U.P.

College of Law

LOCAL
GOVERNME
NT

S.Y. 08-09: 2nd Sem.

2|Local

Government

(Guanzon)

S . Y.

SYLLABUS PART 1: LOCAL GOVERNMENTS; CREATION,

MERGER, ABOLITION AND POWERS.
Creation of Local Government Units:
Patricio Tan et al. v. COMELEC
Facts:

Prompted by the enactment of BP 885 (Act Creating

Province of Negros del Norte), petitioners who are residents of the

Province of Negros Occidental filed with this Court a case for
Prohibition for the purpose of stopping Comelec from conducting
the plebiscite which, pursuant to and in implementation of the
law. Petitioners contend that BP 885 is unconstitutional and it is
not in complete accord with the LGC as in Article XI, Section 3 of
our Constitution regarding the requirements in land area and
estimated annual income. Petitioners also contend that a number
of voters were excluded since the plebiscite was confined only to
the inhabitants of three cities and eight municipalities in Negros
del Norte, to the exclusion of the voters of the Province of Negros
Occidental..
Comelec contends that the law is not unconstitutional. They claim
that BP 885 does not infringe the Constitution because the
requisites of the LGC have been complied with. They submit that
the case has now become moot and academic with the
proclamation of Negros del Norte as during the plebiscite, 164,734
were in favor of the creation of the new province while only 30,400
were against it.
Issue:

WON

the

province

complied

with

the

plebiscite

requirement
Held:
Ratio:

No
The more significant and pivotal issue in the present

case revolves around in the interpretation and application in the

case at bar of Article XI, Section 3 of the Constitution. It can be
plainly seen that the constitutional provision makes it imperative
that there be first obtained "the approval of a majority of votes in
the plebiscite in the unit or units affected" whenever a province is
created, divided or merged and there is substantial alteration of
the boundaries. It is thus inescapable to conclude that the
boundaries of the existing province of Negros Occidental would
necessarily be substantially altered by the division of its existing
boundaries in order that there can be created the proposed new
province of Negros del Norte. Plain and simple logic will
demonstrate than that two political units would be affected. The
first would be the parent province of Negros Occidental because its
boundaries would be substantially altered. The other affected
entity would be composed of those in the area subtracted from the
mother province to constitute the proposed province of Negros del
Norte.
We find no way to reconcile the holding of a plebiscite that should
conform to said constitutional requirement but eliminates the
participation of either of these two component political units. No
one should be allowed to pay homage to a supposed fundamental
policy intended to guarantee and promote autonomy of local
government units but at the same time transgress, ignore and

08-09:

2nd

Sem.

disregard what the Constitution commands in Article XI Section 3

thereof
We fail to find any legal basis for the unexplained change made
when Parliamentary Bill No. 3644 was enacted into Batas
Pambansa Blg. 885 so that it is now provided in said enabling law
that the plebiscite "shall be conducted in the proposed new
province which are the areas affected." We are not disposed to
agree that by mere legislative fiat the unit or units affected
referred in the fundamental law can be diminished or restricted by
the Batasang Pambansa to cities and municipalities comprising
the new province, thereby ignoring the evident reality that there
are other people necessarily affected. The court reversed the ruling
in Paredes vs Executive Secretary (same issue but concerns
barangay).
Petitioners have averred without contradiction that after the
creation of Negros del Norte, the province of Negros Occidental
would be deprived of the long established Cities of Silay, Cadiz,
and San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that
the areas of the Province of Negros Occidental will be diminished
by about 285,656 hectares and it will lose seven of the fifteen
sugar mills which contribute to the economy of the whole province.
In the language of petitioners, "to create Negros del Norte, the
existing territory and political subdivision known as Negros
Occidental has to be partitioned and dismembered. What was
involved was no 'birth' but "amputation." We agree with the
petitioners that in the case of Negros what was involved was a
division, a separation; and consequently, as Sec. 3 of Article XI of
the Constitution anticipates, a substantial alteration of boundary.
Issue:

WON the new Province of Negros del Norte complied

with the requirements as to land area

Held:

No

Ratio:

The original parliamentary bill no 3644 expressly

declared that the new province contained an area of 285,656 ha.

More or less. However, when Parliamentary bill was enacted into
BP 885, the province now comprised a territory of 4,019.95 square
kilometers. The certification of the provincial treasurer also
indicates that there the province comprised of a lesser area.
Although the certification stated that the land area of the
municipality of Don Salvador was not available, it appeared that
such is only 80.2 kilometers. This area if added to 2,685.2 square
kilometers will result in approximately an area of only 2,765.4
square kilometers.

3|Local

Government

(Guanzon)

The last sentence of the first paragraph of Section 197 LGC 1

(requirements) is most revealing. As so stated therein the
"territory need not be contiguous if it comprises two or more
islands." The use of the word territory in this particular provision
of the Local Government Code and in the very last sentence
thereof, clearly, reflects that "territory" as therein used, has
reference only to the mass of land area and excludes the waters
over which the political unit exercises control. Said sentence states
that the "territory need not be contiguous."
Contiguous means (a) in physical contact; (b) touching along all or
most of one side; (c) near, text, or adjacent."Contiguous", when
employed as an adjective, as in the above sentence, is only used
when it describes physical contact, or a touching of sides of two
solid masses of matter. The meaning of particular terms in a
statute may be ascertained by reference to words associated with
or related to them in the statute. Therefore, in the context of the
sentence above, what need not be "contiguous" is the "territory"
---- the physical mass of land area. There would arise no need for
the legislators to use the word contiguous if they had intended
that the term "territory" embrace not only land area but also
territorial waters, It can be safely concluded that the word
territory in the first paragraph of Section 197 is meant to be
synonymous with "land area" only. The words and phrases used in
a statute should be given the meaning intended by the legislature.
The sense in which the words are used furnished the rule of
construction.
The distinction between "territory" and "land area" which
respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are arrested
from their plain and obvious meaning and made to bear an
entirely different meaning to justify an absurd or unjust result.
The plain meaning in the language in a statute is the safest guide
to follow in construing the statute. A construction based on a
forced or artificial meaning of its words and out of harmony of the
statutory scheme is not to be favored.
Teehankee, concurring: The challenged Act is manifestly void
and unconstitutional. Consequently, all the implementing acts
complained of, viz. the plebiscite, the proclamation of a new
province of Negros del Norte and the appointment of its officials
are equally void. The limited holding of the plebiscite only in the
areas of the proposed new province (as provided by Section 4 of the
Act) to the exclusion of the voters of the remaining areas of the
integral province of Negros Occidental (namely, the three cities of
1

SEC. 197. Requisites for Creation.

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

S . Y.

08-09:

2nd

Sem.

Bacolod, Bago and La Carlota and the Municipalities of La

Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran,
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog,
Cauayan, Hinoba-an and Sipalay and Candoni), grossly
contravenes and disregards the mandate of Article XI, section 3 of
the then prevailing 1973 Constitution that no province may be
created or divided or its boundary substantially altered without
"the approval of a majority of the votes in a plebiscite in the unit
or units affected. " It is plain that all the cities and municipalities
of the province of Negros Occidental, not merely those of the
proposed new province, comprise the units affected. It follows that
the voters of the whole and entire province of Negros Occidental
have to participate and give their approval in the plebiscite,
because the whole province is affected by its proposed division and
substantial alteration of its boundary. To limit the plebiscite to
only the voters of the areas to be partitioned and seceded from the
province is as absurd and illogical as allowing only the
secessionists to vote for the secession that they demanded against
the wishes of the majority and to nullify the basic principle of
majority rule. The argument of fait accompli viz. that the
railroaded plebiscite of January 3, 1986 was held and can no
longer be enjoined and that the new province of Negros del Norte
has been constituted, begs the issue of invalidity of the challenged
Act. This Court has always held that it "does not look with favor
upon parties 'racing to beat an injunction or restraining order'
which they have reason to believe might be forthcoming from the
Court by virtue of the filing and pendency of the appropriate
petition therefor. Where the restraining order or preliminary
injunction are found to have been properly issued, as in the case at
bar, mandatory writs shall be issued by the Court to restore
matters to the status quo ante." Where, as in this case, there was
somehow a failure to properly issue the restraining order stopping
the holding of the illegal plebiscite, the Court will issue the
mandatory writ or judgment to restore matters to the status quo
ante and restore the territorial integrity of the province of Negros
Occidental by declaring the unconstitutionality of the challenged
Act and nullifying the invalid proclamation of the proposed new
province of Negros del Norte and the equally invalid appointment
of its officials.
Torralba v. Mun. of Sibagat (1987)
Facts:

BP 56, creating the Municipality of Sibagat, Province of

Agusan del Sur, is being challenged as violative of Section 3

Article XI of the 1973 Constitution2. Petitioners are residents and
taxpayers of Butuan City, with petitioner, Clementino Torralba,
being a member of the Sangguniang Panglunsod of the same City.
Respondent municipal officers are the local public officials of the
new Municipality.
According to the petitioners, the Local Government Code must
first be enacted to determine the criteria for the creation, division,
merger, abolition, or substantial alteration of the boundary of any
2

"Sec. 3. No province, city, municipality, or barrio may be

created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria
established in the Local Government Code, and subject to
the approval by a majority of the votes cast in a plebiscite in
the unit or units affected."

4|Local

Government

(Guanzon)

province, city, municipality, or barrio; and that since no Local

Government Code had as yet been enacted as of the date BP 56
was passed, that statute could not have possibly complied with any
criteria when respondent Municipality was created, hence, it is
null and void.
Issue:

WON BP 56 is invalid

Held:

No

Ratio:

The absence of the Local Government Code at the time

of its enactment did not curtail nor was it intended to cripple

legislative competence to create municipal corporations. Section 3,
Article XI of the 1973 Constitution does not proscribe nor prohibit
the modification of territorial and political subdivisions before the
enactment of the LGC. It contains no requirement that the LGC a
condition sine qua non for the creation of a municipality, in much
the same way that the creation of a new municipality does not
preclude the enactment of a LGC. What the Constitutional
provision means is that once said Code is enacted, the creation,
modification or dissolution of local government units should
conform with the criteria thus laid down. In the interregnum,
before the enactment of such Code, the legislative power remains
plenary except that the creation of the new local government unit
should be approved by the people concerned in a plebiscite called
for the purpose.
The creation of the new Municipality of Sibagat conformed to said
requisite. A plebiscite was conducted and the people of the
unit/units affected endorsed and approved the creation of the new
local government unit. The officials of the new Municipality have
effectively taken their oaths of office and are performing their
functions. A de jure entity has thus been created.
It is a long-recognized principle that the power to create a
municipal corporation is essentially legislative in nature. In the
absence of any constitutional limitations, a legislative body may
create any corporation it deems essential for the more efficient
administration of government.The creation of the new
Municipality of Sibagat was a valid exercise of legislative power
then vested by the 1973 Constitution in the Interim Batasang
Pambansa.
There are significant differences, however, in Tan vs Comelec and
in this case: in the Tan case, the LGC already existed at the time
that the challenged statute was enacted on 3 December 1985; not
so in the case at bar. Secondly, BP 885 in the Tan case confined
the plebiscite to the "proposed new province" to the exclusion of
the voters in the remaining areas, in contravention of the
Constitutional mandate and of the LGC that the plebiscite should
be held "in the unit or units affected." In contrast, BP 56
specifically provides for a plebiscite "in the area or areas affected."
Thirdly, in the Tan case, even the requisite area for the creation of
a new province was not complied with in BP Blg. 885. No such
issue in the creation of the new municipality has been raised here.
And lastly, "indecent haste" attended the enactment of BP Blg.
885 and the holding of the plebiscite thereafter in the Tan case; on
the other hand, BP 56 creating the Municipality of Sibagat, was
enacted in the normal course of legislation, and the plebiscite was
held within the period specified in that law.

S . Y.

08-09:

2nd

Sem.

Province of Shariff Kabunsuan

Bai Sema v. Comelec (2008)
Facts: The Ordinance appended to the 1987 Constitution of the
Philippines apportioned 2 legislative districts for Maguindanao.
The first consists of Cotabato City and 8 municipalities.
Maguindanao forms part of the ARMM, created under its Organic
Act, RA 6734, as amended by RA 9054. Cotabato City, as part of
Maguindanaos first legislative district, is not part of the ARMM
but of Region XII (having voted against its inclusion in November
1989 plebiscite).
On 28 August 2006, the ARMMs legislature, the ARMM Regional
Assembly, exercising its power to create provinces under Section
19, Article VI of RA 9054, enacted Muslim Mindanao Autonomy
Act No. 201 (MMA Act 201) creating the Province of Shariff
Kabunsuan composed of the 8 municipalities in the first district of
Maguindanao.
Later, 3 new municipalities were carved out of the original 9,
constituting Shariff Kabunsuan, resulting to total of 11. Cotabato
City is not part of Maguindanao. Maguindanao voters ratified
Shariff Kabunsuans creation in 29 October 2006 plebiscite.
On 6 February 2007, Cotabato City passed Board Resolution No.
3999, requesting the COMELEC to clarify the status of Cotabato
City in view of the conversion of the First District of Maguindanao
into a regular province under MMA Act 201. The COMELEC
issued Resolution No. 07-0407 on 6 March 2007 "maintaining the
status quo with Cotabato City as part of Shariff Kabunsuan in the
First Legislative District of Maguindanao. Resolution No. 070407, adopted the COMELECs Law Department recommendation
under a Memorandum dated 27 February 2007. The COMELEC
issued on 29 March 2007 Resolution No. 7845 stating that
Maguindanaos first legislative district is composed only of
Cotabato City because of the enactment of MMA Act 201.
On 10 May 2007, the COMELEC issued Resolution No. 7902
(subject of these cases), amending Resolution No. 07-0407 by
renaming the legislative district in question as Shariff
Kabunsuan Province with Cotabato City (formerly First District of
Maguindanao with Cotabato City).
Meanwhile, the Shariff Kabunsuan creation plebiscite was
supervised and officiated by the COMELEC pursuant to
Resolution No. 7727. (Option Votes: In favor for creation
285,372; Against the creation 8,802)
The following municipalities seceded from Maguindanao and
formed the new province. All of them were from the first
legislative district of Maguindanao. (Barira, Buldon, Datu Blah T.
Sinsuat, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang,
Sultan Kudarat, Sultan Mastura, Upi) Kabuntalan was chosen as
the capital of the new province. The province was the first to be
created under Republic Act No. 9054 or the Expanded ARMM law.
Sandra Sema questioned COMELEC Resolution 7902 which
combined Shariff Kabunsuan and Cotabato City into a single
legislative district during the Philippine general election, 2007.
Sema lost to incumbent Congress representative of the Shariff
Kabunsuan and Cotabato district, Didagen Dilangalen.

5|Local

Government

(Guanzon)

Issue: Whether the ARMM Regional Assembly Can Create

the Province of Shariff Kabunsuan
Ratio:

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 Code. Second,
such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political
units affected.
There is neither an express prohibition nor an express grant of
authority in the Constitution for Congress to delegate to regional
or local legislative bodies the power to create local government
units. However, under its plenary legislative powers, Congress can
delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided
no conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and
municipal councils, the power to create barangays within their
jurisdiction, subject to compliance with the criteria established in
the Local Government Code, and the plebiscite requirement in
Section 10, Article X of the Constitution. However, under the
Local Government Code, "only x x x an Act of Congress" can create
provinces, cities or municipalities.
Under Section 19, Article VI of RA 9054, Congress delegated to
the ARMM Regional Assembly the power to create provinces,
cities, municipalities and barangays within the ARMM. Congress
made the delegation under its plenary legislative powers because
the power to create local government units is not one of the
express legislative powers granted by the Constitution to regional
legislative bodies. In the present case, the question arises whether
the delegation to the ARMM Regional Assembly of the power to
create provinces, cities, municipalities and barangays conflicts
with any provision of the Constitution.
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 10, Article X of
the Constitution is followed. However, the creation of provinces
and cities is another matter. Section 5 (3), Article VI of the
Constitution provides, "Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative" in the House of Representatives. Similarly, Section
3 of the Ordinance appended to the Constitution provides, "Any
province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to
at least one Member x x x."
Clearly, a province cannot be created without a legislative district
because it will violate Section 5 (3), Article VI of the Constitution
as well as Section 3 of the Ordinance appended to the
Constitution. For the same reason, a city with a population of
250,000 or more cannot also be created without a legislative
district. Thus, the power to create a province, or a city with a
population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of
less than 250,000 involves the power to create a legislative district
because once the city's population reaches 250,000, the city
automatically becomes entitled to one representative under

S . Y.

08-09:

2nd

Sem.

Section 5 (3), Article VI of the Constitution and Section 3 of the

Ordinance appended to the Constitution. Thus, the power to
create a province or city inherently involves the power to
create a legislative district.
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. Section 5, Article VI of the Constitution
provides that Congress of the exclusive power to create or
reapportion legislative districts is logical. Congress is a national
legislature and any increase in its allowable membership or in its
incumbent membership through the creation of legislative
districts must be embodied in a national law. Only Congress can
enact such a law. 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.
The creation of the ARMM, and the grant of legislative powers to
its Regional Assembly under its organic act, did not divest
Congress of its exclusive authority to create legislative districts.
This is clear from the Constitution and the ARMM Organic Act, as
amended.
Nothing in Section 20, Article X of the Constitution
authorizes autonomous regions, expressly or impliedly, to
create or reapportion legislative districts for Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the
ARMM Organic Act, provides, "The Regional Assembly may
exercise legislative power x x x except on the following
matters: x x x (k) National elections. x x x." 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. Whenever Congress
enacts a law creating a legislative district, the first representative
is always elected in the "next national elections" from the
effectivity of the law.
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. The office of a district
representative is maintained by national funds and the salary of
its occupant is paid out of national funds. 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 ARMM's
territorial jurisdiction. This violates Section 20, Article X of
the Constitution which expressly limits the coverage of the
Regional

Assembly's

legislative

territorial jurisdiction x x x."

powers

"[w]ithin

its

6|Local

Government

(Guanzon)

S . Y.

The ARMM Regional Assembly itself, in creating Shariff

Kabunsuan, recognized the exclusive nature of Congress' power to
create or reapportion legislative districts by abstaining from
creating a legislative district for Shariff Kabunsuan.
First. The issue in Felwa, among others, was whether Republic Act
No. 4695 (RA 4695), creating the provinces of Benguet, Mountain
Province, Ifugao, and Kalinga-Apayao and providing for
congressional representation in the old and new provinces, was
unconstitutional for "creati[ng] congressional districts without the
apportionment provided in the Constitution." The Court answered
in the negative. Pursuant to this Section, a representative
district may come into existence: (a) indirectly, through
the creation of a province for "each province shall have
at least one member" in the House of Representatives; or
(b) by direct creation of several representative districts
within

province.

The

requirements

concerning

the

apportionment of representative districts and the territory thereof

refer only to the second method of creation of representative
districts, and do not apply to those incidental to the creation of
provinces, under the first method. This is deducible, not only from
the general tenor of the provision above quoted, but, also, from the
fact that the apportionment therein alluded to refers to that which
is made by an Act of Congress. Indeed, when a province is
created by statute, the corresponding representative
district, comes into existence neither by authority of that
statute which cannot provide otherwise nor by
apportionment, but by operation of the Constitution,
without a reapportionment.
Second. Sema's theory also undermines the composition and
independence of the House of Representatives. 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, namely:
minimum annual income of P20,000,000, and minimum
contiguous territory of 2,000 square kilometers or minimum
population of 250,000. The following scenarios thus become
distinct possibilities:
An inferior legislative body like the ARMM Regional Assembly 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 the Constitution (unless a
national law provides otherwise);
(2) The proportional representation in the House of
Representatives based on one representative for at least every
250,000 residents will be negated because the ARMM Regional
Assembly need not comply with the requirement in Section 461(a)
(ii) of RA 7160 that every province created must have a population
of at least 250,000; and
(3) Representatives from the ARMM provinces can become the
majority in the House of Representatives through the ARMM
Regional Assembly's continuous creation of provinces or cities
within the ARMM.
Neither the framers of the 1987 Constitution in adopting the
provisions in Article X on regional autonomy, [37] nor Congress in
enacting RA 9054, envisioned or intended these disastrous
consequences that certainly would wreck the tri-branch system of

08-09:

2nd

Sem.

government under our Constitution. Clearly, the power to create

or reapportion legislative districts cannot be delegated by
Congress but must be exercised by Congress itself. Even the
ARMM Regional Assembly recognizes this.
The Constitution empowered Congress to create or reapportion
legislative districts, not the regional assemblies. Section 3 of the
Ordinance to the Constitution which states, "[A]ny province that
may hereafter be created x x x shall be entitled in the immediately
following election to at least one Member," refers to a province
created by Congress itself through a national law. The reason is
that the creation of a province increases the actual membership of
the House of Representatives, an increase that only Congress can
decide. Incidentally, in the present 14th Congress, there are 219[38]
district representatives out of the maximum 250 seats in the
House of Representatives. Since party-list members shall
constitute 20 percent of total membership of the House, there
should at least be 50 party-list seats available in every election in
case 50 party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less than the 219
incumbent district representatives. Thus, there is a need now for
Congress to increase by law the allowable membership of the
House, even before Congress can create new provinces.
The present case involves the creation of a local government unit
that necessarily involves also the creation of a legislative district.
The Court will not pass upon the constitutionality of the creation
of municipalities and barangays that does not comply with the
criteria established in Section 461 of RA 7160, as mandated in
Section 10, Article X of the Constitution, because the creation of
such municipalities and barangays does not involve the creation of
legislative districts. We leave the resolution of this issue to an
appropriate case.
In summary, we rule that Section 19, Article VI of RA 9054,
insofar as it grants to the ARMM Regional Assembly the power to
create provinces and cities, is void for being contrary to Section 5
of Article VI and Section 20 of Article X of the Constitution, as
well as Section 3 of the Ordinance appended to the Constitution.
Only Congress can create provinces and cities because the
creation of provinces and cities necessarily includes the creation of
legislative districts, a power only Congress can exercise under
Section 5, Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. The ARMM Regional
Assembly cannot create a province without a legislative district
because the Constitution mandates that every province shall have
a legislative district. Moreover, the ARMM Regional Assembly
cannot enact a law creating a national office like the office of a
district representative of Congress because the legislative powers
of the ARMM Regional Assembly operate only within its
territorial jurisdiction as provided in Section 20, Article X of the
Constitution. Thus, we rule that MMA Act 201, enacted by the
ARMM Regional Assembly and creating the Province of Shariff
Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902,
preserving the geographic and legislative district of the First
District of Maguindanao with Cotabato City, is valid as it merely
complies with Section 5 of Article VI and Section 20 of Article X of

7|Local

Government

(Guanzon)

the Constitution, as well as Section 1 of the Ordinance appended

to the Constitution.
The Prov. Of North Cotabato et al v. Government (2008)
Facts:

On August 5, 2008, the Government of the Republic of

the Philippines (GRP) and the MILF, through the Chairpersons of

their respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984
when, under the leadership of the late Salamat Hashim, it
splintered from the Moro National Liberation Front (MNLF) then
headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations. [1]
The signing of the MOA-AD between the GRP and the MILF was
not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled
signing of the MOA-AD, this Court issued a Temporary
Restraining Order enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and
the concluding of several prior agreements between the two
parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF Peace
Panels signed the Agreement on General Cessation of Hostilities.
The following year, they signed the General Framework of
Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes
the MOA-AD by stating that the same contained, among others,
the commitment of the parties to pursue peace negotiations,
protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from
the use of threat or force to attain undue advantage while the
peace negotiations on the substantive agenda are on-going.[2]
Early on, however, it was evident that there was not going to be
any smooth sailing in the GRP-MILF peace process. Towards the
end of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte. [3] In
response, then President Joseph Estrada declared and carried out
an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with
deep reservation, but when President Arroyo asked the
Government of Malaysia through Prime Minister Mahathir
Mohammad to help convince the MILF to return to the negotiating
table, the MILF convened its Central Committee to seriously
discuss the matter and, eventually, decided to meet with the GRP.
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the parties
signing on the same date the Agreement on the General
Framework for the Resumption of Peace Talks Between the GRP
and the MILF. The MILF thereafter suspended all its military
actions.

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Formal peace talks between the parties were held in Tripoli, Libya
from June 20-22, 2001, the outcome of which was the GRP-MILF
Tripoli Agreement on Peace (Tripoli Agreement 2001) containing
the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed "that the same
be discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the
Implementing Guidelines on the Security Aspect of the Tripoli
Agreement 2001 leading to a ceasefire status between the parties.
This was followed by the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001, which was signed on May 7, 2002 at
Putrajaya, Malaysia. Nonetheless, there were many incidence of
violence between government forces and the MILF from 2002 to
2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away
on July 13, 2003 and he was replaced by Al Haj Murad, who was
then the chief peace negotiator of the MILF. Murad's position as
chief peace negotiator was taken over by Mohagher Iqbal. [6]
In 2005, several exploratory talks were held between the parties
in Kuala Lumpur, eventually leading to the crafting of the draft
MOA-AD in its final form, which, as mentioned, was set to be
signed last August 5, 2008.
Held:

The Memorandum of Agreement on the Ancestral

Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of

2001 is declared contrary to law and the Constitution.
Ratio:

The petitions are ripe for adjudication. The failure of

respondents to consult the local government units or communities

affected constitutes a departure by respondents from their
mandate under E.O. No. 3. Moreover, respondents exceeded their
authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any
branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance, the
Court grants the petitioners, petitioners-in-intervention and
intervening respondents the requisite locus standi in keeping with
the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of
the MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution
involved; (b) the exceptional character of the situation and
paramount public interest; (c) the need to formulate controlling
principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on Peace
signed by the government and the MILF back in June 2001.
Hence, the present MOA-AD can be renegotiated or another one
drawn up that could contain similar or significantly dissimilar

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provisions compared to the original.

The Court, however, finds that the prayers for mandamus have
been rendered moot in view of the respondents' action in providing
the Court and the petitioners with the official copy of the final
draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern
under Sec. 7, Article III of the Constitution is in splendid
symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Article II of
the Constitution. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the
duty of officialdom to give information even if nobody demands.
The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure
derive the same self-executory nature, subject only to reasonable
safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In declaring
that the right to information contemplates steps and negotiations
leading to the consummation of the contract, jurisprudence finds
no distinction as to the executory nature or commercial character
of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between the
government and the people. Corollary to these twin rights is the
design for feedback mechanisms. The right to public consultation
was envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular
dialogues to seek relevant information, comments, advice, and
recommendations from peace partners and concerned sectors of
society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group
of people residing in such locality, is implemented therein. The
MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from
their total environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act
of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other
things, the observance of the free and prior informed consent of
the Indigenous Cultural Communities/Indigenous Peoples.
Notably, the statute 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.
The invocation of the doctrine of executive privilege as a defense to
the general right to information or the specific right to
consultation is untenable. The various explicit legal provisions fly

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in the face of executive secrecy. In any event, respondents

effectively waived such defense after it unconditionally disclosed
the official copies of the final draft of the MOA-AD, for judicial
compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed
grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. 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. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution
and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional , for the
concept presupposes that the associated entity is a state and
implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions
thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure
its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central
Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed
to the government peace panel. Moreover, as the clause is worded,
it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither
the GRP Peace Panel nor the President herself is authorized to
make such a guarantee. 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.
While the MOA-AD would not amount to an international
agreement or unilateral declaration binding on the Philippines
under international law, respondents' act of guaranteeing
amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.
Metro Manila Commission:
Gemiliano Lopez, Jr. v. Hon. Comelec (1985)
Facts:

PD 824 or an act creating the Metropolitan Manila, was

enacted to establish and administer program and provide services

common to" the cities of Manila, Quezon, Pasay, and Caloocan as
well as thirteen municipalities in the surrounding area. This is in
response to the sharp growth in the population of Manila and the
proliferation of commercial firms and industries, which resulted to
the ever-increasing inability of the separate local governments to
cope with the ensuing serious problems. Metro Manila shall be
administered by the Commission.
Petitioners assail the constitutionality of PD 824. They rely on this
provision: "No province, city, municipality, or barrio may be
created, divided, merged, abolished, or its boundary substantially

9|Local

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altered, except in accordance with the criteria established in the

local government code, and subject to the approval by a majority of
the votes cast in a plebiscite in the unit or units affected." The
Local Government Code was not enacted until 1983.
Issue:

WON PD 824 is unconstitutional as it was enacted prior

to the creation of a local government code

Held:

No

Ratio:

The challenge does not suffice to call for a declaration of

unconstitutionality. The last vestige of doubt has been removed by

the present constitutional provision regarding the Batasang
Pambansa. That provision clearly recognizes the existence of the
Metropolitan Manila.
Justification as to PD 824. In PD 824, reference was made to
"the referendum held on February 27, 1975 wherein the residents
of the Greater Manila Area authorized the President to
restructure the local governments into an integrated unit of the
manager or commission form of government. It was then pointed
out that "the rapid growth of population and the corresponding
increase of social and economic requirements in the contiguous
communities has brought into being a large area that calls for
development both simultaneous and unified. It "is vital to the
survival and growth of the aforementioned Greater Manila Area
that a workable and effective system be established for the
coordination, integration and unified management of such local
government services or functions" therein. There is necessity for
"the unified metropolitan services or functions to be planned,
administered, and operated [based on] the highest professional
technical standards." 15 The foregoing constitutes the justification
for and the objective of such Presidential Decree.
Application of Paredes vs Executive Secretary. In Paredes vs
Executive Secretary, the Court did came to the conclusion that the
constitutional provision on the need for a majority of the votes cast
in the plebiscite in the unit or units affected would be satisfied
even if "those voters who are not from the barangay to be
separated were excluded in the plebiscite." It cannot be argued
therefore that the plebiscite held in the areas affected to constitute
Metropolitan Manila in the referendum on February 27, 1975 was
not a sufficient compliance with the constitutional provision. With
the voters in such four cities and thirteen municipalities, now
composing Metropolitan Manila, having manifested their will, the
constitutional provision relied upon by petitioners has been
satisfied. It is to be noted likewise that at the time of such
plebiscite in February, 1975, there was no Local Government
Code.
Presidential Authority to Issue the PD. At that time there
was no interim Batasang Pambansa. It was the President who
was entrusted with such responsibility. The legality of the law
making authority by the President during the period of Martial
Law was already established in Aquino vs Comelec.
Sangguniang Bayan. The point has been raised, however, that
unless Presidential Decree No. 824 be construed in such a way
that along with the rest of the other cities and municipalities,
there should be elections for the Sangguniang Bayan, then there is
a denial of the equal protection provision of the Constitution. The

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point is not well-taken. It is clear that under the equal protection

clause, classification is not forbidden. But classification on a
reasonable basis, and not made arbitrarily or capriciously is
permitted. . . . The classification, however, to be reasonable must
be based on substantial distinction which make real differences; it
must be germane to the purposes of the law; it must not be limited
to existing conditions only, and must apply equally to each
member of the class." All such elements are present. There is no
need to set forth anew the compelling reasons that called for the
creation of Metropolitan Manila. It is quite obvious that under the
conditions then existing - still present and, with the continued
growth of population, attended with more complexity - what was
done was a response to a great public need. The government was
called upon to act. PD 824 was the result. It is not a condition for
the validity of the Sangguniang Bayans provided for in the four
cities and thirteen municipalities that the membership be
identical with those of other cities or municipalities. There is
ample justification for such a distinction
Basis in the Constitution. Article VIII, Section 2 of the
Constitution expressly recognized the juridical entity known as
Metropolitan Manila. Such express constitutional affirmation of
its existence in the fundamental law calls for the dismissal of
these petitions, there being no legal justification for the
declaration of unconstitutionality of Presidential Decree No. 824.
Nor was it the first time that there has been acknowledgment in
law of the creation of Metropolitan Manila. (Election Code of 1978,
Presidential Decree No. 1396 creating the Ministry of Human
Settlements,
Presidential Decree No. 824, creating the
Metropolitan Manila Commission, Amendments to the
Constitution, Ordinance)
Control of the President. It is undeniable that the creation of
the Metropolitan Manila Commission is free from any
constitutional objection. There is, however, a question that may
arise in connection with the powers of the President over the
Commission. According to PD 824: "The Commission, the General
Manager and any official of the Commission shall be under the
direct supervision and control of the President. Notwithstanding
any provision in this Decree, the President shall have the power to
revoke, amend or modify any ordinance, resolution or act of the
Commission, the General and the Commissioners." It may give
rise to doubts as to its validity insofar as it confers the power of
control on the President. That control he certainly exercises under
the present Constitution over the ministries. His power over local
governments does not go that far. It extends no further than
general supervision. These doubts, however, do not suffice to
nullify such a provision. Succinctly put, that construction that
would save is to be preferred as against one that will destroy.
To show fidelity to this basic principle of construction is to lend
substance to the equally basic doctrine that the constitution enters
into and forms part of every statute. Accordingly, the presidential
power of control over acts of the Metro Manila Commission is
limited to those that may be considered national in character.
There can be no valid objection to such exercise of authority. That
is a clear recognition that some of its attributes are those of a
national character. Where, however, the acts of the Metro Manila
Commission may be considered as properly appertaining to local
government functions, the power of the President is confined to

10 | L o c a l

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(Guanzon)

general supervision. As thus construed, Section 13 clearly appears

to be free from any constitutional infirmity.
Abad Santos, dissenting. 1.

The referendum of February 27,

1975, did not satisfy the prohibition contained in Art. XI, Sec. 3 of
the 1973 Constitution. For one thing the provision speaks of "the
criteria established in the local government code." There was then
no local government code so there were no criteria. Also the grant
of power to restructure the 4 cities and 13 municipalities in the
Greater Manila area "under such terms and conditions as the
President may decide" was so broad that it was in fact not an
intelligent decision on the part of the people. I submit that a grant
of power must be definite to be valid; it must not be nebulous and
uncircumscribed so as to amount to a total abdication thereof.
Finally, the referendum did not include all of the peoples of
Bulacan and Rizal to ascertain if they were willing to give up some
of their towns to Metropolitan Manila. The referendum suffers
from the same infirmity present in the case of Paredes vs.
Executive Secretary, cited in the main opinion, where I dissented.
2.
The January 27, 1984, amendment to the Constitution
providing for representation in the Batasang Pambansa and which
allocates representatives to "districts in Metropolitan Manila"
cannot be construed to constitutionally validate P.D. No. 824 for
the simple reason that the issue before the people when the
amendment was submitted for ratification was not the creation of
the Metropolitan Manila Commission.
Presumption of constitutionality:
Alvarez v. Guingona (1996)
Facts: This concerns the validity of RA 7330 converting the
municipality of Santiago Isabela into an independent component
city to be known as the city of Santiago. The law was challenged
mainly because the act did not allegedly originate exclusively in
the House of Representatives as mandated by Section 24, Article
VI of the 1987 Consitution. Also, petitioner claims that the
Municipality of Santiago has not met the minimum average
annual income required under Section 450 of the LGC in order to
be converted into a component city. Apparently, RA 7330
originated from HB 8817 which was filed on April 18, 1993. After
the third reading, the bill was transmitted to the Senate on
January 18, 1994. Meanwhile, a counterpart bill SB 1243 was
filed on May 19, 1993. On February 23, 1994, HB 8817 was
transmitted to the senate. The committee recommended that HB
8817 be approved without amendment, taking into consideration
that the house bill was identical to the senate bill.
Issue: WON the IRAs are to be included in the computation of
the average annual income of a municipality for the purposes of its
conversion into an independent component city
Held: Yes
Ratio: Petitioners claim that Santiago could not qualify into a
component city because its average annual income for the last two
(2) consecutive years based on 1991 constant prices falls below the
required annual income of P20,000,000 for its conversion into a

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city. After deducting the IRA, ti appears that the average annual
income arrived at would only be P13,109,560.47 based on the 1991
constant prices. Petitioners asseverate that the IRAs are not
actually income but transfers and/or budgetary aid from the
national government and that they fluctuate, increase or decrease,
depending on factors like population, land and equal sharing.
Petitioners asseverations are untenable because Internal Revenue
Allotments form part of the income of Local Government Units. It
is true that for a municipality to be converted into a component
city, it must, among others, have an average annual income of at
least Twenty Million Pesos for the last two (2) consecutive years
based on 1991 constant prices. Such income must be duly certified
by the Department of Finance.
A Local Government Unit is a political subdivision of the State
which is constituted by law and possessed of substantial control
over its own affairs. Remaining to be an intra sovereign
subdivision of one sovereign nation, but not intended, however, to
be an imperium in imperio, the local government unit is
autonomous in the sense that it is given more powers, authority,
responsibilities and resources.
The practical side to development through a decentralized local
government system certainly concerns the matter of financial
resources. With its broadened powers and increased
responsibilities, a local government unit must now operate on a
much wider scale. More extensive operations, in turn, entail more
expenses. Understandably, the vesting of duty, responsibility and
accountability in every local government unit is accompanied with
a provision for reasonably adequate resources to discharge its
powers and effectively carry out its functions. Availment of such
resources is effectuated through the vesting in every local
government unit of (1) the right to create and broaden its own
source of revenue; (2) the right to be allocated a just share in
national taxes, such share being in the form of internal revenue
allotments (IRAs); and (3) the right to be given its equitable share
in the proceeds of the utilization and development of the national
wealth, if any, within its territorial boundaries.
For purposes of budget preparation, which budget should reflect
the estimates of the income of the local government unit, among
others, the IRAs and the share in the national wealth utilization
proceeds are considered items of income. This is as it should be,
since income is defined in the Local Government Code to be all
revenues and receipts collected or received forming the gross
accretions of funds of the local government unit.
The IRAs are items of income because they form part of the gross
accretion of the funds of the local government unit. The IRAs
regularly and automatically accrue to the local treasury without
need of any further action on the part of the local government
unit. 11 They thus constitute income which the local government
can invariably rely upon as the source of much needed funds.
To reiterate, IRAs are a regular, recurring item of income; nil is
there a basis, too, to classify the same as a special fund or
transfer, since IRAs have a technical definition and meaning all its
own as used in the Local Government Code that unequivocally
makes it distinct from special funds or transfers referred to when
the Code speaks of "funding support from the national
government, its instrumentalities and government-owned-orcontrolled corporations".

11 | L o c a l

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Issue: WON considering that Senate passed SB 1243, its own

version of HB 8817, RA 2770 can be sait to have originated in the
House of Representatives

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holding that petitioners have failed to overcome the presumption.

The dismissal of this petition is, therefore, inevitable.

Governmental powers/ functions:

Held: Yes
Ratio: Although a bill of local application like HB No. 8817
should, by constitutional prescription, originate exclusively in the
House of Representatives, the claim of petitioners that RA 7720
did not originate exclusively in the House of Representatives
because a bill of the same import, SB No. 1243, was passed in the
Senate, is untenable because it cannot be denied that HB No. 8817
was filed in the House of Representatives first before SB No. 1243
was filed in the Senate. Petitioners themselves cannot disavow
their own admission that HB No. 8817 was filed on April 18, 1993
while SB No. 1243 was filed on May 19, 1993. The filing of HB No.
8817 was thus precursive not only of the said Act in question but
also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated
the legislative process that culminated in the enactment of
Republic Act No. 7720. No violation of Section 24, Article VI, of the
1987 Constitution is perceptible under the circumstances
attending the instant controversy.
Furthermore, petitioners themselves acknowledge that HB No.
8817 was already approved on Third Reading and duly
transmitted to the Senate when the Senate Committee on Local
Government conducted its public hearing on HB No. 8817. HB No.
8817 was approved on the Third Reading on December 17, 1993
and transmitted to the Senate on January 28, 1994; a little less
than a month thereafter, or on February 23, 1994, the Senate
Committee on Local Government conducted public hearings on SB
No. 1243. Clearly, the Senate held in abeyance any action on SB
No. 1243 until it received HB No. 8817, already approved on the
Third Reading, from the House of Representatives. The filing in
the Senate of a substitute bill in anticipation of its receipt of the
bill from the House, does not contravene the constitutional
requirement that a bill of local application should originate in the
House of Representatives, for as long as the Senate does not act
thereupon until it receives the House bill.
Tolentino v. Secretary of Finance: Nor does the Constitution
prohibit the filing in the Senate of a substitute bill in anticipation
of its receipt of the bill from the House, so long as action by the
Senate as a body is withheld pending receipt of the House bill.
Every law, including RA No. 7720,has in its favor the presumption
of constitutionality It is a well-entrenched jurisprudential rule
that on the side of every law lies the presumption of
constitutionality. Consequently, for RA No. 7720 to be nullified, it
must be shown that there is a clear and unequivocal breach of the
Constitution, not merely a doubtful and equivocal one; in other
words, the grounds for nullity must be clear and beyond
reasonable doubt. Those who petition this court to declare a law to
be unconstitutional must clearly and fully establish the basis that
will justify such a declaration; otherwise, their petition must fail.
Taking into consideration the justification of our stand on the
immediately preceding ground raised by petitioners to challenge
the constitutionality of RA No. 7720, the Court stands on the

Municipality of San Fernando v. Firme (1991)

Facts:

Petitioner is a municipal corporation existing under and

in accordance with the laws of the Republic of the Philippines. At

about 7 am of December 16, 1965, a collision occurred involving a
passenger jeepney driven by Bernardo Balagot and owned by the
Estate of Macario Nieveras, a gravel and sand truck driven by
Jose Manandeg and owned by Tanquilino Velasquez and a dump
truck of the petitioner and driven by Alfredo Bislig. Several
passengers of the jeepney including Laureano Bania Sr. died as a
result of the injuries they sustained and 4 others suffered physical
injuries.
Private respondents instituted an action against Nieveras and
Balagot before the CFI. The defendants filed a third party
complaint against petitioner and Bislig. The complaint was then
amended to implead petitioner and Bislig. Petitioner raised as
defense lack of cause of action, non suability of the State,
prescription and negligence of the owner and driver of the jeepney.
The trial court rendered a decision ordering the petitioner and
Bislig to pay the plaintiffs. The owner and driver of the jeepney
were absolved from liability. Petitioner filed an MR which was
dismissed for having been filed out of time.
Issue:

WON the court committed grave abuse of discretion

when it deferred and failed to resolve the defense of non-suability

of the State amounting to lack of jurisdiction in a motion to
dismiss.
Held:

Yes

Ratio:

In the case at bar, the judge deferred the resolution of

the defense of non-suability of the State until trial. However, the

judge failed to resolve such defense, proceeded with the trial and
then rendered a decision against the municipality and its driver.
The judge did not commit GAD when it arbitrarily failed to resolve
the issue of non-suability of the State in the guise of the
municipality. However, the judge acted in excess of his jurisdiction
when in his decision he held the municipality liable for the quasidelict committed by its regular employee.
The doctrine of non-suability of the State is expressly provided for
in Article XVI, Section 3 of the Consti, to wit: "the State may not
be sued without its consent." Express consent may be embodied in
a general law or a special law. The standing consent of the State to
be sued in case of money claims involving liability arising from
contracts is found in Act No. 3083. A special law may be passed to
enable a person to sue the government for an alleged quasi-delict.
Consent is implied when the government enters into business
contracts, thereby descending to the level of the other contracting
party, and also when the State files a complaint, thus opening
itself to a counterclaim.
Municipal corporations are agencies of the State when they are
engaged in governmental functions and therefore should enjoy the

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sovereign immunity from suit. Nevertheless, they are subject to

suit even in the performance of such functions because their
charter provided that they can sue and be sued.
A distinction should first be made between suability and liability.
"Suability depends on the consent of the state to be sued, liability
on the applicable law and the established facts. The circumstance
that a state is suable does not necessarily mean that it is liable; on
the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that
the state has allowed itself to be sued. When the state does waive
its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable."
Anent the issue of whether or not the municipality is liable for the
torts committed by its employee, the test of liability of the
municipality depends on whether or not the driver, acting in
behalf of the municipality, is performing governmental or
proprietary functions (Torio vs. Fontanilla). According to City of
Kokomo vs Loy(Indiana SC), municipal corporations exist in a
dual capacity, and their functions are twofold. In one they exercise
the right springing from sovereignty, and while in the
performance of the duties pertaining thereto, their acts are
political and governmental. Their officers and agents in such
capacity, though elected or appointed by them, are nevertheless
public functionaries performing a public service, and as such they
are officers, agents, and servants of the state. In the other capacity
the municipalities exercise a private, proprietary or corporate
right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of
such functions act in behalf of the municipalities in their
corporate or individual capacity, and not for the state or sovereign
power."
It has already been remarked that municipal corporations are
suable because their charters grant them the competence to sue
and be sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental functions
and can be held answerable only if it can be shown that they were
acting in a proprietary capacity.
In the case at bar, the driver of the dump truck of the municipality
insists that "he was on his way to the Naguilian river to get a load
of sand and gravel for the repair of San Fernando's municipal
streets." In the absence of any evidence to the contrary, the
regularity of the performance of official duty is presumed
pursuant to Section 3(m) of Rule 131 of the Revised Rules of
Court. Hence, We rule that the driver of the dump truck was
performing duties or tasks pertaining to his office.We already
stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte,
the District Engineer, and the Provincial Treasurer that "the
construction or maintenance of roads in which the truck and the
driver worked at the time of the accident are admittedly
governmental activities."
After a careful examination of existing laws and jurisprudence, We
arrive at the conclusion that the municipality cannot be held
liable for the torts committed by its regular employee, who was
then engaged in the discharge of governmental functions. Hence,
the death of the passenger tragic and deplorable though it may be
imposed on the municipality no duty to pay monetary
compensation.

