POLITICAL LAW

LOCAL GOVERNMENTS services and facilities in their respective

jurisdictions, the same law provides a categorical
PRINCIPLES OF LOCAL AUTONOMY exception of cases involving nationally-funded
projects, facilities, programs and services. The
The principle of local autonomy essentially means national government is, thus, not precluded from
decentralization. Autonomy is either (1) taking a direct hand in the formulation and
decentralization of administration or (2) implementation of national development
decentralization of power. programs especially where it is implemented
locally in coordination with the LGUs concerned.
Decentralization of administration (Pimentel, Jr. vs. Executive Secretary Ochoa, G.R.
No. 195770, July 17, 2012, PER J. PERLAS-
There is decentralization of administration when BERNABE)
the central government delegates administrative
powers to political subdivisions in order to Presidential Power of Supervision
broaden the base of government power and in the
process make local governments ‘more Autonomy, however, is not meant to end the
responsive and more accountable’ and ensure relation of partnership and interdependence
their fullest development as self-reliant between the central administration and local
communities and make them more effective government units. Local governments, under the
partners in the pursuit of national development Constitution, are subject to regulation, however
and social progress.’ limited, and for no other purpose than precisely,
albeit paradoxically, to enhance self-government.
Decentralization of power (Ganzon v. Court of Appeals, G.R. No. 93252, August
5, 1991)
On the other hand, decentralization of power
“involves as abdication of political power in favor The president’s power over LGUs is now limited to
of local government units declared to be supervision, not control.
autonomous. This is termed as devolution. (The
Local Government Code Revisited 2011 Ed., p. 8, The president exercises “general supervision”
Aquilino Pimentel, Jr.) over the LGUs, but only to “ensure that local affairs
are administered according to law.” It means
Q: In 2008, the DSWD launched the "Pantawid “overseeing or the authority of an officer to see
Pamilyang Pilipino Program" (4Ps). This that the subordinate officer perform their duties.
government intervention scheme "provides If the subordinate officers fail or neglect to fulfill
cash grant to extreme poor households to their duties, the official may take such action or
allow the members of the families to meet steps as prescribed by law to make them perform
certain human development goals." A their duties. (The Local Government Code Revisited,
Memorandum of Agreement executed by the 2011 Ed., p. 14, Aquilino Pimentel Jr.)
DSWD with each participating LGU outlines in
detail the obligation of both parties during the LGU Dual Personality
intended five-year implementation. Congress,
for its part, sought to ensure the success of the LGUs have a dual personality: political and
4Ps by providing it with funding. Does this corporate. Being political units of government and
encroach upon the local autonomy of the LGUs? as agents of the national government, LGUs exercise
governmental powers. On the other hand, as a
A: NO. The purpose of the delegation is to make corporate entity, they exercise powers which are
governance more directly responsive and effective proprietary in nature but which they can perform
at the local levels. But to enable the country to for the benefit of their constituencies (The Local
develop as a whole, the programs and policies Government Code Revisited 2011 ed., p. 62, Aquilino
effected locally must be integrated and Pimentel, Jr.).
coordinated towards a common national goal.
Thus, policy-setting for the entire country still lies Under Philippine laws, the City of Manila is a
in the President and Congress. While the Local political body corporate and as such (is) endowed
Government Code charges the LGUs to take on the with the faculties of municipal corporations to be
functions and responsibilities that have already exercised by and through its city government in
been devolved upon them from the national conformity with law, and in its proper corporate
agencies on the aspect of providing for basic name. It may sue and be sued, and contract and be

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 Local Governments
contracted with. Its powers are twofold in
character-public, governmental or political on the Provinces, cities, municipalities, and geographical
one hand, and corporate, private and proprietary on areas sharing common and distinctive historical
the other. Governmental powers are those and cultural heritage, economic and social
exercised in administering the powers of the state structures, and other relevant characteristics. (Sec.
and promoting the public welfare and they include 15, Art. X, 1987 Constitution)
the legislative, judicial, public and political.
Municipal powers on the one hand are exercised for Autonomous region is a form of local
the special benefit and advantage of the community government
and include those which are ministerial, private and
corporate (City of Manila v. Intermediate Appellate The inclusion of autonomous regions in the
Court, G.R. No. 71159, November 15, 1989). enumeration of political subdivisions of the State
under the heading "Local Government" indicates
Local Fiscal Autonomy quite clearly the constitutional intent to consider
autonomous regions as one of the forms of local
Fiscal autonomy means that local governments governments. (Kida v. Senate, GR No. 196271,
have the power to create their own sources of February 28, 2012)
revenue in addition to their equitable share in the
national taxes released by the national Constitution mandates the creation of
government, as well as the power to allocate their autonomous regions only in Muslim Mindanao
resources in accordance with their own priorities. and Cordilleras
It extends to the preparation of their budgets, and
local officials in turn have to work within the There shall be created autonomous regions in
constraints thereof. They are not formulated at the Muslim Mindanao and in the Cordilleras within the
national level and imposed on local governments, framework of the Constitution and the national
whether they are relevant to local needs and sovereignty as well as territorial integrity of the
resources or not. Further, a basic feature of local Republic of the Philippines. (Sec. 15, Art. X, 1987
fiscal autonomy is the constitutionally mandated Constitution)
automatic release of the shares of local
governments in the national internal revenue. The Congress shall enact an organic act for each
(Province of Batangas v. Romulo, G.R. No. 152774, autonomous region. The organic act shall define
May 27, 2004) the basic structure of government for the region
consisting of the executive department and
Automatic release of LGU shares legislative assembly, both of which shall be
elective and representative of the constituent
The shares of the LGUs in the central government political units. The organic acts shall likewise
taxes and in the proceeds of natural resources provide for special courts with personal, family,
within their territories shall be automatically and and property law jurisdiction consistent with the
directly released to them. (The Local Government provisions of this Constitution and national laws.
Code Revisited 2011 Ed., p. 129, Aquilino Pimentel (Sec. 18, Art. X, 1987 Constitution)
Jr.)
NOTE: As of now (2019), there is only one
NOTE: A “no report, no release” policy may not be autonomous region created -- the Autonomous
validly enforced against offices vested with fiscal Region in Muslim Mindanao (ARMM). Several
autonomy such as Constitutional Commissions attempts have been made in the Cordilleras to
and local governments. The automatic release create an autonomous region but has repeatedly
provision found in the Constitution means that failed.
these local government units cannot be required
to perform any act to receive the “just share” Organic Law for the Bangsamoro Autonomous
accruing to them from the national coffers. (Civil Region in Muslim Mindanao (RA 11054)
Service Commission v. Department of Budget and
Management, G.R. No. 158791, July 22, 2005) R.A. No. 11054 abolished ARMM and placed in its
stead the Bangsamoro Autonomous Region in
AUTONOMOUS REGIONS AND THEIR Muslim Mindanao (BARMM). It also created the
RELATION TO THE NATIONAL GOVERNMENT Bangsamoro Government which has exclusive
powers over some matters including budgeting,
Autonomous Regions administration of justice, agriculture, disaster risk

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 POLITICAL LAW
reduction and management, ancestral domains, development;
human rights, local government units, public
works, social services, tourism, and trade and (6) Economic, social, and tourism development;
industry.
(7) Educational policies;
In relation to the National Government, Section 1,
Article V of R.A. No. 11054 states that “all powers, (8) Preservation and development of the cultural
functions, and responsibilities not granted by the heritage; and
Constitution or by national law to the Bangsamoro
Government shall be vested in the National (9) Such other matters as may be authorized by
Government.” law for the promotion of the general welfare of the
people of the region. (Sec. 20, Art. X, 1987
Also, Section 1, Article VI thereof provides that the Constitution)
President shall exercise general supervision over
the Bangsamoro Government to ensure that laws Local police responsible for peace and order
are faithfully executed. The President may but national government responsible for
suspend the Chief Minister for a period not defense and security
exceeding six (6) months for willful violation of the
Constitution, national laws, or this Organic Law. The preservation of peace and order within the
regions shall be the responsibility of the local
On the aspect of intergovernmental relations, an police agencies which shall be organized,
Intergovernmental Relations Body was created to maintained, supervised, and utilized in accordance
coordinate and resolve issues on with applicable laws. The defense and security of
intergovernmental relations through regular the regions shall be the responsibility of the
consultation and continuing negotiation in a non- National Government. (Sec. 21, Art. X, 1987
adversarial manner. Constitution)

President exercises general supervision LOCAL GOVERNMENT UNITS

POWERS
The President shall exercise general supervision
over autonomous regions to ensure that the laws The following powers of LGUs:
are faithfully executed. (Sec. 16, Art. X, 1987
Constitution) a. Police Power
b. Eminent Domain
Limitation of powers and functions of c. Taxation
autonomous regions d. Legislative Power

All powers, functions, and responsibilities not POLICE POWER (GENERAL WELFARE CLAUSE)
granted by the Constitution or by law to the
autonomous regions shall be vested in the Nature of police power
National Government. (Sec. 17, Art. X, 1987
Constitution) The police power of the LGU is not inherent. LGUs
exercise the police power under the general
Within its territorial jurisdiction and subject to the welfare clause (LGC, Sec. 16,).
provisions of this Constitution and national laws,
the organic act of autonomous regions shall General welfare clause
provide for legislative powers over:
LGUs shall exercise powers that are necessary,
(1) Administrative organization; appropriate, or incidental for its efficient and
effective governance, and those which are essential
(2) Creation of sources of revenues; to the promotion of general welfare. Within their
respective territorial jurisdiction, LGUs shall ensure
(3) Ancestral domain and natural resources; and support, among other things, the preservation
and enrichment of culture, promote health and
(4) Personal, family, and property relations; safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
(5) Regional urban and rural planning appropriate and self-reliant scientific and

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2019 GOLDEN NOTE S
 Local Governments
technological capabilities, improve public morals, College, G.R. No. 161107, March 12, 2013)
enhance economic prosperity and social justice,
promote full employment among its residents, Q: The Sangguniang Panlungsod of Davao City
maintain peace and order, and preserve the comfort enacted an ordinance imposing a ban against
and convenience of their inhabitance. (R.A. 7160, Sec. aerial spraying as an agricultural practice by
16) all agricultural entities within Davao City.
Pursuant to the ordinance, the ban against
Two branches of the General Welfare Clause aerial spraying would be strictly enforced
three months thereafter. The Pilipino Banana
1. General Legislative Power – Authorizes the Growers and Exporters Association, Inc.
municipal council to enact ordinances and (PBGEA) filed a petition in the RTC to
make regulations not repugnant to law, as challenge the constitutionality of the
may be necessary to carry into effect and ordinance, alleging that the ordinance
discharge the powers and duties conferred exemplified the unreasonable exercise of
upon the municipal council by law. police power and violated the equal
2. Police Power Proper – Authorizes the protection clause. The RTC declared that the
municipality to enact ordinances as may be ordinance is valid and constitutional saying
necessary and proper for the health and that the City of Davao had validly exercised
safety, prosperity, morals, peace, good police power under the General Welfare
order, comfort, and convenience of the Clause of the Local Government Code and that
municipality and its inhabitants, and for the the ordinance was consistent with the Equal
protection of their property (Rural Bank of Protection Clause. On appeal, however, the CA
Makati v. Municipality of Makati, July 2, reversed the judgment of the RTC. Is the
2004). ordinance valid?

Requisites/limitations for the proper A:NO. Requiring the respondents and other
exercise of the police power (PREN) affected individuals to comply with the
consequences of the ban within the three-month
1. The interests of the public generally, as period under pain of penalty like fine,
distinguished from those of a particular class, imprisonment and even cancellation of business
require the interference of the state(Equal permits would definitely be oppressive as to
Protection Clause) constitute abuse of police power.

2. The means employed are reasonably necessary The ordinance violated the equal protection
for the attainment of the object sought to be clause. The imposition of the ban is too broad
accomplished and not duly oppressive (Due because the ordinance applies irrespective of the
Process Clause) substance to be aerially applied and irrespective of
3. Exercisable only within the territorial limits of the agricultural activity to be conducted. Such
the LGU, except for protection of water supply imposition becomes unreasonable inasmuch as it
(LGC, Sec. 16) patently bears no relation to the purported
4. Must not be contrary to the Constitution and inconvenience, discomfort, health risk and
the laws. environmental danger which the ordinance seeks
to address. Theburden will now become more
NOTE: There must be a concurrence of a lawful onerous to various entities, including those with
subject and lawful method. (Lucena Grand Central v. no connection whatsoever to the intended
JAC, G.R. No. 148339 February 23, 2005) purpose of the ordinance. (Mosqueda vs. Pilipino
Banana Growers & Exporters Assoc., G.R. No.
Tests when police power is invoked as the 189185 & 189305, August 16, 2016)
rationale for the valid passage of an ordinance
Ministerial duty of the Local Chief Executive
1. Rational relationship test – An ordinance must
pass the requisites as discussed above. The LGC imposes upon the city mayor, to “enforce
2. Strict scrutiny test – The focus is on the all laws and ordinances relative to the governance
presence of compelling, rather than of the city.” As the chief executive of the city, he has
substantial, governmental interest and on the the duty to enforce an ordinance as long as it has
absence of less restrictive means for achieving not been repealed by the Sanggunian or annulled
that interest. (Fernando v. St. Scholastica’s by the courts. He has no other choice. It is his

