LAWS ON PUBLIC CORPORATIONS

By Dean Hilario Justino F. Morales

Public Corporation is one formed and organized for the government of a portion of the State.

Classes of Corporations

1. Public or municipal a body politic and corporate constituted by incorporation of inhabitants of city or town for purposes of local government thereof or as agency of State to assists in civil government of the country; one formed and organized for the government of a portion of the State.2. Private one formed for some private purpose, benefit, aim or end.

3.Quasi-public a private corporation that renders public service or supplies public wants.4.Quasi-corporation public corporations created as agencies of State for narrow and limited purpose.

A government-owned and controlled corporation has a personality of its own distinct and separate from that of the government. Governmentowned and controlled corporations may perform governmental or proprietary functions or both depending on the purpose for which they have been created. A government owned and controlled corporation which also performs governmental functions is a part of the government. If it solely performs proprietary functions, then it is not. (PUP v. CA, 368 SCRA 691) Elements of Public Corporation

1. legal creation or incorporation; 2. corporate name; 3. inhabitants; and 4. territoryUnder the Local Government Code of 1991, inhabitants and territory, as elements of public corporation, are referred to as population and land area, respectively.

Dual Nature, Functions of Municipal Corporations

1. Public or governmental it acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits; it exercises by delegation a part of the sovereignty of the State. It aims to attain governmental purposes such as the interest of health, safety and for the advancement of public good and welfare affecting the public in general.2. Private or proprietary it acts in a similar category as a business corporation, performing functions not strictly governmental or political; it stands for the community in the administration of local affairs. It acts as a separate entity for its own purposes and not as a subdivision of the state. Its primary purpose is to obtain special corporate benefits or earn pecunary profit. (Blaquera v. Alcala, 295 SCRA 366) The operation of a public market is not a governmental function but merely an activity undertaken by the city in its private proprietary capacity. (Figueroa vs. People, 498 SCRA)

Criterion to determine whether corporation is public: The relationship of the corporation to the State, i.e., if created by the State as its own agency to help the State in carrying out its governmental functions, then it is public; otherwise, it is private.De Facto Municipal Corporation is a corporation that may exist in fact although not in point of law because of certain defects in some essential features of its organization.Elements/Requisites of a De Facto Municipal Corporation

1. a valid law authorizing incorporation;

2. an attempt in good faith to organize under it;

3. a colorable compliance with the law; and

4. an assumption of corporate powers.

Local Autonomy

01.Can the President validly withhold portions of the IRA share of LGUs? Would your answer be the same if Congress did the same thing through the general appropriations law?

ANSWER: The President of the Philippines may not withhold portions or alter any internal revenue allotments legally due the local government units. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs This is mandated no less than in the Constitution. The Local Government Code specifies further that the release shall be made directly to the LGU concerned within five (5) days after every quarter of the year and shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. .Such withholding by virtue of an administrative fiat clearly contravenes the Constitution and the law.(Pimentel vs. Aguirre, 336 SCRA 201) To allow the President to withhold the IRA share of LGUs would contravene the declared policy on local autonomy and separation of powers between the executive and legislative departments in governing municipal corporations. Devolution includes transfer of resources, including IRA share. Furthermore, the scope of the Presidents power over local government units is merely that of general supervision and not control.

1

LAWS ON PUBLIC CORPORATIONS /P02NO.A general appropriation bill is a special type of legislation, whose content is limited to special sums of money dedicated to a specific purpose or a separate fiscal unit any provision therein which is intended to amend another law is considered inappropriate provision. (Province of Batangas vs. Romulo, 429 SCRA 736) A separate amendatory law, and not the general appropriations law, must enacted by Congress to effect such decrease or withholding of the IRA share. .

02.Distinguish administrative decentralization from political decentralization.

ANSWER: In administrative decentralization, the central government delegates administrative powers to political subdivisions (provinces, cities, municipalities and barangays) in order to broaden the base of government power. Political decentralization involves abdication of political power in favor of LGUs declared autonomous. (Limbonas vs. Mangelin, 170 SCRA 786)

Mandatory Consultation

03.What are the two requisites that must be met before a national project that affects the environment and ecological balance of local communities can be implemented?

ANSWER: Under the Local Government Code, two requisites musts be met before a national project that affects the environmental and ecological balance of local communities can be implemented: 1) prior consultation with the affected local communities and 2) prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project implementation is illegal. (Province of Rizal vs. Executive Secretary, 477 SCRA 436) Also in Alvarez vs. PICOP Resources, 508 SCRA 498, the prior approval of the local government units affected by the proposed conversion of a Timber License Agreement (TLA) into an Integrated Forest Management Agreement (IFMA) is necessary before any project or program can be implemented by government authorities that they may cause depletion of non-renewable resources, loss of crop land, forest cover, and extinction of animal or plant series.

04.

The Sanggunian Panlalawigan of Laguna passed a resolution expressing its opposition to the operation of Lotto outlets in the province. On the basis of such resolution, a municipal mayor refused to issue a mayors permit for the operation of a lotto outlet contending that there was no prior consultations and approval by the concerned Sanggunian before a lotto system can be operated in the municipality.

(1)Are the resolution and the denial of a mayors permit based thereon valid?

(2)Are prior consultations and approval by the concerned Sanggunian needed before a lotto system can be operated in the municipality?

ANSWERS:

(1)A resolution which merely states the objection of the council to lotto is but a mere policy statement on the part of the local council which is not self-executing, and could not serve as a valid ground to prohibit the operation of the lotto system in the province. (Lina vs. Pano, 364 SCRA 76)

(2)The requirement of prior consultation applies only to national projects and/or programs which are to be implemented in a particular local community. Although sanctioned by the national government, the operation of lotto is neither a program nor project of the national government but of charitable institution, the Philippine Charity Sweepstakes Office. The projects and programs mentioned in Section 27 should be interpreted to mean projects and programs whose environmental and ecological effects are among those mentioned in Sections 26 and 27 of the LGC. (Lina vs. Pano, GR No. 129093, August 30, 2001)05.What is the scope of power of the President over LGUs and the National Liga ng mga Barangay?

ANSWER: By constitutional fiat, the heads of political subdivisions are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers, and by the same token, the President may not withhold or alter any authority or power given them by the Constitution and the law. (Pimentel vs. Aguirre, 336 SCRA 201) Also, the DBM, by issuing Local Budget Circular 55 which dictated a uniform amount that an LGU can disburse as additional allowance to judges stationed therein, overstepped its power of supervision over LGUs by imposing a prohibition that did not correspond with law it sought to implement. (Dadole vs. COA, GR No. 125350, December 3, 2002)The Presidents power of general supervision, as exercised by the DILG Secretary as his alter ego, also extends to the Liga ng mga Barangay. It is not subject to control by the Chief Executive or his alter ego. Hence, when respondent judge appointed the DILG as interim caretaker to manage and administer the affairs of the Liga, she effectively removed the management from the National Liga Board and vested control of the Liga on the DILG. The acts of the DILG went beyond the sphere of general supervision and constituted a direct interference with the political affairs not only of the Liga, but more importantly of the barangay as an institution. What the DILG wielded was the power of control which even the President does not have. (National Liga ng mga Barangay vs. Paredes, 439 SCRA 130)LAWS ON PUBLIC CORPORATIONS /P03Creation of LGUs

06. On August 20, 1959, invoking Sections 28and 2630 of the Revised Administrative Code, the President issued an executive order creating the Municipal District of San Andres by segregation several barangays from the Municipality of San Narciso. The municipal district was later on converted into a municipality. On June 5, 1989. The Municipality of San Narciso sought the nullification of the Municipality of San Andres by filing a petition for quo warranto on the ground that its creation was a usurpation of legislative power.

(1) Decide on whether or not to grant the petition.

