 case. Having been previously passed upon, the Court sees no pressing need to re-examine the same

2. Yes. Sec. 72 of the Omnibus Election Code has already been repealed by Sec. 6 of RA No. 6646 which states that:

“Sec. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or the Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied)

3. No. CA No. 63, as amended by P.D. No. 725, provides that Philippine citizenship may be reacquired by a direct act of Congress, by

naturalization, or by repatriation.o It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these

methods. o Labo’s election does not automatically restore his Philippine citizenship.

o Despite his application for repatriation filed with the OSG, the same was not yet acted upon by the Committee on Naturalization.

o In the absence of any official action or approval by the proper authorities, a mere application for repratriation, does not, and cannot, amount to an automatic reacquisition of the applicant's Philippine citizenship.

4. Yes. At the time petitioner Labo filed his petition (GR No. 105111) on May 15, 1992, the May 9, 1992 resolution of respondent Comelec

cancelling his (Labo's) COC had already become final and executory on May 14, 1992 based on Sec. 78 of the Omnibus Election Code 38 and Sec. 3, Rule 39 of the Comelec Rules of procedure39

During the interim, no restraining order was issued by this Court.

38Sec. 78. Petition to deny due course or to cancel a certificate of candidacy —xxx xxx xxx

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties, be final and executory unless stayed by the Supreme Court. (emphasis supplied)

39Sec. 3. Decisions final after five days. — Decisions inpre-proclamation cases and petitions to deny due course to or cancel certificates of candidacy, to declare a candidate as nuisance candidate or to disqualify a candidate, and to postpone or suspend elections shall become final and executory after the lapse of five (5) days from their promulgation, unless restrained by the Supreme Court. (emphasis supplied)

Labo, not being a Filipino citizen, lacks the fundamental qualification required for the contested office under Section 39 of the LGC40

The fact that he was elected by the majority of the electorate is of no moment. o (Frivaldo v. Commission on Elections (1989): The qualifications prescribed for elective office cannot be erased by the

electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity to any other state.

5. No. The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as the candidate with the next highest

number of votes to proclamation as the Mayor of Baguio City.

The rule is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

o While Ortega may have garnered the second highest number of votes for the office of city mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo was overwhelmingly voted by the electorate for the office of mayor in the belief that he was then qualified to serve the people of Baguio City and his subsequent disqualification does not make respondent Ortega the mayor-elect.

o Abella v. Comelec (1991):“…The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes was counted and she obtained the highest number of votes. The net effect is that petitioner lost in the election. He was repudiated by the electorate. . . . What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position cannot assume the vacated position.” (emphasis supplied)

BUT The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.

o It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact.

40Sec. 39. Qualifications. — (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (emphasis supplied)

As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor, in accordance with Sec. 44 of the Local Government Code41.

Digested by: Dinnah Alconera

LOCGOV -113Jalosjos vs. COMELEC (October 9, 2012)Doctrine: A person who was sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence is ineligible to run for mayor. If he makes a material misrepresentation in his certificate of candidacy as to his eligibility to run for public office when he was convicted for said crime a petition for cancellation of certificate of candidacy may be filed and granted by the COMELEC.

Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy.

Facts:

Both Jalosjos and Cardino were candidates for the position of Mayor of Dapitan City, Zamboanga del Norte in the May 2010 elections. On December 2009 Cardino filed a petition under section 78 of the Omnibus Election Code to cancel the certificate of candidacy on the ground of false misrepresentation when he declared under oath that he was eligible to run for mayor.

Jalosjos had been convicted by final judgment for robbery. He has not yet served sentence for this although he claims that he is under probation.

COMELEC approved the cancellation of certification of candidacy. The certificate of compliance of probation was fraudulently issued. He is disqualified under Sec. 40(a) of the LGC. COMELEC EN Banc denied Jalosjos’ MR

Jalosjos was ousted from the position of Mayor because of this decision.

41Chapter 2. Vacancies and Succession

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. . . . (emphasis supplied)

These are two special civil actions for certiorari. Jalosjos seeks to annul the resolution of the COMELEC which ordered the cancellation of his certificate of candidacy. Cardino questions the resolution which applied to rule on succession of the LGC in filling the vacancy of the Mayor of Dapitan created by the cancellation of Jalosjos’ certificate of candidacy.

Jalosjos resigned, however this did not render the issue moot and academic because it was not only Jalosjos’ eligibility to run which was at issue but also the effects of such cancellation and COMELEC’s constitutional duty to enforce and administer all laws.

Petitioner’s arguments: Jalosjos:

COMELEC committed grave abuse of discretion when it (1) ruled thatt Jalosjos’ probation was revoked; (2) ruled that Jalosjos was disqualified to run as and (3) cancelled Jalosjos’ certificate of candidacy without making a finding that Jalosjos committed a deliberate misrepresentation as to his qualifications, as Jalosjos relied in good faith upon a previous COMELEC decision declaring him eligible for the same position from which he is now being oustedthe Resolutions dated 10 May 2010 and 11 August 2010 were issued in violation of the COMELEC Rules of Procedure.

Cardino: Comelec committed grave abuse of discretion when it said in its resolution that the LGC rules on succession should apply.

ISSUE: W/N: Jalosjos made a material misrepresentation in his COC as to hiseligibility to run for mayor and should be disqualified. YES W/N: Cardino should be proclaimed mayor based on the rules of succession under the LGC. YES

Held/Ratio: The perpetual special disqualification against Jalosjos arising from his criminal conviction by final judgment is a material fact

involving eligibility which is a proper ground for a petition under Sec78 of the Omnibus Election Code Jalosjos’ certificate of candidacy was void from the start since he was not eligible to run for any public office at the time he filed his

certificate of candidacy Jalosjos was never a candidate at any time, and all votes for Jalosjos were stray votes. Cardino, as the only qualified candidate garnered the highest number of vote. Sec 74 enumerates what should be stated in the certificate of candidacy which includes his eligibility to run for said position Sec78: Petition to deny due course to or cancel the certificate of candidacy -  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

A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under Section 12 of the Omnibus Election Code.

It is also a material fact involving the eligibility of a candidate under Sections 74 and 78 of the Omnibus Election Code.

Thus, a person can file a petition under Section 40 of the Local Government Code OR under Sec. 12 or Sec. 78 of the Omnibus Election Code.42 Sec. 40(a) disqualifies Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence.

The penalty of prisión mayor automatically carries with it the accessory penalties of temporary absolute disqualification and perpetual special disqualification.

Lacuna vs. Abes: Temporary absolute disqualification disqualifies the convict for public office and for the right to vote, such disqualification to last only during the term of the sentence. Perpetual special disqualification deprives the convict of the right to vote or to be elected to or hold public office perpetually.

Perpetual special disqualification takes effect immediately once the judgment of conviction becomes final.  The denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but on a finding that the candidate

made a material representation that is false, which may relate to the qualifications required of the public office he/she is running for Robbery is not one of the offenses enumerated under Sec. 68. All the offenses enumerated in Section 68 refer to offenses under the

Omnibus Election Code.  Codilla, Sr. v. de Venecia: offenses punished in laws other than in the Omnibus Election Code cannot be a ground for a petition under

Section 68 The jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the Omnibus Election Code.

All other election offenses are beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in nature Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer is disqualified or declared

ineligible should be limited to situations where the certificate of candidacy of the first-placer was valid at the time of filing but subsequently had to be cancelled because of a violation of law that took place, or a legal impediment that took effect, after the filing of the certificate of candidacy.

42Section 40, Local Government CodeDisqualifications. - The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;(b) Those removed from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;(d) Those with dual citizenship;(e) Fugitives from justice in criminal or non-political cases here or abroad;(f) 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; and(g) The insane or feeble-minded.

Section 12, Omnibus Election Code:. Disqualifications. — 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 was 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

The 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

Section 68, Omnibus Election Code:. Disqualifications. — Any candidate who, in an action or protest in which he is a party is declared by final decision by 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, sub-paragraph 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

Dissent: BRION the case should be resolved under the rules of disqualification, not from the point of a cancellation of a CoC.

To disqualify, in its simplest sense, is (1) to deprive a person of a power, right or privilege; or (2) to make him or her ineligible for further competition because of violation of the rules.13 It is in these senses that the term is understood in our election laws.

Thus, anyone who may qualify or may have qualified under the general rules of eligibility applicable to all citizens (Section 74 of the OEC) may be deprived of the right to be a candidate or may lose the right to be a candidate (if he has filed his CoC) because of a trait or characteristic that applies to him or an act that can be imputed to him as an individual, separately from the general qualifications that must exist for a citizen to run for a local public office.

Thus the law of succession of public office should not apply.

Digested by: Jamie Angeli T. MatiasLOCGOV – 114Mayor Talaga v COMELEC and Alcala

Doctrine: The filing of a certificate of candidacy is a condition sine qua non43 in order for there to be a valid candidacy. In case of vacancy in a position there is an order of succession provided for in the Local Government Code.

Facts: In the 2010 elections candidates Ramon Talaga and Philip M. Castillo filled their certificates of candidacy (CoCs) for the position of Mayor of Lucena City. Castillo then filed a petition to cancel Talaga’s CoC on the ground that he already served 3 consecutive terms and thus violating Constitutional mandate. Ramon countered that that the Sandiganbayan had preventively suspended him from office during his second and third terms; and that the three-term limit rule did not then apply to him pursuant to the prevailing jurisprudence to the effect that an involuntary separation from office amounted to an interruption of continuity of service for purposes of the application of the three-term limit rule.

In the meantime, the Court promulgated the ruling in Aldovino, Jr. v. Commission on Elections, holding that preventive suspension, being a mere temporary incapacity, was not a valid ground for avoiding the effect of the three-term limit rule. Talaga was disqualified but despite such did not withdraw his CoC.

Barbara Ruby filed her own CoC for Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate of Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had nominated Ramon.

43 Without which it could not be, without which there is nothing, indispensable condition.

On election day on May 10, 2010, the name of Ramon remained printed on the ballots but the votes cast in his favor were counted in favor of Barbara Ruby as his substitute candidate, resulting in Barbara Ruby being ultimately credited with 44,099 votes as against Castillo’s 39,615 votes

Petitioner’s arguments: Barbara Ruby maintained the validity of her substitution. She countered that the COMELEC En Banc did not deny due course to or cancel Ramon’s COC, despite a declaration of his disqualification, because there was no finding that he had committed misrepresentation, the ground for the denial of due course to or cancellation of his COC. She prayed that with her valid substitution, Section 12 of Republic Act No. 900622 applied, based on which the votes cast for Ramon were properly counted in her favor.

Respondent’s arguments: He alleged that Barbara Ruby could not substitute Ramon because his CoC had been cancelled and denied due course; and Barbara Ruby could not be considered a candidate because the COMELEC En Banc had approved her substitution three days after the elections; hence, the votes cast for Ramon should be considered stray.

Issue: W/N Barbara Ruby the wife of Talaga can be considered to have validly substituted her husband and therefore retain her position as Mayor of Lucena City.

Held: No. Considering that a cancelled CoC does not give rise to a valid candidacy, there can be no valid substitution of the candidate under Section 77 of the Omnibus Election Code. It should be clear, too, that a candidate who does not file a valid CoC may not be validly substituted, because a person without a valid CoC is not considered a candidate in much the same way as any person who has not filed a CoC is not at all a candidate.

Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of the Omnibus Election Code may not be substituted. A withdrawal of candidacy can only give effect to a substitution if the substitute candidate submits prior to the election a sworn CoC as required by Section 73 of the Omnibus Election Code.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely precluded from asserting an eligibility to run as Mayor of Lucena City for the fourth consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect consisting in his false declaration of his eligibility to run. The invalidity and inefficacy of his CoC made his situation even worse than that of a nuisance candidate because the nuisance candidate may remain eligible despite cancellation of his CoC or despite the denial of due course to the CoC pursuant to Section 69 of the Omnibus Election Code.

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with Motion to Resolve on December 30, 2009 in the COMELEC. That sufficed to render his CoC invalid, considering that for all intents and purposes the COMELEC’s declaration of his disqualification had the effect of announcing that he was no candidate at all.

We stress that a non-candidate like Ramon had no right to pass on to his substitute. As Miranda v. Abaya aptly put it:

Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election Code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called "substitute" to file a "new" and "original" certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution

Issue: Who becomes mayor of Lucena city?

Held: The Vice Mayor – Alcala. The case of Labo, Jr. should be applied. In that case the SC emphasized that the candidate obtaining the second highest number of votes for the contested office could not assume the office despite the disqualification of the first placer because the second placer was "not the choice of the sovereign will." Surely, the Court explained, a minority or defeated candidate could not be deemed elected to the office. There was to be no question that the second placer lost in the election, was repudiated by the electorate, and could not assume the vacated position. No law imposed upon and compelled the people of Lucena City to accept a loser to be their political leader or their representative.

The only time that a second placer is allowed to take the place of a disqualified winning candidate is when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s disqualification as to bring such awareness within the realm of notoriety but the electorate still cast the plurality of the votes in favor of the ineligible candidate. Under this sole exception, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case the eligible candidate with the second highest number of votes may be deemed elected. But the exception did not apply in favor of Castillo simply because the second element was absent. The electorate of Lucena City were not the least aware of the fact of Barbara Ruby’s ineligibility as the substitute. In fact, the COMELEC En Banc issued the Resolution finding her substitution invalid only on May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from assuming the position of Mayor of Lucena City. To begin with, there was no valid candidate for her to substitute due to Ramon’s ineligibility. Also, Ramon did not voluntarily withdraw his CoC before the elections in accordance with Section 73 of the Omnibus Election Code. Lastly, she was not an additional candidate for the position of Mayor of Lucena City because her filing of her CoC on May 4, 2010 was beyond the period fixed by law. Indeed, she was not, in law and in fact, a candidate.

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such vacancy should be filled pursuant to the law on succession defined in Section 44 of the LGC.

Dissent of BRION, J:

Basically he dissented with the reasoning of Ruby's substitution and the ruling that the Vice-Mayor should succeed as Mayor.

"To sum up and reiterate the essential differences between the eligibility requirements and disqualifications, the former are the requirements that apply to, and must be complied by, all citizens who wish to run for local elective office; these must be positively asserted in the CoC. The latter refer to individual traits, conditions or acts that serve as grounds against one who has qualified as a candidate to lose this status or privilege; essentially, they have nothing to do with a candidate’s CoC.

When the law allows the cancellation of a candidate’s CoC, the law considers the cancellation from the point of view of the requirements that every citizen who wishes to run for office must commonly satisfy. Since the elements of "eligibility" are common, the vice of ineligibility attaches to and affects both the candidate and his CoC. In contrast, when the law allows the disqualification of a candidate, the law looks only at the disqualifying trait or condition specific to the individual; if the "eligibility" requirements have been satisfied, the disqualification applies only to the person of the candidate, leaving the CoC valid. A previous conviction of subversion is the best example as it applies not to the citizenry at large, but only to the convicted individuals; a convict may have a valid CoC upon satisfying the eligibility requirements under Section 74 of the OEC, but shall nevertheless be disqualified.

Ruby’s Substitution of Ramon is Invalid not because Ramon’s CoC was cancelled but because of its non-conformity with the Conditions Required by Section 77 of the OEC.

With a fatally flawed substitution, Ruby was not a candidate.In view of the invalidity of Ruby’s substitution, her candidacy was fatally flawed and could not have been given effect. Her CoC, standing by itself, was filed late and cannot be given recognition. Without a valid CoC, either by substitution or by independent filing, she could not have been voted for, for the position of Mayor of Lucena City. Thus, the election took place with only one valid candidate standing – Castillo – who should now be proclaimed as the duly elected Mayor.

From the perspective of Vice Mayor Alcala’s intervention, Ruby did not validly assume the mayoralty post and could not have done so as she was never a candidate with a valid CoC. It is only the CoC that gives a person the status of being a candidate. No person who is not a candidate can win. Thus, Ruby despite being seated – never won. In the absence of any permanent vacancy occurring in the Office of the Mayor of Lucena City, no occasion arises for the application of the law on succession under Section 44 of the Local Government Code and established jurisprudence"

Dissent of Mendoza, J:

Basically Castillo should have been proclaimed Mayor since he is not the second place but the first placer, the votes made for Talaga not being valid since she was not a valid candidate. No need for succession of Rule 44 as well since there is no vacancy.

Labo, Jr. v. COMELEC, which enunciates the doctrine on the rejection of the second placer, does not apply to the present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo

and a host of other cases because the judgment declaring the candidate’s disqualification in Labo and the other cases had not become final before the elections. To repeat, Labo and the other cases applying the doctrine on the rejection of the second placer have one common essential condition — the disqualification of the candidate had not become final before the elections. This essential condition does not exist in the present case. [Emphases supplied]

In this case, the cancellation of Ramon’s CoC because of his disqualification became final before the May 10, 2010 National and Local Elections.

The only other instance that a second placer is allowed to be proclaimed instead of the first placer is when the exception laid down in Labo v. Comelec, Cayat v. Comelec and Grego v. Comelec is applicable. In Grego, it was held that "the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate."

In this case, the two assumptions have been satisfied: 1] the cancellation of Ramon’s CoC became final before the May 10, 2010 National and Local Elections and 2] the electorate was conscious of the circumstances surrounding Ramon’s candidacy and subsequent disqualification. The fact that Ramon was a renowned political figure in Lucena City, owing to his three (3) consecutive terms as mayor therein, cannot be denied. Verily, the people of Lucena City were fully aware of the circumstances of his candidacy, but still voted for Ramon despite his notorious ineligibility for the post.

The gratuitous presumption that the votes for Ramon were cast in the sincere belief that he was a qualified candidate is negated by the electorate’s awareness that Ramon had long-served as mayor of the city for almost a decade. This cannot be classified as an innocuous mistake because the proscription was prescribed by the Constitution itself. Indeed, voting for a person widely known as having reached the maximum term of office set by law was a risk which the people complacently took. Unfortunately, they misapplied their franchise and squandered their votes when they supported the purported substitute, Barbara Ruby. Thus, the said votes could only be treated as stray, void, or meaningless.

Dissent of Abad, J:

Basically states that although Castillo denominated his petition as one for cancellation or denial of due course to Ramon’s COC and sought the same relief, it did not raise any of the specified grounds for such action under Sections 69 and 78 of the Omnibus Election Code.

“There are two remedies available to prevent a candidate from running in an election: a petition for disqualification, and a petition to deny due course to or cancel a COC.

Section 69 refers to nuisance candidates. Section 78, on the other hand, treats of material misrepresentation in the COC. Castillo’s petition made no claim that Ramon was a nuisance candidate or that he made some material misrepresentation in his COC. All that the petition raised against Ramon’s candidacy is the fact that he had already served three consecutive terms as mayor.

Castillo of course points out that by filing a COC for mayor after he had already served three consecutive terms, Ramon actually misrepresented the fact of his eligibility for that office, knowing that it was not the case. But this argument is unavailing because at the time Ramon filed his COC the COMELEC’s official stand, supported by this Court’s decision in Borja, Jr. v. Commission on Elections, was that the terms during which an elected official was preventively suspended should not be counted for purposes of applying the three-term limit. It was only on December 23, 2009, nearly a month after Ramon filed his COC, that the Supreme Court reversed in Aldovino, Jr. v. Commission on Elections the election body’s official stand.

Thus, it cannot be said that Ramon knowingly misrepresented his eligibility when he filed his COC.

While Castillo denominated his petition as one to deny due course to or cancel Ramon’s COC, and prayed for such remedies, the basic rule is that the nature of an action is governed by the allegations in the petition, not by its caption or prayer. A closer reading of the resolution will show that Ramon was merely being disqualified for having served three consecutive terms. It made no mention of Ramon’s COC as having been cancelled or denied due course, and indeed gave no grounds which would justify such a result. The ponencia cites Miranda v. Abaya to justify its stand, but fails to note that in Miranda the Court found that there was blatant misrepresentation, which is in clear contrast to this case.

On the issue of substitution, the law specifically provides that a candidate who has been disqualified for any cause may be substituted by another.

Castillo cites Miranda v. Abaya as justification for rejecting the substitution of Ramon by Ruby. But the substitution that the Court did not allow in Miranda is the substitution of a candidate whose COC has been ordered cancelled on the grounds enumerated in Sections 69 and 78 of the Omnibus Election Code. The reasoning is that it is not possible to substitute such a person since he cannot be considered a candidate at all. Substitution presupposes the existence of a candidate to be substituted.

