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MUNICIPAL CORPORATIONS

UPDATES AND HIGHLIGHTS

RENE B. GOROSPE
University of Santo Tomas
Bar Review 2013

The thrust of the constitutional design on local government units is to accord them greater
autonomy as a means to realize their potentials as self-governing communities, of relevance not only
to their localities but also to nation building. The exercise of prerogatives, the limitations thereon, and
the different aspects of this decentralization and self-governance are reflected in some of the cases
that try to settle the conflicts, clarify confusions, and resolve issues, ranging from the creation,
alteration or division of local government units (LGUs), to the powers that they may exercise, their
relationship with the national government, as well as matters affecting the election or appointment
of their officials and employees, all the way to the conduct of their affairs as well as the disciplinary
measures that may be taken against them.

A. GENERAL CONSIDERATIONS
In the pursuit of the objective of giving the LGUs autonomy, certain measures have to be
undertaken, including the mechanism for giving them a share in the national wealth which should be
allocated and released in a manner that would be least intrusive into their right to receive and utilize
the same. In this regard, a good working relationship between the national and local governments
would, of course, also include the basic need to show greater respect for the LGUs by at least hearing
their side on certain important matters that affect their local concerns. Local autonomy necessarily
includes sharing of power, resources, responsibilities and functions.
In Disomangcop v. Datumanong, 444 SCRA 203 (2004), the Court ruled that Congress cannot
take back by an ordinary law (R.A. No. 8999), what has already been devolved to the Autonomous
Region in Muslim Mindanao pursuant to such regions Organic Acts (R.A. Nos. 6734 and 9054). If
there is any amendment, it must pass through a plebiscite, obtaining the approval of the people of the
ARMM before it could validly take effect. The ARMM Organic Acts are deemed a part of the
regional autonomy scheme. While they are classified as statutes, the Organic Acts are more than
ofbySanto
Tomas
ordinary statutes because University
they enjoy affirmation
a plebiscite.

Faculty of Civil Law

As for the rationale behind regional autonomy, the Court explained: The idea behind the
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Constitutional provisions for autonomous
regions is to allow
the separate development of peoples
with distinctive cultures and traditions. These cultures, as a matter of right, must be allowed to
flourish. Autonomy, as a national policy, recognizes the wholeness of the Philippine society in its
ethnolinguistic, cultural, and even religious diversities. It strives to free Philippine society of the strain
and wastage caused by the assimilationist approach. Policies emanating from the legislature are
invariably assimilationist in character despite channels being open for minority representation. As a
result, democracy becomes an irony to the minority group. The Court was careful to point out,
however, that the creation of autonomous regions does not signify the establishment of a sovereignty
distinct from that Local
of the Autonomy
Republic, as and
it can
beEmpowered
installed only Grassroots
within the framework of this
the

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Constitution and the national sovereignty as well as territorial integrity of the Republic of the
Philippines. Regional autonomy is the degree of self-determination exercised by the local government
unit vis--vis the central government. . . . It ensures the right of peoples to the necessary level of
autonomy that would guarantee the support of their own cultural identity, the establishment of
priorities by the communitys internal decision-making processes and the management of collective
matters by themselves. In other words, [r]egional autonomy refers to the granting of basic internal
government powers to the people of a particular area or region with least control and supervision
from the central government.1
On decentralization, the Court explained that [d]ecentralization comes in two forms
deconcentration and devolution. Deconcentration is administrative in nature; it involves the transfer
of functions or the delegation of authority and responsibility from the national office to the regional
and local offices. This mode of decentralization is also referred to as administrative decentralization.
Devolution, on the other hand, connotes political decentralization, or the transfer of powers,
responsibilities, and resources for the performance of certain functions from the central government
to local government units. This is a more liberal form of decentralization since there is an actual
transfer of powers and responsibilities. It aims to grant greater autonomy to local government units
in cognizance of their right to self-government, to make them self-reliant, and to improve their
administrative and technical capabilities.
Autonomy without means to carry out ones programs would be useless. Thus, the need to
provide local governments with the right to generate their own income and raise taxes, fees and other
charges. In addition, they are also given a just share in national taxes (internal revenue allotment
[IRA]) and an equitable share in the proceeds of the utilization and development of the national
wealth within their respective areas. With regard to the IRA, the Constitution itself decrees that the
same shall be automatically released to them. In Province of Batangas v. Romulo, 429 SCRA 736
(2004), the Court held that such mandate is violated when conditions are set by Congress for its
release. But Congress itself is the one appropriating, may it not impose conditions in the law that it
enacts? While Congress may amend any of the provisions of the Local Government Code (LGC), it
may not do so through appropriations laws or GAAs. Any amendment to the Local Government
Code of 1991 should be done in a separate law, not in the appropriations law, because Congress
cannot include in a general appropriation bill matters that should be more properly enacted in a
separate legislation. And, in this regard, increasing or decreasing the IRA of the LGUs or modifying
their percentage sharing therein, which are fixed in the Local Government Code of 1991, are matters
of general and substantiveUniversity
law. To permit Congress
to undertake
these amendments through the
of
Santo
Tomas
GAAs would be to give Congress the unbridled authority to unduly infringe the fiscal autonomy of
Faculty
of Civil
the LGUs, and thus put the same
in jeopardy every
year. Law

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In Alternative Center for Organizational Reforms and Development, Inc. (ACORD) v. Zamora,
459 SCRA 578 (2005), it was argued that the constitutional provision merely prevents the executive
branch of the government from unilaterally withholding the IRA, but not the legislature from
1

In Lina v. Pao, the Court said: In our system of government, the power of local government units to legislate and enact
ordinances and resolutions is merely a delegated power coming from Congress. As held in Tatel vs. Virac, [207 SCRA 157, 161
(1992),] ordinances should not contravene an existing statute enacted by Congress. . . . Ours is still a unitary form of government,
not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within
the extent allowed by the central authority. Besides, the principle of local autonomy under the 1987 Constitution simply means
Local Autonomy and the Empowered Grassroots
decentralization. It does not make local governments sovereign within the state or an imperium in imperio.

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authorizing the executive branch to withhold the same. Not so, the Court said. As the Constitution
lays upon the executive the duty to automatically release the just share of local governments in the
national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from
performing this duty. To hold that the executive branch may disregard constitutional provisions which
define its duties, provided it has the backing of statute, is virtually to make the Constitution
amendable by statute a proposition which is patently absurd. The Court went on to pronounce that
[s]ince, under Article X, Section 6 of the Constitution, only the just share of local governments is
qualified by the words as determined by law, and not the release thereof, the plain implication is that
Congress is not authorized by the Constitution to hinder or impede the automatic release of the IRA.
In Sampiano v. Indar, 608 SCRA 597 (2009), however, the Court ruled that the automatic
release of the IRA under Section 286 is a mandate to the national government through the
Department of Budget and Management to effect automatic release of the said funds from the
treasury directly to the local government unit, free from any holdbacks or liens imposed by the
national government. However, this automatic release of the IRA from the national treasury does
not prevent the proper court from deferring or suspending the release thereof to particular local
officials when there is a legal question presented in the court pertaining to the rights of the parties to
receive the IRA or to the propriety of the issuance of a TRO or a preliminary injunction while such
rights are still being determined.
With regard to devolution itself, it was claimed in Pimentel, Jr. v. Ochoa, 676 SCRA 551 (2012),
that implementing Conditional Cash Transfer Program (CCTP) thru the Department of Social Welfare
and Development (DSWD), instead of the local government units, would amount to
recentralization of government functions already conferred on local governments. The Court held,
otherwise, however. It said that while Sec. 17 of the Local Government Code charges the LGUs to
take on the functions and responsibilities that have already been devolved upon them from the
national agencies on the aspect of providing for basic services and facilities in their respective
jurisdictions, paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services. The essence of this express reservation
of power by the national government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the program involves the
delivery of basic services within the jurisdiction of the LGU. In fined, [t]he national government
is, thus, not precluded from taking a direct hand in the formulation and implementation of national
development programs especially
where it is of
implemented
locally
in coordination with the LGUs
University
Santo
Tomas
concerned.

Faculty of Civil Law


Another aspect of local autonomy
would
be the respect
accorded to the sentiments of the local
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2013
inhabitants and their officials i.e., that they be consulted before any project or program is

implemented in their respective jurisdictions. Province of Rizal v. Executive Secretary, 477 SCRA
436 (2005), illustrates such a principle. The Court held that in setting up a sanitary landfill, there must
be prior consultation with the LGUs affected as well as approval of the sanggunians concerned. In
this case, Proclamation 635 set a part of San Mateo, Rizal for use as a sanitary landfill and similar
waste disposal applications to accommodate the burgeoning garbage coming from the Metropolitan
Manila area. This was done in spite of the objections of the the officials and residents of the localities
concerned. Under the Local Government Code, therefore, two requisites must be met before a
and the
Grassroots
national project thatLocal
affectsAutonomy
the environmental
andEmpowered
ecological balance
of local communities can be

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implemented: prior consultation with the affected local communities, and prior approval of the
project by the appropriate sanggunian. Absent either of these mandatory requirements, the projects
implementation is illegal.2 (Watch your garbage before it stinks and pollutes the atmosphere. In time you may
have no place to dispose it. And, make sure your test booklet does not look like a candidate fit for the waste
basket.)
The need for prior consultation was also pivotal in Boracay Foundation, Inc. v. Province of
Aklan, 674 SCRA 555 (2012), a case about the reclamation project along the foreshores of Barangay
Caticlan renovation and expansion of Caticlan Jetty Port and Passenger Terminal Facilities as a
means to further the tourist potentials of Boracay. This was opposed, however, by the municipality
(Malay) and the barangay (Caticlan) directly affected. The Court reminded everyone that: The Local
Government Code establishes the duties of national government agencies in the maintenance of
ecological balance, and requires them to secure prior public consultation and approval of local
government units for the projects described therein. In the case before us, the national agency
involved is respondent PRA [Philippine Reclamation Authority]. Even if the project proponent is the
local government of Aklan, it is respondent PRA which authorized the reclamation, being the
exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary
for respondent Province to go through respondent PRA and to execute a MOA, wherein respondent
PRAs authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI,
regional office of the DENR, is also a national government institution which is tasked with the
issuance of the ECC that is a prerequisite to projects covered by environmental laws such as the one
at bar. This project can be classified as a national project that affects the environmental and ecological
balance of local communities, and is covered by the requirements found in the Local Government
Code. . . . The Court further noted that [b]ased on the above, therefore, prior consultations and
prior approval are required by law to have been conducted and secured by the respondent
Province. Accordingly, the information dissemination conducted months after the ECC had already
been issued was insufficient to comply with this requirement under the Local Government Code.
Moreover, [t]he lack of prior public consultation and approval is not corrected by the subsequent
endorsement of the reclamation project by the Sangguniang Barangay of Caticlan on February 13,
2012, and the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were
both undoubtedly achieved at the urging and insistence of respondent Province.3
Does local autonomy exempt LGUs from the audit jurisdiction of the Commission on Audit? No,
the Court held in Veloso v. Commission on Audit, 656 SCRA 767 (2011) LGUs, though granted
local fiscal autonomy, are University
still within the auditof
jurisdiction
the COA. Here, COA disallowed the
SantoofTomas
grant by the City of Manila of certain gratuity to its former officials which gratuity COA considered
FacultyHere,
of the
Civil
Lawof Manila passed an ordinance
to be double and excessive compensation.
Sanggunian
providing for the payment to its elective
officials of retirement
Bar Review
2013 and gratuity pay remuneration
equivalent to the actual time served in the position for three (3) consecutive terms the so-called
2

Note, however, what the Court said in Lina, Jr. v. Pao, 364 SCRA 76 (2001): From a careful reading of said provisions
[2(c) and 27 of R.A. 7160 (Local Government Code),] we find that these apply only to national programs and/or projects which
are to be implemented in a particular local community. Lotto is neither a program nor a project of the national government, but
of a charitable institution, the PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls within
the contemplation of Sections 2 (c)) and 27 of the Local Government Code.
3

The Court issued a Writ of Continuing Mandamus for further study, consultations and approval pursuant to the Local
Local Autonomy and the Empowered Grassroots
Government Code.

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Exemplary Public Service Award (EPSA). The Court, while recognizing the authority of the LGUs
to grant gratuity pay remuneration, reminded them that the same is subject to certain limitations,
including that on additional, double or indirect compensation proscribed under both the Constitution
and the Local Government Code. Section 2 of Ordinance No. 8040 provides for the payment of
retirement and gratuity pay remuneration equivalent to the actual time served in the position for
three (3) consecutive terms as part of the EPSA. The recomputation of the award disclosed that it
is equivalent to the total compensation received by each awardee for nine years that includes basic
salary, additional compensation, Personnel Economic Relief Allowance, representation and
transportation allowance, rice allowance, financial assistance, clothing allowance, 13th month pay and
cash gift. This is not disputed by petitioners. There is nothing wrong with the local government
granting additional benefits to the officials and employees. The laws even encourage the granting of
incentive benefits aimed at improving the services of these employees.4 Considering, however, that
the payment of these benefits constitute disbursement of public funds, it must not contravene the law
on disbursement of public funds. . . . In the same vein, additional allowances and benefits must be
shown to be necessary or relevant to the fulfillment of the official duties and functions of the
government officers and employees. Without this limitation, government officers and employees may
be paid enormous sums without limit or without justification necessary other than that such sums are
being paid to someone employed by the government. Public funds are the property of the people and
must be used prudently at all times with a view to prevent dissipation and waste. Undoubtedly, the
above computation of the awardees reward is excessive and tantamount to double and additional
compensation. This cannot be justified by the mere fact that the awardees have been elected for three
(3) consecutive terms in the same position. Neither can it be justified that the reward is given as a
gratuity at the end of the last term of the qualified elective official. The fact remains that the
remuneration is equivalent to everything that the awardees received during the entire period that he
served as such official. Indirectly, their salaries and benefits are doubled, only that they receive half
of them at the end of their last term.5

B. POWERS OF LOCAL GOVERNMENT UNITS


Local government units may only exercise powers that are delegated to them. Being mere
creatures of the State, they derive their powers from the national government. In accordance with
this, they necessarily must ensure that their acts conform to national laws.

University of Santo Tomas


Faculty
Civil
Law
Section 16 of the Local Government
Codeof
(R.A.
No. 7160)
serves as the vehicle through which
police power is delegated to the LGUs.
LGUs may
exercise such powers as are expressly
Bar Thus,
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2013
1. Police Power

The Court acknowledged: We believe that the award is a gratuity which is a free gift, a present, or benefit of pecuniary
value bestowed without claim or demand, or without consideration.
5

Interestingly, nonetheless, even as the grant is not within the bounds of the law, those who already received were allowed
to keep what they got. [I]n line with existing jurisprudence, we need not require the refund of the disallowed amount because all
the parties acted in good faith. In this case, the questioned disbursement was made pursuant to an ordinance enacted as early as
December 7, 2000 although deemed approved only on August 22, 2002. The city officials disbursed the retirement and gratuity pay
remuneration in the honest belief that the amounts given were due to the recipients and the latter accepted the same with gratitude,
Local Autonomy and the Empowered Grassroots
confident that they richly deserve such reward.

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granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for their efficient and effective governance, and those which are essential to the promotion of the
general welfare.
a. Social Justice Society v. Atienza, Jr., 517 SCRA 657 (2007) and 545 SCRA 92 (2008)
Following the so-called 9-11 Incident in 2001, the City of Manila enacted Ordinance No. 8027.
It reclassified an area from industrial to commercial and directed the owners and operators of
businesses disallowed under the ordinance to cease and desist from operating their businesses within
six months from the date of effectivity of such local fiat. Among the businesses situated in the area
are the so-called Pandacan Terminals of the oil companies Caltex (Philippines), Inc., Petron
Corporation and Pilipinas Shell Petroleum Corporation.
The Court explained that a zoning ordinance is a local city or municipal legislation which logically
arranges, prescribes, defines and apportions a given political subdivision into specific land uses as
present and future projection of needs. As a result of the zoning, the continued operation of the
businesses of the oil companies in their present location may no longer be permitted. The power to
establish zones for industrial, commercial and residential uses is derived from the police power itself
and is exercised for the protection and benefit of the residents of a locality.
b. Lucena Grand Central Terminal, Inc. v. JAC Liner, Inc., 452 SCRA 174 (2005)
In its desire to alleviate the traffic problem in the city proper, Lucena City came up with a
centralized terminal at the outskirts of the city. This is where buses and jeepneys and other public
conveyances would have to load and unload passengers and cargo. Any problem? The Court said that
the intended solution unduly deprived transport companies with existing terminals within the city
proper of their property. Moreover, the solution swept too broadly when it could have simply focused
on what were really causing the problem. The assailed ordinances were characterized as partaking
of overbreadth. They go beyond what is reasonably necessary to solve the traffic problem.
Additionally, since the compulsory use of the terminal would subject the users thereof to fees, rentals
and charges, such measure is unduly oppressive. What should have been done was to determine
exactly where the problem lay and then to stop it right there. If the cause of traffic congestion is the
indiscriminate loading and unloading of passengers by buses on the streets of the city proper, closing
their terminals does not necessarily solve the problem. Bus terminals per se do not, however, impede
or help impede the flow of University
traffic. How the outright
proscription
against the existence of all terminals,
of Santo
Tomas
apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic
Civillack
Law
problem, this Court has not beenFaculty
enlightened. of
If terminals
adequate space such that bus drivers
are compelled to load and unload Bar
passengers
on the streets
instead of inside the terminals, then
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2013
reasonable specifications for the size of terminals could be instituted, with permits to operate the same
denied those which are unable to meet the specifications. In the subject ordinances, however, the
scope of the 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.

c. White Light Corporation v. City of Manila, 576 SCRA 416 (2009)


Love, affection and other intimacies may find expression in ways others may frown upon.
Localprovide
Autonomy
and
Empowered
Grassroots
Anyway, facilities which
the means
forthe
physical
manifestations
of affection abound. In City

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of Manila v. Laguio, Jr., 455 SCRA 308 (2005), what was in issue was the validity of a Manila
ordinance phasing out motels and other similar establishments in the Ermita-Malate area. The Court
said: The Ordinance is so replete with constitutional infirmities that almost every sentence thereof
violates a constitutional provision. The prohibitions and sanctions therein transgress the cardinal
rights of persons enshrined by the Constitution. The Court is called upon to shelter these rights from
attempts at rendering them worthless. And the Court expounded: That these are used as arenas to
consummate illicit sexual affairs and as venues to further the illegal prostitution is of no moment. We
lay stress on the acrid truth that sexual immorality, being a human frailty, may take place in the most
innocent of places that it may even take place in the substitute establishments enumerated in the
Ordinance. If the flawed logic of the Ordinance were to be followed, in the remote instance that an
immoral sexual act transpires in a church cloister or a court chamber, we would behold the spectacle
of the City of Manila ordering the closure of the church or court concerned. Simply because there are
no pure places where there are impure men. Immorality is in the hearts and minds of men and
women not in the physical places where they may fulfill and satisfy their consuming and fiery longings.
The Court went on to tell Manila that it was none of its business to mind what two consenting adults
who are free but perhaps not ready, nor yet willing to marry, may choose to do inside these
establishments. Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motels premises be it stressed that
their consensual sexual behavior does not contravene any fundamental state policy as contained in
the Constitution. Adults have a right to choose to forge such relationships with others in the confines
of their own private lives and still retain their dignity as free persons. The liberty protected by the
Constitution allows persons the right to make this choice. Their right to liberty under the due process
clause gives them the full right to engage in their conduct without intervention of the government,
as long as they do not run afoul of the law. Liberty should be the rule and restraint the exception.
In White Light, the Court again rebuffed the City of Manila in the latters continuing crusade
against institutions of perceived immorality, particularly in regard to their practice of offering short
time admissions and wash-up rate schemes, a case presenting an instance of balancing between police
power and substantive due process. The apparent goal of the Ordinance is to minimize if not
eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These
goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the
State. Yet the desirability of these ends do not sanctify any and all means for their achievement. Those
means must align with the Constitution, and our emerging sophisticated analysis of its guarantees to
the people. The Bill of Rights stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political
majorities animated
his cynicism.
University
of by
Santo
Tomas

Faculty
Civil
Law
And, in the course of deciding
against theof
City,
the Court
gave a lecture on the standards of
review: The general test of the validity
an ordinance 2013
on substantive due process grounds is best
BarofReview
tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S.
v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a discrete and insular minority
or infringement of a fundamental right. Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic legislation. A third standard,
denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for
evaluating classifications based on gender and legitimacy. . . . While the test may have first been
Local Autonomy
Empowered
Grassroots
articulated in equal protection
analysis, it and
has inthe
the United
States since
been applied in all substantive

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due process cases as well. Further expounding, the Court said: In terms of judicial review of
statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount
of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny
is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well
as other fundamental rights as expansion from its earlier applications to equal protection. The United
States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such
as suffrage, judicial access and interstate travel.
Then, after noting that [t]he rights at stake herein fall within the same fundamental rights to
liberty which we upheld in City of Manila v. Hon. Laguio, Jr., the Court proceeded to hold that the
Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners
of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance
as a police power measure. It must appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with private rights and the means must be
reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private
rights. It must also be evident that no other alternative for the accomplishment of the purpose less
intrusive of private rights can work. More importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its accomplishment, for even under the guise
of protecting the public interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded. Lacking a concurrence of these requisites, the police measure shall
be struck down as an arbitrary intrusion into private rights. . . .
Otherwise stated, individual rights may be adversely affected only to the extent that may fairly
be required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned
the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.
d. Albon v. Fernando, 494 SCRA 141 (2006)
May an LGU validly use public funds to undertake the widening, repair and improvement of the
sidewalks of a privately-owned
subdivision? No.
the subdivision
University
of Since
Santo
Tomasstreets belong to the owner
until donated to the government or until expropriated upon payment of just compensation, the use
of Civil
Law sidewalks is unlawful as it
of LGU funds for the wideningFaculty
and improvement
of privately-owned
directly contravenes Section 335 of
RA 7160.
The law2013
contemplates that only the construction,
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Review
improvement, repair and maintenance of infrastructure facilities owned by the LGU may be bankrolled
with local government funds. Otherwise stated, it is the registered owner or developer of a
subdivision who has the responsibility for the maintenance, repair and improvement of road lots and
open spaces of the subdivision prior to their donation to the concerned LGU.

2. Eminent Domain
Among the powers delegated to LGUs is the power to acquire private property if they need the
Local Autonomy and the Empowered Grassroots

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same for public use,6 provided that there is payment of just compensation, in addition to those
specified under the grant pursuant to 19 of the the Local Government Code, namely, the presence
of an ordinance (not a mere resolution)7 authorizing the LGUs chief executive to exercise such
power, for public use, or purpose or welfare for the benefit of the poor and the landless, and, with
the additional condition that the power may not be exercised unless a valid and definite offer has been
previously made to the owner, and such offer was not accepted.8
a. Masikip v. City of Pasig, 479 SCRA 391 (2006)
A local government unit cannot use the power of eminent domain to expropriate a property
merely for the purpose of providing a sports and recreational facility to a small group of persons, such
as those belonging to homeowners association. Where the taking by the State of private property
is done for the benefit of a small community which seeks to have its own sports and recreational
facility, notwithstanding that there is such a recreational facility only a short distance away, such
taking cannot be considered to be for public use. Its expropriation is not valid. Here, the City failed
to establish that there was a genuine necessity to expropriate.
b. Barangay Sindalan, San Fernando, Pampanga v. Court of Appeals, 518 SCRA 649
(2007)
In this case, a barangay sought to expropriate private lands purportedly to be used as a feeder
road. It was shown by the land owners, however, that their lands would actually be used to benefit
only the homeowners of a private subdivision in the place, whose developer would be excused from
complying with its obligation to secure a right-of-way for its lot buyers. The Court declared that the
failure of the subdivision owner to provide an access road does not shift the burden to barangay itself.
To deprive the private persons of their property instead of compelling the subdivision owner to
comply with its obligation under the law is an abuse of the power of eminent domain and is patently
illegal, which misuse of public funds for a private purpose could amount to a possible case of
malversation.
With the thought in mind that [e]xpropriation, if misused or abused, would trench on the
6

[P]ublic use now includes the broader notion of indirect public benefit or advantage, including in particular, urban land
reform and housing. (Manapat v. Court of Appeals, 536 SCRA 32 [2007])
7

University of Santo Tomas


Faculty of Civil Law
Bar Review 2013

In Antonio v. Geronimo, 476 SCRA 340 (2005), the Court held that the owner may continue with the execution of a judgment
in an unlawful detainer case even if there is a resolution passed by the city council indicating the citys intention to expropriate the
property. The fundamental precept that underlies this case is that expropriation has no binding legal effect unless a formal
expropriation proceeding has been instituted. The Court declared that resolutions merely express at most an intention to
expropriate they do not constitute a positive act of instituting the intended expropriation proceedings.
8

See Jesus is Lord Christian School Foundation, Inc. v. Municipality (now City) of Pasig, Metro Manila, 466 SCRA 235
(2005) where the Court explained: 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. The law is designed to give to the owner the opportunity to sell his land without the expense and inconvenience
of a protracted and expensive litigation. This is a substantial right which should be protected in every instance. It encourages
acquisition without litigation and spares not only the landowner but also the condemnor, the expenses and delays of litigation. It
permits the landowner to receive full compensation, and the entity acquiring the property, immediate use and enjoyment of the
property. A reasonable offer in good faith, not merely perfunctory or pro forma offer, to acquire the property for a reasonable price
Local Autonomy and the Empowered Grassroots
must be made to the owner or his privy. A single bona fide offer that is rejected by the owner will suffice.