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 POLITICAL LAW
ministerial duty to do so. (Social Justice Society v. come out with an effective order or resolution
Atienza, Jr., G.R. No. 156052, March 7, 2007) thereon. Pertinent herein is Sec. 444 (b)(3)(vi) of
the LGC, which empowered the mayor to order the
Abatement of nuisance without judicial closure and removal of illegally constructed
proceeding establishments for failing to secure the necessary
permits.
The abatement of nuisances without judicial
proceedings applies to nuisance per se or those In the case at bar, Boracay West Cove admittedly
which affect the immediate safety of persons and failed to secure the necessary permits, clearances,
property and may be summarily abated under the and exemptions before the construction,
undefined law of necessity. (Tayaban v. People, expansion, and operation of Boracay West Cove’s
G.R. No. 150194, March 6, 2007) hotel in Malay, Aklan. To recall, Boracay West Cove
declared that the application for zoning compliance
The LGUs have no power to declare a particular was still pending with the office of the mayor even
thing as a nuisance unless such a thing is a nuisance though construction and operation were already
per se; nor can they effect the extrajudicial ongoing at the same time. As such, it could no
abatement of a nuisance per accidens. Those things longer be denied that it openly violated Municipal
must be resolved by the courts in the ordinary Ordinance 2000-131 (Aquino v. Municipality of
course of law. (AC Enterprises, Inc. v. Frabelle Malay, Aklan, G.R. No. 211356, September 29, 2014).
Properties Corp., G.R. No. 166744, November 2,
2006) NOTE: Based on law and jurisprudence, the office
of the mayor has quasi-judicial powers to order the
Q: The Mayor of Malay, Aklan ordered through closing and demolition of establishments. This
Executive Order No. 10 the demolition of the power granted by the LGC, is not the same power
Boracay West Cove Resort and Hotel without devolved in favor of the LGU under Sec. 17
first conducting judicial proceedings on the (b)(2)(ii), which is subject to review by the DENR.
ground that the said hotel was built on a "no The fact that the building to be demolished is
build zone" as demarcated in Municipal located within a forestland under the
Ordinance 2000-131. The owner of the Boracay administration of the DENR is of no moment, for
West Cove imputed grave abuse of discretion on what is involved herein, strictly speaking, is not an
the part of the Mayor. Is the owner correct? issue on environmental protection, conservation of
natural resources, and the maintenance of
A: NO. Generally, LGUs have no power to declare a ecological balance, but the legality or illegality of
particular thing as a nuisance unless such a thing is the structure. Rather than treating this as an
a nuisance per se. Despite the hotel’s classification environmental issue then, focus should not be
as a nuisance per accidens, however, the Court still diverted from the root cause of this debacle-
found in this case that the LGU may nevertheless compliance. (Aquino v. Municipality of Malay, Aklan,
properly order the hotel’s demolition. This is supra.)
because, in the exercise of police power and the
general welfare clause, property rights of Powers deemed implied in the power to grant
individuals may be subjected to restraints and permits and licenses
burdens in order to fulfill the objectives of the
government. Power to issue licenses and permits include
power to revoke, withdraw, or restrict through
Otherwise stated, the government may enact the imposition of certain conditions. However, the
legislation that may interfere with personal liberty, conditions must be reasonable and cannot amount
property, lawful businesses and occupations to to an arbitrary interference with the business.
promote the general welfare. (Acebedo Optical Company, Inc. v. CA, G.R. No.
100152, March 31, 2000)
One such piece of legislation is the LGC, which
authorizes city and municipal governments, acting Object of the permit requirement
through their local chief executives, to issue
demolition orders. Under existing laws, the office of The object of the permit requirement is the proper
the mayor is given powers not only relative to its supervision of the enumerated businesses, trades,
function as the executive official of the town; it has or occupation.
also been endowed with authority to hear issues
involving property rights of individuals and to NOTE: The issuance of permits and licenses is a

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 Local Governments
function of the local chief executive. Q: The Sangguniang Panglungsod of Marikina
City enacted an ordinance “Regulating the
Q: Acebedo Optical Company applied with the Construction of Fences and Walls in the City of
Office of the City Mayor of Iligan for a business Marikina”. The ordinance provided, among
permit. The City Mayor issued such permit others, that fences should not be more than 1
subject to special conditions that the company meter and fences in excess of 1 meter shall be
cannot put up an optical clinic but only a 80% see-thru. It further provided that in no
commercial store; it cannot examine patients case shall walls and fences be built within the
and prescribe glasses; and it cannot sell five meter parking area allowance located
eyeglasses without a prescription from an between the front monument line and the
independent optometrist. Samahan ng building line of commercial and industrial
Optometrist ng Pilipinas lodged a complaint establishments and educational and religious
against Acebedo for violating the conditions institutions. Is the ordinance valid?
which resulted in the revocation of its permit.
Did the City Mayor have the authority to A: NO. It has long been settled that the State may
impose special conditions in the grant of the not, under the guise of police power, permanently
business permit? divest owners of the beneficial use of their
property solely to preserve or enhance the
A: NO. Police power is essentially regulatory in aesthetic appearance of the community.
nature and the power to issue license or grant Compelling the respondents to construct their
business permits, if for a regulatory purpose, is fence in accordance with the assailed ordinance is,
within the ambit of this power. This power thus, a clear encroachment on their right to
necessarily includes the power to revoke and to property, which necessarily includes their right to
impose conditions. However, the power to grant or decide how best to protect their property.
issue licenses or business permits must always be (Fernando v. St. Scholastica's College, G.R. No.
exercised in accordance with law, with utmost 161107, March 12, 2013)
observance of the rights of all concerned to due
process and equal protection of the law. What is Q: Can the City Mayor of Manila validly take
sought by Acebedo from the City Mayor is a permit custody of several women of ill repute and
to engage in the business of running an optical deport them as laborers without knowledge
shop. It does not purport to seek a license to and consent to the said deportation?
engage in the practice of optometry. A business
permit is issued primarily to regulate the conduct A: NO. One can search in vain for any law, order,
of business and the City Mayor cannot, through the or regulation, which even hints at the right of the
issuance of such permit, regulate the practice of a Mayor of the city of Manila or the chief of police of
profession. Such a function is within the exclusive that city to force citizens of the Philippine
domain of the administrative agency specifically Islands — and these women despite their being in
empowered by law to supervise the profession, in a sense lepers of society are nevertheless not
this case the Professional Regulations Commission chattels but Philippine citizens protected by the
and the Board of Examiners in Optometry. same constitutional guaranties as are other
(Acebedo Optical Company Inc. v. Court of Appeals, citizens — to change their domicile from Manila
G.R. No. 100152, March 31, 2000) to another locality. (Villavicencio v. Lukban, G.R.
No. L-14639, March 25, 1919)
NOTE: However, certain professions may be
affected by the exercise of police power. An Q: May an LGU require customers to fill out a
ordinance in Manila was held not to regulate the prescribed form stating personal information
practice of massage, much less restrict the practice such as name, gender, nationality, age, address,
of such profession. Instead, the end sought to be and occupation before they could be admitted
obtained was to prevent the commission of to a motel, hotel, or lodging house?
immorality under the practice of prostitution in an
establishment masquerading as a massage clinic A: YES. The Ordinance was enacted precisely to
where the operation thereof offers to massage minimize certain practices hurtful to public morals
superficial parts of the bodies of customers for such as the increase in the rate of prostitution,
hygienic or aesthetic purposes. (Physical Therapy adultery, and fornication in Manila traceable in
Organization of the Philippines v. Municipal Board great part to the existence of motels, which
of Manila, G.R. No. L-10488, August 30, 1957) "provide a necessary atmosphere for clandestine
entry, presence, and exit" and thus become the

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 POLITICAL LAW
"ideal haven for prostitutes and thrill-seekers". prohibiting the disco pub owners and the
Precisely it was intended to curb the opportunity hospitality girls from pursuing their calling or
for the immoral or legitimate use to which such business but is merely regulating it. (Social Justice
premises could be and are being devoted. (Ermita- Society v. Dangerous Drugs Board, G.R. No. 157870,
Malate Hotel and Motel Operations Association v. Nov. 3, 2008)
City Mayor of Manila, G.R. No. L-24693, July 31,
1967) This ordinance is a valid exercise of police power,
because its purpose is to safeguard public health.
Q: Mayor Lim signed into law, City Ordinance (Beltran v. Secretary of Health, G.R. No. 133640,
7774, which prohibits short time admission in November 25, 2005)
hotels, motels, lodging houses, pension houses,
and similar establishments in the City of NOTE: Municipal corporations cannot prohibit the
Manila to protect public morals. Pursuant to operation of night clubs. They may be regulated, but
the above policy, short-time admission and not prevented from carrying on their business.
rate, wash-up rate or other similarly concocted (Dela Cruz v. Paras, G.R. Nos. L-42571-72, July 25,
terms, are hereby prohibited in hotels, motels, 1983)
inns, lodging houses, pension houses and
similar establishments in the City of Manila. Q: The Quezon City Council issued Ordinance
Petitioners argued that the Ordinance is 2904 which requires the construction of
unconstitutional and void since it violates the arcades for commercial buildings to be
right to privacy and the freedom of movement; constructed in zones designated as business
it is an invalid exercise of police power; and it zones in the zoning plan of Quezon City, along
is an unreasonable and oppressive EDSA. However, at the time the ordinance was
interference in their business. Is the ordinance passed there was yet no building code passed by
valid? the legislature. Thus, the regulation of the
construction of the buildings are left to the
A: NO. Individual rights may be adversely discretion of the LGUs. Under this ordinance,
affected only to the extent that may fairly be the city council required that the arcade is to be
required by the legitimate demands of public created in a way that building owners are not
interest or public welfare. However well- allowed to construct his wall up to the edge of
intentioned the Ordinance may be, it is in effect an the property line, thereby creating a space
arbitrary and whimsical intrusion into the rights of under the first floor. In effect, property owners
the establishments as well as their patrons. The relinquish the use of the space as an arcade for
Ordinance needlessly restrains the operation of pedestrians instead of using the property for
the businesses of the petitioners as well as their own purposes.
restricting the rights of their patrons without
sufficient justification. The Ordinance rashly Subsequently, Justice Gancayo sought to be
equates wash rates and renting out a room more exempted from the application of the ordinance
than twice a day with immorality without to which the City Council responded favorably
accommodating innocuous intentions (White in his favor.
Light Corp., v. City of Manila, G.R. No. 122846,
January 20, 2009). MMDA then sent a notice of demolition to
Justice Gancayco alleging that a portion of his
Q: The Sangguniang Panlungsod of Pasay City building violates the National Building Code in
passed an ordinance requiring all disco pub relation to the ordinance. Is the Ordinance a
owners to have all their hospitality girls tested valid exercise of police power in regulating the
for the AIDS virus. Both disco pub owners and use of property in a business zone?
the hospitality girls assailed the validity of the
ordinance for being violative of their A: YES. In the exercise of police power, property
constitutional rights to privacy and to freely rights of individuals may be subject to restraints
choose a calling or business. Is the ordinance and burdens in order to fulfill the objectives of the
valid? Explain. government. Property rights must bow down to the
primacy of police power because it must yield to the
A: YES. The ordinance is a valid exercise of police general welfare. It is clear that the objective of the
power. The right to privacy yields to certain ordinance were the health and safety of the city and
paramount rights of the public and defers to the its inhabitants. At the time he ordinance was
exercise of police power. The ordinance is not passed, there was no national building code, thus

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 Local Governments
there was no law which prohibits the city council operations.
from regulating the construction of buildings,
arcades and sidewalks in their jurisdiction. The Manila Ordinance cites only four (4)
(Gancayco v. City Government of Quezon City, G.R. No. exemptions, namely: (a) minors accompanied
177807, Oct. 11, 2011) by their parents, family members of legal age,
or guardian; (b) those running lawful errands
Q: Rivera was found washing her clothing near such as buying of medicines, using of
the Santolan pumping station near Boso-Boso telecommunication facilities for emergency
dam. Rivera’s act of washing clothing purposes and the like; (c) night school
interfered with the purity of the water which students and those who, by virtue of their
was supplied to Manila by the Santolan employment, are required in the streets or
pumping station. She was charged with outside their residence after 10:00 p.m.; and
violation of Sec. 4(f) of Ordinance No. 149 (d) those working at night.
which prohibited washing of garments in the
waters of any river or water course. Manila’s For its part, the Navotas Ordinance provides
municipal board adopted the same section by more exceptions, to wit: (a) minors with night
virtue of the Acts of the Philippine Commission classes; (b) those working at night; (c) those
and was authorized to purify the source of who attended a school or church activity, in
water supply as well as the drainage area of coordination with a specific barangay office;
such water supply. Rivera contented that the (d) those traveling towards home during the
municipal court of the City of Manila and the curfew hours; (e) those running errands under
Court of First Instance of the City of Manila had the supervision of their parents, guardians, or
no jurisdiction to try her for the crime persons of legal age having authority over
committed. Does the CFI of Manila have them; (f) those involved in accidents,
jurisdiction over the offense, considering that calamities, and the like. It also exempts minors
the washing of clothes was in the Mariquina from the curfew during these specific
River? occasions: Christmas eve, Christmas day, New
Year's eve, New Year's day, the night before the
A: YES. Boundaries usually mark the limit for the barangay fiesta, the day of the fiesta, All Saints'
exercise of the police powers by the municipality. and All Souls' Day, Holy Thursday, Good Friday,
However, in certain instances – the performance Black Saturday, and Easter Sunday.
of police functions, the preservation of public
health and acquisition of territory for water Petitioners argue that the Curfew Ordinances
supply – the municipality is granted police power are unconstitutional because they deprive
beyond its boundaries. The Santolan pumping minors of the right to liberty and the right to
station is a part of the public water supply of travel without substantive due process. Are
Manila with water taken from that part of the said ordinances valid?
Mariquina River, in the waters of which Rivera
washed clothes. Public water supply is not limited A: The Manila and Navotas Ordinances are not
to water supply owned and controlled by a valid.
municipal corporation, but should be construed as
meaning a supply of water for public and domestic While rights may be restricted, the restrictions
use, furnished or to be furnished from water must be minimal or only to the extent necessary to
works. The provisions of the Ordinance No. 149 achieve the purpose or to address the State's
would be meaningless and absurd if made compelling interest.
applicable only to the Santolan pumping station
and not to that part of the Mariquina River The Manila and Navotas Ordinances are not
immediately above it and from which the pumping narrowly drawn in that their exceptions are
station draws water for the use of the inhabitants inadequate and therefore, run the risk of overly
of the City of Manila. (Rivera v. Campbell, G.R. No. L- restricting the minors' fundamental freedoms. To
11119, March 23, 1916) be fair, both ordinances protect the rights to
education, to gainful employment, and to travel at
Q: Following the campaign of President night from school or work. However, even with
Duterte to implement a nationwide curfew for those safeguards, the Navotas Ordinance and, to a
minors, Navotas City and the City of Manila greater extent, the Manila Ordinance still do not
started to strictly implement their curfew account for the reasonable exercise of the minors'
ordinances on minors through police rights of association, free exercise of religion,