Miranda recognized that it is possible for a disqualified candidate to have a valid COC since the grounds for disqualification are distinct from the grounds for canceling or denying due course to a COC under Sections 69 and 78 of the Omnibus Election Code. Thus, it does not follow that a disqualified candidate necessarily filed an invalid COC. A disqualified candidate whose COC was neither canceled nor denied due course may be substituted under the proper circumstances provided by law.

Finally, I would like to voice my concern regarding Justice Arturo D.Brion’s view on the applicability of the three-term limit rule as a ground for disqualification. In his separate opinion, Justice Brion opines that a candidate who has already served three consecutive terms can only be disqualified after he has been proclaimed as the winner for fourth term. His theory is that the Constitution merely prohibits an official from serving more than three consecutive terms; it does not prohibit him from running for a fourth term.

Such an interpretation, however, would cause confusion in the polls and make a mockery of the election process. It robs qualified candidates of the opportunity of being elected in a fair contest among qualified candidates. The candidacy of one who has already served three consecutive terms is worse than that of a nuisance candidate. Election laws should be interpreted in such a way as to best determine the will

of the electorate, not to defeat it. The Supreme Court has on occasion upheld the disqualification of candidates who have already served three consecutive terms from running for another. Indeed in Aldovino, penned by no other than Justice Brion himself, the dispositive portion read: "The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a prohibited fourth term."

Thus, while Justice Brion likewise concludes that the action before the COMELEC was a petition for disqualification and not for the denial or cancellation of his COC, I cannot entirely agree with his reasoning.”

Digested by: Pao Lorica

LOCGOV - 115Cayat v. COMELEC

Doctrine: A candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The doctrine on the rejection of the second placer was never meant to apply to a situation where a candidate’s disqualification had become final before the elections.

Facts:

1. Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet.

2. Cayat] filed his Certificate [of] Candidacy for Mayor for the Municipality of Buguias, Benguet, Philippines alleging among others as follows:"I AM ELIGIBLE for the office [I] seek to [be] elected, x x x. I hereby certify that the facts stated herein are true and correct of my own personal knowledge."

3. Palileng filed a petition for disqualification against Cayat before the COMELEC Regional Election Office in Baguio City. It is important to note that based on the petition, [Palileng] seeks to disqualify [Cayat] for material misrepresentation in his certificate of candidacy.  Palileng’s petition alleged that:

a. Cayat is not eligible to run as Mayor having been convicted by final judgment for a criminal offense by the Municipal Trial Court of Baguio City, Philippines, Branch 2, for the Crime of Forcible Acts of Lasciviousness

b. Cayat is still under probation at the time he filed his Certificate of Candidacy c. Cayat made misrepresentations and committed acts of perjury when he declared that he is eligible for the said office

4. Atty. Torres, COMELEC Provincial Election Supervisor for Baguio-Benguet, served summons on Cayat by telegram through the Telecommunications Office on 26 January 2004. However, Cayat did not personally receive the telegram. The Telecommunications

Office of Abatan, Buguias delivered the telegram to Ferdinand Guinid (Guinid). Atty. Torres also instructed Mr. Francis Likigan, Election Officer of Buguias, Benguet, to personally inform Cayat to file his answer within three days from receipt of notice. Cayat did not file an answer.

5. In the local elections held on 10 May 2004, Cayat’s name remained on the COMELEC’s list of candidates. In the Certificate of Canvass of Votes dated 12 May 2004, Cayat received 8,164 votes.Palileng, on the other hand, received 5,292 votes. Cayat was thus proclaimed the duly elected Mayor of Buguias, Benguet. Cayat took his oath of office on 17 May 2004.

6. Palileng also filed a motion for execution of judgment in SPA Case No. 04-152. On 10 August 2004, the COMELEC First Division issued an order setting on 18 August 2004 the hearing on the motion for execution. Only Palileng’s counsel appeared during the hearing. The parties were instructed to file their respective memoranda within five days. In an order dated 25 October 2004, the COMELEC First Division granted the motion for execution and disposed of the case as follows:the Commission (First Division) hereby GRANTS the instant Motion for Execution of Judgment and ANNULS the proclamation of Respondent Rev. Fr. Nardo B. Caya

7. The new MBOC executed the COMELEC First Division’s order of 25 October 2004 and proclaimed Palileng as Mayor of Buguias, Benguet. Palileng took his oath of office on the same day.

8. Bayacsan, elected Vice-Mayor of Buguias, Benguet, filed his petition-in-intervention in G.R. No. 165736 on 17 November 2004 before this Court. For his part, Bayacsan prayed that the 25 October 2004 order and the 12 November 2004 proclamation be nullified and that he be declared as the rightful Mayor of Buguias, Benguet.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)

1. Cayat filed a motion for reconsideration before the COMELEC En Banc on 16 April 2004. Cayat argued that the COMELEC First Division Resolution of 12 April 2004 is void because the COMELEC did not acquire jurisdiction over him. Cayat also argued that Section 5 of COMELEC Resolution No. 6452 (Resolution No. 6452) allowing service of summons by telegram is void.

2. Two petitions for certiorari filed by Rev. Fr. Nardo B. Cayat

a. G.R. No. 163776 is a petition for certiorari of the Resolution dated 12 April 2004 and of the Order dated 9 May 2004 of the First Division of the Commission on Elections (COMELEC First Division) in SPA Case No. 04-152. The 12 April 2004 Resolution cancelled the certificate of candidacy of Cayat as mayoralty candidate of Buguias, Benguet in the 10 May 2004 local elections. The 9 May 2004 Order denied Cayat’s motion for reconsideration for failure to pay the required filing fee.

b. G.R. No. 165736 is a petition for certiorari of the Order dated 25 October 2004 of the COMELEC First Division also in SPA Case No. 04-152. The 25 October 2004 Order granted the motion for execution of judgment filed by Thomas R. Palileng, Sr. and annulled Cayat’s proclamation.

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)

1. However, it is important that the petition alleged the disqualification of Cayat by reason of his conviction of a criminal offense, which is the main reason why the Palileng filed this case. On this note, the applicable provision of law is now Sec. 40(a) of R.A. 7160 otherwise known as the Local Government Code.

2. The issue of disqualification rests on Sec. 40(a) of the Local Government Code and not on the material misrepresentation in the certificate of candidacy.

3. The issue now to be resolved is whether or not the crime of Forcible Acts of Lasciviousness, to which [Cayat] was convicted by final judgment, is a crime involving moral turpitude so as to bring the issue within the coverage of Section 40(a) of the Local Government Code.

4. The conviction of [Cayat] was never questioned. In fact [Cayat] accepted his conviction by applying for probation which was granted on November 6, 2003. It is already well settled that a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation. This brings us to the issue of moral turpitude.

5. Moral turpitude implies something immoral in itself, regardless of the fact that it is punishable by law or not. It is not merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but those initially lies in their being positively prohibited (Dela Torre vs[.] COMELEC and Marcial Villanueva, G.R. No. 121592, July 5, 1996).

6. From the definition of moral turpitude, it can be determined that the acts of [Cayat] involved moral turpitude. His acts fell short of his inherent duty of respecting his fellowmen and the society. This was aggravated by the fact that [Cayat] is a priest. The crime of acts of lasciviousness clearly involves moral turpitude.

7. Therefore, the respondent is convicted of a crime involving moral turpitude. Applying Sec. 40(a) of the Local Government Code, it is recommended that [Cayat] be disqualified from running as Mayor of the Municipality of Buguias, Benguet.7

8. COMELEC First Division found no compelling reason to disturb Atty. Torres’ findings and consequently cancelled Cayat’s certificate of candidacy.

9. COMELEC First Division dismissed Cayat’s motion for reconsideration for failure to pay the required filing fee. Meanwhile, on 13 May 2004, Cayat received a photocopy of the 9 May 2004 order of the COMELEC First Division denying his motion for reconsideration for his failure to pay the filing fee. On 26 May 2004, Cayat filed the petition docketed as G.R. No. 163776 before this Court.

Issue/s: WON the orders cancelling Cayat’s Certificate of Candidacy, nullifying Cayat’s proclamation as Mayor of Buguias, Benguet, and declaring Palileng as Mayor of Buguias, Benguet are legal.

Held/Ratio: Yes

1. Whether the telegram reached the residence address of Cayat before or after the date of promulgation will not affect the outcome of this case. Cayat failed to pay the prescribed filing fee when he filed his motion for reconsideration on 16 April 2004. There is no dispute that the failure to pay the filing fee made the motion for reconsideration a mere scrap of paper, as if Cayat did not file any motion for reconsideration at all.

2. Thus, the disqualification of Cayat became final three days after 13 April 2004, based on Cayat’s own allegation that he received the telegram only on 13 April 2004 and that he had until 16 April 2004 to file a motion for reconsideration. Clearly, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s Certificate of Candidacy due to disqualification became final on 17 April 2004, or 23 days before the 10 May 2004 elections.

3. COMELEC First Division denied Cayat’s motion for reconsideration for failure to pay the required filing fee. Cayat made a fatal error: he failed to pay the required filing fee for his motion for reconsideration.

4. There is no doubt as to the propriety of Palileng’s proclamation for two basic reasons.

5. First, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy due to disqualification became final and executory on 17 April 200421 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty–three days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer.

6. On the contrary, Palileng was the sole and only placer, second to none. The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.

7. Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s disqualification remained pending on election day, 10 May 2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat’s disqualification became final only after the elections.

8. Labo, Jr. v. COMELEC which enunciates the doctrine on the rejection of the second placer, does not apply to the present case because in Labo there was no final judgment of disqualification before the elections. The doctrine on the rejection of the second placer was applied in Labo and a host of other cases23 because the judgment declaring the candidate’s disqualification in Labo and the other cases24 had not become final before the elections.

9. Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when the disqualification becomes final before the elections, which is the situation covered in the first sentence of Section 6. The second is when the disqualification becomes final after the elections, which is the situation covered in the second sentence of Section 6.

10. The present case falls under the first situation. Section 6 of the Electoral Reforms Law governing the first situation is categorical: a candidate disqualified by final judgment before an election cannot be voted for, and votes cast for him shall not be counted. The Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004 elections. Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was never a candidate in the 10 May 2004 elections. Palileng’s proclamation is proper because he was the sole and only candidate, second to none.

11. Labo involved the second situation covered in the second sentence of Section 6 of the Electoral Reforms Law.

12. Cayat’s proclamation on 12 May 2004 is void because the decision disqualifying Cayat had already become final on 17 April 2004. There is no longer any need to ascertain whether there was actual knowledge by the voters of Cayat’s disqualification when they cast their votes on election day because the law mandates that Cayat’s votes "shall not be counted." There is no disenfranchisement of the 8,164 voters. Rather, the 8,164 voters are deemed by law to have deliberately voted for a non-candidate, and thus their votes are stray and "shall not be counted."

13. The doctrine on the rejection of the second placer was never meant to apply to a situation where a candidate’s disqualification had become final before the elections.

14. In short, the COMELEC First Division Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy, on the ground that he is disqualified for having been sentenced by final judgment for an offense involving moral turpitude, became final on 17 April 2004. This constrains us to rule against Cayat’s proclamation as Mayor of Buguias, Benguet. We also rule against Bayacsan’s petition-in-intervention because the doctrine on the rejection of the second placer does not apply to this case.

Digested by: Michael Marlowe G. Uy

LOCGOV – 116

RAYMUNDO A. BAUTISTA @ "OCA", petitioner, vs. HONORABLE COMMISSION ON ELECTIONS, JOSEFINA P. JAREÑO, HON. MAYOR RAYMUND M. APACIBLE, FRANCISCA C. RODRIGUEZ, AGRIPINA B. ANTIG, MARIA G. CANOVAS, and DIVINA ALCOREZA, respondents. (23 October 2003)

Carpio, J.

Petitioner: Raymundo A. Bautista, filed certificate of candidacy for Punong Bayan but was disqualified by COMELECRespondent: COMELEC

Facts: On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in Lumbangan for the 15 July 2002 barangay

elections. Election Officer Josefina P. Jareño ("Election Officer Jareño") refused to accept Bautista's certificate of candidacy because he was not a registered voter in Lumbangan.

On 11 June 2002, Bautista filed an action for mandamus against Election Officer Jareño with the Regional Trial Court of Batangas, Branch 14 ("trial court").

On 1 July 2002, the trial court ordered Election Officer Jareño to accept Bautista's certificate of candidacy and to include his name in the certified list of candidates for Punong Barangay.

The trial court ruled that Section 7 (g) of COMELEC Resolution No. 4801 mandates Election Officer Jareño to include the name of Bautista in the certified list of candidates until the COMELEC directs otherwise.

In compliance with the trial court's order, Election Officer Jareño included Bautista in the certified list of candidates for Punong Barangay. At the same time, Election Officer Jareño referred the matter of Bautista's inclusion in the certified list of candidates with the COMELEC Law Department on 5 July 2002.

On 11 July 2002, the COMELEC Law Department recommended the cancellation of Bautista's certificate of candidacy since he was not registered as a voter in Lumbangan. The COMELEC en banc failed to act on the COMELEC Law Department's recommendation before the barangay elections on 15 July 2002.

During the 15 July 2002 barangay elections, Bautista and private respondent Divina Alcoreza ("Alcoreza") were candidates for the position of Punong Barangay in Lumbangan. Bautista obtained the highest number of votes (719) while Alcoreza came in second with 522 votes, or a margin of 197 votes. Thus, the Lumbangan Board of Canvassers ("Board of Canvassers") proclaimed Bautista as the elected Punong Barangay.

Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No. 5584 on 10 August 2002 (“COMELEC Resolutions”).  In Resolution No. 5404, the COMELEC en banc resolved to cancel Bautista’s certificate of candidacy. The COMELEC en banc directed the Election Officer to delete Bautista’s name from the official list of candidates.

ISSUES + COURT RULING:

1. Does the COMELEC have the jurisdiction to issue a resolution cancelling the certificate of candidacy of Petitioner Bautista?

Petitioner’s Arguments(Bautista)

Respondents’ Arguments

Bautista argues that without any disqualification case formally filed against him, the COMELEC has no jurisdiction to take cognizance of his case.  The COMELEC cannot motu proprio act on the issue of his alleged lack of qualification. Even assuming that there was a disqualification case filed against him, it is the COMELEC sitting in division which has jurisdiction and not the COMELEC en banc.

Respondents allege that the Constitution vests the COMELEC with the power to enforce and administer all laws and regulations relative to the conduct of elections.  The Constitution thus empowers the COMELEC to pass upon the qualification of candidates for elective office. Furthermore, respondents submit that the COMELEC’s jurisdiction to cancel the certificate of candidacy of disqualified candidates is already settled jurisprudence.

Ruling of the CourtNO, the COMELEC en banc did not have the jurisdiction to issue the resolution cancelling petitioner’s certificate of candidacy. The Court ruled that disqualification cases fall under the jurisdiction of the Comelec sitting in DIVISION, and not en banc.

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the denial or cancellation of a certificate of candidacy must be     heard summarily after due notice.  It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial functions of the COMELEC which the COMELEC in division should first decide.  More so in this case where the cancellation proceedings originated not from a petition but from a report of the election officer regarding the lack of qualification of the candidate in the barangay election. The COMELEC en banc cannot short cut the proceedings by acting on the case without a prior action by a division because it denies due process to the candidate.

In this case, Election Officer Jareño reported to the COMELEC Law Department Bautista’s ineligibility for being a non-registered voter.  The COMELEC Law Department recommended to the COMELEC en banc to deny due course or to cancel Bautista’s certificate of candidacy.  The COMELEC en banc approved the recommendation in Resolution No. 5404 dated 23 July 2002.

A division of the COMELEC should have first heard this case. The COMELEC en banc can only act on the case if there is a motion for reconsideration of the decision

of the COMELEC division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the cancellation of Bautista’s certificate of candidacy without first referring the case to a division for summary hearing.

The proceeding on the cancellation of a certificate of candidacy does not merely pertain to the administrative functions of the COMELEC. Cancellation proceedings involve the COMELEC’s quasi-judicial functions.

2. Was Bautista deprived of due process when Comelec issued the subject resolutions cancelling his certificate of candidacy?

Petitioner’s Arguments(Bautista)

Respondents’ Arguments

Bautista alleges that the COMELEC denied him due process because there was no notice and hearing prior to the issuance of Resolution Nos. 5404 and 5584.  He became aware of the issuance of the COMELEC Resolutions only when he received a copy of Election Officer Jareño’s Order dated 20 August 2002 ordering him to cease and desist from assuming the position of Punong Barangay.

The Solicitor General submits that the COMELEC did not deprive Bautista of due process.  Bautista had the chance to be heard and to present his side when he filed a letter to the COMELEC en banc requesting reconsideration of the Resolutions.

Respondents likewise submit that there was no need for presentation and evaluation of evidence since the issue of whether Bautista was a registered voter is easily resolved by looking at the COMELEC registration records.

Ruling of the CourtYES, Bautista was deprived of due process.

The opportunity to be heard does not only refer to the right to present verbal arguments in

court during a formal hearing.  There is due process when a party is able to present evidence in the form of pleadings. However, the COMELEC did not give Bautista such opportunity to explain his side. The COMELEC en banc issued Resolution Nos. 5404 and 5584 without prior notice and hearing.

We cannot ignore the importance of prior notice and hearing. Severe consequences attach to the COMELEC Resolutions which not only ordered the cancellation of the certificate of candidacy of Bautista but also the annulment of his proclamation as Punong Barangay. What is involved here is not just the right to be voted for public office but the right to hold public office.

In Sandoval v. Commission on Elections, the Court ruled that: Procedural due process demands prior notice and hearing.  Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling.  In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case.  The facts show that COMELEC set aside the proclamation of petitioner without benefit of prior notice and hearing and it rendered the questioned order based solely on private respondent’s allegations. We held in Bince, Jr. vs. COMELEC:

“Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others. … COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing.”

3. Was Bautista a registered voter in Barangay Lumbangan when he filed his certificate of candidacy as Punong Barangay? What are the effects of such registration (or lack thereof) on his candidacy? (important issue)

Petitioner’s Arguments(Bautista)

Respondents’ Arguments

Bautista admitted in his affidavitdated 24 August 2002 that he was not a registered voter of Barangay Lumbangan.44

Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer Jareño to register him sometime in January 2002.

Election Officer Jareño denies Bautista’s allegations in her comment filed on 10 October 2002.

Ruling of the CourtThe events that transpired after the 15 July 2002 elections necessitate the early resolution of this case.  The Court deems it proper not to remand the case to the COMELEC to avoid further delay. The Court will resolve this case based on the pleadings submitted by the parties.

Under the Revised Administrative Code, one of the qualifications of an elective municipal officer is that he must be a "qualified voter" in his municipality. Section 2174 of the Revised Administrative Code reads:Section 2174. Qualifications of elective municipal officer. - An elective municipal officer must, at the time of the election, be a qualified voter in his municipality and must have been resident therein for at least one year, and must not be less than twenty-three years of age. He must also be able to read and write intelligently either English, Spanish, or the local dialect. (Emphasis supplied)On the other hand, under the Republic Act No. 2370, otherwise known as the Barrio Charter, a candidate for the barrio council35 must be a "qualified elector." Section 8 of the Barrio Charter reads: Section 8. Qualifications for election to the barrio council. - Candidates for election to the barrio council:(a) Must be a qualified elector and must have been a resident of the barrio for at least six months prior to the election; and

44“ Sometime during the late part of the year 1995, I went to the United States of America scounting (sic) for a good job but I was not able to find one so I went home in the year 2000 but again believing that I could land a job in the United States, I again went there but I was not able to get a job therein and so I went back to the Philippines in the year 2001 but I found out that my name was no longer included in the list of registered voters at Barangay Lumbangan, Nasugbu, Batangas….4. Sometime in the year 2002, I personally went to the Office of the Local Election Registrar particularly talking to Miss Josefina P. Jareño in order to register because as I know, to run for the Office of Barangay Chairman, I have to be a registered voter in our Barangay.”

(b) Must not have been convicted of a crime involving moral turpitude or of a crime which carries a penalty of at least one year imprisonment. (Emphasis supplied)Thus, in the 1958 case of Rocha v. Cordis, the Court held that a candidate for an elective municipal office did not have to be a registered voter in the municipality to qualify to run for an elective municipal office. Citing the earlier case of Yra v. Abaño, the Court ruled that the words "qualified elector" meant a person who had all the qualifications provided by law to be a voter and not a person registered in the electoral list. In the same vein, the term "qualified" when applied to a voter does not necessarily mean that a person must be a registered voter.

However, under the Local Government Code of 1991, which took effect on 1 January 1992, an elective local official, including a Punong Barangay, must not only be a "qualified elector" or a "qualified voter," he must also be a registered voter.

It is thus clear that the law as it now stands requires a candidate for Punong Barangay to be a registered voter of the barangay where he intends to run for office.