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Page 10 of 67

property rights of individuals without due process of law, the Court added, [o]ne last word: the
power of eminent domain can only be exercised for public use and with just compensation. Taking
an individuals private property is a deprivation which can only be justified by a higher good which
is public use and can only be counterbalanced by just compensation. Without these safeguards, the
taking of property would not only be unlawful, immoral, and null and void, but would also constitute
a gross and condemnable transgression of an individuals basic right to property as well. For this
reason, courts should be more vigilant in protecting the rights of the property owner and must
perform a more thorough and diligent scrutiny of the alleged public purpose behind the expropriation.
Extreme caution is called for in resolving complaints for condemnation, such that when a serious
doubt arises regarding the supposed public use of property, the doubt should be resolved in favor of
the property owner and against the State.
To the same effect is what the Court said in Jesus is Lord Christian School Foundation, Inc. v.
Municipality (now City) of Pasig, Metro Manila, 466 SCRA 235 (2005). The exercise of the right
of eminent domain, whether directly by the State or by its authorized agents, is necessarily in
derogation of private rights. It is one of the harshest proceedings known to the law. Consequently,
when the sovereign delegates the power to a political unit or agency, a strict construction will be
given against the agency asserting the power. The authority to condemn is to be strictly construed
in favor of the owner and against the condemnor. When the power is granted, the extent to which it
may be exercised is limited to the express terms or clear implication of the statute in which the grant
is contained.
c. Figuracion v. Libi, 539 SCRA 50 (2007)
This refers to the reconveyance by the city of an unused portion of a lot which was expropriated
way back in 1948 for use as part of a street. In 1989, the successor-in-interest of the original owner
repurchased the excess area. Any special rules to apply? The Court stated that reconveyance of
property of the public domain is subject to strict legal requirements. Foremost among the
requirements is that the public property sought to be reconveyed be alienable. As a general rule, local
roads used for public service are considered public property under the absolute control of Congress;
hence, local governments have no authority to control or regulate their use. However, under Section
10, Chapter II of the Local Government Code, Congress delegated to political subdivisions some
control of local roads, authorizing the LGUs, pursuant to an ordinance, to effect the closure and
opening of roads, specifically, the act of permanently or temporarily closing or opening any local
road, alley, park, or square
falling within of
its Santo
jurisdiction.Tomas
Another requirement for a valid
University
reconveyance is that it be established that the former owner or his successors-in-interest have the
Faculty of Civil Law
right to repurchase said property.

Bar Review 2013

d. Ortega v. City of Cebu, 602 SCRA 601 (2009)

In this case, the City of Cebu had a change of mind after initially deciding to expropriate a
property, for which it already appropriated an amount which turned out to be less than what the court
eventually decided as just compensation. It did not appeal the trial courts decision. Subsequently,
it wanted to withdraw from the expropriations proceedings. Could it still do so? No more, the Court
said. Where the expropriation case had long been final and executory, both the Order of expropriation
and the Order fixing just compensation can no longer be modified.
Local Autonomy and the Empowered Grassroots

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3. Taxation
One of the best ways by which LGUs can be assured of autonomy, not dependence, is to
empower them to raise their own revenues.9 So, to what extent may said localities exercise the power
of taxation, specially as the same may come into conflict every now and then with national legislation,
or with agencies or instrumentalities belonging to the national government? And, when it comes to
local taxation, it is also significant that the 1987 Charter itself already delegated such power to the
LGUs, subject to such guidelines and limitations that Congress may provide. The Court pointed out
in City Government of Quezon City v. Bayan Telecommunications, Inc., 484 SCRA 169 (2006), that
the taxing power of local governments under both the 1935 and the 1973 Constitutions solely
depended upon an enabling law. Absent such enabling law, local government units were without
authority to impose and collect taxes on real properties within their respective territorial
jurisdictions.
a. Manila International Airport Authority v. Court of Appeals, 495 SCRA 591 (2006)10
In Mactan Cebu International Airport Authority v. Marcos, 261 SCRA 667 (1996), the Court
held that MCIAA, being a government owned or controlled corporation is subject to local real estate
taxation. Section 234 of the LGC provides for the exemptions from payment of real property taxes
and withdraws previous exemptions therefrom granted to natural and juridical persons, including
government-owned and controlled corporations, except as provided therein. The Court went on to
hold that reading together Sections 133, 232, and 234 of the LGC, we conclude that as a general
rule, as laid down in Section 133, the taxing powers of local government units cannot extend to the
levy of, inter alia, taxes, fees and charges of any kind on the National Government, its agencies and
instrumentalities, and local government units; however, pursuant to Section 232, provinces, cities,
and municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter
alia, real property owned by the Republic of the Philippines or any of its political subdivisions except
when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person,
as provided in item (a) of the first paragraph of Section 234. The Court then declared that the
exemption of MCIIA from such tax granted in its Charter, R.A. No. 6958, has been withdrawn.
How about Manila International Airport Authority? Is it also subject to the payment of real estate
taxes? No, the Court said, and went on to state the basic reasons (a) MIAA is not a GOCC but an
instrumentality of the National Government, and, (b) the real properties of MIAA are owned by
the Republic of the Philippines
and thus exempt
real estate
tax. The Court elucidated thus:
University
offrom
Santo
Tomas

of Civil Law
MIAA is Not a GOCC but a Faculty
Government Instrumentality.
A government-owned or controlled
corporation must be organized as Bar
a stockReview
or non-stock 2013
corporation. MIAA is not organized as a
stock or non-stock corporation. MIAA is not a stock corporation because it has no capital stock
9

Speaking of the delegation to local government units of the power to tax, the Court said in City of Iriga v. Camarines Sur
III Electric Cooperative, Inc. (CASURECO III), 680 SCRA 236 (2012): This explicit constitutional grant of power to tax is
consistent with the basic policy of local autonomy and decentralization of governance. With this power, local government units have
the fiscal mechanisms to raise the funds needed to deliver basic services to their constituents and break the culture of dependence
on the national government.
10

Justice Tinga filed a a spirited dissent here, particularly questioning the Courts sub silencio abandonment of the doctrine
Local Autonomy and the Empowered Grassroots
enunciated in Mactan-Cebu International Airport Authority v. Marcos.

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divided into shares. MIAA has no stockholders or voting shares. Under its Charter, MIAA does not
have capital stock that is divided into shares. MIAA has capital but it is not divided into shares of
stock. MIAA has no stockholders or voting shares. Hence, MIAA is not a stock corporation. MIAA
is also not a non-stock corporation because it has no members. In fine, [s]ince MIAA is neither a
stock nor a non-stock corporation, MIAA does not qualify as a government-owned or controlled
corporation. What then is the legal status of MIAA within the National Government? MIAA is a
government instrumentality vested with corporate powers to perform efficiently its governmental
functions. MIAA is like any other government instrumentality, the only difference is that MIAA is
vested with corporate powers.
Airport Lands and Buildings of MIAA are Owned by the Republic They are of Public
Dominion, Outside the Commerce of Man. The Airport Lands and Buildings of MIAA are property
of public dominion and therefore owned by the State or the Republic of the Philippines. No one can
dispute that properties of public dominion mentioned in Article 420 of the Civil Code, like roads,
canals, rivers, torrents, ports and bridges constructed by the State, are owned by the State. The
term ports includes seaports and airports. The MIAA Airport Lands and Buildings constitute a
port constructed by the State. Under Article 420 of the Civil Code, the MIAA Airport Lands and
Buildings are properties of public dominion and thus owned by the State or the Republic of the
Philippines. The Airport Lands and Buildings are devoted to public use because they are used by the
public for international and domestic travel and transportation.
What about the collection of terminal fees and other charges? The fact that the MIAA collects
terminal fees and other charges from the public does not remove the character of the Airport Lands
and Buildings as properties for public use. The charging of fees to the public does not determine the
character of the property whether it is of public dominion or not. Even if the government collects toll
fees, the road is still intended for public use if anyone can use the road under the same terms and
conditions as the rest of the public. The charging of fees, the limitation on the kind of vehicles that
can use the road, the speed restrictions and other conditions for the use of the road do not affect the
public character of the road. The collection of such fees does not change the character of MIAA as
an airport for public use. Such fees are often termed users tax. This means taxing those among the
public who actually use a public facility instead of taxing all the public including those who never use
the particular public facility. A users tax is more equitable a principle of taxation mandated in the
1987 Constitution.
The bottom line? TheUniversity
Airport Lands and Buildings
of MIAA
are devoted to public use and thus
of
Santo
Tomas
are properties of public dominion. As properties of public dominion, the Airport Lands and Buildings
Faculty
of
Civil
Law
are outside the commerce of man.
Further, the
Court
ruled that
property of public dominion, being
outside the commerce of man, cannot
be theReview
subject of an auction
Bar
2013sale. Properties of public dominion,
being for public use, are not subject to levy, encumbrance or disposition through public or private
sale. Any encumbrance, levy on execution or auction sale of any property of public dominion is void
for being contrary to public policy. And, before MIAA can encumber the Airport Lands and
Buildings, the President must first withdraw from public use the Airport Lands and Buildings. Until
then these properties remain properties of public dominion and are inalienable.

MIAA is a Mere Trustee of the Republic. MIAA is merely holding title to the Airport Lands and
Buildings in trust for the Republic. Section 48, Chapter 12, Book I of the Administrative Code allows
Local
Autonomy
Empowered
Grassroots
instrumentalities like
MIAA
to hold title and
to realthe
properties
owned by
the Republic. In MIAAs case,

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its status as a mere trustee of the Airport Lands and Buildings is clearer because even its executive
head cannot sign the deed of conveyance on behalf of the Republic. Only the President of the
Republic can sign such deed of conveyance.
Transfer to MIAA was Meant to Implement a Reorganization. In Mactan Cebu International
Airport Authority, the Court, construing 15 of MCIAAs Charter, held that the same involved a
transfer of the lands, among other things, to MCIAA and not just the transfer of the beneficial
use thereof with the ownership being retained by the Republic of the Philippines. This transfer is
actually an absolute conveyance of the ownership thereof because the petitioners authorized capital
stock consists of, inter alia, the value of such real estate owned and/or administered by the airports.
Hence, [MCIAA] is now the owner of the land in question and the exception in Section 234(c) of the
LGC is inapplicable. In Manila International Airport Authority, the Court declared: The transfer
of the Airport Lands and Buildings from the Bureau of Air Transportation to MIAA was not meant
to transfer beneficial ownership of these assets from the Republic to MIAA. The purpose was merely
to reorganize a division in the Bureau of Air Transportation into a separate and autonomous body.
The Republic remains the beneficial owner of the Airport Lands and Buildings. MIAA itself is owned
solely by the Republic. No party claims any ownership rights over MIAAs assets adverse to the
Republic. Since MIAA cannot dispose of the Airport Lands and Buildings, MIAA does not own
theAirport Lands and Buildings.11
Real Property Owned by the Republic is Not Taxable. Section 234(a) of the Local Government
Code exempts from real estate tax any [r]eal property owned by the Republic of the Philippines.
This exemption should be read in relation with Section 133(o) of the same Code, which prohibits
local governments from imposing [t]axes, fees or charges of any kind on the National Government,
its agencies and instrumentalities * * *. The real properties owned by the Republic are titled either
in the name of the Republic itself or in the name of agencies or instrumentalities of the National
Government. Such real properties remain owned by the Republic and continue to be exempt from real
estate tax. The Republic may grant the beneficial use of its real property to an agency or
instrumentality of the national government. . . . Section 234(a) of the Local Government Code states
that real property owned by the Republic loses its tax exemption only if the beneficial use thereof
has been granted, for consideration or otherwise, to a taxable person. MIAA, as a government
instrumentality, is not a taxable person under Section 133(o) of the Local Government Code.12 Thus,
even if we assume that the Republic has granted to MIAA the beneficial use of the Airport Lands and
Buildings, such fact does not make these real properties subject to real estate tax. However, portions
of the Airport Lands and University
Buildings that MIAA
leases
to private
entities are not exempt from real
of
Santo
Tomas
13
estate tax. (Well, so much for airports. Where you land might as well determine the kind of welcome
ofBarCivil
reception you get just like where Faculty
you end up in the
exams.) Law
11

Bar Review 2013

Cf.: The airports referred to are the Lahug Air Port in Cebu City and the Mactan International Airport in the Province
of Cebu, which belonged to the Republic of the Philippines, then under the Air Transportation Office (ATO). (Mactan Cebu
International Airport Authority v. Marcos)
12

Cf.: Finally, even if the petitioner was originally not a taxable person for purposes of real property tax, in light of the
foregoing disquisitions, it had already become, even if it be conceded to be an agency or instrumentality of the Government, a
taxable person for such purpose in view of the withdrawal in the last paragraph of Section 234 of exemptions from the payment
of real property taxes, which, as earlier adverted to, applies to the petitioner. (Mactan Cebu International Airport Authority v.
Marcos)
13

Local Autonomy and the Empowered Grassroots

The foregoing points were reiterated in Manila International Airport Authority v. City of Pasay, 583 SCRA 234 (2009)

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Page 14 of 67

b. Government Service Insurance System v. City Treasurer of the City of Manila, 609
SCRA 330 (2009)
We find echoed in this case the words of the Court in Manila International Airport Authority.
The Court also characterized the GSIS as a government instrumentality, not a GOCC. The Court
noted that while Manila International Airport Authority may not be on all fours with GSIS, the
rationale underpinning the disposition in that case is squarely applicable to GSIS, both MIAA and
GSIS being similarly situated. First, while created under CA 186 as a non-stock corporation, a status
that has remained unchanged even when it operated under PD 1146 and RA 8291, GSIS is not, in
the context of the aforequoted Sec. 193 of the LGC, a GOCC following the teaching of Manila
International Airport Authority, for, like MIAA, GSIS capital is not divided into unit shares. Also,
GSIS has no members to speak of. . . . Second, the subject properties under GSISs name are likewise
owned by the Republic. The GSIS is but a mere trustee of the subject properties which have either
been ceded to it by the Government or acquired for the enhancement of the system. This particular
property arrangement is clearly shown by the fact that the disposal or conveyance of said subject
properties are either done by or through the authority of the President of the Philippines.
In this particular case, the City of Manila wanted to tax certain properties of the GSIS but the
Court held that they were exempt by reason of the revised Charter of GSIS. Earlier, though, in City
of Davao v. RTC, Branch XII, Davao City, 467 SCRA 280 (2005), the Court, citing Mactan Cebu
International Airport Authority, declared the GSIS liable for real property taxes for the years 1992
to 1994 (contested real estate tax assessment therein), its previous exemption under PD 1146 being
considered withdrawn with the enactment of the LGC in 1991. The tax exemption was, however,
restored by Government Service Insurance Act of 1997 (R.A. No. 8291).
Significantly, we find this passage from the case in regard to the manner by which the tax-exempt
status of GSIS may be repealed: [I]t is to be noted that prominently added in GSIS present charter
is a paragraph precluding any implied repeal of the tax-exempt clause so as to protect the solvency
of GSIS funds. Moreover, an express repeal by a subsequent law would not suffice to affect the full
exemption benefits granted the GSIS, unless the following conditionalities are met: (1) The repealing
clause must expressly, specifically, and categorically revoke or repeal Sec. 39; and (2) a
provision is enacted to substitute or replace the exemption referred to herein as an essential factor
to maintain or protect the solvency of the fund. These restrictions for a future express repeal,
notwithstanding, do not make the proviso an irrepealable law, for such restrictions do not impinge
or limit the carte blancheUniversity
legislative authority
the legislature
to so amend it. The restrictions
ofof Santo
Tomas
merely enhance other provisos in the law ensuring the solvency of the GSIS fund.14

Faculty of Civil Law


14
The Court said in GSIS v. City Treasurer
that Sec.
39 of R.A. No. 2013
8291 is a virtual replication of Sec. 33 of PD 1146, the
Bar
Review

previous GSIS Charter, which was considered to partake of the nature of an irrepealable law in City of Davao.

The quotation from GSIS v. City Treasurer should be contrasted with this passage from City of Davao where the Court said:

The second paragraph of Section 33 of P.D. No. 1146, as amended, effectively imposes restrictions on the
competency of the Congress to enact future legislation on the taxability of the GSIS. This places an undue restraint on
the plenary power of the legislature to amend or repeal laws, especially considering that it is a lawmakers act that
imposes such burden. Only the Constitution may operate to preclude or place restrictions on the amendment or repeal of
laws. Constitutional dicta is of higher order than legislative statutes, and the latter should always yield to the former in
cases of irreconcilable conflict.
It is a basic precept that among the implied substantive limitations on the legislative powers is the prohibition against
Local Autonomy and the Empowered Grassroots
the passage of irrepealable laws. Irrepealable laws deprive succeeding legislatures of the fundamental best senses carte

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Page 15 of 67

The Court then went on to state that, the following may be assumed: (1) Pursuant to Sec. 33 of
PD 1146, GSIS enjoyed tax exemption from real estate taxes, among other tax burdens, until January
1, 1992 when the LGC took effect and withdrew exemptions from payment of real estate taxes
privileges granted under PD 1146; (2) RA 8291 restored in 1997 the tax exempt status of GSIS by
reenacting under its Sec. 39 what was once Sec. 33 of P.D. 1146; and (3) If any real estate tax is due
to the City of Manila, it is, following City of Davao, only for the interim period, or from 1992 to
1996, to be precise. And, in spite of the third assumption, it went to observe that, pursuant to Section
19 of RA 8291, [w]hile recognizing the exempt status of GSIS owing to the reenactment of the full
tax exemption clause under Sec. 39 of RA 8291 in 1997, the ponencia in City of Davao appeared to
have failed to take stock of and fully appreciate the all-embracing condoning proviso in the very same
Sec. 39 which, for all intents and purposes, considered as paid any assessment against the GSIS
as of the approval of this Act. In short, GSIS is deemed to have paid all of its arrears relative to
back taxes.
c. Ongsuco v. Malones, 604 SCRA 499 (2009)
In the enactment of a revenue ordinance, it is required under the LGC and its Implementing Rules
and Regulations that there be a prior public hearing, such hearing to be held no earlier than ten days
from notice. Here, there was only a five-day period from the notice and the public hearing. The
ordinance in issue here increased the rentals for the public market stalls and required the payment of
goodwill fees. The municipality tried to get around the notice and hearing requirement by saying
that the imposition of goodwill fees to help recover the cost of the renovation is not a revenue
measure that requires a prior public hearing that rentals and other consideration for occupancy of
the stalls at the municipal public market are not matters of taxation. Also, there was a hearing five
months later which should cure the defect. Would these hold water? No.
After noting that charges refer to pecuniary liability, as rents or fees, the Court held:
Evidently, the revenues of a local government unit do not consist of taxes alone, but also other fees
and charges. And rentals and goodwill fees, imposed by Municipal Ordinance No. 98-01 for the
occupancy of the stalls at the municipal public market, fall under the definition of charges, then
proceeded to note that in the enactment of ordinances imposing charges, one of the requisites that
must be complied with is the need for notice and public hearing i.e., that the public hearing be held

University of Santo Tomas


Faculty of Civil Law
Moreover, it would be noxious anathema
Barto democratic
Review
principles
2013
for a legislative body to have the ability to bind

blanche in crafting laws appropriate to the operative milieu. Their allowance promotes an unhealthy stasis in the
legislative front and dissuades dynamic democratic impetus that may be responsive to the times. As Senior Associate
Justice Reynato S. Puno once observed, [t]o be sure, there are no irrepealable laws just as there are no irrepealable
Constitutions. Change is the predicate of progress and we should not fear change.
the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they
do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a
legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of
omniscience.

It might be argued that Section 33 of P.D. No. 1146, as amended, does not preclude the repeal of the tax-exempt
status of GSIS, but merely imposes conditions for such to validly occur. Yet these conditions, if honored, have the precise
effect of limiting the powers of Congress. Thus, the same rationale for prohibiting irrepealable laws applies in prohibiting
restraints on future amendatory laws. President Marcos, who exercised his legislative powers in amending P.D. No. 1146,
could not have demanded obeisance from future legislators by imposing restrictions on their ability to legislate
amendments or repeals. The concerns that may have militated his enactment of these restrictions need not necessarily
Local Autonomy and the Empowered Grassroots
be shared by subsequent Congresses.

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Page 16 of 67

no less than ten days from the time the notices were sent out, posted, or published.
How about the subsequent hearing five months later? The defect in the enactment of Municipal
Ordinance No. 98 was not cured when another public hearing was held on 22 January 1999, after
the questioned ordinance was passed by the Sangguniang Bayan and approved by the mayor on 17
August 1998. Section 186 of the Local Government Code prescribes that the public hearing be held
prior to the enactment by a local government unit of an ordinance levying taxes, fees, and charges.
Since no public hearing had been duly conducted prior to the enactment, said ordinance is void.
4. Miscellany
a. Du v. Jayoma, 670 SCRA 333 (2012)
Of cockfighting and cockpits, it was held in Tan v. Perea, 452 SCRA 53 (2005), that while the
sanggunian retains the power to authorize and license the establishment, operation, and maintenance
of cockpits, its discretion is limited in that it cannot authorize more than one cockpit per city or
municipality, unless such cities or municipalities have a population of over one hundred thousand, in
which case two cockpits may be established.
In Du v. Jayoma, it was pointed out that it is the Sangguniang Bayan which is empowered to
authorize and license the establishment, operation and maintenance of cockpits, and regulate
cockfighting and commercial breeding of gamecocks. Therefore, a business permit from the mayor
would not be good enough.
b. Kulayan v. Tan, 675 SCRA 482 (2012)
The calling out power is exclusive with the President, thus declared the Court here.
Following the kidnapping in Sulu of International Committee of the Red Cross members in 2009,
the governor organized the Civilian Emergency Force (CEF), a group of armed male civilians coming
from different municipalities, and whose organization was embodied in a Memorandum of
Understanding entered into between 3 parties provincial government, AFP, and PNP. The
Governor also came up with Proclamation No. 1, Series of 2009 (Proclamation 1-09), declaring a
state of emergency in Sulu, citing the kidnapping as a ground, describing it as a terrorist act pursuant
to the Human Security Act (R.A. 9372), aside from also invoking Section 465 LGC which bestows
on the Provincial GovernorUniversity
the power to carry out
during man-made and natural
ofemergency
Santo measures
Tomas
disasters and calamities, and to call upon the appropriate national law enforcement agencies to
Faculty
of wrong
Civil
Law
suppress disorder and lawless violence.
Anything
with
what the governor did?