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rights to peaceably assemble, and of free
expression, among others. The exceptions under As worded, the prohibition in Section 57-A is clear,
the Manila Ordinance are too limited, and thus, categorical, and unambiguous. It states that "[n]o
unduly trample upon protected liberties. The penalty shall be imposed on children for x x x
Navotas Ordinance is apparently more protective violations [of] juvenile status offenses]." Thus, for
of constitutional rights than the Manila Ordinance; imposing the sanctions of reprimand, fine, and/or
nonetheless, it still provides insufficient imprisonment on minors for curfew violations,
safeguards: First, although it allows minors to portions of Section 4 of the Manila Ordinance
engage in school or church activities, it hinders directly and irreconcilably conflict with the clear
them from engaging in legitimate non-school or language of Section 57-A of RA 9344, as amended,
non-church activities in the streets or going to and and hence, invalid. (SPARK, Et. al. vs. Quezon City,
from such activities; thus, their freedom of GR No. 225442, August 08, 2017, PER, J. PERLAS-
association is effectively curtailed. It bears BERNABE)
stressing that participation in legitimate activities
of organizations, other than school or church, also Q: The Sanggunian of Cagayan De Oro enacted
contributes to the minors' social, emotional, and Ordinance No. 3353 prohibiting the issuance
intellectual development, yet, such participation is of business permits and cancelling existing
not exempted under the Navotas Ordinance. business permits for the operation of casinos;
Second, although the Navotas Ordinance does not and Ordinance No. 3375-93, prohibiting the
impose the curfew during Christmas Eve and operation of a casino. Z assailed the validity of
Christmas day, it effectively prohibits minors from the ordinances on the ground that both
attending traditional religious activities (such as violated P.D. 1869 which permits the
simbang gabi) at night without accompanying operation of casinos, centralized and regulated
adults, xxx. This legitimate activity done pursuant by PAGCOR. However, the Sanggunian
to the minors' right to freely exercise their religion contended that pursuant to the LGC they have
is therefore effectively curtailed. Third, the the police power to prohibit the operations of
Navotas Ordinance does not accommodate casinos for the general welfare. Was there a
avenues for minors to engage in political rallies or valid exercise of police power?
attend city council meetings to voice out their
concerns in line with their right to peaceably A: NO. P.D. 1869 creating the PAGCOR expressly
assemble and to free expression. (SPARK, Et. al. authorized it to centralize and regulate all games
vs. Quezon City, GR No. 225442, August 08, 2017, of chance including casinos. This has not been
PER, J. PERLAS-BERNABE) amended by the LGC which empowers LGUs to
prevent or suppress only those forms of gambling
Q: The City of Manila passed a Curfew prohibited by law. Casino gambling is, however,
Ordinance on minors which imposes several authorized under P.D. 1869. This decree has the
penalties for violators. Petitioners argue that status of a statute that cannot be annulled or
the Curfew Ordinance is unconstitutional amended by a mere ordinance. PAGCOR can set up
because it contravenes RA 9344's express casinos with or without the consent of the host
command that no penalty shall be imposed on local government. (Magtajas v. Pryce Properties
minors for curfew violations. Is petitioners’ and PAGCOR, G.R. No. 111097, July 20, 1994)
contention proper?
Contempt Powers
A:YES. The Manila Ordinance is in conflict with the
clear language of Section 57-A of RA 9344, as Although the Sanggunian of a municipality may
amended, and hence, invalid. exercise certain powers under the General Welfare
Clause, citing nonmembers of the Sanggunian for
The law does not prohibit the enactment of contempt or issuing subpoena to compel non-
regulations that curtail the conduct of minors, members to attend public hearings or investigation
when the similar conduct of adults are not is not one of them.
considered as an offense or penalized (i.e., status
offenses). Instead, what it prohibits is the EMINENT DOMAIN
imposition of penalties on minors for violations of
these regulations. Consequently, the enactment of Local government units have no inherent power of
curfew ordinances on minors, without penalizing eminent domain. Local governments can exercise
them for violations thereof, is not violative of such power only when expressly authorized by the
Section 57-A. Legislature. By virtue of the Local Government

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2019 GOLDEN NOTE S
 Local Governments
Code, Congress conferred upon local government 1. Property sought to be acquired
units the power to expropriate. (Masikip v. City of 2. The reason for the acquisition
Pasig, G.R. No. 136349, January 23, 2006) 3. The price offered

Strictly speaking, the power of eminent domain NOTE:

delegated to an LGU is in reality not eminent but 1. If owner accepts offer: a contract of sale will
“inferior”. The national legislature is still the be executed.
principal of the LGUs, and the latter cannot go 2. If owner accepts but at a higher price: Local
against the principal’s will or modify the same chief executive shall call a conference for the
(Beluso v. Municipality of Panay, G.R. No. 153974, purpose of reaching an agreement on the
August 7, 2006). selling price; If agreed, contract of sale will be
drawn. (Implenting Rules and Regulations of
Requisites for the valid exercise of the LGC, Art. 35)
power of eminent domain (OPCO
) Elements for an authorized immediate entry
1. An Ordinance is enacted by the local
legislative council authorizing the local chief 1. Filling of a complaint for expropriation which
executive, in behalf of the LGU, to exercise is sufficient in form and substance
the power of eminent domain or pursue 2. Deposit of the amount equivalent to fifteen
expropriation proceeding over a percent (15%) of the fair market value of
particular private property. the property to be expropriated based on its
current tax declaration.
NOTE: LGU cannot authorize an
expropriation of private property through a NOTE: Upon compliance, the issuance of writ of
mere resolution of its lawmaking body. possession becomes ministerial. (City of Iloilo v.
Legaspi, G.R. No. 154614, Nov. 25, 2004)
2. It must be for Public use, purpose, or
welfare or for the benefit of the poor or The advance deposit required under Section 19 of
landless the LGC constitutes an advance payment only in the
event the expropriation prospers. Such deposit also
NOTE: Property already devoted to public has a dual purpose: as pre-payment if the
use may not be taken for another public use. expropriation succeeds and as indemnity for
(City of Manila v. Chinese Community of damages if it is dismissed. This advance payment, a
Manila, G.R. No. L-14355, October 31, 1919) prerequisite for the issuance of a writ of possession,
should not be confused with payment of just
3. There must be payment of just Compensation compensation for the taking of property even if it
could be a factor in eventually determining just
4. A valid and definite Offer has been compensation. If the proceedings fail, the money
previously made to the owner of the property could be used to indemnify the owner for damages.
sought to be expropriated, but said offer was (City of Manila v. Alegar Corporation, G.R. No.
not accepted. (Municipality of Paranaque v. 187604, June 25, 2012)
V.M. Realty Corporation, G.R. No. 127820. July
20, 1998) Phases of expropriation proceedings

NOTE: The Supreme Court held “the burden is 1. The determination of the authority of the
on the LGU to prove its compliance with the plaintiff to exercise the power of
mandatory requirement of a valid and definite eminent domain and the propriety of its
offer to the owner of the property before its exercise in the context of the facts involved
filing of its complaint for expropriation. Failure in the suit.
to prove compliance with the mandatory
requirement will result in the dismissal of the NOTE: It ends with an order, if not dismissal
complaint. of action, of condemnation declaring that the
plaintiff has a lawful right to take the
Due process requirements in eminent property sought to be condemned, for the
domain (PRP) public use or purpose described in the
complaint, upon the payment of just
Offer must be in writing specifying: compensation to be determined as of the

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 POLITICAL LAW
date of the filing of the complaint. The law expressly exempted “small property
owners” from expropriation of their land for urban
An order of dismissal, if this be ordained, land reform. (City of Mandaluyong v. Aguilar, G.R.
would be a final one, since it finally No. 137152, Jan. 29, 2001)
disposes of the action and leaves nothing
more to be done by the Court on the merits. Satisfaction of “genuine necessity”
The order of condemnation shall be a final one, requirement
as the Rules expressly state, in the proceedings
before the Trial Court, no objection to the The right to take private property for public
exercise of the right of condemnation (or the purposes necessarily originates from “the
propriety thereof) shall be filed or heard. necessity” and the taking must be limited to such
necessity. In City of Manila v. Chinese Community
2. The determination by the RTC of the just of Manila, it is held that necessity must be of a
compensation for the property sought to be public character. Moreover, the ascertainment of
taken. the necessity must precede or accompany and
not follow the taking of the land. In City of Manila
This is done by the Court with the assistance v. Arellano Law College, the necessity within the
of not more than three (3) commissioners. rule that the particular property to be
The order fixing the just compensation on expropriated must be necessary, does not mean
the basis of the evidence before, and findings an absolute, but only a reasonable or practical
of, the commissioners would be final. It would necessity, such as would combine the greatest
finally dispose of the second stage of the suit benefit to the public with the least
and leave nothing more to be done by the inconvenience and expense to the condemning
Court regarding the issue. (Brgy. San Roque, party and the property owner consistent with
Talisay, Cebu v. Hrs. of Francisco Pastor, G.R. such benefit. (Masikip v. City of Pasig, G.R. No.
No. 138896, June 20, 2000) 136349, Jan. 23, 2006)

NOTE: LGU’s prolonged occupation of private Q: May LGUs expropriate a property to

property without the benefit of expropriation provide a right-of-way to residents of a
proceedings entitles the landowner to damages. subdivision?
(City of Iloilo v. Judge Contreras-Besana, G.R. No.
168967, February 12, 2010) A: NO. Considering that the residents who need
a feeder road are all subdivision lot owners, it is
Satisfaction of “public use” requirement the obligation of the subdivision owner to acquire
a right-of-way for them. However, the failure of
In case only a few could actually benefit from the subdivision owner to provide an access road
the expropriation of the property, the same does does not shift the burden to the LGU
not diminish its public use character. It is simply concerned. To deprive respondents of their
not possible to provide for all at once, land and property instead of compelling the subdivision
shelter, for all who need them. Corollary to the owner to comply with his obligation under the
expanded notion of public use, expropriation is law is an abuse of the power of eminent domain
not anymore confined to vast tracts of land and and is patently illegal. Worse, the
landed estates. It is therefore of no moment that expropriation will actually benefit the
the land sought to be expropriated is less than subdivision’s owner who will be able to
half a hectare only. Through the years, the public circumvent his commitment to provide road
use requirement in eminent domain has evolved access to the subdivision in conjunction with his
into a flexible concept, influenced by changing development permit and license to sell from the
conditions. Public use now includes the broader Housing and Land Use Regulatory Board, and
notion of indirect public benefit or advantage also be relieved of spending his own funds for a
including in particular, urban land reform and right-of-way. (Barangay Sindalan v. CA G.R. No.
housing. (Philippine Columbian Association v. 150640, March 22, 2007)
Panis, G.R. No. L-106528, Dec. 21, 1993)
Q: Municipality of Panay issued resolutions
NOTE: The passage of R.A. 7279, the “Urban authorizing the municipal government through
Development and Housing Act of 1992” the Mayor to initiate expropriation
introduced a limitation on the size of the land proceedings. A petition for expropriation was
sought to be expropriated for socialized housing. filed by the Municipality of Panay. Petitioners

UNIVERSITY OF SANTO TOMAS 256

2019 GOLDEN NOTE S
 Local Governments
are the owners of parcels of land which are verified complaint in the proper court. Before the
going to be expropriated by the LGU. Petitioners City as the expropriating authority filed such
argue that such expropriation was based only verified complaint, no expropriation proceeding
on a resolution and not on an ordinance could be said to exist. Until then, the petitioners as
contrary to Sec. 19 of LGC. Is the exercise of the owners could not also be deprived of their
eminent domain by the Municipality of Panay property under the power of eminent domain.
valid? (Spouses Antonio and Fe v. CA, G.R. No.
156684,April6,2011)
A: NO. The LGC expressly requires an ordinance for
the purpose of expropriation, and a resolution Q: Petitioner Himlayang Pilipino filed a
which merely expresses the sentiment of the petition to annul an ordinance which provides
municipal council will not suffice. As respondent's that at least 6% of the total area of every
expropriation in this case was based merely on a private cemetery shall be set aside for charity
resolution, such expropriation is clearly defective. burial grounds of deceased paupers. Petitioner
While the Court is aware of the constitutional policy alleged that the ordinance is an invalid
promoting local autonomy, the court cannot grant exercise of the power of eminent domain as
judicial sanction to an LGU's exercise of its they were not paid just compensation.
delegated power of eminent domain in However, the City government of Quezon City
contravention of the very law giving it such power. argued that the ordinance is an exercise of
[Beluso v. Municipality of Panay (Capiz), G.R. No. police power, hence, just compensaition is not
153974, Aug. 7, 2006] necessary. Is the ordinance valid?

Q: Spouses Yusay owned a parcel of land, half A: NO. The power to regulate does not include the
of which they used as their residence, and the power to prohibit. A fortiori, the power to regulate
rest they rented out to nine other families. does not include the power to confiscate. The
Allegedly, the land was their only property and ordinance in question not only confiscates but also
only source of income. The Sangguniang prohibits the operation of a memorial park
Panglungsod of Mandaluyong City adopted a cemetery. There is no reasonable relation between
resolution authorizing the City Mayor to take the setting aside of at least 6% of the total area of
the necessary legal steps for the expropriation a private cemeteries for charity burial grounds of
of the land of the spouses for the purpose of deceased paupers and the promotion of health,
developing it for low cost housing for the less morals, good order, safety, or the general welfare
privileged but deserving city inhabitants. The of the people.
spouses then filed a petition for certiorari and
prohibition in the RTC, praying for the Section 9 of the assailed Ordinance is not a mere
annulment of the Resolution due to its being police regulation but an outright confiscation. It is
unconstitutional, confiscatory, and without not an exercise of police power but eminent
force and effect. The City countered that the domain. It deprives a person of his private
Resolution was a mere authorization.Hence, property without due process of law and without
the suit of the spouses was premature. Will the payment of just compensation. Instead of building
petition for certiorari and prohibition or maintaining a public cemetery for this purpose,
prosper? the city passes the burden to private cemeteries.
Police power does not involve the taking or
A: NO.Certiorari did not lie against the confiscation of property with the exception of few
Sangguniang Panglungsod, which was not a part of cases where there is a necessity to confiscate
the Judiciary settling an actual controversy private property in order to destroy it for the
involving legally demandable and enforceable purpose of protecting the peace and order and of
rights when it adopted Resolution No. 552, but a promoting the general welfare. (Quezon City v.
legislative and policy-making body declaring its Ericta, G.R. No. L-34915, June 24, 1983)
sentiment or opinion. Furthermore, the remedy of
prohibition was not called for, considering that Q: The municipal council of Baao, Camarines
only a resolution expressing the desire of the Sur, passed an ordinance providing that any
Sangguniang Panglungsod to expropriate the person who will construct or repair a building
petitioners’ property was issued. It was premature should, before doing such, obtain a written
for the petitioners to mount any judicial challenge, permit from the Municipal Mayor and if said
for thepower of eminent domain could be building destroys the view of the Public Plaza
exercised by the City only through the filing of a or occupies any public property, it shall be

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removed at the expense of the owner of the tourism purposes although this specific objective
building or house. X filed a written request for is not expressed in the Constitution. The policy
a permit to construct a building on a parcel of objectives of the framers can be expressed only in
land adjacent to their gasoline station. The general terms such as social justice, local
request was denied because the proposed autonomy, conservation and development of the
building would destroy the view or beauty of national patrimony public interest, and general
the public plaza. X proceeded with the welfare, among others. (Heirs of Ardona v. Reyes,
construction of the building without a permit G.R. No. G.R No. L-60549, Oct. 26, 1983)
because his former house was destroyed by a
typhoon. X was charged and convicted of Q: Sps. Hipolito are the registered owners of a
violating the Ordinance for having constructed parcel of land in Santa Ana, Manila. They
a building that destroys the view of the public applied for permission to erect a strong-
plaza without a mayor’s permit. Is the material residential building on the lot. For
ordinance valid? more than 40 days, the city engineer took no
action. Wherefore, Hipolito wrote him a letter
A: NO. The ordinance is unreasonable and manifesting his readiness to pay the fee and to
oppressive, in that it operates to permanently comply with existing ordinances governing the
deprive appellants of the right to use their own issuance of building permits. The engineer
property; hence, it oversteps the bounds of police declined to issue the permit as according to the
power, and amounts to a taking of appellants’ Urban Commission’s Adopted Plan for the Sta.
property without just compensation. But while Ana, the streets will be widened to the
property may be regulated in the interest of the respective widths of 22-m. and 10 m and will
general welfare and, in its pursuit, the State may affect the proposed building. Was the engineer
prohibit structures offensive to sight, the State correct in not issuing the permit?
may not, under the guise of police power,
permanently divest owners of the beneficial use of A: NO. The refusal of the city engineer to issue a
their property and practically confiscate them building permit to private landowners constitutes
solely to preserve or assure the aesthetic taking when there is no law or ordinance requiring
appearance of the community. To legally achieve private land owners to conform to the proposed
that result, the municipality must give the owners widening of the street approved by the Urban
just compensation and an opportunity to be heard. Commission. Where the City has not expropriated
The Ordinance was beyond the authority of said the strip of land affected by the proposed widening
municipality to enact, and is therefore null and of the street, inasmuch as there is no legislative
void. (People v. Fajardo, G.R No. L-12172, Aug. 29, authority to establish a building line, the denial of
1958) this permit would amount to taking of private
property for public use under the power of
Q:The Philippine Tourism Authority sought eminent domain without following the procedure
the expropriation of 282 hectares of rolling prescribed for the exercise of such power. The city
land situated in Barangay Alubog and Babag, engineer required to issue the building permit
Cebu City, under an express authority to upon payment of the fees. (Hipolito v. City of
acquire by purchase or by any other means any Manila, G.R No. L-3887, Aug. 21, 1950)
private land within the tourism zone.
Petitioner contended that the taking was not NOTE: Private property already devoted to public
for public use and that there is no specific use can still be a subject of expropriation by
constitutional provision authorizing the taking Congress but not by LGUs.
of private property for tourism purposes. Is
the contention valid? TAXING POWERS