It is thus clear that Bautista was remiss in his duty to ensure his right to vote and to be voted for public office. As early as 2001, he was already aware that his name was no longer included in the roster of registered voters. Yet, Bautista chose not to register anew that year despite his knowledge that he needed to register as a voter in the barangay to run for the office of Punong Barangay.Bautista alleges that his non-registration as a voter of Barangay Lumbangan was due to the refusal of Election Officer Jareño to register him sometime in January 2002.Aside from his bare allegation that he tried to register in January 2002, Bautista did not proffer any other proof like a duly accomplished application form for registration to substantiate his claim that he indeed attempted to register anew.

4. Was it proper to proclaim Alcoreza as PunongBarangay in view of ineligibility of the winning candidate (Bautista)?Petitioner’s Arguments(Bautista)

Respondents’ Arguments

Bautista agreed with SolGen, who stated that the disqualification of the winning candidate Bautista does not result in the proclamation of Alcoreza who obtained the second highest number of votes because Alcoreza was obviously not the

Respondent Alcoreza, however, alleges that her proclamation as the elected Punong Barangay was legal and valid.  Alcoreza claims her case falls under the exception to the rule that the disqualification of the winning candidate

choice of the electorate. The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the post of Punong Barangay only after his election and proclamation as the winning candidate.

does not entitle the candidate with the next higher number of votes to be proclaimed winner. Alcoreza cites Grego   v. COMELEC which held that the exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate’s disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate.

Dispositive: WHEREFORE, we DISMISS the petition.  Petitioner Raymundo A. Bautista is ineligible for the position of Punong Barangay of Barangay Lumbangan for not being a registered voter of Barangay Lumbangan.  The proclamation of the second placer Divina Alcoreza as winner in lieu of Bautista is void.  Instead, the highest ranking sangguniang barangay member of Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the unexpired portion of the term.

Digested by: Kriszanne Ceñidoza

LOCGOV – 117Bernardo v Abalos (2001)

Petitioners: Antonio Bernardo, Ernesto Domingo, Jr., and Jesus Cruz

Ruling of the Court

This Court agrees with the view of the Solicitor General.  It is now settled doctrine that the COMELEC cannot proclaim as winner the candidate who obtains the second highest number of votes in case the winning candidate is ineligible or disqualified. The exception to this well-settled rule was mentioned in Labo, Jr. v. Commission on Elections and reiterated in Grego   v. COMELEC . However, the facts warranting the exception to the rule do not obtain in the present case.

Although the COMELEC Law Department recommended to deny due course or to cancel the certificate of candidacy of Bautista on 11 July 2002, the COMELEC en banc failed to act on it before the 15 July 2002 barangay elections.  It was only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404, adopting the recommendation of the COMELEC Law Department and directing the Election Officer to delete Bautista’s name from the official list of candidates.

Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was under the belief that he was qualified.  There is no presumption that the electorate agreed to the invalidation of their votes as stray votes in case of Bautista’s disqualification. The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of Bautista are stray votes.  A subsequent finding by the COMELEC en banc that Bautista is ineligible cannot retroact to the date of elections so as to invalidate the votes cast for him.

Since Bautista failed to qualify for the position of Punong Barangay, the highest ranking sangguniang barangay member, or in the case of his permanent disability, the second highest ranking sangguniang member, shall become the Punong Barangay.

Respondents: Benjamin Abalos Sr, Benhur Abalos Jr, Dr. Eden Diaz, Romeo Zapanta, Arcadio De Vera, COMELEC

Doctrine: There must be an exhaustion of all the remedies available at the COMELEC level before a petition for certiorari under Rule 65. A motion for reconsideration of the assailed COMELEC decision must first be filed before resorting to Rule 65.

Petitioners’ Side:1. Petitioners filed a criminal complaint with the COMELEC against respondents for vote buying in violation of Section 261 (a), (b), and

(i) of the Omnibus Election Code in relation to Section 28 of RA 6646 and Section 68 of the OEC, alleging that:a. Respondent Abalos JR was a candidate for City Mayor of Mandaluying in the 1998 elections. He, together with Abalos SR,

sponsored, arranged, and conducted and all-expense-free transportation, food, and drinks affair for the Mandaluyong public school teachers who were registered voters of Mandaluyong City.

b. The event was held at Tayabas Bay Beach Resort, Quezon Province, where the background music the entire day was the political jingle advertisement of Abalos JR sang to the tune of SHALALA LALA. Several participants wore T-shirts with the name of Abalos JR printed on them.

c. Abalos SR also delivered a speech promising the public school teachers and employees a hazard pay of P1k and increasing their allowances from P1.5k to P2k for food, or with a total of P3k by the end of the month.

d. These promises were made before the election to induce or unduly influence the teachers and the public to vote for Abalos JR.2. The Director of the Law Department of the COMELEC conducted a preliminary investigation and recommended to the COMELEC En

Banc the dismissal of the complaint for insufficiency of evidence. COMELEC EB eventually dismissed the complaint.3. From this decision, petitioners filed a petition for certiorari under Rule 65 with the SC alleging that the COMELEC EB acted with grave

abuse of discretion.

Respondents’ Side:1. Merely filed counter-affidavits with the COMELEC with prayer to dismiss the complaint.

Issue:WON the petition shall prosper.

Held:NO. There was no exhaustion of all available remedies at the COMELEC level before resorting to Rule 65.

1. They should have sought a motion for reconsideration of the COMELEC EB decision as required by Section 1, Rule 13 of the 1993 COMELEC Rules of Procedure. (The rule says: The following pleadings are not allowed: d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases.)

2. Since this complaint involves an election offense, an MR should have been filed. Instead, after respondents called the SC’s attention to the petitioners’ failure to comply with the rules, the latter advanced the excuse that they “deemed it best not to seek any further dilatory motion for reconsideration.” To this, the SC stressed that the MR is not dilatory. It is in fact the most expeditious and inexpensive determination and disposition of every action and proceeding before the COMELEC. Its purpose is to give the COMELEC

an opportunity to correct the error imputed to it. If the COMELEC refuses to correct a patently erroneous act, then it commits a grave abuse of discretion justifying recourse to a petition for certiorari.

3. A petition under Rule 65 can only be resorted to if there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law. Petitioners’ recourse to rule 65 is premature as they failed to file the MR. They have not raised any plausible reason for direct recourse to the SC.

4. The COMELEC had valid reason to dismiss petitioners’ complaint for vote buying. It found that the respondents’ evidence had “more probative value and believable than the evidence of the complainants” and that the petitioners’ evidence was “mere self-serving statements and uncorroborated audio and visual recording and a photograph”

5. Sec 28 of RA 6646 also requires that the complaint for vote-buying and vote-selling be “supported by affidavits of complaining witnesses attesting to the offer or promise by or of the voter’s acceptance of money or other consideration from the relatives, leaders, or sympathizers of candidate.” No affidavits were submitted.

Dispositive:Petition dismissed.

Digested by: Wiggy

LOCGOV - #118BAQUIT UNDA v COMELEC (1990)

Doctrine: The vice-mayor, who succeeded the deceased protestee-mayor in an election protest brought against the latter after his death, is the real party in interest and should be substituted in the pleadings as the party-protestee.

Facts:

Hadji Minandang Guiling and private respondent Hadji Acmad Ditangongan Rangiris were the rival candidates for mayor of Masiu, Lanao del Sur in the local elections. Guiling was proclaimed winner, along with herein petitioner as the duly elected vice-mayor. Both officials duly took their oaths of office and entered upon the performance of their duties.

Private respondent filed in the COMELEC a petition questioning the said proclamation, which was dismissed by COMELEC without prejudice to the filing of an election contest. Subsequently, Mayor Guiling passed away and, the following day, petitioner took his oath of office as mayor and forthwith assumed and exercised the duties of said office.

Private respondent filed an election protest against the deceased Mayor Guiling with the RTC. The summons issued to Mayor Guiling was returned unserved since he had already been dead for over a month. Thereafter, the protest filed by private respondent was brought to the COMELEC on certiorari. The petitioner became a party to the election protest as an intervenor with the approval of respondent COMELEC

COMELEC: RTC to proceed with the trial of the case because the death of the protestee does not divest the court of jurisdiction over the election protest.

Petitioner’s arguments: (a) there is no law which allows a deceased person to be sued as a party defendant, much less as a protestee in an election contest; and

that (b) the COMELEC misapplied the case of Vda. de De Mesa, etc., et al., vs. Mencias, etc., et al. whichimpliedly suggestedthat the procedure

would be to have the case dismissed without prejudice, to be refiled against the proper protestee.

Respondent’s arguments:

Issue: WONthe trial court has jurisdiction over an election protest filed against a protestee who had died prior to the filing thereof.

Held/Ratio: YESStatutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical objections. To that end, immaterial defects in pleadings should be disregarded and necessary and proper amendments should be allowed as promptly as possible.On the procedural aspect, it is established that amendments to pleadings may be permitted by this Court even for the first time on appeal in order to substitute the name of the real party in interest, provided that such an amendment would not involve a change in the cause of action or result in undue prejudice to the adverse party.It follows, therefore, that the election protest filed by private respondent can and ought to be amended by striking out the name of Hadji Minandang Guiling, as the protestee, and substituting, in his place, petitioner Baquit S. Unda.Vda. de De Mesa, as well as the other cases invoked and relied upon by public respondent, do not present the same factual situation obtaining in the case before us. In the decisions cited by public respondent, the protestees had been duly served with summons and died either during the pendency of the election protest or on appeal. However, we cannot allow public interest to be fettered by procedural lapses or technicalities where the circumstances demand and warrant the adjudication of the case on the merits as early as practicable.

We can, however, for purposes of the present case avail of the ruling in the Vda. de De Mesa case to the effect that Sec 17, Rule 3 of the ROC, on substitution of parties, applies to election contests to the same extent and with the same force and effect as it does in ordinary civil actions.

Now, under the LGC, the vice-mayor stands next in the line of succession to the mayor in case of a permanent vacancy in the latter's position. Upon the death of the protestee mayor in the case at bar, petitioner, as then incumbent vice-mayor, succeeded by operation of law to the vacated office and is ordinarily entitled to occupy the same for the unexpired term thereof. The outcome of the election contest necessarily and primarily bears upon his right to his present position and he is the person directly concerned in the fair and regular conduct of the

election in order that the true will of the electorate will be upheld. His status as a real party in interest in the continuation of said case cannot thus be disputed.

The pleadings in the election protest should properly be amended to substitute petitioner as the party protestee, instead of his being merely an intervenor therein, and that the proceedings be thereafter conducted accordingly.

Digested by: Barbie Perez

LOCGOV - 119

Macalincag vs Chang (1992)

Doctrine: The Secretary of Finance has the power to preventively suspend municipal treasurers. Designation of the replacement is not a requirement before the subject employee is deemed preventively suspended.

Facts- Petitioner Lorinda Carlos (Executive Director, Bureau of Local Government) signed a formal admin charge approved by petitioner

Victor Macalincag (Acting Secretary of Finance) against respondent Makati municipal treasurer Roberto Chang for dishonesty, neglect of duty and acts prejudicial to the best interest of the service (disbursement of funds during election, incurring overdrafts in public funds, and non-remittance of collections to then Bureau of Treasury), based on a COA preliminary evaluation

- Macalincag issued an Order of Preventive Suspension (OPS) against Chang. Macalingcag also sent a letter to the Governor of Metro Manila Commission Finance Office seeking the implementation of the suspension and the designation of an OIC Treasurer. Said Finance Office sent Chang the OPS via ordinary mail on October 6, 1989

- Chang then filed a petition for prohibition with WPI in Makati RTC against Macalincag and Carlos. The implementation was temporarily restrained but the court eventually denied the WPI, sustaining the power of the Secretary of Finance to issue the OPS.

- Chang filed MR, citing EO 392 ("Constituting the Metropolitan Manila Authority, providing for its powers and functions and for other purposes."). The RTC set aside its previous decision and granted the WPI, ordering the Macalingcag and Carlos to permanently desist from enforcing the OPS. It said that that in order that a preventive suspension will be implemented, there are two steps involved, viz: 1) service of a copy of said order on the respondent and 2) designation of his replacement.

Petitioner’s arguments:(no legal basis provided)- The OPS is effective upon receipt of Chang and not upon designation of an OIC to replace him.- Said OPS was also effective before EO 392 and thus cannot be enjoined by the said law (which provides for the transfer of the power

to suspend from the Secretary of Finance to the President) and that the power to suspend and remove municipal officials is not an incident of the power to appoint

Respondent’s arguments:(legal basis: Sec 8, EO 392 which took effect on January 9, 1990)- A government officer is not suspended until someone has assumed the post and the officer subject of the suspension order has ceased

performing his official function- EO 392 enjoins the implementation of the OPS, because it created the Metropolitan Manila Authority- The power to discipline is vested solely on the person who has the power to appoint, in this case, the President

IssueWON Sec of Finance has jurisdiction to issue an Order of Preventive Suspension against the acting municipal treasurer of Makati (YES)

Held/Ratio- PD 807 (Civil Service Law) Sec 41 governs Preventive Suspension: The proper disciplining authority may preventively suspend any

subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from service

- There is NOTHING in the said law which requires designation of a replacement in order to give effect to the preventive suspension- But, BP Blg. 337 (LGC) Sec 156 Art 5 Ch 3 Title II provides for the automatic assumption of the assistant municipal treasurer or next in

rank officer in case of suspension of the municipal treasurer. Sec 233(2) is the general repealing provision of the LGC (“nothing in this code shall be understood to amend or repeal the pertinent provisions of… all presidential decrees and issuances relevant to Metropolitan Manila ”)

- The OPS then is effective upon receipt of Chang. Such is presumed when he filed a complaint in the trial court preventing the implementation of such OPS.

- If such was not allowed, the purpose of preventive suspension will be rendered nugatory- Chang’s arguments based on EO 392 are not correct. Prior to EO No. 392, the power to appoint the aforesaid public officials was

vested in the Provincial Treasurers and Assessors of the Municipalities concerned, under P.D. No. 477 and later transferred to the Commissioner of Finance under P.D. No. 921, but under both decrees, the power of appointment was made subject to Civil Service Laws and the approval of the Secretary of Finance. Thus, there is an intent of the aforesaid legislations to follow the Civil Service Laws

- the power to discipline is specifically vested under Sec. 37 of PD 807 in heads of departments, agencies and instrumentalities, provinces and chartered cities who have original jurisdiction to investigate and decide on matters involving disciplinary action

- The Office of the Municipal Treasurer is unquestionably under the Department of Finance as provided for in Sec. 3, PD 477. Hence, the Secretary of Finance is the proper disciplining authority to issue the preventive suspension order. More specifically acting Secretary of Finance, Macalincag, acted within his jurisdiction in issuing the aforesaid order

- Assuming that the power to appoint is with the President, Acting Secretary Macalincag acted as an alter ego of the President and therefore, it is within his authority, as an alter ego, to preventively suspend respondent Chang.

Digested by: Morales

LOCGOV - #120Case (Sandoval vs COMELEC)

Doctrine: What the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term.

Facts: 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory

Recall Assembly ("PRA" for brevity) for the recall of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA

PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution

Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall Resolution. This was dismissed by COMELEC

Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall election Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC to disqualify

Hagedorn from running in the recall election and to cancel his certificate of candidacy Genaro V. Manaay filed another petition against Hagedorn alleging substantially the same facts and involving the same issues. The

petitions were all anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post."

COMELEC's First Division dismissed the cases. The COMELEC declared Hagedorn qualified to run in the recall election

Petitioner’s arguments: GR 154512

o Petitioner Socrates seeks to nullify the COMELEC resolutiono Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the

following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their

respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the public's constitutional right to information

GR 154683o Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution insofar as it fixed the recall election on September 7,

2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign

GR 155083-84o Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolution declaring Hagedorn qualified to run for mayor in the recall

election. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall elections. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials

Respondent’s arguments: Position: Hagedorn is not disqualified from running in the September 24, 2002 recall election as the disqualification under Art. X, Sec.

8 of the Constitution applies to the regular mayoralty election succeeding the third consecutive term served. Nor is he precluded from serving the unexpired portion of the 2001-2004 mayoralty term as this is not service of a prohibited fourth consecutive full term

Issue/s: Whether or not the Recall Resolution is valid Whether or not Hagedorn is qualified to run for mayor in the recall election

Held/Ratio: YES, The COMELEC found that the proponents of the recall sent notices of the convening of the PRA to the members thereof. PRA

members had the authority to adopt the Recall Resolution because when the PRA members adopted such, their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly. As in Malonzo vs Comelec, court held it is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC

YES, because what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. Such is not the case herein. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states:

"Section 8. 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"

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides:

"Section 43. Term of Office. – (a) x x x(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected"

These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms

After three consecutive terms therefore, an elective local official cannot seek immediate reelection for a fourth term. 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

In the case of Hagedorn, he was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new recall term to make the recall

term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as mayor

In Lonzanida v. Comelec: "x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. x x x"

In Adormeo v. Comelec and Talaga: an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official

In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor

Davide Dissenting opinion: The ponencia is correct when it holds that the three-term limit bars an immediate reelection for a fourth term. But when it rules that

in the case of Hagedorn he did not seek an immediate reelection for a fourth term because he was not a candidate for reelection in the May 2001 election. It forgets that what would have been his fourth term by virtue of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. The flaw in the ruling results from an apparent confusion between term and election, the root cause of which is the attempt to distinguish "voluntary renunciation" of office from "involuntary severance" from office and the term of office to which it relates

The dichotomy made in the ponencia between "voluntary renunciation of the office" as used in Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 and "involuntary severance from office" is unnecessary, if not misplaced. From the discussion in the ponencia, the latter is made to apply to the banned term, i.e., the fourth term immediately following three consecutive terms. Speaking now of Hagedorn, he cannot have suffered "involuntary severance from office" because there was nothing to be severed; he was not a holder of an office either in a de jure or de facto capacity

More importantly, the voluntary renunciation referred to in Section 8, Article X of the Constitution and Section 43(b) of R.A. No. 7160 is one that takes place at any time during either the first, second, or third term of the three consecutive terms. This is very clear from the last clause of Section 8, Article X of the Constitution, which reads: "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The purpose of the provision is to prevent an elective local official from voluntarily resigning from office for the purpose of circumventing the rule on the belief that the term during which he resigned would be excluded in the counting of the three-term rule. In short, the provision excluded is intended to impose a penalty on one who flouts

the rule or make a mockery of it by the simple act of resigning. Thus, applying it in the case of Hagedorn, even if he voluntarily resigned on his third term, he would still be barred from seeking reelection in the May 2001 election

Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4 February 2002) because in that case Talaga did not win in his second reelection bid, or for a third term, in the May 1998 elections. He won in the recall election of 12 May 2000. Hagedorn, as earlier stated, fully served three successive terms

Romulo Concurring opinion: Hagedorn will not serve a prohibited fourth consecutive full term as he will be serving only the unexpired portion of the 2001-2004

mayoralty term. Similar to Talaga, Jr. in the Adormeo case, Hagedorn's service as mayor will not be continuous from the third to a fourth consecutive full term as it was broken when Socrates was elected in the 2001 regular mayoralty election and served for one year. In the same vein that Talaga, Jr. was elected into office by recall election and his service of the unexpired portion of the incumbent's term was not considered a consecutive full term for purposes of applying the three term limit, Hagedorn's service of the unexpired portion of Socrates' term should not also be counted as a prohibited fourth consecutive full term. It should not make a difference whether the recall election came after the second consecutive full term as in the Adormeo case or after the third consecutive term as in the cases at bar because the intent to create a hiatus in service is satisfied in both instances

Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is the service of a fourth consecutive full term. Petitioners are correct in foisting the view that "term" is a fixed and definite period of time prescribed by law or the Constitution during which the public officer may claim to hold the office as a right. It is a fixed and definite period of time to hold office, perform its functions, and enjoy its privileges and emoluments until the expiration of the period.13 In ascertaining what "term" means for elective local officials, the Constitution itself provides in Art. X, Sec. 8 that it means a fixed, definite, and full period of three years, viz: "Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ..." Although one or more persons may discharge the duties of the office during this fixed three-year period, the term is not divided into smaller terms by the number of incumbents who may fill the office. It is one and indivisible, and term follows term in successive cycles of three years each. If the incumbent or the one elected to the office 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, thereby creating a permanent vacancy,14 the term would remain unbroken until the recurring election for the office.15

The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the Constitution bolster the interpretation that for purposes of applying the three term limit, service of a full term of three years is contemplated

Digested by: Sabrina Louise M. De Guzman

LOCGOV - 121

Montebon vs. COMELEC

Certiorari

Succession by law to a vacated government office cannot be said to be voluntary. Being an involuntary severance from office, it results in an interruption of service.