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Proprietary powers/ functions:

City of Manila v. Intermediate Appellate Court (1989)
Facts:

Vivencio Sto. Domingo, Sr. died and was buried in North

Cemetery which lot was leased by the city to Irene Sto. Domingo
for the period from June 6, 1971 to June 6, 2021. The wife paid the
full amount of the lease. Apart, however from the receipt, no other
document embodied such lease over the lot. Believing that the
lease was only for five years, the city certified the lot as ready for
exhumation.
On the basis of the certification, Joseph Helmuth authorized the
exhumation and removal of the remains of Vicencio. His bones
were placed in a bag and kept in the bodega of the cemetery. The
lot was also leased to another lessee. During the next all souls day,
the private respondents were shocked to find out that Vicencios
remains were removed. The cemetery told Irene to look for the
bones of the husband in the bodega.
Aggrieved, the widow and the children brought an action for
damages against the City of Manila; Evangeline Suva of the City
Health Office; Sergio Mallari, officer-in-charge of the North
Cemetery; and Joseph Helmuth, the latter's predecessor as officerin-charge of the said burial grounds owned and operated by the
City Government of Manila. The court ordered defendants to give
plaintiffs the right to make use of another lot. The CA affirmed
and included the award of damages in favor of the private
respondents.
Issue:

WON the operations and functions of a public cemetery

are a governmental, or a corporate or proprietary function of the

City of Manila.
Held:

Proprietary

Ratio:

Petitioners alleged in their petition that the North

Cemetery is exclusively devoted for public use or purpose as stated

in Sec. 316 of the Compilation of the Ordinances of the City of
Manila. They conclude that since the City is a political subdivision
in the performance of its governmental function, it is immune
from tort liability which may be caused by its public officers and
subordinate employees. Private respondents maintain that the
City of Manila entered into a contract of lease which involve the
exercise of proprietary functions with Irene Sto. Domingo. The city
and its officers therefore can be sued for any-violation of the
contract of lease.
The City of Manila is a political body corporate and as such
endowed with the faculties of municipal corporations to be
exercised by and through its city government in conformity with
law, and in its proper corporate name. It may sue and be sued, and
contract and be contracted with. Its powers are twofold in
character-public, governmental or political on the one hand, and
corporate, private and proprietary on the other. Governmental
powers are those exercised in administering the powers of the
state and promoting the public welfare and they include the
legislative, judicial, public and political. Municipal powers on the
one hand are exercised for the special benefit and advantage of the
community and include those which are ministerial, private and

13 | L o c a l

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(Guanzon)

corporate. In connection with the powers of a municipal

corporation, it may acquire property in its public or governmental
capacity, and private or proprietary capacity. The New Civil Code
divides such properties into property for public use and
patrimonial properties (Article 423), and further enumerates the
properties for public use as provincial roads, city streets,
municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by said
provisions, cities or municipalities, all other property is
patrimonial without prejudice to the provisions of special laws.
Thus in Torio v. Fontanilla, the Court declared that with respect
to proprietary functions the settled rule is that a municipal
corporation can be held liable to third persons ex contractu.
Under the foregoing considerations and in the absence of a special
law, the North Cemetery is a patrimonial property of the City of
Manila. The administration and government of the cemetery are
under the City Health Officer, the order and police of the cemetery,
the opening of graves, niches, or tombs, the exhuming of remains,
and the purification of the same are under the charge and
responsibility of the superintendent of the cemetery. With the acts
of dominion, there is no doubt that the North Cemetery is within
the class of property which the City of Manila owns in its
proprietary or private character. Furthermore, there is no dispute
that the burial lot was leased in favor of the private respondents.
Hence, obligations arising from contracts have the force of law
between the contracting parties. Thus a lease contract executed by
the lessor and lessee remains as the law between them. Therefore,
a breach of contractual provision entitles the other party to
damages even if no penalty for such breach is prescribed in the
contract.
Issue: WON the city is liable for damages
Held: Yes
Ratio: All things considered, even as the Court commiserates
with plaintiffs for the unfortunate happening complained of and
untimely desecration of the resting place and remains of their
deceased dearly beloved, it finds the reliefs prayed for by them
lacking in legal and factual basis. Under the aforementioned facts
and circumstances, the most that plaintiffs ran ask for is the
replacement of subject lot with another lot of equal size and
similar location in the North Cemetery which substitute lot
plaintiffs can make use of without paying any rental to the city
government for a period of forty-three (43) years, four (4) months
and eleven (11) days corresponding to the unexpired portion of the
term of the lease sued upon as of January 25, 1978 when the
remains of the late Vivencio Sto. Domingo, Sr. were prematurely
removed from the disputed lot; and to require the defendants to
look in earnest for the bones and skull of the late Vivencio Sto.
Domingo Sr. and to bury the same in the substitute lot adjudged
in favor of plaintiffs hereunder.
As regards the issue of the validity of the contract of lease of grave
lot No. 159, Block No. 195 of the North Cemetery for 50 years
beginning from June 6, 1971 to June 6, 2021 as clearly stated in
the receipt duly signed by the deputy treasurer of the City of
Manila and sealed by the city government, there is nothing in the

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record that justifies the reversal of the conclusion of both the trial
court and the Intermediate Appellate Court to the effect that the
receipt is in itself a contract of lease. (
Under the doctrine of respondent superior, (Torio v. Fontanilla),
petitioner City of Manila is liable for the tortious act committed by
its agents who failed to verify and check the duration of the
contract of lease. The contention of the petitioner-city that the
lease is covered by Administrative Order No. 5, series of 1975
dated March 6, 1975 of the City of Manila for five (5) years only
beginning from June 6, 1971 is not meritorious for the said
administrative order covers new leases. When subject lot was
certified on January 25, 1978 as ready for exhumation, the lease
contract for fifty (50) years was still in full force and effect.

14 | L o c a l

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SYLLABUS

PART

2:

(Guanzon)

DECENTRALIZATION;

S . Y.
LOCAL

AUTONOMY; POWERS OF MUNICIPAL CORPORATIONS

5. Local Government Units vis a vis National Government:
Power of general supervision:
Drilon v. Lim (1994)
Facts: The principal issue in this case is the constitutionality of
3

Section 187 of the Local Government Code . The Secretary of

Justice (on appeal to him of four oil companies and a taxpayer)
declared Ordinance No. 7794 (Manila Revenue Code) null and void
for non-compliance with the procedure in the enactment of tax
ordinances and for containing certain provisions contrary to law
and public policy.
The RTC revoked the Secretarys resolution and sustained the
ordinance. It declared Sec 187 of the LGC as unconstitutional
because it vests on the Secretary the power of control over LGUs
in violation of the policy of local autonomy mandated in the
Constitution. The Secretary argues that the annulled Section 187
is constitutional and that the procedural requirements for the
enactment of tax ordinances as specified in the Local Government
Code had indeed not been observed. (Petition originally dismissed
by the Court due to failure to submit certified true copy of the
decision, but reinstated it anyway.)
Issue:

WON the lower court has jurisdiction to consider the

constitutionality of Sec 187 of the LGC

Held:

Yes

Ratio:

BP 129 vests in the regional trial courts jurisdiction over

all civil cases in which the subject of the litigation is incapable of

pecuniary estimation. Moreover, Article X, Section 5(2), of the
Constitution vests in the Supreme Court appellate jurisdiction
over final judgments and orders of lower courts in all cases in
which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question.

Procedure For Approval And Effectivity Of Tax Ordinances

And Revenue Measures; Mandatory Public Hearings. The
procedure for approval of local tax ordinances and revenue
measures shall be in accordance with the provisions of this
Code: Provided, That public hearings shall be conducted for
the purpose prior to the enactment thereof; Provided,
further, That any question on the constitutionality or legality
of tax ordinances or revenue measures may be raised on
appeal within thirty (30) days from the effectivity thereof to
the Secretary of Justice who shall render a decision within
sixty (60) days from the date of receipt of the appeal:
Provided, however, That such appeal shall not have the
effect of suspending the effectivity of the ordinance and the
accrual and payment of the tax, fee, or charge levied
therein: Provided, finally, That within thirty (30) days after
receipt of the decision or the lapse of the sixty-day period
without the Secretary of Justice acting upon the appeal, the
aggrieved party may file appropriate proceedings with a
court of competent jurisdiction.

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In the exercise of this jurisdiction, lower courts are advised to act

with the utmost circumspection, bearing in mind the consequences
of a declaration of unconstitutionality upon the stability of laws,
no less than on the doctrine of separation of powers. It is also
emphasized that every court, including this Court, is charged with
the duty of a purposeful hesitation before declaring a law
unconstitutional, on the theory that the measure was first
carefully studied by the executive and the legislative departments
and determined by them to be in accordance with the fundamental
law before it was finally approved. To doubt is to sustain. The
presumption of constitutionality can be overcome only by the
clearest showing that there was indeed an infraction of the
Constitution.
Issue:

WON Section 187 of the LGC is unconstitutional

Held:

Yes

Ratio:

Section 187 authorizes the Secretary of Justice to review

only the constitutionality or legality of the tax ordinance and, if

warranted, to revoke it on either or both of these grounds. When
he alters or modifies or sets aside a tax ordinance, he is not also
permitted to substitute his own judgment for the judgment of the
local government that enacted the measure. Secretary Drilon did
set aside the Manila Revenue Code, but he did not replace it with
his own version of what the Code should be.. What he found only
was that it was illegal. All he did in reviewing the said measure
was determine if the petitioners were performing their functions
in accordance with law, that is, with the prescribed procedure for
the enactment of tax ordinances and the grant of powers to the
city government under the Local Government Code. As we see it,
that was an act not of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If
they are not followed, he may, in his discretion, order the act
undone or re-done by his subordinate or he may even decide to do
it himself. Supervision does not cover such authority. The
supervisor or superintendent merely sees to it that the rules are
followed, but he himself does not lay down such rules, nor does he
have the discretion to modify or replace them.
Significantly, a rule similar to Section 187 appeared in the Local
Autonomy Act. That section allowed the Secretary of Finance to
suspend the effectivity of a tax ordinance if, in his opinion, the tax
or fee levied was unjust, excessive, oppressive or confiscatory.
Determination of these flaws would involve the exercise of
judgment or discretion and not merely an examination of whether
or not the requirements or limitations of the law had been
observed; hence, it would smack of control rather than mere
supervision. That power was never questioned before this Court
but, at any rate, the Secretary of Justice is not given the same
latitude under Section 187. All he is permitted to do is ascertain
the constitutionality or legality of the tax measure, without the
right to declare that, in his opinion, it is unjust, excessive,
oppressive or confiscatory. He has no discretion on this matter. In
fact, Secretary Drilon set aside the Manila Revenue Code only on
two grounds, to with, the inclusion therein of certain ultra vires
provisions and non-compliance with the prescribed procedure in

15 | L o c a l

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(Guanzon)

its enactment. These grounds affected the legality, not the wisdom
or reasonableness, of the tax measure.
The issue of non-compliance with the prescribed procedure in the
enactment of the Manila Revenue Code is another matter.
(allegations: No written notices of public hearing, no publication of
the ordinance, no minutes of public hearing, no posting, no
translation into Tagalog)
Judge Palattao however found that all the procedural
requirements had been observed in the enactment of the Manila
Revenue Code and that the City of Manila had not been able to
prove such compliance before the Secretary only because he had
given it only five days within which to gather and present to him
all the evidence (consisting of 25 exhibits) later submitted to the
trial court. We agree with the trial court that the procedural
requirements have indeed been observed. Notices of the public
hearings were sent to interested parties as evidenced. The
minutes of the hearings are found in Exhibits M, M-1, M-2, and
M-3. Exhibits B and C show that the proposed ordinances were
published in the Balita and the Manila Standard on April 21 and
25, 1993, respectively, and the approved ordinance was published
in the July 3, 4, 5, 1993 issues of the Manila Standard and in the
July 6, 1993 issue of Balita. The only exceptions are the posting of
the ordinance as approved but this omission does not affect its
validity, considering that its publication in three successive issues
of a newspaper of general circulation will satisfy due process. It
has also not been shown that the text of the ordinance has been
translated and disseminated, but this requirement applies to the
approval of local development plans and public investment
programs of the local government unit and not to tax ordinances.
Solicitor General v. Metopolitan Manila Authority (1991)
Facts:

In Metropolitan Traffic Command, West Traffic District

vs. Hon. Arsenio M. Gonong, the Court held that the confiscation
of the license plates of motor vehicles for traffic violations was not
among the sanctions that could be imposed by the Metro Manila
Commission under PD 1605 and was permitted only under the
conditions laid dowm by LOI 43 in the case of stalled vehicles
obstructing the public streets. It was there also observed that even
the confiscation of driver's licenses for traffic violations was not
directly prescribed by the decree nor was it allowed by the decree
to be imposed by the Commission. However, petitioners alleged
that Traffic Enforces continued with the confiscation of drivers
licenses and removal of license plates. Dir General Cesar P.
Nazareno of the PNP assured the Court that his office had never
authorized the removal of the license plates of illegally parked
vehicles.
Later, the Metropolitan Manila Authority issued Ordinance No.
11, authorizing itself "to detach the license plate/tow and impound
attended/ unattended/ abandoned motor vehicles illegally parked
or obstructing the flow of traffic in Metro Manila." The Court
issued a resolution requiring the Metropolitan Manila Authority
and the SolGen to submit separate comments in light of the
contradiction between the Ordinance and the SC ruling.
The MMA defended the ordinance on the ground that it was
adopted pursuant to the power conferred upon it by EO 32
(formulation of policies, promulgation of resolutions). The Sol Gen
expressed the view that the ordinance was null and void because it

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represented an invalid exercise of a delegated legislative power.

The flaw in the measure was that it violated existing law,
specifically PD 1605, which does not permit, and so impliedly
prohibits, the removal of license plates and the confiscation of
driver's licenses for traffic violations in Metropolitan Manila. He
made no mention, however, of the alleged impropriety of
examining the said ordinance in the absence of a formal challenge
to its validity.
Issue:

WON Ordinance 11 is justified on the basis of the

General Welfare Clause embodied in the LGC

Held:

No

Ratio:

The Court holds that there is a valid delegation of

legislative power to promulgate such measures, it appearing that

the requisites of such delegation are present. These requisites are.
1) the completeness of the statute making the delegation; and 2)
the presence of a sufficient standard.
The measures in question are enactments of local governments
acting only as agents of the national legislature. Necessarily, the
acts of these agents must reflect and conform to the will of their
principal. To test the validity of such acts in the specific case now
before us, we apply the particular requisites of a valid ordinance
as laid down by the accepted principles governing municipal
corporations. According to Elliot, a municipal ordinance, to be
valid: 1) must not contravene the Constitution or any statute; 2)
must not be unfair or oppressive; 3) must not be partial or
discriminatory; 4) must not prohibit but may regulate trade; 5)
must not be unreasonable; and 6) must be general and consistent
with public policy.
A careful study of the Gonong decision will show that the
measures under consideration do not pass the first criterion
because they do not conform to existing law. The pertinent law is
PD 1605. PD 1605 does not allow either the removal of license
plates or the confiscation of driver's licenses for traffic violations
committed in Metropolitan Manila. There is nothing in the
following provisions of the decree authorizing the Metropolitan
Manila Commission to impose such sanctions. In fact, the
provisions prohibit the imposition of such sanctions in
Metropolitan Manila. The Commission was allowed to "impose
fines and otherwise discipline" traffic violators only "in such
amounts and under such penalties as are herein prescribed," that
is, by the decree itself. Nowhere is the removal of license plates
directly imposed by the decree or at least allowed by it to be
imposed by the Commission. Notably, Section 5 thereof expressly
provides that "in case of traffic violations, the driver's license shall
not be confiscated." These restrictions are applicable to the
Metropolitan Manila Authority and all other local political
subdivisions comprising Metropolitan Manila, including the
Municipality of Mandaluyong.
`The requirement that the municipal enactment must not violate
existing law explains itself. Local political subdivisions are able to
legislate only by virtue of a valid delegation of legislative power
from the national legislature. They are mere agents vested with
what is called the power of subordinate legislation. As delegates of
the Congress, the local government unit cannot contravene but

16 | L o c a l

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(Guanzon)

must obey at all times the will of their principal. In the case before
us, the enactments in question, which are merely local in origin,
cannot prevail against the decree, which has the force and effect of
a statute.
To sustain the ordinance would be to open the floodgates to other
ordinances amending and so violating national laws in the guise of
implementing them. Thus, ordinances could be passed imposing
additional requirements for the issuance of marriage licenses, to
prevent bigamy; the registration of vehicles, to minimize
carnapping; the execution of contracts, to forestall fraud; the
validation of parts, to deter imposture; the exercise of freedom of
speech, to reduce disorder; and so on. The list is endless, but the
means, even if the end be valid, would be ultra vires.
The measures in question do not merely add to the requirement of
PD 1605 but, worse, impose sanctions the decree does not allow
and in fact actually prohibits. In so doing, the ordinances
disregard and violate and in effect partially repeal the law.
We here emphasize the ruling in the Gonong case that PD 1605
applies only to the Metropolitan Manila area. It is an exception to
the general authority conferred by R.A. No. 413 on the
Commissioner of Land Transportation to punish violations of
traffic rules elsewhere in the country with the sanction therein
prescribed, including those here questioned.
The Court agrees that the challenged ordinances were enacted
with the best of motives and shares the concern of the rest of the
public for the effective reduction of traffic problems in
Metropolitan Manila through the imposition and enforcement of
more deterrent penalties upon traffic violators. At the same time,
it must also reiterate the public misgivings over the abuses that
may attend the enforcement of such sanction in eluding the illicit
practices described in detail in the Gonong decision. At any rate,
the fact is that there is no statutory authority for and indeed
there is a statutory prohibition against the imposition of such
penalties in the Metropolitan Manila area. Hence, regardless of
their merits, they cannot be impose by the challenged enactments
by virtue only of the delegated legislative powers.
It is for Congress to determine, in the exercise of its own
discretion, whether or not to impose such sanctions, either directly
through a statute or by simply delegating authority to this effect
to the local governments in Metropolitan Manila. Without such
action, PD 1605 remains effective and continues prohibit the
confiscation of license plates of motor vehicles (except under the
conditions prescribed in LOI 43) and of driver licenses as well for
traffic violations in Metropolitan Manila.
Ganzon v. Court of Appeals (1991)
Facts:

The petitions of Mayor Ganzon originated from a series

of administrative complaints, ten in number, filed against him by

various city officials sometime in 1988, on various charges, among
them, abuse of authority, oppression, grave misconduct,
disgraceful and immoral conduct, intimidation, culpable violation
of the Constitution, and arbitrary detention. Finding probable
grounds and reasons, the respondent (Sec of Local Government)
issued a preventive suspension order for a period of sixty days. In
the other case, respondent ordered petitioner's second preventive
suspension for another sixty (60) days. The petitioner was able to

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08-09:

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obtain a restraining order and a writ of preliminary injunction in

the RTC. The second preventive suspension was not enforced.
Amidst the two successive suspensions, Mayor Ganzon instituted
an action for prohibition against the respondent in the RTC.
Presently, he instituted an action for prohibition, in the
respondent CA. Meanwhile, the respondent issued another order,
preventively suspending Mayor Ganzon for another sixty days, the
third time in twenty months, and designating meantime ViceMayor Mansueto Malabor as acting mayor. Undaunted, Mayor
Ganzon commenced before the CA, a petition for prohibition. The
CA rendered judgment dismissing the cases.
Issue:

WON the Secretary of Local Government, as the

President's alter ego, can suspend and or remove local officials.

Issue:

Yes

Ratio:

It

is

the

petitioners'

argument

that

the

1987

Constitution no longer allows the President, as the 1935 and 1973

Constitutions did, to exercise the power of suspension and/or
removal over local officials. According to both petitioners, the
Constitution is meant, first, to strengthen self-rule by local
government units and second, by deleting the phrase "as may be
provided by law," to strip the President of the power of control over
local governments. It is a view, so they contend, that finds support
in the debates of the Constitutional Commission. The issue
consists of three questions: (1) Did the 1987 Constitution, in
deleting the phrase "as may be provided by law" intend to divest
the President of the power to investigate, suspend, discipline, and
or remove local officials? (2) Has the Constitution repealed
Sections 62 and 63 of the Local Government Code? (3) What is the
significance of the change in the constitutional language?
It is the considered opinion of the Court that notwithstanding the
change in the constitutional language, the charter did not intend
to divest the legislature of its right - or the President of her
prerogative as conferred by existing legislation to provide
administrative sanctions against local officials. It is our opinion
that the omission (of "as may be provided by law") signifies
nothing more than to underscore local governments' autonomy
from congress and to break Congress' "control" over local
government affairs. The Constitution did not, however, intend, for
the sake of local autonomy, to deprive the legislature of all
authority over municipal corporations, in particular, concerning
discipline.
Autonomy does not, after all, contemplate making mini-states out
of local government units, as in the federal governments of the
USA. Autonomy, in the constitutional sense, is subject to the
guiding star, though not control, of the legislature, albeit the
legislative responsibility under the Constitution - and as the
"supervision clause" itself suggest - is to wean local government
units from over dependence on the central government.
It is noteworthy that under the Charter, "local autonomy" is not
instantly self-executing, but subject to, among other things, the
passage of a local government code, a local tax law, income
distribution legislation, and a national representation law, and
measures designed to realize autonomy at the local level. It is
also noteworthy that in spite of autonomy, the Constitution places

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(Guanzon)

the local government under the general supervision of the

Executive. It is noteworthy finally, that the Charter allows
Congress to include in the local government code provisions for
removal of local officials, which suggest that Congress may
exercise removal powers, and as the existing Local Government
Code has done, delegate its exercise to the President.
The deletion of "as may be provided by law" was meant to stress,
sub silencio, the objective of the framers to strengthen local
autonomy by severing congressional control of its affairs, as
observed by the Court of Appeals, like the power of local
legislation. The Constitution did nothing more, however, and
insofar as existing legislation authorizes the President (through
the Secretary of Local Government) to proceed against local
officials administratively, the Constitution contains no prohibition.
The petitioners are under the impression that the Constitution
has left the President mere supervisory powers, which supposedly
excludes the power of investigation, and denied her control, which
allegedly embraces disciplinary authority. It is a mistaken
impression because legally, "supervision" is not incompatible with
disciplinary authority
The Court does not believe that the petitioners can rightfully point
to the debates of the Constitutional Commission to defeat the
President's powers. The Court believes that the deliberations are
by themselves inconclusive, because although Commissioner Jose
Nolledo would exclude the power of removal from the President,
Commissioner Blas Ople would not.
The Court is consequently reluctant to say that the new
Constitution has repealed the Local Government Code, Batas Blg.
337. As we said, "supervision" and "removal" are not incompatible
terms and one may stand with the other notwithstanding the
stronger expression of local autonomy under the new Charter. We
have indeed held that in spite of the approval of the Charter,
Batas Blg. 337 is still in force and effect. As the Constitution itself
declares, local autonomy means "a more responsive and
accountable local government structure instituted through a
system of decentralization." The Constitution, as we observed,
does nothing more than to break up the monopoly of the national
government over the affairs of local governments and as put by
political adherents, to "liberate the local governments from the
imperialism of Manila." Autonomy, however, is not meant to end
the relation of partnership and interdependence between the
central administration and local government units, or otherwise,
to usher in a regime of federalism. The Charter has not taken such
a radical step. Local governments, under the Constitution, are
subject to regulation, however limited, and for no other purpose
than precisely, albeit paradoxically, to enhance self-government.
As we observed in one case, decentralization means devolution of
national administration - but not power - to the local levels. Thus:
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of
administration when the central government delegates
administrative powers to political subdivisions in order to broaden
the base of government power and in the process to make local
governments "more responsive and accountable," and "ensure
their fullest development as self-reliant communities and make
them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the

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central government of the burden of managing local affairs and

enables it to concentrate on national concerns. The President
exercises "general supervision" over them, but only to "ensure that
local affairs are administered according to law." He has no control
over their acts in the sense that he can substitute their judgments
with his own.
Decentralization of power, on the other hand, involves an
abdication of political power in the favor of local governments
units declared to be autonomous, In that case, the autonomous
government is free to chart its own destiny and shape its future
with minimum intervention from central authorities. According to
a constitutional author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous government
becomes accountable not to the central authorities but to its
contituency.
Issue:

WON the several suspensions imposed upon Mayon

Ganzon are proper

Held:

No

Ratio:

The successive sixty-day suspensions imposed on Mayor

Ganzon is albeit another matter. What bothers the Court, and

what indeed looms very large, is the fact that since the Mayor is
facing ten administrative charges, the Mayor is in fact facing the
possibility of 600 days of suspension, in the event that all ten
cases yield prima facie findings. The Court is not of course
tolerating misfeasance in public office (assuming that Ganzon is
guilty of misfeasance) but it is certainly another question to make
him serve 600 days of suspension, which is effectively, to suspend
him out of office.
The plain truth is that this Court has been ill at ease with
suspensions, for the above reasons, and so also, because it is out
of the ordinary to have a vacancy in local government. The sole
objective of a suspension, as we have held, is simply "to prevent
the accused from hampering the normal cause of the investigation
with his influence and authority over possible witnesses" or to
keep him off "the records and other evidence." It is a means, and
no more, to assist prosecutors in firming up a case, if any, against
an erring local official. Under the Local Government Code, it can
not exceed sixty days, which is to say that it need not be exactly
sixty days long if a shorter period is otherwise sufficient, and
which is also to say that it ought to be lifted if prosecutors have
achieved their purpose in a shorter span.
Suspension finally is temporary, and as the Local Government
Code provides, it may be imposed for no more than sixty days. As
we held, a longer suspension is unjust and unreasonable, and
nothing less than tyranny. We reiterate that we are not precluding
the President, through the Secretary of Interior from exercising a
legal power, yet we are of the opinion that the Secretary of Interior
is exercising that power oppressively, and needless to say, with a
grave abuse of discretion.
Ganzon Supplement:
Local autonomy, under the Constitution, involves a mere
decentralization of administration, not of power, in which local

18 | L o c a l

Government

(Guanzon)

officials remain accountable to the central government in the

manner the law may provide;
The new Constitution does not prescribe federalism;
The change in constitutional language (with respect to the
supervision clause) was meant but to deny legislative control over
local governments; it did not exempt the latter from legislative
regulations provided regulation is consistent with the
fundamental premise of autonomy;
Since local governments remain accountable to the national
authority, the latter may, by law, and in the manner set forth
therein, impose disciplinary action against local officials;
"Supervision" and "investigation" are not inconsistent terms;
"investigation" does not signify "control" (which the President does
not have);
The petitioner, Mayor Rodolfo Ganzon, may serve the suspension
so far ordered, but may no longer be suspended for the offenses he
was charged originally; provided:
that delays in the investigation of those charges "due to his fault,
neglect or request, (the time of the delay) shall not be counted in
computing the time of suspension." [Supra, sec. 63(3)]
that if during, or after the expiration of, his preventive
suspension, the petitioner commits another or other crimes and
abuses for which proper charges are fled against him by the
aggrieved party or parties, his previous suspension shall not be a
bar to his being preventively suspended again, if warranted under
subpar. (2), Section 63 of the Local Government Code.
MCIAA v. Marcos (1996)
Facts:

Petitioner was created by virtue of RA6958, mandated to

"principally undertake the economical, efficient and effective

control, management and supervision of the Mactan International
Airport in the Province of Cebu and the Lahug Airport in Cebu
City. Under Section 1: The authority shall be exempt from realty
taxes imposed by the National Government or any of its political
subdivisions, agencies and instrumentalities.
However, the Officer of the Treasurer of Cebu City demanded
payment for realty taxes on parcels of land belonging to petitioner.
Petitioner objected invoking its tax exemption. It also asserted
that it is an instrumentality of the government performing
governmental functions, citing section 133 of the LGC which puts
limitations on the taxing powers of LGUs. The city refused
insisting that petitioner is a GOCC performing proprietary
functions whose tax exemption was withdrawn by Sections 193
and 234 of the LGC.
Petitioner filed a declaratory relief before the RTC. The trial court
dismissed the petitioner ruling that the LGC withdrew the tax
exemption granted the GOCCs.
Issue:

WON the City of Cebu has the power to impose taxes on

petitioner
Held:
Ratio:

Yes
As a general rule, the power to tax is an incident of

sovereignty and is unlimited in its range, acknowledging in its

very nature no limits, so that security against its abuse is to be

S . Y.

08-09:

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found only in the responsibility of the legislature which imposes

the tax on the constituency who are to pay it. Since taxes are what
we pay for civilized society, or are the lifeblood of the nation, the
law frowns against exemptions from taxation and statutes
granting tax exemptions are thus construed strictissimi juris
against the taxpayers and liberally in favor of the taxing authority.
A claim of exemption from tax payment must be clearly shown and
based on language in the law too plain to be mistaken.
There can be no question that under Section 14 RA 6958 the
petitioner is exempt from the payment of realty taxes imposed by
the National Government or any of its political subdivisions,
agencies, and instrumentalities. Nevertheless, since taxation is
the rule and exemption is the exception, the exemption may thus
be withdrawn at the pleasure of the taxing authority.
The LGC, enacted pursuant to Section 3, Article X of the
constitution provides for the exercise by LGUs of their power to
tax, the scope thereof or its limitations, and the exemption from
taxation. Section 133 of the LGC prescribes the common
limitations on the taxing powers of LGUs: (o) Taxes, fees or
charges of any kind on the national government, its agencies and
instrumentalities and LGUs. Among the "taxes" enumerated in
the LGC is real property tax. Section 234 of LGC provides for the
exemptions from payment of GOCCs, except as provided therein.
On the other hand, the LGC authorizes LGUs to grant tax
exemption privileges. Reading together Section 133, 232 and 234
of the LGC, we conclude that as a general rule, as laid down in
Secs 133 the taxing powers of LGUs cannot extend to the levy of
inter alia, "taxes, fees, and charges of any kind of the National
Government, its agencies and instrumentalties, and LGUs";
however, pursuant to Sec 232, provinces, cities, 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 used thereof has been granted to a taxable person."
As to tax exemptions or incentives granted to or presently enjoyed
by natural or juridical persons, including government-owned and
controlled corporations, Section 193 of the LGC prescribes the
general rule, viz., they are withdrawn upon the effectivity of the
LGC, except upon the effectivity of the LGC, except those granted
to local water districts, cooperatives duly registered under R.A.
No. 6938, non stock and non-profit hospitals and educational
institutions, and unless otherwise provided in the LGC. The latter
proviso could refer to Section 234, which enumerates the
properties exempt from real property tax. But the last paragraph
of Section 234 further qualifies the retention of the exemption in
so far as the real property taxes are concerned by limiting the
retention only to those enumerated there-in; all others not
included in the enumeration lost the privilege upon the effectivity
of the LGC. Moreover, even as the real property is owned by the
Republic of the Philippines, or any of its political subdivisions
covered by item (a) of the first paragraph of Section 234, the
exemption is withdrawn if the beneficial use of such property has
been granted to taxable person for consideration or otherwise.
Since the last paragraph of Section 234 unequivocally withdrew,
upon the effectivity of the LGC, exemptions from real property
taxes granted to natural or juridical persons, including GOCCs,
except as provided in the said section, and the petitioner is,

19 | L o c a l

Government

(Guanzon)

undoubtedly, a government-owned corporation, it necessarily

follows that its exemption from such tax granted it in Section 14 of
its charter, R.A. No. 6958, has been withdrawn. Any claim to the
contrary can only be justified if the petitioner can seek refuge
under any of the exceptions provided in Section 234, but not under
Section 133, as it now asserts, since, as shown above, the said
section is qualified by Section 232 and 234. In short, the petitioner
can no longer invoke the general rule in Section 133.
It must show that the parcels of land in question, which are real
property, are any one of those enumerated in Section 234, either
by virtue of ownership, character, or use of the property. Most
likely, it could only be the first, but not under any explicit
provision of the said section, for one exists. In light of the
petitioner's theory that it is an "instrumentality of the
Government", it could only be within be first item of the first
paragraph of the section by expanding the scope of the terms
Republic of the Philippines" to embrace ."instrumentalities" and
"agencies."
This view does not persuade us. In the first place, the petitioner's
claim that it is an instrumentality of the Government is based on
Section
133(o),
which
expressly
mentions
the
word
"instrumentalities"; and in the second place it fails to consider the
fact that the legislature used the phrase "National Government,
its agencies and instrumentalities" "in Section 133(o),but only the
phrase "Republic of the Philippines or any of its political
subdivision "in Section 234(a).
The terms "Republic of the Philippines" and "National
Government" are not interchangeable. The former is boarder and
synonymous with "Government of the Republic of the Philippines"
which the Administrative Code of the 1987 defines as the
"corporate governmental entity though which the functions of the
government are exercised through at the Philippines, including,
saves as the contrary appears from the context, the various arms
through which political authority is made effective in the
Philippines, whether pertaining to the autonomous reason, the
provincial, city, municipal or barangay subdivision or other forms
of local government." These autonomous regions, provincial, city,
municipal or barangay subdivisions" are the political subdivision.
On the other hand, "National Government" refers "to the entire
machinery of the central government, as distinguished from the
different forms of local Governments." The National Government
then is composed of the three great departments the executive, the
legislative and the judicial. An "agency" of the Government refers
to "any of the various units of the Government, including a
department, bureau, office instrumentality, or government-owned
or controlled corporation, or a local government or a distinct unit
therein;" while an "instrumentality" refers to "any agency of the
National Government, not integrated within the department
framework, vested with special functions or jurisdiction by law,
endowed with some if not all corporate powers, administering
special funds, and enjoying operational autonomy; usually through
a charter. This term includes regulatory agencies, chartered
institutions and government-owned and controlled corporations".
If Section 234(a) intended to extend the exception therein to the
withdrawal of the exemption from payment of real property taxes
under the last sentence of the said section to the agencies and
instrumentalities of the National Government mentioned in

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Section 133(o), then it should have restated the wording of the

latter. Yet, it did not Moreover, that Congress did not wish to
expand the scope of the exemption in Section 234(a) to include real
property owned by other instrumentalities or agencies of the
government including government-owned and controlled
corporations is further borne out by the fact that the source of this
exemption is Section 40(a) of P.D. No. 646, otherwise known as the
Real Property Tax Code.
Note that as a reproduced in Section 234(a), the phrase "and any
government-owned or controlled corporation so exempt by its
charter" was excluded. The justification for this restricted
exemption in Section 234(a) seems obvious: to limit further tax
exemption privileges, specially in light of the general provision on
withdrawal of exemption from payment of real property taxes in
the last paragraph of property taxes in the last paragraph of
Section 234. These policy considerations are consistent with the
State policy to ensure autonomy to local governments 33 and the
objective of the LGC that they enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as
self-reliant communities and make them effective partners in the
attainment of national goals. 34 The power to tax is the most
effective instrument to raise needed revenues to finance and
support myriad activities of local government units for the
delivery of basic services essential to the promotion of the general
welfare and the enhancement of peace, progress, and prosperity of
the people. It may also be relevant to recall that the original
reasons for the withdrawal of tax exemption privileges granted to
government-owned and controlled corporations and all other units
of government were that such privilege resulted in serious tax
base erosion and distortions in the tax treatment of similarly
situated enterprises, and there was a need for this entities to
share in the requirements of the development, fiscal or otherwise,
by paying the taxes and other charges due from them.
The crucial issues then to be addressed are: (a) whether the
parcels of land in question belong to the Republic of the
Philippines whose beneficial use has been granted to the
petitioner, and (b) whether the petitioner is a "taxable person". It
may be reasonable to assume that the term "lands" refer to "lands"
in Cebu City then administered by the Lahug Air Port and
includes the parcels of land the respondent City of Cebu seeks to
levy on for real property taxes. This section involves a "transfer" of
the "lands" among other things, to the petitioner 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 petitioner's authorized capital stock consists of
"the value of such real estate owned and/or administered by the
airports." Hence, the petitioner is now the owner of the land in
question and the exception in Sec 234(c) of the LGC is
inapplicable. Petitioner cannot claim that it was never a "taxable
person" under its Charter. It was only exempted from the payment
of real property taxes. The grant of the privilege only in respect of
this tax is conclusive proof of the legislative intent to make it a
taxable person subject to all taxes, except real property tax.
Finally, even if the petitioner was originally not a taxable person
for purposes of real property tax, in light of the forgoing
disquisitions, it had already become even if it be conceded to be an

20 | L o c a l

Government

(Guanzon)

"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.
Accordingly, the position taken by the petitioner is untenable.
Reliance on Basco vs. Pagcor is unavailing since it was decided
before the effectivity of the LGC. Besides, nothing can prevent
Congress from decreeing that even instrumentalities or agencies
of the government performing governmental functions may be
subject to tax. Where it is done precisely to fulfill a constitutional
mandate and national policy, no one can doubt its wisdom.

Decentralization, local autonomy:

Limbona v. Mangelin (1989)
Facts:

Sultan Alimbusar Limbona was appointed as a member

of the Sangguniang Pampook, Regional Autonomous Government,

Region XII, representing Lanao del Sur. He was then elected
speaker of the regional legislative assembly of central Mindanao,
composed of 18 members. Later, Congressman Datu Guimid
Matalam, Chairman of the Committee on Muslim Affairs of the
House of Representatives, invited Mr. Xavier Razul, Pampook
Speaker of Region XI, Zamboanga City and the petitioner in his
capacity as Speaker of the Assembly, Region XII, in a conference.
Petitioner then ordered Acting Secretary Alimbuyao to inform the
assemblymen that there will be no session on said date as
petitioner and Razul are attending the house committee hearing.
The Assembly held session in defiance of petitioner's advice. After
declaring the presence of a quorum, the Speaker Pro-Tempore was
authorized to preside in the session. On Motion to declare the seat
of the Speaker vacant, all Assemblymen in attendance voted in the
affirmative, hence, the chair declared said seat of the Speaker
vacant.
The petitioner then went to court praying that judgment be
rendered declaring the proceedings held by respondents during
the session as null and void and holding the election of petitioner
as Speaker of said Legislative Assembly or Batasan Pampook,
Region XII held on March 12, 1987 valid and subsisting, and(e)
Making the injunction permanent.
Issue:

WON the expulsion of the petitioner (pending litigation)

has made the case moot and academic.

Ratio:

We do not agree that the case has been rendered moot

and academic by reason simply of the expulsion resolution so

issued. For, if the petitioner's expulsion was done purposely to
make this petition moot and academic, and to preempt the Court,
it will not make it academic.
On the ground of the immutable principle of due process alone, we
hold that the expulsion in question is of no force and effect. In the
first place, there is no showing that the Sanggunian had
conducted an investigation, and whether or not the petitioner had
been heard in his defense, assuming that there was an
investigation, or otherwise given the opportunity to do so. What
appears in the records is an admission by the Assembly that "since

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08-09:

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November, 1987 up to this writing, the petitioner has not set foot
at the Sangguniang Pampook." To be sure, respondents aver that
"[t]he Assemblymen, in a conciliatory gesture, wanted him to come
to Cotabato City," but that was "so that their differences could be
threshed out and settled." Certainly, that avowed wanting or
desire to thresh out and settle, no matter how conciliatory it may
be cannot be a substitute for the notice and hearing contemplated
by law.
In the second place, the resolution appears strongly to be a bare
act of vendetta by the other Assemblymen against the petitioner
arising from what the former perceive to be abduracy on the part
of the latter. Indeed, it (the resolution) speaks of "a case [having
been filed] [by the petitioner] before the Supreme Court . . . on
question which should have been resolved within the confines of
the Assembly ---- an act which some members claimed
unnecessarily and unduly assails their integrity and character as
representative of the people," an act that cannot possibly justify
expulsion. Access to judicial remedies is guaranteed by the
Constitution, and, unless the recourse amounts to malicious
prosecution, no one may be punished for seeking redress in the
courts.
We therefore order reinstatement, with the caution that should
the past acts of the petitioner indeed warrant his removal, the
Assembly is enjoined, should it still be so minded, to commence
proper proceedings therefor in line with the most elementary
requirements of due process. And while it is within the discretion
of the members of the Sanggunian to punish their erring
colleagues, their acts are nonetheless subject to the moderating
hand of this Court in the event that such discretion is exercised
with grave abuse.
Issue:

What is the extent of self-government given to the two

autonomous governments of Region IX and XII?

Ratio:

The

autonomous

governments

of

Mindanao

were

organized in Regions IX and XII by Presidential Decree No. 1618.

Among other things, the Decree established "internal autonomy"
in the two regions "[w]ithin the framework of the national
sovereignty and territorial integrity of the Republic of the
Philippines and its Constitution," "with legislative and executive
machinery to exercise the powers and responsibilities"' specified
therein.
It requires the autonomous regional governments to "undertake
all internal administrative matters for the respective regions,"
except to "act on matters which are within the jurisdiction and
competence of the National Government," "which include, but are
not limited to, the following:
1. National defense and security;
2. Foreign relations;
3. Foreign trade;
4. Currency, monetary affairs, foreign exchange, banking
and quasi-banking, and external borrowing,
5. Disposition, exploration, development, exploitation or
utilization of all natural resources;
6. Air and sea transport;
7.
Postal matters and telecommunications;
8. Customs and quarantine;

21 | L o c a l

Government

(Guanzon)

9. Immigration and deportation;

10. Citizenship and naturalization;
11. National economic, social and educational planning;
and
12. General auditing."
In relation to the central government, it provides that "[t]he
President shall have the power of general supervision and control
over the Autonomous Regions.
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of
administration when the central government delegates
administrative powers to political subdivisions in order to broaden
the base of government power and in the process to make local
governments "more responsive and accountable," and "ensure
their fullest development as self-reliant communities and make
them more effective partners in the pursuit of national
development and social progress." At the same time, it relieves the
central government of the burden of managing local affairs and
enables it to concentrate on national concerns. The President
exercises "general supervision" over them, but only to "ensure that
local affairs are administered according to law." He has no control
over their acts in the sense that he can substitute their judgments
with his own.
Decentralization of power, on the other hand, involves an
abdication of political power in the favor of local governments
units declared to be autonomous. In that case, the autonomous
government is free to chart its own destiny and shape its future
with minimum intervention from central authorities. According to
a constitutional author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous government
becomes accountable not to the central authorities but to its
constituency.
But the question of whether or not the grant of autonomy to
Muslim Mindanao under the 1987 Constitution involves, truly, an
effort to decentralize power rather than mere administration is a
question foreign to this petition, since what is involved herein is a
local government unit constituted prior to the ratification of the
present Constitution. Hence, the Court will not resolve that
controversy now, in this case, since no controversy in fact exists.
We will resolve it at the proper time and in the proper case.
Under the 1987 Constitution, local government units enjoy
autonomy in these two senses
An autonomous government that enjoys autonomy of the latter
category is subject alone to the decree of the organic act creating it
and accepted principles on the effects and limits of "autonomy." On
the other hand, an autonomous government of the former class is,
as we noted, under the supervision of the national government
acting through the President (and the Department of Local
Government). If the Sangguniang Pampook (of Region XII), then,
is autonomous in the latter sense, its acts are, debatably, beyond
the domain of this Court in perhaps the same way that the
internal acts, say, of the Congress of the Philippines are beyond
our jurisdiction. But if it is autonomous in the former category
only, it comes unarguably under our jurisdiction.
An examination of the very Presidential Decree creating the
autonomous governments of Mindanao persuades us that they
were never meant to exercise autonomy in the second sense, that

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is, in which the central government commits an act of selfimmolation. Presidential Decree No. 1618, in the first place,
mandates that "[t]he President shall have the power of general
supervision and control over Autonomous Regions." 33 the second
place, the Sangguniang Pampook, their legislative arm, is made to
discharge chiefly administrative services.
Hence, we assume jurisdiction. And if we can make an inquiry in
the validity of the expulsion in question, with more reason can we
review the petitioner's removal as Speaker.
San Juan v. Civil Service Commission (1991)
Facts:

The position of Provincial Budget Officer (PBO) for Rizal

Province was left vacated. Petitioner, Gov. Reynaldo San Juan

informed Dir. Reynaldo Abella of the DBM that Ms. Dalisay
Santos assumed office as Acting PBO and requested Dir Abella to
endorse the appointment of Santos. In a memo, however, Dir
Abella appointed Cecilia Almajose as PBO of Rizal on the basis of
a comparative study of all Municipal Budget Officers. According to
Abella, Almajose was most qualified as she was a CPA. DBM
Undersecretary Nazario Cabuquit signed the appointment papers
of Almajose.
In a letter, Petitioner reiterated his request for Santos
appointment. DBM Regional Dir Agripino Galvez denied the
request as Santos was not qualified. When petitioner learned of
Almajoses appointment, he protested on the grounds that
Cabuquit as DBM Undersecretary is not legally authorized to
appoint the PBO; that Almajose lacks the required three years
work experience as provided in Local Budget Circular No. 31; and
that under EO 112, it is the Governor, not the Regional Director or
a Congressman, who has the power to recommend nominees for
the position of PBO. The DBM issued a memo ruling that
petitioners protest is not meritorious as the DBM validly
exercised its prerogative in filling-up the contested position since
none of the petitioner's nominees met the prescribed
requirements. The CSC affirmed.
Issue:

WON

petitioner

has

the

right

and

privilege

to

recommend the nominees to the position of PBO

Held:

Yes

Ratio: The tug of war between the Secretary of DBM and the
Governor of Rizal over a position involves the application of a most
important constitutional policy and principle, that of local
autonomy. We have to obey the clear mandate on local autonomy.
Where a law is capable of two interpretations, one in favor of
centralized power in Malacaang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy. The
exercise by LGUs of meaningful power has been a national goal
since the turn of the century. And yet, inspite of constitutional
provisions and legislation mandating greater autonomy for local
officials, national officers cannot seem to let go of centralized
powers. They deny or water down what little grants of autonomy
have so far been given to municipal corporations.
President McKinley's Instructions to the Second Philippine
Commission ordered the new Government "to devote their

22 | L o c a l

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(Guanzon)

attention in the first instance to the establishment of municipal

governments in which natives of the Islands, both in the cities and
rural communities, shall be afforded the opportunity to manage
their own local officers to the fullest extent of which they are
capable and subject to the least degree of supervision and control
which a careful study of their capacities and observation of the
workings of native control show to be consistent with the
maintenance of law, order and loyalty." In this initial organic act
for the Philippines, the Commission which combined both
executive and legislative powers was directed to give top priority
to making local autonomy effective. The 1935 Constitution had no
specific article on local autonomy. However, the Constitution
clearly limited the executive power over local governments to
"general supervision as may be provided by law." The President
controls the executive departments. He has no such power over
local governments. He has only supervision and that is both
general and circumscribed by statute. Pursuant to this principle
under the 1935 Constitution, legislation implementing local
autonomy was enacted. In 1959, Republic Act No. 2264 (Local
Autonomy Act) was enacted.
The provisions of the 1973
Constitution moved the country further towards greater
autonomy. An entire article on Local Government was
incorporated into the Constitution. It called for a local government
code defining more responsive and accountable local government
structures. Any creation, merger, abolition, or substantial
boundary alteration cannot be done except in accordance with the
local government code and upon approval by a plebiscite. The
power to create sources of revenue and to levy taxes was
specifically settled upon local governments. The exercise of greater
local autonomy is even more marked in the present Constitution
(Art II Sec 25, Art X Sec 2-3).
When the Civil Service Commission interpreted the
recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the constitutional
provisions on local autonomy. If the DBM Secretary jealously
hoards the entirety of budgetary powers and ignores the right of
local governments to develop self-reliance and resoluteness in the
handling of their own funds, the goal of meaningful local
autonomy is frustrated and set back.
Provincial and municipal budgets are prepared at the local level
and after completion are forwarded to the national officials for
review. They are prepared by the local officials who must work
within the constraints of those budgets. They are not formulated
in the inner sanctums of an all-knowing DBM and unilaterally
imposed on local governments whether or not they are relevant to
local needs and resources. It is for this reason that there should be
a genuine interplay, a balancing of viewpoints, and a
harmonization of proposals from both the local and national
officials. It is for this reason that the nomination and appointment
process involves a sharing of power between the two levels of
government. It may not be amiss to give by way of analogy the
procedure followed in the appointments of Justices and Judges.
Under Article VIII of the Constitution, nominations for judicial
positions are made by the Judicial and Bar Council.
DBMs grave abuse of discretion is aggravated by the fact that Dir
Galvez required the Governor to submit at least three other names
of nominees better qualified than his earlier recommendation. The

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Sem.

appointment of Almajose was formalized before the Governor was

extended the courtesy of being informed that his nominee had
been rejected. The complete disregard of the LGUs prerogative
and the smug belief that the DBM has absolute wisdom, authority,
and discretion are manifest. In his work, Dean Vicente G. Sinco
stated that the value of LGUs as institutions of democracy is
measured by the degree of autonomy that they enjoy. He stated
that "local assemblies of citizens constitute the strength of free
nations. A people may establish a system of free government but
without the spirit of municipal institutions, it cannot have the
spirit of liberty." Our national officials should not only comply with
the constitutional provisions on local autonomy but should also
appreciate the spirit of liberty upon which these provisions are
based.
Ganzon v. Court of Appeals (1991), supra.
Held:

The 1987 Constitution did not divest the President [in

this case acting through Sec of LocGov] of the power of supervision

over LGUs. The change in the constitutional language merely
underscores local governments' autonomy from congress and to
break Congress "control" over local government affairs. The
Constitution did not, however, intend, for the sake of local
autonomy, to deprive the legislature of all authority over
municipal corporations, in particular, concerning discipline.
Autonomy does not contemplate making mini-states out of local
government units, as in the federal governments of the US.
Autonomy, in the constitutional sense, is subject to the guiding
star, though not control, of the legislature, albeit the legislative
responsibility under the Constitution and as the "supervision
clause" itself suggest is to wean local LGUs from over-dependence
on the central government.
Under the Constitution, "local autonomy" is not instantly selfexecuting, but subject to, among other things, the passage of a
local government code, a local tax law, income distribution
legislation, and a national representation law, and measures
designed to realize autonomy at the local level. Also, despite the
autonomy, the Constitution places the local government under the
general supervision of the Executive. Finally, the Charter allows
Congress to include in the LGC provisions for removal of local
officials, which suggest that Congress may exercise removal
powers, and as the existing LGC has done, delegate its exercise to
the President.
The petitioners are under the mistaken impression that the
Constitution has left the President mere supervisory powers,
which supposedly excludes the power of investigation, and denied
her control, which allegedly embraces disciplinary authority.
Legally, "supervision" is not incompatible with disciplinary
authority.
"Control" = the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance
of his duties and to substitute the judgment of the former for test
of the latter. "Supervision" = overseeing or the power or authority
of an officer to see that subordinate officers perform their duties.
As we held, however, "investigating" is not inconsistent with
"overseeing", although it is a lesser power than "altering".

23 | L o c a l

Government

(Guanzon)

S . Y.