(2) Would your decision be the same if the Municipality of Andong, Lanao del Norte created by the President under the aforestated law, files a petition for recognition as regular municipality?

ANSWERS: (1) NO. It was only after almost 30 years that petitioner challenged the legality of the creation of the Municipality of San Andres. Public interest demands that a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised within the reglementary period of 5 years and by the proper party, i.e. the State through the Solicitor General. Likewise, Sec. 442 (d) of the Local Government Code provides that the municipal districts created by executive orders shall be considered as regular municipalities. Congress exercised its power to create political subdivisions when it incorporated Sec. 442(d) in the LGC. This is a curative law, which is retrospective and aimed at giving validity to acts that were invalid under existing laws.

Furthermore, there are certain governmental acts which pointed to the States recognition of the municipality, to wit: 1) Executive Order No. 174 classified it as a fifth class municipality; 2) Pursuant to the Judiciary Act, the municipality was included in the establishment of Municipal Circuit Courts, and 3) under the ordinance appended to the Constitution apportioning the seats in the House of Representatives, the municipality was included in the third district of the Province of Quezon. (Municipality of San Narciso vs. Mendez 239 SCRA 11)

(2) NO. Section 442(d) of the Local Government Code does not serve to affirm or reconstitute the judicially dissolved municipalities such as Andong, in Pelaez case, which had been previously created by presidential issuances or executive orders, and which remains inexistent unless recreated through specific legislative enactments. (Camid vs. Office of the President, 448 SCRA 711)

07.Whether or not the Internal Revenue (IRA) share of LGUs are to be included in the computation of the average annual income of a municipality for purposes of its conversion into an independent component city?

ANSWER: Inasmuch as RA 9009 amended Section 450 of the Local Government Code, the ruling of the Supreme Court in Alvarez vs. Guingona, 252 SCRA 695, that the Internal Revenue Allotments (IRAs) shall be included in the computation of the average annual income of the municipality for purposes of determining whether the municipality may be validly converted into a city, is deemed superseded by the amendatory law. Hence the new income requirement of PhP100 million must be sourced from locally generated funds.

08.May a component city be created only by converting a municipality or cluster of barangays, and not by merging two municipalities.

ANSWER: NO. The phrase A municipality or cluster of barangays may be converted into a component city is not a criterion but simply one of the modes by which a city may be created. Sec. 10 of Art X of the Constitution allows the merger of local government units to create a province, city, municipality or barangay in accordance with the criteria established by the Code. The creation of an entirely new local government unit through a division or merger of exiting local government units is recognized under the Constitution, provided that such merger or division shall comply with the requirements prescribed by the Code. Thus, a city may be created by merging two municipalities even if one of the said municipalities already qualifies to be upgraded to a component city. (Cawaling vs. COMELEC, GR Nos. 146319 & 146342, October 26, 2001)

09.Can Congress validly delegate to the Regional Legislative Assembly of the Autonomous Region of Muslim Mindanao the creation of provinces, cities, municipalities and barangays within its territorial jurisdiction?

ANSWER: I QUALIFY. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays. In fact, Congress has delegated to the Sanggunian Panlalawigan and to Sangguniang Panlungsod the power to create barangays within their jurisdiction, subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution.

The creation of provinces and cities, however, is another matter. Section 5(3) Article VI of the Constitution provides, Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative in the House of representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, Any province that may hereinafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled to at least one member.. Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the citys LAWS ON PUBLIC CORPORATIONS /P04population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (30, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create legislative district, a power that exclusively belongs to Congress and not subject to any form of delegation.

09A). Is the creation of the Dinagat Islands Province on the basis of the Local Government Code Implementing Rules and Regulations valid?ANSWER: In Navarro vs. Ermita, GR No. 180050, February 10, 2010, the Supreme Court initially declared the law creating the Province of Dinagat Islands unconstitutional, and the election of officials thereof null and void. The provision of Article 9 (2) of the Rules and regulations Implementing the Local Government Code of 1991 stating The land area requirement shall not apply where the proposed province is composed of one (1) or more islands is declared null and void. While RA 9355 creating the province complied with the income requirement specified in the Local Government Code, it failed to comply with either the territorial or the population requirement for the creation of a province. It has an approximate land area only of 802.12 square kilometers, more or less, including Hibuson Island and approximately 47 islets, and failed to comply with the land area requirement of 2,000 square kilometers. Also, the NSO certified that Dinagat Islands had a total population only of 120,813, which was still below the minimum requirement of 250,000 inhabitants. Moreover, there was a failure to prove that with the population count of 371,000, the population of the original unit (mother unit of Surigao del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time of the creation of the new province. However, the above February 10, 2010 Decision was reversed and set aside by the Supreme Court (April 12, 2011) and ruled that the exemption in Article 9(2) of the LGC-IRR is valid and should be deemed incorporated in the basic law, the LGC, as Congress shows the clear legislative intent to incorporate it in the LGC. The IRR was formulated by the Oversight Committee consisting of members of both the Executive and Legislative Departments, pursuant to Section 533 of the LGC. The IRR was formulated amounting not only to an executive construction, entitled to great weight and respect from the Court, but to legislative construction as well.

10.Sixteen municipalities filed, through their respective sponsors, individual cityhood bills which contained a common provision exempting all of them from the P100 million minimum income requirement in RA 9009 which earlier amended the pertinent provision of the Local Government Code . The city hood bills lapsed into law (Cityhood Laws) on various dates from March to July 2007 without the Presidents signature. The League of Cities of the Philippines filed a petition to declare the Cityhood Laws unconstitutional. Decide.

ANSWER: The Court initially ruled that the Cityhood Laws violate Sections 6 and 10 of Article X of the Constitution, and are thus unconstitutional. First, applying the P100 million income requirement to the present case is a prospective, not retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more than five years later. Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in the local Government Code and not in any other law, including the Cityhood Laws. Third, The Cityhood Laws violate Section 6, Article 10 of the Constitution because they prevent a fair and just distribution of the national taxes to the local government units. Fourth, The criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009, for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any statutory construction. Fifth, even if the exemption in the Cityhood Laws were written in Section 450 of the local Government Code, the exemption would still be unconstitutional for violation of the equal protection clause. To be valid, the classification in the present case, must be based on substantial distinctions, rationally related to the purpose o the law which is to prevent fiscally non-viable municipalities from converting into cities. There is no substantial distinction between municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the 11th congress is not a material difference to distinguish one municipality from another for the purpose of income requirement.

However, in December 21 2009, the Court abandoned and set aside the Decision of November 18, 2008 subject of reconsideration and declared the following: (1) Congress intended the subject cityhood laws to be exempted from the income requirement of PhP100M prescribed by RA 9009;

(2) The cityhood laws merely carry out the intent the intent of RA 9009, now Sec. 450 of the of the LGC, to exempt respondent LGUs from the PhP100M income requirement;

(3) The exemption accorded the 16 municipalities is based on the fact that each had pending cityhood bills long before the enactment of RA 9009 that substantially distinguish them from other municipalities aiming for cityhood; and(4) The operative fact doctrine provides another reason for upholding the constitutionality of the cityhood laws in question. Under the doctrine, an unconstitutional law is void, but its effects, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play.LAWS ON PUBLIC CORPORATIONS /P05The 16 Cityhood bills do not violate Sections 10 an 6 of the Philippine Constitution. RA 9009 amended the Local Government Code. In effect, the Cityhood bills also amended RA 9009. Through the exemption clauses found therein. Since the Cityhood laws explicitly exempted the concerned municipalities from the amendatory RA 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. By allowing the 16 municipalities to convert into component cities, Congress desired only to uphold the very purpose of the LGC, i.e., to make the local government units enjoy genuine and meaningful autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals, which is the very mandate of the Constitution. (League of Cities of the Philippines v. COMELEC, GR Nos. 176951, 177499, 1780056, February 15, 2011)Plebiscite

11.Does the changing of status of Santiago from an independent component city to a mere component city under RA 8528 require that the same be submitted to the people in a proper plebiscite?