Petitioners: Montebon and Ondoy (Candidates for Municipal Mayor of the Municipality of Tuburan, Cebu for May 2007 elections)

Respondent: COMELEC and Potencioso Jr. (Candidate for the same position above)

Facts:

1. Montebon, Ondoy, and Potencioso were candidates for Municipal Mayor of Tuburan, Cebu in the May 2007 elections.

2. Petitioners and other candidates for Municipal Mayor filed a Petition for Disqualification against Potencioso alleging that the latter had been elected and had served 3 consecutive terms as Municipal Mayor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running in the 2007 elections, as it would be his 4th term.

3. Potencioso admitted he was elected for 3 consecutive terms but claimed that the service of his 2nd term was interrupted on January 12, 2004 when he succeeded as vice-mayor of Tuburan due to the retirement of Vice-Mayor Mendoza. He therefore is not disqualified to run, the interruption not being voluntary.

4. Petitioner: It is a voluntary renunciation therefor enot considered an interruption.

5. COMELEC First Division and COMELEC En Banc both ruled in favor of Potencioso. It was an involuntary interruption, therefore not

disqualified.

Important provisions:

1. Sec.8, Article X, 1987 Constitution:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials 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.

2. LGC

Sec. 43. Term of Office

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

Petitioner: Voluntary renunciation therefore not considered interruption.

Respondent: Involuntary therefore an interruption.

Issue: W/N Potencioso’s succession as Vice-Mayor can be considered a voluntary renunciation of office which cannot be considered an interruption therefore making him disqualified to run in the 2007 elections?

Held: No.

SC:

1. Lonzanida vs. COMELEC: 2 conditions must concur to be disqualified:

i. Official concerned has been elected for 3 consecutive terms in the same local government post.

ii. He has fully served 3 consecutive terms.

2. Borja Jr. vs. COMELEC: Term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position.

3. Succession in local government offices is by operation of law. Under Sec. 44 LGC, if a permanent vacancy occurs in the office of the vice mayor, the highest-ranking Sanggunian Member shall become Vice Mayor. There is no way could it be considered voluntary renunciation. The legal successor is not given any option under the law to accept or not.

4. SC quoting COMELEC ruling: Succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the non-performance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary.

LOCGOV- 122

Mendoza vs Familara

Nov 15, 2011

Doctrine: The 3 term limit provided under the LGC applies to barangay officials.

Facts:

Petitioner Mendoza ran for the position of Barangay Captain in Balatasan, Oriental Mindoro in the 2007 barangay elections. Familara files a disqualification case against Mendoza claiming that Mendoza had already served 3 consecutive terms since 1994 and

thus, should be disqualified. COMELEC en banc ruled against Mendoza. Mendoza then filed this petition for review on certiorari. (court held that this is a wrong remedy, and treated it as a Rule 64 appeal of

grave abuse of discretion amounting to lack or excess of jurisdiction)

Petitioner’s Arguments:

The three term limit provided under RA 9164 cannot be applied to the 1994 barangay elections. Mendoza basically claims that his “winning” the 1994 elections must not be counted in determining the 3 term limit because the RA 9164 came after the 1994 elections.

Respondent’s Arguments:

Mendoza already served 3 consecutive terms and is thus disqualified pursuant to RA 9164

Issue:

WON the 3 consecutive term limit provided under RA 9164 is applicable to barangay elections?

Held:

Yes, it applies to barangay elections.. However, the Court first pointed out that the case was already moot and academic because the term of office of the 2007 elections had already expired in 2010. (note this case was decided in 2011)

The Court then said that the issue had already been laid to rest in Comelec vs Cruz when it said that:

1. The three term limit did not apply retroactively to the 1994 barangay elections because the three-term limit has been there all along as early as the second barangay law (RA No. 6679) after the 1987 Constitution took effect; it was continued under the [Local Government Code] and can still be found in the current law. We find this obvious from a reading of the historical development of the law.

2. An alternative perspective is to view [Section] 43(a), (b) and (c) separately from one another as independently standing and self-contained provisions, except to the extent that they expressly relate to one another. Thus, [Section] 43(a) relates to the term of local elective officials, exceptbarangay officials whose term of office is separately provided under Sec. 43(c). [Section] 43(b), by its express terms, relates to all local elective officials without any exception. Thus, the term limitation applies to all local elective officials without any exclusion or qualification.

            Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of Section 43 in the context in which it is found in Title II of the LGC. 

Digested By:

Kesterson Kua

LOCGOV - #123

KAGAWADS JOSE G. MENDOZA, ROSARIO B. ESPINO, TERESITA S. MENDOZA, JORGE BANAL, Chairman of the Special Investigation Committee on Administrative Cases Against Elected Barangay Officials of the Quezon City Council and ISMAEL A. MATHAY, JR., City Mayor of Quezon City, petitioners, vs. BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent. (2003)

Doctrine: Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof.  The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions. Unless his election is annulled by a final and executory decision or a valid execution of an order unseating him pending appeal is issued, he has the lawful right to assume and perform the duties of the office to which he has been elected. Thus, the taking of an oath of office anew by a duly proclaimed but

subsequently unseated local elective official is not a condition sine qua non to the validity of his re-assumption in office where the COMELEC orders the relinquishment of the contested position.

Facts:

On May 27, 1997, respondent took his oath and thereafter assumed office as the duly proclaimed and elected barangay captain of Barangay Batasan Hills, Quezon City, in the 1997 Barangay Elections. Roque Fermo, his rival candidate, filed an election protest with the QC MTC.  On January 18, 1999, Fermo was declared as the winner in the Barangay Elections.   Respondent filed a notice of appeal with the COMELEC while Fermo filed a motion for execution pending appeal, which was granted by the trial court on January 20, 1999.

Respondent vacated the position and relinquished the same to Fermo.  Respondent filed a petition with the COMELEC questioning the order of the trial court which granted the execution of the decision pending appeal. The COMELEC, on September 16, 1999, issued a resolution annulling the order and ordering Fermo to cease and desist from further performing the functions of Punong Barangay and to relinquish the same to respondent pending final resolution of appeal.

On October 27, 1999, the COMELEC issued a writ of execution directing Fermo to vacate the office of Barangay Chairman of Barangay Batasan Hills. The next day, Fermo was served a copy of the writ of execution but he refused to acknowledge receipt thereof and refused to vacate the premises of the barangay hall of Batasan Hills.The respondent and his staff continued discharging their functions and held office at the SK-Hall of Batasan Hills. On the same date, respondent appointed Godofredo L. Ramos as Barangay Secretary and on November 8, 1999, he appointed Rodel G. Liquido as Barangay Treasurer.

On November 16, 1999, respondent took his oath of office as Barangay Captain of Batasan Hills, Quezon City before Mathay. The next day, Roque Fermo turned over to respondent all the assets and properties of the barangay.

On November 20, 1999, the Barangay Council of Batasan Hills issued Resolutions ratifying the appointment of Ramos as Barangay Secretary and of of Liquido as Barangay Treasurer, both effective November 1, 1999. The appointees of Fermo to the same position objected to the said Resolutions.  In order to accommodate these appointees, respondent agreed to grant them allowances and renumerations for the period of November 1- 7, 1999.

In a Resolution the barangay council of Batasan Hills authorized the appropriation of P864,326.00 for the November to December 1999 salary of its barangay officials and employees. The barangay payroll was thereafter issued, enumerating the names of respondent and

his appointed barangay secretary and barangay treasurer as among those entitled to compensation for services rendered for the period November 8, 1999 to December 31, 1999. The three petitioners who were barangay councilors refused to sign the Resolution and the payroll.

In January 2000, petitioner barangay councilors filed with the QC Council a complaint for violation of the anti-graft and corrupt practices act and falsification of legislative documents against respondent and all other barangay officials who signed the questioned resolution and payroll. They contended that defendants made it appear in the payroll that he and his appointees rendered services starting November 8, 1999 when, in truth, they commenced to serve only on November 17, 1999 after respondent took his oath and assumed the office of barangay chairman.  They further claimed that the effectivity date of the barangay secretary and barangay treasurer’s appointment, as approved in the Resolution, was November 16, 1999, but respondent fraudulently antedated it to November 1, 1999.  Petitioners also contended that respondent connived with the other barangay officials in crossing out their names in the payroll.

Defendants claimed that the taking anew of the oath of office as barangay chairman was a mere formality and was not a requirement before respondent can validly discharge the duties of his office.  They contended that respondent’s appointees are entitled to the remuneration for the period stated in the payroll as they commenced to serve as early as October 28, 1999. 

The Special Investigation Committee on Administrative Cases of the City ruled that respondent had no power to make appointments prior to his oath taking on November 16, 1999. It however found that respondent and the other barangay officials who signed the questioned resolution and payroll acted in good faith when they erroneously approved the grant of renumerations to respondent’s appointees starting November 8, 1999.  Nevertheless, it found respondent guilty of grave misconduct and recommended the penalty of 2 months suspension.  The charges against the other officials were dismissed.

The Quezon City Council thereafter adopted the findings and recommendations of the Committee. Respondent filed a motion for reconsideration, but the City Council implemented the decision and appointed Charlie Mangune as acting barangay chairman.

Respondent filed a petition for certiorari with the QC RTC, seeking to annul the decision of the Quezon City Council.   In their answer, petitioners prayed for the dismissal of the petition, arguing that respondent failed to exhaust administrative remedies and the trial court has no jurisdiction over the case because appeals from the decision of the City Council should be brought to the Office of the President.

A summary judgment was rendered by the trial court in favor of respondent. 

Petitioners filed the instant petition for review.

Petitioner’s arguments:

Petitioner is assailing the summary judgment of the trial court which set aside the decision of the City Council of Quezon City finding respondent Barangay Captain guilty of grave misconduct.

Petitioners argue that respondent failed to exhaust administrative remedies and the trial court has no jurisdiction over the case because appeals from the decision of the City Council should be brought to the Office of the President.

Petitioners contend that defendants commenced to serve only on November 17, 1999 after respondent took his oath and assumed the office of barangay chairman, and that the effectivity date of the barangay secretary and barangay treasurer’s appointment was November 16, 1999Respondent’s arguments:

Respondents claim that the taking anew of the oath of office as barangay chairman was a mere formality and was not a requirement before respondent can validly discharge the duties of his office. 

They contended that respondent’s appointees are entitled to the remuneration for the period stated in the payroll as they commenced to serve as early as October 28, 1999. 

Issues / Held:

WON respondent failed to exhaust administrative remedies. YES but case falls under exception

WON the taking of an oath of office anew by a duly proclaimed but subsequently unseated local elective official a condition sine qua non to the validity of his re-assumption in office where the COMELEC orders the relinquishment of the contested position. NO.

Whether respondent is considered to have validly re-assumed office from October 28, 1999, the date of service of the writ of execution to Roque Fermo and the date respondent actually commenced to discharge the functions of the office, or from November 17, 1999, the date Roque Fermo turned over to respondent the assets and properties of Barangay Batasan Hills. October 28, 1999

Ratio:

On exhaustion of administrative remedies

The trial court ruled that Section 67 of the Local Government Code, which allows an appeal to the Office of the President, is not applicable because the decision of the City Council is final and executory.

Sections 61 and 67 of the Local Government Code, provide:

Section 61. Form and Filing of Administrative Complaints.  A verified complaint against any erring local elective official shall be prepared as follows:xxx(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. (emphasis supplied)

Sec. 67. Administrative Appeals. — Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following:xxx(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.Decision of the Office of the President shall be final and executory.

The trial court failed to consider Section 68 of the same code which provides:

An appeal shall not prevent a decision from being final and executory.  The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event that 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. 

The phrases “final and executory,” and “final or executory” in Sections 67 and 68 are not indicative of the appropriate mode of relief from the decision of the Sanggunian concerned but simply mean that the administrative appeals will not prevent the enforcement of the decisions. The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be.

It is clear that respondent failed to exhaust all the administrative remedies available to him. But in the case at bar, the issues of whether or not the decision of the Sangguniang Panlungsod in disciplinary cases is appealable to the Office of the President, as well as the propriety of taking an oath of office anew by respondent, are certainly questions of law which call for judicial intervention, and is under the exception to the doctrine of exhaustion.

On the re-taking of oath

Once proclaimed and duly sworn in office, a public officer is entitled to assume office and to exercise the functions thereof.  The pendency of an election protest is not sufficient basis to enjoin him from assuming office or from discharging his functions [Cereno v. Dictado, 1988, citing Estrada v. Sto. Domingo (1969)]. Unless his election is annulled by a final and executory decision (Ibid.) or a valid execution of an order unseating him pending appeal is issued, he has the lawful right to assume and perform the duties of the office to which he has been elected.

Respondent was proclaimed as the winner in the 1997 Barangay Elections and thereafter took his oath and assumed office.  He is therefore vested with all the rights to discharge the functions of his office. 

Although in the interim, he was unseated by virtue of a decision in an election protest decided against him, the execution of said decision was annulled by the COMELEC in its September 16, 1999 Resolution which, incidentally, was sustained by this Court in Fermo v. Commission on Elections (2000). It was held therein that “[w]hen the COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the winner of the election was stayed and the ‘status quo’ or the last actual peaceful uncontested situation preceding the controversy was restored…” The status quo referred to the stage when respondent was occupying the office of Barangay Captain and discharging its functions.  For purposes of determining the continuity and effectivity of the rights arising from respondent’s proclamation and oath taken on May 27, 1997, it is as if the said writ of execution pending appeal was not issued and he was not ousted from office.  The re-taking of his oath of office on November 16, 1999 was a mere formality considering that his oath taken on May 27, 1997 operated as a full investiture on him of the rights of the office.  Hence, the taking anew of his oath of office as Barangay Captain of Batasan Hills, Quezon City was not a condition sine qua non to the validity of his re-assumption in office and to the exercise of the functions thereof. 

On the date of valid re-assumption of office

The records show that it was Fermo’s defiance of the writ that prevented respondent from assuming office at the barangay hall.  To reckon the effectivity of respondent’s assumption in office on November 17, 1999, as petitioners insist, would be to sanction dilatory maneuvers and to put a premium on disobedience of lawful orders which this Court will not countenance Although the physical possession of the Office of the Barangay Captain was not immediately relinquished by Fermo to respondent, the latter exercised the powers and functions thereof at the SK-Hall of Batasan Hills, Quezon City starting October 28, 1999.  His re-assumption in office effectively enforced the decision of the COMELEC which reinstated him in office.  It follows that all lawful acts of the latter arising from his re-assumption in office on

October 28, 1999 are valid.  Hence, no grave misconduct was committed by him in appointing Ramos and Liquido and in granting them emoluments and renumerations.

Digested by: JM Arcilla (for A2015)

LOVGOV – 124Mayor Abelardo Abundo, Sr., vs. COMELEC & Ernesto Vega (2013)

An elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term [and, hence], [a]ny subsequent election, like recall election, is no longer covered.

Facts:1. For 4 successive regular elections, viz. 2001, 2004, 2007 & 2010 national and local elections, petitioner Abundo vied for the position

of municipal mayor of Viga, Catanduanes.2. In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning mayoralty candidate and accordingly served the

corresponding terms as mayor.3. But in the 2004 electoral derby, the Viga municipal board of canvassers initially proclaimed as winner Jose Torres, who, in due time,

performed the functions of the office of mayor.4. Abundo protested Torres’ election and proclamation.5. Abundo was eventually declared the winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office

starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007 (or for a little over 1 yr and 1 month). 6. On May 2010 elections, Abundo and Torres again opposed each other. When Abundo filed his certificate of candidacy for the

mayoralty seat relative to this electoral contest, Torres lost no time in seeking the former’s disqualification to run. Torres filed a petition predicated on the 3-consecutive term limit rule.

7. On June 2010, the COMELEC First Division favored Abundo, who bested Torres by 219 votes and was accordingly proclaimed 2010 mayor-elect of Viga, Catanduanes.

8. Before the COMELEC could resolve the adverted disqualification case Torres initiated against Abundo, herein private respondent Ernesto Vega commenced a quo warranto action before the RTC Virac to unseat Abundo on the same grounds Torres raised in his petition to disqualify.

9. RTC: declared Abundo ineligible to serve as municipal mayor for having already served 3 consecutive mayoralty terms citing Aldovino v COMELEC (preventive suspension is not a term-interrupting event as the elective officer’s continued stay and entitlement

to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period)

10. COMELEC: affirmed RTC11. Despite the supervening issuance by the Court of a TRO to enjoin the enforcement of the assailed COMELEC decision, Abundo was

dislodged from his post as incumbent mayor of Viga, Catanduanes.

Petitioner’s arguments:1. Aldovino is not on all fours with the present case as the former dealt with preventive suspension which does not interrupt the

continuity of service of a term.2. Aldovino recognizes that the term of an elected official can be interrupted so as to remove him from the reach of the constitutional

three- term limitation.3. COMELEC misinterpreted the meaning of “term” in Aldovino by its reliance on a mere portion of the Decision and not on the unified

logic in the disquisition.4. The appropriate governance in this case is the holding in Lonzanida and Rivera v COMELEC.5. COMELEC missed the point when it ruled that there was no interruption in the service of Abundo since what he considered as an

“interruption” of his 2004-2007 term occurred before his term started.6. To rule that the term of the protestee (Torres) whose proclamation was adjudged invalid was interrupted while that of the protestant

(Abundo) who was eventually proclaimed winner was not interrupted is absurd and illogical.

Respondent’s arguments:1. Both respondents Vega and COMELEC counter that the ratio decidendi of Aldovino, Jr. applies in the instant case.2. COMELEC ruled that Abundo did not lose title to the office as his victory in the protest case confirmed his entitlement to said office

and he was only unable to temporarily discharge the functions of the office during the pendency of the election protest.

Issue: WON Abundo is deemed to have served 3 consecutive terms (NO)

Held/Ratio: The intention behind the 3-term limit rule was not only to abrogate the “monopolization of political power” and prevent elected

officials from breeding “proprietary interest in their position” but also to “enhance the people’s freedom of choice.” The Court finds Abundo’s case meritorious and declares that the 2-year period during which his opponent, Torres, was serving as

mayor should be considered as an interruption, which effectively removed Abundo’s case from the ambit of the 3-term limit rule.

This case points to an involuntary interruption during the July 2004-June 2007 term. During the term 2004-2007, and with the enforcement of the decision of the election protest in Abundo’s favor, he assumed the mayoralty post only on May 9, 2006 and served the term until June 30, 2007 or for a little over 1 year & 1 month. And so, it cannot be said that Mayor Abundo was able to serve fully the entire 2004-2007 term to which he was otherwise entitled.

Appari v. CA: “term” means “a fixed and definite period of time which the law describes that an officer may hold an office.” It also means the “time during which the officer may claim to hold office as a matter of right, and fixes the interval after which the several incumbents shall succeed one another.” It is the period of time during which a duly elected official has title to and can serve the functions of an elective office.

Par. (a) of Sec. 43, RA 7160: the term for local elected officials is 3 years starting from noon of June 30 of the 1st year of said term. The notion of full service of 3 consecutive terms is related to the concepts of interruption of service and voluntary renunciation

of service. The word interruption means temporary cessation, intermission or suspension. To interrupt is to obstruct, thwart or prevent.

When the Constitution and the LGC of 1991 speak of interruption, the reference is to the obstruction to the continuance of the service by the concerned elected official by effectively cutting short the service of a term or giving a hiatus in the occupation of the elective office. On the other hand, the word “renunciation” connotes the idea of waiver or abandonment of a known right. To renounce is to give up, abandon, decline or resign. Voluntary renunciation of the office by an elective local official would thus mean to give up or abandon the title to the office and to cut short the service of the term the concerned elected official is entitled to.

While Abundo was declared winner in the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full term has been substantially reduced by the actual service rendered by his opponent Torres. Hence, there was actual involuntary interruption in the term of Abundo and he cannot be considered to have served the full 2004-2007 term.

Pending the favorable resolution of his election protest, Abundo was relegated to being an ordinary constituent since his opponent Torres, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. In other words, for almost 2 years or from July 1, 2004— the start of the term—until May 9, 2006 or during which his opponent actually assumed the mayoralty office, Abundo was a private citizen warming his heels while awaiting the outcome of his protest. Hence, even if declared later as having the right to serve the elective position from July 1, 2004, such declaration would not erase the fact that prior to the finality of the election protest, Abundo did not serve in the mayor’s office and, in fact, had no legal right to said position

However, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law. (Aldovino Jr)

It is erroneous to say that Abundo merely was temporarily unable or disqualified to exercise the functions of an elective post.

o During the intervening period of almost 2 years, reckoned from the start of the 2004-2007 term, Abundo cannot be said to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner who would have the legal right to assume and serve such elective office.

o Not having been declared winner yet, Abundo cannot be said to have lost title to the office since one cannot plausibly lose a title which, in the first place, he did not have.

o Thus, for all intents and purposes, even if the belated declaration in the election protest accords him title to the elective office from the start of the term, Abundo was not entitled to the elective office until the election protest was finally resolved in his favor.