A: NO. Expropriation by the PTA under P.D. 564 of Nature of the power of taxation of LGUs
land owned by the local government for
promotion of tourism is a valid exercise of the It is already well-settled that although the power
State’s power of eminent domain. The concept of to tax is inherent in the State, the same is not true
public use is not limited to traditional purposes. for the LGUs to whom the power must be
Here, as elsewhere, the idea that “public use” is delegated by Congress and must be exercised
strictly limited to clear cases of “use by the public” within the guidelines and limitations that
has been discarded. The State’s power of eminent Congress may provide. (Geron v. Pilipinas Shell,
domain extends to the expropriation of land for G.R. No. 18763, July 8, 2015)

UNIVERSITY OF SANTO TOMAS 258

2019 GOLDEN NOTE S
 Local Governments
the Philippines (FDCP). Secs 13 and 14 of R.A.
ARMM’s taxing power 9167 provided for the tax treatment of certain
graded films — film producers were to be
The ARMM has the legislative power to create entitled to an incentive equivalent to the
sources of revenues within its territorial amusement tax imposed and collected by the
jurisdiction and subject to the provisions of the cities, subject to various rates depending on the
1987 Constitution and national laws. [1987 grade of their film, to be remitted to the FDCP.
Constitution,Art. X, Sec. 20(2)] FDCP had sent demand letters for unpaid
amusement tax reward with five percent
Q: Can the local governments tax national surcharge for each month of delinquency due to
government instrumentalities? the producers. The proprietors and cinema
operators refused to remit the amounts while
A: Sec. 133 of the LGC states that “unless otherwise Cebu City insisted on its claim on the amounts
provided in the Code, local governments cannot in question. Then, Cebu City filed a petition for
tax national government instrumentalities. This declaratory relief before RTC, Branch 14,
doctrine emanates from the “supremacy” of asking it to declare Secs. 13 and 14 of R.A. 9167
National government over local governments. invalid and unconstitutional. Colon Heritage
Otherwise, mere creatures of the State can defeat Corporation filed a similar petition before the
National policies thru extermination of what local RTC Branch 5, seeking to declare Sec. 14
authorities may perceive to be undesirable unconstitutional. The RTC declared Secs. 13 and
activities or enterprise using the power to tax as "a 14 of R.A. 9167 unconstitutional. The RTC said
tool for regulation”. (Basco v. Philippine what R.A. 9167 seeks to accomplish is the
Amusements and Gaming Corporation, G.R. No. segregation of amusement taxes raised and
91649, May 14, 1991) collected by Cebu City and its subsequent
transfer to FDCP. This, it said, is a confiscatory
Q: The President, through A.O. 372, measure where the national government
ordered the withholding of 10% of the LGUs' extracts money from the local government’s
IRA "pending the assessment and evaluation by coffers and transfers it to the FDCP, a private
the Development Budget Coordinating agency, which in turn, will award the money to
Committee of the emerging fiscal situation" in private persons, film producers, for having
the country. Is the A.O. valid? produced graded films. Is the RTC correct?

A: NO. A basic feature of local fiscal autonomy is A: YES. Under R.A. 9167, covered LGUs still have
the automatic release of the shares of LGUs in the power to levy amusement taxes, albeit at the
the national internal revenue. This is mandated end of the day, they will derive no revenue
by no less than the Constitution. The LGC specifies therefrom. The same, however, cannot be said for
further that the release shall be made directly to FDCP and the producers of graded films since the
the LGU concerned within five days after every amounts thus levied by the LGUs which should
quarter of the year and “shall not be subject to any rightfully accrue to them, they being the taxing
lien or holdback that may be imposed by the authority-will be going to their coffers. As a matter
national government for whatever purpose.” As a of fact, it is only through the exercise by the LGU of
rule, the term "shall" is a word of command that said power that the funds to be used for the
must be given a compulsory meaning. The amusement tax reward can be raised. Without said
provision is, therefore, imperative. (Pimentel Jr. v. imposition, the producers of graded films will
Aguirre, G.R. No. 132988, July 19, 2000) receive nothing from the owners, proprietors and
lessees of cinemas operating within the territory of
Q: In 1993, Cebu City imposed amusement taxes the covered LGU.
under Sec. 140 of the LGC and passed “Revised
Omnibus Tax Ordinance of the City of Cebu.” Taking the resulting scheme into consideration, it is
Secs. 42 and 43, Chapter XI of the city ordinance apparent that what Congress did in this instance
requires proprietors, lessees or operators of was not to exclude the authority to levy amusement
theatres, cinemas, concert halls, circuses, taxes from the taxing power of the covered LGUs,
boxing stadia, and other places of amusement, but to earmark, if not altogether confiscate, the
to pay an amusement tax equivalent to 30% of income to be received by the LGU from the
the gross receipts of admission fees. taxpayers in favor of and for transmittal to FDCP,
Meanwhile, R.A. 9167 was enacted on June 7, instead of the taxing authority. This is in clear
2002 creating the Film Development Council of contravention of the constitutional command that

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taxes levied by LGUs shall accrue exclusively to said the Proceeds of National Taxes), of the LGC which
LGU and is repugnant to the power of LGUs to says, “Section 284. Allotment of Internal Revenue
apportion their resources in line with their Taxes. - Local government units shall have a share
priorities. in the national internal revenue taxes x x x”

It is a basic precept that the inherent legislative The phrase national internal revenue taxes
powers of Congress, broad as they may be, are engrafted in Section 284 is undoubtedly more
limited and confined within the four walls of the restrictive than the term national taxes written in
Constitution. Accordingly, whenever the legislature Section 6. As such, Congress has actually departed
exercises its power to enact, amend, and repeal from the letter of the 1987 Constitution stating
laws, it should do so without going beyond the that national taxes should be the base from which
parameters wrought by the organic law. the just share of the LGU comes. Such departure is
impermissible.
In the case at bar, through the application and
enforcement of Sec. 14 of R.A. 9167, the income It is clear from the foregoing clarification that the
from the amusement taxes levied by the covered exclusion of other national taxes like customs
LGUs did not and will under no circumstance duties from the base for determining the just share
accrue to them, not even partially, despite being the of the LGUs contravened the express
taxing authority therefor. Congress, therefore, constitutional edict in Section 6, Article X the 1987
clearly overstepped its plenary legislative power, Constitution. (Mandanas v. Ochoa, G.R. No. 199802,
the amendment being violative of the fundamental July 3, 2018)
law's guarantee on local autonomy. (Film
Development Council of the Philippines v. Colon 3. Equitable share in the proceeds of the
Heritage Realty Corporation, G.R. No. 203754, June utilization and development of the national
16, 2015) wealth within their areas. (1987 Constitution
Art. X,Sec. 7)
Main sources of revenues of LGUs
Principles governing exercise of taxing and
1. Taxes, fees, and charges. (1987 Constitution revenue-sharing powers of LGUs
Art. X, Sec. 5)
1. Taxation shall be uniform in each LGU
2. Internal Revenue Allotment (IRA) - Just share 2. Taxes, fees, charges and other impositions
in the national taxes which shall be shall be equitable and based as far as
automatically released to them. (1987 practicable on the taxpayer’s ability to pay; it
Constitution Art. X,Sec. 6) shall be levied and collected only for public
purpose; it must not be unjust, excessive,
NOTE: The current sharing is 40% local and oppressive, or confiscatory; it must not be
60% national. The share cannot be reduced contrary to law, public policy, national
except if there is unmanageable public sector economic policy, or restraint of trade;
deficit. 3. The collection of local taxes, fees, charges
and other impositions shall in no case be let
Q: Mandanas, et al, allege that the insertion by to any private person.
Congress of the words internal revenue in the 4. The revenue collected shall inure solely to
phrase national taxes found in Section 284 of the benefit of, and be subject to disposition
the LGC caused the diminution of the base for by, the local government unit, unless
determining the just share of the LGUs, and specifically provided therein.
should be declared unconstitutional as it 5. Each local government unit shall, as far as
contravened Section 6, Article X of the 1987 practicable, evolve a progressive system of
Constitution. Is limiting the LGU’s IRA to taxation. (LGC, Sec. 130)
national internal revenue taxes contrary to the
Constitution? Principles governing financial affairs,
transactions and operations of LGUs
A: YES. Section 6, Article X the 1987 Constitution
textually commands the allocation to the LGUs of a 1. No money shall be paid out of the local
just share in the national taxes. Carrying out the treasury except in pursuance of an
provision’s mandate, Congress enacted Section appropriation ordinance or law;
284, Title III (Shares of Local Government Units in 2. Local government funds and monies shall be

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2019 GOLDEN NOTE S
 Local Governments
spent solely for public purposes;
3. Local revenue is generated only from sources 1. The tax is for a public purpose;
expressly authorized by law or ordinance, 2. The rule on uniformity of taxation is
and collection thereof shall at all times observed;
be acknowledged properly; 3. Either the person or property taxed is within
4. All monies officially received by a local the jurisdiction of the government levying the
government officer in any capacity or on any tax; and
occasion shall be accounted for as local 4. In the assessment and collection of certain
funds, unless otherwise provided; kinds of taxes, notice and opportunity for
5. Trust funds in the local treasury shall not be hearing are provided. (Pepsi-Cola Bottling Co.
paid out except in the fulfillment of the v. Municipality of Tanauan, G.R. No. L-31156,
purpose for which the trust was created or February 27, 1976)
the funds received;
6. Every officer of the LGU whose duties permit Procedural requirements for a valid revenue
or require the possession or custody of local ordinance
funds shall be properly bonded, and such
officer shall be accountable and 1. A prior public hearing on the measure to be
responsible for said funds and for conducted according to the prescribed rules.
the safekeeping thereof in conformity
with the provisions of law; NOTE: An ordinance levying taxes, fees or
7. Local governments shall formulate charges shall not be enacted without any prior
sound financial plans and local budgets shall public hearing conducted for the purpose.
be based on functions, activities, and projects (Figuerres v. CA, G.R. No. 119172, March 25,
in terms of expected results; 1999)
8. Local budget plans and goals shall, as far as
practicable, be harmonized with national 2. Publication of the tax ordinance, within 10
development plans, goals and strategies in days after their approval, for 3 consecutive
order to optimize the utilization of days in a newspaper of local circulation,
resources and to avoid duplication in the use provided that in provinces, cities, and
of fiscal and physical resources. municipalities where there are no
9. Local budgets shall operationalize approved newspapers of local circulation, the same may
local development plans; be posted in at least two (2) conspicuous
10. LGUs shall ensure that their respective and publicly accessible places.
budgets incorporate the requirements of their
component units and provide for equitable NOTE: If the tax ordinance or revenue
allocation of resources among these measure contains penal provisions as
component units; authorized in Art. 280of this Rule, the gist of
11. National planning shall be based on local such tax ordinance or revenue measure shall
planning to ensure that the needs and be published in a newspaper of general
aspirations of the people as articulated by circulation within the province where the
the LGUs in their respective local sanggunian concerned belongs. (IRR of LGC,
development plans are considered in the Art. 276)
formulation of budgets of national line
agencies or offices; Effectivity of tax ordinance
12. Fiscal responsibility shall be shared by all
those exercising authority over the financial In case the effectivity of any tax ordinance or
affairs, transactions and operations of revenue measure falls on any date other than
LGUs; and the beginning of the quarter, the same shall
13. The LGU shall endeavor to have a balanced be considered as falling at the beginning of the
budget in each fiscal year of operation. (LGC, next ensuing quarter and the taxes, fees, or
Sec. 305) charges due shall begin to accrue therefrom. (IRR
of LGC, Art. 276)
NOTE: The general principles on taxation also
apply to the taxing powers of LGUs. Q: The Province of Palawan passes an
ordinance requiring all owners/operators of
Requirements for a valid tax ordinance (PUJ- fishing vessels that fish in waters surrounding
NO) the province to invest ten percent (10%) of

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 POLITICAL LAW
their net profits from operations therein in
any enterprise located in Palawan. NARCO 1. Taxpayer first pays the taxes
Fishing Corp., a Filipino corporation with head 2. There shall be annotation on the tax receipts
office in Navotas, Metro Manila, challenges the the words "paid under protest".
ordinance as unconstitutional. Decide. (1991 3. The protest in writing must be filed within
Bar) thirty (30) days from payment of the tax to the
provincial, city treasurer or municipal
A: The ordinance is invalid. The ordinance was treasurer, in the case of a municipality within
apparently enacted pursuant to Art. X, Sec. 7 of Metropolitan Manila Area, who shall decide
the Constitution, which entitles local the protest within sixty (60) days from
governments to an equitable share in the receipt. (LGC, Sec. 252)
proceeds of the utilization and development of the
national wealth within their respective areas. NOTE: A claim for tax exemption, whether full or
However, this should be made pursuant to law. A partial, does not deal with the authority of local
law is needed to implement this provision and a assessor to assess real property tax, but merely
local government cannot constitute itself unto a raises a question of reasonableness of correctness
law. In the absence of a law, the ordinance in of such assessment, which requires compliance
question is invalid. with Sec. 252 of the LGC. (Camp John Hay
Development Corporation v. Central Board of
Authority to determine the legality or Assessment Appeals, G.R. No. 169234, October 2,
propriety of a local tax ordinance or revenue 2013)
measure
Remedies available to the LGUs to enforce the
It is the Secretary of Justice who shall determine payment of taxes
questions on the legality and constitutionality
of ordinances or revenue measures. 1. Imposing penalties (surcharges and penalty
interest) in case of delinquency (LGC, Sec. 168)
Such questions shall be raised on appeal within 2. Availing local government’s liens (LGC, Sec.
thirty days from the effectivity thereof to the 173)
Secretary of Justice who shall render a decision 3. Administrative action through distraint of
within sixty days from the date of receipt of the goods, chattels, and other personal
appeal. property [LGC, Sec. 174(a)]
4. Judicial action [LGC, Sec. 174(b)]
NOTE: Such appeal shall not have the effect
of suspending the effectivity of the ordinance Community tax
and the accrual and payment of the tax, fee, or
charge levied therein: Provided, finally, that Community tax is a poll or capitation tax which is
within thirty days after receipt of the decision or imposed upon person who resides within a
the lapse of the sixty-day period without the specified territory.
Secretary of Justice acting upon the appeal, the
aggrieved party may file appropriate Exempted from the payment of community tax
proceedings with a court of competent
jurisdiction (RTC). (LGC, Sec. 187) 1. Diplomatic and consular representatives;
2. Transient visitors when their stay in
Tax Protest the Philippines does not exceed 3 months
(LGC, Sec. 159)
The formal statement, usually in writing, made by a
person who is called upon by public authority to Real property taxes
pay a sum of money, in which he declares that he
does not concede the legality or justice of the claim These are directly imposed on privilege to use real
or his duty to pay it, or that he disputes the amount property such as land, building, machinery, and
demanded; the object being to save his right to other improvements, unless specifically exempted.
recover or reclaim the amount, which right would
be lost by his acquiescence. Thus, taxes may be paid Q: After the effectivity of LGC, Bayantel was
under "protest". (Black’s Law Dictionary) granted by Congress a legislative franchise
with tax exemption privileges which partly
Requisites of a valid tax protest in a LGU (PAP) reads: “the grantee, its successors or assigns