Bar Review 2013

Yes, and now to the basics. As early as Villena v. Secretary of Interior, it has already been
established that there is one repository of executive powers, and that is the President of the Republic.
This means that when Section 1, Article VII of the Constitution speaks of executive power, it is
granted to the President and no one else. . . . With reference to the Executive Department of the
government, there is one purpose which is crystal-clear and is readily visible without the projection
of judicial searchlight, and that is the establishment of a single, not plural, Executive. What does
it mean then? Corollarily, it is only the President, as Executive, who is authorized to exercise
emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what
Local
Autonomy
Empowered
Grassroots
became known as the
calling-out
powers and
underthe
Section
7, Article VII
thereof. Further, [s]pringing

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Page 17 of 67

from the well-entrenched constitutional precept of One President is the notion that there are certain
acts which, by their very nature, may only be performed by the president as the Head of the State.
One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which the callingout powers constitutes a portion. The Court went on to lecture that [t]he net effect of Article II,
Section 3, when read with Article VII, Section 18, is that a civilian President is the ceremonial, legal
and administrative head of the armed forces. . . . [A]s Commander-in-Chief, he has the power to
direct military operations and to determine military strategy. Normally, he would be expected to
delegate the actual command of the armed forces to military experts; but the ultimate power is his.
What then may a local chief executive exercise? A local chief executive, such as the provincial
governor, exercises operational supervision over the police, and may exercise control only in day-today operations. The Court concluded that the framers of the 1987 Constitution never intended for
local chief executives to exercise unbridled control over the police in emergency situations. Given
the foregoing, respondent provincial governor is not endowed with the power to call upon the
armed forces at his own bidding. In issuing the assailed proclamation, Governor Tan exceeded
his authority when he declared a state of emergency and called upon the Armed Forces, the
police, and his own Civilian Emergency Force. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local
chief executive, is ultra vires, and may not be justified by the invocation of Section 465 of the Local
Government Code, as will be discussed subsequently. The Court also noted that respondent
governor has arrogated unto himself powers exceeding even the martial law powers of the President.
How about the Article 465 of the Local Government Code? Paragraph 1, subparagraph (vii) of
Article 465 refers to calamities and disasters, whether man-made or natural. The governor, as local
chief executive of the province, is certainly empowered to enact and implement emergency measures
during these occurrences. But the kidnapping incident in the case at bar cannot be considered as a
calamity or a disaster. Moreover, a provincial governor is not authorized to convene the Civilian
Emergency Force. Pursuant to the national policy to establish one police force, the organization of
private citizen armies is proscribed.
And, to make sure that local officials know that they are still accountable and subordinate to the
national government, [t]he Local Government Code does not involve the diminution of central
powers inherently vested in the National Government, especially not the prerogatives solely granted
by the Constitution to the President in matters of security and defense. The intent behind the powers
granted to local government
units is fiscal, economic,
and administrative
University
of Santo
Tomas in nature. The Code is
concerned only with powers that would make the delivery of basic services more effective to the
oftoCivil
Law powers on local executives.
constituents, and should not be Faculty
unduly stretched
confer calling-out
And, for good measure Certain government
agencies,2013
including the police force, are exempted
Bar Review
from the decentralization process because their functions are not inherent in local government
units.

c. La Carlota City, Negros Occidental v. Rojo, 670 SCRA 482 (2012)


The case involves the validity of the resignation of a Sanggunian member of La Carlota City who
was then forthwith appointed as Secretary of the legislative body. Pivotal to the issue is the presence
of a quorum is the vice-mayor, who is designated by the Local Government Code as the presiding
Local
and
Empowered
Grassroots
officer entitled to vote
onlyAutonomy
in case of a tie,
tothe
be included?
Yes. [A]
quorum of the Sangguniang

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Panlungsod should be computed based on the total composition of the Sangguniang Panlungsod.
In this case, the Sangguniang Panlungsod of La Carlota City, Negros Occidental is composed of the
presiding officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen
(13) members. A majority of the 13 members of the Sangguniang Panlungsod, or at least seven
(7) members, is needed to constitute a quorum to transact official business. Since seven (7) members
(including the presiding officer) were present on the 17 March 2004 regular session of the
Sangguniang Panlungsod, clearly there was a quorum such that the irrevocable resignation of
respondent was validly accepted.
d. Vicencio v. Villar, 675 SCRA 468 (2012)
The Court, after pointing out that under Section 456 of the Local Government Code, there is no
inherent authority on the part of the city vice-mayor to enter into contracts on behalf of the local
government unit, unlike that provided for the city mayor, any authority of the vice-mayor to enter into
contracts on behalf of the city is strictly circumscribed by the ordinance granting it. Accordingly, if
the ordinance authorized an incumbent Vice-Mayor to enter into contracts for consultancy services,
the same could not be construed as a continuing authority for any person who enters the Office of
the Vice-Mayor to enter into subsequent, albeit similar, contracts.
e. Calanza v. Paper Industries Corporation of the Philippines (PICOP), 586 SCRA 408
(2009)
In this case, which involved small-scale mining permits granted by the governor of Davao
Oriental, the Court ended up discussing settlement of boundary disputes because it turned out that
the area for which the permits were granted was within the logging concession of PICOP located in
Surigao Del Sur. PICOP did not allow the petitioners to enter so they filed an action for injunction
with the Regional Trial Court. The same was favorably acted upon by the trial court but was reversed
by the Court of Appeals. The Supreme Court, in affirming the decision, said that the RTC had no
jurisdiction to entertain the action since it involved a boundary dispute which should have first been
settled in accordance with the provisions of the Local Government Code and its Implementing Rules
and Regulations, subject to subsequent appeal to the RTC.
This is not a case where the sangguniang panlalawigans of Davao Oriental and Surigao del Sur
jointly rendered a decision resolving the boundary dispute of the two provinces and the same decision
was elevated to the RTC. Clearly,
the RTC cannot
exercise appellate
jurisdiction over the case since
University
of Santo
Tomas
there was no petition that was filed and decided by the sangguniang panlalawigans of Davao Oriental
Faculty
of Civil
and Surigao del Sur. Neither can
the RTC assume
original Law
jurisdiction over the boundary dispute
since the Local Government Code allocates
such power to2013
the sangguniang panlalawigans of Davao
Bar Review
Oriental and Surigao del Sur. Since the RTC has no original jurisdiction on the boundary dispute
between Davao Oriental and Surigao del Sur, its decision is a total nullity.

And, [m]oreover, petitioners small-scale mining permits are legally questionable. Under
Presidential Decree No. 1899, applications of small-scale miners are processed with the Director of
the Mines and Geo-Sciences Bureau. Pursuant to Republic Act No. 7076, which took effect on 18
July 1991, approval of the applications for mining permits and for mining contracts are vested in the
Provincial/City Mining Regulatory Board. Here, instead of processing and obtaining their permits
and the
Empowered
Grassroots
from the ProvincialLocal
MiningAutonomy
Regulatory Board,
petitioners
got the same
from the governor of Davao

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del Norte. Considering that the governor is without legal authority to issue said mining permits, the
same permits are null and void. Accordingly, petitioners had no right to enter into and to conduct
mining operations within the disputed lands under the infirmed small-scale mining permits.
f. Chamber of Real Estate and Builders Association, Inc. (CREBA) v. Secretary of
Agrarian Reform, 621 SCRA 295 (2010)
LGUs, subject to certain guidelines, may reclassify their agricultural lands.15 Any difference
between reclassification and conversion? Yes, the Court elucidated in CREBA reclassification is
not enough. Reclassification of agricultural lands is one thing, conversion is another.
Conversion and reclassification differ from each other. Conversion is the act of changing the
current use of a piece of agricultural land into some other use as approved by the DAR while
reclassification is the act of specifying how agricultural lands shall be utilized for non-agricultural
uses such as residential, industrial, and commercial, as embodied in the land use plan, subject to the
requirements and procedures for land use conversion. In view thereof, a mere reclassification of an
agricultural land does not automatically allow a landowner to change its use. . . . [A]gricultural lands
though reclassified to residential, commercial, industrial or other non-agricultural uses must still
undergo the process of conversion before they can be used for the purpose to which they are
intended.
Further, the Court added: It is of no moment whether the reclassification of agricultural lands
to residential, commercial, industrial or other non-agricultural uses was done by the LGUs or by way
of Presidential Proclamations because either way they must still undergo conversion process. It bears
stressing that the act of reclassifying agricultural lands to non-agricultural uses simply specifies how
agricultural lands shall be utilized for non-agricultural uses and does not automatically convert
agricultural lands to non-agricultural uses or for other purposes. . . . For reclassified agricultural
lands, therefore, to be used for the purpose to which they are intended there is still a need to change
the current use thereof through the process of conversion. The authority to do so is vested in the
DAR, which is mandated to preserve and maintain agricultural lands with increased productivity. .
. . Even reclassification of agricultural lands by way of Presidential Proclamations to non-agricultural
uses, such as school sites, needs conversion clearance from the DAR.
Nevertheless, by way of clarification, the Court pointed out that [i]t is different, however, when
through Presidential Proclamations
public agricultural
lands have
been reserved in whole or in part
University
of Santo
Tomas
for public use or purpose, i.e., public school, etc., because in such a case, conversion is no longer
of Civil
necessary. . . . [O]nly a positive Faculty
act of the President
is neededLaw
to segregate or reserve a piece of land
of the public domain for a public purpose.
As
such,
reservation
Bar Review 2013of public agricultural lands for public
use or purpose in effect converted the same to such use without undergoing any conversion process
and that they must be actually, directly and exclusively used for such public purpose for which they
15

Local Government Code, 20: Reclassification of Lands. (a) A city or municipality may, through an ordinance passed
by the sanggunian after conducting public hearings for the purpose, authorize the reclassification of agricultural lands and provide
for the manner of their utilization or disposition in the following cases: (1) when the land ceases to be economically feasible and
sound for agricultural purposes as determined by the Department of Agriculture or (2) where the land shall have substantially
greater economic value for residential, commercial, or industrial purposes, as determined by the sanggunian concerned: Provided,
That such reclassification shall be limited to the following percentage of the total agricultural land area at the time of the passage
Local Autonomy and the Empowered Grassroots
of the ordinance: * * *.

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have been reserved, otherwise, they will be segregated from the reservations and transferred to the
DAR for distribution to qualified beneficiaries under the CARP. More so, public agricultural lands
already reserved for public use or purpose no longer form part of the alienable and disposable lands
of the public domain suitable for agriculture. Hence, they are outside the coverage of the CARP and
it logically follows that they are also beyond the conversion authority of the DAR.
In fine, the power of the LGUs to reclassify agricultural lands is not absolute. It is subject to the
authority of the DAR to approve conversion of agricultural lands covered by Republic Act No. 6657
to non-agricultural uses. Nay, 20 of the LGC explicitly provides that, nothing in this section shall
be construed as repealing or modifying in any manner the provisions of Republic Act No. 6657.
5. Metropolitan Political Subdivision Units
The Constitution allows Congress to create special metropolitan political subdivisions, whose
jurisdiction shall be limited to basic services requiring coordination. The component cities and
municipalities shall retain their basic autonomy and shall be entitled to their own local executives and
legislative assemblies. Metro Manila has the Metropolitan Manila Development Authority,16 an entity
which has not been granted police power, as held in Metro Manila Development Authority v. Bel-Air
Village Association, Inc., 328 SCRA 836 (2000), and reiterated in Metropolitan Manila
Development Authority v. Garin, 456 SCRA 176 (2005). All its functions are administrative in
nature. Accordingly, the Court held in the latter case that without any ordinance enacted by the
component cities and municipalities, it can not confiscate drivers licenses for violation of traffic rules.
Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the
petitioner to grant the MMDA the power to confiscate and suspend or revoke drivers licenses
without need of any other legislative enactment, such is an unauthorized exercise of police power.
Otherwise stated, where there is a traffic law or regulation validly enacted by the legislature or those
agencies to whom legislative powers have been delegated (the City of Manila in this case), the
petitioner is not precluded and in fact is duty-bound to confiscate and suspend or revoke drivers
licenses in the exercise of its mandate of transport and traffic management, as well as the
administration and implementation of all traffic enforcement operations, traffic engineering services
and traffic education programs.
In Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., 530 SCRA
341 (2007), the Court held that it is the Department of Transportation and Communications, not the
MMDA, which is authorized
to establish and
implement
a Tomas
project such as the Greater Manila
University
of
Santo
Transport System which aims to develop intermodal mass transport terminals to integrate the different
Faculty
of Civil
Law
transport modes and which would
entail the elimination
of bus
terminals along EDSA. Accordingly,
the MMDA could not be validly designated
by the President
to undertake such Project it could not
Bar Review
2013
thus cannot validly order the elimination of the bus terminals.

R
16

R.A. No. 7924 declared the Metropolitan Manila area as a special development and administrative region and placed
the administration of metro-wide basic services affecting the region under the MMDA. (Metropolitan Manila Development
Local Autonomy and the Empowered Grassroots
Authority v. Viron Transportation Co., Inc., 530 SCRA 341 [2007])

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C. LOCAL GOVERNANCE
Autonomy means, too, that the LGUs govern themselves in accordance with their own ideas as
to what is right or proper, based on their own judgment, wisdom and discretion, subject only to
national supervision. Thus, while they may be free to do as they please, it must still be within the
parameters of governance and order as set out by the national government, such as the structure of
local government.
In Atienza v. Villarosa, 458 SCRA 385 (2005), the Court delineated the authority of the
Governor and Vice Governor in regard to expenditures and appointments. It is the Vice-Governor
who has authority to approve purchase orders issued in connection with the procurement of supplies,
materials, equipment, including fuel, repairs and maintenance of the Sangguniang Panlalawigan.
Since it is the Vice-Governor who approves disbursement vouchers and approves the payment for
the procurement of the supplies, materials and equipment needed for the operation of the
Sangguniang Panlalawigan, then he also has the authority to approve the purchase orders to cause
the delivery of the said supplies, materials or equipment. Further, while the Governor has the
authority to appoint officials and employees whose salaries are paid out of the provincial funds, this
does not extend to the officials and employees of the Sangguniang Panlalawigan. Such authority is
lodged with the Vice-Governor. In the same manner, the authority to appoint casual and job order
employees of the Sangguniang Panlalawigan belongs to the Vice-Governor.

D. RESPONSIBILITIES AND LIABILITIES OF LOCAL GOVERNMENT UNITS


Just like the national government itself, local government units must also own up to their own
responsibilities and liabilities resulting from the exercise of their own powers. Thus, they may be made
to account for their negligence or certain missteps in the conduct of their affairs, or take care of
tidying up the community as may be needed.
1. Filinvest Land, Inc. v. Flood-Affected Homeowners of Meritville Alliance, 529 SCRA 790
(2007)
Who has responsibility for dredging a river in Metro Manila the Metropolitan Manila
Development Authority or the affected local government unit?

University of Santo Tomas

Filinvest Land, Inc., a corporation engaged in realty development business, had among its real
Faculty
of Civil
Law(Meritville), the first low-cost
estate development ventures Meritville
Townhouse
Subdivision
townhouse project in Pulang Lupa,Bar
Las Pias
City. The project
Review
2013site is located near the heavily-silted
Naga River. Subsequently, the area around Meritville was developed. New subdivisions were built
with elevations higher than that of Meritville, turning the latter into a catch basin during the wet
season and from water coming from the Naga River every time it overflowed, leading to severe
damage to the owners of the townhouses. Filinvest installed in the area a pumping station and also
improved the drainage system. But these measures were not enough. Thus, the National Home
Mortgage Finance Corporation declared the affected townhouses unacceptable collaterals. Is
Filinvest to be blamed for the homeowners woes? No, negligence cannot be attributed to it. First,
it is not disputed that the Meritville is the first subdivision to be developed in the locality and that
Local elevated
Autonomy
and the Empowered
subsequent developments
the surrounding
areas to a levelGrassroots
higher by more than one meter

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than that of Meritville. Naturally, the water from these surrounding areas would flow to the lower
area which is Meritville. It has to be emphasized that prior to these developments, there was no
flooding in the subdivision. Second, we recall the finding of the Housing and Land Use Arbiter that
the Naga River has remained heavily silted and undredged. Due to the heavy silting, the river could
not take the volume of water flowing into it, thus causing the flooding of the area.
Is Filinvest liable then for its failure to address the silting problem of the river? No, not also. The
river is a public property, hence, it is the government which should address the problem. Who then
in the government? Filinvest points to MMDA. The Court said, no it cannot seek relief from the
MMDA as its services only involve laying down policies and coordination with other agencies relative
to its primary functions. Instead, it is the city government of Las Pias City which has the duty to
control the flood in Meritville Townhouse Subdivision pursuant to its responsibility for basic services
and facilities, specifically for drainage and sewerage, and flood control (17, LGC).
2. Municipality of San Juan, Metro Manila v. Court of Appeals, 466 SCRA 78 (2005)
Street diggings, accidents and liabilities. Can the local government be held liable for the injury
caused as a result of a contractors failure to properly refill holes in a national road within the LGUs
territory? Yes. Jurisprudence teaches that 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 being sufficient that a province, city or municipality has control or supervision thereof.
Under the former Local Government Code, a municipality can regulate the drilling and excavation
of the ground for the laying of gas, water, sewer, and other pipes within its territorial jurisdiction. The
term regulate found in Section 149 (1)(z) of B.P. 337,17 can only mean that a municipality exercises
the power of control, or, at the very least, supervision over all excavations for the laying of gas,
water, sewer, and other pipes within its territory. Accordingly, a municipalitys liability for injuries
caused by its failure to regulate the drilling and excavation of the ground for the laying of gas, water,
sewer, and other pipes, attaches regardless of whether the drilling or excavation is made on a national
road or municipal road, for as long as the same is within its territorial jurisdiction.

E. QUALIFICATIONS AND INHIBITIONS OF LOCAL OFFICIALS


Just like positions in the national government, those in local governments also require certain
qualifications for those seeking
to be elected orof
appointed
to them.
For those seeking elective office,
University
Santo
Tomas
aside from the basic requirement of citizenship, residence is also a consideration, aside from other
Faculty
ofbe Civil
aspects related to former conviction.
And, not to
forgotten,Law
being in public office also carries some
inhibitions which may prevent the occupants
from certain2013
activities otherwise allowed others.
Bar Review
As for the rationale for the residency requirement, the Court explained in Torayno, Sr. v.
Commission on Elections, 337 SCRA 574 (2000): Generally, in requiring candidates to have a
minimum period of residence in the area in which they seek to be elected, the Constitution or the law
intends to prevent the possibility of a stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter from [seeking] an elective office to serve that

17

Local Autonomy and the Empowered Grassroots

Now, slightly modified as 447 (a)(5)(viii) of R.A. 7160

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community. Such provision is aimed at excluding outsiders from taking advantage of favorable
circumstances existing in that community for electoral gain. Establishing residence in a community
merely to meet an election law requirement defeats the purpose of representation: to elect through
the assent of voters those most cognizant and sensitive to the needs of the community. This purpose
is best met by individuals who have either had actual residence in the area for a given period or who
have been domiciled in the same area either by origin or by choice.
1. Elective Officials
a. Moreno v. Commission on Elections, 498 SCRA 547 (2006)
Among those disqualified from running for a local elective position are those sentenced by final
judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving sentence. Moreno was convicted by final
judgment of the crime of Arbitrary Detention and sentenced to suffer imprisonment of 4 months and
1 day to 2 years and 4 months. He, however, applied for and was granted probation. Is he disqualified
from running for Punong Barangay within two years following his discharge from probation? No.
Hes not even disqualified at all! During the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of suspension from public
office is put on hold for the duration of the probation. The Court further explained that [c]learly,
the period within which a person is under probation cannot be equated with service of the sentence
adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the
execution of the sentence. During the period of probation, the probationer does not serve the penalty
imposed upon him by the court but is merely required to comply with all the conditions prescribed
in the probation order.
The Court thus declared: This is as good a time as any to clarify that those who have not served
their sentence by reason of the grant of probation which, we reiterate, should not be equated with
service of sentence, should not likewise be disqualified from running for a local elective office because
the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even
begin to run. Further, the Probation Law should be construed as an exception to the Local
Government Code. And, the fact that the trial court already issued an order finally discharging him
fortifies his position. Thus, when he was finally discharged upon the courts finding that he has
fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil rights
lost or suspended as a result of his conviction were restored to him, including the right to run for
public office.
University of Santo Tomas

Faculty
of Civil
Law
The Court also added something
more. Finally,
we note that
Moreno was the incumbent Punong
Barangay at the time of his conviction
of theReview
crime of Arbitrary
Detention. He claims to have obtained
Bar
2013
a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002
elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio
Panganiban in Frivaldov. Comelec where he said that it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.

b. Jalosjos, Jr. v. Commission on Elections, 683 SCRA 1 (2012)


Jalosjos had been found guilty of robbery in Cebu way back in 1970 and sentenced to prision
Local
Autonomy
the Empowered
correccional minimum
to prision
mayor and
maximum
(one year, eightGrassroots
months and twenty days to four

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years, two months and one day). He applied for probation but the same was subsequently revoked.
He never served his sentence and in the meantime he was able to run and win for three (3) successive
terms as mayor of Dapitan City, Zamboanga Del Norte. During the last time that he ran in 2010, for
his third term, his opponent, Cardino, filed a petition for the cancellation of Certificate of Candidacy
(CoC), grounded on Section 78 of the Omnibus Election Code (false material representation). This
was favorably acted upon by the COMELEC on 10 May 2010, the election day itself. Jalosjos won
nevertheless and he was proclaimed mayor anew. On 11 August 2010, the COMELEC denied his
motion for reconsideration and ordered his ouster as mayor, the COMELEC holding that the rule on
succession as provided in the Local Government Code should then apply. He elevated the case to the
Supreme Court. Cardino also filed a petition before the Supreme Court claiming that he should be
seated as mayor, not the vice-mayor. On 30 April 2012, while the case was still pending, Jalosjos
resigned, stating that he was running for Governor of Zamboanga Del Sur in the May 2013 elections.
Has the case become moot and academic? No, the Court ruled. There are important questions
needing definitive resolution. The Court needs to address not only Jalosjos eligibility to run for
public office and the consequences of the cancellation of his certificate of candidacy, but also
COMELECs constitutional duty to enforce and administer all laws relating to the conduct of
elections. The Court declared that [t]he perpetual special disqualification against Jalosjos arising
from his criminal conviction by final judgment is a material fact involving eligibility which is a proper
ground for a petition under Section 78 of the Omnibus Election Code. Jalosjos certificate of
candidacy was void from the start since he was not eligible to run for any public office at the
time he filed his certificate of candidacy. Jalosjos was never a candidate at any time, and all
votes for Jalosjos were stray votes. As a result of Jalosjos certificate of candidacy being void ab
initio, Cardino, as the only qualified candidate, actually garnered the highest number of votes for the
position of Mayor.
On the effect of conviction and the penalty imposed, [t]he penalty of prisin mayor
automatically carries with it, by operation of law, the accessory penalties of temporary absolute
disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal
Code, temporary absolute disqualification produces the effect of deprivation of the right to vote in
any election for any popular elective office or to be elected to such office. The duration of the
temporary absolute disqualification is the same as that of the principal penalty. On the other hand,
under Article 32 of the Revised Penal Code perpetual special disqualification means that the
offender shall not be permitted to hold any public office during the period of his
disqualification, which University
is perpetually. Both
disqualification and perpetual
oftemporary
Santoabsolute
Tomas
special disqualification constitute ineligibilities to hold elective public office. A person suffering
Faculty
offorCivil
from these ineligibilities is ineligible
to run
electiveLaw
public office, and commits a false
material representation if he states
in
his
certificate
of
candidacy
Bar Review 2013 that he is eligible to so run.
Jalosjos was clearly ineligible he became ineligible perpetually to hold, or to run for, any elective
public office from the time his judgment of conviction became final.