During the pendency of the election protest, Abundo ceased from exercising power or authority over the good people of Viga, Catanduanes. Consequently, the period during which Abundo was not serving as mayor should be considered as a rest period or break in his service because, as earlier stated, prior to the judgment in the election protest, it was Abundo’s opponent, Torres, who was exercising such powers by virtue of the still then valid proclamation.

Digested by: L Agliam

LOCGOV - 125Miranda vs. Sandiganbayan (2005)

Doctrine: Sec. 63 of the Loc. Gov. Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government.

Facts: The Ombudsman placed petitioner Mayor Miranda under preventive suspension for 6 months for alleged violations of the Code of

Conduct and Ethical Standards for Public Officials and Employees. Subsequently, Vice Mayor Navarro filed a complaint before the Ombudsman against Miranda for continuing to assume his position as

mayor, issuing directives and memoranda, and appointing persons to the City Government while he was on preventive suspension. In his defense Miranda asserted that he assumed office in good faith. Furthermore, under Sec. 63 (b) of the Loc. Gov. Code local

elective officials could not be preventively suspended for more than 60 days. The Ombudsman filed before the Sandiganbayan a complaint against Miranda for violation of Art. 177 of the Revised Penal Code

(RPC) penalizing usurpation of authority. The prosecution filed a motion to suspend Miranda based on Sec. 13 of the Anti-Graft and Corrupt Practices Act (RA 3019).

Miranda opposed the motion on the ground that the offense of usurpation of authority under Art. 177 RPC is not embraced by Sec. 13 of RA 3019. The fraud in Sec. 13 only contemplates offenses in the RPC which involve fraud upon government or public funds or property.

The Sandiganbayan preventively suspended Miranda for 90 days.

Petitioner’s argument: The Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law, the fraud

contemplated in Sec. 13 RA 3019 only applying to government or public funds or property. [TOPICAL; not really the petitioner’s argument but the dissenting opinion’s] The Ombudsman’s authority to suspend local elective

officials for 6 months is limited by Sec. 63 (b) of the Loc. Gov. Code, which provides that local elective officials can be suspended for a maximum period of 60 days (Garcia v. Mojica, Rios v. Sandiganbayan).

Respondent’s arguments: Miranda’s acts of assuming authority, issuing directives, and appointing people to positions in the City Government constitute

usurpation of authority under Art. 177 of the RPC. Being acts of fraud upon the government or public funds or property, his acts warrant preventive suspension under Sec. 13 of RA

3019.

Issue/s: WON Sec. 13 of RA 3019 applies only to fraud involving public funds or property (NO) WON the crime of usurpation of authority involves fraud upon government or public funds or property (YES) [TOPICAL] WON the Ombudsman’s authority to preventively suspend local officials for 6 months is limited by Sec. 63 (b) of the Loc.

Gov. Code (NO)

Held:On WON Sec. 13 of RA 3019 applies only to fraud involving public funds or property

Sec. 13 of RA 3019 provides:Section 13.  Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the government; and (2) any offense involving public funds or property. Nothing in R.A. No. 3019 evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property.

On WON the crime of usurpation of authority involves fraud on the government and public property

Fraud upon the government means any instance or act of trickery or deceit against the government. It cannot be read restrictively to be equivalent to malversation of funds. Fraud upon the government was committed when Miranda allegedly assumed the duties and performed acts pertaining to the Office of the Mayor under pretense of official position. His acts resulted to a disruption of office functions.When Miranda appointed persons in various positions, he indirectly dealt with the city’s funds as those persons appointed will be given their respective salaries and other monetary consideration which will be paid mainly out of the city’s funds.

The suspension of a public officer is mandatory after a determination has been made of the validity of the Information (Bayot v. Sandiganbayan)

On WON the Ombudsman’s authority to preventively suspend local officials for 6 months is limited by Sec. 63 (b) of the Loc. Gov. Code

The argument fails to focus on the proper issue. The issue before the SC is whether the Sandiganbayan committed a grave abuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsman’s order of preventive suspension of the petitioner for 6 months is not the one assailed in the case at bar.

The case of Garcia v. Mojica did not discuss that the limits provided in the Loc. Gov. Code apply to the Ombudsman. The Court in that case expressly stated that its decision was rendered without subscribing to petitioner’s argument that the Loc. Gov. Code had been violated. The Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspension since it was admitted that the documents required for the suspension were obtained days after the imposition of the penalty.

In Rios v. Sandiganbayan is not on point since it was the powers of the Sandiganbayan, NOT the Ombudsman which was at issue. Sec. 63 (b) of the Loc. Gov. Code was only meant as a cap on the discretionary power of the President, governor and mayor to impose

excessively long preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed by it. The President, governor and mayor are political personages. As such, the possibility of extraneous factors influencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political pressure given the independence of the office which is protected by no less than the Constitution. This point was also emphasized in the case of Hagad v. Gozo-Dadole and Garcia v. Mojica.

Senator Pimentel explained during the Senate deliberations that the purpose of Sec. 63 is to prevent the abuse of the power of preventive suspension by members of the executive branch.

Sec. 63 of the Loc. Gov. Code does not govern preventive suspensions imposed by the Ombudsman, which is a constitutionally created office and independent from the Executive branch of government. The Ombudsman’s power preventive suspension is governed by RA 6770. The 6-month period of preventive suspension imposed by the Ombudsman in this case was within the limit provided by the law.

Sec. 24. Preventive Suspension. – The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. 

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

There is a substantial distinction between preventive suspensions imposed by the Ombudsman and those imposed by executive officials. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy, fixed term of office and classification as an impeachable officer. Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The

Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the

respondent's continued stay in office may prejudice the case filed against him.

Digested by: Pao Agbayani

LOCGOV – 126Bolastig v Sandiganbayan (1994)

Preventive suspension of a maximum of 90 days is mandatory under Section 13 of the Anti Graft and Corrupt Practices Act. The duration of preventive suspension is affected by the time it takes to decide a case but not by any discretion of the court.

Facts:11. Antonio Bolastig was the governor of Samar. An information was filed against him and two others (the provincial treasurer and

property officer) for the overpricing of 100 reams of onion skin paper in violation of RA 3019 (Anti Graft and Corrupt Practices Act)12. Bolastig and the others allegedly bought 100 reams of onion skin paper for P550.00 each, for a total of P55 000.00, when the true unit

price for each ream was only P55.00 each, for a total of only P5 500.00.13. During the course of Bolastig’s trial, Special Prosecution Officer Orencia moved for his suspension, based on Sec 13 of RA 3019:

Sec. 13. Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property, whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office.

14. The Sandiganbayan suspended Bolastig for 90 days, holding that preventive suspension is mandatory under Section 13.15. Bolastig contends that the Sandiganbayan committed a grave abuse of discretion in suspending him.

Petitioner’s (Bolastig) arguments:

At the level of the Sandiganbayan6. A bare invocation of Section 13 would result in a situation as if suspension of a public officer is a mindless and meaningless exercise,

imposed without regard to the spirit and intent of the law7. A mechanical application of the law would not only injure Bolastig, but also the entire electorate

At the level of the Supreme Court8. The prosecution did not show any public interest to be served, injury to be prevented, or any compelling factual circumstance which

justifies the preventive suspension of petitioner9. The political rights of the people of Samar were violated because their duly elected Governor was suspended for no valid reason10. While the Sandiganbayan has the power to order preventive suspension, it has to take efforts to determine the necessity of the

preventive suspension in accordance with the spirit and intent of RA 301911. Preventive suspension should only be ordered when the legislative purpose of RA 3019 is achieved, i.e. when the suspension order

prevents an accused official from using his office to influence witnesses or tamper with important records.12. He should no longer be preventively suspended because the Sandiganbayan trial is now over and there is no longer any danger that

he would intimidate the Sandiganbayan’s witnesses

Respondent’s (Sandiganbayan) arguments: 1. Preventive suspension is mandatory. All that is required is for the court to make a finding that the accused stands charged under a

valid information for any of the crimes mentioned in RA 3019.

Issue/s:Did the Sandiganbayan commit grave abuse of discretion in suspending Governor Bolastig? No. Preventive suspension is mandatory and requires no further investigation beyond the information filed.

Held/Ratio:

Preventive Suspension: mandatory or discretionary?1. Section 13 makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging

violation of RA 3019, Title VII of the Revised Penal Code, or any offense involving fraud upon government or public funds/property is filed

2. It is not the discretion or duty of the court to determine whether preventive suspension is required.

3. Grounds for preventive suspension: the suspension operates on the presumption that unless the accused official is suspended, he maya. Frustrate his prosecution, and/orb. Commit further acts of malfeasance

4. Suspension of a public official is analogous to issuance of a warrant of arrest upon finding that there is probable cause to believe that a crime has been committed and that the accused is probably guilty thereof

a. In the issuance of a warrant of arrest, the law does not require the judge to determine if the accused is likely to escape or evade the jurisdiction of the court.

5. The usage of the expression “the maximum period of 90 days” in decisions to suspend does not mean that the act is discretionary. The expression is only used to emphasize the proper period of preventive suspension, because it would be excessive and unreasonable if the official were to be suspended for more than 90 days.

6. The 90 day period was adopted from Section 42 of the Civil Service Decree (PD 807), which has now become Section 52 of the Administrative Code of 1987. It provides that:

Sec. 52. Lifting of Preventive Suspension Pending Administrative Investigation. — When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

7. The duration of preventive suspension is equal to the period prescribed for deciding administrative disclipinary cases. In both administrative cases under the Administrative Code and criminal prosecutions under RA 3019, if the case is decided before 90 days have elapsed, the suspension will last less than 90 days. If the case has yet to be decided and 90 days have already elapsed, the suspension will only last up to 90 days.

8. The duration of preventive suspension, therefore, is affected by the time it takes the court to decide the case but not by any discretion lodged in the court.

Re: Sandiganbayan trial finished1. It is immaterial if the Sandiganbayan trial has been concluded because the possibility that Bolastig might intimidate witnesses or

hamper his prosecution is only one ground for preventive suspension. The other ground, to prevent him from committing further acts of malfeasance, is still very much at risk.

Re: Violation of Samar electorate’s rights6. This is not a sufficient basis for reducing an otherwise mandatory period prescribed by law.7. While Bolastig is suspended, the vice governor will act as governor.

8. Even the Constitution allows suspension for a maximum of 60 days of members of Congress found guilty of disorderly behaviour. This rejects the view expressed in the case of Alejandro v Quezon that congressmen cannot be suspended because that would amount to depriving constitutents of representation.

Digested by: Diane Agustin

LOCGOV - #127Ombudsman v. Rodriguez (2010)

Doctrine: The Sangguniang Bayan does not have the power to remove a barangay official from office. The Ombudsman and proper courts are the competent authority in this matter.

Facts: The Ombudsman in Visayas received a complaint for abuse of authority, dishonesty, oppression, misconduct in office, and neglect of duty

against Rodriguez, punong barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental At a later date, the sangguniang bayan of Binalbagan, Negros Occidental received a similar complaint. Rodriguez filed a motion to dismiss the case filed in the sangguniang bayan. The Ombudsman required Rodriguez to file his answer. Rodriguez filed a motion to dismiss the case filed in the Ombudsman on the

grounds of litis pendentia and forum shopping. He alleged that the sangguniang bayan had already acquired jurisdiction. Complainants filed a motion to withdraw the complaint lodged in the sangguniang bayan on the ground that they wanted to prioritize the

complaint filed in the Ombudsman. The municipal vice-mayor dismissed the case filed in thesangguniang bayan.

Petitioner’s arguments: Upon the filing of a complaint before a body vested with jurisdiction, that body has taken cognizance of the complaint. “To take cognizance” means to wit, “to acknowledge or exercise jurisdiction.”

o It had taken cognizance of the complaint against Rodriguez before a similar complaint was filed in the sangguniang bayan. Summons or notices do not operate to vest in the disciplining body jurisdiction over the person of the respondent in an administrative

case. The Ombudsman’s exercise of jurisdiction should be to the exclusion of the sangguniang bayan.

Respondent’s arguments: When a competent body has acquired jurisdiction over a complaint and the person of the respondent, other bodies are excluded from

exercising jurisdiction over the same complaint. Article 124 of the Implementing Rules and Regulations of the LGC

o An elective official may be removed from office by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other.

The sangguniang bayan first acquired jurisdiction over the complaint and his person.

o Jurisdiction over the person of a respondent in an administrative complaint is acquired by the service of summons or other compulsory processes.

Issue/s:Who has acquired jurisdiction over the complaint: The Ombudsman.

Held/Ratio: Paragraph 1, Section 13 of Article XI of the Constitution The Ombudsman shall have the following powers, functions, and duties:

          (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office, or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.

Section 15 of the Ombudsman Act of 1989         Powers, Functions, and Duties. – The Ombudsman shall have the following powers, functions, and duties:          (1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage, from any investigatory agency of Government, the investigations of such cases.

The primary jurisdiction of the Ombudsman to investigate any act or omission of a public officer or employee applies only in cases cognizable by the Sandiganbayan.  In cases cognizable by regular courts, the Ombudsman has concurrent jurisdiction with other investigative agencies of government. Cognizable by the Sandiganbayan: public officials occupying positions corresponding to salary grade 27 and higher.   The Sandiganbayan has no jurisdiction over private respondent who, as punong barangay, is occupying a position corresponding to

salary grade 14. Under the Local Government Code, the sangguniang panlungsod orsangguniang bayan has disciplinary authority over any elective barangay official, to wit: 

        SEC. 61. Form and Filing of Administrative Complaints. – A verified complaint against any erring elective official shall be prepared as follows: x x x x          (c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayanconcerned whose decision shall be final and executory.        

The Ombudsman has concurrent jurisdiction with the sangguniang bayan over administrative cases against elective barangay officials occupying positions below salary grade 27, such as private respondent in this case. 

 Laxina, Sr. v. Ombudsman The rule against forum shopping applies only to judicial cases or proceedings, not to administrative cases. In administrative cases, the body in which the complaint is filed first, and which opts to take cognizance of the case, acquires jurisdiction

to the exclusion of other tribunals exercising concurrent jurisdiction.

In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman opted to assume jurisdiction over the complaint, the Ombudsman’s exercise of jurisdiction is to the exclusion of the sangguniang bayan exercising concurrent jurisdiction.  Section 60 of the LGC The sangguniang bayan has no power to remove an elective barangay official. Apart from the Ombudsman, only a proper court may do

so.

Digested by Roe Anuncio

LOCGOV – 128

Manuel Laxina Sr. v. Ombudsman, DILG Sec. Jose Lina and Mayor Feliciano Belmonte (2005)

J. Tinga

Doctrine: The Constitution mandates the Ombudsman to investigate complaints against erring public officials. RA 6770 gives the Ombudsman or his deputies jurisdiction over complaints on all kinds of malfeasance, misfeasance and non-feasance. On the other hand, RA 7160 (Local Gov’t Code) the sangguniang panglungsod or sangguniang bayan has disciplinary authority over any elective barangay official. The aforequoted laws show that the Ombudsman may have concurrent jurisdiction with city councils over administrative cases against elective officials.

Facts:

1. Manuel Laxina Sr. was Brgy Chairman of Batasan Hills, QC. Batasan Hills brgy. clerk Evangeline Ursal filed a complaint for attempted rape against Laxina, with the NBI. Laxina was thereafter charged with sexual harassment before the RTC of QC.

2. March 13, 2000 – Ursal filed a complaint affidavit before the DILG against Laxina for grave misconduct (due to the alleged attempted rape). DILG referred the complaint to the QC Council as an administrative case. Ursal then filed with the Ombudsman a similar complaint-affidavit, charging the same thing.

3. The Administrative Adjudication Bureau (AAB) of the Ombudsman exonerated Laxina, for lack of evidence.

4. July 2, 2001 – Laxina was found guilty of grave misconduct and his dismissal was ordered through a Memorandum Order by the Ombudsman. Laxina filed an MR, alleging lack of jurisdiction on the part of the Ombudsman. MR was denied.

5. Ursal asked the City Council to waive its jurisdiction in favor of the Ombudsman; request was just noted.6. As AAB ordered, QC Mayor Belmonte issued order to implement the Ombudsman’s Memorandum Order7. CA dismissed Laxina’s petition, alleging that Laxina was estopped from impugning the Ombudsman’s jurisdiction as he had already

participated in the proceedings before the Ombudsman and he only questioned the Ombudsman’s jurisdiction after it had found him guilty of grave misconduct.

a. Ombudsman’s assumption of jurisdiction was justified since it became aware of the earlier case before the City Council only with Laxina’s filing of an MR.

b. Ombudsman was justified in not dismissing the administrative cases as penalty for forum-shopping because Laxina and Ursal are in pari delicto.

Petitioner’s Arguments:

1. Office of the Ombudsman had no jurisdiction over the administrative complaint. Ursal’s filing of the same administrative case before the Ombudsman and the City Council through the DILG should have led to the dismissal of both cases

2. He was denied due process in the proceedings before the Ombudsman because his dismissal was ordered without substantial evidence and without consideration of his own evidence

3. CA was wrong when it refused to prevent respondents from prematurely implementing the memorandum order dismissing him despite the fact that the order is not yet final and executory (based on Lapid v. CA)

4. Estoppel cannot apply to him because he never invoked the jurisdiction of the Ombudsman or sought relief therefrom. 5. He is entitled to reinstatement because Admin. Order 7, amended by AO 14-A of the Ombudsman decreeing that all administrative

orders and decisions are immediately executory notwithstanding the perfection of an appeal is contrary to the mandate of RA 6770Respondents’ Arguments (Ombudsman’s):

1. City Council’s assumption of jurisdiction over the case will not deprive the Ombudsman of jurisdiction over a similar case filed before it. Even if there was forum-shopping, Laxina is estopped from questioning such defect. Also, since an administrative proceeding is involved, technical rules of procedure and evidence are not strictly applied.

Issue: W/N the Ombudsman had jurisdiction over the administrative complaint filed against Laxina despite the fact that a similar complaint has already been filed with the DILG and forwarded to the City Council.

Held/Ratio: YES

1. Forum-shopping applies only to judicial cases and not to administrative cases. a. Petitioner did not cite any rule or circular on forum shopping issued by the Ombudsman or the City Council. Only on Sept. 15,

2003 did the Ombudsman (through AO 17) require a certificate of non-forum shopping to be attached to the written complaint against a public official or employee. SC administrative circulars cited by the petitioner only mentioned initiatory pleadings

(e.g., original complaint, counterclaim, cross-claim, 3rd (4th, etc.) party complaint, complaint –in-intervention, petition) in a court of law when another case is pending before other tribunals or agencies of the government

b. The identical complaint-affidavits filed by Ursal before the City Council and the Ombudsman are not typical initiatory pleadings, as they only contain a recital of the alleged culpable acts of Laxina. Ursal did not make any claim for relief or ask for penalty for Laxina.

2. Ombudsman has jurisdiction over the case despite the City Council acquiring jurisdiction over the matter earlier. a. The Constitution mandates the Ombudsman to investigate complaints against erring public officials. RA 6770 gives the

Ombudsman or his deputies jurisdiction over complaints on all kinds of malfeasance, misfeasance and non-feasance. On the other hand, RA 7160 (Local Gov’t Code) the sangguniang panglungsod or sangguniang bayan has disciplinary authority over any elective barangay official. The aforequoted laws show that the Ombudsman has concurrent jurisdiction with the QC city council over administrative cases against elective officials like Laxina.

b. Ombudsman was not aware of the pending case before the QC city council when the administrative complaint was filed before it and there was also no mention of such complaint in the complaint-affidavit or in the counter-affidavit of Laxina.

3. Estoppel prevents Laxina from raising questions on the jurisdiction of the Ombudsmana. Estoppel by laches – failure or neglect for an unreasonable and unexplained length of time to do what, by exercising due

diligence, ought to have been done earlier, which raises the presumptio that the party entitled to assert it has abandoned it or acquiesced to the correctness of its resolution. (Based on public policy, to discourage stale claims)

b. Laxina is estopped because he participated in the proceedings before the Ombudsman by filing his counter-affidavit with supporting evidence. He also did not inform the Ombudsman of the other administrative complaint before the QC City Council.

i. Participation in the administrative proceedings w/o raising an objection to it bars the parties from raising jurisdictional infirmity after an adverse decision is rendered against them.