UNIVERSITY OF SANTO TOMAS 262

2019 GOLDEN NOTE S
 Local Governments
shall be liable to pay the same taxes on their ordinance in conflict with a state law of general
real estate, buildings and personal character and statewide application is
property, exclusive of this franchise, as universally held to be invalid. In every power to
other persons or corporations are now or pass ordinances given to a municipality, there is
hereafter may be required by law to pay.” an implied restriction that the ordinances shall
This provision existed in the company’s be consistent with the general law. (Batangas
franchise prior to the effectivity of the LGC. CATV v. Court of Appeals, G.R. No. 138810,
Quezon City then enacted an ordinance September 29, 2004)
imposing a real property tax on all real
properties located within the city limits and NOTE: The rule against undue delegation of
withdrawing all exemptions previously legislative powers applies to LGUs. In the case of
granted. Among properties covered are those Villegas v. Tsai Pao Ho (G.R. No. 29646, October
owned by the company. Bayantel asserts that its 10, 1978), a city ordinance was declared void
properties are exempt from tax under its because it constituted undue delegation of
franchise. Is Bayantel correct? legislative power to the Mayor. The ordinance
did not lay down any standard to guide the
A:YES. The properties are exempt from taxation. Mayor in the exercise of his discretion in the
The grant of taxing powers to local governments issuance or denial of an alien employment
under the Constitution and the LGC does not affect permit.
the power of Congress to grant tax exemptions.
The Sanggunian
The term "exclusive of the franchise" is interpreted
to mean properties actually, directly and A sanggunian is a collegial body. Legislation,
exclusively used in the radio and which is the principal function of the
telecommunications business. The subsequent sanggunian, requires the participation of all its
piece of legislation which reiterated the phrase members so that they may not only represent
“exclusive of this franchise” found in the previous the interests of their respective constituents but
tax exemption grant to the company is an express also help in the making of decisions, by voting
and real intention on the part of the Congress to upon every question put upon the body.
once again remove from the LGC’s delegated taxing (Zamora v. Caballero, G.R. No. 147767, January
power, all of the company’s properties that are 14, 2004)
actually, directly and exclusively used in the pursuit
of its franchise. (The City Government of Quezon City, NOTE: A petition for certiorari filed against a
et al., v. Bayan Telecommunications, Inc., G.R. No. Sangguniang Panlungsod assailing the legality of
162015, March 6, 2006) an ordinance will not lie since the Sanggunian is
not a tribunal, board or officer exercising
Elements so that the President may interfere in judicial or quasi-judicial functions. (Liga ng mga
local fiscal matters Barangay National v. City Mayor of Manila, G.R.
No. 154599, January 21, 2004)
1. An unmanaged public sector deficit of the
national government; No power to subpoena and hold persons in
2. Consultations with the presiding officers of contempt (1993 Bar)
the Senate and the House of Representatives
and the presidents of the various local leagues; The contempt power and the subpoena power
3. And the corresponding recommendation of cannot be deemed implied in the delegation of
the secretaries of the Department of certain legislative functions to local legislative
Finance, Interior and Local Government, and bodies. These cannot be presumed to exist in
Budget and Management (Pimentel, Jr. v. favor of the latter and must be considered an
Aguirre, G.R. No. 132988, July 19, 2000). exception to Sec. 4 of B.P. Blg. 337 which
provides for liberal rules of interpretation in
LEGISLATIVE POWER favor of local autonomy. Since the existence of
these powers poses a potential derogation of
Nature of local legislative powers individual rights, the law cannot be liberally
construed to have impliedly granted such
It is a fundamental principle that municipal powers to local legislative bodies. The intention
ordinances are inferior in status and of the people, through their representatives, to
subordinate to the laws of the State. An share these powers with the local legislative

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 POLITICAL LAW
bodies must clearly appear in pertinent Under Sec. 49(b), “in the event of the inability of
legislation. (Negros Oriental II Electric the regular presiding officer to preside at the
Cooperative Inc., v. Sangguiang Panlungsod ng sanggunian session, the members present and
Dumaguete, G.R. No. L-72492, November 5, 1987) constituting a quorum shall elect from among
themselves a temporary presiding officer”.
Local legislative bodies and their presiding (Gamboa v. Aguirre, G.R. No. 134213, July 20, 1999)
officers
Quorum in the sanggunian
Province - Sangguniang Panlalawigan - Vice-
governor Quorum is defined as the number of members of a
body which when legally assembled in their
City - Sangguniang Panlungsod- City Vice - mayor proper places, will enable the body to transact its
proper business or that number which makes a
Municipality - Sangguniang bayan - Municipal lawful body and gives it power to pass upon a law,
Vice-mayor ordinance or any valid act. ‘Majority’, when
required to constitute a quorum, means the
Barangay - Sangguniang barangay - Punong number greater than half or more than half of any
Barangay total.

NOTE: The presiding officer shall vote only to break Q: What is the number that would determine the
a tie [Sec. 49(a) LGC]. quorum of our sanggunian that has a total
membership of eleven (11) including the vice-
In the absence of the regular presiding officer or mayor?
his inability to preside at the sanggunian session,
the members present and constituting a quorum A: The Sangguniang Bayan is composed of eight
shall elect from among themselves a temporary (8) regular members, the Liga ng mga Barangay
presiding officer. [LGC, Sec. 49(b); Gamboa v. Aguirre, President and the SK Federation President as ex-
G.R. No. 134213, July 20, 1999] officio members, and the Vice-Mayor as Presiding
Officer. The total membership in a sanggunian
Q: May an incumbent Vice-Governor, acting as bayan, therefore, is eleven (11).
governor, continue to preside over the sessions
of the Sangguniang Panlalawigan (SP)? If not, Relative thereto, Section 53 of the Local
who may preside in the meantime? Government Code of 1991 provides that a majority
of all the members of the sanggunian who have
A:NO. A Vice-Governor who is concurrently an been elected and qualified shall constitute a
acting governor is actually a quasi-governor. For quorum to transact official business. "Majority"
purposes of exercising his legislative prerogatives has been defined in Santiago vs. Guingona, et al.
and powers, he is deemed a non-member of the SP (G.R. No. 134577, 18 November 1998) as that
for the time being. Being the Acting Governor, the which is greater than half of the membership of the
Vice-Governor cannot continue to simultaneously body.
exercise the duties of the latter office, since the
nature of the duties of the provincial Governor call Following the said ruling, since the total
for a full-time occupant to discharge them. Such is membership of the sanggunian being 11, 11
not only consistent with but also appears to be the divided by 2 will give us a quotient of 5.5. Let it be
clear rationale of the new Code wherein the policy noted however that a fraction cannot be
of performing dual functions in both offices has considered as one whole vote, since it is physically
already been abandoned. and legally impossible to divide a person or even
his vote into a fractional part. Accordingly, we
The creation of a temporary vacancy in the office have to go up to the next whole number, which is
of the Governor creates a corresponding 6.
temporary vacancy in the office of the Vice-
Governor whenever the latter acts as Governor by In this regard, 6 is more than 5.5 and therefore,
virtue of such temporary vacancy. The continuity more than one-half of the total membership of the
of the Acting Governor’s (Vice-Governor) powers sangguniang bayan in conformity with the
as presiding officer of the SP is suspended so long jurisprudential definition of the term majority.
as he is in such capacity. Thus, the presence of 6 members shall already
constitute a quorum in the sangguniang bayan for

UNIVERSITY OF SANTO TOMAS 264

2019 GOLDEN NOTE S
 Local Governments
it to conduct official sessions. (DILG Opinion No.
46-2007 and La Carlota City et al, v. Atty. Rex Rojo, 4. In case of special sessions:
G.R. No. 181367, April 24, 2012) a. Written notice to the members must be
served personally at least 24 hoursbefore
Procedures to be taken by the presiding the special session is held
officer if there is a question on quorum b. Unless otherwise concurred in by 2/3
votes of the sanggunian members
Should there be a question of quorum raised present, there being no quorum, no other
during a session, the presiding officer shall: matters may be considered at aspecial
session except those stated inthe notice
1. Immediately proceed to call the roll of the (LGC, Sec. 52).
members and
2. Announce the results [LGC, Sec. 53 (a)] Q: On its first regular session, may the
sanggunian transact business other than the
Procedures to be taken by the presiding matter of adopting or updating its existing
officer if there is no quorum rules or procedure?

The presiding officer may: A:YES. There is nothing in the language of the
LGC that restricts the matters to be taken up
1. Declare a recess until such time that quorum during the first regular session merely to the
is constituted adoption or updating of the house rules. (Malonzo
2. Compel immediate attendance of the v. Zamora, G.R. No. 137718, July 27, 1999)
members who are absent without justifiable
cause REQUISITES FOR VALID ORDINANCE
3. Declare the session adjourned for lack of
quorum and no business shall be transacted if Ordinance [not-CUPPUn-Gen]
there is still no quorum despite enforcement
of attendance [LGC, Sec. 53 (b)(c)] As a municipal statute, it is a rule of conduct or of
action, laid down by the municipal authorities that
Fixing of Sessions must be obeyed by the citizens. It is drafted,
prepared, promulgated by such authorities for the
Regular Sessions - By resolution on the 1st day of information of all concerned, under and by virtue
the session immediately following the election of of powers conferred upon them by law (United
its members States v. Pablo Trinidad, G.R. No. L-3023, January 16,
1907).
Special Sessions - When public interest so
demands, special session may be called for by the 1. Must not contravene the constitution and
chief executive or by a majority vote members of any statute
sanggunian. 2. Must not be unfair or oppressive
3. Must not be partial or discriminatory
NOTE: The minimum number of regular sessions 4. Must not prohibit, but may regulate trade
shall be once a week for the sangguniang 5. Must not be unreasonable
panlalawigan, sangguniang panlungsod, and 6. Must be general in application and
sangguniang bayan, and twice a month for the Consistent with public policy. (Magtajas v.
sangguniang barangay. [LGC, Sec. 52 (a)] Pryce Properties Corporation, Inc., July 20,
1994)
Guidelines in the conduct of a sanggunian
session NOTE: The mere fact that there is already a
general statute covering an act or omission is
1. It shall be open to public, unless it is a insufficient to negate the legislative intent to
closed-door session empower the municipality to enact ordinances
2. No two sessions, regular or special, may be with reference to the same act or omission under
held in a single day the ‘general welfare clause’ of the Municipal
3. Minutes of the session be recorded and each Charter (United States v. Pascual Pacis, G.R. No.
sanggunian shall keep a journal and record of 10363, September 29, 1915).
its proceedings which may be published
upon resolution of the sanggunian concerned. Ordinance vs. Resolution

265
 POLITICAL LAW
municipal funds from which the salary of the
Ordinance officer could be paid. The Mayor’s refusal in
- Law complying with the directive of the Director of the
- General and permanent character Bureau of Local Government that the salary could
- Third reading is necessary for an ordinance be provided for is oppressive. (Pilar v.
Sangguniang Bayan of Dasol, Pangasinan, G.R. No.
Resolution L-63216, March 12, 1984)
- Merely a declaration of the sentiment or
opinion of a lawmaking body on a specific Items that the local chief executive can veto
matter
- Temporary in nature 1. Item/s of an appropriation ordinance.
2. Ordinance/resolution adopting local
GR: Third reading is not necessary in resolution development plan and public investment
program
XPN: Unless decided otherwise by a majority of all 3. Ordinance directing the payment of money or
the Sanggunian members. (Roble Arrastre, Inc. v. creating liability (LGC, Sec. 55)
Villaflor, G.R. No. 128509, August 22, 2006)
NOTE: Ordinances enacted by the sangguniang
NOTE: It has been held that even where the barangayshall, upon approval by a majority of
statute or municipal charter requires the all its members be signed by the punong
municipality to act by an ordinance, if a resolution barangay. The latter has no veto power.
is passed in the manner and with the statutory
formality required in the enactment of an Approval of ordinances
ordinance, it will be binding and effective as an
ordinance. Such resolution may operate 1. By affixing the signature of the local chief
regardless of the name by which it is called. (Favis executive on each and every page thereof if he
v. City of Baguio, G.R. No. L-29910, April 25, 1969) approves the same
2. By overriding the veto of the local chief
Three readings allowed in one day executive by 2/3 vote of all members of
the sanggunian if the local chief executive
There is nothing in the LGC which prohibits the vetoed the same(LGC, Sec. 54)
three readings of a proposed ordinance from
being held in just one session day. It is not the NOTE: A sanggunian may provide for a vote
function of the courts to speculate that the requirement different (not majority vote) from that
councilors were not given ample time for prescribed in the LGC for certain (but not all)
reflection and circumspection before the passage ordinances as in amending a zoning ordinance
of the proposed ordinance by conducting three (Casino v. Court of Appeals, G.R. No. 91192, Dec. 2,
readings in just one day. (Malonzo v. Zamora, G.R. 1991).
No. 137718, July 27, 1999)
Effectivity of ordinance or resolution
Veto of the Local Chief Executive (1996, 2005
Bar) GR: After 10 days from the date a copy is posted in
a bulletin board at the entrance of the capitol or
The Local Chief Executive may veto the ordinance city, municipal or barangay hall and in at least 2
only once on the ground that the ordinance is conspicuous spaces [LGC, Sec. 59 (a)].
ultra vires and prejudicial to public welfare. The
veto must be communicated to the sanggunian XPN: Unless otherwise stated in the
within: ordinance or resolution [LGC, Sec. 59 (a)].