ANSWER: YES. RA 8528 changing the status of Santiago from an independent component city to a component city is unconstitutional for its failure to provide that said conversion should be submitted to the people in a proper plebiscite, as required by Section 10, Article X of the 1987 Constitution.

The conversion involves a material change in the political and economic rights of the local government units directly affected as well as the people therein. These changes cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. (Miranda vs. Aguirre, GR No. 133064, September 16, 1999)

12.Can the validity of the plebiscite conducted by the COMELEC for the ratification of the creation of Sorsogon City be assailed on the ground that the plebiscite required by RA 8806 should be conducted within 120 days from the approval of the said Act?

ANSWER: NO. The last sentence of Sec. 10 of Art X mandates that the plebiscite shall be conducted within 120 days from the date of effectivity of the law, not from its approval. While the same provision allows a law or ordinance to fix another date for conducting a plebiscite, still such date must be reckoned from the date of the effectivity of the law. The word approval could only mean effectivity as used and contemplated in Sec. 10 of the Code. Thus, the publication of the law was completed on Sept 1, 2000, which date, should be the reckoning point in determining the 120-day period within which to conduct the plebiscite, not from date of its approval (August 16, 2000) when the law has not yet been published. Since publication is indispensable for the effectivity of the law (Tanada vs. Tuvera, 146 SCRA 446) the plebiscite can only be scheduled on a date the Act took effect. (Cawaling vs. COMELEC, GR Nos. 146319 & 146342, October 26, 2001)13.Can a plebiscite for the ratification of the creation of a barangay be held during the pendency of a case involving a boundary dispute between LGUs?

ANSWER: NO. A case involving a boundary dispute between local government units presents a prejudicial question which must first be decided before plebiscites for the creation of the proposed barangays may be held. Merely because a plebiscite has already been held in regard to a propose barangay does not necessarily render a pending petition for settlement of boundary dispute involving said barangay moot and academic. (Pasig City vs. COMELEC, 314 SCRA 179)

14.

Is the MMDA a political and territorial subdivision of the Philippines?

ANSWER: NO. With the passage of RA 7924 in 1995, Metropolitan Manila was declared as a special development and administrative region and the administration of metrowide basic services affecting the region was placed under a development authority referred to as the Metropolitan Manila Development Authority (MMDA), whose functions were without prejudice to the autonomy of the affected local government units. The law does not grant police nor legislative powers to MMDA, Even the Metro Manila Council, the governing board of the MMDA has not been delegated any legislative power. Clearly, MMDA is not a political unit. There is no grant of authority to enact ordinances and regulations for the general welfare of the inhabitants of the metropolis. Hence, MMDA cannot open for public use a private road in a private subdivision. (MMDA vs. Bel-Air Village Association, Inc. GR No.135962, March 27, 2000) In MMDA vs. Garin, 456 SCRA 176, the Supreme Court reiterated that RA 7924 does not grant MMDA with police power, let alone legislative power and that all its functions are administrative in nature.

Powers of LGUs

15.What are the essential requisites in the valid exercise of police power by a local government unit?

ANSWER: a local government unit is considered to have properly exercised its police powers only when the following requisites are met (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not duly oppressive. The first requirement refers to the equal protection clause and the second, to the due process clause of the Constitution. Thus, a municipality failed to comply with the due process clause when it passed a resolution recommending the closure or transfer of a LAWS ON PUBLIC CORPORATIONS /P06gasoline filling station maintaining that the same was lees than 100 meters away from the nearest public school and church when the records do not show that it even attempted to measure the distance, and that such distance was crucial in determining whether there was an actual violation of the zoning ordinance. (Parayno vs. Jovellanos, 495 SCRA 85)16.Pursuant to the provision of the Local government Code empowering the local government units to create sources of revenue, the Sangguniang Panglunsod of Butuan enacted an ordinance requiring tricycle operators to obtain franchise from the city government and for them to register their tricycles units with the city government. The ordinance also requires tricycle drivers to secure their licenses from the city government. Are the foregoing provisions of the city ordinance valid?

ANSWER:Under Sections 129 and 133 of the Local Government Code, empowering the local government to create sources of revenue and, in particular, to collect registration fees and charges, the power of the Land Transportation Office to register tricycles and to issue licenses for the drivers thereof, has not been devolved to the local government units. What was devolved is the franchising authority of the Land Transportation Franchising and Regulatory Board over the operation of tricycles but not the authority of the LTO to register all motor vehicles (including tricycles) and to issue to qualified persons the license to drive such vehicles. (LTO vs. City of Butuan, 332 SCRA 805)

17.Can an LGU by virtue of its regulatory powers, impose special conditions on a business permit regulating the practice of optometry profession?

ANSWER: NO. In the case of Acebedo Optical Co. Inc. vs. The Hon. Court Of Appeals, GR No. 100152, March 31, 2000, the Supreme Court held that the imposition of special conditions on the business permit is ultra vires. Police power is essentially regulatory in nature and the power to issue licenses and permits, if exercised for a regulatory and revenue-raising purpose, is within the ambit of this power. While the City Mayor can issue or grant licenses and business permits and impose conditions or restrictions thereto, such conditions must not amount to a confiscation of the business. A business permit is issued primarily to regulate the conduct of business and the city mayor cannot, through the issuance of such permit, regulate the practice of profession, like that of optometry. Such function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, i.e., Professional Regulations Commissions and the Board of Examiners in Optometry.

A duly licensed optometrist is not prohibited from being employed by respondent and the latter cannot be said to be exercising the optometry profession by reason of such employment. A business permit is issued primarily to regulate the conduct of a business and the City Mayor cannot, through the issuance of such permit, regulate the practice of a profession, like optometry. Acebedo is entitled to a permit to do business as an optical shop because, although it had duly licensed optometrists in its employ, it did not apply for a license in the practice of optometry as a corporate body or entity. (Doctors Alfafara, et. al vs. Acevedo Optical , Inc. GR No. 148384, April 17, 2002)

18.Can a City Mayor validly order a police raid on commercial establishments in the guise of inspecting or investigating them and close them down and suspend or revoke their licenses and permits?

ANSWER: NO. While the power of the mayor to issue licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of those licenses and permits. Similarly, the power to refuse to issue licenses and permits is premised on non-compliance with the pre-requisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard. (Lim vs. CA, 387 SCRA 149)

Likewise, even as the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits, he has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Finally, a mayor has no authority to close down a business establishment without due process of law there is no provision in the Local Government Code or the Revised Charter of the City of Manila expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the right of people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically. (Id.)

19.State whether or not the following city ordinances are valid and give reasons in support of your answers:(1)An ordinance authorizing the establishment, operation and maintenance of three cockpits within its territorial jurisdiction.

(2)An ordinance which forbids the running of nightclubs, massage parlors, karaoke bars and similar business establishments and instructs its owners/operators to wind up business operators.

(3)An ordinance granting permit to construct and install, and franchise to operate, CATV system and approving increase of subscribers rates.

(4)An ordinance declaring a particular thing as nuisance per se and order its condemnation, or declaring a gas station a nuisance per se.

LAWS ON PUBLIC CORPORATIONS /P7(5)Ordinances prohibiting the operation of all bus and jeepney terminals, including those already existing, and allowing the operation of only one common terminal located outside the city proper but within its territorial jurisdiction.

(6)An ordinance requiring all market stall occupants to fill up and submit the necessary application forms which contained the terms and conditions for the occupation and operation of the stalls, and if approved, the application would serve as the lease contract.