Is the conviction for robbery a ground under Section 68 (disqualification) or Section 78 (denial
of due course to, or cancellation of, CoC) of the Omnibus Election Code (OED)? Conviction for
robbery by final judgment with the penalty of prisin mayor, to which perpetual special
disqualification attaches by operation of law, is not a ground for a petition under Section 68 because
robbery is not one of the offenses enumerated in Section 68. Insofar as crimes are concerned,
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Section 68 refers only to election offenses under the Omnibus Election Code and not to crimes
under the Revised Penal Code. Further, [t]here is absolutely nothing in the language of Section
68 that will justify including the crime of robbery as one of the offenses enumerated in this Section.
All the offenses enumerated in Section 68 refer to offenses under the Omnibus Election Code.
Accordingly, [w]hat is indisputably clear is that the false material representation of Jalosjos is a
ground for a petition under Section 78. However, since the false material representation arises from
a crime penalized by prisin mayor, a petition under Section 12 of the Omnibus Election Code or
Section 40 of the Local Government Code can also be properly filed. The petitioner has a choice
whether to anchor his petition on Section 12 or Section 78 of the Omnibus Election Code, or on
Section 40 of the Local Government Code. The law expressly provides multiple remedies and the
choice of which remedy to adopt belongs to the petitioner.
Now, is the candidate (Cardino) who got less votes that Jalosjos a mere second-placer? No, he
is not because in the eyes of the law, there is really no first-placer Jalosjos was a non-candidate!
Decisions of this Court holding that the second-placer cannot be proclaimed winner if the first-placer
is disqualified or declared ineligible should be limited to situations where the certificate of candidacy
of the first placer was valid at the time of filing but subsequently had to be cancelled because of a
violation of law that took place, or a legal impediment that took effect, after the filing of the
certificate of candidacy. If the certificate of candidacy is void ab initio, then legally the person who
filed such void certificate of candidacy was never a candidate in the elections at any time. All votes
for such non-candidate are stray votes and should not be counted. Thus, such non-candidate can
never be a first-placer in the elections. If a certificate of candidacy void ab initio is cancelled on the
day, or before the day, of the election, prevailing jurisprudence holds that all votes for that candidate
are stray votes. If a certificate of candidacy void ab initio is cancelled one day or more after the
elections, all votes for such candidate should also be stray votes because the certificate of candidacy
is void from the very beginning. This is the more equitable and logical approach on the effect of the
cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of candidacy
void ab initio can operate to defeat one or more valid certificates of candidacy for the same position.
And what is this thing about apparent COMELEC delinquency in enforcing election laws? The
Court said the COMELEC should be more proactive. Even without a petition under either Section
12 or Section 78 of the Omnibus Election Code, or under Section 40 of the Local Government Code,
the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from
the accessory penalty of perpetual special disqualification to run for public office by virtue of a final
judgment of conviction. University
The final judgmentof
of Santo
conviction Tomas
is notice to the COMELEC of the
disqualification of the convict from running for public office. The law itself bars the convict from
ofis part
Civil
running for public office, and theFaculty
disqualification
of theLaw
final judgment of conviction. The final
judgment of the court is addressed Bar
not only
to
the
Executive
branch, but also to other government
Review 2013
agencies tasked to implement the final judgment under the law. Whether or not the COMELEC is
expressly mentioned in the judgment to implement the disqualification, it is assumed that the portion
of the final judgment on disqualification to run for elective public office is addressed to the
COMELEC because under the Constitution the COMELEC is duty bound to [e]nforce and
administer all laws and regulations relative to the conduct of an election. The disqualification of
a convict to run for public office under the Revised Penal Code, as affirmed by final judgment of a
competent court, is part of the enforcement and administration of all laws relating to the conduct
of elections. To allow the COMELEC to wait for a person to file a petition to cancel the certificate
Local Autonomy and the Empowered Grassroots

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of candidacy of one suffering from perpetual special disqualification will result in the anomaly that
these cases so grotesquely exemplify. Despite a prior perpetual special disqualification, Jalosjos was
elected and served twice as mayor. The COMELEC will be grossly remiss in its constitutional duty
to enforce and administer all laws relating to the conduct of elections if it does not motu proprio
bar from running for public office those suffering from perpetual special disqualification by virtue of
a final judgment.
And, to make sure that the Court meant business, it added in the dispositive portion this sentence:
Let copies of this Decision be furnished the Secretaries of the Department of Justice and the
Department of Interior and Local Government so they can cause the arrest of, and enforce the jail
sentence on, Dominador G. Jalosjos, Jr.
c. Aratea v. Commission on Elections, 683 SCRA 105 (2012)
In this case, the COMELEC Second Division disqualified Lonzanida for having served for having
exceeded the three-term limit, having been elected mayor for four consecutive terms. (In addition,
he had also been convicted for the crime of Falsification of Public Documents which had the
accessory penalty of perpetual special disqualification.) At the time of the election, however, his
motion for reconsideration of the COMELEC decision disqualifying him was still pending. He
garnered the highest number of votes and was proclaimed winner together with the winning vice
mayor, Aratea, who then took his oath as acting mayor. Shortly thereafter, the COMELEC En Banc
rendered its resolution disqualifying Lonzanida on two grounds having been mayor for more than
three consecutive terms, and, conviction for ten counts of falsification. The other mayoralty
candidate, Antipolo, then filed her motion to intervene, claiming that she had the right to be
proclaimed mayor since Lonzanidas CoC was cancelled. The COMELEC subsequently declared the
proclamation null and void and it ordered the proclamation of Antipolo. Who should rightfully be
seated as mayor?
Antipolo, the alleged second placer, should be proclaimed Mayor, the Court declared,
because Lonzanidas certificate of candidacy was void ab initio. In short, Lonzanida was never a
candidate at all. All votes for Lonzanida were stray votes. Thus, Antipolo, the only qualified
candidate, actually garnered the highest number of votes for the position of Mayor. But the decision
of the COMELEC only became final after the elections, so should not that be a factor? Lonzanidas
certificate of candidacy was cancelled because he was ineligible or not qualified to run for Mayor.
Whether his certificate of University
candidacy is cancelled
before
or after
the elections is immaterial because
of
Santo
Tomas
the cancellation on such ground means he was never a candidate from the very beginning, his
Faculty
of was
Civil
Law
certificate of candidacy being void
ab initio. There
only one
qualified candidate for Mayor in the
May 2010 elections Antipolo, who
therefore
received 2013
the highest number of votes.
Bar
Review
The Court pointed out that [t]he conviction of Lonzanida by final judgment, with the penalty of
prisin mayor, disqualifies him perpetually from holding any public office, or from being
elected to any public office. This perpetual disqualification took effect upon the finality of the
judgment of conviction, before Lonzanida filed his certificate of candidacy. Further,
perpetual special disqualification means that the offender shall not be permitted to hold any
public office during the period of his disqualification, which is perpetually. Both temporary
absolute disqualification and perpetual special disqualification constitute ineligibilities to hold elective
Local
Autonomy
and ineligibilities
the Empowered
Grassroots
public office. A person
suffering
from these
is ineligible
to run for elective public

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office, and commits a false material representation if he states in his certificate of candidacy
that he is eligible to so run. In this regard, perpetual special disqualification is a ground for a
petition under Section 78 of the Omnibus Election Code, i.e., for denial of due course or cancellation
of certificate of candidacy.
Further, the Court declared that the three-term rule is a ground for ineligibility [o]ne who has
an ineligibility to run for elective public office is not eligible for [the] office. It is a ground falling
under Section 78 of the OEC. Lonzanida misrepresented his eligibility because he knew full well that
he had been elected, and had served, as mayor of San Antonio, Zambales for more than three
consecutive terms yet he still certified that he was eligible to run for mayor for the next succeeding
term. Thus, Lonzanidas representation that he was eligible for the office that he sought election
constitutes false material representation as to his qualification or eligibility for the office.
Then, with regard to the duty to enforce the laws on election, this Court had this admonition
again for the COMELEC: Even without a petition under Section 78 of the Omnibus Election Code,
the COMELEC is under a legal duty to cancel the certificate of candidacy of anyone suffering from
perpetual special disqualification to run for public office by virtue of a final judgment of conviction.
The final judgment of conviction is judicial notice to the COMELEC of the disqualification of the
convict from running for public office. The law itself bars the convict from running for public office,
and the disqualification is part of the final judgment of conviction. The final judgment of the court is
addressed not only to the Executive branch, but also to other government agencies tasked to
implement the final judgment under the law. Whether or not the COMELEC is expressly mentioned
in the judgment to implement the disqualification, it is assumed that the portion of the final judgment
on disqualification to run for elective public office is addressed to the COMELEC because under the
Constitution the COMELEC is duty bound to enforce and administer all laws and regulations
relative to the conduct of an election. The disqualification of a convict to run for elective public
office under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of
the enforcement and administration of all the laws relating to the conduct of elections.
d. Lluz v. Commission on Elections, 523 SCRA 456 (2007)
Can a candidate for the position of Punong Barangay who indicated in his certificate of candidacy
that he was a certified public accountant (CPA)18 when in fact he was not be prosecuted for
violation of 262 in relation to 74 of the Omnibus Election Code (B.P. 881)? No, because
occupation or profession isUniversity
not material to theof
position.
In short,
misrepresentation of profession or
Santo
Tomas
occupation on a certificate of candidacy is not punishable as an election offense under 262 in relation
Facultyallof
Civilwhich
Law
to 74 of B.P. 881. Section 74 enumerates
information
a person running for public office
must supply the COMELEC in a sworn
certificate
of
candidacy.
Bar Review 2013 It specifies that a certificate of
candidacy shall contain, among others, a statement that the person is announcing his or her candidacy
18

In this case, one is also entertained by the pitfalls of trying to explain oneself further. When the respondent Vicencio was
charged before the COMELEC, he maintained that he was a CPA and alleged that he passed the CPA Board Examinations in 1993
with a rating of 76%. The Law Department of the COMELEC issued a subpoena requiring the Chief of the Professional Regulation
Commissions Records Section to appear before it and settle the controversy on whether private respondent was indeed a CPA. The
PRC Records Section Officer-in-Charge appeared before the Law Department and produced a Certification showing that Vicencio
had indeed taken the 3 October 1993 CPA Board Examinations but obtained a failing mark of 40.71%!

Local Autonomy and the Empowered Grassroots

Well, so much for unfounded claims and disclosures.

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for the office and is eligible for such office, as well as his or her political party, civil status, and
profession or occupation. Said Section does not expressly mention which portion in its provisions is
pertinent to 262, or which among its provisions when violated is punishable as an election offense.
Nothing in 74 partakes unmistakably of a penal clause or a positive prohibition comparable to those
found in other sections also mentioned in 262 that use the words shall not.
Here, the Court also pointed out that profession or occupation is not a qualification for elective
office, and therefore is not a material fact in a certificate of candidacy. No elective office, not even
the office of the President of the Republic of the Philippines, requires a certain profession or
occupation as a qualification. For local elective offices including that of punong barangay, the LGC
prescribes only qualifications pertaining to citizenship, registration as a voter, residence, and
language. Accordingly, profession or occupation not being a qualification for elective office,
misrepresentation of such does not constitute a material misrepresentation.
e. Catu v. Rellosa, 546 SCRA 209 (2008)
In this case, Rellosa, a lawyer, is also Punong Barangay. He presided over a barangay conciliation
proceeding relative to the ejectment of a tenant. Since the proceeding did not result in any amicable
resolution, Rellosa issued a certification for the filing of the case in court. When the complaint for
ejectment was filed, Rellosa entered his appearance as counsel for the defendants. An administrative
complaint was filed against him for an alleged act of impropriety as a lawyer and as a public officer
in standing as counsel for the defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay. The Integrated Bar of the Philippines held
that Rellosa violated Rule 6.03 of the Code of Professional Responsibility as well as contravened the
prohibition under 7(b)(2) of RA 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees) engaging in practice unless authorized which constituted a breach of Canon 1
of the Code of Professional Responsibility (to obey the laws and promote respect for the law).
The Court ruled that Rule 6.03 applies only to a lawyer who has left government service and in
connection with any matter in which he intervened while in said service. Since Rellosa was an
incumbent punong barangay at the time he committed the act complained of, Rule 6.03 does not
apply. The Court then went on to state that it is 90 of the LGC, not 7(b)(2) of RA 6713, which
governs the practice of professions of elective local officials. The Court elucidated that local chief
executives are prohibited from practicing their profession or engaging in any occupation other than
the exercise of their functions
as local chief
executives
while,
members of the sangguniang
University
of
Santo
Tomas
panlalawigan, sangguniang panlungsod or sangguniang bayan may practice their professions,
Faculty
Civil
engage in any occupation, or teach
in schools of
except
duringLaw
session hours. . . . Since the law itself
grants them the authority to practice
their Review
professions, engage
Bar
2013in any occupation or teach in schools
outside session hours, there is no longer any need for them to secure prior permission or authorization
from any other person or office for any of these purposes. How about barangay officials? Well, no
such interdiction is made on the punong barangay and the members of the sangguniang barangay.
. . . Accordingly, as punong barangay, respondent was not forbidden to practice his profession.
However, he should have procured prior permission or authorization from the head of his
Department, as required by civil service regulations.

Here, since Rellosa did not obtain the prior written permission of the Secretary of Interior and
Autonomy
the Empowered
Grassroots
Local Government Local
before he
entered his and
appearance
as counsel, said
failure to comply with Section

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12, Rule XVIII of the Revised Civil Service Rules constituted a violation of his oath as a lawyer to
obey the laws. In acting as counsel for a party without first securing the required written permission,
respondent not only engaged in the unauthorized practice of law but also violated civil service rules
which is a breach of Rule 1.01. . . . After holding that a lawyer who disobeys the law disrespects
it. In so doing, he disregards legal ethics and disgraces the dignity of the legal profession, the Court
suspended Rellosa from the practice of law for 6 months.
And, he was also strongly advised to look up and take to heart the meaning of the word
delicadeza a quality that one must also keep in mind after one would have hurdled the Bar, an
aspect of character that might as well define the man and the woman in every one.
f. Republic v. Rambuyong, 632 SCRA 66 (2010)
The National Power Corporation (NPC), as a government-owned or controlled corporation
(GOCC), is considered as an instrumentality of the Government in accordance with Section 2 of
the Administrative Code of 1987. Thus, a vice mayor, being a member of the sanggunian, and
pursuant to Section 90(b)(1) of the Local Government Code, is not allowed to appear as counsel of
a party adverse to the NPC.
g. Japzon v. Commission on Elections, 576 SCRA 331 (2009)
Reacquiring Philippine citizenship pursuant to R.A. No. 9225 does not automatically result in
reacquisition of residence. Thus, the latter has to be separately established.
The Court, referring to 5(2) of Republic Act No. 9225, said that for a natural born Filipino, who
reacquired or retained his Philippine citizenship under Republic Act No. 9225, to run for public office,
he must: (1) meet the qualifications for holding such public office as required by the Constitution and
existing laws; and (2) make a personal and sworn renunciation of any and all foreign citizenships
before any public officer authorized to administer an oath. The other requirement of pertains to the
qualifications required by the Constitution and existing laws, such as residency in the place he intends
to run for at least one (1) year immediately preceding the day of the election.
The term residence is to be understood not in its common acceptation as referring to dwelling
or habitation, but rather to domicile or legal residence, that is, the place where a party actually
or constructively has his permanent
home, where
no matter
where he may be found at any given
University
ofhe,
Santo
Tomas
time, eventually intends to return and remain (animus manendi). Further, [a] domicile of origin
of Civil
is acquired by every person at Faculty
birth. It is usually
the placeLaw
where the childs parents reside and
continues until the same is abandoned
by acquisition
of new
domicile (domicile of choice). . . . Since
Bar
Review
2013
Ty himself admitted that he became a naturalized American citizen, then he must have necessarily
abandoned the Municipality of General Macarthur, Eastern Samar, Philippines, as his domicile of
origin; and transferred to the USA, as his domicile of choice. The Court further held that since Tys
reacquisition of his Philippine citizenship had no automatic impact or effect on his residence or
domicile, it was still possible for him to retain his domicile in the USA, and that he did not necessarily
regain his domicile in his hometown, General Macarthur, Eastern Samar. He merely had the option
to again establish his domicile in General Macarthur, thereby making said place his new domicile of
choice. The length of his residence therein would then be determined from the time he made it his
and the
Empowered
Grassroots
domicile of choice,Local
and it Autonomy
shall not retroact
to the
time of his birth.
Here, the Court ultimately

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concluded that, based on what was found by the COMELEC, Ty was able to reestablish his residency
in time to enable him to run for mayor.
h. Jalosjos v. Commission on Elections, 670 SCRA 572 (2012)
Jaloslos was born in Quezon City, then at the age of 8 migrated to Australia where he
subsequently acquired Australian citizenship. At 35, he decided to come back to the Philippines and
reacquired Philippine citizenship. He stayed in his brothers house in Ipil, Zamboanga Sibugay. He
registered as a voter, and thereafter successfully ran for Governor of the province. The COMELEC
ruled that he had not adequately proven that he had established Zamboanga Sibugay as his domicile.
The Court said the COMELEC was rather hasty in concluding that Jaloslos failed to prove that
he successfully changed his domicile. There is no hard and fast rule to determine a candidates
compliance with residency requirement since the question of residence is a question of intention. It
pointed out that it is clear from the facts that Quezon City was Jalosjos domicile of origin, the place
of his birth. It may be taken for granted that he effectively changed his domicile from Quezon City
to Australia when he migrated there at the age of eight, acquired Australian citizenship, and lived in
that country for 26 years. Australia became his domicile by operation of law and by choice. On the
other hand, when he came to the Philippines in November 2008 to live with his brother in Zamboanga
Sibugay, it is evident that Jalosjos did so with intent to change his domicile for good. He left
Australia, gave up his Australian citizenship, and renounced his allegiance to that country. In addition,
he reacquired his old citizenship by taking an oath of allegiance to the Republic of the Philippines,
resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of
Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia , clearly proving that he
gave up his domicile there. And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.
To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his
domicile of origin (Quezon City) and his domicile of choice and by operation of law (Australia) would
violate the settled maxim that a man must have a domicile or residence somewhere.
What about the fact that Jaloslos merely stayed in his brothers house? [T]his circumstance
alone, the Court said, cannot support such conclusion. Indeed, the Court has repeatedly held that
a candidate is not required to have a house in a community to establish his residence or domicile in
a particular place. It is sufficient that he should live there even if it be in a rented house or in the
house of a friend or relative. To insist that the candidate own the house where he lives would make
property a qualification forUniversity
public office.
of Santo Tomas
i.

Faculty
of Civil
Law
Maquiling v. Commission
on Elections,
SCRA
(G.R. No. 195649, 16 April 2013)
Bar Review 2013

A candidate for mayor, Arnando, repatriated himself through R.A. 9225 by taking an oath of
allegiance and then also executed a sworn renunciation of his foreign citizenship. Nevertheless, he
thereafter still used four times his U.S. passport. Is he qualified for public office? No.

The use of foreign passport after renouncing ones foreign citizenship is a positive and voluntary
act of representation as to ones nationality and citizenship, and while it does not divest Filipino
citizenship regained by repatriation, it recants the Oath of Renunciation required to qualify one to
run for an elective position. By taking the Oath of Allegiance to the Republic, Arnado reacquired
LocalAt
Autonomy
and the
Empowered
Grassroots
his Philippine citizenship.
the time, however,
he likewise
possessed
American citizenship. Arnado

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had therefore become a dual citizen. And, [b]y renouncing his foreign citizenship, he was deemed
to be solely a Filipino citizen, regardless of the effect of such renunciation under the laws of the
foreign country. However, this legal presumption does not operate permanently and is open to attack
when, after renouncing the foreign citizenship, the citizen performs positive acts showing his
continued possession of a foreign citizenship.
The Court observed that [b]etween 03 April 2009, the date he renounced his foreign citizenship,
and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that
run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport,
Arnado positively and voluntarily represented himself as an American, in effect declaring before
immigration authorities of both countries that he is an American citizen, with all attendant rights and
privileges granted by the United States of America. The renunciation of foreign citizenship is not a
hollow oath that can simply be professed at any time, only to be violated the next day. It requires an
absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and
political rights granted by the foreign country which granted the citizenship.
By way of clarification, the Court said: While the act of using a foreign passport is not one of
the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a
former Filipino citizen who is also a citizen of another country to be qualified to run for a local
elective position. When Arnado used his US passport on 14 April 2009, or just eleven days after he
renounced his American citizenship, he recanted his Oath of Renunciation that he absolutely and
perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA and that
he divest(s) [him]self of full employment of all civil and political rights and privileges of the United
States of America. In other words, by representing himself as an American citizen, Arnado
voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Arnado represented himself as an American citizen by using his
US passport. This act of using a foreign passport after renouncing ones foreign citizenship is fatal
to Arnados bid for public office, as it effectively imposed on him a disqualification to run for an
elective local position.
The Court pointed out that [b]y the time he filed his certificate of candidacy on 30 November
2009, Arnado was a dual citizen enjoying the rights and privileges of Filipino and American
citizenship. He was qualified to vote, but by the express disqualification under Section 40(d) of the
Local Government Code, University
he was not qualifiedof
to run
for a local
elective position. In effect, Arnado
Santo
Tomas
was solely and exclusively a Filipino citizen only for a period of eleven days, or from 3 April 2009
Faculty
Civil Law
until 14 April 2009, on which date
he first usedof
his American
passport after renouncing his American
citizenship. It was also pointed Bar
out that
[t]he purpose
of the Local Government Code in
Review
2013
disqualifying dual citizens from running for any elective public office would be thwarted if we were
to allow a person who has earlier renounced his foreign citizenship, but who subsequently represents
himself as a foreign citizen, to hold any public office.

As a reminder to everyone desirous of running for public office, the Court declared: Citizenship
is not a matter of convenience. It is a badge of identity that comes with attendant civil and political
rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain
allegiance to ones flag and country. While those who acquire dual citizenship by choice are afforded
Autonomy
andorthe
Empowered
Grassroots
the right of suffrage,Local
those who
seek election
appointment
to public
office are required to renounce

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their foreign citizenship to be deserving of the public trust. Holding public office demands full and
undivided allegiance to the Republic and to no other.
The case also reopened an issue that may have far-reaching ramifications that rule on second
placers. The Court said: Resolving the third issue necessitates revisiting Topacio v. Paredes[, 23
Phil. 238 (1912),] which is the jurisprudential spring of the principle that a second-placer cannot be
proclaimed as the winner in an election contest. This doctrine must be re-examined and its soundness
once again put to the test to address the ever-recurring issue that a second-placer who loses to an
ineligible candidate cannot be proclaimed as the winner in the elections.
The Court then went on to hold that [t]he ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of candidates. When the law requires certain
qualifications to be possessed or that certain disqualifications be not possessed by persons desiring
to serve as elective public officials, those qualifications must be met before one even becomes a
candidate. When a person who is not qualified is voted for and eventually garners the highest number
of votes, even the will of the electorate expressed through the ballot cannot cure the defect in the
qualifications of the candidate. To rule otherwise is to trample upon and rent asunder the very law
that sets forth the qualifications and disqualifications of candidates. We might as well write off our
election laws if the voice of the electorate is the sole determinant of who should be proclaimed
worthy to occupy elective positions in our republic.
So what is the Court saying? It is imperative to safeguard the expression of the sovereign voice
through the ballot by ensuring that its exercise respects the rule of law. To allow the sovereign voice
spoken through the ballot to trump constitutional and statutory provisions on qualifications and
disqualifications of candidates is not democracy or republicanism. It is electoral anarchy. When set
rules are disregarded and only the electorates voice spoken through the ballot is made to matter in
the end, it precisely serves as an open invitation for electoral anarchy to set in.
In this case, the Court declared that with Arnados disqualification, Maquiling the second-placer
becomes the winner in the election as he obtained the highest number of votes from among the
qualified candidates. What about the long line of cases which justified the rejection of the second
placer? [T]he votes cast in favor of the ineligible candidate are not considered at all in determining
the winner of an election. Even when the votes for the ineligible candidate are disregarded, the will
of the electorate is still respected, and even more so. The votes cast in favor of an ineligible candidate
do not constitute the soleUniversity
and total expression
ofSanto
the sovereign
voice. The votes cast in favor of
of
Tomas
eligible and legitimate candidates form part of that voice and must also be respected. As in any
Faculty
of Civil
Law and disqualifications of those
contest, elections are governed by
rules that determine
the qualifications
who are allowed to participate as players.
When there are2013
participants who turn out to be ineligible,
Bar Review
their victory is voided and the laurel is awarded to the next in rank who does not possess any of the
disqualifications nor lacks any of the qualifications set in the rules to be eligible as candidates.

Further, just to make sure that it was not unaware of the rule and its exceptions, the Court said:
There is no need to apply the rule cited in Labo v. COMELEC that when the voters are well aware
within the realm of notoriety of a candidates disqualification and still cast their votes in favor said
candidate, then the eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules affecting qualified candidates
Autonomy
the Empowered
who placed second Local
to ineligible
ones. Theand
electorates
awareness ofGrassroots
the candidates disqualification

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is not a prerequisite for the disqualification to attach to the candidate. The very existence of a
disqualifying circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidates disqualification is not necessary before a qualified candidate who placed second to a
disqualified one can be proclaimed as the winner. The second-placer in the vote count is actually the
first-placer among the qualified candidates.
The Court also pointed out that the affirmation of Amados disqualification, although made long
after the elections, reaches back to the filing of the certificate of candidacy. Amado is declared to be
not a candidate at all in the May 2010 elections. Arnado being a non-candidate, the votes cast in his
favor should not have been counted. This leaves Maquiling as the qualified candidate who obtained
the highest number of votes. Therefore, the rule on succession under the Local Government Code
will not apply.
j.