a. 15 days for a province Effect of the enforcement of a disapproved

b. 10 days for a city or municipality (LGC, ordinance or resolution
Secs. 54 and 55)
It shall be a sufficient ground for the suspension
NOTE: While “to veto or not to veto involves the or dismissal of the official or employee (LGC, Sec.
exercise of discretion,” a mayor exceeded his/her 58).
authority in an arbitrary manner when he/she
vetoes a resolution where there exist sufficient Ordinances requiring publication for its

UNIVERSITY OF SANTO TOMAS 266

2019 GOLDEN NOTE S
 Local Governments
effectivity panlungsod or municipal
sangguniang ordinance.
1. Ordinances that carry with them penal pangbayan (LGC, Effect:
sanctions[LGC, Sec. 59 (c)] Sec. 56) Barangay
2. Ordinances and resolutions passed by ordinance is
highly urbanized and independent suspended
component cities [LGC, Sec. 59 (d)] until such
time as the
Review of ordinances or resolutions (2009 revision
Bar) called is
effected
Component (LGC, Sec.
Cities and Barangay 57)
Basis Municipal Ordinances
Ordinances or LOCAL INITIATIVE AND REFERENDUM
Resolutions
Sangguniang Sangguniang Initiative- The legal process whereby the
Panlalawigan Panlungsod registered voters of LGU may directly propose,
As to Who
or enact or amend any ordinance (LGC, Sec. 120)
Reviews
Sangguniang
Bayan Referendum- The legal process whereby the
As to Within 3 days Within 10 registered voters of the LGU may approve, amend
When after approval days after its or reject any ordinance enacted by the
copies of enactment sanggunian(R.A. 7160, Sec. 126)
ordinance
or NOTE: Local initiative includes not only ordinances
resolutions but also resolutions as its appropriate
be subjects(Garcia v. COMELEC, G.R. 111230,
forwarded September. 30, 1994).
Within 30 days Within 30
after the receipt; days after Limitations on local initiative
the receipt.
1. Examine, or 1. It shall not be exercised for more than once
2. Transmit to the a year.
provincial 2. It shall extend only to subjects or matters
attorney or which are within the legal powers of the
provincial sanggunian to enact.
As to prosecutor. 3. If at any time before the initiative is held,
Period to If it is transmitted, the sanggunian concerned adopts in toto the
examine the provincial proposition presented and the local chief
attorney or executive approves the same, the initiative
prosecutor must shall be canceled. However, those against such
submit his action may, if they so desire, apply for
comments or initiative in the manner herein provided. (LGC,
recommendations Sec. 124)
within 10 days
from receipt of the Procedure in conducting local initiative
document.
If no action has If no action 1. Number of voters who should file petition
As to When been taken within has been with the Sanggunian concerned:
declared 30 days after taken within a. Province and cities – not less than 1000
valid submission. 30 days after registered voters
submission. b. Municipality – at least 100 registered
As to When If it is beyond the If voters
declared powerconferred inconsistent c. Barangay – at least 50 registered voters
invalid on the with the law
(grounds) sangguniang or city or 2. The sanggunian concerned has 30 days to act

267
 POLITICAL LAW
on the petition. If the sanggunian does not take
any favorable action, the proponents may Ultra vires contracts are those which:
invoke the powers of initiative, giving notice to
sanggunian. a. Are entered into beyond the express, implied
3. Proponents will have the following number or inherent powers of the LGU; and
of days to collect required number of b. Do not comply with the substantive
signatures requirements of law e.g., when expenditure of
a. Provinces and cities – 90 days public funds is to be made, there must be an
b. Municipalities – 60 days actual appropriation and certificate of
c. Barangay – 30 days availability of funds. (Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667, April
4. Signing of petition in a public place, before the 17, 2013)
election registrar or his designated
representatives, in the presence of a NOTE: Such are null and void and cannot be
representative of the proponent and of the ratified or validated.
sanggunian concerned.
5. Date of initiative is set by COMELEC if the Instance when a defective municipal
required number of signatures has been contract may be ratified
obtained (LGC, Sec. 122)
Ratification of defective municipal contracts is
Effectivity of proposition possible only when there is non-compliance with
the requirements of authority of the officer
If the proposition is approved by a majority of the entering into the contract and/or conformity
votes cast, it will take effect 15 days after with the formal requisites of a written contract
certification by the COMELEC (LGC, Sec. 123). as prescribed by law. Ratification may either be
expressed or implied.
Rule of COMELEC over local referendum
NOTE: An act attended only by an irregularity, but
The local referendum shall be held under the remains within the municipality’s power, is
control and direction of the COMELEC within considered as an ultra vires act subject to
ratification and/or validation.
a. Provinces and cities – 60 days
b. Municipalities – 45 days Examples:
c. Barangay – 30 days
a. Those entered into by the improper
The COMELEC shall certify and proclaim the department, board, officer of agent;
results of the said referendum (LGC, Sec. 126) b. Those that not comply with the formal
requirements of a written contract e.g., the
Rule on repeal, modification and amendment of Statute of Frauds. (Land Bank of the
an ordinance or proposition approve through an Philippines v. Cacayuran, supra.)
initiative and referendum
Contracts entered into by a local chief
Any proposition or ordinance approved through an executive may be subject to constructive
initiative and referendum shall not be repealed, ratification
modified or amended by the sanggunian within 6
months from the date of approval thereof. A loan agreement entered into by the provincial
governor without prior authorization from the
It may be amended, modified or repealed within 3 Sangguniang Panlalawigan is unenforceable. The
years thereafter by a vote of ¾ of all its members Sanggunian’s failure to impugn the contract’s
(LGC, Sec. 125) validity despite knowledge of its infirmity is an
implied ratification that validates the contract.
NOTE: In case of barangays, the period shall be 18 (Ocampo v. People, G.R. No. 156547-51 & 156382-
months after the approval thereof (LGC, Sec. 125) 85, February 4, 2008)

ULTRA VIRES ACTS Doctrine of estoppel does not apply against a

municipal corporation to validate an invalid
Ultra vires contracts contract

UNIVERSITY OF SANTO TOMAS 268

2019 GOLDEN NOTE S
 Local Governments
speaks of prior authorization or authority from the
The doctrine of estoppel cannot be applied as Sangguniang Panlungsod and not ratification. It
against a municipal corporation to validate a cannot be denied that the City Council issued Res.
contract which it has no power to make, or which 280 authorizing Mayor Tiama to purchase the
it is authorized to make only under prescribed subject lots.
conditions, within prescribed limitations, or in a
prescribed mode or manner, although the NOTE: As aptly pointed out by the Ombudsman,
corporation has accepted the benefits thereof and ratification by the City Council is not a condition
the other party has fully performed its part of the sine qua non for a mayor to enter into contracts.
agreement, or has expended large sums in With the resolution issued by the Sangguniang
preparation for performance. A reason frequently Panlungsod, it cannot be said that there was
assigned for this rule is that to apply the doctrine evident bad faith in purchasing the subject lots.
of estoppel against a municipality in such a case The lack of ratification alone does not characterize
would be to enable it to do indirectly what it the purchase of the properties as one that gave
cannot do directly. (In Re: Pechueco Sons Company unwarranted benefits to Pamana or Prudential
v. Provincial Board of Antique, G.R. No. L-27038, Jan. Bank or one that caused undue injury to Calamba
30, 1970) City. (Vergara v. Ombudsman, G.R. No. 174567,
March 12, 2009)
Authority to negotiate and secure
grants Competitive or Public Bidding

The local chief executive may, upon authority of Refers to a method of procurement which is open
the sanggunian, negotiate and secure financial to participation by any interested party and
grants or donations in kind, in support of the basic which consists of the following processes:
services or facilities enumerated under Sec. 17 advertisement, pre-bid conference, eligibility
of LGC, from local and foreign assistance screening of prospective bidders, receipt and
agencies without necessity of securing opening of bids, evaluation of bids, post-
clearance or approval from any department, qualification, and award of contract. [R.A. 9184,
agency, or office of the national government or IRR, Sec 5 (h)]
from any higher LGU; Provided, that projects
financed by such grants or assistance with Requirement of public bidding
national security implications shall be approved
by the national agency concerned (LGC, Sec. 23) In the award of government contracts, the law
requires competitive public bidding. It is aimed to
Q: The City Council of Calamba issued several protect the public interest by giving the public
resolutions authorizing Mayor Tiama to the best possible advantages thru open
negotiate with landowners within the vicinity competition. It is a mechanism that enables the
of Barangays Real, Halang, and Uno, for a new government agency to avoid or preclude
city hall site and to purchase several lots and to anomalies in the execution of public contracts.
execute, sign and deliver the required (Garcia v. Burgos, G.R. No. 124130, June 29, 1998)
documents. Mayor Tiama then entered into
MOA, Deed of Sale, Deed of Mortgage, and Deed Failure of bidding
of Assignment.
When any of the following occurs:
Thereafter, Ong, a member of the City Council, 1. There is only one offeror
questioned the lack of ratification by the City 2. When all the offers are non-complying or
Council of the contracts, among others. Should unacceptable. (Bagatsing v. Committee on
all the documents pertaining to the purchase of Privatization, G.R. No. 112399, July 14, 1995)
the lots bear the ratification by the City Council
of Calamba? LIABILITY

A: NO. Sec. 22(c), LGC, provides: (c) Unless Every local government unit, as a corporation,
otherwise provided in this Code, no contract may shall have the power to sue and be sued (LGC, Sec.
be entered into by the local chief executive in 22).
behalf of the LGU without prior authorization by
the sanggunian concerned. Clearly, when the local LGUs have the power to sue and be sued. Because
chief executive enters into contracts, the law of the statutory waiver, LGUs are not immune

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 POLITICAL LAW
from suit (Agra, Amicus Imperiorum Locorum, rule is that a municipal corporation can be held
2016). liable to third persons ex contractu or ex delicto.

Local government units and their officials are not There can be no hard and fast rule for purposes of
exempt from liability for death or injury to determining the true nature of an undertaking or
persons or damage to property (LGC, Sec. 24). function of a municipality; the surrounding
circumstances of a particular case are to be
Suability is not the same as liability considered and will be decisive. The basic element,
however beneficial to the public the undertaking
It is a categorical statement that LGUs do not enjoy may be, is that it is governmental in essence;
absolute and unqualified immunity from suits. otherwise the function becomes private or
Therefore, an LGU’s suability is something that is proprietary in character. (Municipality of Malasiqui
recognized but their liability is subject to evidence v. Heirs of Fontanilla, G.R. No. L-29993, October 23,
(The Local Government Code Revisited 2011 Ed., 1978)
p144, Aquilino Pimentel, Jr.).
NOTE: Tests of liability is the nature of task being
Governmental vs. proprietary functions performed.

If the injury is caused in the course of the Liabilities of LGUs (1994, 2009 Bar)
performance of a governmental function or duty,
no recovery, as a rule, can be had from the 1. LGUs and their officials are not exempt from
municipality unless there is an existing statute on liability arising from death or injury to
the matter, nor from its officers so long as they persons or damage to property (LGC, Sec. 24).
performed their duties honestly and in good faith
or that they did not act wantonly and maliciously. 2. LGUs shall be liable for damages for the death
With respect to proprietary functions, the settled of, or injuries suffered by, any person by
rule is that a municipal corporation can be held reason of the defective condition of roads,
liable to third persons ex contractu or ex delicto. streets, bridges, public buildings, and other
public works under their control or
There can be no hard and fast rule for purposes of supervision. (New Civil Code, Art. 2189)
determining the true nature of an undertaking or
function of a municipality; the surrounding NOTE: LGU is liable even if the road does not
circumstances of a particular case are to be belong to it as long as it exercises control or
considered and will be decisive. The basic element, supervision over the said roads.
however beneficial to the public the undertaking
may be, is that it is governmental in essence; 3. The State is responsible in like manner
otherwise the function becomes private or when it acts through a special agent; but not
proprietary in character. (Municipality of Malasiqui when the damage has been caused by the
v. Heirs of Fontanilla, G.R. No. L-29993 October 23, official to whom the task done properly
1978) pertains. In which case, Art. 2180 shall be
applicable. [New Civil Code, Article 2180 (6)]
Scope of municipal liability
4. When a member of a city or municipal
Municipal liabilities arise from various sources police force refuses or fails to render aid or
in the conduct of municipal affairs, both protection to any person in case of danger
governmental and proprietary. to life or property, such peace officer shall
be primarily liable for damages and the city
Governmental vs. proprietary functions or municipality shall be subsidiarily
responsible therefor. (New Civil Code, Art.34)
If the injury is caused in the course of the
performance of a governmental function or duty, Sources of municipal liability
no recovery, as a rule, can be had from the
municipality unless there is an existing statute on 1. Liability arising from violation of law
the matter, nor from its officers so long as they
performed their duties honestly and in good faith NOTE: Liability arising from violation of law
or that they did not act wantonly and maliciously. such as closing municipal streets without
With respect to proprietary functions, the settled indemnifying persons prejudiced thereby,

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2019 GOLDEN NOTE S
 Local Governments
non-payment of wages to its employees due to from considerations outside it. The measure
lack of funds or other causes or its refusal to of recovery is the benefit received by the
abide a temporary restraining order may municipal corporation. The province cannot
result in contempt charge and fine. set up the plea that the contract was ultra vires
2. Liability for contracts and still retain benefits. (Province of Cebu v.
IAC,ibid.)
NOTE:
a. LGU is liable provided that the contract Tort liability of LGUs
is intra vires or it is ultra vires that is only
attended by irregularities, which does not 1. LGU-engaged in governmental function–
preclude ratification or the application of Not liable
the doctrine of estoppel.
XPN: Unless it’s expressly made liable by a
If it is ultra vires, which are entered into statute or its officers acted wantonly or
beyond the express, implied or inherent maliciously. (Torio v. Fontanilla, G.R. No. L-
powers of the local government unit or do 29993 October 23, 1978)
not comply with the substantive
requirements of law they are not liable. 2. LGU-engaged in proprietary function–
b. A private individual who deals with a Liable
municipal corporation is imputed with
CONSTRUCTIVE knowledge of the Q: A collision between a passenger jeepney,
extent of the power or authority of the sand and gravel truck, and a dump truck
municipal corporation to enter into driven by Monte and owned by the
contracts. Municipality of San Fernando occurred which
resulted to the death of Jessica, a passenger of
3. Liability for tort the jeepney. The heirs of Jessica instituted an
action for damages against the Municipality. Is
NOTE: They may be held liable for torts arising the municipality liable for the tort committed
from the performance of their private and by its employee?
proprietary functions under the principle of
respondeat superior. (City of Manila v. A: NO. The driver of the dump truck was
Intermediate Court of Appeals 179 SCRA 428) performing duties or tasks pertaining to his office
– he was on his way to get a load of sand and gravel
Doctrine of Implied Municipal Liability for the repair of San Fernando's municipal streets.
The municipality cannot be held liable for the tort
A municipality may become obligated, upon an committed by its regular employee, who was then
implied contract, to pay the reasonable value of engaged in the discharge of governmental
the benefits accepted or appropriated by it as to functions. The death of the passenger –– tragic and
which it has the general power to contract. The deplorable though it may be –– imposed on the
doctrine of implied municipal liability has been municipality no duty to pay monetary
said to apply to all cases where money or other compensation. (Municipality of San Fernando v.
property of a party is received under such Hon. Firme, G.R. No. L-52179, April 8, 1991)
circumstances that the general law, independent
of express contract, implies an obligation upon Q: The Municipality of Malasiqui authorized
the municipality to do justice with respect to the celebration of town fiesta by way of a
the same. (Province of Cebu v. IAC, G.R. No. resolution and appropriated an amount for the
72841, January 29, 1987) construction of 2 stages. One of the members of
the group to perform a play during the fiesta
NOTE: The obligation of a municipal was Fontanilla. Before the dramatic part of the
corporation upon the doctrine of an implied play was reached, the stage collapsed and
contract does not connote an enforceable Fontanilla was pinned underneath resulting to
obligation. Some specific principle or his death. The heirs of Fontanilla filed a
situation of which equity takes cognizance complaint against the Municipality. Is the
must be the foundation of the claim. The municipality liable?
principle of liability rests upon the theory that
the obligation implied by law to pay does not A: YES. The town fiesta was an exercise of a private
originate in the unlawful contract, but arises or proprietary function of the