4. Petitioner was not deprived due process as he was granted the opportunity to be heard, as he was required to answer the formal charge and given a chance to present evidence on his behalf. Also, the decision of the Ombudsman is supported by substantial evidence.

a. Laxina’s reliance on the rules on the prosecution of rape is misplaced before before the Ombudsman, the issue is whether his acts constitute grave misconduct and not if he is guilty of rape.

b. Laxina’s evidence was not credible, while Ursal’s allegations were, because said allegations were backed up by medical findings, NBI reports and attendant circumstances.

5. It was improper for the Ombudsman to order the implementation of the Memorandum Order before it became final and executorya. Lapid v. CA – Sec. 27 of the Ombudsman Act all other decisions of the Ombudsman which impose penalties that are not

enumerated in Sec. 27 are not final and immediately executory. A timely appeal (like the one filed by Laxina) will stay the immediate implementation of the decision. The judgment will only become final after the lapse of the reglementary period of appeal if not appeal is perfected, and only then will it be a final and executory judgment where execution will issue as a matter of right.

i. Laxina’s prayed for injunction however cannot be granted anymore as the implementation has already been effected, Laxina had already stepped down and a new barangay chairman for Batasan Hills has already been sworn in.

Digested by: Robert Beltejar

LOCGOV - #129Espiritu v Melgar (1992)

Doctrine: The Judge of the RTC may not stop the provincial governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter.

Facts:1. Mayor Melgar was giving a speech. In the middle of his speech Garing was clapping which distracted Mayor Melgar. After his speech

Garing claims that Mayor Melgar had him arrested and detained in jail. Moreover, Garing claims that Mayor Melgar even punched and kicked him.

2. Ramir Garing filed a sworn letter-complaint with Secretary Luis Santos of the Department of Interior and Local Government charging Mayor Nelson Melgar of Naujan, Oriental Mindoro, with grave misconduct, oppression, abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service.

3. Garing filed with the Provincial Governor of Oriental Mindoro (petitioner Governor Benjamin I. Espiritu) accusing Mayor Melgar of the same violations of law and requesting that the mayor be placed under preventive suspension pending investigation of the charges.

4. A 3rd complaint filed by Garing with the Presidential Action Center, Office of the President of the Philippines, was forwarded to Governor Espiritu with a request for prompt action.

5. The Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No. 55 on May 9, 1991, recommending to the Provincial Governor that respondent Mayor be preventively suspended for 45 days pending the investigation of the administrative complaint.

6. Melgar filed a motion to dismiss the administrative complaint. This was denied by the Sangguniang Panlalawigan.7. Pursuant to the recommendation of the Sangguniang Panlalawigan in its Resolution No. 55, Governor Espiritu placed Mayor Melgar

under preventive suspension on the ground that there is reasonable ground to believe that Mayor Melgar has committed the acts stated in the complaint and affidavit of Garing and corroborated by the affidavits of his witnesses.

8. Mayor Melgar received the Order of Suspension and forthwith filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the RTC of Oriental Mindoro.

9. RTC Judge Virola issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of suspension against Mayor Melgar for there was a preponderance of evidence rebutting the complaint of Gairing.

10. Governor Espiritu filed a motion to dismiss and/or for reconsideration which Judge Virola denied.

Petitioner’s arguments:1. Gov. Espiritu asks the Court that the writ of preliminary injunction issued by Judge Virola enjoining him from implementing the Order

of suspension be lifted.

2. Gov, Espiritu submits that respondent Judge Virola acted without jurisdiction or with grave abuse of discretion in issuing: (1) the writ of preliminary injunction restraining Governor Espiritu from implementing the order of preventive suspension, and (2) in denying petitioner's motion to dismiss Special Civil Action No. R-5003 .

3. As Provincial Governor, Gov. Espiritu is empowered by Section 63 of the Local Government Code to place an elective municipal official under preventive suspension pending decision of an administrative case against the elective municipal official.

4. Gov. Espiritu did not commit a grave abuse of discretion in placing respondent mayor under preventive suspension.5. By express provision of Section 61 of the Local Government Code, the Sangguniang Panlalawigan has jurisdiction over complaints

against any elective municipal official; on the other hand, Section 19(c) of the Judiciary Reorganization Act of 1980 withdraws from regional trial courts jurisdiction over cases within the exclusive jurisdiction of any person, tribunal or body exercising judicial or quasi-judicial functions. Thus, by practically deciding the administrative case on the merits, the respondent court acted without jurisdiction.

6. Mayor Melgar had a remedy of appeal under Section 66 of the Local Government Code.7. Section 63, Chapter IV of the Local Government Code provides that the provincial governor of Oriental Mindoro is authorized by law

to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist:1. When there is reasonable ground to believe that the respondent has committed the act or acts complained of;2. When the evidence of culpability is strong;3. When the gravity of the offense so warrants; or4. When 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.

Respondent’s arguments: 1. Mayor Melgar alleges that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor

Issue: WON Judge of the RTC of Oriental Mindoro may stop the provincial governor from placing a municipal mayor under preventive suspension pending the investigation of administrative charges against the latter. No.

Held/Ratio:

1. The RTC had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case.2. Since Mayor Melgar believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first

from the Secretary of Interior and Local Government, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature

3. However, since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order issued and therefore has already been served, he is deemed reinstated in office without prejudice to the continuation of the administrative investigation of the charges against him (Sec. 63, subpar. 3, Local Government Code).

Digested by: Jamie Chan

LOCGOV - #130Bunye v Escareal

Doctrine:Preventive suspension is not a penalty and is mandated by law.

Facts:

The Sandiganbayan suspended the municipal mayor, vice-mayor and incumbent councilors or members of the Sangguniang Bayan of Muntinlupa pending their trial for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act. The accused allegedly forcible took possession of the Public Market despite a subsisting lease between the municipality and the Kilusang Suspension was ordered pursuant to Section 13 of Republic Act No. 3019. Now the accused officers want to dissolve the suspension order of the Sandiganbayan.Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)Petitioner’s argument is that preventive suspension is unnecessary since they already admitted in 4 pleadings that they indeed approved Kapasiyahan Blg. 45 and wrestled management of the Public Market. As a result the fear of the court that they might use their position to tamper with records no longer holds ground. With the admission, there is no longer a factual issue but only a legal question as to whether or not the cancellation by the petitioners of the Cooperative's subsisting lease contract over the Municipal Public Market was justified by public interest or general welfare. Absent any need for testimonial and/or documentary evidence, any apprehension that the petitioners might intimidate or coerce prospective witnesses against them, or tamper with office records under their control, is "more imaginary than real". Also their preventive suspension will "sow havoc and confusion in the government of the Municipality of Muntinlupa since no one will be able to run the municipality when they’re suspended.Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)Respondents are the Sandiganbayan justices. On the motion of the Public Prosecutor, and over the opposition of the accused, the Sandiganbayan issued on May 11, 1993 a resolution suspending them pendente lite from public office pursuant to Section 13 of Republic Act No. 3019 which provides:

Sec. 13. Suspension and loss of benefits. — Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall been titled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

Issue/s: W/N the officials may be preventively suspended.

Held/Ratio: Yes

The Court denied the petitioner’s motion against the suspension.Section 13 of R.A. No. 3019, as amended, unequivocally provides that the accused public officials "shall be suspended from office" while the criminal prosecution is pending in court. As stated in Gonzaga, preventive suspension is mandatory.Petitioner’s claim that such suspension is unconstitutional since it’s a violation of their presumption on innocence does not hold ground.Preventive suspension is not violative of the Constitution as it is not a penalty. Regarding their argument that there is no more need to introduce factual evidence given their admission, the Solicitor General correctly replied that it is not for the petitioners to say that their admissions are all the evidence that the prosecution will need to hold up its case against them. The prosecution must be given the opportunity to gather and prepare the facts for trial under conditions which would ensure nonintervention and noninterference for ninety (90) straight days from petitioners' camp" Fear of paralysis of the municipality is also unfounded. There will still remain eight (8) councilors who can meet as the Sangguniang Bayan. The President and the DILG will be the one to deal with fillinf up the temporary vacant positions in accordance with the LGC.Dissenting opinion: (if any)

Digested by: Chua

LOCGOV – 131

TOLENTINO vs COMELEC (2010)

Bersamin, J.

FACTS:

As a result of the May 14, 2007 elections, Tolentino and De Castro were proclaimed as the duly elected Mayor and Vice Mayor of Tagaytay City. Private respondents contested the elections results in 116 ballot boxes by filing separate election protests.

The Second Division of the COMELEC to which the protests were raffled required the City Treasurer of Tagaytay to inventory the protested ballot boxes and to turn them over to the Election Officer of Tagaytay for delivery and submission to the COMELEC.

o Out of the 116 contested ballot boxes, 44 were involved in the election protest of Koko Pimentel (against Migs Zubiri) and were delivered to the Senate Electoral Tribunal. 16 out of the 44 were marked as improperly sealed.

o Of the 72 ballot boxes remaining, 24 were set aside due to apparent sealing defects and irregularities. (40 out of the 116 in total were improperly sealed)

Upon receipt of the 72 ballot boxes, the Division ordered the constitution of 4 Revision Committees.o Revision: [Sec 6, Rule 20 of the COMELEC Rules of Procedure] When the allegations in a protest or counter-protest so warrant,

or when the interest of justice so demands (general averment of fraud or irregularities), revision of ballots shall be ordered – examination of the ballots and recounting of votes.

o Manner of doing the revision as ordered by the Division: to convene and commence the revision of the 72 ballot boxes in such a way that whenever a ballot box was opened, its contents should be revised for all of the three protest cases before opening the next ballot box (per case basis).

o SET allowed that the revision of the 44 boxes in its custody be done in its premises. Tolentino and De Castro moved for reconsideration of the order of the Division. Tolentino raised the issue of prematurity raising the

absence of guidelines or procedure on the per case basis and the fact that not all the disputed ballot boxes are in the custody of the COMELEC. De Castro sought to suspend the revisions also on the ground of the absence of guidelines on how the simultaneous revision of the ballot boxes in the SET’s custody will be conducted. (Their end goal: to delay the opening of the ballot boxes)

o Division answered guidelines are not necessary because the revision will also be on a per case basis, thus, the same rules shall apply.

Petitioners’ Arguments:

Tolentino: The Division should first resolve the issue of the inclusion or exclusion of the protested ballot boxes; that there must first be a determination whether the ballots found in the ballot boxes (particularly those improperly sealed) were the same as the ballots cast and counted in the elections.

o In a supplement to his petition, Tolentino alleges that there was a violation of his right to due process by the non-observance of the cardinal rules of due process in administrative adjudications and by piece-meal resolution of pending incidents. The case did not state how Tolentino supported his allegation of non-observance of the cardinal rules except in the ratio where the court supported its finding that there was no denial of due process.

De Castro: That the obstinate refusal of the Division to issue an order setting forth the ground rules for the per case revision of the ballots was an omission amounting to grave abuse of discretion and a denial of his substantive and procedural right to due process.

Respondent’s Arguments:

That the boxes should be opened because the determination of the full integrity of the ballot boxes and their contents could only be made if the status and conditions of the contents were also considered.

That the COMELEC issued sufficient and adequate rules of procedure for the revision of the questioned boxes ballots for as mandated, the normal procedure of revision should be followed, implying that the procedure in previous revision of ballots will be maintained.

ISSUE: WON the petitioners’ due process rights were violated

RULING: No. (The guidelines were adequately set by the Division)

Cardinal rules of Due Process enunciated in the case of Ang Tibay vs CIR:

1. The right to a hearing which includes the right to present one’s case and submit evidence in support thereof;2. The tribunal must consider the evidence presented;3. The decision must have something to support itself;

4. The evidence must be substantial. Substantial evidence is such reasonable evidence as a reasonable must might accept as adequate to support a conclusion;

5. The decision must be based on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected;

6. The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate; and

7. The tribunal or body should render its decision in such a manner that the parties to the proceeding can know the various issues involved and the reason for the decision rendered.

The Ang Tibay formulation was overlapping and repetitious. Hence, in Air Manila, Inc vs. Balatbat, the formulation was simplified into 4 basic rights:

1. The right to notice, be it actual or constructive, of the constitution of the proceedings that may affect a person’s legal right;2. The right to a reasonable opportunity to appear and defend his rights and to introduce witnesses and relevant evidence in his favor;3. The right to a tribunal so constituted as to give him reasonable assurance of honesty and impartiality; and one of competent

jurisdiction; and4. The right to a finding or decision of that tribunal supported by substantial evidence presented at the hearing or at least ascertained in

the records or disclosed to the parties.

Based on the said enumeration, the parties were not denied procedural due process. The Division had required them to provide the names of their revisors whose tasks included the raising of objections, claiming of votes for the one represented, or contesting the votes in favor of the opponent. Tolentino never alleged that he or his revisors were denied opportunity or access to the revision proceedings. He also could not insist that his arguments were not considered; besides, he may still raise them during the revision proceedings.

Stayfast Philippines Corporation vs NLRC: The essence of due process is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. What is frowned upon is the absolute lack of notice and hearing.

Digested by: Kaye de Chavez

LOCGOV - #132Acuzar v Jarolan and Hon. Apresa (2010)

Facts:

Respondent Jorolan filed an administrative case against petitioner before the PLEB, charging the latter of Grave Misconduct, for allegedly having an illicit relationship with respondent’s minor daughter. Respondent also instituted a criminal case against petitioner before the MTC, for violation of the Child Abuse Act.Petitioner filed his Counter-Affidavit before the PLEB vehemently denying all the accusations. Petitioner attached the affidavit of complainant’s daughter, who denied having any relationship with the petitioner or having kissed him despite knowing him to be a married. Petitioner filed a motion to suspend the proceedings before the PLEB, pending resolution of the criminal case filed before the regular court. The PLEB denied his motion for lack of merit, and a hearing of the case was conducted. The PLEB also denied petitioner’s MR.PLEB issued a decision finding SPO1 Acuzar GUILTY of GRAVE MISCONDUCT (Child Abuse), punishable by DISMISSAL effective immediately. Petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary Restraining Order with the RTC. Petitioner alleged that the decision was issued without giving him an opportunity to be heard, that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having been first convicted in the criminal case before the regular court. Under the PLEB Rules of Procedure, prior conviction was required before the Board may act on the administrative case, considering that the charge was actually for violation of law, although denominated as for grave misconduct.RTC rendered a Decision annulling the Decision of the PLEB, given that petitioner was not given his day in Court. The hearing at the People’s Law Enforcement Board, although administrative in nature, has penal sanction of dismissal and for forfeiture of benefits of the petitioner. The petitioner should be afforded all the opportunities of hearing which principally includes the reception of his evidence consistent with our established rules. Due process of law embraces not only substantive due process, but also procedural due process.The Court does not tolerate any form of misconduct committed by members of the Philippine National Police. However, it equally considers the right of the petitioner enshrined under the Bill of Rights and the deprivation of petitioner’s gainful employment which is the economic life blood of the family, especially the innocent dependents.Respondent elevated the case to the CA, which set aside the trial court’s decision, ruling that the petition was not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law but both questions of law and fact. The existence and availability of the right of appeal proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedy of appeal or any other plain, speedy or adequate remedy. Petitioner should have appealed the decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court. While it is true that there are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant immediate resort to it.

Petitioner’s arguments: (Note: include petitioner’s relief, position, and legal basis)Petitoner: SPO1 Leonito AcuzarPetition for review on certiorari under Rule 45 filed by SPO1 Acuzar assailing the Decision of the CA.

Petitioner contends that the petition he filed before the trial court was appropriate because the case falls under the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal.

A conviction should have been first obtained in the criminal case filed against him for child abuse before the PLEB can acquire jurisdiction over his administrative case. Although the case filed before the PLEB was captioned as “Grave Misconduct,” the offense charged was actually for “Violation of Law,” which requires prior conviction before a hearing on the administrative case can proceed. PLEB should have awaited the resolution of the criminal case before conducting a hearing on the administrative charge against him.The Board’s decision was reached without giving him an opportunity to be heard and his right to due process was violated. The Board’s decision having been rendered without jurisdiction, appeal was not an appropriate remedy.

Respondent’s arguments: (Note: include respondent’s position, reason for opposing petitioner’s claim, jurisprudence, and legal basis)Respondents: Aproniano Jorolan (complainant), Chairman Apresa of the PLEB Davao del NortePetition for certiorari was not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law but both questions of law and fact. The existence and availability of the right of appeal proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedy of appeal or any other plain, speedy or adequate remedy. Petitioner should have appealed the decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court. While it is true that there are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant immediate resort to it.

Issue/s:W/N the CA erred in ruling that petitioner’s resort to certiorari was not warranted as the remedy of appeal from the decision of the PLEB was available to him

Held/Ratio: The Court affirms the CA ruling.

Petitioner was charged with grave misconduct for engaging in an illicit affair with respondent’s minor daughter, he being a married man, and not for violation of law.

Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose. It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment. “Violation of law” presupposes final conviction in court of any crime or offense penalized under the Revised Penal Code or any special law or ordinance.Criminal and administrative cases are separate and distinct from each other. In criminal cases, proof beyond reasonable doubt is needed whereas in administrative proceedings, only substantial evidence is required. Administrative cases may

proceed independently of criminal proceedings. The PLEB, being the administrative disciplinary body tasked to hear complaints against erring members of the PNP, has jurisdiction over the case.

Remedy of appeal from the decision of the PLEB to the Regional Appellate Board was available to petitioner. Since appeal was available, filing a petition for certiorari was inapt. The principle of exhaustion of administrative remedies requires that before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of the means of administrative processes afforded to him. Contrary to petitioner’s claim that he has not been afforded all the opportunity to present his side, our own review of the records of the proceedings before the PLEB reveals otherwise.

In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondent’s legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’s rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected. Petitioner was notified of the complaint against him and in fact, he had submitted his counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even asked for several postponements. Petitioner cannot claim that he had been denied of due process. Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. It is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Petitioner had more than enough opportunity to present his side and adduce evidence in support of his defense; thus, he cannot claim that his right to due process has been violated.

Digested by: DE LEON

LOCGOV - # 133Wilfredo Catu v. Atty. Vicente Rellosa (2008)

Doctrine:

Facts: Barangay Conciliation case: o Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon located at 959 San Andres Street, Malate, Manila.

o His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu and Antonio Pastor of one of the units in the building when the latter ignored demands for them to vacate the premises.

o As a result, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila where the parties reside.

o Atty. Rellosa, as punong barangay of Barangay 723, presided over the conciliation meetings. -> When the parties failed to arrive at an amicable settlement, he issued a certification for the filing of the appropriate action in court.

MTC Ejectment case: o After the barangay proceedings, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the MTC of Manila. o Thereafter, Atty. Rellosa entered his appearance as counsel for the defendants in that case.

Because of this, Catu filed an administrative complaint claiming that Atty. Rellosa committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. -> The complaint was referred to the IBP for investigation, report and recommendation.

IBP’s findings: o After evaluating the contentions of the parties, the IBP-CBD (Commission on Bar Discipline) found sufficient ground to discipline Atty.

Rellosa.o According to the IBP-CBD, in the course of the MTC proceedings, Rellosa prepared and signed pleadings including the answer with

counterclaim, pre-trial brief, position paper and notice of appeal. -> By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:Rule 6.03 – A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service.

o The IBP furthermore found that as an elective official, Rellosa contravened the prohibition under Section 7(b)(2) of RA 6713SEC. 7. Prohibited Acts and Transactions . – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:

 (b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions;

o Moreover, according to the IBP-CBD, Rellosa’s violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:Canon 1. A lawyer shall uphold the constitution, obey the laws of the land,promote respect for law and legal processes.

o the IBP-CBD recommended Rellosa’s suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely. -> This was adopted and approved by the IBP Board of Governors.

The case was brought before the SC.

Petitioner’s arguments:

According to Catu, Atty. Rellosa committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay.

Respondent’s arguments: Atty. Rellosa claimed that one of his duties as punong barangay was to hear complaints referred to the barangay’s Lupong Tagapamayapa

and as such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor. According to him, as head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the

parties. However, the parties were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case and it was then that

Elizabeth sought his legal assistance. According to Rellosa, he acceded to her request for free because she was financially distressed and he wanted to prevent the commission

of a patent injustice against her.