Cordillera Broad Coalition v. COA (1990)

Issue:

Constitutionality of EO 220, dated July 15, 1987, which

created the Cordillera Administrative Region - assailed on the

primary ground that the President pre-empts the enactment of an
organic act by Congress and the approval of such act through a
plebiscite.
Held:

EO 220 envisions the consolidation and coordination of

the delivery of services of line departments and agencies of the

National Government in the areas covered by the administrative
region as a step preparatory to the grant of autonomy to the
Cordilleras. It does not create the autonomous region
contemplated in the Constitution. It merely provides for transitory
measures in anticipation of the enactment of an organic act and
the creation of an autonomous region. In short, it prepares the
ground for autonomy. This does not necessarily conflict with the
provisions of the Constitution on autonomous regions.
The Constitution outlines a complex procedure for the creation of
an autonomous region in the Cordilleras which undoubtedly, will
take time. The President, in 1987 still exercising legislative
powers, as the first Congress had not yet convened, saw it fit to
provide for some measures to address the urgent needs of the
Cordilleras in the meantime the organic act had not yet been
passed.
Petitioners incidentally argue that the creation of the CAR
contravened the constitutional guarantee of the local autonomy for
the provinces composing it. It must be clarified that the
constitutional guarantee of local autonomy in the Constitution
[Art. X, sec. 2] refers to the administrative autonomy of local
government units or, in more technical language, the
decentralization of government authority. On the other hand, the
creation of autonomous regions in Muslim Mindanao and the
Cordilleras, which is peculiar to the 1987 Constitution
contemplates the grant of political autonomy, not just
administrative, to these regions. As said earlier, the CAR is a mere
transitory coordinating agency that would prepare the stage for
political autonomy for the Cordilleras. It fills in the resulting gap
in the process of transforming a group of adjacent territorial and
political subdivisions already enjoying local or administrative
autonomy into an autonomous region vested with political
autonomy.
Magtajas v. Pryce Properties Corp, Inc. (1991)
Facts:

In

1992,

representatives

from

PPC

made

representations with the Pagcor on the possibility of setting up a

casino in Pryce Plaza Hotel in Cagayan de Oro City. On November
1992, the parties executed a contract of lease involving the
ballroom of the hotel which would be converted into a casino.
Way back in 1950, the Sangguniang Panglungsod of CDO passed
Resolution 2295 prohibiting the establishment of a gambling
casino. Resolution 2673, dated October 19, 1992, reiterated this
prohibition. On December 7, 1992, Ordinance No. 3353 was
enacted prohibiting the issuance of business permits for the
operation of a casino. On January 4, 1993, Ordinance 3375-93 was
passed prohibiting the operation of casinos.

08-09:

2nd

Sem.

PPC filed a petition for prohibition with preliminary injunction

against CDO before the CA. It prayed for the declaration of
unconstitutionality of Ordinance 3353. Pagcor intervened claiming
that Ordinance 4475 was violative of the non-impairment of
contracts and EP clauses. The CA declared the ordinances
unconstitutional and void.
Issue:

WON the Sangguniang Panglungsod has the authority

to enact said ordinances

Held:
Ratio:

No
Petitioners Contention. CDO, like other local

political subdivisions, is empowered to enact ordinances for the

purposes indicated in the LGC. It is expressly vested with the
police power under what is known as the General Welfare Clause
now embodied in Section 16. In addition, Section 458 declares that
the Sangguniang Panglungsod has the power to approve
ordinances and pass resolutions for the efficient and effective city
government. The petitioners argue that by virtue of these
provisions, the Sangguniang Panlungsod may prohibit the
operation of casinos because they involve games of chance, which
are detrimental to the people.
The adoption of the LGC, it is pointed out, had the effect of
modifying the charter of the PAGCOR. The Code is not only a later
enactment than P.D. 1869 and so is deemed to prevail in case of
inconsistencies between them. More than this, the powers of the
PAGCOR under the decree are expressly discontinued by the Code
insofar as they do not conform to its philosophy and provisions,
pursuant to Par. (f) of its repealing clause. It is also maintained
that assuming there is doubt regarding the effect of the Local
Government Code on P.D. 1869, the doubt must be resolved in
favor of the petitioners, in accordance with the direction in the
Code calling for its liberal interpretation in favor of the local
government units.
Morality of Gambling Not Justiciable. The morality of
gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even
mentioning it at all. It is left to Congress to deal with the activity
as it sees fit. In the exercise of its own discretion, the legislature
may prohibit gambling altogether or allow it without limitation or
it may prohibit some forms of gambling and allow others for
whatever reasons it may consider sufficient. The only question we
can and shall resolve in this petition is the validity of Ordinance
No. 3355 and Ordinance No. 3375-93 as enacted by the
Sangguniang Panlungsod of CDO.
Test of Validity. The tests of a valid ordinance are well
established. A long line of decisions 9 has held that to be valid, an
ordinance must conform to the following substantive
requirements: 1) It must not contravene the constitution or any
statute. 2) It must not be unfair or oppressive. 3) It must not be
partial or discriminatory. 4) It must not prohibit but may regulate
trade. 5) It must be general and consistent with public policy. 6) It
must not be unreasonable.

24 | L o c a l

Government

(Guanzon)

We begin by observing that under Sec. 458 of the LGC, LGUs are
authorized to prevent or suppress, among others, "gambling and
other prohibited games of chance." Obviously, this provision
excludes games of chance which are not prohibited but are in fact
permitted by law. The petitioners are less than accurate in
claiming that the Code could have excluded such games of chance
but did not. In fact it does. The language of the section is clear and
unmistakable. We conclude that since the word "gambling" is
associated with "and other prohibited games of chance," the word
should be read as referring to only illegal gambling which, like the
other prohibited games of chance, must be prevented.
Contravention of PD 1896. The apparent flaw in the ordinances
in question is that they contravene P.D. 1869 and the public policy
embodied therein insofar as they prevent PAGCOR from exercising
the power conferred on it to operate a casino in CDO. Petitioner
deny that the ordinance changed the PD, rather the LGC itself
changed the PD. It seems to us that the petitioners are playing
with words. While insisting that the decree has only been
"modified pro tanto," they are actually arguing that it is already
dead, repealed and useless for all intents and purposes because
the Code has shorn PAGCOR of all power to centralize and
regulate casinos. Strictly speaking, its operations may now be not
only prohibited by the local government unit; in fact, the
prohibition is not only discretionary but mandated by Sec 458 of
the Code if the word "shall" as used therein is to be given its
accepted meaning. Local government units have now no choice but
to prevent and suppress gambling, which in the petitioners' view
includes both legal and illegal gambling. Under this construction,
PAGCOR will have no more games of chance to regulate or
centralize as they must all be prohibited by the local government
units pursuant to the mandatory duty imposed upon them by the
Code. In this situation, PAGCOR cannot continue to exist except
only as a toothless tiger or a white elephant and will no longer be
able to exercise its powers as a prime source of government
revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the
repealing clause, conveniently discarding the rest of the provision
which painstakingly mentions the specific laws or the parts
thereof which are repealed (or modified) by the Code. Significantly,
P.D. 1869 is not one of them. Furthermore, it is a familiar rule
that implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intention.
Moreover, the petitioners' suggestion that the Code authorizes
them to prohibit all kinds of gambling would erase the distinction
between these two forms of gambling without a clear indication
that this is the will of the legislature. In light of all the above
considerations, we see no way of arriving at the conclusion urged
on us by the petitioners that the ordinances in question are valid.
On the contrary, we find that the ordinances violate P.D. 1869,
which has the character and force of a statute, as well as the
public policy expressed in the decree allowing the playing of
certain games of chance despite the prohibition of gambling in
general.
Rationale for the rule that ordinances should not
contravene a statute. The rationale of the requirement that the
ordinances should not contravene a statute is obvious. Municipal
governments are only agents of the national government. Local

S . Y.

08-09:

2nd

Sem.

councils exercise only delegated legislative powers conferred on

them by Congress as the national lawmaking body. The delegate
cannot be superior to the principal or exercise powers higher than
those of the latter. It is a heresy to suggest that the local
government units can undo the acts of Congress, from which they
have derived their power in the first place, and negate by mere
ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their
powers and rights wholly from the legislature. It breathes into
them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose
it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the
right so far as to the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature.
Relationship between national legislature and local
government. This basic relationship between the national
legislature and the local government units has not been enfeebled
by the new provisions in the Constitution strengthening the policy
of local autonomy. Without meaning to detract from that policy, we
here confirm that Congress retains control of the local government
units although in significantly reduced degree now than under our
previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in
the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be
withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it.
Casino gambling is authorized by P.D. 1869. This decree has the
status of a statute that cannot be amended or nullified by a mere
ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353
prohibiting the use of buildings for the operation of a casino and
Ordinance No. 3375-93 prohibiting the operation of casinos. For
all their praiseworthy motives, these ordinances are contrary to
P.D. 1869 and the public policy announced therein and are
therefore ultra vires and void.
Padilla, concurring: I concur with the majority holding that the
city ordinances in question cannot modify much less repeal
PAGCOR's general authority to establish and maintain gambling
casinos anywhere in the Philippines under Presidential Decree
No. 1869. However, despite the legality of the opening and
operation of a casino in Cagayan de Oro City by respondent
PAGCOR, I wish to reiterate my view that gambling in any form
runs counter to the government's own efforts to re-establish and
resurrect the Filipino moral character which is generally perceived
to be in a state of continuing erosion.
Davide,

concurring:

Wrong

mode,

not

prohibition

but

declaratory relief. The issue that necessarily arises is whether in

granting local governments (such as the City of Cagayan de Oro)

25 | L o c a l

Government

(Guanzon)

the above powers and functions, the Local Government Code has,
pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general
authority to establish and maintain gambling casinos anywhere in
the Philippines is concerned. I join the majority in holding that
the ordinances cannot repeal P.D. No. 1869.
The nullification by the Court of Appeals of the challenged
ordinances as unconstitutional primarily because it is in
contravention to P.D. No. 1869 is unwarranted. A contravention of
a law is not necessarily a contravention of the constitution. In any
case, the ordinances can still stand even if they be conceded as
offending P.D. No. 1869. They can be reconciled, which is not
impossible to do. So reconciled, the ordinances should be
construed as not applying to PAGCOR.
Taule v. Santos (1991)
Facts: On June 18,1989, the Federation of Associations of
Barangay Councils (FABC) of Catanduanes, composed of eleven
(11) members convened with six members in attendance for the
purpose of holding the election of its officers. The election
proceeded with petitioner Ruperto Taule declared as president.
The governor, Leandro Verceles sent a letter to respondent Luis
Santos, Secretary of DILG protesting the election of the officers of
the FABC on the ground of certain irregularities. Taule, as
president of FABC, filed his comment on the protest of Governor
denying the alleged irregularities and denouncing the governors
acts of meddling and intervening in the election. Secretary Santos
nullified the election of the officers of FABC and ordered the
conduct of a new one.
In the present petitioner for certiorari, petitioner seeks the
reversal of the resolutions of the respondent Secretary.
Issue:

WON the Comelec has jurisdiction over election contests

involving the election of officers of the FABC

Held:

No

Ratio: Under Article IX, C, Section 2(2) of the 1987 Consti, the
Comelec shall exercise "exclusive original jurisdiction over all
contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction."
The 1987 Constitution expanded the jurisdiction of the COMELEC
by granting it appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general
jurisdiction or elective barangay officials decided by trial courts of
limited jurisdiction.
The jurisdiction of the COMELEC over contests involving elective
barangay officials is limited to appellate jurisdiction from
decisions of the trial courts. The jurisdiction of the COMELEC is
over popular elections, the elected officials of which are
determined through the will of the electorate. An election is the
embodiment of the popular will, the expression of the sovereign
power of the people. Specifically, the term "election," in the context
of the Constitution, may refer to the conduct of the polls, including

S . Y.

08-09:

2nd

Sem.

the listing of voters, the holding of the electoral campaign, and the
casting and counting of the votes which do not characterize the
election of officers in the Katipunan ng mga barangay.
Issue:

WON the Secretary has jurisdiction over the elections

contests involving the FABC elections

Held:

No

Ratio:

The Secretary of Local Government is not vested with

jurisdiction to entertain any protest involving the election of

officers of the FABC. There is no question that he is vested with
the power to promulgate rules and regulations as set forth in
Section 222 of the LGC and the Administrative Code.
Now the question that arises is whether or not a violation of said
circular vests jurisdiction upon the respondent Secretary, as
claimed by him, to hear a protest filed in relation thereto and
consequently declare an election null and void.
It is a well-settled principle of administrative law that unless
expressly empowered, administrative agencies are bereft of quasijudicial powers.The jurisdiction of administrative authorities is
dependent entirely upon the provisions of the statutes reposing
power in them; they cannot confer it upon themselves. Such
jurisdiction is essential to give validity to their determinations.
There is neither a statutory nor constitutional provision expressly
or even by necessary implication conferring upon the Secretary of
Local Government the power to assume jurisdiction over an
election protect involving officers of the katipunan ng mga
barangay. Presidential power over local governments is limited by
the Constitution to the exercise of general supervision "to ensure
that local affairs are administered according to law." The general
supervision is exercised by the President through the Secretary of
Local Government.
Supervision vs Control: In administrative law, supervision
means overseeing or the power or authority of an officer to see that
the subordinate officers perform their duties. If the latter fails or
neglects to fulfill them the former may take such action or step as
prescribed by law to make them perform their duties. Control, on
the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the
former for that of the latter. The fundamental law permits the
Chief Executive to wield no more authority than that of checking
whether said local government or the officers thereof perform their
duties as provided by statutory enactments. Hence, the President
cannot interfere with local governments so long as the same or its
officers act within the scope of their authority. Supervisory power,
when contrasted with control, is the power of mere oversight over
an inferior body; it does not include any restraining authority over
such body.
Construing the constitutional limitation on the power of general
supervision of the President over local governments, We hold that
Secretary has no authority to pass upon the validity or regularity
of the election of the officers of the katipunan. To allow the
Secretary to do so will give him more power than the law or the
Constitution grants. It will in effect give him control over local
government officials for it will permit him to interfere in a purely

26 | L o c a l

Government

(Guanzon)

democratic and non-partisan activity aimed at strengthening the

barangay as the basic component of local governments so that the
ultimate goal of fullest autonomy may be achieved. In fact, his
order that the new elections to be conducted be presided by the
Regional Director is a clear and direct interference by the
Department with the political affairs of the barangays which is not
permitted by the limitation of presidential power to general
supervision over local governments.
Indeed, it is the policy of the state to ensure the autonomy of local
governments. To deny the Secretary of Local Government the
power to review the regularity of the elections of officers of the
katipunan would be to enhance the avowed state policy of
promoting the autonomy of local governments. The RTCs have the
exclusive original jurisdiction to hear the protest
Issue:

WON the Governor has the personality to file the protest

Held:

Yes

Ratio:

The Governor has the personality to file the protest.

Under Section 205 of the Local Government Code, the membership

of the sangguniang panlalawigan consists of the governor, the
vice-governor, elective members of the said sanggunian and the
presidents of the katipunang panlalawigan and the kabataang
barangay provincial federation. The governor acts as the presiding
officer of the sangguniang panlalawigan. As presiding officer of the
sagguniang panlalawigan, the respondent governor has an
interest in the election of the officers of the FABC since its elected
president becomes a member of the assembly. If the president of
the FABC assumes his presidency under questionable
circumstances and is allowed to sit in the sangguniang
panlalawigan the official actions of the sanggunian may be
vulnerable to attacks as to their validity or legality. Hence,
respondent governor is a proper party to question the regularity of
the elections of the officers of the FABC.
Issue:

WON the election was valid

Held:

No

Ratio:

The elections were declared null and void primarily for

failure to comply with Section 2.4 of DLG Circular No. 89-09

which provides that "the incumbent FABC President or the VicePresident shall preside over the reorganizational meeting, there
being a quorum." The rule specifically provides that it is the
incumbent FABC President or Vice-President who shall preside
over the meeting. The word "shall" should be taken in its ordinary
signification, i.e., it must be imperative or mandatory and not
merely
permissive, as the rule is explicit and requires no other
interpretation. If it had been intended that any other official
should preside, the rules would have provided so, as it did in the
elections at the town and city levels as well as the regional level. It
is admitted that neither the incumbent FABC President nor the
Vice-President presided over the meeting and elections but
Alberto P. Molina, Jr., the Chairman of the Board of Election
Supervisors/Consultants. Thus, there was a clear violation of the

S . Y.

08-09:

2nd

Sem.

aforesaid mandatory provision. On this ground, the elections

should be nullified.
In case at bar, PGOO Molina, the Chairman of the Board,
presided over the elections. There was direct participation by the
Chairman of the Board in the elections contrary to what is
dictated by the rules. Worse, there was no Board of Election
Supervisors to oversee the elections in view of the walk out staged
by its two other members, the Provincial COMELEC Supervisor
and the Provincial Treasurer. The objective of keeping the election
free and honest was therefore compromised.
Issue:

WON the Presidents appointment given to Augusto

Antonio as temporary representative of the FABC was valid

Held:

No

Ratio:

In the present controversy involving the sangguniang

panlalawigan, the law is likewise explicit. To be appointed by the

President of the Philippines to sit in the sangguniang
panlalawigan is the president of the katipunang panlalawigan.
The appointee must meet the qualifications set by law. The
appointing power is bound by law to comply with the requirements
as to the basic qualifications of the appointee to the sangguniang
panlalawigan. The President of the Philippines or his alter ego,
the Secretary of Local Government, has no authority to appoint
anyone who does not meet the minimum qualification to be the
president of the federation of barangay councils.
Augusto Antonio is not the president of the federation. He is a
member of the federation but he was not even present during the
elections despite notice. The argument that Antonio was
appointed as a remedial measure in the exigency of the service
cannot be sustained. Since Antonio does not meet the basic
qualification of being president of the federation, his appointment
to the sangguniang panlalawigan is not justified notwithstanding
that such appointment is merely in a temporary capacity. If the
intention of the respondent Secretary was to protect the interest of
the federation in the sanggunian, he should have appointed the
incumbent FABC President in a hold-over capacity. For even under
the guidelines, the term of office of officers of the katipunan at all
levels shall be from the date of their election until their successors
shall have been duly elected and qualified, without prejudice to
the terms of their appointments as members of the sanggunian to
which they may be correspondingly appointed. Since the election is
still under protest such that no successor of the incumbent has as
yet qualified, the respondent Secretary has no choice but to have
the incumbent FABC President sit as member of the sanggunian.
He could even have appointed petitioner since he was elected the
president of the federation but not Antonio. The appointment of
Antonio, allegedly the protege of respondent Governor, gives
credence to petitioner's charge of political interference by
respondent Governor in the organization. This should not be
allowed. The barangays should be insulated from any partisan
activity or political intervention if only to give true meaning to
local autonomy.
Binay v. Domingo (1991)

27 | L o c a l
Facts:

Government

(Guanzon)

On September 27, 1988, petitioner Municipality, through

its Council, approved Resolution No. 60 (A resolution to confirm

and/or ratify the ongoing burial assistance program extending
P500
to a bereaved family, funds to be taken out of
unappropriated available funds existing in the municipal
treasury.) Metro Manila Commission approved Resolution No. 60.
Thereafter, the municipal secretary certified a disbursement fired
of P400,000 for the implementation of the program.
However, COA disapproved Resolution 60 and disallowed in audit
the disbursement of funds. COA denied the petitioners
reconsideration as Resolution 60 has no connection or relation
between the objective sought to be attained and the alleged public
safety, general welfare, etc of the inhabitant of Makati. Also, the
Resolution will only benefit a few individuals. Public funds should
only be used for public purposes.
Issue:

WON Resolution No. 60, re-enacted under Resolution

No. 243, of the Municipality of Makati is a valid exercise of police

power under the general welfare clause
Held:

Yes

Ratio:

The police power is a governmental function, an

inherent attribute of sovereignty, which was born with civilized

government. It is founded largely on the maxims, "Sic utere tuo et
ahenum non laedas and "Salus populi est suprema lex Its
fundamental purpose is securing the general welfare, comfort and
convenience of the people.
Police power is inherent in the state but not in municipal
corporations). Before a municipal corporation may exercise such
power, there must be a valid delegation of such power by the
legislature which is the repository of the inherent powers of the
State. A valid delegation of police power may arise from express
delegation, or be inferred from the mere fact of the creation of the
municipal corporation; and as a general rule, municipal
corporations may exercise police powers within the fair intent and
purpose of their creation which are reasonably proper to give effect
to the powers expressly granted, and statutes conferring powers
on public corporations have been construed as empowering them
to do the things essential to the enjoyment of life and desirable for
the safety of the people.
Municipal governments exercise this power under the general
welfare clause: pursuant thereto they are clothed with authority to
"enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred
upon it by law, and such as shall be necessary and proper to
provide for the health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the prosperity
and general welfare of the municipality and the inhabitants
thereof, and insure the protection of property therein." And under
Section 7 of BP 337, "every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom,
as well as powers necessary and proper for governance such as to
promote health and safety, enhance prosperity, improve morals,
and maintain peace and order in the local government unit, and
preserve the comfort and convenience of the inhabitants therein."

S . Y.

08-09:

2nd

Sem.

Police power is the power to prescribe regulations to promote the

health, morals, peace, education, good order or safety and general
welfare of the people. It is the most essential, insistent, and
illimitable of powers. In a sense it is the greatest and most
powerful attribute of the government.
The police power of a municipal corporation is broad, and has been
said to be commensurate with, but not to exceed, the duty to
provide for the real needs of the people in their health, safety,
comfort, and convenience as consistently as may be with private
rights. It extends to all the great public needs, and, in a broad
sense includes all legislation and almost every function of the
municipal government. It covers a wide scope of subjects, and,
while it is especially occupied with whatever affects the peace,
security, health, morals, and general welfare of the community, it
is not limited thereto, but is broadened to deal with conditions
which exists so as to bring out of them the greatest welfare of the
people by promoting public convenience or general prosperity, and
to everything worthwhile for the preservation of comfort of the
inhabitants of the corporation. Thus, it is deemed inadvisable to
attempt to frame any definition which shall absolutely indicate the
limits of police power.
COA is not attuned to the changing of the times. Public purpose is
not unconstitutional merely because it incidentally benefits a
limited number of persons. As correctly pointed out by the Office of
the Solicitor General, "the drift is towards social welfare
legislation geared towards state policies to provide adequate social
services, the promotion of the general welfare social justice
(Section 10, Ibid) as well as human dignity and respect for human
rights. The care for the poor is generally recognized as a public
duty. The support for the poor has long been an accepted exercise
of police power in the promotion of the common good.
There is no violation of the equal protection clause in classifying
paupers as subject of legislation. Paupers may be reasonably
classified. Different groups may receive varying treatment.
Precious to the hearts of our legislators, down to our local
councilors, is the welfare of the paupers. Thus, statutes have been
passed giving rights and benefits to the disabled, emancipating
the tenant-farmer from the bondage of the soil, housing the urban
poor, etc.
Resolution No. 60, re-enacted under Resolution No. 243, of the
Municipality of Makati is a paragon of the continuing program of
our government towards social justice. The Burial Assistance
Program is a relief of pauperism, though not complete. The loss of
a member of a family is a painful experience, and it is more
painful for the poor to be financially burdened by such death.
Resolution No. 60 vivifies the very words of the late President
Ramon Magsaysay 'those who have less in life, should have more
in law." This decision, however must not be taken as a precedent,
or as an official go-signal for municipal governments to embark on
a philanthropic orgy of inordinate dole-outs for motives political or
otherwise.
City Government of Quezon City v. Ericta (1983)
Facts:

Section 9 of Ordinance No 6118 requires that at least 6%

of the total area of a memorial park cemetery shall be set aside for
charity burial. For several years, the section of the Ordinance was
not enforced by city authorities but seven years after the

28 | L o c a l

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(Guanzon)

enactment of the ordinance, the Quezon City Council passed the a

resolution directing the City Engineer to stop selling memorial
park lots where the owners thereof have failed to donate the
required 6% space for pauper burial.
Respondent reacted by filing with the CFI a petition for
declaratory relief, prohibition and mandamus with preliminary
injunction seeking to annul Section 9 of the Ordinance in
question The respondent alleged that the same is contrary to the
Constitution, the Quezon City Charter, the Local Autonomy Act,
and the Revised Administrative Code. The Court declared the
Section 9 null and void.
Petitioners argue that the taking of the respondent's property is a
valid and reasonable exercise of police power and that the land is
taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is
authorized under its charter, in the exercise of local police power.
On the other hand, respondent contends that the taking or
confiscation of property is obvious because the ordinance
permanently restricts the use of the property such that it cannot
be used for any reasonable purpose and deprives the owner of all
beneficial use of his property.
Issue:

WON Section 9 of the ordinance in question a valid

exercise of the police power

Held:
Ratio:

No
An examination of the Charter of Quezon City does not

reveal any provision that would justify the ordinance in question

except the provision granting police power to the City. The power
to regulate does not include the power to prohibit (. A fortiori, the
power to regulate does not include the power to confiscate. The
ordinance in question not only confiscates but also prohibits the
operation of a memorial park cemetery.
There are three inherent powers of government by which the state
interferes with the property rights, namely-. (1) police power, (2)
eminent domain, (3) taxation. These are said to exist
independently of the Constitution as necessary attributes of
sovereignty.
Police power is defined by Freund as 'the power of promoting the
public welfare by restraining and regulating the use of liberty and
property'. It is usually exerted in order to merely regulate the use
and enjoyment of property of the owner. If he is deprived of his
property outright, it is not taken for public use but rather to
destroy in order to promote the general welfare. In police power,
the owner does not recover from the government for injury
sustained in consequence thereof. The police power being the most
active power of the government and the due process clause being
the broadest station on governmental power, the conflict between
this power of government and the due process clause of the
Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is
usually exercised in the form of mere regulation or restriction in
the use of liberty or property for the promotion of the general
welfare. It does not involve the taking or confiscation of property
with the exception of a few cases where there is a necessity to
confiscate private property in order to destroy it for the purpose of

S . Y.

08-09:

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protecting the peace and order and of promoting the general

welfare as for instance, the confiscation of an illegally possessed
article, such as opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series
of 1964 of Quezon City is not a mere police regulation but an
outright confiscation. It deprives a person of his private property
without due process of law, nay, even without compensation.
There is no reasonable relation between the setting aside of at
least six (6) percent of the total area of an private cemeteries for
charity burial grounds of deceased paupers and the promotion of
health, morals, good order, safety, or the general welfare of the
people. The ordinance is actually a taking without compensation
of a certain area from a private cemetery to benefit paupers who
are charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the
burden to private cemeteries.
The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of the Revised Charter of
Quezon City which empowers the city council to prohibit the
burial of the dead within the center of population of the city and to
provide for their burial in a proper place subject to the provisions
of general law regulating burial grounds and cemeteries. When
the Local Government Code, Batas Pambansa Blg. 337 provides in
Section 177 (q) that a Sangguniang panlungsod may "provide for
the burial of the dead in such place and in such manner as
prescribed by law or ordinance" it simply authorizes the city to
provide its own city owned land or to buy or expropriate private
properties to construct public cemeteries. This has been the law
and practise in the past. It continues to the present.
Expropriation, however, requires payment of just compensation.
The questioned ordinance is different from laws and regulations
requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the
land they sell to buyers of subdivision lots. The necessities of
public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold to homeowners. As a matter of fact, the petitioners rely solely on the
general welfare clause or on implied powers of the municipal
corporation, not on any express provision of law as statutory basis
of their exercise of power. The clause has always received broad
and liberal interpretation but we cannot stretch it to cover this
particular taking. Moreover, the questioned ordinance was passed
after Himlayang Pilipino, Inc. had incorporated. received
necessary licenses and permits and commenced operating. The
sequestration of six percent of the cemetery cannot even be
considered as having been impliedly acknowledged by the private
respondent when it accepted the permits to commence operations.
Villanueva v. Castaneda (1987)
Facts:

On November 7, 1961, the municipal council of San

Fernando adopted Resolution No. 218 authorizing some 24

members of the Fernandino United Merchants and Traders
Association to construct permanent stags and sell in the said
place. A protest was filed and the CFI decided that the land

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(Guanzon)

occupied by the petitioners, being public in nature, was beyond the

commerce of man and therefore could not be the subject of private
occupancy. This decision was not enforced for the petitioners were
not evicted. In fact, the petitioners paid daily fees to the municipal
government.
On January 12, 1982, the Association of Concerned Citizens and
Consumers of San Fernando filed a petition for the immediate
implementation of Resolution No. 29, to restore the subject
property "to its original and customary use as a public plaza.
Vicente Macalino (officer in charge in the office of the mayor)
required the municipal treasurer and engineer to demolish the
stalls. Petitioners filed a prohibition with the CFI claiming that
the disputed area was leased to them by the municipal
government. The CFI denied the petition/
Issue:

WON the petitioners have a right to the said land

Held:

No

Ratio:

There is no question that the place occupied by the

petitioners and from which they are sought to be evicted is a

public plaza pursuant to the previous case. It does not appear that
the decision in this case was appealed or has been reversed.
A public plaza is beyond the commerce of man and so cannot be
the subject of lease or any other contractual undertaking. This is
elementary. Indeed, this point was settled as early as in
Municipality of Cavite vs. Rojas, where the Court declared as null
and void the lease of a public plaza of the said municipality in
favor of a private person. In Muyot vs. de la Fuente, it was held
that the City of Manila could not lease a portion of a public
sidewalk on Plaza Sta. Cruz, being likewise beyond the commerce
of man. We rule that the petitioners had no right in the first place
to occupy the disputed premises and cannot insist in remaining
there now on the strength of their alleged lease contracts. They
should have realized and accepted this earlier, considering that
even before case was decided, the municipal council already
adopted Resolution No. 29, declaring the area as the parking place
and public plaza of the municipality.
It is the decision in Civil Case No. 2040 and the said resolution of
the municipal council of San Fernando that respondent Macalino
was seeking to enforce when he ordered the demolition of the
stags constructed in the disputed area. As officer-in-charge of the
office of the mayor, he had the duty to clear the area and restore it
to its intended use as a parking place and public plaza of the
municipality of San Fernando, conformably to the orders from the
court and the council. It is, therefore, not correct to say that he
had acted without authority or taken the law into his hands in
issuing his order.
Neither can it be said that he acted whimsically in exercising his
authority for it has been established that he directed the
demolition of the stalls only after, upon his instructions, the
municipal attorney had conducted an investigation, to look into
the complaint filed by the Association of Concerned Citizens and
Consumers of San Fernando. There is evidence that the
petitioners were notified of this hearing, which they chose to
disregard. Photographs of the disputed area, which does look
congested and ugly, show that the complaint was valid and that

S . Y.

08-09:

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the area really needed to be cleared, as recommended by the

municipal attorney.
Since the occupation of the place in question, it has deteriorated
increasingly to the great prejudice of the community in general.
The proliferation of stags therein, most of them makeshift and of
flammable materials, has converted it into a veritable fire trap,
which, added to the fact that it obstructs access to and from the
public market itself, has seriously endangered public safety. The
filthy condition of the talipapa, where fish and other wet items are
sold, has aggravated health and sanitation problems, besides
pervading the place with a foul odor that has spread into the
surrounding areas. The entire place is unsightly, to the dismay
and embarrassment of the inhabitants, who want it converted into
a showcase of the town of which they can all be proud. The vendors
in the talipapa have also spilled into the street and obstruct the
flow of traffic, thereby impairing the convenience of motorists and
pedestrians alike. The regular stallholders in the public market,
who pay substantial rentals to the municipality, are deprived of a
sizable volume of business from prospective customers who are
intercepted by the talipapa vendors before they can reach the
market proper. On top of all these, the people are denied the
proper use of the place as a public plaza, where they may spend
their leisure in a relaxed and even beautiful environment and civic
and other communal activities of the town can be held.
The problems caused by the usurpation of the place by the
petitioners are covered by the police power as delegated to the
municipality under the general welfare clause. This authorizes the
municipal council "to enact such ordinances and make such
regulations, not repugnant to law, as may be necessary to carry
into effect and discharge the powers and duties conferred upon it
by law and such as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals,
peace, good order, comfort, and convenience of the municipality
and the inhabitants thereof, and for the protection of property
therein." This authority was validly exercised in this case through
the adoption of Resolution No. 29, by the municipal council of San
Fernando.
Even assuming a valid lease of the property in dispute, the
resolution could have effectively terminated the agreement for it is
settled that the police power cannot be surrendered or bargained
away through the medium of a contract. In fact, every contract
affecting the public interest suffers a congenital infirmity in that it
contains an implied reservation of the police power as a postulate
of the existing legal order. This power can be activated at any time
to change the provisions of the contract, or even abrogate it
entirely, for the promotion or protection of the general welfare.
Such an act will not militate against the impairment clause, which
is subject to and limited by the paramount police power.
Republic v. Gonzalez (1991)
Facts:

The Republic of the Philippines is the owner of two (2)

parcels of land situated in Taong Malabon, Metro Manila. This

piece of property was formerly a deep swamp until the occupants
thereof, among them appellants Policarpio Gonzales and Augusta
Josue, started filling it.
On 14 April 1955, then President Ramon Magsaysay issued
Proclamation No. 144, entitled "Reserving for Street Widening

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(Guanzon)

and Parking Space Purposes Certain Parcels of the Public

Domain." Lots 1 and 2 were specifically withdrawn from sale or
settlement and reserved for the purposes mentioned in the
Proclamation. The Municipality of Malabon passed Resolution
authorizing the filing of ejectment cases against appellants.
Separate complaints were then filed against them.
Appellants disputed the right of the Government to recover the lot
as: (a) the already filed sales application with the Bureau of
Lands, (b) he had a municipal permit to construct buildings
thereon, (c) the lot occupied was not needed to widen the street
and that the setting aside of the lots for parking space purposes
does not redound to the public benefit. The trial court ordered
appellants to reconvey the property to the government.
Issue:

WON Proclamation 144 is invalid

Held:

Yes

Ratio:

Proclamation No. 144 was issued by then President

Ramon Magsaysay in response to several resolutions passed by the

Municipal Council of Malabon, Rizal, which had become
particularly aware of the increasing vehicular traffic and
congestion along F. Sevilla Boulevard. The Municipal Council had
proposed to widen F. Sevilla Boulevard and at the same time, to
reserve an area for parking space to ease up traffic problems, in
anticipation of the completion of the then proposed market and
slaughterhouse located to the west of F. Sevilla Boulevard. In this
day and age, it is hardly open to debate that the public has much
to gain from the proposed widening of F. Sevilla Boulevard and
from establishment of a municipal parking area. Indiscriminate
parking along F. Sevilla Boulevard and other main thoroughfares
was prevalent; this, of course, caused the build up of traffic in the
surrounding area to the great discomfort and inconvenience of the
public who use the streets.
Under the Land Transportation and Traffic Code, parking in
designated areas along public streets or highways is allowed which
clearly indicates that provision for parking spaces serves a useful
purpose.
Appellants, however, allege that the benefits, if any, that may be
derived from the proposed street-widening and parking space will
be confined to people who have cars, hence there would be lacking
the essential feature of property reserved for public use or benefit.
The conception urged by appellants is both flawed and obsolete
since the number of users is not the yardstick in determining
whether property is properly reserved for public use or public
benefit. In the first place, Section 83 above speaks not only of use
by a local government but also of "quasi-public uses or purposes."
To constitute public use, the public in general should have equal
or common rights to use the land or facility involved on the same
terms, however limited in number the people who can actually
avail themselves of it at a given time. There is nothing in
Proclamation No. 144 which excludes non-car-owners from using a
widened street or a parking area should they in fact happen to be
driving cars; the opportunity to avail of the use thereof remains
open for the public in general.
Besides, the benefits directly obtained by car-owners do not
determine either the validity or invalidity of Proclamation No.

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08-09:

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144. What is important are the long-term benefits which the

proposed street widening and parking areas make available to the
public in the form of enhanced, safe and orderly transportation on
land. This is the kind of public benefit envisioned by the Municipal
Council of Malabon, Rizal and which was sought to be promoted
by the President in issuing Proclamation No. 144. We believe and
so hold that Proclamation No. 144 was lawful and valid.
Proclamation No. 144 specifically provided that the withdrawal of
Lots No. 1 and 2 shall be subject to existing private rights, if any
there be. Prior to the issuance of Proclamation No. 144, appellants
had applied for miscellaneous sales applications over the lots
respectively occupied by them. Insofar as appellant Policarpio
Gonzales is concerned, it is not disputed that he had
acknowledged the ownership of the National Government of the
land applied for by him. The miscellaneous sales application,
however, of appellant Policarpio Gonzales had not been approved
by the Bureau of Lands at the time Proclamation No. 144 was
issued; the land therefore retained its character as land of the
public domain. Upon the other hand, the miscellaneous sales
application of appellant Augusto Josue had already been rejected
in an Order of the Director of Lands dated 8 January 1954.
Appellants allege having built mixed residential and commercial
buildings on Lot 2. The evidence of record discloses that
appellants had secured the appropriate municipal permits or
licenses therefor, that is, for the construction of said buildings as
well as the carrying on of business therein. However, since the
lease, sale or any other form of concession or disposition and
management of lands of the public domain was directly under the
executive control of the Director of Lands, and not of local
government officials, the Malabon Municipal Mayor must be held
to have exceeded his authority in allowing the use of lands of the
public domain to appellants by constructing thereon commercial
and residential use buildings, or any other kind of building for
that matter.
Patalinghug v. CA (1994)
Facts:

On November 17, 1982, the Sangguniang Panlungsod of

Davao City enacted Ordinance No. 363, series of 1982 otherwise

known as the "Expanded Zoning Ordinance of Davao City."
Petitioner was able to obtain a building permit for the
construction of a funeral parlor. Thereafter, petitioner commenced
the construction of his funeral parlor.
Acting on the complaint of several residents of Barangay Agdao,
Davao City that the construction of petitioner's funeral parlor
violated Ordinance No. 363, since it was allegedly situated within
a 50-meter radius from the Iglesia ni Kristo Chapel and several
residential structures, the nearest residential structure, owned by
Wilfred G. Tepoot is only 8 inches to the south.
Private respondents filed a case for the declaration of nullity of the
building permit. After conducting an inspection, the court
dismissed the complaint holding that (a) the chapel is 55.95
meters away from the funeral parlor and (b) the building owned by
Mr. Tepoot is being rented to Mr. Asiaten who devotes said place
to his laundry business.
On appeal, the CA reversed. It disagreed with the lower court's
determination that Tepoot's building was commercial and ruled
that although it was used by Mr. Tepoot's lessee for laundry

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S . Y.

business, it was a residential lot as reflected in the tax

declaration, thus paving the way for the application of Ordinance
No. 363.

08-09:

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constitutes permissible use within a particular district or zone in

Davao City.

with business and occupations. Thus, persons may be subjected to

certain kinds of restraints and burdens in order to secure the
general welfare of the state and to this fundamental aim of
government, the rights of the individual may be subordinated. The
ordinance which regulates the location of funeral homes has been
adopted as part of comprehensive zoning plans for the orderly
development of the area covered thereunder.

Held:

Yes

Powers of municipal corporations/local governments

Ratio:

In the case at bar, the testimony of City Councilor

8.1 Police Power:

Issue:

WON

petitioner's

operation

of

funeral

home

Vergara shows that Mr. Tepoot's building was used for a dual
purpose both as a dwelling and as a place where a laundry
business was conducted. 8 But while its commercial aspect has
been established by the presence of machineries and laundry
paraphernalia, its use as a residence, other than being declared
for taxation purposes as such, was not fully substantiated.
The reversal by the CA of the trial court's decision was based on
Tepoot's building being declared for taxation purposes as
residential. It is our considered view, however, that a tax
declaration is not conclusive of the nature of the property for
zoning purposes. A property may have been declared by its owner
as residential for real estate taxation purposes but it may well be
within a commercial zone. A discrepancy may thus exist in the
determination of the nature of property for real estate taxation
purposes vis-a-vis the determination of a property for zoning
purposes.
Needless to say, even if we are to examine the evidentiary value of
a tax declaration under the Real Property Tax Code, a tax
declaration only enables the assessor to identify the same for
assessment levels. In fact, a tax declaration does not bind a
provincial/city assessor, for under Sec. 22 of the Real Estate Tax
Code, appraisal and assessment are based on the actual use
irrespective of "any previous assessment or taxpayer's valuation
thereon," which is based on a taxpayer's declaration. In fact, a
piece of land declared by a taxpayer as residential may be assessed
by the provincial or city assessor as commercial because its actual
use is commercial.
The trial court's determination that Mr. Tepoot's building is
commercial and, therefore, Sec. 8 is inapplicable, is strengthened
by the fact that the Sanggunian has declared the questioned area
as commercial. Consequently, even if Tepoot's building was
declared for taxation purposes as residential, once a local
government has reclassified an area as commercial, that
determination for zoning purposes must prevail. While the
commercial character of the questioned vicinity has been declared
thru the ordinance, private respondents have failed to present
convincing arguments to substantiate their claim that Cabaguio
Ave, where the funeral parlor was constructed, was still a
residential zone. Unquestionably, the operation of a funeral parlor
constitutes a "commercial purpose," as gleaned from Ordinance
363.
The declaration of the said area as a commercial zone thru a
municipal ordinance is an exercise of police power to promote the
good order and general welfare of the people in the locality.
Corollary thereto, the state, in order to promote the general
welfare, may interfere with personal liberty, with property, and

Binay v. Domingo ( 1991) supra.

Ratio:

The police power is a governmental function, an

inherent attribute of sovereignty, which was born with civilized

government. It is founded largely on the maxims, "Sic utere tuo et
ahenum non laedas and "Salus populi est suprema lex Its
fundamental purpose is securing the general welfare, comfort and
convenience of the people.
Police power is inherent in the state but not in municipal
corporations). Before a municipal corporation may exercise such
power, there must be a valid delegation of such power by the
legislature which is the repository of the inherent powers of the
State. A valid delegation of police power may arise from express
delegation, or be inferred from the mere fact of the creation of the
municipal corporation; and as a general rule, municipal
corporations may exercise police powers within the fair intent and
purpose of their creation which are reasonably proper to give effect
to the powers expressly granted, and statutes conferring powers
on public corporations have been construed as empowering them
to do the things essential to the enjoyment of life and desirable for
the safety of the people.
Municipal governments exercise this power under the general
welfare clause: pursuant thereto they are clothed with authority to
"enact such ordinances and issue such regulations as may be
necessary to carry out and discharge the responsibilities conferred
upon it by law, and such as shall be necessary and proper to
provide for the health, safety, comfort and convenience, maintain
peace and order, improve public morals, promote the prosperity
and general welfare of the municipality and the inhabitants
thereof, and insure the protection of property therein." And under
Section 7 of BP 337, "every local government unit shall exercise
the powers expressly granted, those necessarily implied therefrom,
as well as powers necessary and proper for governance such as to
promote health and safety, enhance prosperity, improve morals,
and maintain peace and order in the local government unit, and
preserve the comfort and convenience of the inhabitants therein."
Police power is the power to prescribe regulations to promote the
health, morals, peace, education, good order or safety and general
welfare of the people. It is the most essential, insistent, and
illimitable of powers. In a sense it is the greatest and most
powerful attribute of the government.
The police power of a municipal corporation is broad, and has been
said to be commensurate with, but not to exceed, the duty to
provide for the real needs of the people in their health, safety,
comfort, and convenience as consistently as may be with private
rights. It extends to all the great public needs, and, in a broad

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sense includes all legislation and almost every function of the

municipal government. It covers a wide scope of subjects, and,
while it is especially occupied with whatever affects the peace,
security, health, morals, and general welfare of the community, it
is not limited thereto, but is broadened to deal with conditions
which exists so as to bring out of them the greatest welfare of the
people by promoting public convenience or general prosperity, and
to everything worthwhile for the preservation of comfort of the
inhabitants of the corporation. Thus, it is deemed inadvisable to
attempt to frame any definition which shall absolutely indicate the
limits of police power.
Chua Huat v. CA (1991)
Facts:

First case is a petition for review on certiorari of the

decision of the CA and the second is a petition for prohibition with

PI directed against the notices of condemnation and demolition
orders issued by the City Engineer upon authority of the City
Mayor.
In a civil case, the CFI sentenced the petitioners to pay one Uy
certain sums of money as well as to vacate the property and
surrender to the same Uy. The CA affirmed. Petitioners, except
Ong Choan, filed a petition for review on certiorari with the SC
contending that the case is actually an unlawful detainer case,
and therefore the CFI had no jurisdiction over it. The SC denied
the petition. After the decision in the civil case became final and
executory, the private respondents filed a motion to execute the
same. The court granted this.
Petitioner Chua Huat filed with the CFI a complaint for the
annulment of judgment on the ground that the CFI has no
jurisdiction over the civil case which was one for ejectment and not
for recovery of possession. Despite the case, the CFI ordered the
execution of the judgment. The petitioners filed a Petition for
Certiorari and Prohibition with the CA to set aside the order of
execution of judgment and to prohibit the respondents from
executing the judgment. The CA denied the petition for lack of
merit. The CA invoked finality of judgment and res judicata. On
appeal, petitioners contend that there is no res judicata as there is
no identity of causes of action (annulment of judgment, recovery of
poseession).
Issue: WON the present action is barred by res judicata
Held: Yes
Ratio: The records of the two cases will bear it out that the issue
of lack of jurisdiction (which is the cause of action in Civil Case
No. 119751) has been squarely ruled upon, not only by the trial
court in Civil Case No. 74634 but also by the Court of Appeals and
by the Supreme Court.
Plaintiff-appellant further contends that since the issue of
jurisdiction in Civil Case No. 74634 was raised in their MR before
the CA in CA-G.R. No. 51337-R, the CA did not, in its resolution
denying said motion, pass on the same and on appeal by petition
for review to the Supreme Court in L-47603 and L-48649, where
the same issue among others was raised, the High Court in its
minutes' (sic) did not rule squarely on said issue. We find the same
likewise untenable. Issues raised by the parties in their brief and

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08-09:

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passed upon subsilencio by the appellate court in a decision which

has become final and executory are considered closed and can no
longer be revived by the parties in a subsequent litigation without
doing violence to the principle of res judicata.
What more, neither the Supreme Court nor the Appellate Court is
duty bound to discuss the pros and cons of appellant's argument.
Tatel v. Mun. of Virac (1992)
Facts:

On the basis of the complaints received from the

residents of barrio Sta. Elena against the disturbance caused by

the operation of the abaca bailing machine inside petitioners
warehouse which emitted obnoxious odor and dust, a committee
was appointed by the municipal council of Virac to investigate the
matter. The committee noted that the warehouse was near
residential houses and that the inflammable materials inside
created danger to the lives and properties of the people within the
neighborhood. Resolution 29 was passed by the Municipal Council
declaring the warehouse as a public nuisance within the purview
of Article 694 of the CC. The petitioners MR was denied.
Petitioner filed a petition for prohibition with preliminary
injunction with the CFI enjoining them from enforcing Resolution
29 of the Council. The municipal officials contend that the
warehouse was constructed in violation of Ordinance No. 13 4, s
1952, prohibiting the construction of warehouses near a block of
houses either in the poblacion or barrios without maintaining the
necessary distance of 200 meters from said block of houses to
avoid loss of lives and properties by accidental fire. Petitioner
contends that said ordinance is unconstitutional, contrary to the
due process and equal protection clause of the Constitution and
null and void for not having been passed in accordance with law.
The court ruled in favor of the municipal council and held that the
ordinance was a legitimate and valid exercise of police power by
the municipal council.
Issue:

WON the enactment was pursuant to a legitimate

exercise of police power

Held:
Ratio:

Yes
Ordinance No. 13, series of 1952, was passed by the

Municipal Council of Virac in the exercise of its police power. It is

a settled principle of law that municipal corporations are agencies
of the State for the promotion and maintenance of local selfgovernment and as such are endowed with the police powers in
order to effectively accomplish and carry out the declared objects
of their creation. Its authority emanates from the general welfare
clause under the Administrative Code.
For an ordinance to be valid, it must not only be within the
corporate powers of the municipality to enact but must also be
passed according to the procedure prescribed by law, and must be
in consonance with certain well established and basic principles of
a substantive nature. These principles require that a municipal
4

AN
ORDINANCE
STRICTLY
PROHIBITING
THE
CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A
BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH
NECESSARY DISTANCE TO AVOID GREAT LOSSES OF
PROPERTY AND LIVES BY FIRE ACCIDENT.