(7)An ordinance appropriating public funds to undertake the widening, repair and improvement of the sidewalks of a privately-owned subdivision.

(8)A zoning ordinance which reclassified the area where the oil depot is situated from industrial to commercial and that the continued operation of the businesses of oil companies in their present location will no longer be permitted.

ANSWERS: (1) It is the Sangguniang Bayan concerned alone which has the power to authorize and license the establishment, operation and maintenance of cockpits, and regulate cockfighting and commercial breeding of gamecocks within its territorial jurisdiction. But its discretion is limited by PD 449, the Cockfighting Law of 1974, in that it cannot authorize more than one cockpit per city or municipality, unless such cities or municipalities have population of over 100,000, in which case two cockpits may be established. Cockfighting is a valid matter of police regulation, as it is a form of gambling essentially antagonistic to the aims of enhancing national productivity and self-reliance limitation on the number of cockpits in a given municipality is a reasonably necessary means for the accomplishment of the purpose of controlling cockfighting, for clearly more cockpits equals more cockfight. A municipal ordinance must not contravene the Constitution and any statute. Ordinance No. 7 contravenes the Cockfighting Law in allowing three cockpits in a city. (Tan vs. Perena, 452 SCRA 53)

(2)NO.The Supreme Court has declared unconstitutional an ordinance revoking all permits and licenses previously issued to operators of night clubs, cabarets, dance halls and prohibiting the issuance of new permits and licenses for such kind of business in the municipality. The Local Government Code authorizes the local government units to exercise police power yet this power does not include the power to prohibit the establishment of businesses which are not per se illegal. LGUs can only regulate but cannot prohibit, the ordinance is ultra vires and unconstitutional. (Dela Cruz vs. Paras, 123 SCRA 569)

In City of Manila vs. Laguio, 455 SCRA 308, the Supreme Court declared unconstitutional an ordinance which forbids running of nightclubs, sauna parlors, massage parlors, karaoke bars and similar business establishments, and instructs its owners/operators to wind up business operations as it amounts to a closure of the establishment, a permanent deprivation of property and is practically confiscatory. An ordinance which permanently restricts the use of property that it cannot be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of property without just compensation. Private property which is not noxious nor intended for noxious purposes may not, by zoning, be destroyed without just compensation.

(3)NO. There is no law specifically authorizing the local government units to grant franchises to operate CATV system. What ever authority the LGUs had before, the same had been withdrawn by PD 1512 terminating all franchises, permits or certificates for operation of CATV system previously granted by the local government units. EO 205 and EO 436, both of which are general laws that mandate that regulation of CATV operators shall be exercised by the National Telecommunications Commission including the power to fix the subscribers rates by CATV operators. Hence, Res. No. 210 approved by Batangas City, granting petitioner a permit to construct, install and operate a CATV system in Batangas City, and approving increase of subscribers rates, is defective as it contravenes EO 205 and EO 436. An LGU cannot enact and ordinance or approve a resolution in violation of a general law. It is a fundamental principle that municipal ordinances are inferior in stature and subordinate to the laws of the State. An ordinance in conflict with a state law of general character and statewide application is universally held to be invalid. Under a general grant of power, municipal corporations cannot adopt ordinances which infringe the spirit of a state law or repugnant to the general policy of the State. It must be consistent with the general law. (Batangas CATV vs. CA, 439 SCRA 326)

(4)NO. While a Sanggunian is empowered under the Local Government Code to enact ordinances declaring, preventing or abating noise and other forms of nuisances, it cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find as a fact, that a particular thing is a nuisance with such thing is not a nuisance per se; nor it can authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. These things must be determined and resolved in the ordinary courts of law. If a thing be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of a Sanggunian. (AC Enterprises, Inc. vs. Frabelle Corp., 506 SCRA 625)

In Parayno vs. Jovellanos, 495 SCRA 85, it was held that a gas station business could not be considered a nuisance which a municipality could summarily abate in the guise of exercising police power. The abatement of nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property, hence it cannot be closed down or transferred summarily to another location.

LAWS ON PUBLIC CORPORATIONS /P08(5)NO. The subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena, including those already existing, and allow the operation of only one common terminal located outside the city proper, franchise for which was granted to Lucena Grand Central Terminal Inc. The assailed ordinances are characterized by overbreath they go beyond what is reasonably necessary to solve the traffic problem. Bus terminals per se do not impede or help impede the flow of traffic. In the subject ordinances, the scope of proscription against the maintenance of terminals is so broad that even entities which might be able to provide facilities better than the franchised terminal are barred from operating at all. The operation of bus terminals is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health or comfort of the community. Unless a thing is a nuisance per se, however, it may not be abated via and ordinance, without judicial proceedings.

(6)It was within the ambit of the Sanggunians authority in the exercise of police power to regulate the enjoyment of the privilege to lease the market stalls. The enactment of the ordinance was a valid exercise of such governmental authority to regulate the possession and use of the public market and its facilities. The lease and occupation of a stall in a public market is not a right but a purely statutory privilege governed by laws and ordinances. The operation of a market stall by virtues of a license is always subject to the police power of the city government. This power could be exercised anytime to change the provisions of the contracts or even abrogate them entirely, for the protection of general welfare. Such an act did not violate the non-impairment clause which is anyway subject to and limited by the paramount police power. (Lucero vs. City Government of Pasig, 508 SCRA 23)

7)NO. Section 335 of RA 7160 is clear and specific that no public money shall be appropriated or applied for private purposes. This is in consonance with the fundamental principle in local fiscal administration that local government funds and monies shall be spent solely for public purposes. The use of LGU funds for the widening and improvement of privately-owned sidewalks is unlawful and it directly contravenes Section 335 of RA 7160. (Albon vs. Fernando, GR No. 148357, June 30, 2006)

(8)YES. The enactment of the ordinance is a legitimate exercise of police power. Its purpose is to promote sound urban planning ensuring health, public safety and general welfare of residents of Manila. The Sanggunian was impelled to take measures to protect the residents of Manila from catastrophic devastation in case of terrorist attack of the Pandacan oil terminals. Based on the hierarchy of constitutionally protected rights, the right to life enjoys precedence over the right to property. The reason is obvious: life is irreplaceable, property is not. When the state or LGUs exercise of police power clashes with a few individuals right to property, the former should prevail. (Social Justice Society vs. Atienza, 545 SCRA 92)Expropriation

20.What is the procedural requisite that must be first observed by an LGU before exercising the power of eminent domain? What is the rationale of such requisite?ANSWER: One condition required for the proper exercise of power of eminent domain by municipal corporation is that a valid and definite offer must first be made to the owner and such offer was not accepted. Unless such a requirement is satisfied, the expropriation of any private property is considered infirm and can be challenged as invalid exercise of the power of eminent domain. (Section 19, LGC) The purpose of the requirement of a valid and definite offer to be first made to the owner is to encourage settlements and voluntary acquisition of property needed for public purposes in order to avoid the expense and delay of a court action. It permits the landowner to receive full compensation, and the entity acquiring the property, immediate use and enjoyment of the property. Single bona fide offer that is rejected by the owner will suffice. (Jesus is Lord Christian School Foundation vs. Municipality of Pasig, MM, 466 SCRA 235)

A letter offered to prove the municipalitys desire or intent to acquire a property for a right of way does not prove that the LGU made definite and valid offer to acquire the property for public use as an access road before filing the complaint for expropriation. In the absence of competent evidence that indeed, the municipality made a definite and valid offer to all co-owners of the property, the declaration in the ordinance that the property owners were notified of the intent to purchase the same for public use as a municipal road is not in compliance with Section 19 of the LGC. (Ibid.)