Issue/s:WON Atty. Rellosa should be held responsible for professional misconduct

Held/Ratio:Yes, but the court cited a different set of legal basis for his liability. According to the court, contrary to the IBP’s findings, Atty. Rellosa cannot be found liable for violation of Rule 6.03 of the Code of

Professional Responsibility because it applies only to a lawyer who has left government service and in connection “with any matter in which he intervened while in said service.” o PCGG v. Sandiganbayan -> Rule 6.03 prohibits former government lawyers from accepting “engagement or employment in connection

with any matter in which [they] had intervened while in said service.”o Since Rellosa was an incumbent punong barangay at the time he committed the act complained of, he was not covered by that

provision The court further noted that the for elective local government officials, Section 90 of RA 7160 governs their practice of profession and

not RA 6713 as cited by the IBP. o The court explained that since RA 7160 is a special law with a definite scope (that is, the practice of profession by elective local

officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees pursuant to the principle of lex specialibus derogat generalibus.

o Under RA 7160, while certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay.

o Applying the latin maxim expressio unius est exclusio alterius, the court said that since punong barangays are excluded from any prohibition, the presumption is that they are allowed to practice their profession because they are not mandated to serve full time. 

o Accordingly, as punong barangay, respondent was not forbidden to practice his profession. o However, the court emphasized that he should have procured prior permission or authorization from the head of his Department, as

required by civil service regulations.

While the court held that Atty. Rellosa was not prohibited to practice his profession while serving as a punong barangay, it also said that he violated civil service regulations for not obtaining prior permission from the head of his department.o According to the court, a civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of

the government can engage in the private practice of law only with the written permission of the head of the department concerned pursuant to Section 12, Rule XVIII of the Revised Civil Service Rules. 

o As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. -> This Atty. Rellosa failed to do which constitutes a violation of his oath as a lawyer: to obey the laws. 

o Furthermore, in acting as counsel for a party without first securing the required written permission, Rellosa not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility which states that:Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

o The court also held that Rellosa did not live up to his oath as well as did not comply with the exacting ethical standards of the legal profession, in violation of Canon 7 of the Code of Professional Responsibility:Canon 7.A lawyer shall at all times uphold the integrity and the dignity of the legal profession and support the activities of the integrated bar.

In the end, the court found Atty. Rellosa guilty of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. o As a result, he was suspended from the practice of law for a period of 6 months and was sternly warnedthat any repetition of similar

acts shall be dealt with more severely.o As a final note, the court strongly advised him to look up and take to heart the meaning of the word delicadeza.

Digested by: Lindsey Supremo Fabella

LOCGOV - # 133Wilfredo Catu v. Atty. Vicente Rellosa (2008)

Doctrine:

Facts: Barangay Conciliation case: o Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon located at 959 San Andres Street, Malate, Manila. o His mother and brother, Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-Catu and Antonio Pastor of one of

the units in the building when the latter ignored demands for them to vacate the premises.

o As a result, a complaint was initiated against them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5th District of Manila where the parties reside.

o Atty. Rellosa, as punong barangay of Barangay 723, presided over the conciliation meetings. -> When the parties failed to arrive at an amicable settlement, he issued a certification for the filing of the appropriate action in court.

MTC Ejectment case: o After the barangay proceedings, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor in the MTC of Manila. o Thereafter, Atty. Rellosa entered his appearance as counsel for the defendants in that case.

Because of this, Catu filed an administrative complaint claiming that Atty. Rellosa committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. -> The complaint was referred to the IBP for investigation, report and recommendation.

IBP’s findings: o After evaluating the contentions of the parties, the IBP-CBD (Commission on Bar Discipline) found sufficient ground to discipline Atty.

Rellosa.o According to the IBP-CBD, in the course of the MTC proceedings, Rellosa prepared and signed pleadings including the answer with

counterclaim, pre-trial brief, position paper and notice of appeal. -> By so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:Rule 6.03 – A lawyer shall not, after leaving government service, accept engagement or employment in connection with any matter in which he intervened while in said service.

o The IBP furthermore found that as an elective official, Rellosa contravened the prohibition under Section 7(b)(2) of RA 6713SEC. 7. Prohibited Acts and Transactions . – In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official ands employee and are hereby declared to be unlawful:

 (b) Outside employment and other activities related thereto. – Public officials and employees during their incumbency shall not:

(2) Engage in the private practice of profession unless authorized by the Constitution or law, provided that such practice will not conflict or tend to conflict with their official functions;

o Moreover, according to the IBP-CBD, Rellosa’s violation of this prohibition constituted a breach of Canon 1 of the Code of Professional Responsibility:Canon 1. A lawyer shall uphold the constitution, obey the laws of the land,promote respect for law and legal processes.

o the IBP-CBD recommended Rellosa’s suspension from the practice of law for one month with a stern warning that the commission of the same or similar act will be dealt with more severely. -> This was adopted and approved by the IBP Board of Governors.

The case was brought before the SC.

Petitioner’s arguments: According to Catu, Atty. Rellosa committed an act of impropriety as a lawyer and as a public officer when he stood as counsel for the

defendants despite the fact that he presided over the conciliation proceedings between the litigants as punong barangay. Respondent’s arguments:

Atty. Rellosa claimed that one of his duties as punong barangay was to hear complaints referred to the barangay’s Lupong Tagapamayapa and as such, he heard the complaint of Regina and Antonio against Elizabeth and Pastor.

According to him, as head of the Lupon, he performed his task with utmost objectivity, without bias or partiality towards any of the parties.

However, the parties were not able to amicably settle their dispute and Regina and Antonio filed the ejectment case and it was then that Elizabeth sought his legal assistance.

According to Rellosa, he acceded to her request for free because she was financially distressed and he wanted to prevent the commission of a patent injustice against her.

Issue/s:WON Atty. Rellosa should be held responsible for professional misconduct

Held/Ratio:Yes, but the court cited a different set of legal basis for his liability. According to the court, contrary to the IBP’s findings, Atty. Rellosa cannot be found liable for violation of Rule 6.03 of the Code of

Professional Responsibility because it applies only to a lawyer who has left government service and in connection “with any matter in which he intervened while in said service.” o PCGG v. Sandiganbayan -> Rule 6.03 prohibits former government lawyers from accepting “engagement or employment in connection

with any matter in which [they] had intervened while in said service.”o Since Rellosa was an incumbent punong barangay at the time he committed the act complained of, he was not covered by that

provision The court further noted that the for elective local government officials, Section 90 of RA 7160 governs their practice of profession and

not RA 6713 as cited by the IBP. o The court explained that since RA 7160 is a special law with a definite scope (that is, the practice of profession by elective local

officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of profession by public officials and employees pursuant to the principle of lex specialibus derogat generalibus.

o Under RA 7160, while certain local elective officials (like governors, mayors, provincial board members and councilors) are expressly subjected to a total or partial proscription to practice their profession or engage in any occupation, no such interdiction is made on the punong barangay and the members of the sangguniang barangay.

o Applying the latin maxim expressio unius est exclusio alterius, the court said that since punong barangays are excluded from any prohibition, the presumption is that they are allowed to practice their profession because they are not mandated to serve full time. 

o Accordingly, as punong barangay, respondent was not forbidden to practice his profession. o However, the court emphasized that he should have procured prior permission or authorization from the head of his Department, as

required by civil service regulations. While the court held that Atty. Rellosa was not prohibited to practice his profession while serving as a punong barangay, it also said that

he violated civil service regulations for not obtaining prior permission from the head of his department.

o According to the court, a civil service officer or employee whose responsibilities do not require his time to be fully at the disposal of the government can engage in the private practice of law only with the written permission of the head of the department concerned pursuant to Section 12, Rule XVIII of the Revised Civil Service Rules. 

o As punong barangay, respondent should have therefore obtained the prior written permission of the Secretary of Interior and Local Government before he entered his appearance as counsel for Elizabeth and Pastor. -> This Atty. Rellosa failed to do which constitutes a violation of his oath as a lawyer: to obey the laws. 

o Furthermore, in acting as counsel for a party without first securing the required written permission, Rellosa not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility which states that:Rule 1.01 – A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.

o The court also held that Rellosa did not live up to his oath as well as did not comply with the exacting ethical standards of the legal profession, in violation of Canon 7 of the Code of Professional Responsibility:Canon 7.A lawyer shall at all times uphold the integrity and the dignity of the legal profession and support the activities of the integrated bar.

In the end, the court found Atty. Rellosa guilty of professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and Rule 1.01 of the Code of Professional Responsibility. o As a result, he was suspended from the practice of law for a period of 6 months and was sternly warnedthat any repetition of similar

acts shall be dealt with more severely.o As a final note, the court strongly advised him to look up and take to heart the meaning of the word delicadeza.

Digested by: Lindsey Supremo Fabella

LOCGOV - 134Republic of the Philippines v. Rambuyong (2010)

Doctrine: Section 446 of the LGC provides that “the sangguniang bayan, the legislative body of the municipality, shall be composed of the municipal vice mayot as the presiding officer.” Under Section 90(b)(1) of the Local Government Code, Sanggunian members are prohibited to appear as counsel before any court wherein any office, agency or instrumentality of the government is the adverse party.

Facts: - Nature: Petition for review assailing a decision of the CA which dismissed the petition before it and denied MR- Alfredo Y. Chua filed a case for collection of a sum of money and/or damages against the National Power Corporation (NPC) in RTC –

Ipil, Zamboanga Sibugay. Atty. Richard Rambuyong, then incumbent Vice-Mayor of Ipil, appeared as his counsel. - NPC filed a Motion for Inhibition of Atty. Rambuyong, arguing that under Section 90(b)(1) of the Local Government Code, Sanggunian

members are prohibited to appear as counsel before any court wherein any office, agency or instrumentality of the government is the adverse party. NPC contended that, being a government-owned or controlled corporation, it is within the term ‘instrumentality’.

- RTC: GOCCs are excluded in the aforementioned section of the LGC because other provisions in the law include the phrase “including GOCCS” but that does not, showing the intent of the framers of the law MR denied Petition for certiorari with the CA CA dismissed the petition MR denied

Petitioner’s arguments: - Courts are not allowed to distinguish where the law makes no distinction.- RTC acted beyong its scope of jurisdiction when it constricted the definition of ‘insrumentality’ to exclude GOCCs.- The government’s challegne against Atty. Rambuyong’s appearance is directed against him alone to the exclusion of his client whose

ight to prosecute his claim as party litigant is beyond question.

Respondent’s arguments: - The party who would be benefited or injured by the compulsory inhibition of plaintiff’s counsel is the plaintiff who is the real party in

interest in the original case. Rambuyong’s inclusion in the present petition is erroneous.

Issue/s: WON NPC is an instrumentality of the government such that Rambuyong should not appear as counsel before it.

Held/Ratio: Petition is granted. Rambuyong is disqualified to appear.- Relevant provisions in law:

o Administrative Code of 1987: SECTION 2. General Terms Defined. — Unless the specific words of the text, or the context as a whole, or a particular statute, shall require a different meaning: xxx (4) Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein xxx (10) Instrumentality refers to any agency of the National Government, not integrated within the department framework vested with 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 government-owned or controlled corporations.

o Local Government Code: Section 5.Rules of Interpretation. - In the interpretation of the provisions of this Code, the following rules shall apply: xxx (e) In the resolution of controversies arising under this Code where no legal provision or jurisprudence applies, resort may be had to the customs and traditions in the place where the controversies take place.

- Aparri v. Court of Appeals: It is the rule in statutory construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction. The courts may not speculate as to the probable intent of the legislature apart from the words. The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute.

- Section 2 of the Administrative Code is clear and unambiguous so there is no room for construction. It is clear that NPC is a government instrumentality.

o Maceda v. Macaraig, Jr. : NPC is a government instrumentality with the task of undertaking the development of hydroelectric generation of power and production of electricity from other sources as well as transmission of electric power on a nationwide basis.

- Given the categorical words of both law and jurisprudence, to go to extraordinary lengths to interpret the lawmakers’ intention is grave abuse of discretion.

- Section 446 of the LGC provides that “the sangguniang bayan, the legislative body of the municipality, shall be composed of the municipal vice mayot as the presiding officer.” Thus, pursunt to Section 90(b)(1) of the LGC, Atty. Rambuyong as sanggunian member cannot appear as counsel of a party adverse to the NPC.

Digest by: P.M.R. Gairanod

LocGov #135

PEOPLE of the Philippines, petitioner,vs.SANDIGANBAYAN (Fourth Division) and Alejandro A. Villapando, respondents.(July 23, 2008)

Doctrine: “Legal disqualification cannot be read as excluding temporary disqualification in order to exempt an appointee from the Constitutional prohibition and the LGC prohibition against appointments of losing candidate within one year.”

“A judgment rendered with grave abuse of discretion or without due process is void and does not exist in legal contemplation and cannot be a source of acquittal.”

Facts:This is a Petition for Certiorari filed by the Ombudsman through its Special Prosecutor. They assail the Sandiganbayan decision which

granted the herein private respondent a Demurrer to Evidence and which acquitted the said respondent of the crime of unlawful appointment uner RPC Art. 244.

Respondent Villapando ran for municipal mayor of San Vicente, Palawan and won. He designated a relative of his wife, Mr. Tiape who was also a mayoralty candidate in another province Agusan del Norte, as Municipal Administrator in San Vicente. Tiape, thus, became an administrative consultant under the Mayor’s office and was receiving salary of P26,953 per month.

They were both charged in the Office of the Deputy Ombudsman for Luzon for violating Art. 244 of the RPC on unlawful appointment. The Ombudsman ruled against the accused and resolved to charge them in the Sandiganbayan.

Tiape died before arraignment so case was dropped. Meanwhile, Villapando pleaded not guilty.

After the prosecution rested its case, the defendant therein Villapando filed a demurrer to evidence. The Sandiganbayan found the Demurrer to be with merit. According to the Sandiganbayan one of the elements of crime is that the person appointed in a public office “did not have legal qualifications”.

According to the ruling, legal qualifications over a public office must be provided by law.Section 480, Article X of the Local Government Code provides for the qualifications for the position of Municipal Administrator: “he is

a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of the municipal administrator.”

The prosecution did not allege that the appointee Tiape lacked THESE legal qualifications but merely anchored their allegation on the one-year temporary prohibition on appointments imposed against losing candidates.

The one-year prohibition provision says: “no candidate who has lost in any election shall, within one year after such election, be appointed to any office in the government or any government-owned or controlled corporation or in any of their subsidiaries.”

Hence this petition by the Ombudsman on behalf of the People.

I. Petitioners’ claims and arguments:One of the assigned errors imputed to the Sandiganbayan is its interpretation that “legal qualifications” DID NOT include the one year

prohibition on losing candidates as enunciated in the Constitution (Section 6, Article IX) and the LGC (Sec. 94b).And consequently, the petitioners say that the Sandiganbayan acted with grave abuse of discretion when it granted the Demurrer.

II. Respondent’s arguments:Private respondent did not file a comment. The Court deemed that he had waived his right.Presumably, the Sandiganbayan’s ruling is its answer.

Issue/s:1. W/N Sandiganbayan committed grave abuse of discretion?

Held/Ratio:1. YES. The Court said that the interpretation of the Sandiganbayan has no basis in law or jurisprudence. Their interpretation “lacks

cogency.”

“Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.

Sec. 6, Art. IX, 1987 Const.: “No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.”

Sec. 94b, LGC: “(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or controlled corporations or in any of their subsidiaries.”

“Legal disqualificationcannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.”

“Where the law does not distinguish, the courts should not distinguish.”

In People vs. Sandiganbayan (2002), the court said that when the demurrer is granted, such order amounts to acquittal and further prosecution would amount to double jeopardy. HOWEVER, the Court said that judgment rendered with grave abuse of discretion or without due process is void and does not exist in legal contemplation and cannot be a source of acquittal.

Sandiganbayan acted with grave abuse of discretion, hence the demurrer and the resulting acquittal are null and void.

Digested by: Jay Garcia (A2015)

LOCGOV - #136

Sales v. Carreon Jr (2007)

J. Sandoval- Gutierrez

Doctrine: En masse midnight appointments are illegal because it does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance.

Facts:

1. During the May 2001 elections, then Mayor Joseph Ruiz of Dapitan City, running for re-election, was defeated by respondent Rodolfo H. Carreon, Jr.

2. On June 1, 18 and 27, 2001, his last month in office, then Mayor Ruiz issued 83 appointments, including those of herein petitioners. 3. In July, the newly elected Mayor assumed office and issued Memorandum Orders Nos. 1 and 2 revoking the 83 appointments on the

ground that the latter violated Civil Service Commission (CSC) Resolution No. 01-988 imposing a ban on issuing appointments in the civil service during the election period. He also prohibited the release of the salaries and benefits of the 83 appointees.

4. Petitioner : Patricio Sales, one of herein petitioners, in his capacity as president of the Dapitan City Government Employees Association, wrote the CSC Regional Office No. IX requesting its ruling on the matter.

5. Respondent : In his position paper, respondent contended that the questioned appointments were not only "issued in bulk" but that there was no urgent need to fill those positions.

6. CSC Regional Office No. IX ruling: the appointments were valid7. On appeal by respondent, the CSC En Banc reversed the regional office and revoked the appointments 8. On a petition for review, the CA affirmed the CSC en banc

Issue: W/n the appointments were valid. NO

Ratio:

1. This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, which does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending to their functionsa. Not all types of midnight appointments are illegal, but it is only when the appointments were made en masse by the outgoing

administration and shown to have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety

2. It is State policy that "opportunities for government employment shall be open to all qualified citizens" as provided in Secs 2 and 3 of RA 704145

45SEC. 2. Duty of Personnel Officers. – It shall be the duty of all Chief Personnel or Administrative Officers of all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters, and local government units, to post in three (3) conspicuous places of their offices for a period ten (10) days a complete list of all existing vacant positions in their respective offices which are authorized to be filled, and to transmit a copy of such list and the corresponding qualification standards to the Civil Service Commission not later than the tenth day of every month. Vacant positions shall not be filled until after publication: Provided, however, that vacant and unfilled positions that are:

a) primarily confidential;

b) policy-determining;

c) highly technical;

d) co-terminous with that of the appointing authority; or

3. These provisions provide that the CSC is required to publish the lists of vacant positions and such publication shall be posted by the chief personnel or administrative officer of all local government units in the designated places. The vacant positions may only be filled by the appointing authority after they have been reported to the CSC as vacant and only after publication.a. IN THIS CASE, the publication of vacancies was made even before the positions involved actually became vacantb. Moreover, the CSC found that there was no first-level representative appointed to the Personnel Selection Board, which

deliberated on the appointments to first-level positions as required by CSC Memorandum Circular No. 18, series of 1988c. Petitioners admitted that after the retirement of Beltran Faconete, the first-level representative to the Personnel Selection Board,

no other first-level representative to replace him was chosen when 43 first level positions were filled up 4. Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987 provides that Appointments

may be recalled… if is in violation of existing civil service laws, rules and regulations

Digested by: Cielo Goño (A2015)

LOCGOV - #147Quirog v. Aumentado (2008)

Doctrine:Both the appointing authority and the appointee are equally real parties in interest who have the requisite legal standing to bring an action challenging a CSC disapproval of an appointment.

Facts:- On May 28, 2001, then-Bohol Provincial Governor Rene Relampagos appointed petitioner Liza Quirog (who was the acting Provincial

Agriculturalist) as Provincial Government Department Head of the Office of the Bohol Provincial Agriculture. (PGDH-OPA) This appointment was confirmed by the Sangguniang Panlalawigan on June 1, 2001.

- However, the director of the Civil Service Commission Regional Office VII (CSCRO-VII) invalidated the appointment, on the ground that it was part of the midnight appointments made by Gov. Relampagos after the May 14 elections, in violation of CSC Resolution No. 010988 (anti-midnight appointments resolution) dated June 4, 2001.

- Both ex-Gov. Relampagos and petitioner filed an MR to the CSCRO-VII order. This was, however, denied for lack of legal personality to file the pleading because only the appointing officer may request reconsideration of the disapproval of the appointment. While ex-Gov. Relampagos was Quirog’s appointing authority, he could no longer file the MR because his term had already lapsed.

- Both appealed to the CSC, which set aside the previous order and approved Quirog’s appointment.

e) limited to the duration of a particular project, shall be excluded from the list required by law.

- Private respondent incumbent Bohol Gov. Erico Aumentado filed an MR to the CSC decision, insisting that ex-Gov. Relampagos and Quirog had no legal personality to file an MR of the disapproved appointment and that the appointment was a midnight appointment. This was denied.

- Private respondent filed a petition for review with the CA, which granted the same. CA reversed the CSC decision and ruled that Quirog’s appeal should have been dismissed for outright lack of legal personality because only the appointing authority can challenge the CSCRO-VII order.