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Government

(Guanzon)

ordinance (1) must not contravene the Constitution or any statute

(2) must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5)
must be general and consistent with public policy, and (6) must
not be unreasonable. Ordinance No. 13, s1952, meets these
criteria.
In spite of its fractured syntax, basically, what is regulated by the
ordinance is the construction of warehouses wherein inflammable
materials are stored where such warehouses are located at a
distance of 200 meters from a block of houses and not the
construction per se of a warehouse. The purpose is to avoid the
loss of life and property in case of fire which is one of the
primordial obligation of the government. Experience, however, will
show that this is not uncommon in law making bodies in small
towns where local authorities and in particular the persons
charged with the drafting and preparation of municipal
resolutions and ordinances lack sufficient education and training
and are not well grounded even on the basic and fundamental
elements of the English language commonly used throughout the
country in such matters.
The ambiguity therefore is more apparent than real and springs
from simple error in grammar but otherwise, the meaning and
intent is clear that what is prohibited is the construction or
maintenance of warehouses for the storage of inflammable articles
at a distance within 200 meters from a block of houses either in
the poblacion or in the barrios. And the purpose of the ordinance
is to avoid loss of life and property in case of accidental fire which
is one of the primordial and basic obligation of any government.
As to the contention, that warehouses similarly situated as that of
the petitioner were not prosecuted, the mere fact that the
municipal authorities have not proceeded against other
warehouses in the municipality allegedly violating Ordinance 13
is no reason to claim that the ordinance is discriminatory. A
distinction must be made between the law itself and the manner
in which said law is implemented by the agencies in charge with
its administration/enforcement. There is no valid reason for the
petitioner to complain, in the absence of proof that the other
bodegas mentioned by him are operating in violation of the
ordinance and that the complaints have been lodged against the
bodegas concerned without the municipal authorities doing
anything about it.
The objections interposed by the petitioner to the validity of the
ordinance have not been substantiated. Its purpose is well within
the objectives of sound government. No undue restraint is placed
upon the petitioner or for anybody to engage in trade but merely a
prohibition from storing inflammable products in the warehouse
because of the danger of fire to the lives and properties of the
people residing in the vicinity. As far as public policy is concerned,
there can be no better policy than what has been conceived by the
municipal government.
Power of Mayor to issue permits for rallies; BP 880
Bayan v. Ermita (2006)
Issue: They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such
permit can be validly required without violating the

S . Y.

08-09:

2nd

Sem.

Constitutional guarantee. PERMIT IS REQUIRED! LG

SHOULD PLACE FREEDOM PARKS!
Petitioners standing cannot be seriously challenged. Their right
as citizens to engage in peaceful assembly and exercise the right of
petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly
assemble in the national streets and parks.
There is no question as to the petitioners rights to peaceful
assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes
not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the
Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII.
Jurisprudence abounds with hallowed pronouncements defending
and promoting the peoples exercise of these rights.
There are, of course, well-defined limits. What is guaranteed is
peaceable assembly. One may not advocate disorder in the name of
protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or
assembly. Resort to force is ruled out and outbreaks of violence to
be avoided. The utmost calm though is not required. As pointed
out in an early Philippine case, penned in 1907 to be precise,
United States v. Apurado: "It is rather to be expected that more or
less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such
occasions feeling is always wrought to a high pitch of excitement,
and the greater the grievance and the more intense the feeling,
the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." It bears repeating that
for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided. To give free rein
to ones destructive urges is to call for condemnation. It is to make
a mockery of the high estate
Held:

In this Decision, the Court goes even one step further in

safeguarding liberty by giving local governments a deadline of 30

days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so
identified in accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of whatever kind
shall be required to hold an assembly therein. The only
requirement will be written notices to the police and the mayors
office to allow proper coordination and orderly activities.
Disposition.

Petition

GRANTED

and

respondents

are

DIRECTED comply with Section 15 of BP No. 880 through the

establishment or designation of at least one suitable freedom park
or plaza in every city and municipality of the country. After 30
days from the finality of this Decision, subject to the giving of
advance notices, no prior permit shall be required to exercise the
right to peaceably assemble and petition in the public parks or
plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive

34 | L o c a l

Government

(Guanzon)

Response (CPR), insofar as it would purport to differ from or be in

lieu of maximum tolerance, is VOID. The constitutionality of
Batas Pambansa No. 880 is SUSTAINED.
8.2 Power of taxation: local taxes and real property tax
Local taxation:
Basco v. Phil Amusement and Gaming Corp (1991)
Manila, being a mere municipal corporation, has no inherent right
to impose taxes. Congress has the power of control over local
governments. If Congress can grant Manila the power to tax
certain matters, it can also provide for exemptions or even take
back the power.
LGUs also have no power to tax instrumentalities of the National
Government. PAGCOR, being such, should be and actually is
exempt from local taxes. Otherwise, mere creatures of the State
can defeat national policies thru extermination of what local
authorities may perceive to be undesirable activities or enterprise
using the power to tax as a tool for regulation.
From class notes: LGU no inherent power to tax? Not exactly
true, because there is constitutional basis (but cant say that it is
inherent) BASCO IS NO LONGER GOOD LAW!!!
Phil Petroleum Corp v. Mun. of Pililia (1991)
Facts:

Petitioner is a business enterprise engaged in the

manufacture of lubricated oil basestock which is a petroleum

product, with its refinery plant situated at Malaya, Pililla, Rizal.
PPC owns and maintains an oil refinery including 49 storage
tanks for its petroleum products in Malaya, Pililla, Rizal. Under
Section 142 of the NIRC of 1939, manufactured oils and other
fuels are subject to specific tax.
On June 28, 1973, PD 231 (Local Tax Code) was issued enacted.
Sections 19 and 19 (a) provide that the municipality may impose
taxes on business, except on those for which fixed taxes are
provided on manufacturers, importers or producers of any article
of commerce of whatever kind or nature, including brewers,
distillers, rectifiers, repackers, and compounders of liquors,
distilled spirits and/or wines in accordance with the schedule
listed therein.
The Secretary of Finance issued Provincial Circular No. 26-73
(December 27, 1973) directed to all provincial, city and municipal
treasurers to refrain from collecting any local tax imposed in old or
new tax ordinances in the business of manufacturing, wholesaling,
retailing, or dealing in petroleum products subject to the specific
tax under the NIRC. Provincial Circular No. 26 A-73 (January 9,
1973)was also issued instructing all City Treasurers to refrain
from collecting any local tax imposed in tax ordinances enacted
before or after the effectivity of the Local Tax Code, on the
businesses of manufacturing, wholesaling, retailing, or dealing in,
petroleum products subject to the specific tax under the NIRC.
Respondent enacted Municipal Tax Ordinance No. 1, S-1974
otherwise known as "The Pililla Tax Code of 1974" which took
effect on July 1, 1974. Sections 9 and 10 of the said ordinance
imposed a tax on business, except for those for which fixed taxes
are provided in the Local Tax Code on manufacturers, importers,

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08-09:

2nd

Sem.

or producers of any article of commerce of whatever kind or

nature, including brewers, distillers, rectifiers, repackers, and
compounders of liquors, distilled spirits and/or wines in
accordance with the schedule found in the Local Tax Code, as well
as mayor's permit, sanitary inspection fee and storage permit fee
for flammable, combustible or explosive substances, while Section
139 of the disputed ordinance imposed surcharges and interests on
unpaid taxes, fees or charges .
On April 13, 1974, P.D. 436 was promulgated increasing the
specific tax on lubricating oils, gasoline, bunker fuel oil, diesel fuel
oil and other similar petroleum products levied under Sections
142, 144 and 145 of the NIRC, and granting provinces, cities and
municipalities certain shares in the specific tax on such products
in lieu of local taxes imposed on petroleum products. The
questioned Municipal Tax Ordinance No. 1 was reviewed and
approved by the Provincial Treasurer of Rizal, but was not
implemented and/or enforced by the Municipality of Pililla
because of its having been suspended up to now in view of
Provincial Circular Nos. 26-73 and 26 A-73.
On June 3, 1977, P.D. 1158 otherwise known as the National
Internal Revenue Code of 1977 was enacted, Section 153 of which
specifically imposes specific tax on refined and manufactured
mineral oils and motor fuels.
Enforcing the provisions of the ordinance, the respondent filed a
complaint against PPC for the collection of the business tax from
1979 to 1986; storage permit fees from 1975 to 1986; mayor's
permit and sanitary inspection fees from 1975 to 1984. PPC,
however, have already paid the last-named fees starting 1985. The
RTC rendered a decision against petitioner.
Issue:

WON PPC whose oil products are subject to specific tax

under the NIRC, is still liable to pay (a) tax on business and (b)
storage fees, considering Provincial Circular No. 6-77; and mayor's
permit and sanitary inspection fee unto the respondent
Municipality of Pililla, Rizal, based on Municipal Ordinance No. 1
Held:

Yes

Ratio:
PPC contends that: (a) Provincial Circular No. 2673
declared as contrary to national economic policy the imposition of
local taxes on the manufacture of petroleum products as they are
already subject to specific tax under the National Internal
Revenue Code; (b) the above declaration covers not only old tax
ordinances but new ones, as well as those which may be enacted in
the future; (c) both Provincial Circulars (PC) 26-73 and 26 A-73
are still effective, hence, unless and until revoked, any effort on
the part of the respondent to collect the suspended tax on business
from the petitioner would be illegal and unauthorized; and (d)
Section 2 of P.D. 436 prohibits the imposition of local taxes on
petroleum products.
PC No. 26-73 and PC No. 26 A-73 suspended the effectivity of local
tax ordinances imposing a tax on business under Section 19 (a) of
the Local Tax Code, with regard to manufacturers, retailers,
wholesalers or dealers in petroleum products subject to the
specific tax under the NIRC, in view of Section 22 (b) of the Code
regarding non-imposition by municipalities of taxes on articles,
subject to specific tax under the provisions of the NIRC.

35 | L o c a l

Government

(Guanzon)

There is no question that Pililla's Municipal Tax Ordinance No. 1

imposing the assailed taxes, fees and charges is valid especially
Section 9 (A) which according to the trial court "was lifted in toto
and/or is a literal reproduction of Section 19 (a) of the Local Tax
Code as amended by P.D. No. 426." It conforms with the mandate
of said law.
But P.D. No. 426 amending the Local Tax Code is deemed to have
repealed Provincial Circular Nos. 26-73 and 26 A-73 issued by the
Secretary of Finance when Sections 19 and 19 (a), were carried
over into P.D. No. 426 and no exemptions were given to
manufacturers, wholesalers, retailers, or dealers in petroleum
products.
Well-settled is the rule that administrative regulations must be in
harmony with the provisions of the law. In case of discrepancy
between the basic law and an implementing rule or regulation, the
former prevails. Furthermore, while Section 2 of P.D. 436
prohibits the imposition of local taxes on petroleum products, said
decree did not amend Sections 19 and 19 (a) of P.D. 231 as
amended by P.D. 426, wherein the municipality is granted the
right to levy taxes on business of manufacturers, importers,
producers of any article of commerce of whatever kind or nature. A
tax on business is distinct from a tax on the article itself. Thus, if
the imposition of tax on business of manufacturers, etc. in
petroleum products contravenes a declared national policy, it
should have been expressly stated in P.D. No. 436.
The exercise by local governments of the power to tax is ordained
by the present Constitution. To allow the continuous effectivity of
the prohibition set forth in PC No. 26-73 (1) would be tantamount
to restricting their power to tax by mere administrative issuances.
Under Section 5, Article X of the 1987 Constitution, only
guidelines and limitations that may be established by Congress
can define and limit such power of local governments.
Provincial Circular No. 6-77 enjoining all city and municipal
treasurers to refrain from collecting the so-called storage fee on
flammable or combustible materials imposed in the local tax
ordinance of their respective locality frees petitioner PPC from the
payment of storage permit fee.
The storage permit fee being imposed by Pililla's tax ordinance is
a fee for the installation and keeping in storage of any flammable,
combustible or explosive substances. Inasmuch as said storage
makes use of tanks owned not by the municipality of Pililla, but by
petitioner PPC, same is obviously not a charge for any service
rendered by the municipality as what is envisioned in Section 37
of the same Code.
Section 10 (z) (13) of Pililla's Municipal Tax Ordinance No. 1
prescribing a permit fee is a permit fee allowed under Section 36
of the amended Code.
As to the authority of the mayor to waive payment of the mayor's
permit and sanitary inspection fees, the trial court did not err in
holding that "since the power to tax includes the power to exempt
thereof which is essentially a legislative prerogative, it follows
that a municipal mayor who is an executive officer may not
unilaterally withdraw such an expression of a policy thru the
enactment of a tax." The waiver partakes of the nature of an
exemption. It is an ancient rule that exemptions from taxation are
construed in strictissimi juris against the taxpayer and liberally in
favor of the taxing authority. Tax exemptions are looked upon with

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08-09:

2nd

Sem.

disfavor. Thus, in the absence of a clear and express exemption

from the payment of said fees, the waiver cannot be recognized. As
already stated, it is the law-making body, and not an executive like
the mayor, who can make an exemption. Under Section 36 of the
Code, a permit fee like the mayor's permit, shall be required before
any individual or juridical entity shall engage in any business or
occupation under the provisions of the Code.
However, since the Local Tax Code does not provide the
prescriptive period for collection of local taxes, Article 1143 of the
Civil Code applies. Said law provides that an action upon an
obligation created by law prescribes within ten (10) years from the
time the right of action accrues. The Municipality of Pililla can
therefore enforce the collection of the tax on business of petitioner
PPC due from 1976 to 1986, and NOT the tax that had accrued
prior to 1976.
Floro Cement Corporation v. Gorospe (1991)
Facts:

The municipality of Lugait filed with the SC a verified

complaint for collection of taxes against the defendant Floro

Cement Corporation. The taxes sought to be collected by the
plaintiff refers to "manufacturers" and' exporter's "taxes for the
period from January 1, 1974 to September 30, 1975, inclusive, in
the total amount of P161,875.00 plus 25% thereof as surcharge.
Plaintiff alleged that the imposition and collection of these taxes"
is based on its Municipal Ordinance No. 5, otherwise known as the
Municipal Revenue Code of 1974, which was passed pursuant to
PD 231 and also Municipal Ordinance No. 10 passed pursuant PD
426,amending PD 231.
Petitioner set up the defense that it is not liable to pay
manufacturer's and exporter's taxes alleging among others that
the plaintiffs power to levy and collect taxes, fees, rentals,
royalties or charges of any kind whatsoever on defendant has been
limited or withdrawn by Section 52 of PD 463. It also contended
that the defendant was granted by the Secretary of Agriculture
and Natural Resources a Certificate of Qualification for Tax
Exemption, entitling defendant to exemption for a period of 5 years
from April 30,1969 to April 29, 1974 from payment of all taxes,
except income tax, and which Certificate was amended on
November 5, 1974 CQTE P.D. 463-22), entitling defendant to
exemption from all taxes, duties and fees except income tax, for
five (5) years from the first date of actual commercial production of
saleable mineral products that is from May 17, 1974 to January 1,
1978; and that RA 3823, as implemented by Mines Administrative
Order No. V-25, and P.D. No. 463 which are the basis for the
exemption granted to defendant are special laws whereas, the
municipal ordinance mentioned in the complaint which are based
on P.D. No. 231 and P.D No. 426, respectively, are general laws;
and that it is axiomatic that a special law can not be amended
and/or repealed by a general law unless there is an express intent
to repeal or abrogate the provisions of the special law. The trial
court rendered a decision ordering defendant to pay the amount of
P161,875 as manufacturers and exporters taxes and surcharges.
Issue:

WON Ordinances Nos. 5 and 10 of Lugait apply to Floro

Corporation notwithstanding the limitation on the taxing power of

local government as provided for in Sec. 52 of P.D. 231 and Sec. 52
of P.D. 463.

36 | L o c a l

Government

(Guanzon)

Held:

Yes

Ratio:

Floro Cement Corporation holds that since Ordinances

Nos. 5 and 10 were enacted pursuant to P.D. No. 231 and P.D. No.
426, respectively, said ordinances do not apply to its business in
view of the limitation on the taxing power of local government
provided in Sec. 5m of P.D. No. 231 [(m) Taxes on mines, mining
operations and mineral products and their by-products when sold
domestically by the operator.]. Petitioner likewise contends that
cement is a mineral product, relying on the case of Cebu Portland
Cement Company vs. CIR. Petitioner further contends that the
partial exemption was rendered absolute by Sec. 52 of P.D. No.
463, which expressly prohibits the province, city municipality,
barrio and municipal district from levying and collecting taxes,
fees, rentals, royalties or charges of any kind whatsoever on mines,
mining claims and mineral products, any law to the contrary
notwithstanding.
On other hand, while respondent municipality admits that
petitioner undertakes exploration, development and exploitation of
mineral products, the taxes sought to be collected were not
imposed on these activities in view of the mentioned prohibition
under Sec. 52 of P.D. No. 463. Said taxes were levied on the
corporation's business of manufacturing and exporting cement.
The business of manufacturing and exporting cement does not fall
under exploration, development nor exploitation of mineral
resources as defined in Sec. 2 of P.D. No. 463, hence, it is outside
the scope of application of Sec. 52 of said decree.
On the question of whether or not cement is a mineral product,
this Court has held that it is not a mineral product but rather a
manufactured product. While cement is composed of 80%
minerals, it is not merely an admixture or blending of raw
materials, as lime, silica, shale and others. It is the result of a
definite process-the crushing of minerals, grinding, mixing,
calcining adding of retarder or raw gypsum In short, before
cement reaches its saleable form, the minerals had already
undergone a chemical change through manufacturing process. It
appears that the foregoing cases overruled the case of Cebu
Portland Cement Company vs. CIR which was cited by petitioner.
On the exemption claimed by petitioner, this Court has laid down
the rule that as the power of taxation is a high prerogative of
sovereignty, the relinquishment is never presumed and any
reduction or diminution thereof with respect to its mode or its
rate, must be strictly construed, and the same must be coached in
clear and unmistakable terms in order that it may be applied.
More specifically stated, the general rule is that any claim for
exemption from the tax statute should be strictly construed
against the taxpayer. He who claims an exemption must be able to
point out some provision of law creating the right; it cannot be
allowed to exist upon a mere vague implication or inference. It
must be shown indubitably to exist, for every presumption is
against it, and a well-founded doubt is fatal to the claim. The
petitioner failed to meet this requirement.
As held by the lower court, the exemption mentioned in Sec. 52 of
P.D. No. 463 refers only to machineries, equipment, tools for
production, etc., as provided in Sec. 53 of the same decree. The
manufacture and the export of cement does not fall under the said

S . Y.

08-09:

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provision for it is not a mineral product. It is not cement that is

mined only the mineral products composing the finished product.
Furthermore, by the parties' own stipulation of facts submitted
before the court a quo, it is admitted that Floro Cement
Corporation is engaged in the manufacturing and selling,
including exporting of cement. As such, and since the taxes sought
to be collected were levied on these activities pursuant to Sec. 19
of P.D. No. 231, Ordinances Nos. 5 and 10, which were enacted
pursuant to P.D. No. 231 and P.D. No. 426, respectively, properly
apply to petitioner.
Tuzon and Mapagu v. CA (1992)
Facts:

On

March

14,

1977,

Sangguniang

Bayan

of

Camalaniugan, Cagayan, adopted Resolution No. 9 5 Soon

Saturnino Jurado sent his agent to the municipal treasurer's
office to pay the license fee of P285 for thresher operators. Mapagu
refused to accept the payment and required him to first secure a
mayor's permit. For his part, Mayor Domingo Tuzon said that
Jurado should first comply with Resolution 9 and sign the
agreement before the permit could be issued. Jurado ignored the
requirement. Instead, he sent the P285 license fee by postal money
order to the office of the treasurer who, returned the said amount.
The reason given was the failure of the respondent to comply with
Resolution No. 9.
Jurado filed with the CFICagayan a special civil action for
mandamus with actual and moral damages to compel the issuance
of the mayor's permit and license. He also filed a declaratory
judgment against the said resolution (and the implementing
agreement) for being illegal either as a donation or as a tax
measure. The trial court upheld the challenged measure. However,
it dismissed the claims for damages of both parties for lack of
evidence. The CA affirmed, nevertheless, it found Tuzon and
Mapagu to have acted maliciously and in bad faith when they
denied Jurado's application for the mayor's permit and license.
Consequently, they were held liable to pay damages.
On appeal, petitioners stress that they were acting in their official
capacity and therefore they should not be liable for damages.
Jurado claimed that the refusal to issue the permit and license
constituted bad faith on the part of petitioners. Also, he claimed
that Resolution 9 contravened the limitations on the taxing
powers of LGUs under Section 5 of the Tax Code.
Issue:

WON the Resolution is valid

Held:

Yes

Ratio:

We need not concern ourselves at this time with the

validity of Resolution 9 and the implementing agreement because

the issue has not been raised in this petition as an assigned error
of the respondent court. The measures have been sustained in the
challenged decision, from which the respondent has not appealed.
The decision is final and binding as to him. We may observe at this
5

Find raising scheme to finance the construction of the

Sports and Nutrition Center Building by soliciting 1%
donation form the thresher operators who will apply for a
permit to thresh within the municipality.

37 | L o c a l

Government

(Guanzon)

time that in sustaining Resolution No. 9, the CA said no more

than that:
It was passed by the Sangguniang Bayan of Camalaniugan in the
lawful exercise of its legislative powers in pursuance to Article XI,
Section 5 of the 1973 Constitution which provided that: "Each
local government unit shall have the power to create its own
source of revenue and to levy taxes, subject to such limitation as
may be provided by law." And under Article 4, Section 29 of PD
231 (Enacting a Local Tax Code for Provinces, Cities,
Municipalities and Barrios), it is provided that:
Section 29. Contributions.In addition to the above specified taxing
and other revenue-raising powers, the barrio council may solicit
monies, materials, and other contributions from the following
sources: (c) Monies from private agencies and individuals."
That is an over simplification. The CA has not offered any
explanation for its conclusion that the challenged measures are
valid nor does it discuss its own concept of the nature of the
resolution.
While it would appear from the wording of the resolution that the
municipal government merely intends to "solicit" the 1%
contribution from the threshers, the implementing agreement
seems to make the donation obligatory and a condition precedent
to the issuance of the mayor's permit. This goes against the nature
of a donation, which is an act of liberality and is never obligatory.
If, on the other hand, it is to be considered a tax ordinance, then it
must be shown in view of the challenge raised by the private
respondents to have been enacted in accordance with the
requirements of the Local Tax Code. These would include the
holding of a public hearing on the measure and its subsequent
approval by the Secretary of Finance, in addition to the usual
requisites for publication of ordinances in general.
Issue:

WON petitioners are liable for damages

Held:

No

Ratio:

The private respondent anchors his claim for damages

on Article 27 CC (Refusal to Render Service). It has been

remarked that one purpose of this article is to end the "bribery
system, where the public official, for some flimsy excuse, delays or
refuses the performance of his duty until he gets some kind of
pabagsak." Official inaction may also be due to plain indolence or a
cynical indifference to the responsibilities of public service. The
provision presupposes that the refusal or omission of a public
official to perform his official duty is attributable to malice or
inexcusable negligence. In any event, the erring public functionary
is justly punishable under this article for whatever loss or damage
the complainant has sustained.
In the present case, it has not even been alleged that the Mayor
Tuzon's refusal to act on the private respondent's application was
an attempt to compel him to resort to bribery to obtain approval of
his application. It cannot be said either that the mayor and the
municipal treasurer were motivated by spite or were grossly
negligent in refusing to issue the permit and license to Jurado.
It is no less significant that no evidence has been offered to show
that the petitioners singled out the private respondent for
persecution. Neither does it appear that the petitioners stood to

S . Y.

08-09:

2nd

Sem.

gain personally from refusing to issue to Jurado the mayor's

permit and license he needed. The petitioners were not Jurado's
business competitors nor has it been established that they
intended to favor his competitors. On the contrary, the record
discloses that the resolution was uniformly applied to all the
threshers in the municipality without discrimination or
preference.
The Court is convinced that the petitioners acted within the scope
of their authority and in consonance with their honest
interpretation of the resolution in question. We agree that it was
not for them to rule on its validity. In the absence of a judicial
decision declaring it invalid, its legality would have to be
presumed (in fact, both the trial court and the appellate court said
there was nothing wrong with it). As executive officials of the
municipality, they had the duty to enforce it as long as it had not
been repealed by the Sangguniang Bayan or annulled by the
courts.
The private respondent complains that as a result of the
petitioners' acts, he was prevented from operating his business all
this time and earning substantial profit therefrom, as he had in
previous years. But as the petitioners correctly observed, he could
have taken the prudent course of signing the agreement under
protest and later challenging it in court to relieve him of the
obligation to "donate." Pendente lite, he could have continued to
operate his threshing business and thus avoided the lucro cesante
that he now says was the consequence of the petitioners' wrongful
act. He could have opted for the less obstinate but still dissentient
action, without loss of face, or principle, or profit.
Franchises
PLDT v. City of Davao (2001)
PLDT is liable for the local franchise tax. Section 137 does not
state that it covers future exemptions. The grant of taxing powers
to LGU's in the consti and the LGC does not affect the power of
Congress to grant exemptions in the future. The only legal effect of
the constitutional grant to local governemnts: in interpreting
statutory provisions on municipal taxing powers, doubts should be
resolved in favor of municipal corporations.
City Government of Q.C. v. Bayantel (2006)
Facts:

Bayantel is a legislative franchise holder under RA 3259

to establish and operate radio stations for domestic

telecommunications, radiophone, broadcasting and telecasting. Of
relevance to this controversy is the tax provision of Rep. Act No.
3259, embodied in Section 14 thereof, which reads:
SECTION 14. (a) The grantee shall be liable to pay the same taxes
on its real estate, buildings and personal property, exclusive of the
franchise, as other persons or corporations are now or hereafter
may be required by law to pay. (b) The grantee shall further pay to
the Treasurer of the Philippines each year, within ten days after
the audit and approval of the accounts as prescribed in this Act,
one and one-half per centum of all gross receipts from the
business transacted under this franchise by the said grantee
The LGC took effect and granted the LGUS within Metro Manila
the power to levy on real properties. On July 20, 1992, barely few

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months after the LGC took effect, Congress enacted RA 7633,

amending Bayantel's original franchise. The amendatory law
contained an in lieu of taxes clause (3%).
In 1993, the government of Quezon City, pursuant to the taxing
power vested on local government units by Section 5, Article X of
the 1987 Constitution, infra, in relation to Section 232 of the LGC,
supra, enacted City Ordinance No. SP-91, S-93, otherwise known
as the Quezon City Revenue Code (QCRC), 5 imposing, under
Section 5 thereof, a real property tax on all real properties in
Quezon City, and, reiterating in its Section 6, the withdrawal of
exemption from real property tax under Section 234 of the LGC,
supra. Furthermore, much like the LGC, the QCRC, under its
Section 230, withdrew tax exemption privileges in general.
Conformably with the City's Revenue Code, new tax declarations
for Bayantel's real properties in Quezon City were issued by the
City Assessor and were received by Bayantel on August 13, 1998,
except one (Tax Declaration No. 124-01013) which was received on
July 14, 1999.
Meanwhile, on March 16, 1995, Rep. Act No. 7925, otherwise
known as the "Public Telecommunications Policy Act of the
Philippines," envisaged to level the playing field among
telecommunications companies, took effect. Section 23 of the Act
provides an equality clause.
On January 7, 1999, Bayantel wrote the office of the City Assessor
seeking the exclusion of its real properties in the city from the roll
of taxable real properties. With its request having been denied,
Bayantel interposed an appeal with the LBAA. And, evidently on
its firm belief of its exempt status, Bayantel did not pay the real
property taxes assessed against it by the Quezon City government.
On account thereof, the Quezon City Treasurer sent out notices of
delinquency for the total amount of P43,878,208.18, followed by
the issuance of several warrants of levy against Bayantel's
properties preparatory to their sale at a public auction set on July
30, 2002.
Threatened with the imminent loss of its properties, Bayantel
immediately withdrew its appeal with the LBAA and instead filed
with the RTC of Quezon City a petition for prohibition with an
urgent application for a temporary restraining order (TRO) and/or
writ of preliminary injunction. The RTC then rendered judgment
exempting Bayantel from taxes.
Issue:

WON

Bayantel

failed

to

exhaust

administrative

remedies
Held:

No

Ratio:

With the reality that Bayantel's real properties were

already levied upon on account of its nonpayment of real estate

taxes thereon, the Court agrees with Bayantel that an appeal to
the LBAA is not a speedy and adequate remedy within the context
of the aforequoted Section 2 of Rule 65. This is not to mention of
the auction sale of said properties already scheduled on July 30,
2002.
Moreover, one of the recognized exceptions to the exhaustion-ofadministrative remedies rule is when, as here, only legal issues
are to be resolved. In fact, the Court, cognizant of the nature of the
questions presently involved, gave due course to the instant

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petition. As the Court has said in Ty v. Trampe: . . . . Although as

a rule, administrative remedies must first be exhausted before
resort to judicial action can prosper, there is a well-settled
exception in cases where the controversy does not involve
questions of fact but only of law. . . . .
Lest it be overlooked, an appeal to the LBAA, to be properly
considered, required prior payment under protest of the amount of
P43,878,208.18, a figure which, in the light of the then prevailing
Asian financial crisis, may have been difficult to raise up. Given
this reality, an appeal to the LBAA may not be considered as a
plain, speedy and adequate remedy. It is thus understandable why
Bayantel opted to withdraw its earlier appeal with the LBAA and,
instead, filed its petition for prohibition with urgent application
for injunctive relief in Civil Case No. Q-02-47292. The remedy
availed of by Bayantel under Section 2, Rule 65 of the Rules of
Court must be upheld.
Issue:

WON Bayantel's real properties in Quezon City are,

under its franchise, exempt from real property tax.

Held: No.
Ratio: The lower court resolved the issue in the affirmative,
basically owing to the phrase "exclusive of this franchise" found in
Section 11 of Bayantel's amended franchise, Rep. Act No. 7633. To
petitioners, however, the language of Section 11 of Rep. Act No.
7633 is neither clear nor unequivocal. The elaborate and extensive
discussion devoted by the trial court on the meaning and import of
said phrase, they add, suggests as much. It is petitioners' thesis
that Bayantel was in no time given any express exemption from
the payment of real property tax under its amendatory franchise.
There seems to be no issue as to Bayantel's exemption from real
estate taxes by virtue of the term "exclusive of the franchise"
qualifying the phrase "same taxes on its real estate, buildings and
personal property," found in Section 14, supra, of its franchise,
Rep. Act No. 3259, as originally granted.
The legislative intent expressed in the phrase "exclusive of this
franchise" cannot be construed other than distinguishing between
two (2) sets of properties, be they real or personal, owned by the
franchisee, namely, (a) those actually, directly and exclusively used
in its radio or telecommunications business, and (b) those
properties which are not so used. It is worthy to note that the
properties subject of the present controversy are only those which
are admittedly falling under the first category.
To the mind of the Court, Section 14 of Rep. Act No. 3259
effectively works to grant or delegate to local governments of
Congress' inherent power to tax the franchisee's properties
belonging to the second group of properties indicated above, that
is, all properties which, "exclusive of this franchise," are not
actually and directly used in the pursuit of its franchise. As may
be recalled, 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. While
Section 14 of Rep. Act No. 3259 may be validly viewed as an
implied delegation of power to tax, the delegation under that

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provision, as couched, is limited to impositions over properties of

the franchisee which are not actually, directly and exclusively used
in the pursuit of its franchise. Necessarily, other properties of
Bayantel directly used in the pursuit of its business are beyond
the pale of the delegated taxing power of local governments. In a
very real sense, therefore, real properties of Bayantel, save those
exclusive of its franchise, are subject to realty taxes. Ultimately,
therefore, the inevitable result was that all realties which are
actually, directly and exclusively used in the operation of its
franchise are "exempted" from any property tax.
Bayantel's franchise being national in character, the "exemption"
thus granted under Section 14 of Rep. Act No. 3259 applies to all
its real or personal properties found anywhere within the
Philippine archipelago.
However, with the LGC's taking effect on January 1, 1992,
Bayantel's "exemption" from real estate taxes for properties of
whatever kind located within the Metro Manila area was, by force
of Section 234 of the Code, supra, expressly withdrawn. But, not
long thereafter, however, or on July 20, 1992, Congress passed
Rep. Act No. 7633 amending Bayantel's original franchise. Worthy
of note is that Section 11 of Rep. Act No. 7633 is a virtual
reenacment of the tax provision, i.e., Section 14, supra, of
Bayantel's original franchise under Rep. Act No. 3259. Stated
otherwise, Section 14 of Rep. Act No. 3259 which was deemed
impliedly repealed by Section 234 of the LGC was expressly
revived under Section 14 of Rep. Act No. 7633. In concrete terms,
the realty tax exemption heretofore enjoyed by Bayantel under its
original franchise, but subsequently withdrawn by force of Section
234 of the LGC, has been restored by Section 14 of Rep. Act No.
7633.
The Court has taken stock of the fact that by virtue of Section 5,
Article X of the 1987 Constitution, local governments are
empowered to levy taxes. And pursuant to this constitutional
empowerment, juxtaposed with Section 232 of the LGC, the
Quezon City government enacted in 1993 its local Revenue Code,
imposing real property tax on all real properties found within its
territorial jurisdiction. And as earlier stated, the City's Revenue
Code, just like the LGC, expressly withdrew, under Section 230
thereof, supra, all tax exemption privileges in general.
This thus raises the question of whether or not the City's Revenue
Code pursuant to which the city treasurer of Quezon City levied
real property taxes against Bayantel's real properties located
within the City effectively withdrew the tax exemption enjoyed by
Bayantel under its franchise, as amended.
Bayantel answers the poser in the negative arguing that once
again it is only "liable to pay the same taxes, as any other persons
or corporations on all its real or personal properties, exclusive of
its franchise." Bayantel's posture is well-taken. While the system
of local government taxation has changed with the onset of the
1987 Constitution, the power of local government units to tax is
still limited. As we explained in Mactan Cebu International
Airport Authority:
The power to tax is primarily vested in the Congress; however, in
our jurisdiction, it may be exercised by local legislative bodies, no
longer merely be virtue of a valid delegation as before, but
pursuant to direct authority conferred by Section 5, Article X of
the Constitution. Under the latter, the exercise of the power may

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be subject to such guidelines and limitations as the Congress may

provide which, however, must be consistent with the basic policy of
local autonomy.
Clearly then, while a new slant on the subject of local taxation
now prevails in the sense that the former doctrine of local
government units' delegated power to tax had been effectively
modified with Article X, Section 5 of the 1987 Constitution now in
place, the basic doctrine on local taxation remains essentially the
same. For as the Court stressed in Mactan, "the power to tax is
(still) primarily vested in the Congress."
This new perspective is best articulated by Fr. Joaquin G. Bernas,
S.J., himself a Commissioner of the 1986 Constitutional
Commission which crafted the 1987 Constitution, thus:
What is the effect of Section 5 on the fiscal position of municipal
corporations? Section 5 does not change the doctrine that
municipal corporations do not possess inherent powers of taxation.
What it does is to confer municipal corporations a general power
to levy taxes and otherwise create sources of revenue. They no
longer have to wait for a statutory grant of these powers. The
power of the legislative authority relative to the fiscal powers of
local governments has been reduced to the authority to impose
limitations on municipal powers. Moreover, these limitations must
be "consistent with the basic policy of local autonomy." The
important legal effect of Section 5 is thus to reverse the principle
that doubts are resolved against municipal corporations.
Henceforth, in interpreting statutory provisions on municipal
fiscal powers, doubts will be resolved in favor of municipal
corporations. It is understood, however, that taxes imposed by
local government must be for a public purpose, uniform within a
locality, must not be confiscatory, and must be within the
jurisdiction of the local unit to pass.
In net effect, the controversy presently before the Court involves,
at bottom, a clash between the inherent taxing power of the
legislature, which necessarily includes the power to exempt, and
the local government's delegated power to tax under the aegis of
the 1987 Constitution.
Now to go back to the Quezon City Revenue Code which imposed
real estate taxes on all real properties within the city's territory
and removed exemptions theretofore "previously granted to, or
presently enjoyed by all persons, whether natural or
juridical . . . .," there can really be no dispute that the power of the
Quezon City Government to tax is limited by Section 232 of the
LGC which expressly provides that "a province or city or
municipality within the Metropolitan Manila Area may levy an
annual ad valorem tax on real property such as land, building,
machinery, and other improvement not hereinafter specifically
exempted." Under this law, the Legislature highlighted its power
to thereafter exempt certain realties from the taxing power of local
government units. An interpretation denying Congress such power
to exempt would reduce the phrase "not hereinafter specifically
exempted" as a pure jargon, without meaning whatsoever.
Needless to state, such absurd situation is unacceptable.
For sure, in PLDT v. City of Davao, this Court has upheld the
power of Congress to grant exemptions over the power of local
government units to impose taxes. There, the Court wrote:
Indeed, the grant of taxing powers to local government units
under the Constitution and the LGC does not affect the power of

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Congress to grant exemptions to certain persons, pursuant to a

declared national policy. The legal effect of the constitutional
grant to local governments simply means that in interpreting
statutory provisions on municipal taxing powers, doubts must be
resolved in favor of municipal corporations.
As we see it, then, the issue in this case no longer dwells on
whether Congress has the power to exempt Bayantel's properties
from realty taxes by its enactment of Rep. Act No. 7633 which
amended Bayantel's original franchise. The more decisive question
turns on whether Congress actually did exempt Bayantel's
properties at all by virtue of Section 11 of Rep. Act No. 7633.
Admittedly, Rep. Act No. 7633 was enacted subsequent to the
LGC. Perfectly aware that the LGC has already withdrawn
Bayantel's former exemption from realty taxes, Congress opted to
pass Rep. Act No. 7633 using, under Section 11 thereof, exactly
the same defining phrase "exclusive of this franchise" which was
the basis for Bayantel's exemption from realty taxes prior to the
LGC. In plain language, Section 11 of Rep. Act No. 7633 states
that "the grantee, its successors or assigns shall be liable to pay
the same taxes on their real estate, buildings and personal
property, exclusive of this franchise, as other persons or
corporations are now or hereafter may be required by law to pay."
The Court views this subsequent piece of legislation as an express
and real intention on the part of Congress to once again remove
from the LGC's delegated taxing power, all of the franchisee's
(Bayantel's) properties that are actually, directly and exclusively
used in the pursuit of its franchise.
FELS Enregy v. Prov. Of Batangas (2007)
Facts:

On January 18, 1993, NPC entered into a lease contract

with Polar Energy, Inc. over 3x30 MW diesel engine power barges
moored at Balayan Bay in Calaca, Batangas. The contract,
denominated as an Energy Conversion Agreement, was for a
period of five years.
Article 10 states that NPC shall be
responsible for the payment of taxes. (other than (i) taxes imposed
or calculated on the basis of the net income of POLAR and
Personal Income Taxes of its employees and (ii) construction
permit fees, environmental permit fees and other similar fees and
charges. Polar Energy then assigned its rights under the
Agreement to Fels despite NPCs initial opposition.
FELS received an assessment of real property taxes on the power
barges from Provincial Assessor Lauro C. Andaya of Batangas
City. FELS referred the matter to NPC, reminding it of its
obligation under the Agreement to pay all real estate taxes. It
then gave NPC the full power and authority to represent it in any
conference regarding the real property assessment of the
Provincial Assessor. NPC filed a petition with the LBAA. The
LBAA ordered Fels to pay the real estate taxes. The LBAA ruled
that the power plant facilities, while they may be classified as
movable or personal property, are nevertheless considered real
property for taxation purposes because they are installed at a
specific location with a character of permanency. The LBAA also
pointed out that the owner of the bargesFELS, a private
corporationis the one being taxed, not NPC. A mere agreement
making NPC responsible for the payment of all real estate taxes
and assessments will not justify the exemption of FELS; such a
privilege can only be granted to NPC and cannot be extended to

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FELS. Finally, the LBAA also ruled that the petition was filed out
of time.
Fels appealed to the CBAA. The CBAA reversed and ruled that
the power barges belong to NPC; since they are actually, directly
and exclusively used by it, the power barges are covered by the
exemptions under Section 234(c) of R.A. No. 7160. As to the other
jurisdictional issue, the CBAA ruled that prescription did not
preclude the NPC from pursuing its claim for tax exemption in
accordance with Section 206 of R.A. No. 7160. Upon MR, the
CBAA reversed itself.
Issue:

WON the petition is time barred

Held:

Yes

Ratio:

Section 226 of R.A. No. 7160, otherwise known as the

Local Government Code of 1991, provides: SECTION 226. Local

Board of Assessment Appeals. Any owner or person having legal
interest in the property who is not satisfied with the action of the
provincial, city or municipal assessor in the assessment of his
property may, within sixty (60) days from the date of receipt of the
written notice of assessment, appeal to the Board of Assessment
Appeals of the province or city by filing a petition under oath in
the form prescribed for the purpose, together with copies of the tax
declarations and such affidavits or documents submitted in
support of the appeal.
We note that the notice of assessment which the Provincial
Assessor sent to FELS on August 7, 1995, contained a reiteration
of Section 226. Instead of appealing to the Board of Assessment
Appeals (as stated in the notice), NPC opted to file a motion for
reconsideration of the Provincial Assessors decision, a remedy not
sanctioned by law.
The remedy of appeal to the LBAA is available from an adverse
ruling or action of the provincial, city or municipal assessor in the
assessment of the property. It follows then that the determination
made by the respondent Provincial Assessor with regard to the
taxability of the subject real properties falls within its power to
assess properties for taxation purposes subject to appeal before
the LBAA.
We fully agree with the rationalization of the CA, citing the case of
Callanta v. Office of the Ombudsman, where we ruled that under
Section 226 of R.A. No 7160, the last action of the local assessor on
a particular assessment shall be the notice of assessment; it is this
last action which gives the owner of the property the right to
appeal to the LBAA. The procedure likewise does not permit the
property owner the remedy of filing a motion for reconsideration
before the local assessor.
To reiterate, if the taxpayer fails to appeal in due course, the right
of the local government to collect the taxes due with respect to the
taxpayers property becomes absolute upon the expiration of the
period to appeal. [38] It also bears stressing that the taxpayers
failure to question the assessment in the LBAA renders the
assessment of the local assessor final, executory and demandable,
thus, precluding the taxpayer from questioning the correctness of
the assessment, or from invoking any defense that would reopen
the question of its liability on the merits.

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In fine, the LBAA acted correctly when it dismissed the

petitioners appeal for having been filed out of time; the CBAA and
the appellate court were likewise correct in affirming the
dismissal. Elementary is the rule that the perfection of an appeal
within the period therefor is both mandatory and jurisdictional,
and failure in this regard renders the decision final and executory.
Issue:

WON the action was barred by res judicata

Ratio: Res judicata

pervades

every organized system of

jurisprudence and is founded upon two grounds embodied in

various maxims of common law, namely: (1) public policy and
necessity, which makes it to the interest of the State that there
should be an end to litigation republicae ut sit litium; and (2)
the hardship on the individual of being vexed twice for the same
cause nemo debet bis vexari et eadem causa. A conflicting
doctrine would subject the public peace and quiet to the will and
dereliction of individuals and prefer the regalement of the litigious
disposition on the part of suitors to the preservation of the public
tranquility and happiness.
This is in accordance with the doctrine of res judicata which has
the following elements: (1) the former judgment must be final; (2)
the court which rendered it had jurisdiction over the subject
matter and the parties; (3) the judgment must be on the merits;
and (4) there must be between the first and the second actions,
identity of parties, subject matter and causes of action. The
application of the doctrine of res judicata does not require absolute
identity of parties but merely substantial identity of parties.
There is substantial identity of parties when there is community
of interest or privity of interest between a party in the first and a
party in the second case even if the first case did not implead the
latter.
To recall, FELS gave NPC the full power and authority to
represent it in any proceeding regarding real property assessment.
Therefore, when petitioner NPC filed its petition for review
docketed as G.R. No. 165113, it did so not only on its behalf but
also on behalf of FELS. Moreover, the assailed decision in the
earlier petition for review filed in this Court was the decision of
the appellate court in CA-G.R. SP No. 67490, in which FELS was
the petitioner. Thus, the decision in G.R. No. 165116 is binding on
petitioner FELS under the principle of privity of interest. In fine,
FELS and NPC are substantially identical parties as to warrant
the application of res judicata. FELSs argument that it is not
bound by the erroneous petition filed by NPC is thus unavailing.
Issue:
Ratio:

WON forum shopping exists in this case

Forum shopping exists when, as a result of an adverse

judgment in one forum, a party seeks another and possibly

favorable judgment in another forum other than by appeal or
special civil action or certiorari. There is also forum shopping
when a party institutes two or more actions or proceedings
grounded on the same cause, on the gamble that one or the other
court would make a favorable disposition.
FELS alleges that there is no forum shopping since the elements
of res judicata are not present in the cases at bar; however, as
already discussed, res judicata may be properly applied herein.

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Petitioners engaged in forum shopping when they filed G.R. Nos.