Ugdoracion, Jr. v. Commission on Elections, 552 SCRA 231 (2008)

A greencard is indicative of foreign residency, particularly in the United States. Thus, a greencard
holder is disqualified from running for elective position in the Philippines.19 In this case, the petitioner
claimed that he did not lose his domicile of origin because his acquisition of a green card was
brought about merely by his sisters petition, and that, except for this unfortunate detail, all other facts
demonstrate his retention of residence in Albuquerque, Bohol. The Court declared: Ugdoracions
assertions miss the mark completely. The dust had long settled over the implications of a green card
holder status on an elective officials qualification for public office. We ruled in Caasi v. Court of
Appeals that a Filipino citizens acquisition of a permanent resident status abroad constitutes an
abandonment of his domicile and residence in the Philippines. In short, the green card status in the
USA is a renunciation of ones status as a resident of the Philippines. Then, discussing domicile, the
Court held that while the general rule is that the domicile of origin is not easily lost, that it is lost only
when there is an actual removal or change of domicile, a bona fide intention of abandoning the former
residence and establishing a new one, and acts which correspond with such purpose, the petitioners
acquisition of a lawful permanent resident status in the United States amounted to an abandonment
and renunciation of his status as a resident of the Philippines it constituted a change from his
domicile of origin (Albuquerque, Bohol) to a new domicile of choice, which is the USA. (It might as
well be Albuquerque, New Mexico!)
The Court further decreed that in order to reacquire residency in the Philippines, there must be
a waiver of status as a greencard
holder as manifested
by someTomas
acts or acts independent of and prior
University
of Santo
to the filing of the certificate of candidacy. A mere application for abandonment of his status as
of Civil
Law
lawful permanent resident of theFaculty
USA is not enough.
And, the
abandonment must be at least a year
prior to the election.
Bar Review 2013
With regard to Ugdoracions contention that his foreign residency status was acquired
involuntarily, the result of his sisters beneficence, the Court retorted: Although immigration to the
USA through a petition filed by a family member (sponsor) is allowed by USA immigration laws, the
petitioned party is very much free to accept or reject the grant of resident status. Permanent residency

19

The Court noted: The Permanent Resident Card or the so-called greencard issued by the US government to respondent
does not merely signify transitory stay in the USA for purpose of work, pleasure, business or study but to live there permanently.
Local Autonomy and the Empowered Grassroots
This is the reason why the law considers immigrants to have lost their residency in the Philippines.

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in the USA is not conferred upon the unwilling; unlike citizenship, it is not bestowed by operation of
law. Amen one does really have to accept each and every gift coming his way!
On material misrepresentations in Certificates of Candidancy (COCs), take note of what the Court
said: Concededly, a candidates disqualification to run for public office does not necessarily
constitute material misrepresentation which is the sole ground for denying due course to, and for the
cancellation of, a COC. Further, as already discussed, the candidates misrepresentation in his COC
must not only refer to a material fact (eligibility and qualifications for elective office), but should
evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a
candidate ineligible. It must be made with an intention to deceive the electorate as to ones
qualifications to run for public office. Nevertheless, these observations did the petitioner no good.
He was still disqualified, even as he might have been chosen by the people.20
2. Appointive Officials and Employees
a. People v. Sandiganbayan, 559 SCRA 449 (2008)
In this case, the Sandiganbayan granted a demurrer to evidence, acquitting the accused in regard
to the charge of violation of Art. 244 of the Revised Penal Code (Unlawful Appointment). The charge
arose from the appointment by the mayor of a defeated candidate as Municipal Administrator within
one year from the date of election. The Court was not amused with what the lower court did,
specially in its misapplication of the rules of Statutory Construction.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by
law and that it may well be that one who possesses the required legal qualification for a position may
be temporarily disqualified for appointment to a public position by reason of the one-year prohibition
imposed on losing candidates. However, there is no violation of Article 244 of the Revised Penal
Code should a person suffering from temporary disqualification be appointed so long as the appointee
possesses all the qualifications stated in the law. There is no basis in law or jurisprudence for this
interpretation. On the contrary, legal disqualification in Article 244 of the Revised Penal Code simply
means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and
Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year
after such election to be appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
The Court was not sparing
in its criticism of
what
the Sandiganbayan
University
of
Santo
Tomasdid. [T]he Sandiganbayan,
Fourth Divisions interpretation of the term legal disqualification lack cogency. Article 244 of the
CivilLegal
Law
Revised Penal Code cannot beFaculty
circumscribedof
lexically.
disqualification cannot be read as
excluding temporary disqualification
in
order
to
exempt
therefrom
Bar Review 2013 the legal prohibitions under 6,
Art. IX of the 1987 Constitution and 94(b) of the LGC.
So what does one make of all of this? A grave abuse of discretion leads to a void judgment,
Although it has been held that once a court grants the demurrer to evidence, such order amounts to
an acquittal and any further prosecution of the accused would violate the constitutional proscription

20

Finally, we are not unmindful of the fact that Ugdoracion appears to have won the election as Mayor of Albuquerque,
Bohol. Sadly, winning the election does not substitute for the specific requirements of law on a persons eligibility for public office
Local Autonomy and the Empowered Grassroots
which he lacked, and does not cure his material misrepresentation which is a valid ground for the cancellation of his COC.

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on double jeopardy, such a rule only obtains in the absence of a grave abuse of discretion. In this
case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted
with grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of
the Revised Penal Code defies legal cogency.
b. Sales v. Carreon, Jr., 515 SCRA 597 (2007)
In De Rama v. Court of Appeals, 353 SCRA 94 (2001), the Court held that the constitutional ban
on midnight appointments 15, Art. VII applies only to presidential appointments. In truth and
in fact, there is no law that prohibits local elective officials from making appointments during the last
days of his or her tenure.
Here, what is involved is the appointment of 83 employees by the outgoing mayor during his last
month. The incoming mayor revoked such appointments on the ground that the same violated CSC
Res. No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of 2001. On appointments
like this, the Court observed: This case is a typical example of the practice of outgoing local chief
executives to issue midnight appointments, especially after their successors have been proclaimed.
It does not only cause animosities between the outgoing and the incoming officials, but also affects
efficiency in local governance. Those appointed tend to devote their time and energy in defending
their appointments instead of attending to their functions. However, not all midnight appointments
are invalid. Each appointment must be judged on the basis of the nature, character, and merits of the
individual appointment and the circumstances surrounding the same. It is only when the appointments
were made en masse by the outgoing administration and shown to have been made through hurried
maneuvers and under circumstances departing from good faith, morality, and propriety that this Court
has struck down midnight appointments.
In this case, the Civil Service Commission revoked the appointments since there was violation of
R.A. No. 7041 (Act Requiring Regular Publication of Existing Vacant Positions In Government
Offices, Appropriating Funds Therefor, And For Other Purposes [1991]). The positions were
published and declared vacant prior to the existence of any vacancy, contrary to R.A. No. 7041.
Expounding on the rationale for the law, the Court said: It is State policy that opportunities for
government employment shall be open to all qualified citizens and employees shall be selected on
the basis of fitness to perform the duties and assume the responsibilities of the positions. It was
precisely in order to ensure transparency and equal opportunity in the recruitment and hiring of
government personnel, that
Republic Act No.of
7041Santo
was enacted.
Thus, under the law [t]he CSC
University
Tomas
is required to publish the lists of vacant positions and such publication shall be posted by the chief
Faculty
of Civilunits
Law
personnel or administrative officer
of all local government
in the designated places. The vacant
positions may only be filled by the appointing
authority after
they have been reported to the CSC as
Bar Review
2013
vacant and only after publication. Here, the Court noted, the publication of vacancies was made
even before the positions involved actually became vacant. In fine, invalid appointments may be
recalled.

c. Quirog v. Aumentado, 570 SCRA 582 (2008)

In this case the Court reiterated the rule in De Rama but added a caveat to it.
Local
and the Empowered
Grassroots
Quirog had been
actingAutonomy
Provincial Agriculturist
for almost a year
when he was given a regular

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appointment during the last month of outgoing Governor. Is such appointment valid? In upholding
the appointment, the Court referred to De Rama, then added: We, however, hasten to add that the
aforementioned ruling does not mean that the raison d etre behind the prohibition against midnight
appointments may not be applied to those made by chief executives of local government units, as
here. Indeed, the prohibition is precisely designed to discourage, nay, even preclude, losing candidates
from issuing appointments merely for partisan purposes thereby depriving the incoming administration
of the opportunity to make the corresponding appointments in line with its new policies. As for the
appointment in issue, [t]he appointment of Quirog cannot be categorized as a midnight appointment.
For it is beyond dispute that Quirog had been discharging and performing the duties concomitant with
the subject position for a year prior to her permanent appointment thereto. Surely, the fact that she
was only permanently appointed to the position of PGDH-OPA after a year of being the Acting
Provincial Agriculturist more than adequately shows that the filling up of the position resulted from
deliberate action and a careful consideration of the need for the appointment and the appointees
qualifications. The fact that Quirog had been the Acting Provincial Agriculturist since June 2000 all
the more highlights the public need for said position to be permanently filled up.
d. Nazareno v. City of Dumaguete, 602 SCRA 578 (2009)
It is true that there is no constitutional prohibition against the issuance of mass appointments
by defeated local government officials prior to the expiration of their terms, the Court observed.
However, it does not mean that the raison d' etre behind the prohibition against midnight
appointments may not be applied to those made by chief executives of local government units, which
prohibition is precisely designed to discourage, nay, even preclude, losing candidates from issuing
appointments merely for partisan purposes thereby depriving the incoming administration of the
opportunity to make the corresponding appointments in line with its new policies.
The Court also noted that [i]t is not difficult to see the reasons behind the prohibition on
appointments before and after the elections. Appointments are banned prior to the elections to ensure
that partisan loyalties will not be a factor in the appointment process, and to prevent incumbents from
gaining any undue advantage during the elections. To this end, appointments within a certain period
of time are proscribed by the Omnibus Election Code and related issuances. After the elections,
appointments by defeated candidates are prohibited, except under the circumstances mentioned in
CSC Resolution No. 010988, to avoid animosities between outgoing and incoming officials, to allow
the incoming administration a free hand in implementing its policies, and to ensure that appointments
and promotions are not used
as a tool for political
patronage
or
as a reward for services rendered to
University
of
Santo
Tomas
the outgoing local officials.

Faculty of Civil Law


Thus, while not all appointmentsBar
issuedReview
after the elections
by defeated officials are invalid, it must
2013

be shown that the appointments have undergone the regular screening process, that the appointee is
qualified, that there is a need to fill up the vacancy immediately, and that the appointments are not
in bulk. Here, the City Mayor issued 89 original and promotional appointments on three separate
dates, but within a ten-day period, in the same month that he left office. The CSCs audit also found
violations of CSC rules and regulations. Furthermore, there was only one en banc meeting of the City
Personnel Selection Board (PSB) to consider the appointments, without any evidence that there were
any deliberations on the qualifications of the appointees, or any indication that there was an urgent
need for the immediate issuance of such appointments. The absence of evidence showing careful
Local
Autonomy
and the Empowered
Grassroots
consideration of the
merits
of each appointment,
and the timing
as well as the number of

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appointments, militate against such appointees cause. The prevailing circumstances in the case
indicate that the appointments were hurriedly issued by the outgoing administration.
e. Montuerto v. Ty, 567 SCRA 670 (2008)
Can the appointment of a Municipal Budget Officer, without the written concurrence of the
Sanggunian, but duly approved by the CSC and after the appointee had served as such for almost ten
years without interruption, still be revoked by the Commission? Yes, unfortunately for the appointee.
Under 443(a) and (d) of the LGC, the head of a department or office in the municipal government,
such as the Municipal Budget Officer, shall be appointed by the mayor with the concurrence of the
majority of all Sangguniang Bayan members subject to civil service law, rules and regulations. A
verbal concurrence allegedly given by the Sanggunian is not the concurrence required and envisioned
under the law the Sanggunian, as a body, acts through a resolution or an ordinance. Accordingly,
without a valid appointment, the appointee acquired no legal title to the Office of Municipal Budget
Officer, even if she had served as such for ten years. The Civil Service Commission has the authority
to recall the appointment.
In this case, the explanation given by those who were supposed to have approved it is the fact that
they focused on the budget and apparently forgot all about the budget officer. (Well, you might focus
so much on your answers in the Bar exams that you might forget to fill up the necessary slips by
which your identity could be established.)

F. TERM LIMITS
The Constitution has instituted term limits for elective officials, from the President to the
municipal officials. When it comes to the three-term limit, it is required that the official shall have
been elected to that position and shall have served that term in full.21 What is also relevant when it
comes to issues of interruption is whether the same is voluntary or otherwise.22
1. Rivera III v. Commission on Elections, 523 SCRA 41 (2007)
The mayor here, Morales, served for three terms and ran and won again for a fourth term. During
his second term (1998-2001), an election protest was decided adversely against him his
proclamation was declaredUniversity
void but the court
issued on 2 April 2001 and became
ofjudgment
SantowasTomas
final and executory only on 6 August 2001, after the second term of office. He argues that he served
Faculty
the second term only as caretaker
of office orof
as aCivil
de factoLaw
officer because of that election case,
as well as the fact that he was preventively
suspended
for
6
months
Bar Review 2013 by the Ombudsman. Is he correct?
No. Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat
continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will
have been mayor of Mabalacat for twelve (12) continuous years.

21
22

See Borja, Jr. v. Commission on Elections, 295 SCRA 157 (1998)

Art. X, 8: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any
Local Autonomy and the Empowered Grassroots
length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

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The Court also declared that Section 8, Article X of the Constitution is violated and its purpose
defeated when an official serves in the same position for more than three consecutive terms. Whether
as caretaker or de facto officer, he exercises the powers and enjoys the prerequisites [perquisites]
of the office which enables him to stay on indefinitely. He was then told to vacate his office, barely
a month before the next election which meant that he could theoretically run anew for the same
position since there was already an interruption.23
2. Dizon v. Commission on Elections, 577 SCRA 589 (2009)
As a consequence of the decision in Rivera, supra., Morales apparently relinquished with alacrity
and without any reservations (perhaps, even with concealed glee?) his position on 16 May 2007. He
then ran again during the election held during that month. Is he qualified? Yes.
In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four
consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the May 2004
elections because of the three-term limit. Although the trial court previously ruled that Morales
proclamation for the 1998-2001 term was void, there was no interruption of the continuity of
Morales service with respect to the 1998-2001 term because the trial courts ruling was promulgated
only on 4 July 2001, or after the expiry of the 1998-2001 term. Our ruling in the Rivera case served
as Morales involuntary severance from office with respect to the 2004-2007 term. Involuntary
severance from office for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. Our decision in the Rivera case was promulgated on 9 May 2007
and was effective immediately. The next day, Morales notified the vice mayors office of our decision.
The vice mayor assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The
assumption by the vice mayor of the office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales continuity of service. Thus, Morales did not hold office for the full term of 1
July 2004 to 30 June 2007.
Is it not unfair? We concede that Morales occupied the position of mayor of Mabalacat for the
following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June
2004, and 1 July 2004 to 16 May 2007. However, because of his disqualification, Morales was not
the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position of mayor of
Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007
because he was ordered toUniversity
vacate his post before
the
expiration
of the term. Morales occupancy of
of
Santo
Tomas
the position of mayor of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term
Faculty
ofIndeed,
Civil
for purposes of computing the three-term
limit.
theLaw
period from 17 May 2007 to 30 June
2007 served as a gap for purposes Bar
of the three-term
limit2013
rule. Thus, the present 1 July 2007 to 30
Review
June 2010 term is effectively Morales first term for purposes of the three-term limit rule.
One step backward, three steps forward!

23

In this regard, the view in the separate opinion of Justice Velasco might be worth considering. His submission? If the official
had substantially served the term of office, like he had been there for 2/3 of his term, that might as well be considered as a full term
Local Autonomy and the Empowered Grassroots
for purposes of reckoning the three-term limit.

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3. Montebon v. Commission on Elections, 551 SCRA 50 (2008)


Does succession by the highest ranking councilor to the office of vice-mayor constitute a
voluntary or involuntary renunciation of his office? It is the latter. It is clear that the assumption of
office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal
councilor. It was an involuntary severance from his office as municipal councilor, resulting in an
interruption in the service of his term. It cannot be deemed to have been by reason of voluntary
renunciation because it was by operation of law.
4. Abundo v. Commission on Elections, 688 SCRA 149 (2013)
When Abundo sought reelection in 2004, his opponent was proclaimed winner. He filed an
election protest which eventually led to his being declared winner. He assumed office for a little more
than a year and a month. He ran again in 2007 and won. After that, he sought reelection once more
but it was claimed that he already had three successive terms. He won nevertheless and a quo
warranto action was filed against him. The trial court declared Abuno ineligible because of the threeterm limit. The COMELEC affirmed. Was Abundo qualified to run anew? Yes, because the second
term in which he was able to assume office only for during the last year should not be considered as
a full term for him. In effect, there was an interruption in his terms by virtue of the proclamation of
his opponent then. The consecutiveness of what otherwise would have been Abundos three
successive, continuous mayorship was effectively broken during the 2004-2007 term when he was
initially deprived of title to, and was veritably disallowed to serve and occupy, an office to which he,
after due proceedings, was eventually declared to have been the rightful choice of the electorate.
5. Bolos, Jr. v. Commission on Elections, 581 SCRA 786 (2009)
How about if a Punong Barangay, during his third term, runs for and gets to sit in the
Sangguniang Bayan, and serves out such term, is he entitled to run again during the next election for
Punong Barangay? Relevant to this issue is the question as to whether his act of running for the
Sangguniang Bayan is voluntary or involuntary. The Court said that in this instance there was
voluntary renunciation. Accordingly, he cannot run. Indeed, petitioner was serving his third term as
Punong Barangay when he ran for Sangguniang Bayan member and, upon winning, assumed the
position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong
Barangay which the Court deems as a voluntary renunciation of said office.

University of Santo Tomas

And, for the purpose of determining whether the interruption was voluntary or otherwise, the
of Civil
Law
phrase operation of law had Faculty
to be looked into.
The term
operation of law is defined by the
Philippine Legal Encyclopedia as aBar
term describing
the
fact
that
Review 2013rights may be acquired or lost by the
effect of a legal rule without any act of the person affected. Blacks Law Dictionary also defines it
as a term that expresses the manner in which rights, and sometimes liabilities, devolve upon a person
by the mere application to the particular transaction of the established rules of law, without the act
or cooperation of the party himself. In this case, he did not fill in or succeed to a vacancy by
operation of law. He instead relinquished his office as Punong Barangay during his third term when
he won and assumed office as Sangguniang Bayan member, which is deemed a voluntary
renunciation of the Office of Punong Barangay.

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6. Laceda, Sr. v. Limena, 571 SCRA 603 (2008)


In Latasa v. Commission on Elections, 417 SCRA 601 (2003), the Court held that a municipal
mayor who was already into his third term cannot run anew for the same position of mayor just
because his town was converted into a city in the meantime. Does the same principle apply in the case
of a head of a barangay which was merged with other barangays from another municipality to form
the new City of Sorsogon? Yes.
In Laceda, the Punong Barangay had served as such for two consecutive terms 1994 and 1997
while his barangay was still part of the Municipality of Sorsogon. When he served his third term
starting 2002, the Municipality of Sorsogon and the Municipality of Bacon were already merged
(2000). Thus, that would only be his first term as Punong Barangay of the barangay which is now
part of the City of Sorsogon. Can he run during the 2007 barangay elections? Does the creation of
a new political unit as a consequence of merger translate into a new three-term limit? No.
While it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were
merged and converted into a city thereby abolishing the former and creating Sorsogon City as a new
political unit, it cannot be said that for the purpose of applying the prohibition in Section 2 of Rep.
Act No. 9164, the office of Punong Barangay of Barangay Panlayaan, Municipality of Sorsogon,
would now be construed as a different local government post as that of the office of Punong
Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan,
Sorsogon City, is the same as before the conversion. Consequently, the inhabitants of the barangay
are the same. They are the same group of voters who elected Laceda to be their Punong Barangay
for three consecutive terms and over whom Laceda held power and authority as their Punong
Barangay. Moreover, Rep. Act No. 8806 did not interrupt Lacedas term.
On the three-term limit for barangay elective officials pursuant to 2, R.A. 9164, the Court
explained that this provision, like Section 43 of the Local Government Code from which it was
taken, is primarily intended to broaden the choices of the electorate of the candidates who will run
for office, and to infuse new blood in the political arena by disqualifying officials from running for the
same office after a term of nine years.
7. Aldovino, Jr. v. Commission on Elections, 609 SCRA 234 (2009)
Borja, Jr. v. Commission
on Elections, 295of
SCRA
157 (1998),
mentioned preventive suspension
University
Santo
Tomas
as an example of interruption in the three consecutive terms of an elective public official, i.e., if one
of Civil
has been suspended from officeFaculty
during ones term,
then thatLaw
may be taken to mean that he did not
serve the full term for which he wasBar
electedReview
and therefore,2013
theoretically, he can run again for another
three terms. Here, the Court clarified that [d]octrinally, however, Borja is not a controlling ruling;
it did not deal with preventive suspension, but with the application of the three-term rule on the term
that an elective official acquired by succession. Now, the issue is squarely raised.

Analyzing the constitutional provision on term limits, the Court explained: As worded, the
constitutional provision fixes the term of a local elective office and limits an elective officials stay
in office to no more than three consecutive terms. This is the first branch of the rule embodied in
Section 8, Article X. Then, the second branch relates to the provisions express initiative to
Local Autonomy
and
the Empowered
Grassroots
prevent any circumvention
of the limitation
through
voluntary severance
of ties with the public office;

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it expressly states that voluntary renunciation of office shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected. This declaration complements
the term limitation mandated by the first branch.
The Court thereafter put in proper perspective the import of the term voluntary renunciation of
office. A notable feature of the second branch is that it does not textually state that voluntary
renunciation is the only actual interruption of service that does not affect continuity of service for
a full term for purposes of the three-term limit rule. It is a pure declaratory statement of what does
not serve as an interruption of service for a full term, but the phrase voluntary renunciation, by itself,
is not without significance in determining constitutional intent. In other words, [i]n the context of
the three-term limit rule, such loss of title is not considered an interruption because it is presumed to
be purposely sought to avoid the application of the term limitation.
What about the instant case? The Court declared that it is severance from office or, loss of title
to office, to be exact that renders the three-term limit rule inapplicable. Thus, for one preventively
suspended during his term, that does not serve as an interruption. [T]he interruption of a term
exempting an elective official from the three-term limit rule is one that involves no less than the
involuntary loss of title to office. The elective official must have involuntarily left his office for a
length of time, however short, for an effective interruption to occur. This has to be the case if the
thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective
officials continuous stay in office to no more than three consecutive terms, using voluntary
renunciation as an example and standard of what does not constitute an interruption. Thus, based
on this standard, loss of office by operation of law, being involuntary, is an effective interruption of
service within a term, as we held in Montebon. On the other hand, temporary inability or
disqualification to exercise the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not involve the loss of title to office or
at least an effective break from holding office; the office holder, while retaining title, is simply barred
from exercising the functions of his office for a reason provided by law.
Explaining further, the Court said: An interruption occurs when the term is broken because the
office holder lost the right to hold on to his office, and cannot be equated with the failure to render
service. The latter occurs during an office holders term when he retains title to the office but cannot
exercise his functions for reasons established by law. Of course, the term failure to serve cannot be
used once the right to office is lost; without the right to hold office or to serve, then no service can
be rendered so that none isUniversity
really lost. . . . Section
8, Article X
both by structure and substance
of Santo
Tomas
fixes an elective officials term of office and limits his stay in office to three consecutive terms as an
Civil
Law
inflexible rule that is stressed,Faculty
no less, by of
citing
voluntary
renunciation as an example of a
circumvention. The provision shouldBar
be read
in the context
of interruption of term, not in the context
Review
2013
of interrupting the full continuity of the exercise of the powers of the elective position. The voluntary
renunciation it speaks of refers only to the elective officials voluntary relinquishment of office and
loss of title to this office. It does not speak of the temporary cessation of the exercise of power or
authority that may occur for various reasons, such as preventive suspension.

8. Talaga v. Commission on Elections, 683 SCRA 197 (2012)


A candidate who files his Certificate of Candidacy attesting to his eligibility even if he has already
Local terms
Autonomy
the Empowered
Grassroots
served three consecutive
makes and
a material
misrepresentation,
thus subjecting his CoC to

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cancellation. And, he could not also be validly substituted since a cancelled CoC does not give rise
to a valid candidacy.
Here, the Court declared that since the candidate had already served three consecutive terms, he
was absolutely precluded from asserting an eligibility to run for the fourth consecutive term.
Resultantly, his CoC was invalid and ineffectual ab initio for containing the incurable defect
consisting in his false declaration of his eligibility to run. Accordingly, a non-candidate as he had not
right whatsoever to pass on to his substitute.
Normally, since the CoC was cancelled, the second placer should become the mayor. But in this
case, the issue as to the disqualification of the substitute was not resolved before the election. Hence,
the vice-mayor elect succeeded.