21.Pursuant to a resolution approved by the Sangguniang Bayan, the Municipality of Paranaque filed a complaint for expropriation of two parcels of land belonging to VM Realty Corporation. The corporation argued that the complaint failed to state a cause of action, because it was filed pursuant to a resolution and not an ordinance as required by the Local Government Code. Decide.

ANSWER: Section 19 of the Local Government provides that a local government unit may pursuant to an ordinance exercise the power of eminent domain In this case the mayor sought to exercise the power of eminent domain pursuant to a resolution of the Sanggunian Bayan. Thus, there was no compliance with requisite that the mayor be authorized through an ordinance. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a law-making-body on a specific matter. The two are enacted differently. A third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of the members of the Sangguniang Bayan. (Municipality of Paranaque vs. VM Realty Corporation, 292 SCRA 676) The ordinance must be enacted prior to the filing of the complaint for eminent domain with the proper court, and not after the court shall have determined the amount of just compensation to which the defendant is entitled. (Heirs of Suguitan vs. City of Mandaluyong, 328 SCRA 137)LAWS ON PUBLIC CORPORATIONS /P0922.Can an LGU expropriate private lands for socialized housing? What are the two requisites for the expropriation of private lands for purposes of socialized housing?

ANSWERS: YES. LGUs may expropriate private lands for purposes of socialized housing but it is subject to the provisions of RA 7279 (Urban Development and Housing Act of 1992) which provides for priorities in the acquisition of land for this particular purpose. Under the law, private lands rank last in the order of priority for purposes of socialized housing. Expropriation proceedings are to be resorted to only when the other modes of acquisition have been exhausted. Compliance with these conditions must be deemed mandatory because these are the only safeguards in securing the right of owners of private property to due process when their property is expropriated for public use. (Filstream International Inc. vs. CA, 284 SCRA 716)

Expropriation as a mode of acquiring lands for socialized housing under RA 7279 is subject to two conditions, namely: 1) it shall be resorted to only when the other modes of acquisition have been exhausted, and 2) parcels of land owned by small property owners are exempt from such acquisition. The two elements defining small property owners are: 1) those owners of real property whose property consists of residential lands with an area of not more than 300 square meters in highly urbanized cities and 800 square meters in other urban areas, and 2) they do not own real property other than the same. (City of Mandaluyong vs. Aguilar, 350 SCRA 487)

23.In the event that an LGU exercises the power of eminent domain, when must just compensation be determined?

ANSWER: Just compensation shall be determined as of time of actual taking. While Section 4 of Rule 67 of the Rules of Court provides that just compensation shall be determined at the time of filing of the complaint for expropriation, such law cannot prevail over Section 19 of RA 7160 which is a substantive law. (The City of Cebu vs. Dedamo, 380 SCRA 754)

24.Can an LGU close a commercial bank operating within its territorial jurisdiction for failure to pay real estate taxes?

ANSWER: NO. A rural bank not engaged in any illegal or immoral activities does not warrant its outright closure by the municipal government for its failure to pay annual business tax. The order of closure violated the banks right to due process. The violation of a municipal ordinance does not empower a municipal mayor to avail of extrajudicial remedies. The appropriate remedies to enforce payment of delinquent taxes or fees are provided for in Section 62 of the Local Tax Code. (Rural Bank of Makati vs. Municipality of Makati, 443 SCRA 602)

Settlement of Boundary Disputes

25.What is the nature and limitation of the power of the Sangguniang Panlalawigan to settle boundary dispute among adjoining municipalities within the province?

ANSWER: The power of the provincial boards to settle boundary disputes is of an administrative nature involving, as it does, the adoption of means and ways to carry into effect the law creating said municipalities. It is a power to fix a common boundary, in order to avoid or settle conflicts of jurisdiction between adjoining municipalities. The power of the Sangguniang Panlalawigan to settle boundary disputes is limited to implementing the law creating the municipality and, any alteration of boundaries not in accordance with the law is not implementation but amendment of the law, which would exceed their authority. Thus, the agreement between the municipalities of Jimenez and Sinacaban (embodied in a resolution of a provincial board declaring certain barrios part of one or another municipality) is invalid as it would effectively amend EO No. 258 creating the Municipality of Sinacaban. It is contrary to the technical description of the territory of a municipality as per EO 258, and therefore not binding. The Supreme Court declared that the RTC was correct when it ordered a relocation survey to determine to which municipality the barangays belonged. (Municipality of Jimenez vs. Baz, 265 SCRA 182)26.What tribunal is conferred jurisdiction by law to settle the boundary dispute 1) involving municipalities or component cities of different provinces 2) between the Municipality of Kanaga and Ormoc City, an independent component city, both of the Province of Leyte?

ANSWERS: 1) Boundary disputes involving municipalities or component cities of different provinces shall be jointly referred for settlement to the Sanggunians of the provinces concerned. (Section 118, LGC) The RTC cannot exercise appellate jurisdiction over the case since there was no petition that was filed and decided by the Sanggunian panlalawigans of Davao Oriental and Surigao del Sur. Neither can the RTC assume original jurisdiction over the boundary dispute since the LGC allocates such power to the sanggunian panlalawigans of Davao Oriental and Surigao del Sur. (Calanza vs. PICOP, GR No. 146622, April 24, 2009)

2) Section 118(d) of the LGC applies to a situation in which a component city or a municipality seeks to settle a boundary dispute with a highly urbanized city, not an independent component city. While Kanaga is a municipality, Ormoc is an independent component city. Clearly then, the procedure referred to in Section 118(d) does not apply to them. Since there is no legal provision specifically governing jurisdiction over boundary disputes between a municipality and an independent component city of the same province, the general rule governing jurisdiction should be used.

The applicable provision is found in Section 19 (6) of BP 129, the Judiciary Reorganization Act of 1980, as amended by RA 7691, which provides the Regional Trial Court shall exercise exclusive original jurisdiction in cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. (Municipality of Kanaga vs. Madrona, 402 SCRA 330)

LAWS ON PUBLIC CORPORATIONS /P10Special Education Fund27.a)May the salaries and personnel related benefits of public school teachers appointed by a local chief executive be charged to the Special Education Fund of the LGU concerned?

b) Would your answer be the same if the expenses is for college scholarships?

ANSWERS: a) YES. The SEF may be expended only for salaries and personnel related benefits of teachers appointed by the local school board in connection with the establishment and maintenance of extension classes. Extension classes are referred to mean additional classes needed to accommodate all children of school age desiring to enter in public schools to acquire basic education. (COA vs. Province of Cebu, GR No.141386, Nov. 29, 2001)b) NO. The Local Government Code reveals that said grants are not among the projects for which the proceeds of the SEF may be appropriated. While Sec. 100 and 272 of the LGC reproduced Section 1 of RA No. 5447, the granting of government scholarships to poor but deserving students was omitted in Secs. 100 and 272 of the Local Government Code. (COA vs. Province of Cebu, supra)

LGO/LGUs and Private Counsel28. a)May a local government official secure the services of private counsel in an action filed against him in his official capacity?

b) May a local government unit be represented by a private attorney?