168557 and 170628 after the petition for review in G.R. No.
165116. Indeed, petitioners went from one court to another trying
to get a favorable decision from one of the tribunals which allowed
them to pursue their cases.
It must be stressed that an important factor in determining the
existence of forum shopping is the vexation caused to the courts
and the parties-litigants by the filing of similar cases to claim
substantially the same reliefs. The rationale against forum
shopping is that a party should not be allowed to pursue
simultaneous remedies in two different fora. Filing multiple
petitions or complaints constitutes abuse of court processes, which
tends to degrade the administration of justice, wreaks havoc upon
orderly judicial procedure, and adds to the congestion of the
heavily burdened dockets of the courts.
Thus, there is forum shopping when there exist: (a) identity of
parties, or at least such parties as represent the same interests in
both actions, (b) identity of rights asserted and relief prayed for,
the relief being founded on the same facts, and (c) the identity of
the two preceding particulars is such that any judgment rendered
in the pending case, regardless of which party is successful, would
amount to res judicata in the other.
Having found that the elements of res judicata and forum
shopping are present in the consolidated cases, a discussion of the
other issues is no longer necessary. Nevertheless, for the peace
and contentment of petitioners, we shall shed light on the merits
of the case.
Issue:

WON the petitioner may be assessed real property taxes

Held:

Yes

Ratio:

The CBAA and LBAA power barges are real property

and are thus subject to real property tax. This is also the
inevitable conclusion, considering that G.R. No. 165113 was
dismissed for failure to sufficiently show any reversible error. Tax
assessments by tax examiners are presumed correct and made in
good faith, with the taxpayer having the burden of proving
otherwise. [48] Besides, factual findings of administrative bodies,
which have acquired expertise in their field, are generally binding
and conclusive upon the Court; we will not assume to interfere
with the sensible exercise of the judgment of men especially
trained in appraising property. Where the judicial mind is left in
doubt, it is a sound policy to leave the assessment undisturbed.
We find no reason to depart from this rule in this case.
In Consolidated Edison Company of New York, Inc., et al. v. The
City of New York, et al., a power company brought an action to
review property tax assessment. On the citys motion to dismiss,
the Supreme Court of New York held that the barges on which
were mounted gas turbine power plants designated to generate
electrical power, the fuel oil barges which supplied fuel oil to the
power plant barges, and the accessory equipment mounted on the
barges were subject to real property taxation.
Moreover, Article 415 (9) of the New Civil Code provides that
[d]ocks and structures which, though floating, are intended by
their nature and object to remain at a fixed place on a river, lake,
or coast are considered immovable property. Thus, power barges

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are categorized as immovable property by destination, being in the

nature of machinery and other implements intended by the owner
for an industry or work which may be carried on in a building or
on a piece of land and which tend directly to meet the needs of
said industry or work.
Petitioners maintain nevertheless that the power barges are
exempt from real estate tax under Section 234 (c) of R.A. No. 7160
because they are actually, directly and exclusively used by
petitioner NPC, a government- owned and controlled corporation
engaged in the supply, generation, and transmission of electric
power.
We affirm the findings of the LBAA and CBAA that the owner of
the taxable properties is petitioner FELS, which in fine, is the
entity being taxed by the local government. As stipulated under
Section 2.11, Article 2 of the Agreement:
OWNERSHIP OF POWER BARGES. POLAR shall own the Power
Barges and all the fixtures, fittings, machinery and equipment on
the Site used in connection with the Power Barges which have
been supplied by it at its own cost. POLAR shall operate, manage
and maintain the Power Barges for the purpose of converting Fuel
of NAPOCOR into electricity.
It follows then that FELS cannot escape liability from the
payment of realty taxes by invoking its exemption in Section 234
(c) of R.A. No. 7160. Indeed, the law states that the machinery
must be actually, directly and exclusively used by the government
owned or controlled corporation; nevertheless, petitioner FELS
still cannot find solace in this provision because Section 5.5,
Article 5 of the Agreement provides:
OPERATION. POLAR undertakes that until the end of the Lease
Period, subject to the supply of the necessary Fuel pursuant to
Article 6 and to the other provisions hereof, it will operate the
Power Barges to convert such Fuel into electricity in accordance
with Part A of Article 7.
It is a basic rule that obligations arising from a contract have the
force of law between the parties. Not being contrary to law, morals,
good customs, public order or public policy, the parties to the
contract are bound by its terms and conditions.
Time and again, the Supreme Court has stated that taxation is
the rule and exemption is the exception. The law does not look
with favor on tax exemptions and the entity that would seek to be
thus privileged must justify it by words too plain to be mistaken
and too categorical to be misinterpreted. Thus, applying the rule
of strict construction of laws granting tax exemptions, and the rule
that doubts should be resolved in favor of provincial corporations,
we hold that FELS is considered a taxable entity.
The mere undertaking of petitioner NPC under Section 10.1 of the
Agreement, that it shall be responsible for the payment of all real
estate taxes and assessments, does not justify the exemption. The
privilege granted to petitioner NPC cannot be extended to FELS.
The covenant is between FELS and NPC and does not bind a third
person not privy thereto, in this case, the Province of Batangas.
It must be pointed out that the protracted and circuitous litigation
has seriously resulted in the local governments deprivation of
revenues. The power to tax is an incident of sovereignty and is
unlimited in its magnitude, acknowledging in its very nature no
perimeter so that security against its abuse is to be found only in
the responsibility of the legislature which imposes the tax on the

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constituency who are to pay for it. The right of local government
units to collect taxes due must always be upheld to avoid severe
tax erosion. This consideration is consistent with the State policy
to guarantee the autonomy of local governments and the objective
of the Local Government Code that they enjoy genuine and
meaningful local autonomy to empower them to achieve their
fullest development as self-reliant communities and make them
effective partners in the attainment of national goals.
In conclusion, we reiterate that the power to tax is the most potent
instrument to raise the needed revenues to finance and support
myriad activities of the local government units for the delivery of
basic services essential to the promotion of the general welfare
and the enhancement of peace, progress, and prosperity of the
people.
Digitel v. Prov. Of Pangasinan (2007)
Facts:

The present petition stemmed from a Complaint for

Mandamus, Collection of Sum of Money and Damages instituted

by
the
Province
of
Pangasinan
against
Digital
Telecommunications Philippines, Inc. Section 137 LGC withdrew
any exemption from the payment of franchise tax by authorizing
the LGUs to impose a franchise tax on businesses at a rate not
exceeding 50% of 1% of the gross annual receipts of the business.
Section 232 lso authorizes the imposition of an ad valorem tax on
real property by the LGUs within the Metropolitan Manila Area
wherein the land, building, machinery and other improvement not
thereinafter specifically exempted.
Digitel was granted, under Provincial Ordinance No. 18-92, a
provincial franchise to install, maintain and operate a
telecommunications system within Pangasinan. Under the Sec 6
of the provincial franchise, the grantee is required to pay franchise
and real property taxes. The Sangguniang Panlalawigan also
enacted Provincial Tax Ordinance 1 (Real Property Tax Ordinance
of 1992). Section 4, however, expanded the application of Sec. 6 of
the provincial franchise of Digitel to include machineries and
other improvements, not thereinafter exempted,. Provincial Tax
Ordinance No 4 was then enacted. Sections 4, 5 and 6 positively
imposed a franchise tax on businesses enjoying a franchise within
the province of Pangasinan.
Thereafter, Digitel was granted by RA 7678 a legislative franchise.
Under its legislative franchise, particularly Sec. 5 thereof,
petitioner DIGITEL became liable for the payment of a franchise
tax as may be prescribed by law of all gross receipts of the
telephone or other telecommunications businesses transacted
under it by the grantee, as well as real property tax on its real
estate, and buildings exclusive of this franchise. Later, the
Province of Pangasinan found that Digitel had a franchise tax
deficiency for the years of 1992, 1993 and 1994.
In the interregnum, on 16 March 1995, Congress passed RA 7925,
otherwise known as The Public Telecommunications Policy Act of
the Philippines. Section 23 of this law entitled Equality of
Treatment in the Telecommunications Industry, provided for the
ipso
facto
application
to
any
previously
granted
telecommunications franchises of any advantage, favor, privilege,
exemption or immunity granted under existing franchises, or
those still to be granted, to be accorded immediately and
unconditionally to earlier grantees.

43 | L o c a l

Government

(Guanzon)

Thereafter, Digitel opposed Pangasinans claim on the ground that

prior to the approval of its legislative franchise, its operation of a
telecommunications system was done under a Facilities
Management Agreement it had previously executed with the
DOTC. It clarified that since the facilities in Pangasinan are just
part of the government owned facilities awarded to DIGITEL, not
only did the DOTC retain ownership of said facilities, the latter
likewise provided for the budget for) expenses under its allocation
from the government; hence, all revenues generated from the
operation of the facilities inured to the DOTC; and all the fees
received by petitioner DIGITEL were purely for services rendered.
Further, it argued that under its legislative franchise, the
payment of a franchise tax to the BIR would be in lieu of all
taxes on said franchise or the earnings therefrom.
The Pronvince of Pangasinan filed a Complaint for Mandamus,
Collection of Sum of Money and Damages before Branch 68 of the
RTC of Lingayen, Pangasinan. The trial court decided the
Province. It ruled that Digitels legislative franchise does not work
to exempt the latter from payment of provincial franchise and real
property taxes. It ruled that provincial and legislative franchises
are separate and distinct from each other. Moreover, it pointed out
that LGH already withdrew any exemption granted to anyone.
On the other hand, Digitel maintains that its legislative franchise
being an earlier enactment, by virtue of Section 23 of Republic Act
No. 7925, the ipso facto, immediate and unconditional application
to it of the tax exemption found in the franchises of Globe, Smart
and Bell. Stated simply, Section 23 of Republic Act No. 7925, in
relation to the pertinent provisions of the legislative franchises of
Globe, Smart and Bell, the national franchise tax for which
Digitel is liable to pay shall be in lieu of any and all taxes of any
kind, nature or description levied, established or collected by any
authority whatsoever, municipal, provincial, or national, from
which the grantee is hereby expressly granted.
Issue:

WON Digitel is exempt from the payment of provincial

franchise tax in view of Section 23 of RA 7925 in relation to the

exemptions enjoyed by other telcos.
Held:

No

Ratio:

Prior to the enactment of its legislative franchise, Digitel

did not enjoy and exemption from the payment of franchise and
real property taxes. In fact the provincial franchise made Digitel
liable for the payment of such taxes.
The case at bar is actually not one of first impression. Indeed, as
far back as 2001, this Court has had the occasion to rule against
the claim for tax exemption under RA 7925. In the case of PLDT v.
City of Davao, we already clarified the confusion brought about by
the effect of Section 23 of Republic Act No. 7925 that the word
exemption as used in the statute refers or pertains merely to an
exemption from regulatory or reporting requirements of the DOTC
or the NTC and not to the grantees tax liability. In said case, the
Court ruled that Congress did not intend Section 23 to operate as
a blanket tax exemption to all telcos. Moreover, tax exemptions
must be expressed in the statute in clear language that leaves no
doubt of the intention of the legislature to grant such exemption.
And, even if it is granted, the exemption must be interpreted in

S . Y.

08-09:

2nd

Sem.

strictissimi juris against the taxpayer and liberally in favor of the

taxing authority. Moreover, it ruled that PLDTs theory will leave
the Government with the burden of having to keep track of all
granted telecommunications franchises, lest some companies be
treated unequally. It is different if Congress enacts a law
specifically granting uniform advantages, favor, privilege,
exemption, or immunity to all telecommunications entities.
R.A. No. 7925 is thus a legislative enactment designed to set the
national policy on telecommunications and provide the structures
to implement it to keep up with the technological advances in the
industry and the needs of the public. The thrust of the law is to
promote gradually the deregulation of the entry, pricing, and
operations of all public telecommunications entities and thus
promote a level playing field in the telecommunications industry.
There is nothing in the language of 23 nor in the proceedings of
both the House of Representatives and the Senate in enacting
R.A. No. 7925 which shows that it contemplates the grant of tax
exemptions to all telecommunications entities, including those
whose exemptions had been withdrawn by the LGC.
The issue is then settled, the Court has no recourse but to deny
Digitels claim for exemption from payment of provincial franchise
tax. The foregoing pronouncement notwithstanding, in view of the
passage of RA 7716 abolishing the franchise tax imposed on
telecommunications companies effective 1 January 1996 and in its
place is imposed a 10% VAT,
the in-lieu-of-all-taxes
clause/provision in the legislative franchises of Globe, Smart and
Bell, among others, has now become functus officio, made
inoperative for lack of a franchise tax. Therefore, taking into
consideration the above, from 1 January 1996, Digitel ceased to be
liable for national franchise tax and in its stead is imposed a 10%
VAT in accordance with Section 108 of the Tax Code.
Issue:

WON Digitel is exempt from payment of real estate tax

under its legislative franchise.

Held:

No

Ratio: Pertinent Provision: SECTION 5. Tax Provisions. The

grantee shall be liable to pay the same taxes on its real estate,
buildings, and personal property exclusive of this franchise as
other persons or corporations are now or hereafter may be required
by law to pay x x x.
Owing to the phrase exclusive of this franchise, petitioner
DIGITEL stands firm in its position that it is equally exempt from
the payment of real property tax. It maintains that said phrase
found in Section 5 qualifies or delimits the scope of its liability
respecting real property tax that real property tax should only be
imposed on its assets that are actually, directly and exclusively
used in the conduct of its business pursuant to its franchise.
According to the Province, however, the phrase exclusive of this
franchise in the legislative franchise of Digitel did not specifically
or categorically express that such franchise grant intended to
provide privilege to the extent of impliedly repealing RA 7160.
Thus, the question is, whether or not petitioner DIGITELs real
properties located within the territorial jurisdiction of respondent
Province of Pangasinan are exempt from real property taxes by
virtue of Section 5 of Republic Act No. 7678. We rule in the

44 | L o c a l

Government

(Guanzon)

affirmative. However, it is with the caveat that such exemption

solely applies to those real properties actually, directly and
exclusively used by the grantee in its franchise.
The present issue actually boils down to a dispute between the
inherent taxing power of Congress and the delegated authority to
tax of the local government borne by the 1987 Constitution. In the
PLDT v. City of Davao, we already sustained the power of
Congress to grant exemptions over and above the power of the
local governments delegated taxing authority notwithstanding the
source of such power.
Had Congress intended to tax each and every real property of
Digitel, regardless of whether or not it is used in the business or
operation of its franchise, it would not have incorporated a
qualifying phrase, which such manifestation admittedly is. And,
to our minds, the issue in this case no longer dwells on whether
Congress has the power to exempt Digitels properties from realty
taxes by its enactment of RA 7678 which contains the phrase
exclusive of this franchise, in the face of the mandate of the
Local Government Code. The more pertinent issue to consider is
whether or not, by passing Ra7678, Congress intended to exempt
Digitels real properties actually, directly and exclusively used by
the grantee in its franchise.
The fact that Republic Act No. 7678 was a later piece of legislation
can be taken to mean that Congress, knowing fully well that the
Local Government Code had already withdrawn exemptions from
real property taxes, chose to restore such immunity even to a
limited degree.
In view of the unequivocal intent of Congress to exempt from real
property tax those real properties actually, directly and exclusively
used by petitioner DIGITEL in the pursuit of its franchise,
respondent Province of Pangasinan can only levy real property tax
on the remaining real properties of the grantee located within its
territorial jurisdiction not part of the above-stated classification.
Said exemption, however, merely applies from the time of the
effectivity of petitioner DIGITELs legislative franchise and not a
moment sooner.
In fine, petitioner DIGITEL is found accountable to respondent
Province of Pangasinan for the following tax liabilities: 1) as to
provincial franchise tax, from 13 November 1992 until actually
paid; and 2) as to real property tax, for the period starting from 13
November 1992 until 28 December 1992, it shall be imposed only
on the lands and buildings of petitioner DIGITEL located within
the subject jurisdiction; for the period commencing from 29
December 1992 until 16 February 1994, in addition to the lands
and buildings aforementioned, it shall similarly be imposed on
machineries and other improvements; and, by virtue of the
National Franchise of petitioner DIGITEL or Republic Act No.
7678, in accordance with the Courts ruling in the abovementioned
Bayantel case, from the date of effectivity on 17 February 1994
until the present, it shall be imposed only on real properties NOT
actually, directly and exclusively used in the franchise of petitioner
DIGITEL. In addition to the foregoing summary, pertinent
provisions of law respecting interests, penalties and surcharges
shall also be made to apply to herein subject tax liabilities.
Real Property Taxation and Special Education Fund Tax

S . Y.

08-09:

2nd

Sem.

Sec of Finance v. Ilarde & Cipriano Cabaluna (2005)

Facts: Cipriano P. Cabaluna, Jr., was the Regional Director of
Regional Office No. VI of the DOF. He co-owns with his wife
certain properties in Jaro, Iloilo City Private respondent failed to
pay the land taxes on Lot No. 12 and Lot No. 14 for the years 1986
to 1992. For the years 1991 to 1992, taxes were also unpaid on Lot
No. 941-D-2, on the residential house, and on Lot No. 941-D-1. A
breakdown of the computation of the delinquent taxes showed that
more than 24% of the delinquent taxes were charged and collected
from private respondent by way of penalties. Private respondent
paid his land taxes and the receipts were issued to him by the City
Treasurers Office with the notation paid under protest.
Soon, Cabaluna retired. He then filed a formal protest with the
City Treasurer of Iloilo wherein he contends that the computation
was erroneous since the rate of penalty exceed 24% in
contravention of Section 66 of P.D. No. 464, otherwise known as
the Real Property Tax Code. The Assistant City Treasurer
Rizalina Tulio turned down the protest, citing Sec. 4(c) of Joint
Assessment Regulations No. 1-85 and Local Treasury Regulations
No. 2-85 of the DOF.
Despite his labors to exhaust all administrative remedies, the
denial of his protest and his MR compelled private respondent to
file a Petition for Declaratory Relief with Damages assailing Joint
Assessment Regulations No. 1-85 and Local Treasury Regulations
No. 2-85 which, according to him, flouted Section 66 of P.D. No.
464 which fixed the maximum penalty for delinquency in the
payment of real estate taxes at 24% of the delinquent tax. The
respondent judge declared as null and void the said regulations
and ruled that the total penalty must not exceed 24% of the
delinquent tax.
Issue: WON the Ministry of Finance could legally promulgate
regulations prescribing a rate of penalty on delinquent taxes other
than that provided for under PD 464, also known as the Real
Property Tax Code.
Ratio:

Petitioners standpoint is devoid of basis in law or in

logic. The subject Regulations must be struck down for being

repugnant to Section 66 of P.D. No. 464 or the Real Property Tax
Code, which is the law prevailing at the time material to this case.
Note that under Section 66 of P.D. No. 464, the maximum penalty
for delinquency in the payment of real property tax shall in no
case exceed 24% of the delinquent tax. Upon the other hand,
Section 4(c) of the challenged Joint Assessment Regulations No. 185 and Local Treasury Regulations No. 2-85 issued by respondent
Secretary (formerly Minister) of Finance provides that the
penalty of two percent (2%) per month of delinquency or twentyfour percent (24%) per annum as the case may be, shall continue
to be imposed on the unpaid tax from the time the delinquency
was incurred up to the time that the delinquency is paid for in
full. As adeptly observed by the trial court, the penalty imposed
under the assailed Regulations has no limit inasmuch as the 24%
penalty per annum shall be continuously imposed on the unpaid
tax until it is paid for in full unlike that imposed under Section 66
of the Real Property Tax Code where the total penalty is limited
only to twenty-four percent of the delinquent tax.

45 | L o c a l

Government

(Guanzon)

That such is the effect of an application of the Regulations under

review is not disclaimed by the petitioner anywhere in his
pleadings. Petitioner, however, attempts to justify the issued
Regulations departure from the Real Property Tax Code. Said
Regulations, petitioner says, are sanctioned by EO 73 and its
implementing guidelines, Joint Local Assessment/Treasury
Regulations No. 2-86. Joint Local Assessment/Treasury
Regulations No. 2-86.
The Secretary of Finance avers in his petition that the last
paragraph of Section 1, Joint Local Assessment/Treasury
Regulations No. 2-86, explicitly provides for a 2% per month
penalty without any limitation as to the maximum amount
thereof, which is entirely consistent with the then existing
Regulations, the now challenged Joint Assessment Regulations
No. 1-85 and Local Treasury Regulations No. 2-85. Petitioner
further
asserts
that
inasmuch
as
Joint
Local
Assessment/Treasury Regulations No. 2-86, which echoes the
disputed Regulations, was issued to implement E.O. No. 73,
private respondents recourse is to file a case questioning the
validity of Joint Local Assessment/Treasury Regulations No. 2-86
in the same way that he has assailed Joint Assessment
Regulations No. 1-85 and Local Treasury Regulations No. 2-85.
Petitioners reasoning is, to our mind, but a futile attempt to
muddle the facts of the case and the issues involved. Recall that
the present controversy cropped up when Cabaluna protested the
payment of penalties on his delinquent taxes for being in excess of
the 24% cap provided in p.d. No. 464 or the Real Property Tax
Code. In response to his letter of protest, the Assistant Treasurer
of Iloilo City justified the assessment by citing Sec. 4(c) of Joint
Assessment Regulations No. 1-85 and Local Treasury Regulations
No. 2-85 issued by petitioner Minister (now Secretary) of Finance.
This has lead to the filing of the present case by Cabaluna to
question the validity of the said regulations. It is the validity of
said regulations, not Joint Local Assessment/Treasury
Regulations No. 2-86, that is sought to be resolved herein and
petitioner should not depart from the issue on hand.
The Court harbors doubts on the veracity of petitioners
contention that the Regulations at issue are sanctioned by E.O.
No. 73. The underlying principle behind E.O. No. 73, as gleaned
from the whereas clauses and Section 1 thereof as quoted above, is
to advance the date of effectivity of the application of the Real
Property Tax Values of 1984 from 01 January 1988, the original
date it was intended by E.O. No. 1019 to take effect for purposes
stated therein, to 01 January 1987. E.O. No. 73 did not, in any
way, alter the structure of the real property tax assessments as
provided for in P.D. No. 464 or the Real Property Tax Code.
Neither is this Court easily dissuaded by the submission of the
Secretary of Finance that E.O. No. 73, which provides in Section 2
thereof that: The Minister of Finance shall promulgate the
necessary rules and regulations to implement this Executive
Order, has the effect of according petitioner the blanket authority
to tinker with the rates of penalty on delinquency taxes as
provided for in P.D. No. 464, the general law on real property
taxation. The Court takes notice that E.O. No. 73 did not touch at
all on the topic of amendment of rates of delinquent taxes or the
amendment of rates of penalty on delinquent taxes. E.O. No. 73,
particularly in Section 2 thereof, has merely designated the

S . Y.

08-09:

2nd

Sem.

Minister of Finance to promulgate the rules and regulations

towards the implementation of E.O. No. 73, particularly on the
application of the Real Property Values as of 31 December 1984,
which is the general purpose for enacting said executive order.
In our mind, what is patent from Section 3 of E.O. No. 73 is the
repeal of E.O. No. 1019, not Section 66 of P.D. No. 464.
Neither did E.O. No. 1019 directly or indirectly vest upon the
Department of Finance the right to fiddle with the rates of penalty
to be assessed on delinquency taxes as contained in the Real
Property Tax Code. Even assuming that E.O. No. 1019 had vested
the then Ministry of Finance with the authority to impose new
rates of penalty on delinquency taxes, as petitioner would have us
believe, such authority would have been automatically stripped off
from it upon the express repeal of E.O. No. 1019 by EO No. 73 on
the 25th of November 1986.
Despite the promulgation of EO 73, PD 464 in general and Section
66 in particular, remained to be good law. To accept petitioners
premise that EO 73 had accorded the Ministry of Finance the
authority to alter, increase, or modify the tax structure would be
tantamount to saying that EO 73 has repealed or amended PD
464. Repeal of laws should be made clear and expressed. Repeals
by implication are not favored as laws are presumed to be passed
with deliberation and full knowledge of all laws existing on the
subject. Such repeals are not favored for a law cannot be deemed
repealed unless it is clearly manifest that the legislature so
intended it.[15] The failure to add a specific repealing clause
indicates that the intent was not to repeal any existing law, unless
an irreconcilable inconsistency and repugnancy exist in the terms
of the new and old laws. We find, as the trial court has found, no
such inconsistency or repugnancy between EO 73 and Section 66
of PD 464. Jurisprudence thrives to the effect that it is only
Republic Act No. 7160 or the Local Government Code of 1991,
which repealed the Real Property Tax Code or P.D. No. 464.
Assuming argumenti that E.O. No. 73 has authorized the
petitioner to issue the objected Regulations, such conferment of
powers is void for being repugnant to the well-encrusted doctrine
in political law that the power of taxation is generally vested with
the legislature.[ Yes, President Corazon Aquino, at that time, was
exercising both executive and legislative powers. But, the power
delegated to the executive branch, in this case the Ministry of
Finance, to lay down implementing rules must, nevertheless, be
germane to the general law it seeks to apply. The implementing
rules cannot add to or detract from the provisions of the law it is
designed to implement. Administrative regulations adopted under
legislative authority by a particular department must be in
harmony with the provisions of the law they are intended to carry
into effect, which in this case is merely to antedate the effectivity
of the 1984 Real Property Tax values inasmuch as this is the
raison dtre of E.O. No. 73.
In a last-ditch effort to salvage the impugned Regulations,
petitioner pushes on that Joint Local Assessment/Treasury
Regulations No. 2-86, or the so-called implementing rules of E.O.
No. 73, is not contrary to Section 66 of P.D. No. 464 inasmuch as
the latter applies merely to simple delinquency in the payment of
real property taxes while the former covers cases wherein there
was failure to promptly pay the real property tax due, including
the increase in tax due and demandable for the tax year as a

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Government

(Guanzon)

result of the application of the 1984 New or Revised Assessment of

the value of the subject property.
Such rationalization lacks legal traction. P.D. No. 464 makes no
distinction as to whether it is simple delinquency or other forms
thereof. The Real Property Tax Code covers the wide ilk of failure
to promptly pay the real property taxes due and demandable for a
particular period. Ubi lex non distinguit nec nos distinguere
debemus. When the law does not distinguish, we must not
distinguish. Further, P.D. No. 464 covers all real property titled to
individuals who become delinquents in paying real estate tax.
P.D. No. 464 is a law of general application.
On the second assigned error, the fact that private respondent
Cabaluna was responsible for the issuance and implementation of
Regional Office Memorandum Circular No. 04-89 which
implemented Joint Assessment Regulations No. 1-85 and Local
Treasury Regulations No. 2-85 does not put him in estoppel from
seeking the nullification of said Regulations at this point. In the
case at bar, however, petitioner is suing as a plain taxpayer, he
having already retired as Regional Director. His official acts as
Regional Director could not have stripped him of his rights as a
taxpayer. To be sure, the official acts of petitioner as Regional
Director cannot serve as estoppel for him to pursue the present
course of action that he has taken as a taxpayer.
In any event, a regulation which is in itself invalid for being
contrary to law cannot be validated by any act of endorsement of
any official, much less, by a subordinate of the official who issued
such regulation. Estoppel, certainly, cannot make an invalid
regulation valid.
At bottom, the law applicable, in the case at bar, for purposes of
computation of the real property taxes due from private
respondent for the years 1986 to 1991, including the penalties and
interests, is still Section 66 of the Real Property Tax Code of 1974
or P.D. No. 464. the penalty that ought to be imposed for
delinquency in the payment of real property taxes should,
therefore, be that provided for in Section 66 of P.D. No. 464, i.e.,
two per centum on the amount of the delinquent tax for each
month of delinquency or fraction thereof but in no case shall the
total penalty exceed twenty-four per centum of the delinquent
tax.
Accordingly, the penalties imposed by respondents City Treasurer
and Assistant City Treasurer of Iloilo City on the property of
private respondent are valid only up to 24% of the delinquent
taxes. The excess penalties paid by the private respondent should,
in view of that, be refunded by the latter.
However, from 01 January 1992 onwards, the proper basis for the
computation of the real property tax payable, including penalties
or interests, if applicable, must be Rep. Act No. 7160, known as
the Local Government Code, which took effect on the 1st of
January 1992[23] inasmuch as Section 534[24] thereof had
expressly repealed P.D. No. 464 or the Real Property Tax Code.
Section 5(d) of Rep. Act No. 7160 provides that rights and
obligations existing on the date of effectivity of the new Code and
arising out of contracts or any source of prestation involving a
local government unit shall be governed by the original terms and
conditions of the said contracts or the law in force at the time such
contracts were vested.

S . Y.

08-09:

2nd

Sem.

Benguet Corporation v. COA (1992), supra.

Realty taxes are national taxes collected by LGUs. While LGUs
are charged with fixing the rate of real property taxes, it does not
necessarily follow from that authority the determination of
whether or not to impose the tax. In fact, LGUs have no
alternative but to collect taxes as mandated in Sec. 38 of the Real
Property Tax Code. It is thus clear that it is the national
government, expressing itself through the legislative branch, that
levies the real property tax.
Consequently, when LGUs are required to fix the rates, they are
merely constituted as agents of the national government in the
enforcement of the Real Property Tax Code. The delegation of
taxing power is not even involved here because the national
government has already imposed realty tax in Sec. 38 leaving only
the enforcement to be done LGUs.
National Development Co. v. Cebu City (1992)
Facts: National Development Company (NDC) is a GOCC
authorized to engage in commercial, industrial, mining,
agricultural and other enterprises necessary or contributory to
economic development or important to public interest. It also
operates subsidiary corporations one of which is National
Warehousing Corporation (NWC).
On August 10, 1939, the President issued Proclamation No. 430
reserving Block no. 4, Reclamation Area No. 4, of Cebu City for
warehousing purposes under the administration of NWC.
Subsequently, in 1940, a warehouse with a floor area of 1,940
square meters more or less, was constructed thereon. In 1947, EO
93 dissolved NWC with NDC taking over its assets and functions.
In 1948, Cebu City assessed and collected from NDC real estate
taxes on the land and the warehouse thereon. By the first quarter
of 1970, a total of P100,316.31 was paid by NDC 11 of which only
P3,895.06 was under protest. NDC asked for a full refund
contending that the land and the warehouse belonged to the
Republic and therefore exempt from taxation. The CFI ordered
Cebu City to refund to NDC the real estate taxes paid by it.
Issue:

WON the NDC is exempt from real estate taxes

Held:

No

Ratio: As already adverted to, one of the principal issues before Us

is the interpretation of a provision of the Assessment Law, the
precursor of the then Real Property Tax Code and the Local
Government Code, where "ownership" of the property and not
"use" is the test of tax liability. Section, 3 par. (a), of the
Assessment Law, on which NDC claims real estate tax exemption,
provides Section 3. Property exempt from tax. The exemptions
shall be as follows: (a) Property owned by the United States of
America, the Commonwealth of the Philippines, any province, city,
municipality at municipal district.
The same opinion of NDC was passed upon in National
Development Co. v. Province of Nueva Ecija where We held that its
properties were not comprehended in Sec. 3, par (a), of the
Assessment Law. Commonwealth Act No. 182 which created NDC

47 | L o c a l

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(Guanzon)

contains no provision exempting it from the payment of real estate

tax on properties it may acquire. NDC does not come under
classification of municipal or public corporation in the sense that
it may sue and be sued in the same manner as any other private
corporations, and in this sense, it is an entity different from the
government, NPC may be sued without its consent, and is subject
to taxation. That plaintiff herein does not exercise sovereign
powers and, hence, cannot invoke the exemptions thereof but is
an agency for the performance of purely corporate, proprietary or
business functions, is apparent from its Organic Act.
We find no compelling reason why the foregoing ruling, although
referring to lands which would eventually be transferred to private
individuals, should not apply equally to this case.
NDC cites Board of Assessment Appeals, Province of Laguna v.
CTA and National Waterworks and Sewerage Authority (NWSA).
In that case, the properties of NWSA, a GOCC, were exempt from
real estate tax because Sec. 3, par (c), of R.A. 470 did not
distinguish between those possessed by the government in
sovereign/governmental/political capacity and those in private
proprietary patrimonial character. The conflict between NDC v.
Nueva Ecija, supra, and BAA v. CTA and NWSA, , is more
superficial than real. The NDC decision speaks of properties
owned by NDC, while the BAA ruling concerns properties
belonging to the Republic
In the case at bar, no similar statement appears in the stipulation
of facts, hence, ownership of subject properties should first be
established. For, while it may be stated that the Republic owns
NDC, it does not necessary follow that properties owned by NDC,
are also owned by Republic in the same way that stockholders are
not ipso facto owners of the properties of their corporation.
The Republic may form a corporation with personality and
existence distinct from its own. The separate personality allows a
GOCC to hold and possess properties in its own name and, thus,
permit greater independence and flexibility in its operations. It
may, therefore, be stated that tax exemption of property owned by
the Republic of the Philippines "refers to properties owned by the
Government and by its agencies which do not have separate and
distinct personalities (unincorporated entities).
The foregoing discussion does not mean that because NDC, like
most GOCC's engages in commercial enterprises all properties of
the government and its unincorporated agencies possessed in
propriety character are taxable. Similarly, in the case at bar, NDC
proceeded on the premise that the BAA ruling declared all
properties owed by GOCC's as properties in the name of the
Republic, hence, exempt under Sec. 3 of the Assessment Law.
Issue:

WON the property is exempt from payment of real estate

taxes
Held:

Yes

Ratio:

To come within the ambit of the exemption provided in

Art. 3, par. (a), of the Assessment Law, it is important to establish

that the property is owned by the government or its
unincorporated agency, and once government ownership is
determined, the nature of the use of the property, whether for
proprietary or sovereign purposes, becomes immaterial. What

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08-09:

2nd

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appears to have been ceded to NWC (later transferred to NDC), in

the case before Us, is merely the administration of the property
while the government retains ownership of what has been
declared reserved for warehousing purposes under Proclamation
No. 430.
A reserved land is defined as a "[p]ublic land that has been
withheld or kept back from sale or disposition." The land remains
"absolute property of the government." The government "does not
part with its title by reserving them (lands), but simply gives
notice to all the world that it desires them for a certain purpose."
Absolute disposition of land is not implied from reservation; it
merely means "a withdrawal of a specified portion of the public
domain from disposal under the land laws and the appropriation
thereof, for the time being, to some particular use or purpose of
the general government." As its title remains with the Republic,
the reserved land is clearly recovered by the tax exemption
provision.
CEBU nevertheless contends that the reservation of the property
in favor of NWC or NDC is a form of disposition of public land
which, subjects the recipient (NDC ) to real estate taxation under
Sec. 115 of the Public Land Act.
The essential question then is whether lands reserved pursuant to
Sec. 83 are comprehended in Sec. 115 and, therefore, taxable.
Section 115 of the Public Land Act should be treated as an
exception to Art. 3, par. (a), of the Assessment Law. While
ordinary public lands are tax exempt because title thereto belongs
to the Republic, Sec. 115 subjects them to real estate tax even
before ownership thereto is transferred in the name of the
beneficiaries. Sec. 115 comprehends three (3) modes of disposition
of Lands under the Public Land Act, to wit: homestead,
concession, and contract.
Liability to real property taxes under Sec. 115 is predicated on (a)
filing of homestead application, (b) approval of concession and, (c)
signing of contract. Significantly, without these words, the date of
the accrual of the real estate tax would be indeterminate. Since
NDC is not a homesteader and no "contract" (bilateral agreement)
was signed, it would appear, then, that reservation under Sec. 83,
being a unilateral act of the President, falls under "concession".
"Concession" as a technical term under the Public Land Act is
synonymous with "alienation" and "disposition", and is defined in
Sec. 10 as "any of the methods authorized by this Act for the
acquisition, lease, use, or benefit of the lands of the public domain
other than timber or mineral lands." Logically, where Sec. 115
contemplates authorized methods for acquisition, lease, use, or
benefit under the Act, the taxability of the land would depend on
whether reservation under Sec. 83 is one such method of
acquisition, etc. Tersely put, is reservation synonymous with
alienation? Or, are the two terms antithetical and mutually
exclusive? Indeed, reservation connotes retention, while
concession (alienation) signifies cession.
Section 8 and 88 of the Public Land Act provide that reserved
lands are excluded from that may be subject of disposition. As We
view it, the effect of reservation under Sec. 83 is to segregate a
piece of public land and transform it into non-alienable or nondisposable under the Public Land Act. Section 115, on the other
hand, applies to disposable public lands. Clearly, therefore, Sec.

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115 does not apply to lands reserved under Sec. 83. Consequently,
the subject reserved public land remains tax exempt.
However, as regards the warehouse constructed on a public
reservation, a different rule should apply because "[t]he exemption
of public property from taxation does not extend to improvements
on the public lands made by pre-emptioners, homesteaders and
other claimants, or occupants, at their own expense, and these are
taxable by the state . . ." Consequently, the warehouse constructed
on the reserved land by NWC (now under administration by NDC),
indeed, should properly be assessed real estate tax as such
improvement does not appear to belong to the Republic.
Since the reservation is exempt from realty tax, the erroneous tax
payments collected by CEBU should be refunded to NDC. This is
in consonance with Sec. 40, par. (a) of the former Real Property
Tax Code which exempted from taxation real property owned by
the Republic of the Philippines or any of its political subdivisions,
as well as any GOCC so exempt by its charter.
As regards the requirement of paying under protest before judicial
recourse, CEBU argues that in any case NDC is not entitled to
refund because Sec. 75 of R.A. 3857, the Revised Charter of the
City of Cebu, requires payment under protest before resorting to
judicial action for tax refund; that it could not have acted on the
first demand letter of NDC of 20 May 1970 because it was sent to
the City Assessor and not to the City Treasurer; that,
consequently, there having been no appropriate prior demand,
resort to judicial remedy is premature; and, that even on the
premise that there was proper demand, NDC has yet to exhaust
administrative remedies by way of appeal to the Department of
Finance and/or Auditor General before taking judicial action.
NDC does not agree. It disputes the applicability of the paymentunder-protest requirement is Sec. 75 of the Revised Cebu City
Charter because the issue is not the validity of tax assessment but
recovery of erroneous payments under Arts. 2154 and 2155 of the
Civil Code. It cites the case of East Asiaticvs City of Davao which
held that where the tax is unauthorized, "it is not a tax assessed
under the charter of the City of Davao and for that reason no
protest is necessary for a claim or demand for its refund."
In the case at bar, petitioner, therefore, cannot be said to have
waived his right. He had no knowledge of the fact that it was
exempted from payment of the realty tax under Commonwealth
Act No. 470. Payment was made through error or mistake, in the
honest belief that petitioner was liable, and therefore could not
have been made under protest, but with complete voluntariness.
In any case, a taxpayer should not be held to suffer loss by his
good intention to comply with what he believes is his legal
obligation, where such obligation does not really exist . . . The fact
that petitioner paid thru error or mistake, and the government
accepted the payment, gave rise to the application of the principle
of solutio indebiti under Article 2154 of the New Civil Code, which
provides that "if something is received when there is no right to
demand it, and it was unduly delivered through mistake, the
obligation to return it arises." There is, therefore, created a tie or
juridical relation in the nature of solutio indebiti, expressly
classified as quasi-contract under Section 2, Chapter I of Title
XVII CC.
The quasi-contract of solutio indebiti is one of the concrete
manifestations of the ancient principle that no one shall enrich

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himself unjustly at the expense of another . . . Hence, it would

seem unedifying for the government, that knowing it has no right
at all to collect or to receive money for alleged taxes paid by
mistake, it would be reluctant to return the same . . . Petitioner is
not unsatisfied in the assessment of its property. Assessment
having been made, it paid the real estate taxes without knowing
that it is
Prov. of Tarlac v. Judge Alcantara (1992)
Facts: Tarlac Enterprises Inc is the owner of a parcel of land in
Mabini, Tarlac, an ice drop factory in said land, machinery shed
and other machinery. These properties were declared for purposes
of Taxation in the Provincial Assessors Office. The Provincial
Treasurer found that real estate taxes for the years 1974 until
1992 in the amount of P532,435.55 including penalties were not
yet paid. Therefore, the Provincial Treasurer Jose Meru filed a
complaint praying that the company pay the said sum as well as
damages.
The company filed a motion to dismiss. But the lower court denied
the motion. Thereafter, petitioner set the auction sale of the
private respondent's properties to satisfy the real estate taxes due.
This prompted the private respondent to file a motion praying that
petitioner be directed to desist from proceeding with the public
auction sale. The lower court issued an order granting said motion
to prevent mootness of the case considering that the properties to
be sold were the, subjects of the complaint.
The company then filed an answer saying that under
Section 40(g) of PD46 in relation to PD 551, it was exempt from
paying said tax. The court rendered the decision dismissing the
complaint. It ruled that P.D. No. 551 expressly exempts private
respondent from paying the real property taxes demanded, it
being a grantee of a franchise to generate, distribute and sell
electric current for light. The court held that in lieu of said taxes,
private respondent had been required to pay 2% franchise tax in
line with the intent of the law to give assistance to operators such
as the private respondent to enable the consumers to enjoy
cheaper rates.
Issue:

WON Tarlac Enterprises, Inc. is exempt from the

payment of real property tax under Sec. 40 (g) of P.D. No. 464 in
relation to P.D. No. 551, as amended.
Held:

No

Ratio:

Sec. 40(g) of P.D. No. 464, the Real Property Tax Code,

provides: SEC. 40. Exemptions from Real Property Tax. - The

exemption shall be as follows: (g) Real property exempt under
other laws.
Private respondent contends that the "other laws" referred to in
this Section is P.D. No. 551 (Lowering the Cost to Consumers of
Electricity by Reducing the Franchise Tax Payable by Electric
Franchise Holders and the Tariff on Fuel Oils for the Generation
of Electric Power by Public Utilities). Its pertinent provisions
state: SECTION 1. Any provision of law or local ordinance to the
contrary notwithstanding, the franchise tax payable by all
grantees of franchises to generate, distribute and sell electric
current for light, heat and power shall be two (2%) of their gross

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receipts received from the sale of electric current and from

transactions incident to the generation, distribution
We do not agree with the lower court that the phrase "in lieu of all
taxes and assessments of whatever nature" in the second
paragraph of Sec. 1 of P.D. No. 551 expressly exempts private
respondent from paying real property taxes. As correctly observed
by the petitioner, said proviso is modified and delimited by the
phrase "on earnings, receipts. income and privilege of generation,
distribution and sale" which specifies the kinds of taxes and
assessments which shall not be collected in view of the imposition
of the franchise tax. Said enumerated items upon which taxes
shall not be imposed, have no relation at all to, and are entirely
different from. real properties subject to tax.
If the intention of the law is to exempt electric franchise grantees
from paying real property tax and to make the 2% franchise tax
the only imposable tax, then said enumerated items would not
have been added when PD 852 was enacted to amend P.D. No. 551.
The legislative authority would have simply stopped after the
phrase "national or local authority" by putting therein a period.
On the contrary, it went on to enumerate what should not be
subject to tax thereby delimiting the extent of the exemption.
We likewise do not find merit in private respondent's contention
that the real properties being taxed, viz., the machinery for the
generation and distribution of electric power, the building housing
said machinery, and the land on which said building is
constructed, are necessary for the operation of its business of
generation, distribution and sale of electric current and, therefore,
they should be exempted from taxation. Private respondent
apparently does not quite comprehend the distinction among the
subject matters or objects of the taxes involved. It bears emphasis
that P.D. No. 551 as amended by P.D. No. 852 deals with franchise
tax and tariff on fuel oils and the "earnings, receipts, income and
privilege of generation, distribution and sale of electric current"
are the items exempted from taxation by the imposition of said tax
or tariff duty. On the other hand, the collection complaint filed by
petitioner specified only taxes due on real properties. While P.D.
No. 551 was intended to give "assistance to the franchise holders
by reducing some of their tax and tariff obligations," to construe
said decree as having granted such franchise holders exemption
from payment of real property tax would unduly extend the ambit
of exemptions beyond the purview of the law.
The annexes attached to private respondent's comment on the
petition to prove by contemporaneous interpretation its claimed
tax exemption are not of much help to it. Department Order No.
35-74 dated September 16, 1974 11 regulating the implementation
of P.D. No. 551 merely reiterates the "in lieu of all taxes" proviso.
Local Tax Regulations No. 3-75 12 issued by then Secretary of
Finance Cesar Virata and addressed to all Provincial and City
Treasurers enjoins strict compliance with the directive that "the
franchise tax imposed under Local Tax Ordinances pursuant to
Section 19 of the Local Tax Code, as amended, shall be collected
from business holding franchises but not from establishments
whose franchise contains the in lieu of all taxes' proviso," thereby
clearly indicating that said proviso exempts taxpayers like private
respondent from paying the franchise tax collected by the
provinces under the Local Tax Code. Lastly, the letter 13 of the
then Bureau of Internal Revenue Acting Commissioner addressed

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to the Matic Law Office granting exemption to the latter's client

from paying the "privilege (fixed) tax which is an excise tax on the
privilege of engaging in business" clearly excludes realty tax from
such exemption.
We also find misplaced the lower court's and the private
respondent's reliance on Butuan Sawmill. Inc. v. City of Butuan.
In that case, the questioned tax is a tax on the gross sales or
receipts of said sawmill while the tax involved herein is a real
property tax. The City of Butuan is categorically prohibited
therein by Sec. 2(j) of the Local Autonomy Act from imposing
"taxes of any kind . . . on person paying franchise tax." On the
other hand, P.D. No. 551 is not as all-encompassing as said
provision of the Local Autonomy Act for it enumerates the items
which are not taxable by virtue of the payment of franchise tax.
It has always been the rule that "exemptions from taxation are
construed in strictissimi juris against the taxpayer and liberally in
favor of the taxing authority" primarily because "taxes are the
lifeblood of government and their prompt and certain availability
is an imperious need." Thus, to be exempted from payment of
taxes, it is the taxpayer's duty to justify the exemption "by words
too plain to be mistaken and too categorical to be misinterpreted.;
Private respondent has utterly failed to discharge this duty.
8.3 Shares of LGUS in national taxes
Pimentel v. Aguirre (2000)
Facts:

On December, 1997, the President issued AO 372

(Adoption of Economy Measures in Government for FY 1998). On

December, 1998, President Estrada issued AO 43, amending
Section 4 of AO 372, by reducing to five percent (5%) the amount of
internal revenue allotment (IRA) to be withheld from the LGUs.
Petitioner contends that by issuing AO 372, the President
exercised the power of control over LGUs. Moreover, withholding
10% of the IRA is in contravention of Sec 286 LGC and of Sec 6
Article X of the Constitution, providing for the automatic release
to each of these units its share in the national internal revenue.
The Sol Gen claims that AO 372 was issued merely as an exercise
of the Presidents power of supervision over LGUs.
Section 4 of Article X of the Consti confines the President's power
over local governments to general supervision. This provision has
been interpreted to exclude the power of control. In Mondano v.
Silvosa, the SC contrasted supervision and control, thus:
"supervision means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their
duties. Control, on the other hand, means the power of an officer
to alter or modify or nullify or set aside what a subordinate officer
ha[s] done in the performance of his duties and to substitute the
judgment of the former for that of the latter."
In Drilon v. Lim, the difference between control and supervision
was further delineated. Officers in control lay down the rules in
the performance or accomplishment of an act. If these rules are
not followed, they may, in their discretion, order the act undone or
redone by their subordinates or even decide to do it themselves.
On the other hand, supervision does not cover such authority.

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Supervising officials merely see to it that the rules are followed,

but they themselves do not lay down such rules, nor do they have
the discretion to modify or replace them. If the rules are not
observed, they may order the work done or redone, but only to
conform to such rules. They may not prescribe their own manner
of execution of the act. Thus, members of the cabined and other
executive officials are merely alter egos of the President. As such,
they are subject to the power of control of the President, at whose
will and behest they can be removed from office; or their actions
and decisions changed, suspended or reversed. In contrast, the
heads of political subdivisions are elected by the people. By
constitutional fiat, they are subject to the Presidents supervision
only, not control, so long as their acts are exercised within the
sphere of their legitimate powers.
Hand in hand with the constitutional restraint on the President's
power over local governments is the state policy of ensuring local
autonomy. In Ganzon v. Court of Appeals, we said that local
autonomy signified "a more responsive and accountable local
government structure instituted through a system of
decentralization." The grant of autonomy is intended to "break up
the monopoly of the national government over the affairs of local
governments, x x x not x x x to end the relation of partnership
and interdependence between the central administration and local
government units x x x." Paradoxically, local governments are
still subject to regulation, however limited, for the purpose of
enhancing self-government.
Decentralization simply means the devolution of national
administration, not power, to local governments. Local officials
remain accountable to the central government as the law may
provide. The difference between decentralization of administration
and that of power was explained in detail in Limbona v. Mangelin
as follows:
"Now, autonomy is either decentralization of administration or
decentralization of power.
There is decentralization of
administration when the central government delegates
administrative powers to political subdivisions in order to broaden
the base of government power and in the process to make local
governments 'more responsive and accountable,' and 'ensure their
fullest development as self-reliant communities and make them
more effective partners in the pursuit of national development and
social progress.' At the same time, it relieves the central
government of the burden of managing local affairs and enables it
to concentrate on national concerns. The President exercises
'general supervision' over them, but only to 'ensure that local
affairs are administered according to law.' He has no control over
their acts in the sense that he can substitute their judgments with
his own.
Under the Philippine concept of local autonomy, the national
government has not completely relinquished all its powers over
local governments, including autonomous regions.
Only
administrative powers over local affairs are delegated to political
subdivisions. The purpose of the delegation is to make governance
more directly responsive and effective at the local levels. In turn,
economic, political and social development at the smaller political
units are expected to propel social and economic growth and
development. But to enable the country to develop as a whole, the
programs and policies effected locally must be integrated and

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coordinated towards a common national goal. Thus, policy-setting

for the entire country still lies in the President and Congress. As
we stated in Magtajas v. Pryce Properties Corp., Inc., municipal
governments are still agents of the national government.
Issue:

WON Section 1 of AO 372, insofar as it "directs" LGUs to

reduce their expenditures by 25% is valid

Held:

Yes

Ratio:

Under existing law, LGU, in addition to having

administrative autonomy, enjoy fiscal autonomy as well. Fiscal

autonomy means that local governments have the power to create
their own sources of revenue in addition to their equitable share in
the national taxes released by the national government, as well as
the power to allocate their resources in accordance with their own
priorities. It extends to the preparation of their budgets, and local
officials in turn have to work within the constraints thereof. They
are not formulated at the national level and imposed on local
governments, whether they are relevant to local needs and
resources or not. Hence, the necessity of a balancing of viewpoints
and the harmonization of proposals from both local and national
officials, who in any case are partners in the attainment of
national goals.
Local fiscal autonomy does not however rule out any manner of
national government intervention by way of supervision, in order
to ensure that local programs, fiscal and otherwise, are consistent
with national goals. Significantly, the President, by constitutional
fiat, is the head of the economic and planning agency of the
government, primarily responsible for formulating and
implementing continuing, coordinated and integrated social and
economic policies, plans and programs for the entire country.
However, under the Constitution, the formulation and the
implementation of such policies and programs are subject to
"consultations with the appropriate public agencies, various
private sectors, and local government units." The President
cannot do so unilaterally.
There are therefore several requisites before the President may
interfere in local fiscal matters: (1) an unmanaged public sector
deficit of the national government; (2) consultations with the
presiding officers of the Senate and the House of Representatives
and the presidents of the various local leagues; and (3) the
corresponding recommendation of the secretaries of the
Department of Finance, Interior and Local Government, and
Budget and Management. Furthermore, any adjustment in the
allotment shall in no case be less than thirty percent (30%) of the
collection of national internal revenue taxes of the third fiscal year
preceding the current one.
While the wordings of Section 1 of AO 372 have a rather
commanding tone, and while we agree with petitioner that the
requirements of Section 284 of the LGC have not been satisfied,
we are prepared to accept the solicitor general's assurance that
the directive to "identify and implement measures x x x that
will reduce total expenditures x x x by at least 25% of authorized
regular appropriation" is merely advisory in character, and does
not constitute a mandatory or binding order that interferes with
local autonomy. The language used, while authoritative, does not

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amount to a command that emanates from a boss to a subaltern.