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 POLITICAL LAW
municipality.Holding a fiesta, even if the purpose Jurisdictional Responsibility for Settlement of
is to commemorate a religious or historical event Boundary Dispute
of the town, is in essence an act for the special
benefit of the community and not for the general Generally, the rule is to settle boundary disputes
welfare of the public performed in pursuance of a between and among LGUs amicably. Specifically,
policy of the state. No governmental or public boundary disputes involving the LGUs are referred
policy of the state is involved in the celebration of for settlement to the sanggunians concerned. For
a town fiesta. (Municipality of Malasiqui v. Heirs of example, those involving: (a) barangays within one
Fontanilla, G.R. No. L-29993, Oct. 23, 1978) municipality or city are referred to the Sangguniang
Bayan or the Sangguniang Panglungsod; (b)
Q: X was elected as Vice Mayor of Dasol, municipalities within the same province to the
Pangasinan. The Sangguniang Bayan adopted Sangguniang Panlalawigan and (c) municipalities
Resolution No. 1 which increased the salaries of or component cities of different provinces are
the Mayor and Municipal Treasurer to P18,636 jointly referred to the sanggunians concerned.
and P16,044 per annum respectively. However,
the Resolution did not provide for an increase The same rule mentioned in paragraph (c) is
in salary of the Vice Mayor despite the fact that followed when the boundary disputes involve a
such position is entitled to an annual salary of component city or municipality, on the one hand,
P16,044. X questioned the failure of the and a highly urbanized city on the other, or
Sangguniang Bayan to appropriate an amount between or among highly urbanized cities. (The
for the payment of his salary. The Sangguniang Local Government Code Revisited 2011 Ed., p. 275-
Bayan increased his salary and enacted a 276, Aquilino Pimentel, Jr)
Resolution No. 2 appropriating an amount as
payment of the unpaid salaries. However, the Procedure for Settling Boundary Disputes
Resolution was vetoed by the respondent
mayor. Can X avail of damages due to the failure Article 17, Rule III of the Rules and Regulations of
of the respondents to pay him his lawful salary? the LGC outlines the procedures governing
boundary disputes, which succinctly includes the
A: YES. The Mayor alone should be held liable and filing of the proper petition, and in case of failure to
not the whole Sanggunian Bayan. Respondent amicably settle, a formal trial will be conducted and
Mayor vetoed the Resolution without just cause. a decision will be rendered thereafter. An aggrieved
While "to veto or not to veto involves the exercise party can appeal the decision of the sanggunian to
of discretion" as contended by respondents, the appropriate RTC. (Calanza v. PICOP, G.R. No.
respondent Mayor, however, exceeded his 146622, April 24, 2009)
authority in an arbitrary manner when he vetoed
the resolution since there are sufficient municipal Said rules and regulations state:
funds from which the salary of the petitioner could (a) Filing of petition - The sanggunian concerned
be paid. may initiate action by filing a petition, in the
form of a resolution, with the sanggunian
Respondent Mayor’s refusal, neglect or omission in having jurisdiction over the dispute.
complying with the directives of the Provincial (b) Contents of petition - The petition shall state the
Budget Officer and the Director of the Bureau of grounds, reasons or justifications therefore.
Local Government that the salary of X be provided (c) Documents attached to petition - The petition
for and paid the prescribed salary rate, is reckless shall be accompanied by:
and oppressive, hence, by way of example or 1. Duly authenticated copy of the law or
correction for the public good, respondent Mayor is statute creating the LGU or any other
liable personally to the petitioner for exemplary or document showing proof of creation of
corrective damages. (Pilar v. Sangguniang bayan ng the LGU;
Dasol, Pangasinan,G.R. No. 63216, March 12, 1984) 2. Provincial, city, municipal, or barangay
map, as the case may be, duly certified
SETTLEMENT OF BOUNDARY DISPUTES by the LMB.
3. Technical description of the
Boundary Dispute boundaries of the LGUs concerned;
4. Written certification of the provincial,
When a portion or the whole of the territorial area city, or municipal assessor, as the case
of an LGU is claimed by two or more LGUs. may be, as to territorial jurisdiction
over the disputed area according to

UNIVERSITY OF SANTO TOMAS 272

2019 GOLDEN NOTE S
 Local Governments
records in custody; dispute.
5. Written declarations or sworn
statements of the people residing in the Q: (1.) There was a boundary dispute between
disputed area; and Dueñas, a municipality, and Passi, an
6. Such other documents or information independent component city, both of the same
as may be required by the sanggunian province. State how the two local government
hearing the dispute. units should settle their boundary dispute.

(d) Answer of adverse party - Upon receipt by the (2.) The Sangguniang Bayan of the Municipality
sanggunian concerned of the petition together of Santa, Ilocos Sur passed Resolution No. 1
with the required documents, the LGU or LGUs authorizing its Mayor to initiate a petition for
complained against shall be furnished copies the expropriation of a lot owned by Christina as
thereof and shall be given fifteen (15) working site for its municipal sports center. This was
days within which to file their answers. approved by the Mayor. However, the
(e) Hearing - Within five (5) working days after Sangguniang Panlalawigan of Ilocos Sur
receipt of the answer of the adverse party, the disapproved the Resolution as there might still
sanggunian shall hear the case and allow the be other available lots in Santa for a sports
parties concerned to present their respective center. Nonetheless, the Municipality of Santa,
evidences. through its Mayor, filed a complaint for eminent
(f) Joint hearing - When two or more sanggunians domain. Christina opposed this on the following
jointly hear a case, they may sit en banc or grounds:
designate their respective representatives.
Where representatives are designated, there (a) The Municipality of Santa has no power to
shall be an equal number of representatives expropriate;
from each sanggunian. They shall elect from (b) Resolution No. 1 has been voided since the
among themselves a presiding officer and a Sangguniang Panlalawigan disapproved it for
secretary. In case of disagreement, selection being arbitrary; and
shall be by drawing lot. (c) The Municipality of Santa has other and
(g) Failure to settle - In the event the sanggunian better lots for that purpose. Resolve the case
fails to amicably settle the dispute within sixty with reasons. (2005 Bar)
(60) days from the date such dispute was
referred thereto, it shall issue a certification to A: Since Passi is an independent component city,
the effect and copies thereof shall be furnished while Duenas is a municipality, the procedure in
the parties concerned. Section 118 of the Local Government Code does not
(h) Decision - Within sixty (60) days from the date apply to them. Since there is no law providing for
the certification was issued, the dispute shall the jurisdiction of any court or quasi-judicial
be formally tried and decided by the agency over the settlement of their boundary
sanggunian concerned. Copies of the decision dispute, the Regional Trial Court has jurisdiction
shall, within fifteen (15) days from the to adjudicate it. Under Section 19 (6) of the
promulgation thereof, be furnished the parties Judiciary Reorganization Act, the Regional Trial
concerned, DILG, local assessor, COMELEC, Court has exclusive original jurisdiction in all
NSO, and other NGAs concerned. cases not within the exclusive jurisdiction of any
(i) Appeal - Within the time and manner court or quasi-judicial agency. (Municipality of
prescribed by the Rules of Court, any party may Kananga v. Madrono, G.R. No. 141375. April 30,
elevate the decision of the sanggunian 2003)
concerned to the proper Regional Trial Court
having jurisdiction over the dispute by filing VACANCIES AND SUCCESSION
therewith the appropriate pleading, stating
among others, the nature of the dispute, the Vacancy
decision of the sanggunian concerned and the
reasons for appealing therefrom. The Regional Absence should be reasonably construed to mean
Trial Court shall decide the case within one (1) ‘effective’ absence, that is, one that renders the
year from the filing thereof. Decisions on officer concerned powerless, for the time being, to
boundary disputes promulgated jointly by two discharge the powers and prerogatives of his/her
(2) or more sangguniang panlalawigans shall office. There is no vacancy whenever the office is
be heard by the Regional Trial Court of the occupied by a legally qualified incumbent. A sensu
province, which first took cognizance of the contrario, there is a vacancy when there is no

273
 POLITICAL LAW
person lawfully authorized to assume and exercise in case of the permanent disability of
at present the duties of the office. (Gamboa, Jr. v. highest ranking Sanggunian member,
Aguirre, G.R. No. 134213, July 20, 1999) c. Second highest ranking Sanggunian
member
Classes of vacancies in the elective post
Permanent Vacancy: 3. Office of the Vice Governor or Vice-
Mayor
Arises when an elected local official: a. Highest ranking Sanggunian member;
in case of the permanent disability of
1. Fills a higher vacant office; or highest ranking Sanggunian member,
2. Refuses to assume office; or
3. Fails to qualify; or NOTE: The highest ranking municipal
4. Dies; or councilor’s succession to the office of vice-
5. Removed from office; or mayor cannot be considered a voluntary
6. Voluntarily resigns; or renunciation of his office as councilor,
7. Permanently incapacitated to discharge the since it occurred by operation of law.
functions of his office. (LGC, Sec. 44) (Montebon v. COMELEC, G.R. No. 180444,
April 8, 2008)
Temporary Vacancy:
4. Second highest ranking Sanggunian
Arises when an elected official is temporarily member.Office of the Punong Barangay
incapacitated to perform his duties due to legal or a. Highest ranking Sanggunian
physical reason such as: member; in case of the
permanent disability of highest
1.Physical sickness; ranking Sanggunian member,
2.Leave of absence; b. Second highest ranking
3.Travel abroad; or Sanggunian member

Arises when an elected official is temporarily NOTE: For purposes of succession, ranking
incapacitated to perform his duties due to legal or in the Sanggunian shall be determined on the
physical reason such as: basis of the proportion of the votes obtained
by each winning candidate to the total number
1.Physical sickness; of registered voters in each district in the
2.Leave of absence; immediately preceding local election. [LGC, Sec.
3.Travel abroad; or 44 (d)(3)]
4. Suspension from office. (LGC, Sec. 46)
B. In case automatic succession is not applicable
Filling of vacancy and there is vacancy in the membership of the
sanggunian, it shall be filled up by appointment in
1. Automatic succession the following manner:
2. By appointment (LGC, Sec. 45)
1. The President, through the Executive
Rules of succession in case of permanent Secretary, shall appoint the political
vacancies (1995, 1996, 2002 Bar) nominee of the local chief executive for
the sangguniangpanlalawigan and
A. In case of permanent vacancy in: panlungsod of highly urbanized cities and
1. Office of the Governor independent component cities [LGC, Sec.
a. Vice-Governor; in his absence, 45 (a)(1)]
b. Highest ranking Sanggunian member; 2. The Governor shall appoint the political
in case of the permanent disability of nominees for the sangguniang panlungsod
highest ranking Sanggunian member, of component cities and the
c. Second highest ranking Sanggunian sangguniang bayan concerned [LGC, Sec.
member 45 (a)(2)]
3. The city or municipal mayor shall appoint
2. Office of the Mayor the recommendation of the sangguniang
a. Vice-Mayor; in his absence, barangay concerned [LGC, Sec. 45 (a)(3)]
b. Highest ranking Sanggunian member;

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2019 GOLDEN NOTE S
 Local Governments
GR: The successor (by appointment) should Sanggunian that should be filled up with someone
come from the same political party as the who should belong to the political party of
sanggunian member whose position has petitioner Tamayo. Under Sec 44 of the LGC, a
become vacant. permanent vacancy arises when an elective official
fills a higher vacant office, refuses to assume office,
XPN: In the case of vacancy in the Sangguniang fails to qualify, dies, is removed from office,
barangay. voluntarily resigns, or is otherwise permanently
incapacitated to discharge the functions of his
The reason for the rule is to maintain the party office. Sec 45 (b) of the same law provides that
representation as willed by the people in the “only the nominee of the political party under
election. which the Sanggunian member concerned has
been elected and whose elevation to the position
Hold-over status next higher in rank created the last vacancy in the
Sanggunian shall be appointed in the manner
In case of failure of elections involving barangay herein provided. The appointee shall come from
officials, the incumbent officials shall remain in the political party as that of the Sanggunian
office in a hold-over capacity pursuant to R.A. member who caused the vacancy…”The term “last
9164. (Adap v. COMELEC, G.R. No. 161984, February vacancy” is thus used in Sec. 45(b) to differentiate
21, 2007) it from the other vacancy previously created. The
term “by no means” refers to the vacancy in the No.
The “last vacancy” in the Sanggunian 8 position which occurred with the elevation of
8th placer to the 7th position in the Sanggunian.
It refers to the vacancy created by the elevation of Such construction will result in absurdity.
the member formerly occupying the next higher in (Navarro v. CA, G.R. No. 141307, March 28, 2001)
rank, which in turn also had become vacant by any
of the causes enumerated. NOTE: In case of vacancy in the representation of
the youth and the barangay in the Sanggunian, it
Q: In the 1997 local elections Calimlim was shall be filled automatically by the official next in
elected as Mayor, Aquino as Vice-Mayor and rank of the organization concerned. [LGC, Sec.
Tamayo as the highest ranking member of the 45(d)]
Sanggunian. In 1999, Mayor Calimlim died,
thus Vice-Mayor Aquino succeeded him as Rules on temporary vacancies (2002 Bar)
Mayor. Accordingly, the highest-ranking
member of the Sanggunian, Tamayo, was 1. In case of temporary vacancy of the post of
elevated to the position of the Vice-Mayor. the local chief executive (leave of absence,
Since a vacancy occurred in the Sangguniang travel abroad, and suspension): the Vice-
Bayan by the elevation of petitioner Tamayo to Governor, City or Municipal Vice Mayor, or
the office of the Vice-Mayor, Governor the highest ranking sangguniang barangay
Agbayani appointed Navarro as Member of the shall automatically exercise the powers and
Sangguniang Bayan. Navarro belonged to the perform the duties and functions of the
same political party as that of Tamayo. local chief executive concerned. Such
automatic exercise means that they no
Respondents argue that it was the former vice- longer have to be appointed to the position
mayor Aquino who created the permanent by anyone.
vacancy in the Sanggunian and thus, the
appointee must come from the former vice NOTE:
mayor’s political party. Petitioners, however, GR: The acting Governor or Mayor cannot
contend that it was the elevation of Tamayo to exercise the power to appoint, suspend or
the position of vice-mayor which resulted in a dismiss employees.
permanent vacancy and thus, the person to be
appointed to the vacated position should come XPN: If the period of temporary incapacity
from the same political party as that of exceeds 30 working days.
Tamayo, in this case Navarro. Are the
respondents correct? 2. If travelling outside his jurisdiction but within the
country for a period not exceeding 3 days, the local
A: NO. With the elevation of Tamayo to the chief executive may designate in writing the officer-
position of Vice-Mayor, a vacancy occurred in the in-charge of their respective offices. The OIC

275
 POLITICAL LAW
cannot exercise the power to appoint, suspend or 3. The abolition of an elective local office due to the
dismiss employee. conversion of a municipality to a city does not, by
itself, work to interrupt the incumbent official’s
If no designation was made, then the vice governor, continuity of service.
vice mayor, or in his absence, the highest-ranking
member of the sanggunian is authorized to assume 4. Preventive suspension is not a term-interrupting
the office on the 4th day of absence of the local chief event as the elective officer’s continued stay and
executive. entitlement to the office remain unaffected during
the period of suspension, although he is barred
3. If the local chief executive’s travel exceeds 3 days, from exercising the functions of his office during
the vice governor or vice mayor, or in his absence, this period.
the highest ranking sanggunian member assumes
the office of the local chief executive. 5. When a candidate is proclaimed as winner for an
elective position and assumes office, his term is
Termination of temporary incapacity interrupted when he loses in an election protest
and is ousted from office, thus disenabling him from
1. Upon submission to the appropriate serving what would otherwise be the unexpired
sanggunian of a written declaration by the portion of his term of office had the protest been
local chief executive concerned that he has dismissed (Lonzanida and Dizon). The break or
reported back to office, if the temporary interruption need not be for a full term of three
incapacity was due to years or for the major part of the 3-year term; an
a. Leave of absence; interruption for any length of time, provided the
b. Travel abroad; and cause is involuntary, is sufficient to break the
c. Suspension continuity of service.