ANSWERS: a)In resolving whether a local government official may secure the services of private counsel in an action filed against him in his official capacity, the nature of the action and the relief sought are to be considered, as where the complaint contained other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity. (Mancenido vs. CA, 330 SCRA 419))a) The general rule is that private attorneys cannot represent a province or municipality in law suits.(Municipality of Pililia, Rizal vs. CA, 233 SCRA 484).The rationale for the prohibition is to relieve the LGU of the burden of hiring a private attorney. Likewise, the interest of the municipality would be best protected if a government lawyer handle its litigations. It is also expected that the municipal attorney and fiscal would be faithful and dedicated to the LGUs interests. Furthermore, civil service employees, such as a government lawyer could be held accountable for any misconduct or dereliction of duty. (Province of Cebu vs. IAC, 147 SCRA 447) For cities, Section 481(a) of the Local Government Code mandates the appointment of a city legal officer, who is supposed to represent the city in all civil actions and special proceedings wherein the city or any of its officials is a party. A local government unit represented by private counsel as only public officers may act for and in behalf of public entities and public funds should not be spent to hire private lawyers. Hence, the appearance of the Lazaro Law Firm as counsel for Urdaneta City is against the law. Pro bono representation in collaboration with the municipal attorney and prosecutor has not even been allowed. (Asean Pacific Planners vs. City of Urdaneta, GR No. 162525, September 23, 2008)However, by way of exception, local government units may be represented by a private attorney only when the provincial fiscal is disqualified from representing a particular municipality, as in the following instances: when the jurisdiction of a case involving the municipality lies with the Supreme Court; when the municipality is a party adverse to the provincial government or to some other municipality in the same province; when in a case involving the municipality, the provincial prosecutor, his spouse, or his child is involved as a creditor, heir, legatee, or otherwise. (Mancenido vs. CA, 330 SCRA 419)

29.Can a City Mayor file suits for the recovery of funds and property on behalf of the city even without prior authorization from the Sanggunian?

ANSWER: YES. The rule is that a suit is commenced by the local chief executive. In City of Caloocan vs. CA, 489 SCRA 45, it was held that the mayor has the authority to file suits for the recovery of funds and property on behalf of the city even without prior authorization from the sanggunian. This conclusion is strengthened by the fact that nowhere in the enumerated powers and duties of the sanggunian can one find the requirement of such prior authorization in favor of the mayor for the purpose of filing suits on behalf of the city .Succession30.Mayor CALI, who belongs to Lakas Party died during his incumbency. Vice Mayor AQUI, also of Lakas Party succeeded to the mayorship. Thereafter, by operation of law, highest ranking Councilor TAMA of Reforma Party, assumed the position of Vice-Mayor. Councilor LALA, a Lakas Party member, is the No. 8 councilor. The Provincial Governor appointed NAVA, a Reforma Party member, to fill in the vacancy in the Sanggunian Bayan.

a)Who among the three, created the last vacancy in the Sanggunian: Vice-Mayor AQUI, Councilor TAMA, or Councilor LALA?

b)Is the appointment of NAVA to fill up the vacancy in the Sanggunian valid? Reasons.

ANSWERS:

a)The last vacancy in the Sanggunian refers to that created by the elevation of the members formerly occupying the next higher rank which in turn also had become vacant by any of the causes enumerated, and the term last vacancy is thus used in Section 45 of the Local Government Code, to differentiate it from the other vacancy previously created. In this case, with the elevation of TAMA who belonged to Reforma Party, to the LAWS ON PUBLIC CORPORATIONS /P11position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with someone who belongs to the political party of TAMA. To argue that the vacancy created was that formerly held by the 8th Sanggunian member, a Lakas Party Member, would result in the increase in that partys representation in the Sanggunian at the expense of Reforma Party.

b)YES. The appointment of NAVA to fill up the vacancy in the Sanggunian is valid. The reason behind the right given to a political party to nominate a replacement where a permanent vacancy occurs in the Sanggunian is to maintain party representation as willed by the people in the election. Otherwise, Reforma Partys representation in the Sanggunian would be diminished. (Navarro vs. CA, 355 SCRA 672)

Ordinance-making

31.On its first regular session, may the Sanggunian transact business other than the matter of adopting or updating its existing rules or procedure? Can an ordinance be enacted in one day?

ANSWERS: YES. All the Local Government Code requires is the on its first regular session xxx the Sanggunian concerned shall adopt or update its existing rules or procedures.(Section 50, LGC) and by resolution, fix the day, time and place of its regular sessions (Section 52, LGC). There is nothing in the language thereof that restricts the matters to be taken up during the first regular session merely to the adoption of updating of the house rules. If it were the intent of Congress to limit the business of the local council to such matters, then it would have done so in clear and unequivocal terms. But as it is, there is no such intent. (Malonzo vs. Zamora, 311 SCRA 224) An ordinance may be enacted in one day because the Local Government Code does not prohibit the same, unlike in Congress where a bill must undergo three readings on separate days. (Ibid.)32.May an incumbent Governor, while concurrently the Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?

ANSWER: NO. Being the acting governor, the Vice-governor cannot simultaneously exercise the duties of the latter, since the nature of the duties of the Provincial Governor calls for a full-time occupant to discharge them. The creation of a temporary vacancy in the office of the Governor creates a corresponding vacancy in the office of the Vice-governor whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an inability on the part of the regular presiding officer (Vice-governor) to preside over the SP sessions, which thus calls for the operation of the remedy set in Sec. 49(b) of the Local Government Code the election of a temporary presiding officer from among themselves. The continuity of the Acting Governors (Vice-governor) powers as p[residing officer of the SP is suspended so long as he is in such capacity. (Gamboa vs. Aguirre, GR No. 134213, July 20, 1999)

33.Can an acting presiding officer of a Sanggunian be allowed to vote? How is the required quorum in the Sanggunian computed?

ANSWERS: NO. A temporary presiding officer who merely steps into the shoes of the presiding officer could not have greater power than that possessed by the latter who can vote only in case of tie. While acting as presiding officer, a Board Member my not, at the same time be allowed to exercise the rights of a regular board member, including that of voting even when there is no tie to break. (Zamora vs. Caballero, 420 SCRA 384)

The entire membership, including the presiding officer and ex-officio members must be taken into account in computing the quorum of the Sangguniang Panlalawigan. (Ibid.)Enforcement of Ordinance

34.What is the nature of the duty of the LCEs to enforce local ordinance?

ANSWER: The Local Government Code imposes upon the city mayor the duty to enforce all laws and ordinances relative to the governance of the city. As the chief executive of the city, he has the duty to enforce ordinances as long as they have not been repealed by the Sanggunian or annulled by the courts. He has no other choice. It is his ministerial duty to do so. (Social Justice Society vs. Atienza, 517 SCRA 657)

Recall election

35.How is recall initiated?

ANSWER: RA 9244 effectively amended Section 70 of the LGC and thus, eliminated the preparatory recall assembly as one of the modes of initiating recall and provided a new procedure in the conduct of recall initiated through the written petition of registered voters according to the following schedule: 25% - where the voting population of LGU does not exceed 20,000; at least 20% but not less than 5,000 - for LGUs with at least 20,000 but not more than 75,000 voting population; at least 15% but not less than 15,000 for LGUs with at least 75,00 but not more than 300,000 voting population; and at least 10% but not less than 45,000 for LGUs with over 300,000 voting population.

36.Does the term recall in paragraph (b) of Section 74 of the Local Government Code include the gathering of the signatures of registered voters and the filing by it of a recall resolution?

ANSWER: NO. While recall is a process which begins with the gathering of the signatures of the registered voters of a local government unit (RA9244), and then proceeds to the filing of a recall resolution or petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of recall election, and the holding of the election on the scheduled date. However, as used in paragraph (b) of Section 74, recall refers to the election itself by means of which voters decide whether they should retain their local official or elect his replacement.

LAWS ON PUBLIC CORPORATIONS /P12The word recall in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall

1)Because Section 74 speaks of limitations on recall which, according to Section 69, is a power which shall be exercised by the registered voters of a local government unit. Since the voters do not exercise such right except in an election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in paragraph (b)

2)Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an elective local official, and final judging is not done until the day of the election; and

3)Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would unduly curtail freedom of speech and of assembly guaranteed in the Constitution. (Claudio vs. COMELEC, GR No. 140560, May 4, 2000)

Municipal Liability

37.What is the controlling factor so that a municipality or city can be held liable for damages under Article 2189 of the Civil Code?