G. CREATION AND DIVISION OF LOCAL GOVERNMENT UNITS


In the creation, division, merger or abolition of local government units, certain criteria have been
provided for in the Local Government Code pursuant to mandate of the Constitution.24 These include
requirements with regard to income, territorial area and population in order to ensure that they would
indeed be viable as units of governance. In addition, there is also the requirement for the holding of
a plebiscite to ensure that the action taken is really reflective of the popular will.
1. Sema v. Commission on Elections, 558 SCRA 700 (2008)
May the legislative body of the Autonomous Region of Muslim Mindanao create new provinces?
No. It is beyond the authority of ARMM to create provinces and cities. The Court declared that
Section 19, Article VI of R.A. No. 9054 is unconstitutional insofar as it grants to the ARMM
Regional Assembly the power to create provinces and cities, and MMA Act 201 creating the Province
of Shariff Kabunsuan is void. (During the May 2007 elections, the COMELEC provided for the
legislative district of Shariff Kabunsuan Province with Cotabato City. In this petition, Sema
contends that Shariff Kabunsuan is entitled to its own representative in Congress.)
Provinces and Cities May Only Be Created by Congress. The creation of any of the four local
government units province, city, municipality or barangay must comply with three conditions.
First, the creation of a local
government unit must
follow
the criteria
fixed in the Local Government
University
of
Santo
Tomas
Code. Second, such creation must not conflict with any provision of the Constitution. Third, there
Faculty
of Civil
must be a plebiscite in the political
units affected.
There isLaw
neither an express prohibition nor an
express grant of authority in the Constitution
for Congress
to delegate to regional or local legislative
Bar Review
2013
bodies the power to create local government units. And, while under its plenary legislative powers,
Congress can delegate to local legislative bodies the power to create local government units, the same
is subject to reasonable standards and provided no conflict arises with any provision of the
Constitution. And, while there is no provision in the Constitution that conflicts with the delegation
to regional legislative bodies of the power to create municipalities and barangays, provided Section

24

Art. X, 10: No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a
Local Autonomy and the Empowered Grassroots
majority of the votes cast in a plebiscite in the political units directly affected.

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10, Article X of the Constitution is followed, the creation of provinces and cities is another matter.
The reason primarily is the fact that the creation of provinces and cities entails the creation of
legislative districts the power to create a province or city inherently involves 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 population reaches 250,000, the city
automatically becomes entitled to one representative. For Congress to delegate validly the power to
create a province or city, it must also validly delegate at the same time the power to create a
legislative district, something which Congress cannot validly do.
Legislative Districts are Created or Reapportioned Only by an Act of Congress. Under the
present Constitution, as well as in past Constitutions, the power to increase the allowable membership
in the House of Representatives, and to reapportion legislative districts, is vested exclusively in
Congress. The power to reapportion legislative districts necessarily includes the power to create
legislative districts out of existing ones. Congress exercises these powers through a law that Congress
itself enacts, and not through a law that regional or local legislative bodies enact. It would be
anomalous for regional or local legislative bodies to create or reapportion legislative districts for a
national legislature like Congress. An inferior legislative body, created by a superior legislative body,
cannot change the membership of the superior legislative body.
Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly
or impliedly, to create or reapportion legislative districts for Congress. Since the ARMM Regional
Assembly has no legislative power to enact laws relating to national elections, it cannot create a
legislative district whose representative is elected in national elections. Indeed, the office of a
legislative district representative to Congress is a national office, and its occupant, a Member of the
House of Representatives, is a national official. It would be incongruous for a regional legislative
body like the ARMM Regional Assembly to create a national office when its legislative powers extend
only to its regional territory. It is a self-evident inherent limitation on the legislative powers of every
local or regional legislative body that it can only create local or regional offices, respectively, and it
can never create a national office. To allow the ARMM Regional Assembly to create a national office
is to allow its legislative powers to operate outside the ARMMs territorial jurisdiction.
A Province Cannot Be Without a Legislative District. A province cannot legally be created
without a legislative district because the Constitution mandates that each province shall have at least
one representative. Thus, the creation of the Province of Shariff Kabunsuan without a legislative
district is unconstitutional.University of Santo Tomas

Faculty
of creation
CivilofLaw
Indirect Creation of Legislative
District. The
a legislative district by Congress does
not emanate alone from Congress power
reapportion legislative
BartoReview
2013 districts, but also from Congress
power to create provinces which cannot be created without a legislative district. Thus, when a
province is created, a legislative district is created by operation of the Constitution.

Pullulation of Districts. If under Section 19, Article VI of RA 9054, the ARMM Regional
Assembly can create provinces and cities within the ARMM with or without regard to the criteria
fixed in Section 461 of RA 7160, the following scenarios thus become distinct possibilities: (a) an
inferior legislative body can create 100 or more provinces and thus increase the membership of a
superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in
Autonomy
and the Empowered
the Constitution; (b)Local
the proportional
representation
in the House ofGrassroots
Representatives will be negated;

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R.B. Gorospe

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(c) representatives from the ARMM provinces can become the majority in the House of
Representatives through the ARMM Regional Assemblys continuous creation of provinces or cities
within the ARMM.
Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress
but must be exercised by Congress itself. Section 19, Article VI of RA 9054, insofar as it grants to
the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary
to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the
Ordinance appended to the Constitution. Only Congress can create provinces and cities.
2. League of Cities of the Philippines (LCP) v. Commission on Elections, 571 SCRA 263
(2008), 608 SCRA 636 (2009), 628 SCRA 819 (2010), 643 SCRA 149 (2011), 643
SCRA 149 (2011), 648 SCRA 344 (2011), and 652 SCRA 798 (2011)
At the time the 11th Congress25 ended its existence, there were on deck bills to convert 24
municipalities into cities but which were never enacted into law.26 In the meantime, R.A. 9009 was
enacted and became effective on 30 June 2001. This law amended the Local Government Code by
increasing the annual income requirement for conversion of municipalities to component cities from
=20 Million to P
P
=100 Million. The rationale was to restrain the mad rush to convert into cities solely
to secure a larger share in the Internal Revenue Allotment27 despite the fact that they are incapable
of fiscal independence. After the effectivity of RA 9009, the House of Representatives of the 12th
Congress adopted Joint Resolution No. 29, which sought to exempt from the P
=100 million income
requirement in RA 9009 the 24 municipalities whose cityhood bills were not approved during the 11th
Congress. However, the 12th Congress28 ended without the Senate approving Joint Resolution No.
29. During the 13th Congress,29 the House of Representatives re-adopted Joint Resolution No. 29 as
Joint Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed
to approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities
filed, through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a
common provision exempting all the 16 municipalities from the =
P100 million income requirement
in RA 9009. Both Houses of Congress approved the cityhood bills, which cityhood bills lapsed into
laws (Cityhood Laws) on various dates from March to July 2007 without the Presidents signature.
Petitions for Prohibition were then filed to enjoin holding of plebiscites for being unconstitutional and
for violation of the Equal Protection Clause, lamenting that the wholesale conversion of municipalities
into cities will reduce the share of existing cities in the Internal Revenue Allotment.

University of Santo Tomas


25
Faculty of Civil Law
June 1998 to June 2001.
26
Review
2013
Thirty-three (33) other municipalities Bar
were fortunate
enough to get
converted into cities.
27

The Local Government Code mandates that each class of Local Government Unit should have a fixed share in the IRA.
In the case of cities, they are entitled to 23%. In dividing this 23% share among all the cities, the population of a particular city is
considered. But 25% of the 23% share is equally divided among all the cities. Thus, an increase in the number of cities means that
the allotment to each city out of the fixed 23% IRA share of all will be reduced. A fixed numerator divided by an increased
denominator necessarily results in a smaller quotient. The reduction would obviously affect the amounts budgeted by existing cities
for their programs and projects. (Dissenting opinion of Justice Reyes)

28

June 2001 to June 2004.

29

June 2004 to June 2007.

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In its original decision, the Court ruled the Cityhood Laws unconsitutional. They did not conform
to the constitutionally mandated manner of being transformed into cities, particularly compliance with
the provisions of the LGC as amended by R.A. No. 9009. Congress passed the Cityhood Laws long
after the effectivity of RA 9009 in 2001. The 13th Congress passed in December 2006 the cityhood
bills which became laws only in 2007. The creation of local government units must follow the criteria
established in the LGC and not in any other law. There is only one LGC. The Constitution requires
Congress to stipulate in the LGC all the criteria necessary for the creation of a city, including the
conversion of a municipality into a city. Congress cannot write such criteria in any other law, like the
Cityhood Laws. The criteria prescribed in the Code govern exclusively the creation of a city. The
clear intent of the Constitution is to insure that the creation of cities and other political units must
follow the same uniform, non-discriminatory criteria found solely in the LGC. Any derogation
or deviation from the criteria prescribed in the LGC violates 10, Art. X of the Constitution. The
exemptions in the Cityhood laws clearly violate said provision.
Uniform and non-discriminatory criteria as prescribed in the LGC are essential to implement a fair
and equitable distribution of national taxes to all local government units. If the criteria in creating
local government units are not uniform and discriminatory, there can be no fair and just distribution
of the national taxes to local government units. A city with an annual income of only P
=20 million, all
other criteria being equal, should not receive the same share in national taxes as a city with an annual
income of P
=100 million or more. The criteria of land area, population and income are material in
determining the just share of local government units in national taxes.
In this case, the Court also said in effect that words unwritten are not binding the 11th
Congress intent was not written into the LGC. True, members of Congress discussed exempting the
subject municipalities from RA 9009. However, Congress did not write this intended exemption into
law. The Constitution requires that the criteria for the conversion of a municipality into a city,
including any exemption from such criteria, must all be written in the LGC. Congress cannot prescribe
such criteria or exemption from such criteria in any other law. Congress cannot create a city
through a law that does not comply with the criteria or exemption found in the LGC.
Then, the Court reminded everyone that Congress is not a continuing body. The unapproved
cityhood bills filed during the 11th Congress became mere scraps of paper upon the adjournment of
said 11th Congress. All the hearings and deliberations conducted during the 11th Congress on
unapproved bills also became worthless upon the adjournment of the 11th Congress. These hearings
and deliberations cannotUniversity
be used to interpret
enactedTomas
into law in the 13th or subsequent
ofbills
Santo
Congresses. The members and officers of each Congress are different. All unapproved bills filed in
Faculty
of Civil
Law
one Congress become functus officio
upon adjournment
of that
Congress and must be re-filed anew
in order to be taken up in the next Congress.
When
their
respective
Bar Review 2013 authors re-filed the cityhood bills
th
in 2006 during the 13 Congress, the bills had to start from square one again, going through the
legislative mill just like bills taken up for the first time, from the filing to the approval. Thus, the
deliberations during the 11th Congress on the unapproved cityhood bills, as well as the deliberations
during the 12th and 13th Congresses on the unapproved resolution exempting from RA 9009 certain
municipalities, have no legal significance. They do not qualify as extrinsic aids in construing laws
passed by subsequent Congresses.

Further, there is also the Equal Protection Clause to contend with. The Court said that even if the
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exemption provision in the Cityhood Laws were written in 450 of the LGC, as amended by RA
9009, such exemption would still be unconstitutional for violation of the equal protection clause. The
one sentence exemption provision contains no classification standards or guidelines differentiating
the exempted municipalities from those that are not exempted. An exemption based solely on the
fact that the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009
was enacted does not constitute a valid classification between those entitled and those not entitled
to exemption from the P
=100 million income requirement. There is no substantial distinction between
municipalities with pending cityhood bills in the 11th Congress and municipalities that did not have
pending bills. The mere pendency of a cityhood bill in the 11th Congress is not a material difference
to distinguish one municipality from another for the purpose of the income requirement. Also, the fact
of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition existing
at the time of passage of RA 9009, which specific condition will never happen again. This violates
the requirement that a valid classification must not be limited to existing conditions only. The
exemption provision in the Cityhood Laws gives the 16 municipalities a unique advantage based on
an arbitrary date the filing of their cityhood bills before the end of the 11th Congress as against
all other municipalities that want to convert into cities after the effectivity of RA 9009. Furthermore,
limiting the exemption only to the 16 municipalities violates the requirement that the classification
must apply to all similarly situated.
Oh, the Sweetsour Sixteen. But, wait. Not so fast. The Court subsequently reversed itself! In
its decision the next year, the Court came up with the following justifications for its new disposition
on the fate of the cityhood laws entry of judgment having been already made, notwithstanding.30
On the argument that the criteria must be in the Local Government Code and not elsewhere, the
Court said: It bears notice, however, that the code similarly referred to in the 1973 and 1987
Constitutions is clearly but a law Congress enacted. This is consistent with the aforementioned
plenary power of Congress to create political units. Necessarily, since Congress wields the vast poser
of creating political subdivisions, surely it can exercise the lesser authority of requiring a set of
criteria, standards, or ascertainable indicators of viability for their creation. Thus, the only conceivable
reason why the Constitution employs the clause in accordance with the criteria established in the
local government code is to lay stress that it is Congress alone, and no other, which can impose the
criteria. Further, the Court ratiocinated that [i]t remains to be observed at this juncture that when
the 1987 Constitution speaks of the LGC, the reference cannot be to any specific statute or
codification of laws, let alone the LGC of 1991. Be it noted that at the time of the adoption of the
1987 Constitution, Batas Pambansa
Blg. (BP) 337,
then LGC,
was still in effect. Accordingly, had
University
of the
Santo
Tomas
the framers of the 1987 Constitution intended to isolate the embodiment of the criteria only in the
Faculty
ofBPCivil
LGC, then they would have actually
referred to
337. Law

Bar Review 2013

Further, the Court declared: Consistent with its plenary legislative power on the matter,
30

The Court found a basis for this extraordinary act in the constitutional requirement of a Court majority to declare laws
unconstitutional. The Court declared: The basic issue tendered in this motion for reconsideration of the June 2, 2009 Resolution
boils down to whether or not the required vote set forth in the aforesaid Sec. 4(2), Art. VIII is limited only to the initial vote on the
petition or also to the subsequent voting on the motion for reconsideration where the Court is called upon and actually votes on the
constitutionality of a law or like issuances. Or, as applied to this case, would a minute resolution dismissing, on a tie vote, a motion
for reconsideration on the sole stated ground that the basic issues have already been passed suffice to hurdle the voting
requirement required for a declaration of the unconstitutionality of the cityhood laws in question? The Court then said that majority
Local Autonomy and the Empowered Grassroots
vote must be obtained in regard to all incidents, from the original decision to the resolutions on motions for reconsideration.

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Congress can, via either a consolidated set of laws or a much simpler, single-subject enactment,
impose the said verifiable criteria of viability. These criteria need not be embodied in the local
government code, albeit this code is the ideal repository to ensure, as much as possible, the element
of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to
the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. In this
case, the amendatory RA 9009 upped the already codified income requirement from PhP 20 million
to PhP 100 million. At the end of the day, the passage of amendatory laws is no different from the
enactment of laws, i.e., the cityhood laws specifically exempting a particular political subdivision from
the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the
already codified indicators.
Further, the Court said, [l]ooking at the circumstances behind the enactment of the laws subject
of contention, the Court finds that the LGC-amending RA 9009, no less, intended the LGUs covered
by the cityhood laws to be exempt from the PhP 100 million income criterion. In other words, the
cityhood laws, which merely carried out the intent of RA 9009, adhered, in the final analysis, to the
criteria established in the Local Government Code, pursuant to Sec. 10, Art. X of the 1987
Constitution. The Court concluded that it was really part of the legislative intent to exempt from the
new requirement under RA 9009 the municipalities covered the cityhood bills. [T]he basis for the
inclusion of the exemption clause of the cityhood laws is the clear-cut intent of Congress of not
according retroactive effect to RA 9009. Not only do the congressional records bear the legislative
intent of exempting the cityhood laws from the income requirement of P
=100 million. Congress has
now made its intention to exempt express in the challenged cityhood laws.
How about the argument that the deliberations of previous Congresses do not provide a safe
guide into the thinking of the subsequent Congress? The argument is specious and glosses over the
reality that the cityhood bills which were already being deliberated upon even perhaps before the
conception of RA 9009 were again being considered during the 13th Congress after being tossed
around in the two previous Congresses. And specific reference to the cityhood bills was also made
during the deliberations on RA 9009. At the end of the day, it is really immaterial if Congress is not
a continuing legislative body. What is important is that the debates, deliberations, and proceedings
of Congress and the steps taken in the enactment of the law, in this case the cityhood laws in relation
to RA 9009 or vice versa, were part of its legislative history and may be consulted, if appropriate, as
aids in the interpretation of the law. . . . This and other proceedings on the bills are spread in the
Congressional journals, which cannot be conveniently reduced to pure rhetoric without meaning
whatsoever, on the simplistic
and non-sequitur
pretext
that Congress
is not a continuing body and
University
of
Santo
Tomas
that unfinished business in either chamber is deemed terminated at the end of the term of Congress.
th
Faculty
Law
Otherwise stated, [t]he deliberations
of the 11of
or Civil
12th Congress
on unapproved bills or resolutions
are extrinsic aids in interpreting a law
passed
in the 13th2013
Congress.
Bar
Review
Finally, on the equal protection issue, the Court found compliance with the requisites for valid
classification. The affected municipalities which were converted into cities somehow constituted a
class by themselves their peculiar conditions, which were actual and real, provided sufficient
grounds for legislative classification.

The following year resulted in another change of mind for the Court, restoring its original
decision, to be finally reversed once more in 2011. Significant highlights of the last disposition:
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The cityhood laws were really reflective of congressional intent. Notwithstanding that both the
11th and 12th Congress failed to act upon the pending cityhood bills, both the letter and intent of
Section 450 of the LGC, as amended by R.A. No. 9009, were carried on until the 13th Congress,
when the Cityhood Laws were enacted. The exemption clauses found in the individual Cityhood Laws
are the express articulation of that intent to exempt respondent municipalities from the coverage of
R.A. No. 9009. The municipalities were somehow a distinct class of viable and deserving
government units. [T]hese municipalities have proven themselves viable and capable to become
component cities of their respective provinces. It is also acknowledged that they were centers of trade
and commerce, points of convergence of transportation, rich havens of agricultural, mineral, and
other natural resources, and flourishing tourism spots.
The Local Government Code is simply another law enacted by Congress, which it may amend or
in regard to which it may provide for certain exemptions through subsequent individual enactments.
Congress has the power to alter or modify the LGC as it did when it enacted R.A. No. 9009. Such
power of amendment of laws was again exercised when Congress enacted the Cityhood Laws.
Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed
modified income requirement in order to uphold its higher calling of putting flesh and blood to the
very intent and thrust of the LGC, which is countryside development and autonomy, especially
accounting for these municipalities as engines for economic growth in their respective provinces.
On the Equal Protection Clause. [T]he determination of the existence of substantial distinction
with respect to respondent municipalities does not simply lie on the mere pendency of their cityhood
bills during the 11th Congress. This Court sees the bigger picture. The existence of substantial
distinction with respect to respondent municipalities covered by the Cityhood Laws is measured by
the purpose of the law, not by R.A. No. 9009, but by the very purpose of the LGC. The Court then
proceeded to point out that substantial distinction lies in the capacity and viability of respondent
municipalities to become component cities of their respective provinces. Congress, by enacting the
Cityhood Laws, recognized this capacity and viability of respondent municipalities to become the
States partners in accelerating economic growth and development in the provincial regions, which
is the very thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th
Congress and their relentless pursuit for cityhood up to the present. Truly, the urgent need to become
a component city arose way back in the 11th Congress, and such condition continues to exist.
Moreover, the justness in the act of Congress in enacting the Cityhood Laws becomes obvious,
especially considering that 33 municipalities were converted into component cities almost immediately
prior to the enactment of R.A.
No. 9009. In the
enactment
ofTomas
the Cityhood Laws, Congress merely
University
of
Santo
took the 16 municipalities covered thereby from the disadvantaged position brought about by the
Faculty
ofNo.
Civil
abrupt increase in the income requirement
of R.A.
9009, Law
acknowledging the privilege that they
have already given to those newly-converted
component 2013
cities, which prior to the enactment of R.A.
Bar Review
No. 9009, were undeniably in the same footing or class as the respondent municipalities. Congress
merely recognized the capacity and readiness of respondent municipalities to become component
cities of their respective provinces.

And, how about this imagery? Petitioners have completely overlooked the need of respondent
municipalities to become effective vehicles intending to accelerate economic growth in the
countryside. It is like the elder siblings wanting to kill the newly-borns so that their inheritance would
not be diminished. What is this, incipient or unstated fratricide? (Is money worth fighting for among
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siblings?)31
Well, so much for The Pendulum!
3. Navarro v. Ermita, 612 SCRA 131 (2010) and 648 SCRA 400 (2011)
There is a requirement in the LGC that before a province could be created it should have a total
land area of 2,000 square kilometers. The Implementing Rules and Regulations of the LGC, however,
exempt from this requirement the case of one or more islands forming a province. Pursuant to this
exception, the Province of Dinagat Islands consisting of two main islands and 47 islets, with a total
land area of 802.12 sq. kms. was sought to be created through Republic Act No. 9355.
The Court said the creation of the new province is not valid. In so far as the IRR provides for
something not in the law, it is null and void. Accordingly, the criterion as to land area as set out in
the LGC must be adhered to. Under the LGC, the area requirement need not be complied with if the
population is at least 250,000. Under a census conducted by the mother province before the
enactment of the law, the total population allegedly exceeded that provided for in the LGC. Could
that then validate the creation of the province? The Court again ruled in the negative. The population
must be certified by the National Statistics Office, not merely figures supplied by the province.
Although the Provincial Government of Surigao del Norte conducted a special census of population
in Dinagat Islands in 2003, which yielded a population count of 371,000, the result was not certified
by the NSO as required by the Local Government Code. Moreover, respondents failed to prove that
with the population count of 371,000, the population of the original unit (mother Province of Surigao
del Norte) would not be reduced to less than the minimum requirement prescribed by law at the time
of the creation of the new province.
The decision became final and entry of judgment was made but surprise, of all surprises, the
Court reconsidered its decision, and on a motion for reconsideration filed by parties who sought to
intervene after the original decision was rendered!
In its Resolution of 12 April 2011, the Court came up with some interesting pronouncements as
it reversed itself. What it was acting upon was a Motion to Recall Entry of Judgment (20 October
2010) filed by Movants-Intervenors, praying that the Court (a) recall the entry of judgment, and (b)
resolve their motion for reconsideration of the July 20, 2010 Resolution. And the Court proceeded
31

University of Santo Tomas


Faculty of Civil Law
Bar Review 2013

[T]he share of local government units is a matter of percentage under Section 285 of the LGC, not a specific amount.
Specifically, the share of the cities is 23%, determined on the basis of population (50%), land area (25%), and equal sharing (25%).
This share is also dependent on the number of existing cities, such that when the number of cities increases, then more will divide
and share the allocation for cities. However, we have to note that the allocation by the National Government is not a constant, and
can either increase or decrease. With every newly converted city becoming entitled to share the allocation for cities, the percentage
of internal revenue allotment (IRA) entitlement of each city will decrease, although the actual amount received may be more than
that received in the preceding year.