Rather, the provision is merely an advisory to prevail upon local
executives to recognize the need for fiscal restraint in a period of
economic difficulty. Indeed, all concerned would do well to heed
the President's call to unity, solidarity and teamwork to help
alleviate the crisis. It is understood, however, that no legal
sanction may be imposed upon LGUs and their officials who do not
follow such advice. It is in this light that we sustain the solicitor
general's contention in regard to Section 1.
Issue:

WON withholding a part of LGUs IRA is valid

Held:

No

Ratio:

Section 4 of AO 372 cannot, however, be upheld. A basic

feature of local fiscal autonomy is the automatic release of the

shares of LGUs in the national internal revenue. This is
mandated by no less than the Constitution. The LGC specifies
further that the release shall be made directly to the LGU
concerned within 5 days after every quarter of the year and "shall
not be subject to any lien or holdback that may be imposed by the
national government for whatever purpose." As a rule, the term
"shall" is a word of command that must be given a compulsory
meaning. The provision is, therefore, imperative. Section 4 of AO
372, however, orders the withholding, effective January 1, 1998, of
10 percent of the LGUs' IRA "pending the assessment and
evaluation by the Development Budget Coordinating Committee of
the emerging fiscal situation" in the country. Such withholding
clearly contravenes the Constitution and the law. Although
temporary, it is equivalent to a holdback, which means "something
held back or withheld, often temporarily." Hence, the "temporary"
nature of the retention by the national government does not
matter. Any retention is prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory
effected in times of national crisis, Section 4 thereof has no color of
validity at all. The latter provision effectively encroaches on the
fiscal autonomy of local governments. Concededly, the President
was well-intentioned in issuing his Order to withhold the LGUs
IRA, but the rule of law requires that even the best intentions
must be carried out within the parameters of the Constitution and
the law. Verily, laudable purposes must be carried out by legal
methods.
4 Abatement of Nuisance
Estate of Gregoria Francisco v. CA
Facts: A quonset was constructed by the American Liberation
Forces in 1944. It was purchased in 1946 by Gregoria Francisco. It
stands on a lot owned by the PPA and faces the municipal wharf.
By virtue of Proclamation No. 83 issued by President Elpidio
Quirino, said land was declared for the exclusive use of port
facilities. The PPA issued to Tan Gin San, spouse of Gregoria
Francisco, a permit to occupy the lot where the building stands for
a period of one (1) year, to expire on 31 December 1989. The
permittee was using the quonset for the storage of copra.
On May 1989, the Mayor notified Tan Gin San to remove or
relocate its Quonset building citing Ordinance No. 147, noting its

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antiquated and dilapidated structure; and stressing the "clean-up

campaign on illegal squatters and unsanitary surroundings along
Strong Boulevard." Since the notifications remained unheeded,
the Mayor ordered the demolition on 24 May 1989.
Petitioner sought a Writ of Prohibition with Injunction and
Damages before the RTC of Basilan. The RTC denied the writ and
upheld the power of the Mayor to order the demolition without
judicial authority pursuant to Ordinance 147. On 6 September
1989, petitioner's quonset building was completely demolished. In
its place sprang shanties and nipa huts.
The CA reversed the RTC and ruled that the mayor was not vested
with power to order summarily without any judicial proceeding to
demolish the Quonset building which was not a nuisance per se.
However, upon reconsideration, the CA reversed itself and ruled
that the deficiency was remedied when petitioner filed a petition
for prohibition and injunction and was heard on oral argument.
Issue:

WON the Mayor could summarily, without judicial

process, order the demolition of petitioner's quonset building.

Held:

No

Ratio:

Ordinance No. 147, enacted on 27 December 1977, and

relied upon by respondents, is entitled "An Ordinance

Establishing Comprehensive Zoning Regulations for the
Municipality of Isabela." It is not disputed that the quonset
building, which is being used for the storage of copra, is located
outside the zone for warehouses. It is referred to in Ordinance as a
non-conforming structure, which should be relocated. And in the
event that an immediate relocation of the building can not be
accomplished, Sec 16 of the Ordinance provides: A certificate of
non-conformance for all non-conforming uses shall be applied for
by the owner or agent of the property involved within 12mo from
the approval of this Ordinance, otherwise the non-conforming use
may be condemned or removed at the owner's expense. Even
granting that petitioner failed to apply for a Certificate of Nonconformance, the provision should not be interpreted as
authorizing the summary removal of a non-conforming building by
the municipal government. For if it does, it must be struck down
for being in contravention of the requirements of due process, as
originally held by the CA.
Moreover, the enforcement and administration of the provisions of
the Ordinance resides with the Zoning Administrator . It is said
official who may call upon the City Fiscal to institute the
necessary legal proceedings to enforce the provisions of the
Ordinance. And any person aggrieved by the decision of the Zoning
Administrator regarding the enforcement of the Ordinance may
appeal to the Board of Zoning Appeals.
That a summary remedy can not be resorted to is further evident
from the penal provisions. Violation of a municipal ordinance
neither empowers the Municipal Mayor to avail of extra-judicial
remedies. On the contrary, the Local Government Code imposes
upon him the duty "to cause to be instituted judicial proceedings
in connection with the violation of ordinances".
Respondents can not seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial
proceedings. That tenet applies to a nuisance per se or one which

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affects the immediate safety of persons and property and may be

summarily abated under the undefined law of necessity. The
storage of copra in the quonset building is a legitimate business.
By its nature, it can not be said to be injurious to rights of
property, of health or of comfort of the community. If it be a
nuisance per accidens it may be so proven in a hearing conducted
for that purpose. It is not per se a nuisance warranting its
summary abatement without judicial intervention. While the
Sangguniang Bayan may provide for the abatement of a nuisance
(Local Government Code, Sec. 149 (ee) ), it can not declare a
particular thing as a nuisance per se and order its condemnation.
The nuisance can only be so adjudged by judicial determination.
Petitioner was in lawful possession of the lot and quonset building
by virtue of a permit from the PPA when demolition was effected.
It was not squatting on public land. Its property was not of trifling
value. It was entitled to an impartial hearing before a tribunal
authorized to decide whether the quonset building did constitute a
nuisance in law. There was no compelling necessity for precipitate
action. It follows then that the public officials of Isabela, Basilan,
transcended their authority in abating summarily petitioner's
quonset building. They had deprived petitioner of its property
without due process of law. The fact that petitioner filed a suit for
prohibition and was subsequently heard thereon will not cure the
defect, as opined by the CA, the demolition having been a fait
accompli prior to hearing and the authority to demolish without a
judicial order being a prejudicial issue.
Technology Developers, Inc v. CA (1991)
Facts:

Petitioner received a letter from private respondent

acting mayor Pablo N. Cruz, ordering the full cessation of the

operation of the petitioner's plant located at Guyong, Sta. Maria,
Bulacan. The letter requested Plant Manager Armando Manese to
bring with him to the office of the mayor on February 20, 1989 the
following: a) Building permit; b) Mayor's permit; c) Region IIIPollution of Environment and Natural Resources Anti-Pollution
Permit; and of other document.
At the requested conference, petitioner undertook to comply with
respondent's request for the production of the required documents.
Petitioner commenced to secure "Region III-DENR Anti-Pollution
Permit," although among the permits previously secured prior to
the operation of petitioner's plant was a "Temporary Permit to
Operate Air Pollution Installation" issued by the then National
Pollution Control Commission and is now at a stage where the
Environmental Management Bureau is trying to determine the
correct kind of anti-pollution devise to be installed as part of
petitioner's request for the renewal of its permit.
Petitioner's attention having been called to its lack of mayor's
permit, it sent its representatives to the office of the mayor to
secure the same but were not entertained. On April 6, 1989,
without previous and reasonable notice upon petitioner,
respondent ordered the Municipality's station commander to
padlock the premises of petitioner's plant, thus effectively causing
the stoppage of its operation.
Petitioner instituted an action for certiorari, prohibition,
mandamus with preliminary injunction against private
respondent. The judge found that petitioner is entitled to the
issuance of a writ of preliminary injunction upon posting of a bond

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worth P50,000. During the MR, the Provincial Prosecutor

presented his evidence prepared by Marivic Guina, Due to the
manufacturing process and nature of raw materials used, the
fumes coming from the factory may contain particulate matters
which are hazardous to the health of the people. As such, the
company should cease operating until such a time that the proper
air pollution device is installed and operational." The lower court
then set aside the order which granted a writ of preliminary
mandatory injunction and dissolved the writ issued.
Issue:

WON the writ of preliminary injunction should be

granted
Held:

No

Ratio:

The matter of issuance of a writ of preliminary

injunction is addressed to the sound judicial discretion of the trial

court and its action shall not be disturbed on appeal unless it is
demonstrated that it acted without jurisdiction or in excess of
jurisdiction or otherwise, in grave abuse of its discretion. By the
same token the court that issued such a preliminary relief may
recall or dissolve the writ as the circumstances may warrant.
The following circumstances militate against the maintenance of
the writ of preliminary injunction sought by petitioner:
1. No mayor's permit had been secured. While it is true that the
matter of determining whether there is a pollution of the
environment that requires control if not prohibition of the
operation of a business is addressed to the National Pollution
Control Commission of the Ministry of Human Settlements, now
the Environmental Management Bureau, it must be recognized
that the mayor of a town has as much responsibility to protect its
inhabitants from pollution, and by virtue of his police power, he
may deny the application for a permit to operate a business or
otherwise close the same unless appropriate measures are taken
to control and/or avoid injury to the health of the residents of the
community from the emissions in the operation of the business.
2. The Acting Mayor called the attention of petitioner to the
pollution emitted by the fumes of its plant whose offensive odor
"not only pollute the air in the locality but also affect the health of
the residents in the area," so that petitioner was ordered to stop
its operation until further orders and it was required to bring the
following: (1) Building permit; (2) Mayor's permit; and (3) Region
III-DENR Anti-Pollution permit.
3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria,
Bulacan, directed to the Provincial Governor through channels.
The NBI finding that some of the signatures in the 4-page petition
were written by one person, appears to be true in some instances,
(particularly as among members of the same family), but on the
whole the many signatures appear to be written by different
persons. The certification of the barrio captain of said barrio that
he has not received any complaint on the matter must be because
the complaint was sent directly to the Governor through the
Acting Mayor.
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report
observed that the fumes emitted by the plant goes directly to the

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surrounding houses and that no proper air pollution device has

been installed.
5. Petitioner failed to produce a building permit from the
municipality of Sta. Maria, but instead presented a building
permit issued by an official of Makati on March 6, 1987.
6. While petitioner was able to present a temporary permit to
operate by the then National Pollution Control Commission on
December 15, 1987, the permit was good only up to May 25, 1988.
Petitioner had not exerted any effort to extend or validate its
permit much less to install any device to control the pollution and
prevent any hazard to the health of the residents of the
community.
All these factors justify the dissolution of the writ of preliminary
injunction by the trial court and the appellate court correctly
upheld the action of the lower court. Petitioner takes note of the
plea of petitioner focusing on its huge investment in this dollarearning industry. It must be stressed however, that concomitant
with the need to promote investment and contribute to the growth
of the economy is the equally essential imperative of protecting the
health, nay the very lives of the people, from the deleterious effect
of the pollution of the environment.
Laguna Lake Development Authority v. CA (1995)
Facts: RA 4850 was enacted creating the "Laguna Lake
Development Authority." This agency was supposed to accelerate
the development and balanced growth of the Laguna Lake area
and the surrounding provinces, cities and towns, in the act, within
the context of the national and regional plans and policies for
social and economic development.
PD 813 amended certain sections RA 4850 because of the concern
for the rapid expansion of Metropolitan Manila, the suburbs and
the lakeshore towns of Laguna de Bay, combined with current and
prospective uses of the lake for municipal-industrial water supply,
irrigation, fisheries, and the like.
To effectively perform the role of the Authority under RA 4850, the
Chief Executive issued EO 927 further defined and enlarged the
functions and powers of the Authority and named and enumerated
the towns, cities and provinces encompassed by the term "Laguna
de Bay Region". Also, pertinent to the issues in this case are the
following provisions of EO 927 which include in particular the
sharing of fees:
Sec 2: xxx the Authority shall have exclusive jurisdiction to issue
permit for the use of all surface water for any projects or activities
in or affecting the said region including navigation, construction,
and operation of fishpens, fish enclosures, fish corrals and the like.
SEC. 3. Collection of Fees. The Authority is hereby empowered to
collect fees for the use of the lake water and its tributaries for all
beneficial purposes including but not limited to fisheries,
recreation, municipal, industrial, agricultural, navigation,
irrigation, and waste disposal purpose; Provided, that the rates of
the fees to be collected, and the sharing with other government
agencies and political subdivisions, if necessary, shall be subject to
the approval of the President of the Philippines upon
recommendation of the Authority's Board, except fishpen fee,
which will be shared in the following manner: 20 percent of the fee
shall go to the lakeshore local governments, 5 percent shall go to
the Project Development Fund which shall be administered by a

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Council and the remaining 75 percent shall constitute the share of

LLDA. However, after the implementation within the three-year
period of the Laguna Lake Fishery Zoning and Management Plan
the sharing will be modified as follows: 35 percent of the fishpen
fee goes to the lakeshore local governments, 5 percent goes to the
Project Development Fund and the remaining 60 percent shall be
retained by LLDA; Provided, however, that the share of LLDA
shall form part of its corporate funds and shall not be remitted to
the National Treasury as an exception to the provisions of
Presidential Decree No. 1234.
Then came Republic Act No. 7160. The municipalities in the
Laguna Lake Region interpreted the provisions of this law to
mean that the newly passed law gave municipal governments the
exclusive jurisdiction to issue fishing privileges within their
municipal waters because R.A. 7160 provides:
"Sec. 149. Fishery Rentals; Fees and Charges (a) Municipalities
shall have the exclusive authority to grant fishery privileges in the
municipal waters and impose rental fees or charges therefor in
accordance with the provisions of this Section.
Municipal governments thereupon assumed the authority to issue
fishing privileges and fishpen permits. Big fishpen operators took
advantage of the occasion to establish fishpens and fishcages to
the consternation of the Authority. Unregulated fishpens and
fishcages occupied almost one-third the entire lake water surface
area, increasing the occupation drastically from 7,000 ha in 1990
to almost 21,000 ha in 1995. The Mayor's permit to construct
fishpens and fishcages were all undertaken in violation of the
policies adopted by the Authority on fishpen zoning and the
Laguna Lake carrying capacity. In view of the foregoing
circumstances, the Authority served notice to the general public
that:
1. All fishpens, fishcages and other aqua-culture structures in
the Laguna de Bay Region, which were not registered or to which
no application for registration and/or permit has been filed with
Laguna Lake Development Authority as of March 31, 1993 are
hereby declared outrightly as illegal.
2. All fishpens; fishcages and other aqua-culture structures so
declared as illegal shall be subject to demolition which shall be
undertaken by the Presidential Task Force for illegal Fishpen and
Illegal Fishing.
3.
Owners of fishpens, fishcages and other aqua-culture
structures declared as illegal shall, without prejudice to
demolition of their structures be criminally charged in accordance
with Section 39-A of Republic Act 4850 as amended by P.D. 813 for
violation of the same laws. Violations of these laws carries a
penalty of imprisonment of not exceeding 3 years or a fine not
exceeding Five Thousand Pesos or both at the discretion of the
court.
All operators of fishpens, fishcages and other aqua-culture
structures declared as illegal in accordance with the foregoing
Notice shall have one (1) month on or before 27 October 1993 to
show cause before the LLDA why their said fishpens, fishcages
and
other
aqua-culture
structures
should
not
be
demolished/dismantled."
One month, thereafter, the Authority sent notices to the concerned
owners of the illegally constructed fishpens, fishcages and other
aqua-culture structures advising them to dismantle their

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respective structures within 10 days from receipt thereof,

otherwise, demolition shall be effected.
The fishpen owners filed injunction cases against the LLDA. The
LLDA filed motions to dismiss the cases against it on
jurisdictional grounds. The motions to dismiss were denied.
Meanwhile, TRO/writs of preliminary mandatory injunction were
issued enjoining the LLDA from demolishing the fishpens and
similar structures in question. Hence, the present petition for
certiorari, prohibition and injunction. The CA dismissed the
LLDAs consolidated petitions. It ruled that (A) LLDA is not
among those quasi-judicial agencies of government appealable
only to the Court of Appeals; (B) the LLDA charter does vest
LLDA with quasi-judicial functions insofar as fishpens are
concerned; (C) the provisions of the LLDA charter insofar as
fishing privileges in Laguna de Bay are concerned had been
repealed by the Local Government Code of 1991; (D) in view of the
aforesaid repeal, the power to grant permits devolved to respective
local government units concerned.
Issue:

Which agency of the Government - the LLDA or the

towns and municipalities comprising the region - should exercise

jurisdiction over the Laguna Lake and its environs insofar as the
issuance of permits for fishery privileges is concerned?
Held:

LLDA

Ratio: Section 4 (k) of RA 4850, the provisions of PD 813, and

Section 2 of EO 927, specifically provide that the LLDA shall have
exclusive jurisdiction to issue permits for the use or all surface
water for any projects or activities in or affecting the said region,
including navigation, construction, and operation of fishpens, fish
enclosures, fish corrals and the like. On the other hand, RA 7160
has granted to the municipalities the exclusive authority to grant
fishery privileges in municipal waters. The Sangguniang Bayan
may grant fishery privileges to erect fish corrals, oyster, mussels
or other aquatic beds or bangus fry area within a definite zone of
the municipal waters.
The provisions of RA7160 do not necessarily repeal the laws
creating the LLDA and granting the latter water rights authority
over Laguna de Bay and the lake region.
The Local Government Code of 1991 does not contain any express
provision which categorically expressly repeal the charter of the
Authority. It has to be conceded that there was no intent on the
part of the legislature to repeal Republic Act No. 4850 and its
amendments. The repeal of laws should be made clear and
expressed.
It has to be conceded that the charter of the LLDA constitutes a
special law. RA 7160 is a general law. It is basic is basic in
statutory construction that the enactment of a later legislation
which is a general law cannot be construed to have repealed a
special law. It is a well-settled rule in this jurisdiction that "a
special statute, provided for a particular case or class of cases, is
not repealed by a subsequent statute, general in its terms,
provisions and application, unless the intent to repeal or alter is
manifest, although the terms of the general law are broad enough
to include the cases embraced in the special law." Where there is
a conflict between a general law and a special statute, the special

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statute should prevail since it evinces the legislative intent more

clearly that the general statute. The special law is to be taken as
an exception to the general law in the absence of special
circumstances forcing a contrary conclusion. This is because
implied repeals are not favored and as much as possible, given to
all enactments of the legislature. A special law cannot be repealed,
amended or altered by a subsequent general law by mere
implication.
Considering the reasons behind the establishment of the
Authority, which are enviromental protection, navigational safety,
and sustainable development, there is every indication that the
legislative intent is for the Authority to proceed with its mission.
We are on all fours with the manifestation of LLDA that "Laguna
de Bay, like any other single body of water has its own unique
natural ecosystem. The 900 km lake surface water, the 8 major
river tributaries and several other smaller rivers that drain into
the lake, the 2,920 km2 basin or watershed transcending the
boundaries of Laguna and Rizal provinces, constitute one
integrated delicate natural ecosystem that needs to be protected
with uniform set of policies; if we are to be serious in our aims of
attaining sustainable development. This is an exhaustible natural
resource-a very limited one-which requires judicious management
and optimal utilization to ensure renewability and preserve its
ecological integrity and balance. Managing the lake resources
would mean the implementation of a national policy geared
towards the protection, conservation, balanced growth and
sustainable development of the region with due regard to the
inter-generational use of its resources by the inhabitants in this
part of the earth. The authors of Republic Act 4850 have foreseen
this need when they passed this LLDA law-the special law
designed to govern the management of our Laguna de Bay lake
resources. Laguna de Bay therefore cannot be subjected to
fragmented concepts of management policies where lakeshore
local government units exercise exclusive dominion over specific
portions of the lake water. The implementation of a cohesive and
integrated lake water resource management policy, therefore, is
necessary to conserve, protect and sustainably develop Laguna de
Bay."
The power of the LGUs to issue fishing privileges was clearly
granted for revenue purposes. This is evident from the fact that
Section 149 of the New Local Government Code empowering local
governments to issue fishing permits is embodied in Chapter 2,
Book II, of Republic Act No. 7160 under the heading, "Specific
Provisions On The Taxing And Other Revenue Raising Power of
LGUs.
On the other hand, the power of the Authority to grant permits for
fishpens, fishcages and other aqua-culture structures is for the
purpose of effectively regulating and monitoring activities in the
Laguna de Bay region and for lake quality control and
management. 6 It does partake of the nature of police power
which is the most pervasive, the least limitable and the most
demanding of all State powers including the power of taxation.
Accordingly the charter of the Authority which embodies a valid
exercise of police power should prevail over the Local Government
Code of 1991 on matters affecting Laguna de Bay.
There should be no quarrel over permit fees for fishpens, fishcages
and other aqua-culture structures in the Laguna de Bay area.

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Section 3 of Executive Order No. 927 provides for the proper

sharing of fees collected.
In respect to the question as to whether the Authority is a quasijudicial agency or not, it is our holding that, considering the
provisions of Section 4 of Republic Act No. 4850 and Section 4 of
Executive Order No. 927, series of 1983, and the ruling of this
Court in Laguna Lake Development Authority vs. Court of
Appeals, there is no question that the Authority has express
powers as a regulatory a quasi-judicial body in respect to pollution
cases with authority to issue a "cease a desist order" and on
matters affecting the construction of illegal fishpens, fishcages and
other aqua-culture structures in Laguna de Bay. The Authority's
pretense, however, that it is co-equal to the Regional Trial Courts
such that all actions against it may only be instituted before the
Court of Appeals cannot be sustained. On actions necessitating
the resolution of legal questions affecting the powers of the
Authority as provided for in its charter, the Regional Trial Courts
have jurisdiction.
In view of the foregoing, this Court holds that Section 149 of RA
7160, otherwise known as the Local Government Code of 1991, has
not repealed the provisions of the charter of the LLDA, Republic
Act No. 4850, as amended. Thus, the Authority has the exclusive
jurisdiction to issue permits for the enjoyment of fishery privileges
in Laguna de Bay to the exclusion of municipalities situated
therein and the authority to exercise such powers as are by its
charter vested on it.
8.5 Power of Eminent Domain:
Moday et al v. Court of Appeals (1997)
Facts:

The Sangguniang Bayan of the Municipality of Bunawan

in Agusan del Sur passed Resolution No. 43-89, "Authorizing the

Municipal Mayor to Initiate the Petition for Expropriation of a
One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the National
Highway Owned by Percival Moday for the Site of Bunawan
Farmers Center and Other Government Sports Facilities." The
Resolution was approved by Mayor Anuncio Bustillo and was
transmitted to the Sangguniang Panlalawigan for its approval.
The Sangguniang Panlalawigan disapproved said Resolution and
returned it with the comment that "expropriation is unnecessary
considering that there are still available lots in Bunawan for the
establishment of the government center."
The municipality filed a petition for eminent domain against
Percival Moday before the RTC. The municipality then filed a
motion to take or enter upon the possession of the land upon
deposit with the municipal treasurer of the required amount. The
RTC granted the motion. It ruled that the Sangguniang
Panlalawigan's failure to declare the resolution invalid leaves it
effective. It added that the duty of the Sangguniang Panlalawigan
is merely to review the ordinances and resolutions passed by the
Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old
Local Government Code and that the exercise of eminent domain
is not one of the acts enumerated in Section 19 requiring the
approval of the Sangguniang Panlalawigan.
Petitioners elevated the case in a petition for certiorari before the
CA. The CA held that the public purpose for the expropriation is
clear from Resolution No. 43-89 and that since the Sangguniang

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Panlalawigan of Agusan del Sur did not declare Resolution No. 4389 invalid, expropriation of petitioners' property could proceed.
Meanwhile, the Municipality had erected three buildings on the
subject property: the Association of Barangay Councils (ABC)
Hall, the Municipal Motorpool, both wooden structures, and the
Bunawan Municipal Gymnasium, which is made of concrete.
In the instant petition for review, petitioner seeks the reversal of
the decision and resolution of the CA and a declaration that
Resolution No. 43-89 of the Municipality of Bunawan is null and
void.
Issue:

WON a municipality may expropriate private property

by virtue of a municipal resolution which was disapproved by the

Sangguniang Panlalawigan.
Held:

Yes

Ratio: Eminent domain, the power which the Municipality of

Bunawan exercised in the instant case, is a fundamental State
power that is inseparable from sovereignty. It is government's
right to appropriate, in the nature of a compulsory sale to the
State, private property for public use or purpose. Inherently
possessed by the national legislature, the power of eminent
domain may be validly delegated to local governments, other
public entities and public utilities. For the taking of private
property by the government to be valid, the taking must be for
public use and there must be just compensation.
The Municipality's power to exercise the right of eminent domain
is not disputed as it is expressly provided for BP 337, the local
Government Code in force at the time expropriation proceedings
were initiated. What petitioners question is the lack of authority
of the municipality to exercise this right since the Sangguniang
Panlalawigan disapproved Resolution No. 43-89. The Sangguniang
Panlalawigan's disapproval of Resolution No. 43-89 is an infirm
action which does not render said resolution null and void. The
law, Section 153 of B.P. Blg. 337, grants the Sangguniang
Panlalawigan the power to declare a municipal resolution invalid
on the sole ground that it is beyond the power of the Sangguniang
Bayan or the Mayor to issue.
Velazco v. Blas: The only ground upon which a provincial board
may declare any municipal resolution, ordinance, or order invalid
is when such resolution, ordinance, or order is "beyond the powers
conferred upon the council or president making the same."
Absolutely no other ground is recognized by the law. A strictly
legal question is before the provincial board in its consideration of
a municipal resolution, ordinance, or order. The provincial
disapproval of any resolution, ordinance, or order must be
premised specifically upon the fact that such resolution,
ordinance, or order is outside the scope of the legal powers
conferred by law. If a provincial board passes these limits, it
usurps the legislative function of the municipal council or
president. Such has been the consistent course of executive
authority. Thus, the Sangguniang Panlalawigan was without the
authority to disapprove Municipal Resolution No. 43-89 for the
Municipality of Bunawan clearly has the power to exercise the
right of eminent domain and its Sangguniang Bayan the capacity
to promulgate said resolution, pursuant to the earlier-quoted

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Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No.

43-89 is valid and binding and could be used as lawful authority to
petition for the condemnation of petitioners' property.
As regards the accusation of political oppression, it is alleged that
Moday incurred the ire of then Mayor Bustillo when he refused to
support the latter's candidacy for mayor in previous elections.
Petitioners claim that then incumbent Mayor Bustillo used the
expropriation to retaliate by expropriating their land even if there
were other properties belonging to the municipality and available
for the purpose. Specifically, they allege that the municipality
owns a vacant seven-hectare property adjacent to petitioners'
land, evidenced by a sketch plan.
The limitations on the power of eminent domain are that the use
must be public, compensation must be made and due process of
law must be observed. The Supreme Court, taking cognizance of
such issues as the adequacy of compensation, necessity of the
taking and the public use character or the purpose of the taking,
has ruled that the necessity of exercising eminent domain must be
genuine and of a public character. Government may not
capriciously choose what private property should be taken.
Prov. Of Camarines Sur v. Court of Appeals (1993)
Facts:

The Sangguniang Panlalawigan of Camarines Sur

passed Resolution No. 129, Series of 1988, authorizing the

Provincial Governor to purchase or expropriate property
contiguous to the provincial capitol site, in order to establish a
pilot farm for non-food and non-traditional agricultural crops and
a housing project for provincial government employees. Pursuant
to the Resolution, the Province through Governor Luis
R.Villafuerte, filed two cases for expropriation against Ernesto N.
San Joaquin and Efren N. San Joaquin.
The San Joaquins moved to dismiss the complaints on the ground
of inadequacy of the price offered for their property. In an order,
the trial court denied the motion to dismiss and authorized the
Province to take possession of the property upon the deposit of
P5,714.00. The trial court issued a writ of possession. The San
Joaquins filed a motion for relief from the order and a motion to
admit an amended motion to dismiss. Both motions were denied.
In their petition before the Court of Appeals, the San Joaquins
asked: (a) that Resolution No. 129, Series of 1988 be declared null
and void; (b) that the complaints for expropriation be dismissed;
and (c) that the order dated December 6, 1989 (i) denying the
motion to dismiss and (ii) allowing the Province to take possession
of the property subject of the expropriation and the order dated
February 26, 1990, denying the motion to admit the amended
motion to dismiss, be set aside. They also asked that an order be
issued to restrain the trial court from enforcing the writ of
possession, and thereafter to issue a writ of injunction.
The Province claimed that it has the authority to initiate the
expropriation proceedings under Sections 4 and 7 of Local
Government Code and that the expropriations are for a public
purpose. The Solicitor General stated that under Section 9 of the
Local Government Code, there was no need for the approval by the
Office of the President of the exercise by the Sangguniang
Panlalawigan of the right of eminent domain. However, the
Solicitor General expressed the view that the Province of
Camarines Sur must first secure the approval of the Department

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of Agrarian Reform of the plan to expropriate the lands of

petitioners for use as a housing project.
The CA set aside the order of the court and ordered the trial court
to suspend the expropriation proceedings until the province shall
have submitted the requisite approval of the DAR.
Issue:

WON the expropriation was proper

Ratio:

The CA did not rule on the validity of the questioned

resolution; neither did it dismiss the complaints. However, when

the CA ordered the suspension of the proceedings until the
Province shall have obtained the authority of the DAR to change
the classification of the lands sought to be expropriated from
agricultural to non-agricultural use, it assumed that the
resolution is valid and that the expropriation is for a public
purpose or public use.
Public Purpose. Modernly, there has been a shift from the literal
to a broader interpretation of "public purpose" or "public use" for
which the power of eminent domain may be exercised. The old
concept was that the condemned property must actually be used
by the general public (e.g. roads, bridges, public plazas, etc.) before
the taking thereof could satisfy the constitutional requirement of
"public use". Under the new concept, "public use" means public
advantage, convenience or benefit, which tends to contribute to the
general welfare and the prosperity of the whole community, like a
resort complex for tourists or housing project.
The expropriation of the property authorized by the questioned
resolution is for a public purpose. The establishment of a pilot
development center would inure to the direct benefit and
advantage of the people of the Province of Camarines Sur. Once
operational, the center would make available to the community
invaluable information and technology on agriculture, fishery and
the cottage industry. Ultimately, the livelihood of the farmers,
fishermen and craftsmen would be enhanced. The housing project
also satisfies the public purpose requirement of the Constitution.
As held in Sumulong v. Guerrero, "Housing is a basic human need.
Shortage in housing is a matter of state concern since it directly
and significantly affects public health, safety, the environment and
in sum the general welfare."
Eminent Domain vs CARL. It is the submission of the Province
of Camarines Sur that its exercise of the power of eminent domain
cannot be restricted by the provisions of the CARL, particularly
Section 65, which requires the approval of the DAR before a parcel
of land can be reclassified from an agricultural to a nonagricultural land. The CA, following the recommendation of the
Solicitor General, held that the Province of Camarines Sur must
comply with the provision of Section 65 of the CARK and must
first secure the approval of the Department of Agrarian Reform of
the plan to expropriate the lands of the San Joaquins.
In Heirs of Juancho Ardana v. Reyes, while the Court said
that there was "no need under the facts of this petition to rule on
whether the public purpose is superior or inferior to another
purpose or engage in a balancing of competing public interest," it
upheld the expropriation after noting that petitioners had failed to
overcome the showing that the taking of 8,970 sq m formed part of
the resort complex. A fair and reasonable reading of the decision is

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that this Court viewed the power of expropriation as superior to

the power to distribute lands under the land reform program.
The Solicitor General denigrated the power to expropriate by the
Province of Camarines Sur by stressing the fact that LGUs
exercise such power only by delegation. It is true that local
government units have no inherent power of eminent domain and
can exercise it only when expressly authorized by the legislature.
It is also true that in delegating the power to expropriate, the
legislature may retain certain control or impose certain restraints
on the exercise thereof by the local governments. While such
delegated power may be a limited authority, it is complete within
its limits. Moreover, the limitations on the exercise of the
delegated power must be clearly expressed, either in the law
conferring the power or in other legislations.
Section 9 of B.P. Blg. 337 does not intimate in the least that local
government, units must first secure the approval of the
Department of Land Reform for the conversion of lands from
agricultural to non-agricultural use, before they can institute the
necessary expropriation proceedings. Likewise, there is no
provision in the Comprehensive Agrarian Reform Law which
expressly subjects the expropriation of agricultural lands by local
government units to the control of the Department of Agrarian
Reform. The closest provision of law that the CA could cite to
justify the intervention of the DAR in expropriation matters is
Section 65 of the CARL.
The opening, adverbial phrase of the provision sends signals that
it applies to lands previously placed under the agrarian reform
program as it speaks of "the lapse of five (5) years from its award."
The rules on conversion of agricultural lands found in Section 4 (k)
and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be
the source of the authority of the DAR to determine the suitability
of a parcel of agricultural land for the purpose to which it would
be devoted by the expropriating authority. While those rules vest
on the Department of Agrarian Reform the exclusive authority to
approve or disapprove conversions of agricultural lands for
residential, commercial or industrial uses, such authority is
limited to the applications for reclassification submitted by the
land owners or tenant beneficiaries.
Statutes conferring the power of eminent domain to political
subdivisions cannot be broadened or constricted by implication. To
sustain the Court of Appeals would mean that the LGUs can no
longer expropriate agricultural lands needed for the construction
of roads, bridges, schools, hospitals, etc, without first applying for
conversion of the use of the lands with the DAR, because all of
these projects would naturally involve a change in the land use. In
effect, it would then be the DAR to scrutinize whether the
expropriation is for a public purpose or public use.
Ordinarily, it is the legislative branch of the local government unit
that shall determine whether the use of the property sought to be
expropriated shall be public, the same being an expression of
legislative policy. The courts defer to such legislative
determination and will intervene only when a particular
undertaking has no real or substantial relation to the public use.
There is also an ancient rule that restrictive statutes, no matter
how broad their terms are, do not embrace the sovereign unless
the sovereign is specially mentioned as subject thereto. The
Republic of the Philippines, as sovereign, or its political

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subdivisions, as holders of delegated sovereign powers, cannot be

bound by provisions of law couched in general term.
The fears of private respondents that they will be paid on the
basis of the valuation declared in the tax declarations of their
property, are unfounded. This Court has declared as
unconstitutional the Presidential Decrees fixing the just
compensation in expropriation cases to be the value given to the
condemned property either by the owners or the assessor,
whichever was lower. As held in Municipality of Talisay v.
Ramirez, the rules for determining just compensation are those
laid down in Rule 67 of the Rules of Court, which allow private
respondents to submit evidence on what they consider shall be the
just compensation for their property.
Barangay San Roque v. Heirs of Pastor (2000)
Facts:

Petitioner filed before the MTC of Talisay, Cebu

Complaint to expropriate a property of the respondents. In an

Order, the MTC dismissed the Complaint on the ground of lack of
jurisdiction. It reasoned that "[e) minent domain is an exercise of
the power to take private property for public use after payment of
just compensation. In an action for eminent domain, therefore, the
principal cause of action is the exercise of such power or right. The
fact that the action also involves real property is merely
incidental. An action for eminent domain is therefore within the
exclusive original jurisdiction of the Regional Trial Court and not
with this Court."
On appeal, the RTC dismissed the complaint, holding that an
action for eminent domain affected title to real property; hence,
the value of the property to be expropriated would determine
whether the case should be filed before the MTC or the RTC. The
RTC concluded that the action should have been filed before the
MTC since the value of the subject property was less than
P20,000.
Aggrieved, petitioner appealed directly to this Court, raising a
pure question of law. Respondents contend that the Complaint for
Eminent Domain affects the title to or possession of real property.
Thus, they argue that the case should have been brought before
the MTC, pursuant to BP 129 as amended by Section 3 (3) of RA
7691. This law provides that MTCs shall have exclusive original
jurisdiction over all civil actions that involve title to or possession
of real property, the assessed value of which does not exceed
twenty thousand pesos or, in civil actions in Metro Manila, fifty
thousand pesos exclusive of interest, damages of whatever kind,
attorneys fees, litigation expenses and costs.
Issue:

WON an expropriation suit is one incapable of

pecuniary estimation and is therefore within the jurisdiction of

the RTC
Held:

Yes

Ratio:

"A review of the jurisprudence of this Court indicates

that in determining whether an action is one the subject matter of

which is not capable of pecuniary estimation, this Court has
adopted the criterion of first ascertaining the nature of the
principal action or remedy sought. If it is primarily for the
recovery of a sum of money, the claim is considered capable of

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pecuniary estimation, and whether jurisdiction is in the municipal

courts or in the courts of first instance would depend on the
amount of the claim. However, where the basic issue is something
other than the right to recover a sum of money, or where the
money claim is purely incidental to, or a consequence of, the
principal relief sought, like in suits to have the defendant perform
his part of the contract (specific performance) and in actions for
support, or for annulment of a judgment or to foreclose a
mortgage, this Court has considered such actions as cases where
the subject of the litigation may not be estimated in terms of
money, and are cognizable exclusively by courts of first instance.
The rationale of the rule is plainly that the second class cases,
besides the determination of damages, demand an inquiry into
other factors which the law has deemed to be more within the
competence of courts of first instance, which were the lowest
courts of record at the time that the first organic laws of the
Judiciary were enacted allocating jurisdiction.
In the present case, an expropriation suit does not involve the
recovery of a sum of money. Rather, it deals with the exercise by
the government of its authority and right to take private property
for public use. In National Power Corporation v. Jocson, the Court
ruled that expropriation proceedings have two phases:
"The first is concerned with the determination of the authority of
the plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the context of the facts involved in the
suit. It ends with an order, if not of dismissal of the action, of
condemnation declaring that the plaintiff has a lawful right to
take the property sought to be condemned, for the public use or
purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the filing of the
complaint. An order of dismissal, if this be ordained, would be a
final one, of course, since it finally disposes of the action and
leaves nothing more to be done by the Court on the merits. So, too,
would an order of condemnation be a final one, for thereafter as
the Rules expressly state, in the proceedings before the Trial
Court, no objection to the exercise of the right of condemnation (or
the propriety thereof) shall be filed or heard.
"The second phase of the eminent domain action is concerned with
the determination by the court of the just compensation for the
property sought to be taken. This is done by the Court with the
assistance of not more than three (3) commissioners. The order
fixing the just compensation on the basis of the evidence before,
and findings of, the commissioners would be final, too. It would
finally dispose of the second stage of the suit, and leave nothing
more to be done by the Court regarding the issue. "
It should be stressed that the primary consideration in an
expropriation suit is whether the government or any of its
instrumentalities has complied with the requisites for the taking
of private property. Hence, the courts determine the authority of
the government entity, the necessity of the expropriation, and the
observance of due process. In the main, the subject of an
expropriation suit is the governments exercise of eminent domain,
a matter that is incapable of pecuniary estimation.
True, the value of the property to be expropriated is estimated in
monetary terms, for the court is duty-bound to determine the just
compensation for it. This, however, is merely incidental to the

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expropriation suit. Indeed, that amount is determined only after

the court is satisfied with the propriety of the expropriation.
Verily, the Court held in Republic of the Philippines v. Zurbano
that "condemnation proceedings are within the jurisdiction of
Courts of First Instance," the forerunners of the regional trial
courts. The said case was decided during the effectivity of the
Judiciary Act of 1948 which, like BP 129 in respect to RTCs,
provided that courts of first instance had original jurisdiction over
"all civil actions in which the subject of the litigation is not
capable of pecuniary estimation." The 1997 amendments to the
Rules of Court were not intended to change these jurisprudential
precedents.
We are not persuaded by respondents argument that the present
action involves the title to or possession of a parcel of land. They
cite the observation of retired Justice Jose Y. Feria, an eminent
authority in remedial law, that condemnation or expropriation
proceedings are examples of real actions that affect the title to or
possession of a parcel of land.
Their reliance is misplaced. Justice Feria sought merely to
distinguish between real and personal actions. His discussion on
this point pertained to the nature of actions, not to the jurisdiction
of courts. In fact, in his pre-bar lectures, he emphasizes that
jurisdiction over eminent domain cases is still within the RTCs
under the 1997 Rules.
To emphasize, the question in the present suit is whether the
government may expropriate private property under the given set
of circumstances. The government does not dispute respondents
title to or possession of the same. Indeed, it is not a question of
who has a better title or right, for the government does not even
claim that it has a title to the property. It merely asserts its
inherent sovereign power to "appropriate and control individual
property for the public benefit, as the public necessity, convenience
or welfare may demand."
Mun. of Paranaque v. V.M. Realty Corp (1998)
Facts:

Pursuant to Sangguniang Bayan Resolution No. 93-95,

Series of 1993, the Municipality of Paraaque filed a Complaint

for expropriation against V.M. Realty Corporation, over two
parcels of land. Allegedly, the complaint was filed "for the purpose
of alleviating the living conditions of the underprivileged by
providing homes for the homeless through a socialized housing
project."
Petitioner, pursuant to its Sangguniang Bayan
Resolution No. 577, Series of 1991, previously made an offer to
enter into a negotiated sale of the property with private
respondent, which the latter did not accept.
The RTC authorized petition to take possession of the subject
property upon its deposit with the clerk of court of an amount
equivalent to 15% of its fair market value.
Private Respondent filed an answer alleging that (a) the complaint
failed to state a cause of action because it was filed pursuant to a
resolution and not to an ordinance as required by RA 7160; and (b)
the cause of action, if any, was barred by a prior judgment or res
judicata. On private respondent's motion, its Answer was treated
as a motion to dismiss. The trial court dismissed the complaint.
Issue:

WON the resolution is different from the ordinance

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Held:

Yes

Ratio:

Petitioner contends that a resolution approved by the

municipal council for the purpose of initiating an expropriation

case "substantially complies with the requirements of the law"
because the terms "ordinance" and "resolution" are synonymous
for "the purpose of bestowing authority [on] the local government
unit through its chief executive to initiate the expropriation
proceedings in court in the exercise of the power of eminent
domain." Petitioner seeks to bolster this contention by citing
Article 36, Rule VI of the IRR of the Local Government Code,
which provides: "If the LGU fails to acquire a private property for
public use, purpose, or welfare through purchase, the LGU may
expropriate said property through a resolution of the Sanggunian
authorizing its chief executive to initiate expropriation
proceedings."
The Court disagrees. The power of eminent domain is lodged in
the legislative branch of government, which may delegate the
exercise thereof to LGUs, other public entities and public utilities.
An LGU may therefore exercise the power to expropriate private
property only when authorized by Congress and subject to the
latter's control and restraints imposed "through the law conferring
the power or in other legislations." In this case, Section 19 of RA
7160, which delegates to LGUs the power of eminent domain, also
lays down the parameters for its exercise. Thus, the following
essential requisites must concur before an LGU can exercise the
power of eminent domain:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the LGU, to
exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property.
2. The power of eminent domain is exercised for public use,
purpose or welfare, or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under
Section 9, Article III of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner
of the property sought to be expropriated, but said offer was not
accepted.
In the case at bar, the local chief executive sought to exercise the
power of eminent domain pursuant to a resolution of the
municipal council. Thus, there was no compliance with the first
requisite that the mayor be authorized through an ordinance.
Petitioner cites Camarines Sur vs. CA to show that a resolution
may suffice to support the exercise of eminent domain by an LGU.
This case, however, is not in point because the applicable law at
that time was BP 337, 30 the previous Local Government Code,
which had provided that a mere resolution would enable an LGU
to exercise eminent domain. In contrast, RA 7160 explicitly
required an ordinance for this purpose.
We are not convinced by petitioner's insistence that the terms
"resolution" and "ordinance" are synonymous. A municipal
ordinance is different from a resolution. An ordinance is a law, but
a resolution is merely a declaration of the sentiment or opinion of
a lawmaking body on a specific matter. An ordinance possesses a
general and permanent character, but a resolution is temporary in
nature. Additionally, the two are enacted differently - a third
reading is necessary for an ordinance, but not for a resolution,

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unless decided otherwise by a majority of all the Sanggunian

members.
If Congress intended to allow LGUs to exercise eminent domain
through a mere resolution, it would have simply adopted the
language of the previous Local Government Code. But Congress
did not. In a clear divergence from the previous Local Government
Code, Section 19 of RA 7160 categorically requires that the local
chief executive act pursuant to an ordinance. Indeed, "[l]egislative
intent is determined principally from the language of a statute.
Where the language of a statute is clear and unambiguous, the
law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be
either impossible or absurd or would lead to an injustice." 34 In
the instant case, there is no reason to depart from this rule, since
the law requiring an ordinance is not at all impossible, absurd, or
unjust.
Moreover, the power of eminent domain necessarily involves a
derogation of a fundamental or private right of the people. 35
Accordingly, the manifest change in the legislative language - from
"resolution" under the BP 337 to "ordinance" under RA 7160 demands a strict construction. "No species of property is held by
individuals with greater tenacity, and is guarded by the
Constitution and laws more sedulously, than the right to the
freehold of inhabitants. When the legislature interferes with that
right and, for greater public purposes, appropriates the land of an
individual without his consent, the plain meaning of the law
should not be enlarged by doubtful interpretation."
Petitioner relies on Article 36, Rule VI of the Implementing Rules,
which requires only a resolution to authorize an LGU to exercise
eminent domain. This is clearly misplaced, because Section 19 of
RA 7160, the law itself, surely prevails over said rule which
merely seeks to implement it. It is axiomatic that the clear letter
of the law is controlling and cannot be amended by a mere
administrative rule issued for its implementation. Besides, what
the discrepancy seems to indicate is a mere oversight in the
wording of the implementing rules, since Article 32, Rule VI
thereof, also requires that, in exercising the power of eminent
domain, the chief executive of the LGU must act pursuant to an
ordinance.
Issue:

WON the complaint states a cause of action

Held:

No

Ratio: In the first place, petitioner merely alleged the existence of

such an ordinance, but it did not present any certified true copy
thereof. In the second place, petitioner did not raise this point
before this Court. In fact, it was mentioned by private respondent,
and only in passing. In any event, this allegation does not cure the
inherent defect of petitioner's Complaint for expropriation filed on
September 23, 1993.
The fact that there is no cause of action is evident from the face of
the Complaint for expropriation which was based on a mere
resolution. The absence of an ordinance authorizing the same is
equivalent to lack of cause of action. Consequently, the Court of

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Appeals committed no reversible error in affirming the trial

court's Decision which dismissed the expropriation suit.
Issue:

WON the action is bared by res juridicata

Held:

No

Ratio: All the requisites for the application of res judicata are
present in this case. There is a previous final judgment on the
merits in a prior expropriation case involving identical interests,
subject matter and cause of action, which has been rendered by a
court having jurisdiction over it.
Be that as it may, the Court holds that the principle of res
judicata, which finds application in generally all cases and
proceedings, cannot bar the right of the State or its agent to
expropriate private property. The very nature of eminent domain,
as an inherent power of the State, dictates that the right to
exercise the power be absolute and unfettered even by a prior
judgment or res judicata. The scope of eminent domain is plenary
and, like police power, can "reach every form of property which the
State might need for public use." "All separate interests of
individuals in property are held of the government under this tacit
agreement or implied reservation. Notwithstanding the grant to
individuals, the eminent domain, the highest and most exact idea
of property, remains in the government, or in the aggregate body
of the people in their sovereign capacity; and they have the right
to resume the possession of the property whenever the public
interest requires it." Thus, the State or its authorized agent
cannot be forever barred from exercising said right by reason
alone of previous non-compliance with any legal requirement.
While the principle of res judicata does not denigrate the right of
the State to exercise eminent domain, it does apply to specific
issues decided in a previous case. For example, a final judgment
dismissing an expropriation suit on the ground that there was no
prior offer precludes another suit raising the same issue; it cannot,
however, bar the State or its agent from thereafter complying with
this requirement, as prescribed by law, and subsequently
exercising its power of eminent domain over the same property. By
the same token, our ruling that petitioner cannot exercise its
delegated power of eminent domain through a mere resolution will
not bar it from reinstituting similar proceedings, once the said
legal requirement and, for that matter, all others are properly
complied with. Parenthetically and by parity of reasoning, the
same is also true of the principle of "law of the case." In Republic
vs De Knecht, the Court ruled that the power of the State or its
agent to exercise eminent domain is not diminished by the mere
fact that a prior final judgment over the property to be
expropriated has become the law of the case as to the parties. The
State or its authorized agent may still subsequently exercise its
right to expropriate the same property, once all legal requirements
are complied with. To rule otherwise will not only improperly
diminish the power of eminent domain, but also clearly defeat
social justice.
City of Cebu v. CA (1996)
Facts: Merlita Cardeno is the owner of a parcel of land in Sitio
Sto. Nino, Alaska-Mambaling. The City of Cebu, filed a complaint

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for eminent domain against Cardeno with the RTC seeking to

expropriate the said parcel of land. The complaint was initiated
pursuant to Resolution No. 404 and Ordinance No. 1418, dated
February 17, 1992, of the Sangguniang Panlungsod of Cebu City
authorizing the City Mayor to expropriate the said parcel of land
for the purpose of providing a socialized housing project for the
landless and low-income city residents. Cardeno filed a motion to
dismiss on the ground of lack of cause of action as there has been
negotiations for the purchase of the property without resorting to
expropriation, but said negotiations failed. Also, there was no
compliance with the conditions to the exercise of the power of
eminent domain (valid and definite offer made to the owner and
non acceptance). The RTC dismissed the complaint. The CA
affirmed the of the RTC. According to the CA, an allegation of
repeated negotiations made with the private respondent for the
purchase of her property by the petitioner, "cannot by any stretch
of imagination, be equated or likened to the clear and specific
requirement that the petitioner should have previously made a
valid and definite offer to purchase." It further added that the
term "negotiation" which necessarily implies uncertainty, it
consisting of acts the purpose of which is to arrive at a conclusion,
may not be perceived to mean the valid and definite offer
contemplated by law.
Issue: WON expropriation may be granted
Ratio: An offshoot of the foregoing is the instant petition for
review on certiorari which has essentially become a battle of
semantics being waged before this Court. While petitioner
reiterates that paragraph VII of the complaint sufficiently states
compliance with the requirement of "a valid and definite offer",
private respondent insists that the term "negotiations" is too
broad to be equated with the said requirement. Elaborating,
private respondent posited that by definition, "negotiations run
the whole range of acts preparatory to concluding an agreement,
from the preliminary correspondence; the fixing of the terms of
the agreement; the price; the mode of payment; obligations of (sic)
the parties may conceive as necessary to their agreement." Thus,
"negotiations" by itself may pertain to any of the foregoing and
does not automatically mean the making of "a valid and definite
offer."
At the outset, it must be said that without necessarily delving into
the parties' semantical arguments, this Court finds that the
complaint does in fact state a cause of action. What may perhaps
be conceded is only the relative ambiguity of the allegations in
paragraph VII of the complaint. However, as We have previously
held, a complaint should not be dismissed upon a mere ambiguity,
indefiniteness or uncertainty of the cause of action stated
thereinfor these are not grounds for a motion to dismiss but rather
for a bill of particulars. In other words, a complaint should not be
dismissed for insufficiency unless it appears clearly from the face
of the complaint that the plaintiff is not entitled to any relief
under any state of facts which could be proved within the facts
alleged therein.
The error of both the RTC and respondent Court of Appeals in
holding that the complaint failed to state a cause of action stems
from their inflexible application of the rule that: when the motion

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to dismiss is based on the ground that the complaint states no

cause of action, no evidence may be allowed and the issue should
only be determined in the light of the allegations of the complaint.
However, this rule is not without exceptions. In the case of Tan v.
Director of Forestry, this Court departed from the aforementioned
rule and held that, ". . . although the evidence of the parties were
on the question of granting or denying the petitioner-appellant's
application for a writ of preliminary injunction, the trial court
correctly applied said evidence in the resolution of the motion to
dismiss." Likewise, in Marcopper Mining Corporation v. Garcia,
we sanctioned the act of the trial court in considering, in addition
to the complaint, other pleadings submitted by the parties in
deciding whether or not the complaint should be dismissed for lack
of cause of action. This Court deemed such course of action but
logical where the trial court had the opportunity to examine the
merits of the complaint, the answer with counterclaim, the
petitioner's answer to the counterclaim and its answer to the
request for admission. The same liberality should be applied in the
instant case.
Furthermore, even on the face of the complaint alone, there is
extant a cause of action. All documents attached to a complaint,
the due execution and genuineness of which are not detained
under oath by the defendant, must be considered as part of the
complaint without need of introducing evidence thereon.
Additionally, the general rule is that a motion to dismiss
hypothetically admits the truth of the facts alleged in the
complaint. Thus, Ordinance No. 1418 is not only incorporated into
the complaint for eminent domain filed by petitioner, but is also
deemed admitted by private respondent. A perusal of the copy of
said ordinance which has been annexed to the complaint shows
that the fact of petitioner's having made a previous valid and
definite offer to private respondent is categorically stated therein.
Thus, the second whereas clause of the said ordinance provides as
follows: WHEREAS, the city government has made a valid and
definite offer to purchase subject lot(s) for the public use
aforementioned but the registered owner Mrs. Merlita Cardeno
has rejected such offer.
The foregoing should now put to rest the long drawn argument
over the alleged failure of the complaint to state a cause of action.
There is no longer any room for doubt that as alleged in the
complaint, and as admitted by private respondent, the petitioner
had in fact complied with the condition precedent of "a valid and
definite offer" set forth in Sec. 19 of R.A. 7160. The rules of
procedure are not to be applied in a very rigid, technical sense;
rules of procedure are used only to help secure substantial justice.
If a technical and rigid enforcement of the rules is made their aim
would be defeated. Where the rules are merely secondary in
importance are made to override the ends of justice; the technical
rules had been misapplied to the prejudice of the substantial right
of a party, said rigid application cannot be countenanced.
The doctrine finds compelling application in the case at bench. For
as correctly averred by petitioner, nothing else was accomplished
by the dismissal of the complaint for eminent domain but a
considerable delay in the proceedings. The dismissal of the
complaint did not bar petitioner from filing another eminent
domain case and from correcting its alleged error by the mere
expedient of changing paragraph VII thereof. Indeed, precious

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time has been wasted while the salutary objectives of Ordinance

No. 1418 of the City of Cebu have been put on hold by a quarrel
over technical matters.
Francia v. Mun. of Meycauyan (2008)
Facts:

On February 6, 2003, the respondent filed a complaint

for expropriation against petitioners. Respondent needed

petitioners' 16,256 sq. m. idle property at the junction of the North
Expressway, Malhacan-Iba-Camalig main road artery and the
MacArthur Highway. It planned to use it to establish a common
public terminal for all types of public utility vehicles with a
weighing scale for heavy trucks.
In their answer, petitioners denied that the property sought to be
expropriated was raw land. It was in fact developed and there
were plans for further development. For this reason, respondent's
offer price of P2,333,500 (or P111.99 per square meter) was too
low. After trial, the RTC ruled that the expropriation was for a
public purpose as the terminal would improve the flow of traffic
during rush hours. Moreover, the property as the best site for the
proposed terminal because of its accessibility.
Aggrieved, petitioners filed a petition for certiorari in the CA.
They claimed that the trial court issued the orders without
conducting a hearing to determine the existence of a public
purpose. The partially granted the petition. Finding that
petitioners were deprived of an opportunity to controvert
respondent's allegations, the appellate court nullified the order of
expropriation except with regard to the writ of possession.
According to the CA, a hearing was not necessary because once
the expropriator deposited the required amount (with the Court),
the issuance of a writ of possession became ministerial.
Issue:

WON the CA erred in upholding the RTC's orders that,

in expropriation cases, prior determination of the existence of a

public purpose was not necessary for the issuance of a writ of
possession.
Held:

No

Ratio: Section 19 of Republic Act 7160[9] provides:

Section 19. Eminent Domain. A local government unit may,
through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose, or
welfare for the benefit of the poor and the landless, upon payment
of just compensation, pursuant to the provisions of the Constitution
and pertinent laws; Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and that such offer was not
accepted; Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the
property to be expropriated; Provided, finally, That, the amount to
be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the
taking of the property.

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Before a local government unit may enter into the possession of

the property sought to be expropriated, it must (1) file a complaint
for expropriation sufficient in form and substance in the proper
court and (2) deposit with the said court at least 15% of the
property's fair market value based on its current tax declaration.
The law does not make the determination of a public purpose a
condition precedent to the issuance of a writ of possession.
Heirs of Ardona v. Reyes (1983)
Facts:

The Philippine Tourism Authority filed 4 complaints

with the CFI of Cebu City for the expropriation of 282 ha of rolling
land situated in barangays Malubog and Babag, Cebu City for the
development into integrated resort complexes of selected and welldefined geographic areas with potential tourism value. The PTA
will construct a sports complex, club house, golf course,
playground and picnic area on said land. An electric power grid
will also be established by NPC as well as deep well and drainage
system. Complimentary support facilities (malls, coffee shops, etc)
will also be created.
The defendants alleged that the taking is allegedly not impressed
with public use under the Constitution. Also, assuming that PTA
has such power, the intended use cannot be paramount to the
determination of the land as a land reform area; that limiting the
amount of compensation by legislative fiat is constitutionally
repugnant; and that since the land is under the land reform
program, it is the Court of Agrarian Relations and not the Court
of First Instance, that has jurisdiction over the expropriation
cases. The Philippine Tourism Authority having deposited with
the PNB, an amount equivalent to 10% of the value of the
properties pursuant to PD1533, the lower court issued separate
orders authorizing PTA to take immediate possession of the
premises and directing the issuance of writs of possession.
Issue:

WON the public use requirement has been complied

with
Held:
Ratio:

Yes
There are three provisions of the Constitution which

directly provide for the exercise of the power of eminent domain.

Sec 2, Article IV states that private property shall not be taken for
public use without just compensation. Section 6, Article XIV
allows the State, in the interest of national welfare or defense and
upon payment of just compensation to transfer to public
ownership, utilities and other private enterprises to be operated
by the government. Section 13, Article XIV states that the
Batasang Pambansa may authorize upon payment of just
compensation the expropriation of private lands to be subdivided
into small lots and conveyed at cost to deserving citizens. While
not directly mentioning the expropriation of private properties
upon payment of just compensation, the provisions on social
justice and agrarian reforms which allow the exercise of police
power together with the power of eminent domain in the
implementation of constitutional objectives are even more far
reaching insofar as taxing of private property is concerned. We
cite all the above provisions on the power to expropriate because of
the petitioners' insistence on a restrictive view of the eminent

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domain provision. The thrust of all constitutional provisions on

expropriation is in the opposite direction.
As early as 1919, this Court in Visayan Refining Co. v. Samus
categorized the restrictive view as wholly erroneous and based on
a misconception of fundamentals. The petitioners look for the word
"tourism" in the Constitution. Understandably the search would
be in vain. To freeze specific programs like tourism into express
constitutional provisions would make the Constitution more prolix
than a bulky code and require of the framers a prescience beyond
Delphic proportions. In said case, this Court emphasized that the
power of eminent domain is inseparable from sovereignty being
essential to the existence of the State and inherent in government
even in its most primitive forms. The only purpose of the provision
in the Bill of Rights is to provide some form of restraint on the
sovereign power. It is not a grant of authority .
The petitioners ask us to adopt a strict construction and declare
that "public use" means literally use by the public and that "public
use" is not synonymous with "public interest", "public benefit", or
"public welfare" and much less "public convenience." The
petitioners face two major obstacles. First, their contention which
is rather sweeping in its call for a retreat from the public welfare
orientation is unduly restrictive and outmoded. Second, no less
than the lawmaker has made a policy determination that the
power of eminent domain may be exercised in the promotion and
development of Philippine tourism.
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public
concerns and which possesses big and correctly located public
lands that obviate the need to take private property for public
purposes. Neither circumstance applies to the Philippines. We
have never been a laissez faire State. And the necessities which
impel the exertion of sovereign power are all too often found in
areas of scarce public land or limited government resources.
There can be no doubt that expropriation for such traditional
purposes as the construction of roads, bridges, ports, waterworks,
schools, electric and telecommunications systems, hydroelectric
power plants, markets and slaughterhouses, parks, hospitals,
government office buildings, and flood control systems is valid.
However, the concept of public use is not limited to traditional
purposes. Here as elsewhere the idea that "public use" is strictly
limited to clear cases of "use by the public" has been discarded.
In the Philippines, Chief Justice Enrique M. Fernando has aptly
summarized the statutory and judicial trend as follows: "The
taking to be valid must be for public use. There was a time when it
was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the
public to enjoy, as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not any more. As long as the
purpose of the taking is public, then the power of eminent domain
comes into play. As just noted, the constitution in at least two
cases, to remove any doubt, determines what is public use. One is
the expropriation of lands to be subdivided into small lots for
resale at cost to individuals. The other is in the transfer, through
the exercise of this power, of utilities and other private enterprise
to the government. It is accurate to state then that at present
whatever may be beneficially employed for the general welfare
satisfies the requirement of public use."

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The petitioners' contention that the promotion of tourism is not

"public use" because private concessioners would be allowed to
maintain various facilities such as restaurants, hotels, stores, etc.
inside the tourist complex is impressed with even less merit.
Private bus firms, taxicab fleets, roadside restaurants, and other
private businesses using public streets and highways do not
diminish in the least bit the public character of expropriations for
roads and streets. The lease of store spaces in underpasses of
streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private
airlines and shipping companies are still for public use. The
expropriation of private land for slum clearance and urban
development is for a public purpose even if the developed area is
later sold to private homeowners, commercial firms,
entertainment and service companies, and other private concerns.
The petitioners have also failed to overcome the deference that is
appropriately accorded to formulations of national policy
expressed in legislation. The rule in Berman v. Parker (supra) of
deference to legislative policy even if such policy might mean
taking from one private person and conferring on another private
person applies as well as in the Philippines. An examination of the
language in the 1919 cases of City of Manila v. Chinese
Community of Manila and Visayan Refining Co. v. Camus, earlier
cited, shows that from the very start of constitutional government
in our country judicial deference to legislative policy has been
clear and manifest in eminent domain proceedings. The
expressions of national policy are found in the revised charter of
the Philippine Tourism Authority, PD 564.
(Disregard of Land Reform Nature) According to them, assuming
that PTA has the right to expropriate, the properties subject of
expropriation may not be taken for the purposes intended since
they are within the coverage of "operation land transfer" under the
land reform program; that the agrarian reform program occupies
a higher level in the order of priorities than other State policies
like those relating to the health and physical well-being of the
people; and that property already taken for public use may not be
taken for another public use.
The petitioners, however, have failed to show that the area being
developed is indeed a land reform area and that the affected
persons have emancipation patents and certificates of land
transfer.
The records show that the area being developed into a tourism
complex consists of more than 808 hectares, almost all of which is
not affected by the land reform program. The portion being
expropriated is 282 hectares of hilly and unproductive land where
even subsistence farming of crops other than rice and corn can
hardly survive. And of the 282 disputed hectares, only 8,970
square meters - less than one hectare - is affected by Operation
Land Transfer. Of the 40 defendants, only two have emancipation
patents for the less than one hectare of land affected.
(Non Impairment Clause) The non-impairment clause has
never been a barrier to the exercise of police power and likewise
eminent domain. As stated in Manigault v. Springs "parties by
entering into contracts may not estop the legislature from
enacting laws intended for the public good." The applicable
doctrine is expressed in Arce v. Genato which involved the
expropriation of land for a public plaza. The issue of prematurity

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08-09:

2nd

Sem.

is also raised by the petitioners. They claim that since the

necessity for the taking has not been previously established, the
issuance of the orders authorizing the PTA to take immediate
possession of the premises, as well as the corresponding writs of
possession was premature.
Under Presidential Decree No. 42, as amended by Presidential
Decree No. 1533, the government, its agency or instrumentality,
as plaintiff in an expropriation proceedings is authorized to take
immediate possession, control and disposition of the property and
the improvements, with power of demolition, notwithstanding the
pendency of the issues before the court, upon deposit with the
Philippine National Bank of an amount equivalent to 10% of the
value of the property expropriated. The issue of immediate
possession has been settled in Arce v. Genato. In answer to the
issue: ". . . condemnation or expropriation proceedings is in the
nature of one that is quasi-in-rem, wherein the fact that the owner
of the property is made a party is not essentially indispensable
insofar at least as it concerns the immediate taking of possession
of the property and the preliminary determination of its value,
including the amount to be deposited."
Makasiar: It appearing that the petitioners are not tenants of the
parcels of land in question and therefore do not fall within the
purview of the Land Reform Code, the petition should be
dismissed on that score alone.
There is no need to decide whether the power of the PTA to
expropriate the land in question predicated on the police power of
the State shall take precedence over the social justice guarantee in
favor of tenants and the landless. The welfare of the landless and
small land owners should prevail over the right of the PTA to
expropriate the lands just to develop tourism industry, which
benefit the wealthy only. Such a position would increase the
disenchanted citizens and drive them to dissidence. The
government is instituted primarily for the welfare of the governed
and there are more poor people in this country than the rich. The
tourism industry is not essential to the existence of the
government, but the citizens are, and their right to live in dignity
should take precedence over the development of the tourism
industry.
Filstream International Inc. v. CA (1998)
Facts:

Petitioner is the registered owner of the properties

subject of this dispute consisting of adjacent parcels of land

situated in Antonio Rivera Street, Tondo II, Manila. Petitioner
filed an ejectment suit before the MTC against the occupants of
the parcels of land (private respondents) on the grounds of
termination of the lease contract and non-payment of rentals.
Judgment was rendered by the MTC ordering private respondents
to vacate the premises and pay back rentals to petitioner. The
RTC and CA affirmed.
However, it appeared that during the pendency of the ejectment
proceedings private respondents, a complaint for Annulment of
Deed of Exchange against petitioner which was filed before the
RTC. The City of Manila then approved Ordinance No. 7813,
authorizing Mayor Lim to initiate the acquisition by negotiation,
expropriation, purchase, or other legal means certain parcels of
land which formed part of the properties of petitioner then
occupied by private respondents. The City approved Ordinance

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(Guanzon)

No. 7855 declaring the expropriation of certain parcels of land

situated along Antonio Rivera and Fernando Ma. Guerero streets
in Tondo, Manila which were owned by Mr. Enrique Quijano
Gutierez, petitioners predecessor-in-interest. The said properties
were to be sold and distributed to qualified tenants of the area
pursuant to the Land Use Development Program of the City of
Manila.
The City of Manila filed a complaint for eminent domain. The trial
court issued a Writ of Possession in favor of the city which ordered
the transfer of possession over the disputed premises to the City of
Manila. Petitioner filed a motion to dismiss but the court denied
th emotion.
Concerning the first case, the trial court issued an order
commanding the demolition of the structure erected on the
disputed premises. To avert the demolition, private respondents
filed before the RTC of Manila, Branch 14, a Petition for Certiorari
and Prohibition with prayer for the issuance of a temporary
restraining order and preliminary injunction. The TRO was
granted which was later lifted. The court the dismissed the case
on the ground of forum shopping. On appeal, the CA found merit
in private respondents allegations in support of their application
of the issuance of the writ and granted the same.
The issue raised in G.R. No. 125218 is purely procedural and
technical matter. Petitioner takes exception to the resolutions of
the CA which ordered the dismissal of its Petition for Certiorari
for non-compliance with Sec. 2(a) of Rule 6 of the Revised Internal
Rules of the Court of Appeals by failing to attach to its petition
other pertinent documents and papers and for attaching copies of
pleadings which are blurred and unreadable. Petitioner argues
that respondent appellate court seriously erred in giving more
premium to form rather than the substance.
We agree with the petitioner. A strict adherence to the technical
and procedural rules in this case would defeat rather than meet
the ends of justice as it would result in the violation of the
substantial rights of petitioner. At stake in the appeal filed by
petitioner before the CA is the exercise of their property rights
over the disputed premises which have been expropriated and
have in fact been ordered condemned in favor of the City of
Manila.
In effect, the dismissal of their appeal in the
expropriation proceedings based on the aforementioned grounds is
tantamount to a deprivation of property without due process of
law as it would automatically validate the expropriation
proceedings based on the aforementioned grounds is tantamount
to a deprivation of property without due process of law as it would
automatically validate the expropriation proceedings which the
petitioner is still disputing. It must be emphasized that where
substantial rights are affected, as in this case, the stringent
application of procedural rules may be relaxed if only to meet the
ends of substantial justice.
With regard to the other petition, G.R. No. 128077, petitioner
Filstream objects to the issuance by respondent CA of the
restraining order and the preliminary injunction enjoining the
execution of the writ of demolition issued in the ejectment suit as
an incident to private respondents pending petition assailing the
dismissal by the RTC of Manila, Branch 33, of the consolidated
petitions for certiorari filed by private respondents and the City of
Manila on the ground of forum shopping.

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08-09:

2nd

Sem.

The propriety of the issuance of the restraining order and the writ
of preliminary injunction is but a mere incient to the actual
controversy which is rooted in the assertion of the conflicting
rights of the parties in this case over the disputed premises. In
order to determine whether private respondents are entitled to the
injunctive reliefs granted by respondent CA, we deemed it proper
to extract the source of discord.
Petitioner anchors its claim by virtue of its ownership over the
properties and the existence of a final and executory judgment
against private respondents ordering the latters ejectment from
the premises. Private respondents claim on the other hand hinges
on an alleged supervening event which has rendered the
enforcement of petitioners rights moot, that is, the expropriation
proceedings undertaken by the City of Manila over the disputed
premises for the benefit of herein private respondents. For its
part, the City is merely exercising its power of eminent domain
within its jurisdiction by expropriating petitioners properties for
public use.
There is no dispute as to the existence of a final and executory
judgment in favor of petitioner ordering the ejectment of private
respondents from the properties subject of this dispute. The
judgment in the ejectment suit became final after private
respondents failed to interpose any appeal from the adverse
decision of CA. Petitioner has every right to assert the execution
of this decision as it had already became final and executory.
However, it must also be conceded that the City of Manila has an
undeniable right to exercise its power of eminent domain within
its jurisdiction. The right to expropriate private property for
public use is expressly granted to it under Section 19 of the 1991
Local Government Code. More specifically, the City of Manila has
the power to expropriate private property in the pursuit of its
urban land reform and housing program as explicitly laid out in
the Revised Charter of the City of Manila (R.A. No. 409).
In fact, the City of Manilas right to exercise these prerogatives
notwithstanding the existence of a final and executory judgment
over the property to be expropriated has been upheld by this Court
in the case of Philippine Columbian Association vs. Panis.
Corollary to the expanded notion of public use, expropriation is
not anymore confined to vast tracts of land and landed estate. It
is therefore of no moment that the land sought to be expropriated
in this case is less than the half a hectare only.
Through the years, the public use requirement in eminent domain
has evolved into a flexible concept, influenced by changing
conditions. Public use now includes the broader notion of indirect
public benefit or advantage, including a particular, urban land
reform and housing.
We take judicial notice of the fact that urban land reform has
become a paramount task in view of the acute shortage of decent
housing in urban areas. Nevertheless, despite the existence of a
serious dilemma, local government units are not given an
unbridled authority when exercising their power of eminent
domain in pursuit of solutions to these problems. The basic rules
still have to be followed, which are as follows: no person shall be
deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws;
private property shall not be taken for public use without just

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(Guanzon)

compensation. Thus the exercise by local government units of the

power of eminent domain is not without limitations.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands.
Very clear from the provisions are the limitations with respect to
the order of priority in acquiring private lands and in resorting to
expropriation proceedings as means to acquire the same. Private
lands rank last in the order of priority for purposes of socialized
housing. In the same vein, expropriation proceedings are to be
resorted to only when the other modes of acquisition have been
exhausted. Compliance with these conditions must be deemed
mandatory because these are the only safeguards in securing the
right of owners of private property to due process when their
property is expropriated for public use.
Proceeding from the parameters laid out in the above
disquisitions, we now pose the crucial question: Did the city of
Manila comply with the abovementioned conditions when it
expropriated petitioners properties?
We have carefully
scrutinized the records of this case and found nothing that would
indicate the respondent City of Manila complied with Sec. 9 and
Sec. 10 of R.A. 7279. Petitioners properties were expropriated
and ordered condemned in favor of the City of Manila sans any
showing that resort to the acquisition of other lands listed under
Sec. 9 of RA 7279 have proved futile. Evidently, there was a
violation of petitioner Filstreams right to due process which must
accordingly be rectified.
Indeed, it must be emphasized that the State has a paramount
interest in exercising its power of eminent domain for the general
good considering that the right of the State to expropriate private
property as long as it is for public use always takes precedence
over the interest of private property owners. However we must not
lose sight of the fact that the individual rights affected by the
exercise of such right are also entitled to protection, bearing in
mind that the exercise of this superior right cannot override the
guarantee of due process extended by the law to owners of the
property to be expropriated. In this regard, vigilance over
compliance with the due process requirements is in order.
Hagonoy Market Vendors Assn. v. Mun. of Hagonoy (2002)
Facts:

On October 1, 1996, the Sangguniang Bayan of Hagonoy,

Bulacan, enacted an ordinance, Kautusan Blg. 28, which

increased the stall rentals of the market vendors in Hagonoy.
Article 3 provided that it shall take effect upon approval. The
subject ordinance was posted from November 4-25, 1996.
In the last week of November, 1997, the petitioners members were
personally given copies of the approved Ordinance and were
informed that it shall be enforced in January, 1998. On December
8, 1997, the petitioners President filed an appeal with the
Secretary of Justice assailing the constitutionality of the tax
ordinance. Petitioner claimed it was unaware of the posting of the
ordinance.
Respondent opposed the appeal. It contended that the ordinance
took effect on October 6, 1996 and that the ordinance, as approved,
was posted as required by law. Hence, it was pointed out that

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08-09:

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Sem.

petitioners appeal, made over a year later, was already timebarred.

The Secretary of Justice dismissed the appeal on the ground that
it was filed out of time, i.e., beyond thirty (30) days from the
effectivity of the Ordinance on October 1, 1996, as prescribed
under Section 187 of the 1991 Local Government Code
Issue:

WON the CA erred in dismissing the appeal

Held:

Yes

Ratio: We find that the Court of Appeals erred in dismissing

petitioners appeal on the ground that it was formally deficient. It
is clear from the records that the petitioner exerted due diligence
to get the copies of its appealed Resolutions certified by the
Department of Justice, but failed to do so on account of typhoon
Loleng. Under the circumstances, respondent appellate court
should have tempered its strict application of procedural rules in
view of the fortuitous event considering that litigation is not a
game of technicalities.
Issue:

WON the petitioner should be dismissed

Held:

Yes

Ratio:

The petition should be dismissed as the appeal of the

petitioner with the Secretary of Justice is already time-barred.

The applicable law is Section 187 of the 1991 Local Government
Code. The law requires that an appeal of a tax ordinance or
revenue measure should be made to the Secretary of Justice
within thirty (30) days from effectivity of the ordinance and even
during its pendency, the effectivity of the assailed ordinance shall
not be suspended. In the case at bar, Municipal Ordinance No. 28
took effect in October 1996. Petitioner filed its appeal only in
December 1997, more than a year after the effectivity of the
ordinance in 1996. Clearly, the Secretary of Justice correctly
dismissed it for being time-barred. At this point, it is apropos to
state that the timeframe fixed by law for parties to avail of their
legal remedies before competent courts is not a mere technicality
that can be easily brushed aside. The periods stated in Section
187 of the Local Government Code are mandatory.[10] Ordinance
No. 28 is a revenue measure adopted by the municipality of
Hagonoy to fix and collect public market stall rentals. Being its
lifeblood, collection of revenues by the government is of paramount
importance. The funds for the operation of its agencies and
provision of basic services to its inhabitants are largely derived
from its revenues and collections. Thus, it is essential that the
validity of revenue measures is not left uncertain for a
considerable length of time. Hence, the law provided a time limit
for an aggrieved party to assail the legality of revenue measures
and tax ordinances.
In a last ditch effort to justify its failure to file a timely appeal
with the Secretary of Justice, the petitioner contends that its
period to appeal should be counted not from the time the
ordinance took effect in 1996 but from the time its members were
personally given copies of the approved ordinance in November
1997. It insists that it was unaware of the approval and effectivity

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(Guanzon)

of the subject ordinance in 1996 on two (2) grounds: first, no public

hearing was conducted prior to the passage of the ordinance and,
second, the approved ordinance was not posted.
We do not agree. Petitioners bold assertion that there was no
public hearing conducted prior to the passage of Kautusan Blg.
28 is belied by its own evidence. In petitioners two (2)
communications with the Secretary of Justice,[12] it enumerated
the various objections raised by its members before the passage of
the ordinance in several meetings called by the Sanggunian for the
purpose. These show beyond doubt that petitioner was aware of
the proposed increase and in fact participated in the public
hearings therefor.
The respondent municipality likewise
submitted the Minutes and Report of the public hearings
conducted by the Sangguniang Bayans Committee on
Appropriations and Market on February 6, July 15 and August 19,
all in 1996, for the proposed increase in the stall rentals.
Petitioner cannot gripe that there was practically no public
hearing conducted as its objections to the proposed measure were
not considered by the Sangguniang Bayan. To be sure, public
hearings are conducted by legislative bodies to allow interested
parties to ventilate their views on a proposed law or ordinance.
These views, however, are not binding on the legislative body and
it is not compelled by law to adopt the same. Sanggunian
members are elected by the people to make laws that will promote
the general interest of their constituents. They are mandated to
use their discretion and best judgment in serving the people.
Parties who participate in public hearings to give their opinions
on a proposed ordinance should not expect that their views would
be patronized by their lawmakers.
On the issue of publication or posting, (Section 188 of the Local
Government Code), the records is bereft of any evidence to prove
petitioners negative allegation that the subject ordinance was not
posted as required by law.
In contrast, the respondent
Sangguniang Bayan of the Municipality of Hagonoy, Bulacan,
presented evidence which clearly shows that the procedure for the
enactment of the assailed ordinance was complied with.
Municipal Ordinance No. 28 was enacted by the Sangguniang
Bayan of Hagonoy on October 1, 1996. Then Acting Municipal
Mayor Maria Garcia Santos approved the Ordinance on October 7,
1996. After its approval, copies of the Ordinance were given to the
Municipal Treasurer on the same day. On November 9, 1996, the
Ordinance was approved by the Sangguniang Panlalawigan. The
Ordinance was posted during the period from November 4 - 25,
1996 in three (3) public places, viz: in front of the municipal
building, at the bulletin board of the Sta. Ana Parish Church and
on the front door of the Office of the Market Master in the public
market.[14] Posting was validly made in lieu of publication as
there was no newspaper of local circulation in the municipality of
Hagonoy. This fact was known to and admitted by petitioner.
Thus, petitioners ambiguous and unsupported claim that it was
only sometime in November 1997 that the Provincial Board
approved Municipal Ordinance No. 28 and so the posting could not
have been made in November 1996 was sufficiently disproved by
the positive evidence of respondent municipality. Given the
foregoing circumstances, petitioner cannot validly claim lack of
knowledge of the approved ordinance. The filing of its appeal a

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08-09:

2nd

Sem.

year after the effectivity of the subject ordinance is fatal to its

cause.
Finally, even on the substantive points raised, the petition must
fail. Section 6c.04 of the 1993 Municipal Revenue Code and
Section 191 of the Local Government Code limiting the percentage
of increase that can be imposed apply to tax rates, not rentals.
Neither can it be said that the rates were not uniformly imposed
or that the public markets included in the Ordinance were
unreasonably determined or classified. To be sure, the Ordinance
covered the three (3) concrete public markets: the two-storey
Bagong Palengke, the burnt but reconstructed Lumang Palengke
and the more recent Lumang Palengke with wet market. However,
the Palengkeng Bagong Munisipyo or Gabaldon was excluded from
the increase in rentals as it is only a makeshift, dilapidated place,
with no doors or protection for security, intended for transient
peddlers who used to sell their goods along the sidewalk.

Republic of the Philippines v. Court of Appeals (2002)

Facts:

Petitioner instituted expropriation proceedingscovering

a total of 544,980 square meters of contiguous land situated along

MacArthur Highway, Malolos, Bulacan, to be utilized for the
continued broadcast operation and use of radio transmitter
facilities for the Voice of the Philippines project. Petitioner took
over the premises after the previous lessee, the Voice of America,
had ceased its operations thereat. Petitioner made a deposit of
P517,558.80, the sum provisionally fixed as being the reasonable
value of the property. On 26 February 1979, or more than nine
years after the institution of the expropriation proceedings, the
trial court issued this order condemning the property and ordering
the plaintiff to pay the defendants the just compensation for the
property.
The bone of contention is the 76,589-square meter property
previously owned by Luis Santos, predecessor-in-interest of
respondents, which forms part of the expropriated area. It appears
that the national government failed to pay to respondents the
compensation pursuant to the foregoing decision, such that a little
over five years later, or on 09 May 1984, respondents filed a
manifestation with a motion seeking payment for the expropriated
property.
In the meantime, President Estrada issued Proclamation No. 22,
transferring 20 hectares of the expropriated property to the
Bulacan State University for the expansion of its facilities and
another 5 hectares to be used exclusively for the propagation of the
Philippine carabao. The remaining portion was retained by the
PIA. This fact notwithstanding, and despite the 1984 court order,
the Santos heirs remained unpaid, and no action was taken on
their case until 16 September 1999 when petitioner filed its
manifestation and motion to permit the deposit in court of the
amount of P4,664,000.00 by way of just compensation for the
expropriated property of the late Luis Santos subject to such final
computation as might be approved by the court. This time, the
Santos heirs, opposing the manifestation and motion, submitted a
counter-motion to adjust the compensation from P6.00 per square
meter previously fixed in the 1979 decision to its current zonal
valuation pegged at P5,000.00 per square meter or, in the

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(Guanzon)

alternative, to cause the return to them of the expropriated

property. On 01 March 2000, the Bulacan RTC ruled in favor of
respondents and issued the assailed order, vacating its decision of
26 February 1979 and declaring it to be unenforceable on the
ground of prescription. The CA denied the appeal (failure to file
during the reglementary period).
The right of eminent domain is usually understood to be an
ultimate right of the sovereign power to appropriate any property
within its territorial sovereignty for a public purpose.
Fundamental to the independent existence of a State, it requires
no recognition by the Constitution, whose provisions are taken as
being merely confirmatory of its presence and as being regulatory,
at most, in the due exercise of the power. In the hands of the
legislature, the power is inherent, its scope matching that of
taxation, even that of police power itself, in many respects. It
reaches to every form of property the State needs for public use
and, as an old case so puts it, all separate interests of individuals
in property are held under a tacit agreement or implied
reservation vesting upon the sovereign the right to resume the
possession of the property whenever the public interest so requires
it
The ubiquitous character of eminent domain is manifest in the
nature of the expropriation proceedings. Expropriation
proceedings are not adversarial in the conventional sense, for the
condemning authority is not required to assert any conflicting
interest in the property. Thus, by filing the action, the condemnor
in effect merely serves notice that it is taking title and possession
of the property, and the defendant asserts title or interest in the
property, not to prove a right to possession, but to prove a right to
compensation for the taking.
Obviously, however, the power is not without its limits: first, the
taking must be for public use, and second, that just compensation
must be given to the private owner of the property. These twin
proscriptions have their origin in the recognition of the necessity
for achieving balance between the State interests, on the one
hand, and private rights, upon the other hand, by effectively
restraining the former and affording protection to the latter. In
determining public use, two approaches are utilized - the first is
public employment or the actual use by the public, and the second
is public advantage or benefit. It is also useful to view the matter
as being subject to constant growth, which is to say that as society
advances, its demands upon the individual so increases, and each
demand is a new use to which the resources of the individual may
be devoted.
The expropriated property has been shown to be for the continued
utilization by the PIA, a significant portion thereof being ceded for
the expansion of the facilities of the Bulacan State University and
for the propagation of the Philippine carabao, themselves in line
with the requirements of public purpose. Respondents question
the public nature of the utilization by petitioner of the condemned
property, pointing out that its present use differs from the purpose
originally contemplated in the 1969 expropriation proceedings.
The argument is of no moment. The property has assumed a
public character upon its expropriation. Surely, petitioner, as the
condemnor and as the owner of the property, is well within its
rights to alter and decide the use of that property, the only
limitation being that it be for public use, which, decidedly, it is.

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08-09:

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Sem.

In insisting on the return of the expropriated property,

respondents would exhort on the pronouncement in Provincial
Government of Sorsogon vs. Vda. de Villaroya where the unpaid
landowners were allowed the alternative remedy of recovery of the
property there in question. It might be borne in mind that the case
involved the municipal government of Sorsogon, to which the
power of eminent domain is not inherent, but merely delegated
and of limited application. The grant of the power of eminent
domain to local governments under RA 7160 cannot be understood
as being the pervasive and all-encompassing power vested in the
legislative branch of government. For local governments to be able
to wield the power, it must, by enabling law, be delegated to it by
the national legislature, but even then, this delegated power of
eminent domain is not, strictly speaking, a power of eminent, but
only of inferior, domain or only as broad or confined as the real
authority would want it to be.
Thus, in Valdehueza vs. Republic[17] where the private
landowners had remained unpaid ten years after the termination
of the expropriation proceedings, this Court ruled - The points in
dispute are whether such payment can still be made and, if so, in
what amount. Said lots have been the subject of expropriation
proceedings. By final and executory judgment in said proceedings,
they were condemned for public use, as part of an airport, and
ordered sold to the government. x x x It follows that both by
virtue of the judgment, long final, in the expropriation suit, as
well as the annotations upon their title certificates, plaintiffs are
not entitled to recover possession of their expropriated lots - which
are still devoted to the public use for which they were expropriated
- but only to demand the fair market value of the same.
The judgment rendered by the Bulacan RTC in 1979 on the
expropriation proceedings provides not only for the payment of
just compensation to herein respondents but likewise adjudges the
property condemned in favor of petitioner over which parties, as
well as their privies, are bound. Petitioner has occupied, utilized
and, for all intents and purposes, exercised dominion over the
property pursuant to the judgment. The exercise of such rights
vested to it as the condemnee indeed has amounted to at least a
partial compliance or satisfaction of the 1979 judgment, thereby
preempting any claim of bar by prescription on grounds of nonexecution. In arguing for the return of their property on the basis
of non-payment, respondents ignore the fact that the right of the
expropriatory authority is far from that of an unpaid seller in
ordinary sales, to which the remedy of rescission might perhaps
apply. An in rem proceeding, condemnation acts upon the
property. After condemnation, the paramount title is in the public
under a new and independent title; thus, by giving notice to all
claimants to a disputed title, condemnation proceedings provide a
judicial process for securing better title against all the world than
may be obtained by voluntary conveyance.
Respondents, in arguing laches against petitioner did not take into
account that the same argument could likewise apply against
them. Respondents first instituted proceedings for payment
against petitioner on 09 May 1984, or five years after the 1979
judgment had become final. The unusually long delay in bringing
the action to compel payment against herein petitioner would
militate against them. Consistently with the rule that one should
take good care of his own concern, respondents should have

68 | L o c a l

Government

(Guanzon)

commenced the proper action upon the finality of the judgment

which, indeed, resulted in a permanent deprivation of their
ownership and possession of the property.
The constitutional limitation of just compensation is considered
to be the sum equivalent to the market value of the property,
broadly described to be the price fixed by the seller in open market
in the usual and ordinary course of legal action and competition or
the fair value of the property as between one who receives, and
one who desires to sell, it fixed at the time of the actual taking by
the government. Thus, if property is taken for public use before
compensation is deposited with the court having jurisdiction over
the case, the final compensation must include interests on its just
value to be computed from the time the property is taken to the
time when compensation is actually paid or deposited with the
court. In fine, between the taking of the property and the actual
payment, legal interests accrue in order to place the owner in a
position as good as (but not better than) the position he was in
before the taking occurred.
The Bulacan trial court, in its 1979 decision, was correct in
imposing interests on the zonal value of the property to be
computed from the time petitioner instituted condemnation
proceedings and took the property in September 1969. This
allowance of interest on the amount found to be the value of the
property as of the time of the taking computed, being an effective
forbearance, at 12% per annum[28] should help eliminate the
issue of the constant fluctuation and inflation of the value of the
currency over time.[29] Article 1250 of the Civil Code, providing
that, in case of extraordinary inflation or deflation, the value of
the currency at the time of the establishment of the obligation
shall be the basis for the payment when no agreement to the
contrary is stipulated, has strict application only to contractual
obligations.[30] In other words, a contractual agreement is needed
for the effects of extraordinary inflation to be taken into account to
alter the value of the currency.[31]
All given, the trial court of Bulacan in issuing its order, dated 01
March 2000, vacating its decision of 26 February 1979 has acted
beyond its lawful cognizance, the only authority left to it being to
order its execution. Verily, private respondents, although not
entitled to the return of the expropriated property, deserve to be
paid promptly on the yet unpaid award of just compensation
already fixed by final judgment of the Bulacan RTC on 26
February 1979 at P6.00 per square meter, with legal interest
thereon at 12% per annum computed from the date of "taking" of
the property, i.e., 19 September 1969, until the due amount shall
have been fully paid.

S . Y.

08-09:

2nd

Sem.

motion to refer the case to the Court en banc is akin to a second

MR which is prohibited.
In this motion, both respondents and intervenors prayed that the
case be referred to the case in banc inasmuch as their earlier MR
was resolved by a vote of two-two, the required number to carry a
decision under the Constitution (3 votes) was not met.
Issue:

WON failure to meet the three votes justifies the referral

of the case to the court en banc

Held:

No

Ratio:

A careful reading of the constitutional provision reveals

the intention of the framers to draw a distinction between cases,

on the one hand, and matters, on the other hand, such that cases
are decided while matters, which include motions, are
resolved. Otherwise put, the word decided must refer to
cases; while the word resolved must refer to matters,
applying the rule of reddendo singula singulis.
With this interpretation, it is clear that only cases are referred to
the Court en banc for decision whenever the required number of
votes is not obtained. Conversely, the rule does not apply where,
as in this case, the required three votes is not obtained in the
resolution of a MR. Hence, the second sentence of the provision
speaks only of case and not matter. The reason is simple.
Article VIII, Section 4(3) pertains to the disposition of cases by a
division. If there is a tie in the voting, there is no decision. The
only way to dispose of the case then is to refer it to the Court en
banc. On the other hand, if a case has already been decided by the
division and the losing party files a MR, the failure of the division
to resolve the motion because of a tie in the voting does not leave
the case undecided. There is still the decision which must stand
in view of the failure of the members of the division to muster the
necessary vote for its reconsideration. Quite plainly, if the voting
results in a tie, the motion for reconsideration is lost. The assailed
decision is not reconsidered and must therefore be deemed
affirmed. Such was the ruling of this Court in the Resolution of
November 17, 1998.
Issue:

WON the referral to the court en banc is justified on the

ground that the issues are of first impression

Held:

No

Concerns the MR of the courts resolution dated

Ratio: The issues presented before us by the movants are matters

of no extraordinary import to merit the attention of the Court en
banc. The issue of whether or not the power of the local
government units to reclassify lands is subject to the approval of
the DAR is no longer novel, this having been decided by this Court
in the case of Province of Camarines Sur, et al. vs. Court of

November 17, 1998 and motion to refer the case to the Court en
banc. In previous case, the Court voted two-two on the separate
motions for reconsideration, as a result of which the decision was
affirmed.
The Court noted in a resolution dated January 27, 1999 that the
movants have no legal personality to seek redress before the Court
as their motion to intervene was already denied and that the

obtain the approval of the DAR to convert or reclassify lands from

agricultural to non-agricultural use.
Moreover, the Decision sought to be reconsidered was arrived at by
a unanimous vote of all five (5) members of the Second Division of
this Court. Stated otherwise, this Second Division is of the
opinion that the matters raised by movants are nothing new and

8.6 Reclassification of lands:

Fortich v. Corona (1999)
Facts:

Appeals wherein we held that local government units need not

69 | L o c a l

Government

(Guanzon)

do not deserve the consideration of the Court en banc. Thus, the

participation of the full Court in the resolution of movants
motions for reconsideration would be inappropriate.
Issue:

WON the referral to the court en banc partakes of the

nature of a second MR
Held:

Yes

Ratio:

The contention, therefore, that our Resolution of

November 17, 1998 did not dispose of the earlier MR of the

Decision dated April 24, 1998 is flawed. Consequently, the present
MR necessarily partakes of the nature of a second motion for
reconsideration which, according to the clear and unambiguous
language of Rule 56, Section 4, in relation to Rule 52, Section 2, of
the 1997 Rules of Civil Procedure, is prohibited.
True, there are exceptional cases when this Court may entertain a
second motion for reconsideration, such as where there are
extraordinarily persuasive reasons. Even then, we have ruled that
such second MRs must be filed with express leave of court first
obtained. In this case, not only did movants fail to ask for prior
leave of court, but more importantly, they have been unable to
show that there are exceptional reasons for us to give due course
to their second motions for reconsideration. Stripped of the
arguments for referral of this incident to the Court en banc, the
motions subject of this resolution are nothing more but rehashes
of the motions for reconsideration which have been denied in the
Resolution of November 17, 1998. To be sure, the allegations
contained therein have already been raised before and passed
upon by this Court in the said Resolution.
Issue:

WON the Win-Win Resolution was valid

Held:

No

Ratio:

This refers to the resolution by authority of the

President modifying the Decision dated 29 March 1996 of the OP

through Executive Secretary Ruben Torres.
NQSRMDCs
(Norberto Quisumbing) Application for Conversion is approved
only with respect to 44 hectares as recommended by the DA. The
remaining 100 hectares found to be suitable for agriculture shall
be distributed to qualified farmer beneficiaries (FBs) in accordance
with RA 6657
The resolution is void and of no legal effect considering that the
March 29, 1996 decision of the Office of the President had already
become final and executory even prior to the filing of the MR
which became the basis of the said Win-Win Resolution. While
it may be true that on its face the nullification of the Win-Win
Resolution was grounded on a procedural rule pertaining to the
reglementary period to appeal or move for reconsideration, the
underlying consideration therefor was the protection of the
substantive rights of petitioners. Just as a losing party has the
right to file an appeal within the prescribed period, the winning
party also has the correlative right to enjoy the finality of the
resolution of his/her case.
In other words, the finality of the March 29, 1996 OP Decision
accordingly vested appurtenant rights to the land in dispute on

S . Y.