ANSWER: For liability to arise under Article 2189 of the Civil Code, ownership of the roads, streets, bridges, public buildings and other public works, is not a controlling factor, it is sufficient that a province, city or municipality has control and supervision thereof. The power of a municipality to regulate the drilling and excavation of the ground for the laying of mater or sewer and other pipes within its territorial jurisdiction can only mean that a municipality exercises the power of control, or, at the very least, supervision over excavations. Such liability attaches regardless of whether the drilling or excavation is made on a national road or municipal road, for as long as the drilling and excavation is made on a national road or municipal road, for as long as the same is within its territorial jurisdiction. (Municipality of San Juan MetroManila vs. CA, 466 SCRA 78)

Powers of Vice Governor

38.What are the powers that may be exercised by a Provincial Vice Governor? Under the Local Government Code of 1991, is there still a union between the executive and legislative branches in various local government units?

ANSWERS: In Atienza vs. Villarosa, 458 SCRA 385, it was held that the Vice Governor, as presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body and it is he who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan. The power of the Vice Governor to approve disbursement vouchers necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication. In the same case, the Supreme Court also ruled that the Provincial Governor has no authority to appoint officials and employees of the Sangguniang Panlalawigan. The union of executive and legislative , except in the barangay level, has been disbanded under the Local Government Code of 1991. For this purpose, the Provincial Governor and City and Municipal Mayors are no longer the presiding officers of the Sangguniang Panlalawigan, Sangguniang Panlungsod and Sangguniang Bayan, respectively. However, the Punong Barangay remains to be the presiding officer of the Sangguniang Barangay.

Three consecutive terms limit

39.ONG was declared by the Board of Canvassers as winner for a mayoralty position in the 1992 elections. He assumed office but was ordered unseated six months later by virtue of a successful election protest filed by ALEGRE. He ran again in 1995 and 1998 for the same position and won and served his terms.

(1)What are the two conditions for the application of the disqualification by reason of

the three consecutive terms limit for local elective officials?

(2)Is he eligible to run again for mayor in the 2001 elections?

(3)Would your answer be the same if during the 1992 elections, the order unseating him was issued after the expiration of his term?

ANSWERS: (1) The two conditions for the application of the disqualification by reason of the three consecutive terms limit are: (1) the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. (Lonzanida vs. COMELEC, 311 SCRA 602; Latasa vs. COMELEC, 417 SCRA 574; Ong vs. Alegre, 479 SCRA 473 and Abundo vs. COMELEC, GR No.201716, January 8, 2013))

(2)YES. Though proclaimed as winner by the Board of Canvassers, he is not considered duly elected for that particular term because he was unseated. Voluntary

renunciation of a term of office does not cancel the renounced term in the computation of

the three term limit; conversely, involuntary severance from the office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. (Lonzanida vs. COMELEC, 311 SCRA 602)

(2) NO. In Ong vs. Alegre, 479 SCRA 473, the Supreme Court held that Ongs assumption as mayor of San Vicente, Camarines Sur from July 1, 1998 to June 30, 2001, constitutes service of full term and should be counted as full term served in contemplation of the three-term limit prescribed by the Constitution. While Ongs opponent won in an election protest in the 1998 mayoralty race, and therefore was the legally elected mayor, that LAWS ON PUBLIC CORPORATIONS /P13(3) disposition was without practical and legal use and values, having been promulgated after the term of the contested office has expired. Ongs contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers as duly elected mayor in 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from the start to finish of the term, should be legally be taken as service for a full term in contemplation of the three-term rule.

In Rivera vs. COMELEC, GR 167591ans GR 170577, May 9, 2007, since respondent Morales was elected for the term July 1, 1998 to June 30, 2001, and assumed the position and served as mayor until June 30 2001, the Supreme Court ruled that he was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him as mayor. Such circumstance does not constitute an interruption in serving the full term. Whether as caretaker or de facto officer, he exercises the powers and enjoys the prerequisites of the office which enables him to stay on indefinitely.

40.CONDE was elected Mayor of the Municipality of La Trinidad in the elections of 1995, 1998 and 2001. He fully served his first two terms, and during his third term, the municipality was converted into a component City if La Trinidad. The city charter provided for a hold-over and so without interregnum CONDE went on the serve as the Mayor of the City of La Trinidad. Is CONDE eligible again to run for City Mayor in the 2004 elections?

ANSWER: NO. While a new component city which was converted from a municipality acquires a new corporate existence separate and distinct from that of the municipality, this does not mean however, that for the purpose of applying the constitutional provision on term limits, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. Where a person has been elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break in the continuity of the term. Accordingly, the municipal mayor is barred from running for city mayor under the three-term limit rule. (Latasa vs. COMELEC, 417 SCRA 574)

This prohibition also applies to the office of a punong barangay of a municipality merged with another municipality to create a city as a new political unit. The territorial jurisdiction of such barangay is the same as before conversion and the inhabitants of the barangay are the same. The voters who voted for the punong barangay are the same group

of voters. The prohibition applies to prevent him from running as punong barangay for the fourth time, there being no break in the continuity of the terms. (Laceda vs. Limena, GR No. 182867. November25, 2008)

41.EDWARD was elected City Mayor of Puerto Princesa in the elections of 1992, 1995 and 1998, where he fully served all the three consecutive terms. In the 2001 elections he ran for governor of Palawan but he lost in such electoral race. A year after, a recall election for City Mayor of Puerto Princesa was called by the COMELEC. Is EDWARD eligible to run for City Mayor without violating the constitutional provision on term limit?ANSWER: YES. After three consecutive terms, an elective local official cannot seek immediate re-election for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election is no longer an immediate re-election after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. (Socrates vs. COMELEC, 2002, 391 SCRA 457)

42.Distinguish voluntary renunciation from office from involuntary severance from office.

ANSWER: A Punong Barangay who had already completed two consecutive terms of office and ran for a third term in the Barangay elections of 2002, and while serving his third term as Punong Barangay, he subsequently ran and won and assumed the position of a Sangguniang Bayan member, has effectively abandoned the position of a Punong Barangay and he intended to forego of it. Abandonment, like resignation, is voluntary. When he voluntarily relinquished his office as a Punong Barangay, there is voluntary renunciation of said office. (Bolos vs. COMELEC, GR No. 184082, March 17, 2009))

SFP was elected and served three consecutive term as municipal councilor. During his second term, he succeeded as vice-mayor due to the retirement of the incumbent vice-mayor. His assumption as vice-mayor was considered an involuntary severance from his office as municipal councilor resulting an interruption in his second term of service. It was held that it could not be deemed to have been by reason of voluntary renunciation because it was by operation of law, hence qualified to run again as municipal councillor. (Montebon vs. COMELEC, 551 SCRA 50)

Where an elective official was elected for 3-consecutive terms but was the subject of a preventive suspension by the Ombudsman for several months during one of his terms, such suspension is not a term-interrupting event as the elective officers continued stay and entitlement to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period. (Aldovino v. COMELEC, December 23, 2009)LAWS ON PUBLIC CORPORATIONS /P1443. What is the effect of interruption of service on the three-term limit rule? ANSWER: In Abundo v. COMELEC, GR No. 291716, January 8, 2013, the Court held that the two-year period during which Abundos opponent was serving as mayor should be considered as an interruption, which effectively removed Abundos case from the ambit of the three-term limit rule. Pending the favorable resolution of his election protest, Abundo was relegated to being an ordinary constituent since his opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. For two years, Abundo was a private citizen warming his heels while awaiting the outcome of his protest. An elected official who was belatedly declared as winner and assumed office for only a short period of term is declared eligible by the Court, because he was deprived of his right and opportunity to serve his constituents and that an injustice may be committed against the people of Viga by depriving them of their right to choose their leaders.Practice of Profession

43.VGR, a lawyer and a Punong Barangay and Chairman of the Lupong Tagapamayapa, presided over the conciliation proceedings in an ejectment case. The parties to the case were not able to amicably settle their dispute. Then one of the parties sought his legal assistance and handled her case. In the course thereof, he prepared and signed pleadings including the answer with counter claim, pre-trial brief, position paper and notice of appeal. Is he liable for violation of Rule 6.03 of the Code of Professional Responsibility?