Otherwise explained, [t]he respondents are thus also entitled to their just share in the IRA allocation for cities. They have
demonstrated their viability as component cities of their respective provinces and are developing continuously, albeit slowly,
because they had previously to share the IRA with about 1,500 municipalities. With their conversion into component cities, they
will have to share with only around 120 cities. Local government units do not subsist only on locally generated income, but also
depend on the IRA to support their development. They can spur their own developments and thereby realize their great potential
of encouraging trade and commerce in the far-flung regions of the country. Yet their potential will effectively be stunted if those
already earning more will still receive a bigger share from the national coffers, and if commercial activity will be more or less
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to precisely do that.
By way of background, the decision in the case was rendered on 10 February 2010. On 10 May
2010, elections were held, including those for positions in the new province of Dinagat and mother
province of Surigao del Norte. On 12 May 2010, the Court denied the motion for reconsideration.
The Court then noted without action the motions for leave of court to admit second motions for
reconsideration. On 18 June 2010, the movants-intervenors filed a Motion for Leave to Intervene and
to File and to Admit Intervenors Motion for Reconsideration of the Resolution dated 12 May 2010.
They called the attention of the Court to COMELECs Resolution No. 8790, which provided, inter
alia, that if the decision in the case became final and executory after the election, the Province of
Dinagat Islands will revert to its previous status as part of the First Legislative District of Surigao del
Norte. The results of the election will have to be nullified and a special election for Governor, Vice
Governor, Member, House of Representatives, First Legislative District of Surigao del Norte, and
Members, Sangguniang Panlalawigan, First District, Surigao del Norte (with Dinagat Islands) will
have to be conducted. They then claimed that, because they are the duly elected officials of Surigao
del Norte whose positions will be affected by the nullification of the election results in the event that
the 12 May 2010 Resolution is not reversed, they have a legal interest in the case and would be
directly affected by the declaration of nullity of R.A. No. 9355. Simply put, movants-intervenors
election to their respective offices would necessarily be annulled. The Court did not pay heed,
however. Thus, on 20 July 2010 it denied the attempt to intervene.
Undaunted, the 7 September 2010, movants-intervenors filed a Motion for Reconsideration of
the 20 July 2010 Resolution, citing several rulings of the Court, allowing intervention as an exception
to Section 2, Rule 19 of the Rules of Court that it should be filed at any time before the rendition of
judgment. They alleged that, prior to the 10 May 2010 elections, their legal interest in this case was
not yet existent. They averred that prior to the May 10, 2010 elections, they were unaware of the
proceedings in this case. It was only after they were elected in May that they became possessed with
legal interest in this controversy. Said motion notwithstanding, the Court issued on 5 October 2010
an order for Entry of Judgment, stating that the decision in this case had become final and executory
on 18 May 2010. Hence, the Motion to Recall Entry of Judgment. In favorably acting on the motion,
the Court stated:
At the outset, it must be clarified that this Resolution delves solely on the instant Urgent Motion
to Recall Entry of Judgment of movants-intervenors, not on the second motions for reconsideration
of the original parties, and
neither on Dinagats
Urgent Omnibus
Motion, . . . Inasmuch as the
University
of
Santo
Tomas
motions for leave to admit their respective motions for reconsideration of the May 12, 2010
Faculty
of Civilwere
Law
Resolution and the aforesaid motions
for reconsideration
already noted without action by the
Court, there is no reason to treat Dinagats
Urgent Omnibus
Motion differently. In relation to this,
Bar Review
2013
the Urgent Motion to Recall Entry of Judgment of movants-intervenors could not be considered as
a second motion for reconsideration to warrant the application of Section 3, Rule 15 of the Internal
Rules of the Supreme Court. It should be noted that this motion prays for the recall of the entry of
judgment and for the resolution of their motion for reconsideration of the July 20, 2010 Resolution
which remained unresolved. The denial of their motion for leave to intervene and to admit motion for
reconsideration of the May 12, 2010 Resolution did not rule on the merits of the motion for
reconsideration of the May 12, 2010 Resolution, but only on the timeliness of the intended
intervention. Their motion for reconsideration of this denial elaborated on movants-intervenors
Autonomy
andjudgment
the Empowered
Grassroots
interest in this case Local
which existed
only after
had been rendered.
As such, their motion for

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intervention and their motion for reconsideration of the May 12, 2010 Resolution merely stand as an
initial reconsideration of the said resolution.
The Court further went on to point out the adverse effect upon the movants-intervenors of the
decision in which they had not been originally parties. Indeed, COMELEC Resolution No. 8790
spawned the peculiar circumstance of proper party interest for movants-intervenors only with the
specter of the decision in the main case becoming final and executory. More importantly, if the
intervention be not entertained, the movants-intervenors would be left with no other remedy as
regards to the impending nullification of their election to their respective positions. Thus, to the
Courts mind, there is an imperative to grant the Urgent Motion to Recall Entry of Judgment by
movants-intervenors. It should be remembered that this case was initiated upon the filing of the
petition for certiorari way back on October 30, 2007. At that time, movants-intervenors had nothing
at stake in the outcome of this case. After the elections, they already had everything to lose. Indeed,
they have sufficiently shown that they have a personal and substantial interest in the case, such that
if the May 12, 2010 Resolution be not reconsidered, their election to their respective positions during
the May 10, 2010 polls and its concomitant effects would all be nullified and be put to naught. Given
their unique circumstances, movants-intervenors should not be left without any remedy before this
Court simply because their interest in this case became manifest only after the case had already been
decided. The consequences of such a decision would definitely work to their disadvantage, nay, to
their utmost prejudice, without even them being parties to the dispute. Such decision would also
violate their right to due process, a right that cries out for protection. Thus, it is imperative that the
movants-intervenors be heard on the merits of their cause. We are not only a court of law, but also
of justice and equity, such that our position and the dire repercussions of this controversy should be
weighed on the scales of justice, rather than dismissed on account of mootness. Further, courts
should proceed with caution not to deprive a party of the right to question the judgment and its
effects, and ensure that every party-litigant, including those who would be directly affected, would
have the amplest opportunity for the proper and just disposition of their cause, freed from the
constraints of technicalities.
On the merits, the Court first referred to the policy considerations. It must be borne in mind that
the central policy considerations in the creation of local government units are economic viability,
efficient administration, and capability to deliver basic services to their constituents. The criteria
prescribed by the LGC, i.e., income, population and land area, are all designed to accomplish these
results. In this light, Congress, in its collective wisdom, has debated on the relative weight of each
of these three criteria, placing
emphasis on which
of them should
enjoy preferential consideration.
University
of
Santo
Tomas
Without doubt, the primordial criterion in the creation of local government units, particularly of a
Law
province, is economic viability.Faculty
Then, it notedof
thatCivil
with respect
to the creation of barangays, land
area is not a requisite indicator of viability.
However, with
respect to the creation of municipalities,
Bar Review
2013
component cities, and provinces, the three (3) indicators of viability and projected capacity to provide
services, i.e., income, population, and land area, are provided for.

With regard to the land area requirement, which was so pivotal in the original decision, the Court
came up with the following ratiocination why in case of provinces consisting of an island or more,
the requirement need not be complied with. [I] must be pointed out that when the local government
unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as
expressly provided in Section 442 and Section 450 of the LGC if the local government unit to be
Local Autonomy
andcity,
the Empowered
Grassroots
created is a municipality
or a component
respectively. This
exemption is absent in the

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enumeration of the requisites for the creation of a province under Section 461 of the LGC, although
it is expressly stated under Article 9(2) of the LGC-IRR. There appears neither rhyme nor reason why
this exemption should apply to cities and municipalities, but not to provinces. In fact, considering the
physical configuration of the Philippine archipelago, there is a greater likelihood that islands or group
of islands would form part of the land area of a newly-created province than in most cities or
municipalities. It is, therefore, logical to infer that the genuine legislative policy decision was
expressed in Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but
was inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly
provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the congressional
oversight in Section 461 of the LGC and to reflect the true legislative intent. It would, then, be in
order for the Court to uphold the validity of Article 9(2) of the LGC-IRR. (Well, thats something
an implementing rule supplying the omission in the law and rectifying a congressional oversight or
error!)
And, more. Elementary is the principle that, if the literal application of the law results in
absurdity, impossibility, or injustice, then courts may resort to extrinsic aids of statutory construction,
such as the legislative history of the law, or may consider the implementing rules and regulations and
pertinent executive issuances in the nature of executive and/or legislative construction. Pursuant to
this principle, Article 9(2) of the LGC-IRR should be deemed incorporated in the basic law, the
LGC. (Now, the implementing rule itself is made part of the basic law.) The Court further reminded
everyone about the formulation of the Implementing Rules: It is well to remember that the LGC-IRR
was formulated by the Oversight Committee32 consisting of members of both the Executive and
Legislative departments, pursuant to Section 533 of the LGC. As Section 533 provides, the Oversight
Committee shall formulate and issue the appropriate rules and regulations necessary for the
efficient and effective implementation of any and all provisions of this Code, thereby ensuring
compliance with the principles of local autonomy as defined under the Constitution.
The Court then proceeded to elucidate further, pointing out the State policies for the enactment
of the LGC, with the view to attain decentralization and countryside development. Congress saw
that the old LGC, Batas Pambansa Bilang 337, had to be replaced with a new law, now the LGC of
1991, which is more dynamic and cognizant of the needs of the Philippines as an archipelagic country.
This accounts for the exemption from the land area requirement of local government units composed
of one or more islands, as expressly stated under Sections 442 and 450 of the LGC, with respect to
the creation of municipalities and cities, but inadvertently omitted from Section 461 with respect to
the creation of provinces. Hence,
the void or missing
detail was
filled in by the Oversight Committee
University
of Santo
Tomas
in the LGC-IRR. With three (3) members each from both the Senate and the House of
oftheir
Civil
Law
Representatives, particularly theFaculty
chairpersons of
respective
Committees on Local Government,
it cannot be gainsaid that the inclusion
by Review
the Oversight Committee
Bar
2013 of the exemption from the land
area requirement with respect to the creation of provinces consisting of one (1) or more islands was
intended by Congress, but unfortunately not expressly stated in Section 461 of the LGC, and this
intent was echoed through an express provision in the LGC-IRR. To be sure, the Oversight
Committee did not just arbitrarily and whimsically insert such an exemption in Article 9(2) of the
LGC-IRR. The Oversight Committee evidently conducted due deliberation and consultations with
all the concerned sectors of society and considered the operative principles of local autonomy as

32

In regard to unconstitutionality of congressional oversight committees and the assertion of the exercise of legislative veto,
Local Autonomy and the Empowered Grassroots
see Abakada Guro Party List v. Purisima, 562 SCRA 251 (2008).

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provided in the LGC when the IRR was formulated. Undoubtedly, this amounts not only to an
executive construction, entitled to great weight and respect from this Court, but to legislative
construction as well, especially with the inclusion of representatives from the four leagues of local
government units as members of the Oversight Committee. With the formulation of the LGC-IRR,
which amounted to both executive and legislative construction of the LGC, the many details to
implement the LGC had already been put in place, which Congress understood to be impractical and
not too urgent to immediately translate into direct amendments to the LGC. But Congress,
recognizing the capacity and viability of Dinagat to become a full-fledged province, enacted R.A. No.
9355, following the exemption from the land area requirement, which, with respect to the creation
of provinces, can only be found as an express provision in the LGC-IRR. In effect, pursuant to its
plenary legislative powers, Congress breathed flesh and blood into that exemption in Article 9(2) of
the LGC-IRR and transformed it into law when it enacted R.A. No. 9355 creating the Island Province
of Dinagat. Further, the bill that eventually became R.A. No. 9355 was filed and favorably voted upon
in both Chambers of Congress. Such acts of both Chambers of Congress definitively show the clear
legislative intent to incorporate into the LGC that exemption from the land area requirement, with
respect to the creation of a province when it consists of one or more islands, as expressly provided
only in the LGC-IRR. Thereby, and by necessity, the LGC was amended by way of the enactment of
R.A. No. 9355.
So what is so important about land area anyway? [T]he land area, while considered as an
indicator of viability of a local government unit, is not conclusive in showing that Dinagat cannot
become a province, taking into account its average annual income of P82,696,433.23 at the time of
its creation, as certified by the Bureau of Local Government Finance, which is four times more than
the minimum requirement of P20,000,000.00 for the creation of a province. The delivery of basic
services to its constituents has been proven possible and sustainable. Rather than looking at the results
of the plebiscite and the May 10, 2010 elections as mere fait accompli circumstances which cannot
operate in favor of Dinagats existence as a province, they must be seen from the perspective that
Dinagat is ready and capable of becoming a province. This Court should not be instrumental in
stunting such capacity. Ok, praise be the gods!
4. Bagabuyo v. Commission on Elections, 573 SCRA 290 (2008)
Does the creation of a new legislative district have to undergo the plebiscite exercise? R.A. No.
9371 provided for the creation of another legislative district for Cagayan De Oro City. The petitioner
contends that the same should
be subjected toof
approval
by means
of a plebiscite. Is he correct? The
University
Santo
Tomas
Court said no, then explained the difference between legislative apportionment or reapportionment,
Faculty
of Civil Law
on one hand, and division of LGUs,
on the other.

Bar Review 2013

Legislative apportionment is defined by Blacks Law Dictionary as the determination of the


number of representatives which a State, county or other subdivision may send to a legislative body.
It is the allocation of seats in a legislative body in proportion to the population; the drawing of
voting district lines so as to equalize population and voting power among the districts.
Reapportionment, on the other hand, is the realignment or change in legislative districts brought
about by changes in population and mandated by the constitutional requirement of equality of
representation. The aim of legislative apportionment is to equalize population and voting power
among districts. Separately from the legislative districts that legal apportionment or reapportionment
Autonomy
and
the Empowered
Grassroots
speaks of, are the Local
local government
units
(historically
and generically
referred to as municipal

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corporations) that the Constitution itself classified into provinces, cities, municipalities and
barangays.
The concern of 10 of Art. X of the Constitution is the commencement, the termination, and the
modification of local government units corporate existence and territorial coverage. It speaks of two
specific standards that must be observed in implementing this concern, namely, the criteria established
in the local government code and the approval by a majority of the votes cast in a plebiscite in the
political units directly affected. The Court observed that [a] pronounced distinction between Article
VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. . . . [N]o plebiscite
requirement exists under the apportionment or reapportionment provision.
The Court also gave a lesson on the historical roots of the apportionment rules, acknowledging
the American origin of our apportionment provision, noting its origins from the Fourteenth
Amendment of the U.S. Constitution and from the constitutions of some American states. Under the
1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment together
with district as the basic unit of apportionment; the concern was equality of representation . . . as
an essential feature of republican institutions. . . . As for the origin of the plebiscite requirement,
the Court noted that [t]he need for a plebiscite in the creation, division, merger, or abolition of local
government units was not constitutionally enshrined until the 1973 Constitution. From these
historical facts, the Court concluded: Under these separate historical tracks, it can be seen that the
holding of a plebiscite was never a requirement in legislative apportionment or reapportionment. After
it became constitutionally entrenched, a plebiscite was also always identified with the creation,
division, merger, abolition and alteration of boundaries of local government units, never with the
concept of legislative apportionment.
It was also noted that a legislative district is a representative unit but not a subdivision or a
corporate unit. The legislative district that Article VI, Section 5 speaks of may, in a sense, be
called a political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a political subdivision
through which functions of government are carried out. It can more appropriately be described as a
representative unit that may or may not encompass the whole of a city or a province, but unlike the
latter, it is not a corporate unit. Not being a corporate unit, a district does not act for and in behalf
of the people comprising the district; it merely delineates the areas occupied by the people who will
choose a representative in their national affairs. Unlike a province, which has a governor; a city or
a municipality, which has aUniversity
mayor; and a barangay,
which has aTomas
punong barangay, a district does not
of Santo
have its own chief executive. The role of the congressman that it elects is to ensure that the voice of
oftoCivil
Law
the people of the district is heardFaculty
in Congress, not
oversee the
affairs of the legislative district. Not
being a corporate unit also signifiesBar
that it Review
has no legal personality
2013 that must be created or dissolved
and has no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or
any other similar action on a legislative district. The local government units, on the other hand, are
political and corporate units. They are the territorial and political subdivisions of the state. . . . As a
political subdivision, a local government unit is an instrumentality of the state in carrying out the
functions of government. As a corporate entity with a distinct and separate juridical personality from
the State, it exercises special functions for the sole benefit of its constituents. It acts as an agency
of the community in the administration of local affairs and the mediums through which the people
act in their corporate capacity on local concerns. In light of these roles, the Constitution saw it fit to
Local
Autonomy
andaffected
the Empowered
Grassroots
expressly secure the
consent
of the people
by the creation,
division, merger, abolition or

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alteration of boundaries of local government units through a plebiscite.


In fine, a legislative apportionment does not mean, and does not even imply, a division of a local
government unit where the apportionment takes place. As for Cagayan De Oro City itself, it remains
unchanged. Cagayan de Oro City politically remains a single unit and its administration is not divided
along territorial lines. Its territory remains completely whole and intact; there is only the addition of
another legislative district and the delineation of the city into two districts for purposes of
representation in the House of Representatives.
As to the basis for districting, the Court clarified that [t]he law clearly provides that the basis for
districting shall be the number of the inhabitants of a city or a province, not the number of registered
voters therein, and insofar as to where Congress will draw the line, all that the Constitution requires
is that every legislative district should comprise, as far as practicable, contiguous, compact, and
adjacent territory.33 How about if this will result in one district being more developed than the other?
The Court said that it cannot question the division on the basis of the difference in the barangays
levels of development or developmental focus as these are not part of the constitutional standards for
legislative apportionment or reapportionment. What the components of the two districts of Cagayan
de Oro would be is a matter for the lawmakers to determine as a matter of policy. In the absence of
any grave abuse of discretion or violation of the established legal parameters, this Court cannot
intrude into the wisdom of these policies.
5. Aldaba v. Commission on Elections, 611 SCRA 137 (2010)
Can the City of Malolos, with a projected population of 250,000 by 2010, be entitled to a
legislative district? The Court said that since the certification with regard to the anticipated number
of people suffered from some infirmities, then RA 9591 which created a legislative district in the City
of Malolos was unconstitutional.
Here there was a certification of the Regional Director of Region III of the National Statistics
Office (NSO) that the population of the City of Malolos will be 254,030 by the year 2010. The
Court held this as not a valid basis for congressional action the Certification, which is based on
demographic projections, is without legal effect because said Regional Director had no basis and no
authority to issue the Certification. The Certification was also considered void on its face because
based on its own growth rate assumption, the population of Malolos will be less than 250,000 in the
year 2010. In addition, intercensal
demographic
be made for the entire year. The
University
ofprojections
Santocannot
Tomas
Court stated that: (a) certifications on demographic projections can be issued only if such
Faculty
of Civil
Law
projections are declared official
by the National
Statistics
Coordination Board (NSCB); (b)
certifications based on demographicBar
projections
can be issued
Review
2013only by the NSO Administrator or
his designated certifying officer: (c) intercensal population projections must be as of the middle
of every year. In short, any population projection forming the basis for the creation of a legislative
district must be based on an official and credible source.

33

Does anyone still remember Gerrymandering? Gerrymandering is a term employed to describe an apportionment of
representative districts so contrived as to give an unfair advantage to the party in power. Fr. Joaquin G. Bernas, a member of the
1986 Constitutional Commission, defined gerrymanderingas the formation of one legislative district out of separate territories
for the purpose of favoring a candidate or a party. The Constitution proscribes gerrymandering, as it mandates each legislative
Local Autonomy and the Empowered Grassroots
district to comprise, as far as practicable, a contiguous, compact and adjacent territory. (Navarro v. Ermita, 612 SCRA 131 [2010])

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6. Aquino III v. Commission on Elections, 611 SCRA 137 (2010)


Can a new legislative district be created by reapportioning two (2) existing districts in a province
and creating a third one from the same, even if the resulting district may have a population of less
than 250,000? What is involved here is the constitutionality of Republic Act No. 9716, which
precisely did that. And to such query, the Court answered yes, the Court explaining that the 250,000population requirement applies to cities, not provinces.
Making reference to the second sentence of Section 5(3), Article VI of the Constitution,34 the
Court concluded: The provision draws a plain and clear distinction between the entitlement of a city
to a district on one hand, and the entitlement of a province to a district on the other. For while a
province is entitled to at least a representative, with nothing mentioned about population, a city must
first meet a population minimum of 250,000 in order to be similarly entitled. The use by the subject
provision of a comma to separate the phrase each city with a population of at least two hundred fifty
thousand from the phrase or each province point to no other conclusion than that the 250,000
minimum population is only required for a city, but not for a province. Plainly read, Section 5(3) of
the Constitution requires a 250,000 minimum population only for a city to be entitled to a
representative, but not so for a province.
And, by way of reminder, the requirement of population is not an indispensable requirement, but
is merely an alternative addition to the indispensable income requirement.

H. AUTONOMOUS REGIONS AND JURIDICAL ENTITIES


The 1987 Constitution specifically provided for the creation of autonomous regions, particularly
for Muslim Mindanao and the Cordilleras. An autonomous region for the first was created while an
attempt to similarly set up for the latter failed.
Autonomous regions could have greater autonomy compared to other local government units.
Could the provision for local autonomy provide for the creation of political units with greater
authority than Autonomous Regions, like that of a juridical entity? This was answered in the negative
in Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP), 568 SCRA 402 (2008).

University of Santo Tomas

1. Kida v. Senate of the Philippines, 659 SCRA 270 (2011) and Resolution dated 28 February
Faculty of Civil Law
2012)

Bar Review 2013

Republic Act (RA) No. 10153 (An Act Providing for the Synchronization of the Elections in the
Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections and for
Other Purposes) reset the ARMM elections from the 8th of August 2011, to the second Monday of
May 2013 and every three (3) years thereafter, to coincide with the countrys regular national and
local elections. The issues raised touched on the power of Congress to postpone the elections in
ARMM and synchronize the same with the next nationwide elections, the need to comply with the
supermajority requirement for purposes of amending the organic act for ARMM, the effect on the

34

Local Autonomy and the Empowered Grassroots

Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

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grant of autonomy to the ARMM, the power of the President relative to the ARMM, particularly the
appointment of officers-in-charge (OICs), and whether special elections should instead be conducted
or whether incumbents should instead by allowed to hold-over instead of appointing OICs.35
Here, the Court said that the constitutionally mandated need for synchronization validates the
postponement of the ARMM elections in order that the same be held together with the next
nationwide electoral exercise in 2013. And, in this regard, the goal of synchronization could be
harmonized with the equally important mandate of providing for local or regional autonomy in
ARMM. What is worked out in R.A. No. 10153 are merely interim measures made necessary under
the peculiar circumstances of the case, just like any exercise of police power by the State. The Court
held, inter alia: [S]ynchronization of national and local elections is a constitutional mandate that
Congress must provide for and this synchronization must include the ARMM elections. . . . [W]hat
RA No. 10153 provides is an old matter for local governments (with the exception of barangay and
Sanggunian Kabataan elections where the terms are not constitutionally provided) and is technically
a reiteration of what is already reflected in the law, given that regional elections are in reality local
elections by express constitutional recognition.
As for local autonomy, even as the ARMM may have been granted greater autonomy compared
to other local government units, it still remains to be a local government subject to other rules
applicable to LGUs, such as synchronization of local elections and term limits. From the perspective
of the Constitution, autonomous regions are considered one of the forms of local governments, as
evident from Article X of the Constitution entitled Local Government.
Further, under the law, amendments must be passed by both Houses of Congress by two-thirds
vote of their members the so-called supermajority requirement. Does failure of R.A. No. 10153
to comply with said requirement invalidate it? The Court said, no. For one, RA No. 10153 cannot
be considered an amendment to RA No. 9054 since it did not change or revise any provision in the
latter law. It merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of
the subsequent regular elections providing for election date which was not provided for in R.A. No.
9054 is not considered an amendment. Accordingly, it need not also satisfy the plebiscite
requirement. For another, even assuming that RA No. 10153 did in fact amend RA No. 9054, the
35

The principle of judicial courtesy was taken up in the Resolution on the motions for reconsideration. One set of petitioners
questioned the propriety of the appointment by the President of the acting Governor and acting Vice Governor of the ARMM
considering that the Courts decision was based on a close vote of 8-7, and that there were numerous motions for reconsideration
filed by the parties. To them, the President, in recognition of the principle of judicial courtesy, should have refrained from
implementing our decision until the Court had ruled with finality on the case. The Court said the executive is not bound by the
principle of judicial courtesy. Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower
courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper
for a lower court to suspend its proceedings for practical and ethical considerations. In other words, the principle of judicial
courtesy applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund
as a result of the continuation of the proceedings in the lower court or court of origin. Consequently, this principle cannot be applied
to the President, who represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of
separation of powers, on which our whole system of government is founded upon. Secondly, the fact that our previous decision was
based on a slim vote of 8-7 does not, and cannot, have the effect of making our ruling any less effective or binding. Regardless of
how close the voting is, so long as there is concurrence of the majority of the members of the en banc who actually took part in the
deliberations of the case, a decision garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc and
must be respected as such. The petitioners are, therefore, not in any position to speculate that, based on the voting, the probability
exists that their motion for reconsideration may be granted.

University of Santo Tomas


Faculty of Civil Law
Bar Review 2013

Local Autonomy and the Empowered Grassroots

Parenthetically, the Court denied the motions for reconsideration.