2. Upon submission by the local chief executive 6. When an official is defeated in an election protest
of the necessary documents showing that and said decision becomes final after said official
the legal causes no longer exist, if the had served the full term for said office, then his loss
temporary incapacity was due to legal in the election contest does not constitute an
reasons[LGC, Sec. 46(b)]. interruption since he has managed to serve the
term from start to finish. His full service, despite the
Rules on consecutiveness of terms and/or defeat, should be counted in the application of term
involuntary interruption: limits because the nullification of his proclamation
came after the expiration of the term. (Abundo v.
1.When a permanent vacancy occurs in an elective COMELEC, G.R. No. 201716, Jan. 8, 2013)
position and the official merely assumed the
position pursuant to the rules on succession under RECALL
the LGC, then his service for the unexpired portion
of the term of the replaced official cannot be treated It is a mode of removal of a public officer, by the
as one full term as contemplated under the subject people, before the end of his term. The people’s
constitutional and statutory provision that service prerogative to remove a public officer is an
cannot be counted in the application of any term incident of their sovereign power, and in the
limit. If the official runs again for the same position absence of constitutional restraint, the power is
he held prior to his assumption of the higher office, implied in all governmental operations. (Garcia v.
then his succession to said position is by operation COMELEC, G.R. No. 111511, Oct. 5, 1993)
of law and is considered an involuntary severance
or interruption. NOTE: All expenses incident to recall elections
shall be borne by the COMELEC. For this
2. An elective official, who has served for three purpose, the annual General Appropriations Act
consecutive terms and who did not seek the (GAA) shall include a contingency fund at the
elective position for what could be his fourth term, disposal of the COMELEC for the conduct of recall
but later won in a recall election, had an elections (LGC, Sec. 75)
interruption in the continuity of the official’s
service. For, he had become in the interim, i.e., from Q: Goh filed before the COMELEC a recall
the end of the 3rd term up to the recall election, a petition against Mayor Bayron due to loss of
private citizen. trust and confidence. On 1 April 2014, the
COMELEC promulgated Resolution No. 9864

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 Local Governments
which found the recall petition sufficient in concerned and supported by the registered
form and substance, but suspended the voters in the LGU concerned during the election
funding of any and all recall elections until the in which the local official sought to be recalled
resolution of the funding issue. Petitioner was elected subject to the following percentage
submits that the same is a grave abdication requirements:
and wanton betrayal of the constitutional
mandate of the COMELEC and a grievous a. At least twenty-five percent (25%) in the
violation of the sovereign power of the people. case LGUs with a voting population of not
What Resolution Nos. 9864 and 9882 have more than twenty thousand (20,000);
given with one hand (the affirmation of the b. At least twenty percent (20%) in the case of
sufficiency of the Recall Petition), they have LGUs with a voting population of at least
taken away with the other (the issue of lack twenty thousand(20,000) but not more
funding). The COMELEC suspended the holding than seventy-five thousand (75,000):
of a recall election supposedly through lack of Provided, That in no case shall the required
funding. Did the COMELEC gravely abuse its petitioners be less than five thousand
discretion when it suspended the recall (5,000);
election? c. At least fifteen percent (15%) in the case of
LGUs with a voting population of at least
A: YES. The COMELEC committed grave abuse of seventy-five thousand (75,000) but not more
discretion in issuing Resolution Nos. 9864 and than three hundred thousand (300,000):
9882. The 2014 GAA provides the line item Provided, however, That in no case shall the
appropriation to allow the COMELEC to perform required number of petitioners be less than
its constitutional mandate of conducting recall fifteen thousand(15,000); and
elections. There is no need for supplemental d. At least ten percent (10%) in the case of LGUs
legislation to authorize the COMELEC to conduct with a voting population of over three
recall elections for 2014. Considering that there is hundred thousand (300,000):Provided,
an existing line item appropriation for the conduct however, that in no case shall the required
of recall elections in the 2014 GAA, we see no petitioners be less than forty-five thousand
reason why the COMELEC is unable to perform its (45,000) (LGC, Sec. 70, as amended by RA 9244)
constitutional mandate to “enforce and administer
all laws and regulations relative to the conduct of NOTE: By virtue of RA 9244, Secs. 70 and 71 of
xxx recall.” Should the funds appropriated in the the LGC were amended, and the Preparatory
2014 GAA be deemed insufficient, then the Recall Assembly has been eliminated as a
COMELEC Chairman may exercise his authority to mode of instituting recall of elective local
augment such line item appropriation from the government officials.
COMELEC’s existing savings, as this augmentation
is expressly authorized in the 2014 GAA. All pending petitions for recall initiated through
Resolution No. 9864 is therefore partially reverse the Preparatory Recall Assembly shall be
and set aside insofar as it directed the suspension considered dismissed upon the effectivity of RA
of any and all proceedings in the recall petition. 9244. (Approved February 19, 2004)
(Goh v. Bayron, G.R No. 212584, November 25,
2014) Recall process

Ground for recall 1. Petition of a registered voter in the LGU

concerned, supported by percentage of
The only ground for recall of local government registered voters during the election in which
officials is loss of confidence. It is not subject to the local official sought to be recalled was
judicial inquiry. The Court ruled that ‘loss of elected.
confidence’ as a ground for recall is a political 2. Within 15 days after filing, COMELEC must
question. (Garcia v. COMELEC, G.R. No. 111511, Oct. certify the sufficiency of the required
5, 1993) number of signatures.

Recall initiation NOTE: Failure to obtain required number

automatically nullifies petition.
The Recall of any elective provincial, city,
municipal or barangay official shall be commenced 3. Within 3 days of certification of sufficiency,
by a petition of a registered voter in the LGU COMELEC shall provide the official with copy

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of petition and shall cause its publication for
three weeks (once a week) in a national Governor Peralta can run again as governor. He did
newspaper and a local newspaper of general not fully serve his third term, because he lost in the
circulation. Petition must also be posted for recall election. His third term should not be
10 to 20 days at conspicuous places (LGC, included in computing the three-term limit.
Sec. 70 (b)(2), as amended by RA 9244) (Lonzanida v. COMELEC, G.R. No. 135150, July 28,
1999)
NOTE: Protest should be filed at this point
and ruled with finality within 15 days after Governor Peralta cannot refuse to run in the recall
filing. election. He is automatically considered as duly
registered candidate (LGC, Sec. 71)
4. COMELEC verifies and authenticates the He is not allowed to resign (LGC, Sec. 72)
signature
5. COMELEC announces acceptance of Prohibition from resignation
candidates.
6. COMELEC sets election within 30 days after The elective local official sought to be recalled shall
the filing of the resolution or petition for not be allowed to resign while the recall process is
recall in the case of in progress (LGC, Sec. 73)
barangay/city/municipality, and 45days in
the case of provincial officials. Officials Limitations on recall (2008 Bar)
sought to be recalled are automatic
candidates (LGC, Secs. 70 & 71) 1. Any elective local official may be the
subject of a recall election only once during
NOTE: The official or officials sought to be his term of office for loss of confidence; and
recalled shall automatically be considered as 2. No recall shall take place within one (1)
duly registered candidate or candidates to the year from the date of the official’s
pertinent positions and, like other candidates, assumption to office or one (1) year
shall be entitled to be voted upon (LGC, Sec. 71) immediately preceding a regular election
(LGC, Sec. 74)
Effectivity of Recall
The Supreme Court held that the term recall
The recall of an elective local official shall be referred to in the one-year time bar rule refers to the
effective only upon the election and proclamation recall election and not the preliminary proceeding
of a successor in the person of the candidate to initiate recall. It is clear that the initiation of recall
receiving the highest number of votes cast during proceeding is not prohibited within the one-year
the election on recall. period provided in Section 74 (b) of the LGC.
(Claudio v. COMELEC, G.R. No. 140560. May 4, 2000)
Should the official sought to be recalled receive the
highest number of votes, confidence in him is NOTE: The one-year time bar will not apply
thereby affirmed, and he shall continue in where the local official sought to be recalled is
office(LGC, Sec. 72) a mayor and the approaching election is a
barangay election. (Angobung v. COMELEC, G.R.
Q: Governor Peralta was serving his third term No. 126576, March 5, 1997)
when he lost his governorship in a recall
election. Q: Sec. 74 of the LGC provides that “no recall
shall take place within one year immediately
A. Who shall succeed Governor Peralta in his preceding a regular local election.” What does
office as Governor? the term “regular local election,” as used in this
B. Can Governor Peralta run again as governor section, mean?
in the next election?
C. Can Governor Peralta refuse to run in the A: Referring to an election where the office held
recall election and instead resign from his by the local elective official sought to be recalled
position as governor? is to be actually contested and filled by the
electorate (Paras v. COMELEC, G.R. No. 123169,
A: The candidate who received the highest number Nov. 4, 1996).
of votes in the recall will succeed Governor Peralta
(LGC, Sec. 72) Q. Will it be proper for the COMELEC to act

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 Local Governments
on a petition for recall signed by just one Sanggunian, irrespective of the district he had
person? been elected from. Allowing Naval to run as a
Sanggunian member for the fourth time is
A: NO. A petition for recall signed by just one violative of the inflexible three-term limit rule.
person is in violation of the statutory 25% Is Julia correct?
minimum requirement as to the number of
signatures supporting any petition for recall. A: YES. As worded, the constitutional provision
(Angobung v. COMELEC, G.R. No. 126576, March 5, fixes the term of a local elective office and limits an
1997) elective official’s stay in office to no more than
three consecutive terms. The “limitation” under
TERM LIMITS this first branch of the provision is expressed in the
negative—“no such official shall serve for more
Term of office of an elected local official than three consecutive terms.” This formulation—
no more than three consecutive terms—is a clear
Three (3) years starting from noon of June 30 command suggesting the existence of an inflexible
following the election or such date as may be rule. This examination of the wording of the
provided by law, except that of elective constitutional provision and of the circumstances
barangay officials, for maximum of 3 consecutive surrounding its formulation impresses upon us the
terms in the same position (LGC, Sec. 43) clear intent to make term limitation a high priority
constitutional objective whose terms must be
The term of office of Barangay and Sangguniang strictly construed and which cannot be defeated by,
Kabataan elective officials, by virtue of RA 9164 nor sacrificed for, values of less than equal
and RA 10742, is three (3) years. constitutional worth.

NOTE: The objective of imposing the three-term In Naval’s case, the words of R.A. No. 9716 plainly
limit rule is to “avoid the recall of a single person state that the new Second District is to be created,
accumulating excess power over a particular but the Third District is to be renamed. The
territorial jurisdiction as a result of a prolonged rationale behind reapportionment is the
stay in the same office”. constitutional requirement to achieve equality of
representation among the districts.The aim of
For a three-term rule to apply, the local official legislative apportionment is to equalize population
must have fully served the term and been elected and voting power among districts. The basis for
through regular election. districting shall be the number of the inhabitants of
a city or a province and not the number of
Q: From 2004 to 2007 and 2007 to 2010, Naval registered voters therein. Naval’s ineligibility to
had been elected as a Board Member of the run, by reason of violation of the three-term limit
Sangguniang Panlalawigan for the Second rule, does not undermine the right to equal
District, Province of Camarines Sur. On October representation of any of the districts in Camarines
12, 2009, the President approved R.A. No. 9716, Sur. With or without him, the renamed Third
which reapportioned the legislative districts in District, which he labels as a new set of
Camarines Sur. 8 out of 10 towns were taken constituents, would still be represented, albeit by
from the old Second District to form the present another eligible person.
Third District. The present Second District is
composed of the two remaining towns, Gainza In sum, there is no compelling reason to side with
and Milaor, merged with five towns from the Naval. To declare otherwise would be to create a
old First District. In the 2010 elections, Naval dangerous precedent unintended by the drafters of
once again won as among the members of the our Constitution and of R.A. No. 9716. Considering
Sanggunian, Third District. He served until that the one-term gap or rest after three
2013. In the 2013 elections, Naval ran anew and consecutive elections is a result of a compromise
was re-elected as Member of the Sanggunian, among the members of the Constitutional
Third District. Nelson Julia was likewise a Commission, no cavalier exemptions or exceptions
Sanggunian Member candidate from the Third to its application is to be allowed. Further,
District in the 2013 elections. He filed before sustaining Naval’s arguments would practically
the COMELEC a Verified Petition to Deny Due allow him to hold the same office for 15 years.
Course or to Cancel COC of Naval. Julia posited (Naval v. COMELEC, G.R. No. 207851, July 8, 2014)
that Naval had fully served for three
consecutive terms as a member of the Term limit of Barangay officials

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The term of office of barangay officials was fixed at

three years under R.A. 9164 (19 March 2002).
Further, Sec.43 (b) provides that "no local
elective official shall serve for more than three (3)
consecutive terms in the same position. The Court
interpreted thissection referring to all local
elective officials without exclusions or exceptions.
(COMELEC v. Cruz, G.R. No. 186616, Nov. 20, 2009)

NOTE: 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. (Sec 43(b), LGC; see previous discussion on
Abundo v. COMELEC, infra.)

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