ANSWER: NO. The Rule applies only to a lawyer who has left the government service in connection with any matter in which he intervened while in said service. Accordingly, as Punong Barangay, he was not forbidden to practice his profession. However, he should have procured prior permission or authorization from the head of his Department (DILG Secretary), as required by civil service rules and regulations, particularly Section 12, Rule XVIII of the Revised Civil Service Rules. In acting as a counsel for a party without first securing the required written permission, he not only engaged in the unauthorized practice of law but also violated civil service rules which is a breach of rule 1.01 of the Code of professional Responsibility. (Catu vs. Rellosa, AC No. 5738, February 19, 2008)

Disciplinary Action for Local Elective Officials

1. Grounds

a. Disloyalty to the Republic of the Philippines.

b. Culpable violation of the Constitution.

c. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty.

d.Commission of an offense involving moral turpitude or punishable by at least prision mayor.

e.Abuse of authority.

f.Unauthorized absence for 15 consecutive working days, except sanggunian members.

g.Application for, or acquisition of, citizenship or residence or immigrant status of another country.

h.Other grounds in this Code and other laws.

For disorderly behavior and absence without justifiable cause for four consecutive sessions, a member of the Sanggunian may be censured, reprimanded, excluded from the session, suspended for not more than 60 days, or expelled. Suspension or expulsion shall require concurrence of at least two-thirds of all sanggunian members. A member sentenced by final judgment to imprisonment for at least one year for a crime involving moral turpitude shall be automatically expelled. (Sec.50)

In the performance of his duties, the Mayor should act within the confines of the law and not resort to the commission of a felony a public officer is proscribed from resorting to criminal acts in the enforcement of the law and ordinances. (Maderazo vs. People, 503 SCRA 234)

2. Filing of complaints Jurisdiction (Political Disciplinary Authority)

a. Elective provincial or city officials Office of the President

b. Elective municipal official sangguniang panlalawigan, whose decision may be appealed to the President

c. Elective barangay official sangguniang panlungsod or bayan, whose decision shall be final. (Sec. 61)

3. No investigation shall be held and no preventive suspension shall be imposed within 90 days before any local election. (Sec. 62)

4. Preventive suspension

a. Political Disciplinary Authority

i. Official of province, highly urbanized city or independent component city President

ii. Official of component city or municipality Governor with recommendation of the Sanggunian Panlalawigan

iii. Barangay official Mayor with recommendation of the Sanggunian Bayan/Panlungsod

LAWS ON PUBLIC CORPORATIONS /P15b. Grounds

i.Strong evidence of guilt.

ii. Probability that continuance in office can influence or endanger safety of records.

c. Duration

i.Single suspension 60 days

ii. Several suspension 90 days within a year

In criminal cases, a 90-day preventive suspension imposed by the Sandiganbayan on a local elective official instead of the maximum 60 days provided by Section 63 of the Local Government Code is not flawed where the same was based on Section 13 of RA 3019, malversation of public funds being an offense involving fraud against government funds and is clearly included among crimes contemplated under that section. The Anti-Graft and Corrupt Practices Act implicitly recognizes that the power of preventive suspension lies in which the criminal charged is filed. The provision pendent lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials. It applies to a Municipal mayor, a Governor, a Congressman. It is mandatory for a court to place under preventive suspension a public officer accused before it. (Nicart vs. Sandiganbayan, 495 SCRA 73)

5. Right to Due Process.

The respondent has the right to appear and defend in person or by counsel, to confront the witnesses against him, and to compulsory process to require the attendance of witnesses and production of evidence in his favor. (Sec. 65)

In Joson vs. Torres, 290 SCRA 279, the Supreme Court ruled that the denial of the motion of the Governor for formal investigation is erroneous. His right to formal investigation is spelled out in Administrative Order No. 23. He has the right to appear and defend himself in person or by counsel, the right to confront the witnesses and the right to compulsory attendance of witness and the production of documentary evidence. The right of the Governor to formal investigation was not satisfied when the complaint was decided on the basis of position papers. 6. Decision

To render a decision in administrative cases involving elective officials, the decision of the Sanggunian must be in writing and stating clearly and distinctly the facts and the reasons for such decisions. (Malinao vs. Reyes, 255 SCRA 616) The so-called decision of a member of a Sanggunian cannot be regarded as decision of the Sanggunian for lack of signatures of the requisite majority. (Ibid.)

7. Penalty and Power to Remove

a. The penalty of suspension shall not exceed the unexpired term of the respondent, or a period of 6 months for every administrative offense, nor bar his candidacy as long as he meets the qualifications required for the office.

b. Removal from office shall bar candidacy of the respondent for any elective office. (Sec. 66)

The Office of the President is without any power to remove elected officials since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. (Salalima vs. Guingona, 257 SCRA 55)

Likewise, in Pablico vs. Villapando, 385 SCRA 601, it was held that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX of the rules and regulations implementing the Local Government Code insofar as it vests power on the disciplining authority to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government. Such grant to the disciplining authority of

the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the rules and

regulations. No such regulation may alter, amend or contravene a provision of law, such as the Local Government Code.

The law on suspension and removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. When the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Ibid.)LAWS ON PUBLIC CORPORATIONS /P16The removal from office of local elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal. (Sangguniang Barangay of Barangay Don Mariano Marcos, Bayombong, NV vs. Punong Barangay Martinez, GR 170626, March 3, 2008)

8. Administrative Appeal

a. Period 30 days

b. Appellate authority:

i. Sangguniang panlungsod of component cities and sangguniang bayan sangguniang panlalawigan

ii. Sangguniang panlalawigan and sangguniang panlungsod of highly urbanized cities and independent component cities President

iii. President final (Sec. 67)

c. Execution

The decision shall be executory pending appeal and the respondent shall be considered as under preventive suspension should he win the appeal. In the event that the appeal results in exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal.(Sec. 68)

The decisions of the Office of the President under the Local Government Code are immediately executory even pending appeal because the pertinent laws under which the decisions were rendered mandated them so. In sum, the decisions of the Office of

the President are final and executory. No motion for reconsideration is allowed by law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay the execution of the decision, Thus, the DILG Secretary may validly move for its immediate execution. (Calingin vs CA, 434 SCRA 173)

The phrase final and executory in Sections 61c, 67 and 68, respectively, simply means that the administrative appeals will not prevent the enforcement of the decisions. The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be. (Don vs. Lacsa, GR 170810, August 7, 2007)

9. Concurrent Jurisdiction of the Ombudsman

Under RA 6770, the Ombudsman Act of 1989, the Office of the Ombudsman has disciplinary authority over all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies including members of the cabinet, local governments, government - owned and controlled corporations and their subsidiaries, except those who may be removed only by impeachment. On the other hand, RA 7160, the Local Government Code, the Sangguniang Panlungsod and Sangguniang Bayan have disciplinary authority over elective barangay official. Thus, the Office of the Ombudsman has concurrent jurisdiction with the local government units over administrative cases against elective local officials. (Laxina vs. Office of the Ombudsman, 471 SCRA 542)

Power to Impose Preventive Suspension. RA 6770 empowers the Ombudsman to impose a preventive suspension of a longer period of not more than six (6) months. All appeals from the decisions of the Ombudsman in administrative disciplinary cases may be taken to