- Hence, these separate petitions filed by Quirog and ex-Gov. Relampagos

Petitioner’s arguments:- Petitioners assail the CA resolution setting aside the CSC decision which granted their MR to the CSCRO-VII decision and approved

Quirog’s appointment.- CSC Memorandum Circular No. 40 s.1998, Rule VI, Sec. 2.

Sec. 2. Requests for reconsideration of, or appeal from, the disapproval of an appointment may be made by the appointing authority and submitted to the Commission within fifteen (15) days from receipt of the disapproved appointment.

- The use of the word “may” means that a request for reconsideration from a disapproved appointment is not vested exclusively in the appointing authority. Quirog, being the real-party-in-interest and the one aggrieved by the disapproval, should have been allowed to appeal.

- On the merits, the anti-midnight appointments resolution should not be applied to this case because by the time said resolution came into force (June 4), Quirog’s appointment had already been made and she had already taken her oath (June 1).

Respondent’s arguments: - CSC Memorandum Circular No. 40 s.1998, Rule VI, Sec. 2 is clear in laying down the rule that it is only the appointing authority which

can request for reconsideration of a CSC-disapproved appointment.- This is likewise the holding in the case of Mathay, Jr. v. CSC

Issue/s:- WoN a real-party-in-interest may appeal from a CSC-disapproved appointment;- WoN the anti-midnight appointments resolution is applicable in this case;- WoN Quiroga’s appointment was a midnight appointment.

Held/Ratio: (Note: include legal basis and jurisprudence)YES. A REAL PARTY-IN-INTEREST MAY APPEAL FROM A CSC-DISAPPROVED APPOINTMENT.

- The court referred to its ruling in Abella, Jr. v CSC, where it said that both the appointing authority and the appointee are equally real parties in interest who have the requisite legal standing to bring an action challenging a CSC disapproval of an appointment.

- The appointee himself is the one injured by the disapproval for being prevented from assuming office, and is the one who would benefit from a favourable judgment.

- CSC Memorandum Circular No. 40 s.1998, Rule VI, Sec. 2 is silent on whether appointees have the same rights as appointing authorities to appeal from disapproved appointments. Such silence should not be interpreted to restrict the right to appeal to the latter only. Neither is there any legislative intent to bar appointees from challenging CSC disapproval.

- Thus, per Abella, Jr., Quirog had the right to seek reconsideration of or appeal the CSCRO-VII ruling. However, ex-Gov. Relampagos did not in fact have legal personality to contest the disapproval by reason of the expiration of his term as governor.

NO. THE ANTI-MIDNIGHT APPOINTMENTS RESOLUTION IS INAPPLICABLE, BECAUSE IT TOOK EFFECT AFTER QUIROG’S APPOINTMENT AND OATH-TAKING. IT CANNOT BE GIVEN RETROACTIVE EFFECT.

NO. IT IS NOT A MIDNIGHT APPOINTMENT BECAUSE THE CONSTITUTIONAL PROHIBITION ON THE SAME APPLIES ONLY TO PRESIDENTIAL APPOINTMENTS. ALSO, THE FACT OF HER HAVING PERFORMED THE DUTIES OF THE OFFICE IN AN ACTING CAPACITY FOR A YEAR PRIOR TO APPOINTMENT SHOWS THAT HER APPOINTMENT WAS NOT A PARTISAN ABUSE OF PREROGATIVE.

Digested by: Oyie Javelosa

LOCGOV - #138Nazareno vs. City of Dumaguete (2009)

Doctrine: The general rule is that appointments shall take effect immediately; and should the appointees already assume the duties of their positions, they shall be entitled to receive their salary at once. There is no need to wait for the approval of the appointments by the CSC. The appointments shall be effective until disapproved by the CSC.

Facts:1. The 52 petitioners in this case were all bona fide employees of the City of Dumaguete appointed to various positions by City Mayor

Felipe Antonio B. Remollo, Jr. sometime in June 2001, shortly before the end of his term.2. On July 2001, the newly elected Mayor Perdices announced that he was not recognizing the appointments made by former Mayor

Remollo. Thereafter, the Treasurer was directed not to make any disbursements pertaining to petitioners and petitioners’ names were deleted from the list of employees.

3. The petitioners filed a petition for Mandamus with injunction and damages before the RTC of Dumaguete against the Mayor and 4 other City Officers (Civil Case). On the same day, Director II Fabio Abucejo (Abucejo) of the Civil Service Commission Field Office (CSC-FO), pursuant to CSC Memorandum No.001374, invalidated and revoked the appointments made by former Mayor Remollo in June 2001 because the appointments were in violation of Items No. 3(d) and 4 of CSC Resolution No. 010988 dated 4 June 2001, which prohibit the outgoing chief executive from making mass appointments after elections.

4. A copy of the CSC-FO’s findings were given to the petitioners and upon receipt, they filed a motion for reconsideration before the CSC Regional Office VII. The CSC RO dismissed this reasoning that the motion should be filed before the CSC FO. The petitioners filed another motion to treat their first motion as an appeal. The CSC RO dismissed appeal and affirmed the CSC FO’s decision.

5. Petitioners elevated the case to the CSC Proper. The CSC Proper noted that generally, it is the appointing officer who appeals invalidated appointments but relaxed the rule in this case as the appointing authority was no longer in power. However, the appeal was still dismissed.

6. The petitioners filed before the CA a petition for certiorari. The CA dismissed this and affirmed the CSC decision. The petitioners filed a petition for the review of this decision before the SC.

7. Meanwhile, the RTC granted the injunction prayed for in the Civil Case. But upon a motion for reconsideration filed by the respondents, the RTC lifted the injunction. The CA affrimed. This Court also affirmed on the ground that the petitioners had already availed the remedies of law when they appealed the decision of the CSC FO to the CSC RO and then to the CSC Proper. Hence, the injunction was lifted.

8. The petitioners filed a motion to declare the respondents in default in the Civil Case. This was denied by the RTC but the CA declared the respondents in default.

9. The RTC dismissed the case. Hence this petition.

Petitioner’s argument:1. They should receive their salaries for the meantime because their appointments are valid until declared invalid (citing an

unnumbered CSC Memorandum Circular, issued on 6 December 2001, with the subject matter: “Reiteration of the Strict Implementation of Section 1, Rule IV and Section 3, Rules VI, both of Memorandum Circular No. 40, s. 1998, otherwise known as the Revised Omnibus Rules on Appointments and Other Personnel Actions.”)

Respondent’s argument:1. The right of the petitioners to their positions and salaries is unclear thus, mandamus will not lie. The RTC took note that the

invalidation of petitioners’ appointments by the CSC Proper was then pending appeal before the Court of Appeals and unless it was reversed, petitioners’ right to the salaries, salary adjustments, and other emoluments claimed, were doubtful.

Issues:1. Whether petitioners are entitled to the issuance of a writ of mandamus ordering respondents to pay petitioners’ salaries, salary

adjustments, and other emoluments, from 28 September 2001 until this Court finally resolves the issue of the validity of petitioners’ appointments NO

2. Whether petitioners are entitled to an award for damages resulting from the invalidation of their appointments NO

Held/Ratio: Petition is denied.A. On their right to compel the City Government to pay their salaries

1. The Court noted the following pertinent rules:Rule IV of the Revised Omnibus Rules on Appointments and Other Personnel Actions, Section 1.  An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission.  The appointment shall remain effective until disapproved by the Commission. x x x

Section 3.  When an appointment is disapproved, the services of the appointee shall be immediately terminated, unless a motion for reconsideration or appeal is seasonably filed.

 Services rendered by a person for the duration of his disapproved appointment shall not be credited as

government service for whatever purpose.             If the appointment was disapproved on grounds which do not constitute a violation of civil service law, such as failure of the appointee to meet the Qualification Standards (QS) prescribed for the position, the same is considered effective until disapproved by the Commission or any of its regional or field offices.  The appointee is meanwhile entitled to payment of salaries from the government. If a motion for reconsideration or an appeal from the disapproval is seasonably filed with the proper office, the appointment is still considered to be effective.  The disapproval becomes final only after the same is affirmed by the Commission.

2. The general rule is that appointments shall take effect immediately; and should the appointees already assume the duties of their positions, they shall be entitled to receive their salary at once. There is no need to wait for the approval of the appointments by the CSC. The appointments shall be effective until disapproved by the CSC.

3. The CSC has a three-tiered organizational structure, i.e., the CSC-FO, the CSC-RO, and the CSC Proper acting as a collegial body. The disapproval of the appointments by the CSC FO and CSC RO is not final and executory until affirmed by the CSC Proper.

4. Nevertheless, the aforementioned general rules cannot be simply applied to the case at bar given its peculiar circumstances.5. Section 3 above only applies if there was no violation of civil service laws but if there was, Section 4 states that: “The appointing

authority shall be personally liable for the salary of appointees whose appointments have been disapproved for violation of pertinent laws such as the publication requirement pursuant to RA 7041.”

a. This consistent with Sec 65, Chapter 10, Book V of the Administrative Code which states that: “No person employed in the Civil Service in violation of Civil Service law and rules shall be entitled to receive pay from the government, but the appointing authority responsible for such unlawful employment shall be personally liable for the pay that would have accrued had the employment been lawful, and the disbursing officials shall make payment to the employee of such amount from the salary of the officers so liable.”

6. The rules laid down by the CSC in CSC Resolution No. 010988, dated 4 June 2001, are deemed included in what is the “civil service law,” it having the force and effect of law.

7. Since petitioners’ right to the payment of their salaries by the City Government of Dumaguete is still unsettled at this point, the Court cannot issue a writ of mandamus against respondents to make such payment.  Mandamus applies only where the petitioner’s right is founded clearly in law and not when it is doubtful. Until the SC finally resolves the pending petition for review of the CA’s affirmation of the CSC Proper’s disapproval of the petitioners’ appointments, the issue of who will pay their salaries cannot be settled.

B. On damages1. Mayor Perdices’ refusal to re-appoint petitioners is merely in exercise of the former’s discretion and does not constitute bad faith.

Digested by: BAUTISTA, Justa Aurea G. (A2015)

LOCGOV - #139MELANIE P. MONTUERTO, petitioner, versus HONORABLE MAYOR ROLANDO E. TY and THE SANGGUNIANG BAYAN, represented by HONORABLE VICE-MAYOR RICHARD D. JAGUROS, all of the Municipality of Almeria, Biliran, respondents. (2008)

Doctrine: The head of a department or office in a municiapl government such as the municipal budget officer shall be appointed by the mayorwith the concurrence of the majority of all Sangguniang Bayan members through a resolution.

Facts:1. On March 17, 1992, Montuerto was issued an appointment as Municipal Budget Officer by then Mayor Sabitsana of the Municipality of

Almeria, Biliran. Her appointment was approved as permanent on March 24 by the Actining Civil Service Commission (CSC) Field Officer.

2. In 2002, the Sangguniang Bayan (SB) of Almeria, Biliran passed a Resolution requesting the CSC to revoke the appointment of Montuerto as Municipal Budget Officer for failure to secure the required concurrence from the Sangguniang Bayan.

3. The Municipality submitted the 201 file of Montuerto showing that the appointment lacked the SB’s concurrence to the CSC Regional Office VIII while Montuerto submitted a Joint-affidavit by the majority of SB members stating that the concurrence on Montuerto’s appointment was not highlighted during the March 1992 session and was inadvertently omitted from the Minutes but they can still fully recall that there was a verbal concurrence during said session.

4. The CSCRO ordered Montuerto’s appointment recalled. Montuerto filed a motion for reconsideration. To resolve the motion, the incumbent SB secretary was ordered to submit evidence showing that Montuerto’s appointment was submitted to the SB for concurrence. The SB secretary issued a Certification that there is no record that Montuerto’s appointment was submitted for concurrence however the presence of Montuerto was noted in the Minutes of the March 1992 session.

5. The CSCRO denied the Motion for Reconsideration. The CSC Central Office dismissed Montuerto’s appeal. The CA affirmed the CSC resolution in toto. Hence this petition for certiorari.

Petitioner’s argument/s:1. Per the Joint-Affidavit by the majority of the SB members, there was a verbal concurrence on Montuerto’s appointment.

Respondent’s argument/s:1. Petitioner’s 201 file showed that her appointment lacked the required concurrence of the local sanggunian.

Issue: Whether the appointment of petitioner as Municipal Budget Officer, without the written concurrence of the Sanggunian, but duly approved by the CSC and after the appointee had served as such for almost ten years without interruption, can still be revoked by the Commission.

Held/Ratio:YES. Petition is denied.1. Under Section 443(a) and (d) of Republic Act (R.A.) No. 7160 or the Local Government Code, the head of a department or office in the

municipal government,  such  as  the  Municipal  Budget  Officer,  shall be appointed by the mayor with the concurrence of the majority of all  Sangguniang Bayan members subject to civil service law, rules and regulations.

2. The verbal concurrence allegedly given by the Sanggunian is not the concurrence required and envisioned under R.A. No. 7160.  The Sanggunian, as a body, acts through a resolution or an ordinance. Absent such resolution of concurrence, the appointment of petitioner failed to comply with the mandatory requirement of Section 443(a) and (d) of R.A. No. 7160. Without a valid appointment, petitioner acquired no legal title to the Office of Municipal Budget Officer, even if she had served as such for ten years

Digested by: BAUTISTA, Justa Aurea G. (A2015)

CHAPTER X

LOCGOV - #140FELICIDAD UY, petitioner,versus HON. MAXIMO C. CONTRERAS, Presiding Judge, Metropolitan Trial Court, Branch 61, Makati, Metro Manila; HON. MAURO M. CASTRO, Provincial Prosecutor of Pasig, Metro Manila; SUSANNA ATAYDE and WINNIE JAVIER, respondents. (1994)

Facts:1. Petitioner Uy subleased half of the second floor of a building in Makati from private respondent Atayde where Uy operated a beauty

parlor.2. The sublease expired but Uy was not able to remove all her movables. An argument ensued between Uy and Atayde when the former

sought to remove her movables which led to a scuffle between Uy and Atayde and her employees including private respondent Javier.3. Private respondents filed a complaint with the barangay captain of Valenzuela, Makati on April 23, 1993. A confrontation betweeen

the parties was scheduled but only Uy appeared on the scheduled date.4. On May 11, 1993, the Office of the Prosecutor filed two Informations for slight physical injuries against Uy.5. In her counter-affidavit, Uy specifically alleged the prematurity of the filing of the complaint and filed a Motion to Dismiss for non-

compliance with the requirement of P.D. No. 1508 on prior referral to the Lupong Tagapamayapa and pursuant to Section 18 of the 1991 Revised Rule on Summary Procedure.

6. The MTC judge denied the motion. Hence this petition.

Petitioner’s argument:1. Respondent judge committed grave abuse of discretion amounting to lack of jurisdiction when he denied the motion to dismiss

considering that the private respondents failed to comply with the mandatory requirement of P.D. No. 1508, now embodied in Section 412 of the Local Government Code of 1991 and further required under the 1991 Revised Rule on Summary Procedure

Private Respondents’ arguments: 1. Prior referral of the dispute to the lupon is not applicable in the case of private respondent Javier since she and the petitioner are not

residents of barangays in the same city or municipality or of adjoining barangays in different cities or municipalities2. The referral to the lupon is not likewise required if the case may otherwise be barred by the statute of limitations3. Even assuming arguendo that prior referral to the lupon applies to the case of private respondent Atayde, the latter had, nevertheless,

substantially complied with the requirement4. Petitioner had already waived the right to a reconciliation proceedings before the barangay of Valenzuela, Makati

Issue: Whether the Informations should be dismissed for failure to comply with the requirement of referral to lupon.

Held/Ratio: YES. Petition is granted and respondent judge is ordered to dismiss the Informations.

A. The applicable law1. Sec 412 of the Local Government Code provides that: No complaint, petition, action, or proceeding involving any matter within the

authority of the lupon shall be filed or instituted directly in court or any other government office for adjudication, unless there has been a confrontation between the parties before the lupon chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon secretary or pangkat secretary as attested to by the lupon chairman or pangkat chairman or unless the settlement has been repudiated by the parties thereto.

2. The law on the katarungang pambarangay was originally embodied in PD 1508 but is now repealed by the Local Government Code and the latter contains the new law (Chapter VII).

3. The 3 new significant features of the new law are as follows:a. INCREASED AUTHORITY IN CRIMINAL OFFENSES. From those punishable by imprisonment not exceeding thirty days or a

fine not exceeding P200.00 in P.D. No. 1508 to those offenses punishable by imprisonment not exceeding one year or a fine not exceeding P5,000.00.

i. Therefore, few cases would reach the regular courts, justice would be achieved at less expense to the litigants, cordial relationships among protagonists in a small community would be restored, and peace and order therein enhanced.

b. VENUE. It provides that disputes arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located.

i. This rule provides convenience to the parties.c. SUSPENSION OF PRESCRIPTIVE PERIODS. It provides for the suspension of the prescriptive periods of offenses during the

pendency of the mediation, conciliation, or arbitration process. Such suspension, however, shall not exceed sixty days.i. This will discourage any intentional delay of the referral to a date close to the expiration of the prescriptive period and

then invoking the proximity of such expiration as the reason for immediate recourse to the courts and will afford the parties sufficient time to cool off and face each other with less emotionalism and more objectivity which are essential ingredients in the resolution of their dispute.

4. Non-compliance with this law affects the sufficiency of the plaintiff’s cause of action and subjects complaint to dismissal however, it is not jurisdictional. Non-compliance must be seasonably invoked and failure to do so will constitute a waiver.

B. On the respondents’ arguments1. On the argument that the law does not apply because Javier and Uy do not reside in the same barangay

a. (The Court did not specifically discussed this but it mentioned that) The respondents having brought the dispute before the lupon of barangay Valenzuela, Makati, the private respondents are estopped from disavowing the authority of the body which they themselves had sought.

2. On the argument that the action was about to prescribea. This is untenable because under Sec 410 (c), the prescriptive period was automatically suspended for a maximum period of

sixty days from 23 April 1993 when the private respondents filed their complaints with the lupon of Valenzuela Makati.b. The Information being for slight physical injuries which will be meted with light penalties based on the medical certificates,

the action will prescribe two months from April 17, 1993 (when injuries were allegedly inflicted). The running of the period will be tolled by the filing of the complaints with the lupon and if no conciliation is reached, the respondents would still have 56 days to file their criminal complaints.

3. On substantial compliance

a. The respondents, after failing to appear at the initial confrontation, have no right to invoke substantial complaince.4. On the alleged waiver

a. The petitioner did not waive the reconciliation proceedings before the lupon of Valenzuela, Makati; she submitted to it and attended the scheduled conciliation and invoked the pre-condition of referral to the lupon in her counter-affidavit.

Digested by: BAUTISTA, Justa Aurea G. (A2015)

LOCGOV - #141CARLITO D. CORPUZ, petitioner, versus HONORABLE COURT OF APPEALS (SIXTEENTH DIVISION) and JUANITO ALVARADO, respondents. (1997)

Facts:1. Barredo decided to sell his property to his tenants, two of whom were Alvarado and Corpuz. Alvarado and other lessees executed an

Affidavit of Waiver granting Barredo to sell his house to anyone who would purchase the same. Barredo sold it to Corpuz and as a result of this sale, a tenancy relationship was created between Corpuz and Alvarado.

2. Corpuz sent a written notice to Alvarado on October 1991 for the latter to vacate. Alvarado refused prompting Corpuz to file a case for unlawful detainer before the MTC of Manila.

3. The MTC ordered Alvarado to vacate but the RTC reversed this decision. The CA affirmed the RTC judgment.

Petitioner’s argument: (The petitioner did not raise any argument against Alvarado’s defense of failure to refer to the lupon)

Respondent’s argument:1. The ejectment suit was not referred to the Lupon Tagapayapa as required by Presidential Decree No. 1508

Issue [Relevant]: Whether the action should be dismissed for failure to comply with the requirement of referral to the lupong tagapamayapa.

Held/Ratio:NO. Petition is granted.Alvarado’s defense was only stated in a single general short sentence in his answer.  In the case of Diuvs. Court of Appeals (1995), the Court ruled that failure of a party to specifically allege the fact that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that defense.  A perusal of Alvarado's answer reveals that no reason or explanation was given to support his allegation, which is deemed a mere general averment.

In any event, the proceeding outlined in P.D. 1508 is not a jurisdictional requirement and non-compliance therewith cannot affect the jurisdiction which the lower court had already acquired over the subject matter and the parties therein.

Digested by: BAUTISTA, Justa Aurea G. (A2015)