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supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No. 9054 is
unconstitutional for giving RA No. 9054 the character of an irrepealable law by requiring more than
what the Constitution demands for amendment or repeal of laws i.e., only a majority of a quorum
is required. [W]hile a supermajority is not a total ban against a repeal, it is a limitation in excess of
what the Constitution requires on the passage of bills and is constitutionally obnoxious because it
significantly constricts the future legislators room for action and flexibility.
Also, not all amendments of the Organic Act need to be subjected to the plebiscite requirement.
Only the essential features as provided for the in Constitution are to be so treated. Minor aspects,
such as the date of election need not undergo that electoral exercise. The Court found that R.A. No.
9054 enlarged the plebiscite requirement under 18, Art. X of the Constitution to be excessive to
point of absurdity and, hence, a violation of the Constitution. The Court then went on to interpret
plebiscite requirement to mean that only amendments to, or revisions of, the Organic Act
constitutionally-essential to the creation of autonomous regions i.e., those aspects specifically
mentioned in the Constitution which Congress must provide for in the Organic Act require
ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a)
the basic structure of the regional government; (b) the regions judicial system, i.e., the special courts
with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative
powers constitutionally conceded to the regional government under Section 20, Article X of the
Constitution. Accordingly, any change in the date of elections cannot be construed as a substantial
amendment of the Organic Act that would require compliance with these requirements.
In Kida, the Court also recognized the authority of the President to appoint OICs in the
meantime, as an interim measure, since Congress could not have allowed hold-over because the term
of office for local officials (of which ARMM officials are) is set at three (3) years. Therefore,
Congress could not extend those whose terms are already expiring the term of three years for local
officials should stay at three (3) years as fixed by the Constitution and cannot be extended by
holdover by Congress. Otherwise put, holdover is a constitutionally infirm option that Congress
could not have undertaken.
As for the authority of the Chief Executive to appoint OICs, the same may be considered an
incident of his appointing and supervising powers. But would this not run counter to the nature of
the legislative and executive officials in ARMM being elective and representative? Not so, the
Court said, if the matter is seen in the proper perspective. After fully examining the issue, we hold
that this alleged constitutional
problem is moreof
apparent
than Tomas
real and becomes very real only if RA
University
Santo
No. 10153 were to be mistakenly read as a law that changes the elective and representative
of however,
Civil Law
character of ARMM positions.Faculty
RA No. 10153,
does not in any way amend what the
organic law of the ARMM (RA No.Bar
9054)Review
sets outs in terms
of
2013structure of governance. What RA
No. 10153 does is to provide for the appointment of OICSs for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the
functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall
have qualified and assumed office. In other words, the legal reality is that RA No. 10153 did not
amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and
for the interim measures that must in the meanwhile prevail. And this is how RA No. 10153
should be read in the manner it was written and based on its unambiguous facial terms. Aside from
its order for synchronization, it is purely and simply an interim measure responding to the
Local Autonomy and the Empowered Grassroots

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adjustments that the synchronization requires.


The Court also added: Admittedly, the grant of the power to the President under other situations
or where the power of appointment would extend beyond the adjustment period for synchronization
would be to foster a government that is not democratic and republican. For then, the peoples right
to choose the leaders to govern them may be said to be systemically withdrawn to the point of
fostering an undemocratic regime. This is the grant that would frontally breach the elective and
representative governance requirement of Section 18, Article X of the Constitution. But this
conclusion would not be true under the very limited circumstances contemplated in RA No. 10153
where the period is fixed and, more importantly, the terms of governance both under Section 18,
Article X of the Constitution and RA No. 9054 will not systemically be touched nor affected at all.
To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with
full effect in accordance with the Constitution, save only for the interim and temporary measures that
synchronization of elections requires.
What about if special elections were to be called by the COMELEC? The power to fix the date
of elections is essentially legislative in nature. Therefore, COMELEC by itself cannot do so, specially
after Congress has not provided for the same. In short, no elections may be held on any other date
except when so provided by another Act of Congress, or upon orders of a body or officer to whom
Congress may have delegated either the power or the authority to ascertain or fill in the details in the
execution of that power.
In regard to the effect of a presidential certification on the need for immediate passage of a bill,
the Court is now saying that the three separate readings may be dispensed with, not merely the
requirement to have the same read on three separate days. The Court, relying on its pronouncement
in Tolentino v. Secretary of Finance, 235 SCRA 630 (1994), held that the Presidents certification
exempted both the House and the Senate from having to comply with the three separate readings
requirement. Kida extends, and not merely reiterates, Tolentinos holding which did not mention
dispensing with the second and third readings. Tolentino noted, the bill defining the certiorari
jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No.
5440, was passed on second and third readings in the House of Representatives on the same day
[May 14, 1968 ] after the bill had been certified by the President as urgent.
2. Ampatuan v. Puno, 651 SCRA 228 (2011)

University of Santo Tomas

Following the gruesome Maguindanao Massacre in 2009, then President Arroyo issued
Faculty
Civil Law
Proclamation 1946, placing the
Provinces ofof
Maguindanao
and Sultan Kudarat and the City of
Cotabato under a state of emergency.
She
directed
the
Armed
Bar Review 2013Forces of the Philippines (AFP) and
the Philippine National Police (PNP) to undertake such measures as may be allowed by the
Constitution and by law to prevent and suppress all incidents of lawless violence in the named places.
Three days later or on November 27, President Arroyo also issued Administrative Order 273 (AO
273) transferring supervision of the Autonomous Region of Muslim Mindanao (ARMM) from the
Office of the President to the Department of Interior and Local Government (DILG). But, due to
issues raised over the terminology used in AO 273, the President issued Administrative Order 273-A
(AO 273-A) amending the former, by delegating instead of transferring supervision of the
ARMM to the DILG. These issuances of the Chief Executive were questioned, particularly in regard
Local
Autonomy
andgranted
the Empowered
Grassroots
to the claim that they
violated
the autonomy
to the ARMM.
It is argued that the President

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gave the DILG Secretary the power to exercise, not merely administrative supervision, but control
over the ARMM.
The Court said that the DILG Secretary did not take over control of the powers of the ARMM.
After law enforcement agents took respondent Governor of ARMM into custody for alleged
complicity in the Maguindanao massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong,
assumed the vacated post on December 10, 2009 pursuant to the rule on succession found in Article
VII, Section 12, of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the
ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor. In short, the
DILG Secretary did not take over the administration or operations of the ARMM.
Then the Court also educated everyone about the difference between national emergency and
state of emergency relative to the exercise of emergency powers by the President. It was contended
by the petitioners that the President unlawfully exercised emergency powers when she ordered the
deployment of AFP and PNP personnel in the places mentioned in the proclamation. The Court
clarified: [S]uch deployment is not by itself an exercise of emergency powers as understood under
Section 23 (2), Article VI of the Constitution, * * *. The President did not proclaim a national
emergency, only a state of emergency in the three places mentioned. And she did not act pursuant to
any law enacted by Congress that authorized her to exercise extraordinary powers. The calling out
of the armed forces to prevent or suppress lawless violence in such places is a power that the
Constitution directly vests in the President. She did not need a congressional authority to exercise the
same. Other the circumstances then prevailing, the imminence of violence and anarchy at the time
the President issued Proclamation 1946 was too grave to ignore and she had to act to prevent further
bloodshed and hostilities in the places mentioned. Incidentally, the present administration of
President Benigno Aquino III has not withdrawn the declaration of a state of emergency. . . .
As a follow-through to the declaration of a state of emergency, the President subsequently
declared martial law and suspended the privilege of the writ of habeas corpus in Maguindanao.
Within 8 days, however, she lifted the same. In the meantime, Congress convened but did not come
up with any action, and, some petitions were filed. After more than two years, the Court came up
with its decision in Fortun v. Macapagal-Arroyo, SCRA (G.R. Nos. 190293, et al., 20 March
2012), holding in effect that the case has become moot and academic. [G]iven the prompt lifting of
that proclamation before Congress could review it and before any serious question affecting the rights
and liberties of Maguindanaos inhabitants could arise, the Court deems any review of its
constitutionality the equivalent
of beating a of
deadSanto
horse. Prudence
and respect for the co-equal
University
Tomas
departments of the government dictate that the Court should be cautious in entertaining actions that
of Civil
assail the constitutionality of theFaculty
acts of the Executive
or theLaw
Legislative department.

Bar Review 2013

3. Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel
on Ancestral Domain (GRP), 568 SCRA 402 (2008)36

The signing of the agreement between the Government and the Moro Islamic Liberation Front
(MILF) setting up a Bangsamoro Juridical Entity (BJE) would have paved the way for the creation
36

Justice Carpio Morales penned the decision for the majority. Quisumbing, and Austria-Martinez, JJ., concurred. Puno, C.J.,
Ynares-Santiago, Carpio, Azcuna, and, Reyes, JJ., filed separate concurring opinions. Tinga, Chico-Nazario, Velasco, Jr., Nachura,
Local Autonomy and the Empowered Grassroots
Leonardo-De Castro, and, Brion, JJ., filed separate dissenting opinions. Corona, J., joined Tinga, J., in his dissent.

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of a new form of local government, and other related aspects which are not presently found in or
recognized by the Constitution. The scheduled signing of the document, however, was aborted by the
timely filing of petitions assailing the same and the correspondingly quick action of the Supreme
Court in enjoining it while it analyzed the grave ramifications of that undertaking. The Court dealt
with dealt with the issues relative to what could have been the possible establishment of the BJE.
On 5 August 2008, there was a scheduled signing in Kuala Lumpur by the Philippines (GRP) and
the MILF of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the
GRP-MILR Tripoli Agreement on Peace.37 On 4 August 2008, the Court issued a TRO following the
filing of several petitions questioning such scheduled activity. Oral arguments were then held on 15,
22 and 29 August 2008. In the meantime, the Executive declared that it will no longer proceed with
the signing and the President disbanded the Peace Panel. In proceeding to decide the case,
nevertheless, the Court noted some interesting provisions and aspects of the proposed agreement:
On the concept of Bangsamoro as defined in the MOA-AD, it includes not only Moros as
traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent
islands. The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which
is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both
parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain.
The MOA-AD grounds the right to self-governance of the Bangsamoro people on the past suzerain
authority of the sultanates. The MOA-AD goes on to describe the Bangsamoro people as the First
Nation with defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations. The MOA-AD mentions the Bangsamoro Juridical Entity
to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of
the Bangsamoro.
BJE shall have jurisdiction over all natural resources within its internal waters, and that within
the territorial waters, the BJE and the Central Government shall exercise joint jurisdiction,
authority and management over all natural resources. Notably, the jurisdiction over the internal
waters is not similarly described as joint. The territory of the Bangsamoro homeland is described
as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial
domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic
region. More specifically, the core of the BJE is defined as the present geographic area of the ARMM
and includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the
2001 plebiscite. Outside ofUniversity
this core, the BJE of
is toSanto
cover other
provinces, cities, municipalities and
Tomas
barangays, which are grouped into two categories, Category A and Category B. Each of these areas
Civil
Law
is to be subjected to a plebisciteFaculty
to be held on of
different
dates,
years apart from each other.

Bar Review 2013

The MOA-AD provides for the sharing of minerals on the territorial waters between the Central
Government and the BJE, in favor of the latter, through production sharing and economic
cooperation agreement. The activities which the Parties are allowed to conduct on the territorial
waters are enumerated, among which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of police and safety measures. There
is no similar provision on the sharing of minerals and allowed activities with respect to the internal

37

The other aspects of the Tripoli Agreement are on Security Aspect, implemented in August 2001, and the Humanitarian,
Local Autonomy and the Empowered Grassroots
Rehabilitation and Development Aspect, implemented in May 2002.

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R.B. Gorospe

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waters of the BJE. The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.
The MOA-AD describes the relationship of the Central Government and the BJE as
associative, characterized by shared authority and responsibility. The structure of governance is
to be based on executive, legislative, judicial, and administrative institutions with defined powers and
functions in the Comprehensive Compact.
The MOA-AD provides that its provisions requiring amendments to the existing legal
framework shall take effect upon signing of the Comprehensive Compact and upon effecting the
aforesaid amendments, with due regard to the non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact. The BJE is granted the power
to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and
banking, education, legislation, legal, economic, police and internal security force, judicial system and
correctional institutions, the details of which shall be discussed in the negotiation of the
comprehensive compact.
With such backdrop, the Court stated early on: Before the Court is what is perhaps the most
contentious consensus ever embodied in an instrument . . .38 It then proceeded to discuss the
relevant aspects and legal issues involved.
First, the notion of First Nation. The term First Nation is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known as Indians. In Canada, each of these
indigenous peoples is equally entitled to be called First Nation, hence, all of them are usually
described collectively by the plural First Nations. To that extent, the MOA-AD, by identifying the
Bangsamoro people as the First Nation suggesting its exclusive entitlement to that designation
departs from the Canadian usage of the term.
Is there anything in the apparent shroud of secrecy surrounding the intended signing? The Court
said that Presidential Adviser on the Peace Process (PAPP) committed grave abuse of discretion
when he failed to carry out the pertinent consultation with the people, pursuant to Executive Order
No. 3 and the Local Government Code. The furtive process by which the MOA-AD was designed
and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof. Respondents stance manifests the
manner by which they treat
the salient provisions
of E.O. No.
3 on peoples participation. Such
University
of Santo
Tomas
disregard of the express mandate of the President is not much different from superficial conduct
Faculty
ofservice.
Civil Law
toward token provisos that border
on classic lip

Bar Review 2013

On delineation of ancestral domain by mere agreement or compromise, the Court said:


Notably, the IPRA does not grant the Executive Department or any government agency the power
to delineate and recognize an ancestral domain claim by mere agreement or compromise. . . . In
proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA,
which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the
boundaries of their authority.

38

Local Autonomy and the Empowered Grassroots

Oxymorons, anyone?

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On the concept of Bangsamoro Juridical Entity and Associative Relationship, the Court came
up with interesting discussions to educate and edify everyone.
International Law Concept of Association. The Court observed: The nature of the
associative relationship may have been intended to be defined more precisely in the still to be
forged Comprehensive Compact. Nonetheless, given that there is a concept of association in
international law, and the MOA-AD by its inclusion of international law instruments in its TOR
placed itself in an international legal context, that concept of association may be brought to bear in
understanding the use of the term associative in the MOA-AD. Keitner and Reisman state that [a]n
association is formed when two states of unequal power voluntarily establish durable links. In the
basic model, one state, the associate, delegates certain responsibilities to the other, the principal,
while maintaining its international status as a state. Free associations represent a middle
ground between integration and independence.
In U.S. constitutional and international practice, free association is understood as an international
association between sovereigns, and in international practice, the associated state arrangement has
usually been used as a transitional device of former colonies on their way to full independence. The
MOA-AD contains many provisions which are consistent with the international legal concept of
association, specifically the following: the BJEs capacity to enter into economic and trade relations
with foreign countries, the commitment of the Central Government to ensure the BJEs participation
in meetings and events in the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Central Government over external defense. These provisions of the MOA
indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated
state or, at any rate, a status closely approximating it.
The Court further declared that the concept of association is not recognized under the present
Constitution. [T]he concept implies powers that go beyond anything ever granted by the
Constitution to any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other
than the Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence. And, an associative arrangement does not uphold
national unity. The act of placing a portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is certainly not conducive to national
unity.

University of Santo Tomas

It was also observed that the BJE is a far more powerful entity than autonomous region
Law
recognized in the Constitution.Faculty
Indeed, BJEof
is a Civil
state in all
but name as it meets the criteria of
a state laid down in the Montevideo
Bar Convention,
Reviewnamely,
2013a permanent population, a defined
territory, a government, and a capacity to enter into relations with other states. Even assuming
arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the
spirit animating it which has betrayed itself by its use of the concept of association runs
counter to the national sovereignty and territorial integrity of the Republic. The Court
concluded, in this regard, that [e]stablishing an associative relationship between the BJE and the
Central Government is, for the reasons already discussed, a preparation for independence, or worse,
an implicit acknowledgment of an independent status already prevailing.

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On conformity to the Fundamental Law and relevant laws. The Court declared that the
MOA-AD is inconsistent with the Constitution and laws as presently worded. The defining
concept underlying the relationship between the national government and the BJE being itself
contrary to the present Constitution, it is not surprising that many of the specific provisions of the
MOA-AD are in conflict with the Constitution and the laws. The Court noted the following features:
BJE is more of a state than an autonomous region. But even assuming that it is covered by the
term autonomous region in the constitutional provision, the MOA-AD would still be in conflict with
it. The present geographic area of the ARMM are automatically part of the BJE without need of
another plebiscite what these areas voted for then was their inclusion in the ARMM, not the BJE.
The MOA-AD would not comply with Article X, Section 20 of the Constitution. BJE has more
power than allowed to autonomous regions. Also, vesting treaty-making powers to BJE is contrary
to the rule that only the President has such power.
The MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No.
9054 or the Organic Act of the ARMM, and the IPRA (R.A. No. 8371). Bangsamoros in the
MOA-AD as including Moros and all indigenous peoples of Mindano sharply contrasts with that
found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the
identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples as well as IPRAs procedure for the delineation
and recognition of ancestral domains.
In fine, to the Court it was clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently worded.
Relating the Right to Self-Determination and International Law, the Court had this to say.
While international law has long recognized the right to self-determination of peoples, understood
not merely as the entire population of a State but also a portion thereof, the peoples right to
self-determination should not, however, be understood as extending to a unilateral right of secession.
A distinction should be made between the right of internal and external self-determination. Turning
now to the more specific category of indigenous peoples, this term has been used, in scholarship as
well as international, regional, and state practices, to refer to groups with distinct cultures, histories,
and connections to land (spiritual and otherwise) that have been forcibly incorporated into a larger
governing society. These groups
are regardedof
as indigenous
since they are the living descendants
University
Santo Tomas
of pre-invasion inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
Faculty
of Civil
Law
nations, or communities are culturally
distinctive
groups that
find themselves engulfed by settler
societies born of the forces of empire
and Review
conquest.
Bar
2013
And, in relation to the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP), the Court said that, as with the broader category of peoples, indigenous peoples situated
within states do not have a general right to independence or secession from those states under
international law, but they do have rights amounting to the right to internal self-determination. In
a historic development last September 13, 2007, the UN General Assembly adopted the United
Nations Declaration on the Rights of Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. Assuming that the UN DRIP, like the Universal Declaration on Human Rights,
Local Autonomy and the Empowered Grassroots

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must now be regarded as embodying customary international law a question which the Court found
no need to definitively resolve the obligations enumerated therein do not strictly require the
Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. The UN DRIP, while upholding the right of
indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the
near-independent status of an associated state.
On presidential powers and peace negotiations. The Court asked: May the President, in the
course of peace negotiations, agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a discussion of the extent of the
Presidents power to conduct peace negotiations. That the authority of the President to conduct
peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean
that she has no such authority. So, are peace negotiations with rebel groups part of the presidential
power? Yes, the Court said. The Presidents power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as Commander-in-Chief, she has
the more specific duty to prevent and suppress rebellion and lawless violence. Peace is rarely attained
by simply pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nations constitutional structure is required. In the Philippine experience, the
link between peace agreements and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution on autonomous regions is the
framers intention to implement a particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.
If the President is to be expected to find means for bringing the conflict to an end and to achieve
lasting peace in Mindanao, then she must be given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution for their implementation. But,
[t]he President may not, of course, unilaterally implement the solutions that she considers viable, but
she may not be prevented from submitting them as recommendations to Congress, which could then,
if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and
revision. The President may submit proposals for constitutional change to Congress in a manner that
does not involve the arrogation of constituent powers. [T]he principle may be inferred that the
President in the course ofUniversity
conducting peace negotiations
may
validly consider implementing even
of Santo
Tomas
those policies that require changes to the Constitution, but she may not unilaterally implement them
Faculty
ofinCivil
Law
without the intervention of Congress,
or act
any way
as if the assent of that body were
assumed as a certainty. These recommendations,
however,
may
Bar Review 2013 amount to nothing more than the
Presidents suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine peoples initiative.

In other words, so long as the President limits herself to recommending these changes and submits
to the proper procedure for constitutional amendments and revision, her mere recommendation need
not be construed as an unconstitutional act. Given the limited nature of the Presidents authority to
propose constitutional amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could
Autonomy
and the Empowered
Grassroots
do is submit theseLocal
proposals
as recommendations
either to Congress
or the people, in whom

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constituent powers are vested. Paragraph 7 on Governance of the MOA-AD states, however, that
all provisions thereof which cannot be reconciled with the present Constitution and laws shall come
into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to
the legal framework. This stipulation does not bear the marks of a suspensive condition defined
in civil law as a future and uncertain event but of a term. It is not a question of whether the
necessary changes to the legal framework will be effected, but when. That there is no uncertainty
being contemplated is plain from what follows, for the paragraph goes on to state that the
contemplated changes shall be with due regard to non derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive Compact. Pursuant to this stipulation,
therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated
in the MOA-AD which changes would include constitutional amendments, as discussed earlier. It
bears noting that, By the time these changes are put in place, the MOA-AD itself would be
counted among the prior agreements from which there could be no derogation. What remains
for discussion in the Comprehensive Compact would merely be the implementing details for these
consensus points and, notably, the deadline for effecting the contemplated changes to the legal
framework.
The Court further found that a provision in the MOA-AD which was a virtual guarantee that the
Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to
all the consensus points found in the MOA-AD is unconstitutional.
If the MOA-AD was signed, could it have been a binding international law commitment? No.
A peace agreement which settles an internal armed conflict cannot be ascribed the same status as one
which settles an international armed conflict which, essentially, must be between two or more warring
States. Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest it a binding
character under international law. Neither would it have amounted to a unilateral declaration on the
part of the Philippine State to the international community. The Philippine panel did not draft the
same with the clear intention of being bound thereby to the international community as a whole or
to any State, but only to the MILF. While there were States and international organizations involved,
one way or another, in the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. Accordingly, [s]ince the commitments
in the MOA-AD were not addressed to States, not to give legal effect to such commitments would
not be detrimental to the security of international intercourse to the trust and confidence essential
in the relations among States.
University of Santo Tomas

Faculty
Civil
Law
The Court also had some parting
thoughts.of
The
MOA-AD
not being a document that can bind
the Philippines under international Bar
law notwithstanding,
respondents
almost consummated act of
Review 2013
guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave
abuse of discretion. The grave abuse lies not in the fact that they considered, as a solution to the
Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee
that Congress and the sovereign Filipino people would give their imprimatur to their solution.
Upholding such an act would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves through the process of
initiative, for the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process. The sovereign people may, if it so
Local Autonomy and the Empowered Grassroots

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desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of
peace, for it can change the Constitution in any way it wants, so long as the change is not inconsistent
with what, in international law, is known as Jus Cogens.
Oh, by the way, has the whole thing become moot and academic considering that the Philippine
Government chose not to proceed with the signing? The Court said no since there were signs
suggestive of things yet to come. Contrary to respondents position, the MOA-AD cannot be
considered a mere list of consensus points, especially given its nomenclature, the need to have it
signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these consensus points, foremost of which is the creation of the
BJE. There is a commitment on the part of respondents to amend and effect necessary changes
to the existing legal framework for certain provisions of the MOA-AD to take effect.
Consequently, the present petitions are not confined to the terms and provisions of the MOA-AD, but
to other on-going and future negotiations and agreements necessary for its realization. The
petitions have not, therefore, been rendered moot and academic simply by the public disclosure of the
MOA-AD, the manifestation that it will not be signed as well as the disbanding of the GRP Panel not
withstanding. After saying that the petitions are imbued with paramount public interest, the Court
went on to state: The assertion that the MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever provides impetus for the Court
to formulate controlling principles to guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Moreover, the MOA-AD is a significant part of a series of agreements necessary to carry out
the Tripoli Agreement 2001. Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[-AD], mootness will not set in in light
of the terms of the Tripoli Agreement 2001. The present MOA-AD can be renegotiated or another
one will be drawn up to carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001,
in another or in any form, which could contain similar or significantly drastic provisions. There is
therefore a need for the Court to render a decision on the merits in the present petitions to formulate
controlling principles in negotiating with the MILF regarding Ancestral Domain.

Well, well, well. So much


for a ton ofof
readings.
OfTomas
course, after the Bar, you may
University
Santo
have a heap of garbage or, Faculty
p ric e le s s mof
e mCivil
o rab ilia
depending on your outlook
Law
and perspectives in life. . .

Bar Review 2013

Local Autonomy and the Empowered Grassroots