08-09:

2nd

Sem.

petitioners as well as on the people of Bukidnon and other parts of

the country who stand to be benefited by the development of the
property.
Before finally disposing of these pending matters, we feel it
necessary to rule once and for all on the legal standing of
intervenors in this case. In their present motions, intervenors
insist that they are real parties in interest inasmuch as they have
already been issued certificates of land ownership award, or
CLOAs, and that while they are seasonal farmworkers at the
plantation, they have been identified by the DAR as qualified
beneficiaries of the property. These arguments are, however,
nothing new as in fact they have already been raised in
intervenors earlier motion for reconsideration of our April 24,
1998 Decision. Again as expressed in the opinion of Mr. Justice
Martinez, intervenors, who are admittedly not regular but
seasonal farmworkers, have no legal or actual and substantive
interest over the subject land inasmuch as they have no right to
own the land. Rather, their right is limited only to a just share of
the fruits of the land. Moreover, the Win-Win Resolution itself
states that the qualified beneficiaries have yet to be carefully and
meticulously determined by the Department of Agrarian Reform.
Absent any definitive finding of the DAR, intervenors cannot as
yet be deemed vested with sufficient interest in the controversy as
to be qualified to intervene in this case. Likewise, the issuance of
the CLOA's to them does not grant them the requisite standing in
view of the nullity of the Win-Win Resolution. No legal rights
can emanate from a resolution that is null and void.
Melo:

By mandate of the Constitution, cases heard by a

division when the required majority of at least 3 votes in the

division is not obtained are to be heard and decided by the Court
En Banc.
The deliberations of the 1986 Constitutional
Commission disclose that if the case is not decided in a division by
a majority vote, it goes to the Court En Banc and not to a larger
division. In a situation where a division of 5 has only 4 members,
the 5th member having inhibited himself or is otherwise not in a
position to participate, or has retired, a minimum of 3 votes would
still be required before there can be any valid decision or
resolution by that division. There may, then, be instances when a
deadlock may occur, i.e., the votes tied at 2-2. It is my humble
view that under the clear and unequivocal provisions of the 1986
Constitution, if the required majority is not reached in a division,
the case should automatically go to Court En Banc.
I submit that the requirement of 3 votes equally applies to motions
for reconsideration because the provision contemplates cases or
matters (which for me has no material distinction insofar as
divisions are concerned) heard by a division, and a motion for
reconsideration cannot be divorced from the decision in a case that
it seeks to be reconsidered.
Consequently, if the required
minimum majority of 3 votes is not met, the matter of the motion
for reconsideration has to be heard by the Court En Banc, as
mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To say
that the motion is lost in the division on a 2-2 vote, is to construe
something which cannot be sustained by a reading of the
Constitution. To argue that a motion for reconsideration is not a
case but only a matter which does not concern a case, so that,
even though the vote thereon in the division is 2-2, the matter or

70 | L o c a l

Government

(Guanzon)

issue is not required to elevated to the Court En Banc, is to engage

in a lot of unfounded hairsplitting.
Roxas & Co., Inc. v. Court of Appeals (1999)
Facts:

This case involves 3 haciendas in Nasugbu, Batangas

owned by petitioner and the validity of the acquisition of these

haciendas by the government under RA 6657 (CARL). Petitioner is
a domestic corporation and is the registered owner of three
haciendas, namely, Haciendas Palico, Banilad and Caylaway, all
located in the Municipality of Nasugbu, Batangas. President
Aquino signed in on July 1987, Proclamation 131 instituting a
CARP and EO 229 providing the mechanism to implement the
program. Pursuant to this, Congress passed RA 6657, the CARL.
Before the effectivity of the law, petitioner filed with DAR a
voluntary offer to sell Hacienda Caylaway pursuant to the
provisions of EO 229. Haciendas Palico and Banilad were later
placed under compulsory acquisition by DAR in accordance with
the CARL.
Hacienda Palico. DAR, through Municipal Agrarian Reform
Officer (MARO) of Nasugbu, Batangas, sent a notice entitled
Invitation to Parties to petitioner to discuss the results of the
DAR investigation of Hacienda Palico, which was scheduled for
compulsory acquisition this year under the CARP.Summary
Investigation Reports were submitted by the MARO,
representatives of the Barangay Agrarian Reform Committee
(BARC), Land Bank (LBP) and the Provincial Agrarian Reform
Officer (PARO) recommending that 270 ha and 75.3 ha of the
property be placed under compulsory acquisition at a
compensation of P8,109,739.00 and P2,188,195.47, respectively.
DAR through Secretary Miriam Santiago sent a Notice of
Acquisition to petitioner. Petitioner was informed that 1,023.999
ha of its land in Hacienda Palico were subject to immediate
acquisition and distribution by the government under the CARL;
and the government was offering compensation of P3.4 million for
333.0800 hectares.
Almost two years later, the DAR Regional Director sent to the LBP
Land Valuation Manager three (3) separate Memoranda entitled
Request to Open Trust Account. Each Memoranda requested
that a trust account representing the valuation of three portions of
Hacienda Palico be opened in favor of the petitioner in view of the
latters rejection of its offered value.
Meanwhile, petitioner applied with the DAR for conversion of
Haciendas Palico and Banilad from agricultural to nonagricultural lands under the provisions of the CARL. Despite
petitioners application for conversion, DAR proceeded with the
acquisition of the two Haciendas. The LBP trust accounts as
compensation for Hacienda Palico were replaced by respondent
DAR with cash and LBP bonds. On October 22, 1993, from the
mother title of TCT No. 985 of the Hacienda, DAR registered
Certificate of Land Ownership Award (CLOA) No. 6654. On
October 30, 1993, CLOAs were distributed to farmer beneficiaries.
Hacienda Banilad. DAR through the MARO of Nasugbu
Batangas sent a notice of acquisition to petitioner. Later, the
MARO sent an Invitation to Parties again to Pimentel inviting
the latter to attend a conference to discuss the results of the
MAROs investigation over Hacienda Banilad.

S . Y.

08-09:

2nd

Sem.

The Reports were discussed the conference. Present in the

conference were representatives of the prospective farmer
beneficiaries, the BARC, the LBP, and Jaime Pimentel on behalf of
the landowner. After the meeting, it was recommended that
737.2590 ha under Tax Declaration Nos. 0236 and 0237 be
likewise placed under compulsory acquisition for distribution.
DAR, through the Department Secretary, sent to petitioner two (2)
separate Notices of Acquisition over Hacienda Banilad. These
Notices were sent on the same day as the Notice of Acquisition
over Hacienda Palico. Unlike the Notice over Hacienda Palico,
however, the Notices over Hacienda Banilad were addressed to
Roxas y Cia. Limited in Makati.
The DAR Regional Director sent to the LBP Land Valuation
Manager a Request to Open Trust Account in petitioners name
as compensation for 234.6493 hectares of Hacienda Banilad. A
second Request to Open Trust Account was sent on November
18, 1991 over 723.4130 hectares of said Hacienda.
On May 4, 1993, petitioner applied for conversion of both
Haciendas Palico and Banilad.
Hacienda Caylawa. Hacienda Caylaway was voluntarily offered
for sale to the government on May 6, 1988 before the effectivity of
the CARL. DAR, through the Regional Director for Region IV, sent
to petitioner two (2) separate Resolutions accepting petitioners
voluntary offer to sell Hacienda Caylaway, particularly TCT Nos.
T-44664 and T-44663.
Nevertheless, on August 6, 1992, petitioner, through its President,
Eduardo J. Roxas, sent a letter to the Secretary of DAR
withdrawing its VOS of Hacienda Caylaway. The Sangguniang
Bayan of Nasugbu, Batangas allegedly authorized the
reclassification of Hacienda Caylaway from agricultural to nonagricultural. As a result, petitioner informed DAR that it was
applying for conversion of Hacienda Caylaway from agricultural to
other uses.
DAR Secretary informed petitioner that a reclassification of the
land would not exempt it from agrarian reform. The Secretary
also denied petitioners withdrawal of the VOS on the ground that
withdrawal could only be based on specific grounds such as
unsuitability of the soil for agriculture, or if the slope of the land
is over 18 degrees and that the land is undeveloped.
Despite the denial of the VOS withdrawal of Hacienda Caylaway,
on May 11, 1993, petitioner filed its application for conversion of
both Haciendas Palico and Banilad.
On August 24, 1993, petitioner instituted Case No. N-0017-96-46
(BA) with the DARAB praying for the cancellation of the CLOAs
issued by DAR in the name of several persons. Petitioner alleged
that the Municipality of Nasugbu, where the haciendas are
located, had been declared a tourist zone, that the land is not
suitable for agricultural production, and that the Sangguniang
Bayan of Nasugbu had reclassified the land to non-agricultural.
DARAB submitted the case to the Office of the Secretary of
Agrarian Reform for determination. The CA filed a petition for
before the CA questioning the expropriation of its properties under
the CARL. Meanwhile, the petition for conversion of the three
haciendas was denied by the MARO. The CA then dismissed the
petition.

71 | L o c a l
Issue:

Government

(Guanzon)

S . Y.

WON the Court can take cognizance of this petition

despite petitioners failure to exhaust administrative remedies

Held:
Yes
Ratio:

Petitioner rightly sought immediate redress in the

courts. There was a violation of its rights and to require it to

exhaust administrative remedies before the DAR itself was not a
plain, speedy and adequate remedy.
DAR issued CLOAs to farmer beneficiaries over portions of
petitioners land without just compensation to petitioner. A CLOA
is evidence of ownership of land by a beneficiary under R.A.
6657. Before this may be awarded to a farmer beneficiary, the land
must first be acquired by the State from the landowner and
ownership transferred to the former. The transfer of possession
and ownership of the land to the government are conditioned upon
the receipt by the landowner of the payment or deposit by the DAR
of the compensation with an accessible bank. Until then, title
remains with the landowner. There was no receipt by petitioner of
any compensation for any of the lands acquired by the
government.
The kind of compensation to be paid the landowner is also
specific. The law provides that the deposit must be made only in
cash or LBP bonds. DARs opening of trust account deposits in
petitioners name with the Land Bank does not constitute
payment under the law. Trust account deposits are not cash or
LBP bonds. The replacement of the trust account with cash or
LBP bonds did not ipso facto cure the lack of compensation; for
essentially, the determination of this compensation was marred by
lack of due process. In fact, in the entire acquisition proceedings,
respondent DAR disregarded the basic requirements of
administrative due process. Under these circumstances, the
issuance of the CLOAs to farmer beneficiaries necessitated
immediate judicial action on the part of the petitioner.
Issue:

WON the acquisition proceedings over the three

haciendas were valid and in accordance with law

Held:

No

Ratio:

Mode of Acquisition of Land Under RA 6657. Two

(2) modes of acquisition of private land: compulsory and

voluntary.
In

the

compulsory

acquisition

of

private

lands,

the

landholding, the landowners and the farmer beneficiaries must

first be identified. After identification, the DAR shall send a
Notice of Acquisition to the landowner, by personal delivery or
registered mail, and post it in a conspicuous place in the
municipal building and barangay hall of the place where the
property is located. Within thirty days from receipt of the Notice
of Acquisition, the landowner, his administrator or representative
shall inform the DAR of his acceptance or rejection of the offer. If
the landowner accepts, he executes and delivers a deed of transfer
in favor of the government and surrenders the certificate of title.
Within 30 days from the execution of the deed of transfer, the LBP
pays the owner the purchase price. If the landowner rejects the
DARs offer or fails to make a reply, the DAR conducts summary
administrative proceedings to determine just compensation for the

08-09:

2nd

Sem.

land. The landowner, the LBP representative and other interested

parties may submit evidence on just compensation within fifteen
days from notice. Within 30 days from submission, the DAR shall
decide the case and inform the owner of its decision and the
amount of just compensation. Upon receipt by the owner of the
corresponding payment, or, in case of rejection or lack of response
from the latter, the DAR shall deposit the compensation in cash or
in LBP bonds with an accessible bank. The DAR shall
immediately take possession of the land and cause the issuance of
a transfer certificate of title in the name of the Republic of the
Philippines. The land shall then be redistributed to the farmer
beneficiaries. Any party may question the decision of the DAR in
the regular courts for final determination of just compensation.
For a valid implementation of the CAR Program, two notices are
required: (1) the Notice of Coverage and letter of invitation
to a preliminary conference sent to the landowner, the
representatives of the BARC, LBP, farmer beneficiaries and other
interested parties pursuant to DAR A. O. No. 12, Series of 1989;
and (2) the Notice of Acquisition sent to the landowner under
Section 16 of the CARL.
The importance of the first notice, i.e., the Notice of Coverage and
the letter of invitation to the conference, and its actual conduct
cannot be understated. They are steps designed to comply with
the requirements of administrative due process.
The
implementation of the CARL is an exercise of the States police
power and the power of eminent domain. To the extent that the
CARL prescribes retention limits to the landowners, there is an
exercise of police power for the regulation of private property in
accordance with the Constitution. But where, to carry out such
regulation, the owners are deprived of lands they own in excess of
the maximum area allowed, there is also a taking under the power
of eminent domain. The taking contemplated is not a mere
limitation of the use of the land. What is required is the
surrender of the title to and physical possession of the said excess
and all beneficial rights accruing to the owner in favor of the
farmer beneficiary. The Bill of Rights provides that [n]o person
shall be deprived of life, liberty or property without due process of
law. The CARL was not intended to take away property without
due process of law. The exercise of the power of eminent domain
requires that due process be observed in the taking of private
property.
The notice requirements under the CARL are not confined to the
Notice of Acquisition set forth in Section 16 of the law. They also
include the Notice of Coverage first laid down in DAR A. O. No. 12,
Series of 1989 and subsequently amended in DAR A. O. No. 9,
Series of 1990 and DAR A. O. No. 1, Series of 1993. This Notice of
Coverage does not merely notify the landowner that his property
shall be placed under CARP and that he is entitled to exercise his
retention right; it also notifies him, pursuant to DAR A. O. No. 9,
Series of 1990, that a public hearing shall be conducted where he
and representatives of the concerned sectors of society may attend
to discuss the results of the field investigation, the land valuation
and other pertinent matters. Under DAR A. O. No. 1, Series of
1993, the Notice of Coverage also informs the landowner that a
field investigation of his landholding shall be conducted where he
and the other representatives may be present

72 | L o c a l

Government

(Guanzon)

S . Y.

Compulsory Acquisition of Hacienda Palico and Banilad. In

the case at bar, DAR claims that it, through MARO Leopoldo C.
Lejano, sent a letter of invitation entitled Invitation to Parties
dated September 29, 1989 to petitioner, through Jaime Pimentel,
the administrator of Hacienda Palico. The invitation was received
on the same day it was sent as indicated by a signature and the
date received at the bottom left corner of said invitation. With
regard to Hacienda Banilad, DAR claims that Pimentel,
administrator also of Hacienda Banilad, was notified and sent an
invitation to the conference. Pimentel actually attended the
conference on September 21, 1989 and signed the Minutes of the
meeting on behalf of petitioner. The Minutes was also signed by
the representatives of the BARC, the LBP and farmer
beneficiaries. No letter of invitation was sent or conference
meeting held with respect to Hacienda Caylaway because it was
subject to a Voluntary Offer to Sell to DAR.
When DAR, through the MARO, sent to the various parties the
Notice of Coverage and invitation to the conference, DAR A. O. No.
12, Series of 1989 was already in effect more than a month
earlier. The Operating Procedure in DAR Administrative Order
No. 12 does not specify how notices or letters of invitation shall be
sent to the landowner, the representatives of the BARC, the LBP,
the farmer beneficiaries and other interested parties.

The

procedure in the sending of these notices is important to

comply with the requisites of due process especially when
the owner, as in this case, is a juridical entity. Petitioner is a
domestic corporation, and therefore, has a personality separate
and distinct from its shareholders, officers and employees.
Jaime Pimentel is not the president, manager, secretary, cashier
or director of petitioner corporation. Is he, as administrator of the
two Haciendas, considered an agent of the corporation?
The purpose of all rules for service of process on a corporation is to
make it reasonably certain that the corporation will receive
prompt and proper notice in an action against it. Service must be
made on a representative so integrated with the corporation as to
make it a priori supposable that he will realize his responsibilities
and know what he should do with any legal papers served on him,
and bring home to the corporation notice of the filing of the action.
Petitioners evidence does not show the official duties of Pimentel
as administrator of petitioners haciendas. The evidence does not
indicate whether Pimentels duties is so integrated with the
corporation that he would immediately realize his responsibilities
and know what he should do with any legal papers served on him.
At the time the notices were sent and the preliminary conference
conducted, petitioners principal place of business was listed in
DARs records as Soriano Bldg., Plaza Cervantes, Manila, and
7th Flr. Cacho-Gonzales Bldg., 101 Aguirre St., Makati, Metro
Manila. Pimentel did not hold office at the principal place of
business of petitioner. Neither did he exercise his functions in
Plaza Cervantes, Manila nor in Cacho-Gonzales Bldg., Makati,
Metro Manila. He performed his official functions and actually
resided in the haciendas in Nasugbu, Batangas, a place over two
hundred kilometers away from Metro Manila.
Curiously, DAR had information of the address of petitioners
principal place of business. The Notices of Acquisition over
Haciendas Palico and Banilad were addressed to petitioner at its
offices in Manila and Makati. These Notices were sent barely

08-09:

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three to four months after Pimentel was notified of the

preliminary conference. Why DAR chose to notify Pimentel instead
of the officers of the corporation was not explained by the said
respondent.
Nevertheless, assuming that Pimentel was an agent of petitioner
corporation, and the notices and letters of invitation were validly
served on petitioner through him, there is no showing that
Pimentel himself was duly authorized to attend the conference
meeting with the MARO, BARC and LBP representatives and
farmer beneficiaries for purposes of compulsory acquisition of
petitioners landholdings. Even DARs evidence does not indicate
this authority. On the contrary, petitioner claims that it had no
knowledge of the letter-invitation, hence, could not have given
Pimentel the authority to bind it to whatever matters were
discussed or agreed upon by the parties at the preliminary
conference or public hearing. Notably, one year after Pimentel
was informed of the preliminary conference, DAR A.O. No. 9,
Series of 1990 was issued and this required that the Notice of
Coverage must be sent to the landowner concerned or his duly
authorized representative.
Assuming further that petitioner was duly notified of the CARP
coverage of its haciendas, the areas found actually subject to
CARP were not properly identified before they were taken over by
DAR. The acquisition of the landholdings did not cover the entire
expanse of the two haciendas, but only portions thereof. Hacienda
Palico has an area of 1,024 hectares and only 688.7576 hectares
were targetted for acquisition. Hacienda Banilad has an area of
1,050 hectares but only 964.0688 hectares were subject to CARP.
The haciendas are not entirely agricultural lands. In fact, the
various tax declarations over the haciendas describe the
landholdings as sugarland, and forest, sugarland, pasture land,
horticulture and woodland.
Upon receipt of this notice, therefore, petitioner
corporation had no idea which portions of its estate were
subject to compulsory acquisition, which portions it could
rightfully retain, whether these retained portions were
compact or contiguous, and which portions were excluded
from CARP coverage. Even respondent DARs evidence does not
show that petitioner, through its duly authorized representative,
was notified of any ocular inspection and investigation that was to
be conducted by respondent DAR. Neither is there proof that
petitioner was given the opportunity to at least choose and
identify its retention area in those portions to be acquired
compulsorily. The right of retention and how this right is
exercised, is guaranteed in Section 6 of the CARL
Voluntary Acquisition of Hacienda Caylaway. First of all, the
same E.O. 229, like Section 16 of the CARL, requires that the
land, landowner and beneficiaries of the land subject to agrarian
reform be identified before the notice of acquisition should be
issued. Hacienda Caylaway was voluntarily offered for sale in
1989. The Hacienda has a total area of 867.4571 hectares and is
covered by four (4) titles. In two separate Resolutions both dated
January 12, 1989, DAR, through the Regional Director, formally
accepted the VOS over two of these four titles. The land covered by
the two titles has an area of 855.5257 hectares, but only 648.8544
hectares thereof fell within the coverage of R.A. 6657. Petitioner
claims it does not know where these portions are located.

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DAR, on the other hand, avers that surveys on the land covered by
the four titles were conducted in 1989, and that petitioner, as
landowner, was not denied participation therein. The results of
the survey and the land valuation summary report, however, do
not indicate whether notices to attend the same were actually sent
to and received by petitioner or its duly authorized representative.
To reiterate, EO 229 does not lay down the operating procedure,
much less the notice requirements, before the VOS is accepted by
DAR. Notice to the landowner, however, cannot be dispensed
with. It is part of administrative due process and is an essential
requisite to enable the landowner himself to exercise, at the very
least, his right of retention guaranteed under the CARL.
Issue:

Assuming the haciendas may be reclassified from

agricultural to non-agricultural, WON this court has the power to

rule on this issue
Held:

No

Ratio:

It is petitioners claim that the three haciendas are not

subject to agrarian reform because they have been declared for

tourism, not agricultural purposes. In 1975, then President
Marcos issued Proclamation No. 1520 declaring the municipality
of Nasugbu, Batangas a tourist zone. Lands in Nasugbu,
including the subject haciendas, were allegedly reclassified as nonagricultural 13 years before the effectivity of RA 6657. In 1993, the
Regional Director for Region IV of the DA certified that the
haciendas are not feasible and sound for agricultural development.
On March 20, 1992, pursuant to Proclamation No. 1520, the
Sangguniang Bayan of Nasugbu, Batangas adopted Resolution No.
19 reclassifying certain areas of Nasugbu as non-agricultural.
This Resolution approved Municipal Ordinance No. 19, Series of
1992, the Revised Zoning Ordinance of Nasugbu which zoning
ordinance was based on a Land Use Plan for Planning Areas for
New Development allegedly prepared by the University of the
Philippines. Resolution No. 19 of the Sangguniang Bayan was
approved by the Sangguniang Panlalawigan of Batangas on March
8, 1993.
Petitioner claims that Proclamation No. 1520 was also upheld by
DAR in 1991 when it approved conversion of 1,827 hectares in
Nasugbu into a tourist area known as the Batulao Resort
Complex, and 13.52 hectares in Barangay Caylaway as within the
potential tourist belt. Petitioner presents evidence before us that
these areas are adjacent to the haciendas subject of this petition,
hence, the haciendas should likewise be converted. Petitioner
urges this Court to take cognizance of the conversion proceedings
and rule accordingly.
We do not agree. DARs failure to observe due process in
the acquisition of petitioners landholdings does not ipso
facto give this Court the power to adjudicate over
petitioners application for conversion of its haciendas
from agricultural to non-agricultural. The agency charged
with

the

mandate

of

approving

or

disapproving

applications for conversion is the DAR.

At the time petitioner filed its application for conversion, the Rules
of Procedure governing the processing and approval of

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applications for land use conversion was the DAR A. O. No. 2,

Series of 1990. Under this A. O., the application for conversion is
filed with the MARO where the property is located. The MARO
reviews the application and its supporting documents and
conducts field investigation and ocular inspection of the property.
The findings of the MARO are subject to review and evaluation by
the Provincial Agrarian Reform Officer (PARO). The PARO may
conduct further field investigation and submit a supplemental
report together with his recommendation to the Regional Agrarian
Reform Officer (RARO) who shall review the same. For lands less
than five hectares, the RARO shall approve or disapprove
applications for conversion. For lands exceeding five hectares, the
RARO shall evaluate the PARO Report and forward the records
and his report to the Undersecretary for Legal Affairs.
Applications over areas exceeding fifty hectares are approved or
disapproved by the Secretary of Agrarian Reform.
Indeed, the doctrine of primary jurisdiction does not warrant
a court to arrogate unto itself authority to resolve a controversy
the jurisdiction over which is initially lodged with an
administrative body of special competence. DAR is in a better
position to resolve petitioners application for conversion, being
primarily the agency possessing the necessary expertise on the
matter. The power to determine whether Haciendas Palico,
Banilad and Caylaway are non-agricultural, hence, exempt from
the coverage of the CARL lies with the DAR, not with this Court.
Finally, we stress that the failure of DAR to comply with the
requisites of due process in the acquisition proceedings does not
give this Court the power to nullify the CLOAs already issued to
the farmer beneficiaries. To assume the power is to short-circuit
the administrative process, which has yet to run its regular
course. DAR must be given the chance to correct its procedural
lapses in the acquisition proceedings. In Hacienda Palico alone,
CLOA's were issued to 177 farmer beneficiaries in 1993. Since
then until the present, these farmers have been cultivating their
lands. It goes against the basic precepts of justice, fairness and
equity to deprive these people, through no fault of their own, of the
land they till. Anyhow, the farmer beneficiaries hold the property
in trust for the rightful owner of the land.
8.7 Closure and Opening of Roads:
Cabrera v. CA (1991)
Facts:

The

Provincial

Board

of

Catanduanes

adopted

Resolution No. 158 (Closing the old road leading to the new
Capitol Building and giving owners of properties traversed by the
new road an area form the old raod). Pursuant thereto, Deeds of
Exchange were executed under which the Province conveyed to
Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre,
Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas,
and Juan S. Reyes portions of the closed road in exchange for their
own respective properties, on which was subsequently laid a new
concrete road leading to the Capitol Building.
Learning about Resolution 158, the petitioner filed a complaint
with the CFI of Catanduanes for "Restoration of Public Road
and/or Abatement of Nuisance, Annulment of Resolutions and
Documents with Damages." He alleged that the land fronting his
house was a public road owned by the Province in its

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(Guanzon)

governmental capacity and therefore beyond the commerce of

man. He contended that Resolution No. 158 and the deeds of
exchange were invalid, as so too was the closure of the road.
The judge sustained the authority of the provincial board to enact
said Resolution. The CA affirmed and found that the road was not
a public road but just a trail. Also, pursuant to RA 5185,
municipal authorities, subject to the approval of the Provincial
Board, can close thoroughfares pursusant to Sec 2246 of the
Revised Administrative Code.
Petitioner insists that Sec. 2246 is not applicable because
Resolution No. 158 is not an order for the closure of the road in
question but an authority to barter or exchange it with private
properties. He maintains that the public road was owned by the
province in its governmental capacity and, without a prior order of
closure, could not be the subject of a barter. Control over public
roads, he insists, is with Congress and not with the provincial
board.
Issue:

WON the Provincial Board can validly enact said

resolution
Held:
Ratio:

Yes
Resolution 158 clearly says that it is "hereby resolved to

close the old road." The closure is as plain as day except that the
petitioner, with the blindness of those who will not see, refuses to
acknowledge it. The Court has little patience with such puerile
arguments. They border dangerously on a trifling with the
administration of justice and can only prejudice the pleader's
cause.
The authority of the provincial board to close that road and use or
convey it for other purposes is derived from the following
provisions of Republic Act No. 5185 in relation to Section 2246 of
the Revised Administrative Code: It sustained the subsequent sale
of the land as being in accordance not only with the charter but
also with Article 422 of the Civil Code, which provides: "Property
of public dominion, when no longer intended for public use or for
public service, shall form part of the patrimonial property of the
State." In the case of Favis v. City of Baguio, the power of the City
Council of Baguio City to close city streets and withdraw them
from public use was also assailed. This Court said:
5. So it is, that appellant may not challenge the city council's act of
withdrawing a strip of Lapu-Lapu Street at its dead end from
public use and converting the remainder thereof into an alley.
These are acts well within the ambit of the power to close a city
street. The city council, it would seem to us, is the authority
competent to determine whether or not a certain property is still
necessary for public use.
Such power to vacate a street or alley is discretionary. And the
discretion will not ordinarily be controlled or interfered with by
the courts, absent a plain case of abuse or fraud or collusion.
Faithfulness to the public trust will be presumed. So the fact that
some private interests may be served incidentally will not
invalidate the vacation ordinance.
While it is true that the cases dealt with city councils and not the
provincial board, there is no reason for not applying the doctrine
announced therein to the provincial board in connection with the

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closure of provincial roads. The provincial board has, after all, the
duty of maintaining such roads for the comfort and convenience of
the inhabitants of the province. Moreover, this authority is
inferable from the grant by the national legislature of the funds to
the Province for the construction of provincial roads.
The lower court found the petitioner's allegation of injury and
prejudice to be without basis because he had "easy access anyway
to the national road, for in fact the vehicles used by the Court and
the parties during the ocular inspection easily passed and used it,
reaching beyond plaintiff's house." However, the CA ruled that the
he "was prejudiced by the closure of the road which formerly
fronted his house. He and his family were undoubtedly
inconvenienced by the loss of access to their place of residence for
which we believe they should be compensated." On this issue, the
governing principle was laid down in Favis thus:
. . . The general rule is that one whose property does not abut on
the closed section of a street has no right to compensation for the
closing or vacation of the street, if he still has reasonable access to
the general system of streets. The circumstances in some cases
may be such as to give a right to damages to a property owner,
even though his property does not abut on the closed section. But
to warrant recovery in any such case the property owner must
show that the situation is such that he has sustained special
damages differing in kind, and not merely in degree, from those
sustained by the public generally.
Petitioner is not entitled to damages because the injury he has
incurred, such as it is, is the price he and others like him must pay
for the welfare of the entire community. This is not a case where
his property has been expropriated and he is entitled to just
compensation. The construction of the new road was undertaken
under the general welfare clause. As the trial judge acutely
observed, whatever inconvenience the petitioner has suffered
"pales in significance compared to the greater convenience the new
road, which is wide and concrete, straight to the veterans fountain
and down to the pier, has been giving to the public, plus the fact
that the new road adds beauty and color not only to the town of
Virac but also to the whole province of Catanduanes." For the
enjoyment of those benefits, every individual in the province,
including the petitioner, must be prepared to give his share.
MMDA v. Bel Air Village Assn. Inc. (2000)
Facts:

MMDA is a government agency tasked with the delivery

of basic services in Metro Manila. Bel-Air Village Association, Inc.

is a non-stock, non-profit corporation whose members are
homeowners in Bel-Air Village, a private subdivision in Makati
City. BAVA is the registered owner of Neptune Street, a road
inside Bel-Air Village.
On December 30, 1995, respondent received from petitioner,
through its Chairman, a notice dated December 22, 1995
requesting respondent to open Neptune Street to public vehicular
traffic starting January 2, 1996. BAVA was apprised that the
perimeter wall separating the subdivision from the adjacent
Kalayaan Avenue would be demolished.
On January 2, 1996, BAVA instituted against petitioner before the
RTC a civil case for injunction. Respondent prayed for the
issuance of a TRO and preliminary injunction enjoining the
opening of Neptune Street and prohibiting the demolition of the

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(Guanzon)

perimeter wall. The trial court issued a temporary restraining

order the following day. After due hearing, the trial court denied
the issuance of preliminary injunction.
On appeal, the CA rendered a Decision on the merits of the case
finding that the MMDA has no authority to order the opening of
Neptune Street, a private subdivision road and cause the
demolition of its perimeter walls. It held that the authority is
lodged in the City Council of Makati by ordinance.
Issue:

WON the MMDA has authority to open Neptune Road to

the public
Held:

No

Ratio:

MMDA claims that it has the authority to open Neptune

Street to public traffic because it is an agent of the state endowed

with police power in the delivery of basic services in Metro Manila.
One of these basic services is traffic management which involves
the regulation of the use of thoroughfares to insure the safety,
convenience and welfare of the general public. It is alleged that
the police power of MMDA was affirmed by this Court in the
consolidated cases of Sangalang v. IAC. From the premise that it
has police power, it is now urged that there is no need for the City
of Makati to enact an ordinance opening Neptune street to the
public.
Police power is an inherent attribute of sovereignty. It has been
defined as the power vested by the Constitution in the legislature
to make, ordain, and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or
without, not repugnant to the Constitution, as they shall judge to
be for the good and welfare of the commonwealth, and for the
subjects of the same. The power is plenary and its scope is vast
and pervasive, reaching and justifying measures for public health,
public safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the
National Legislature. It cannot be exercised by any group or body
of individuals not possessing legislative power. The National
Legislature, however, may delegate this power to the President
and administrative boards as well as the lawmaking bodies of
municipal corporations or local government units. Once delegated,
the agents can exercise only such legislative powers as are
conferred on them by the national lawmaking body.
Metropolitan or Metro Manila is a body composed of
several local government units - i.e., twelve (12) cities and five
(5) municipalities, namely, the cities of Caloocan, Manila,
Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las
Pinas, Marikina, Paranaque and Valenzuela, and the
municipalities of Malabon, , Navotas, , Pateros, San Juan and
Taguig. With the passage of RA 7924 in 1995, Metropolitan
Manila was declared as a "special development and
administrative region" and the Administration of "metrowide" basic services affecting the region placed under "a
development authority" referred to as the MMDA.
The implementation of the MMDAs plans, programs and
projects is undertaken by the local government units, national
government agencies, accredited peoples organizations, non-

S . Y.

08-09:

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governmental organizations, and the private sector as well as by

the MMDA itself. For this purpose, the MMDA has the power to
enter into contracts, memoranda of agreement and other
cooperative arrangements with these bodies for the delivery of the
required services within Metro Manila.
Clearly, the scope of the MMDAs function is limited to the
delivery of the seven (7) basic services. One of these is transport
and traffic management which includes the formulation and
monitoring of policies, standards and projects to rationalize the
existing transport operations, infrastructure requirements, the
use of thoroughfares and promotion of the safe movement of
persons and goods. It also covers the mass transport system and
the institution of a system of road regulation, the administration
of all traffic enforcement operations, traffic engineering services
and traffic education programs, including the institution of a
single ticketing system in Metro Manila for traffic violations.
Under this service, the MMDA is expressly authorized "to set the
policies concerning traffic" and "coordinate and regulate the
implementation of all traffic management programs." In addition,
the MMDA may "install and administer a single ticketing system,"
fix, impose and collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the
following
acts:
formulation,
coordination,
regulation,
implementation, preparation, management, monitoring, setting of
policies, installation of a system and administration. There is no
syllable in R. A. No. 7924 that grants the MMDA police
power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no
provision in R. A. No. 7924 that empowers the MMDA or its
Council to "enact ordinances, approve resolutions and appropriate
funds for the general welfare" of the inhabitants of Metro Manila.
The MMDA is, as termed in the charter itself, a "development
authority." It is an agency created for the purpose of laying down
policies and coordinating with the various national government
agencies, peoples organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its functions
are administrative in nature and these are actually summed
up in the charter itself
Petitioner cannot seek refuge in the cases of Sangalang v.
Intermediate Appellate Court where we upheld a zoning
ordinance issued by the Metro Manila Commission (MMC), the
predecessor of the MMDA, as an exercise of police power. The first
Sangalang decision was on the merits of the petition, while the
second decision denied reconsideration of the first case and in
addition discussed the case of Yabut v. Court of Appeals.
Contrary to petitioners claim, the two Sangalang cases do
not apply to the case at bar. Firstly, both involved zoning
ordinances passed by the municipal council of Makati and the
MMC. In the instant case, the basis for the proposed opening of
Neptune Street is contained in the notice of December 22, 1995
sent by petitioner to respondent BAVA, through its president. The
notice does not cite any ordinance or law, either by the
Sangguniang Panlungsod of Makati City or by the MMDA, as the
legal basis for the proposed opening of Neptune Street. Petitioner

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MMDA simply relied on its authority under its charter "to

rationalize the use of roads and/or thoroughfares for the safe and
convenient movement of persons." Rationalizing the use of roads
and thoroughfares is one of the acts that fall within the scope of
transport and traffic management. By no stretch of the
imagination, however, can this be interpreted as an express or
implied grant of ordinance-making power, much less police power.
Misjuris
Secondly, the MMDA is not the same entity as the MMC in

7924 was not submitted to the inhabitants of Metro Manila in a

plebiscite. The Chairman of the MMDA is not an official elected by
the people, but appointed by the President with the rank and
privileges of a cabinet member. In fact, part of his function is to
perform such other duties as may be assigned to him by the
President, whereas in local government units, the President
merely exercises supervisory authority. This emphasizes the

Sangalang. Although the MMC is the forerunner of the

entity as the MMDA under R. A. No. 7924. Unlike the MMC,

present MMDA, an examination of Presidential Decree (P.

D.) No. 824, the charter of the MMC, shows that the latter
possessed greater powers which were not bestowed on the
present MMDA. Jjlex
In 1990, President Aquino issued Executive Order (E. O.)
No. 392 and constituted the Metropolitan Manila Authority
(MMA). The powers and functions of the MMC were
devolved to the MMA. It ought to be stressed, however, that
not all powers and functions of the MMC were passed to
the MMA. The MMAs power was limited to the "delivery of
basic

urban

services

requiring

coordination

in

Metropolitan Manila." The MMAs governing body, the

Metropolitan Manila Council, although composed of the
mayors of the component cities and municipalities, was
merely given the power of: (1) formulation of policies on
the delivery of basic services requiring coordination and
consolidation; and (2) promulgation of resolutions and
other issuances, approval of a code of basic services and
the exercise of its rule-making power.
Under the 1987 Constitution, the local government units
became primarily responsible for the governance of their
respective political subdivisions. The MMAs jurisdiction was
limited to addressing common problems involving basic services
that transcended local boundaries. It did not have legislative
power. Its power was merely to provide the local government
units technical assistance in the preparation of local development
plans. Any semblance of legislative power it had was confined to a
"review [of] legislation proposed by the local legislative assemblies
to ensure consistency among local governments and with the
comprehensive development plan of Metro Manila," and to "advise
the local governments accordingly."
When R.A. No. 7924 took effect, Metropolitan Manila
became a "special development and administrative region"
and the MMDA a "special development authority" whose
functions were "without prejudice to the autonomy of the

administrative character of the MMDA.

Clearly then, the MMC under P. D. No. 824 is not the same
the MMDA has no power to enact ordinances for the
welfare of the community. It is the local government units,
acting through their respective legislative councils, that possess
legislative power and police power. In the case at bar, the
Sangguniang Panlungsod of Makati City did not pass any
ordinance or resolution ordering the opening of Neptune Street,
hence, its proposed opening by petitioner MMDA is illegal and the
respondent Court of Appeals did not err in so ruling. We desist
from ruling on the other issues as they are unnecessary. Esmso
We stress that this decision does not make light of the MMDAs
noble efforts to solve the chaotic traffic condition in Metro Manila.
Everyday, traffic jams and traffic bottlenecks plague the
metropolis. Even our once sprawling boulevards and avenues are
now crammed with cars while city streets are clogged with
motorists and pedestrians. Traffic has become a social malaise
affecting our peoples productivity and the efficient delivery of
goods and services in the country. The MMDA was created to put
some order in the metropolitan transportation system but
unfortunately the powers granted by its charter are limited. Its
good intentions cannot justify the opening for public use of a
private street in a private subdivision without any legal warrant.
The promotion of the general welfare is not antithetical to the
preservation of the rule of law.
Sangalang v. IAC (1988)
MMDA claims that it has the authority to open Neptune Street to
public traffic because it is an agent of the state endowed with
police power in the delivery of basic services in Metro Manila. One
of these basic services is traffic management which involves the
regulation of the use of thoroughfares to insure the safety,
convenience and welfare of the general public. It is alleged that
the police power of MMDA was affirmed by this Court in the
consolidated cases of Sangalang v. IAC. From the premise that it
has police power, it is now urged that there is no need for the City
of Makati to enact an ordinance opening Neptune street to the
public.

affected local government units." The character of the

MMDA was clearly defined in the legislative debates

Macasiano v. Diokno (1992)

enacting its charter.

Facts:

It is thus beyond doubt that the MMDA is not a local

government unit or a public corporation endowed with
legislative power. It is not even a "special metropolitan political
subdivision" as contemplated in Section 11, Article X of the
Constitution. The creation of a "special metropolitan political
subdivision" requires the approval by a majority of the votes cast
in a plebiscite in the political units directly affected. R. A. No.

On 13 June 1990, the Municipality of Paranaque passed

Ordinance 86, s. 1990 which authorized the closure of J. Gabrielle,

G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets
located at Baclaran, Paraaque, Metro Manila and the
establishment of a flea market thereon. The said ordinance was
approved by the municipal council pursuant to MCC Ordinance 2,
s. 1979, authorizing and regulating the use of certain city and/or
municipal streets, roads and open spaces within Metropolitan

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(Guanzon)

S . Y.

Manila as sites for flea market and/or vending areas, under

certain terms and conditions. On 20 July 1990, the Metropolitan
Manila Authority approved Ordinance 86, s. 1990 of the municipal
council subject to conditions. On 20 June 1990, the municipal
council issued a resolution authorizing the Paraaque Mayor to
enter into contract with any service cooperative for the
establishment, operation, maintenance and management of flea
markets and/or vending areas. On 8 August 1990, the municipality
and Palanyag, a service cooperative, entered into an agreement
whereby the latter shall operate, maintain and manage the flea
market with the obligation to remit dues to the treasury of the
municipal government of Paraaque. Consequently, market stalls
were put up by Palanyag on the said streets. On 13 September
1990 Brig. Gen. Macasiano, PNP Superintendent of the
Metropolitan Traffic Command, ordered the destruction and
confiscation of stalls along G.G. Cruz and J. Gabrielle St. in
Baclaran. These stalls were later returned to Palanyag. On 16
October 1990, Macasiano wrote a letter to Palanyag giving the
latter 10 days to discontinue the flea market; otherwise, the
market stalls shall be dismantled.
On 23 October 1990, the municipality and Palanyag filed with the
trial court a joint petition for prohibition and mandamus with
damages and prayer for preliminary injunction. On 17 December
1990, the trial court issued an order upholding the validity of
Ordinance 86 s. 1990 of the Municipality of Paraaque and
enjoining Macasiano from enforcing his letter-order against
Palanyag. Hence, a petition for certiorari under Rule 65 was filed
by Macasiano thru the OSG.
The Supreme Court granted the petition, and reversed and set
aside the 17 December 1990 decision of the RTC which granted
the writ of preliminary injunction enjoining the PNP
Superintendent, Metropolitan Traffic Command from enforcing
the demolition of market stalls along J. Gabrielle, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets.
Ratio:
Property of provinces, cities and municipalities; Property
for

public

use.

The

property

of

provinces,

cities

and

municipalities is divided into property for public use and

patrimonial property (Art. 423, Civil Code). As to property for
public use, Article 424 of Civil Code provides that "property for
public use, in the provinces, cities and municipalities, consists of
the provincial roads, city streets, the squares, fountains, public
waters, promenades, and public works for public service paid for
by said provinces, cities or municipalities. All other property
possessed by any of them is patrimonial and shall be governed by
this Code, without prejudice to the provisions of special laws." In
the present case, thus, J. Gabrielle G.G. Cruz, Bayanihan, Lt.
Gacia Extension and Opena streets are local roads used for public
service and are therefore considered public properties of the
municipality.
Properties for public service deemed public and under
absolute

control

of

Congress.

Properties

of

the

local

government which are devoted to public service are deemed public

and are under the absolute control of Congress (Province of
Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334
[1968]).

08-09:

2nd

Sem.

Local governments have no authority to regulate use of

public properties unless authority is vested upon by
Congress; e.g. Closure of roads. Local governments have no
authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by
Congress. One such example of this authority given by Congress to
the local governments is the power to close roads as provided in
Section 10, Chapter II of the Local Government Code (BP 337),
which states A local government unit may likewise, through its
head acting pursuant to a resolution of its sangguniang and in
accordance with existing law and the provisions of this Code, close
any barangay, municipal, city or provincial road, street, alley, park
or square. No such way or place or any part thereof shall be closed
without indemnifying any person prejudiced thereby. A property
thus withdrawn from public use may be used or conveyed for any
purpose for which other real property belonging to the local unit
concerned might be lawfully used or conveyed."
Legal provision should be read and interpreted in
accordance with basic principles already established by
law; LGU has no power to lease a road available to public
and ordinarily used for vehicular traffic. The legal provision
(Chapter II, Section 10 of the LGC) which gives authority to local
government units to close roads and other similar public places
should be read and interpreted in accordance with basic principles
already established by law. These basic principles have the effect
of limiting such authority of the province, city or municipality to
close a public street or thoroughfare. Article 424 NCC lays down
the basic principle that properties of public dominion devoted to
public use and made available to the public in general are outside
the commerce of man and cannot be disposed of or leased by the
local government unit to private persons. Aside from the
requirement of due process which should be complied with before
closing a road, street or park, the closure should be for the sole
purpose of withdrawing the road or other public property from
public use when circumstances show that such property is no
longer intended or necessary for public use or public service.
When it is already withdrawn from public use, the property then
becomes patrimonial property of the local government unit (LGU)
(Article 422 NCC; Cebu Oxygen v. Bercilles, 66 SCRA 481 [1975]).
It is only then that the LGU can "use or convey them for any
purpose for which other real property belonging to the local unit
concerned might be lawfully used or conveyed." However, those
roads and streets which are available to the public in general and
ordinarily used for vehicular traffic are still considered public
property devoted to public use. In such case, the LGU has no
power to use it for another purpose or to dispose of or lease it to
private persons.
Related case, Cebu Oxygen v. Bercilles. In Cebu Oxygen v.
Bercilles, the City Council of Cebu, through a resolution, declared
the terminal road of M. Borces Street, Mabolo, Cebu City as an
abandoned road, the same not being included in the City
Development Plan. Thereafter, the City Council passed another
resolution authorizing the sale of the said abandoned road
through public bidding. The Court held that the City of Cebu is
empowered to close a city street and to vacate or withdraw the
same from public use. Such withdrawn portion becomes

78 | L o c a l

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(Guanzon)

S . Y.

08-09:

2nd

Sem.

patrimonial property which can be the object of an ordinary

contract
Related case, Dacanay v. Asistio. In Dacanay v. Asistio, the

are unable to pass through said street due to the stalls and
vendors.
Powers of local government unit not absolute. The powers of

disputed areas from which the market stalls are sought to be

evicted are public streets. A public street is property for public use
hence outside the commerce of man (Arts. 420, 424, Civil Code).
Being outside the commerce of man, it may not be the subject of
lease or other contract (Villanueva, et al. v. Castaeda and
Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas,
30 SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102
Phil. 869; and Muyot v. De la Fuente, 48 O.G. 4860). The right of
the public to use the city streets may not be bargained away
through contract. The interests of a few should not prevail over the
good of the greater number in the community whose health, peace,
safety, good order and general welfare, the respondent city officials
are under legal obligation to protect. The leases or licenses
granted by the City Government to stallholders are null and void
for being contrary to law. The Executive Order issued by the
acting Mayor authorizing the use of Heroes del '96 Street as a
vending area for stallholders contravenes the general law that
reserves city streets and roads for public use. The Executive Order
may not infringe upon the vested right of the public to use city
streets for the purpose they were intended to serve: i.e., as arteries
of travel for vehicles and pedestrians.

a local government unit are not absolute. They are subject to

limitations laid down by the Constitution and the laws such as our
Civil Code. Moreover, the exercise of such powers should be
subservient to paramount considerations of health and well-being
of the members of the community. Every local government unit
has the sworn obligation to enact measures that will enhance the
public health, safety and convenience, maintain peace and order,
and promote the general prosperity of the inhabitants of the local
units. Based on this objective, the local government should refrain
from acting towards that which might prejudice or adversely affect
the general welfare.

In

vested. As in the Dacanay case, both cases involve an ordinance

gratia

argumenti,

ordinance

cannot

be

validly

implemented as municipality has not complied with

conditions imposed by the MMA for the approval of the
ordinance. Even assuming, in gratia argumenti, that the
municipality has the authority to pass the disputed ordinance, the
same cannot be validly implemented because it cannot be
considered approved by the Metropolitan Manila Authority due to
non-compliance by the municipality of the conditions imposed by
the former for the approval of the ordinance. The allegations of the
municipality that the closed streets were not used for vehicular
traffic and that the majority of the residents do not oppose the
establishment of a flea market on said streets are unsupported by
any evidence that will show that the first condition has been met.
Likewise, the designation by the Municipality of a time schedule
during which the flea market shall operate is absent (fourth
condition).
Baclaran area congested; establishment of flea market on
municipality streets does not help solve problem of
congestion
It is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow
the establishment of a flea market along J. Gabrielle, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran
would not help in solving the problem of congestion but rather
leads to inconvenience to children as the normal transportation
flow is disrupted, to pollution and deterioration of health of
residents due to the garbage left by the vendors on the streets.
Further, ambulances and fire engines are not able to use the roads
for a more direct access to the fire area and thus lose valuable
time that should have been spent in saving properties and lives.
And further, the ambulances and people rushing patients to St.
Rita Hospital located along GG Cruz Street are delayed as they

General public has legal right to demand the restoration of

city streets to their specific public purpose. As in the
Dacanay case, the general public have a legal right to demand the
demolition of the illegally constructed stalls in public roads and
streets and the officials of municipality have the corresponding
duty arising from public office to clear the city streets and restore
them to their specific public purpose.
Applicability of the Dacanay case; Contracts by Local
Government

governed

by

the

original

terms

and

conditions, and the law in force at time the rights were

which is void and illegal for lack of basis and authority in laws
applicable during its time. However, BP 337 (Local Government
Code), has already been repealed by RA7160 (Local Government
Code of 1991) which took effect on 1 January 1992. Section 5(d) of
the new Code provides that rights and obligations existing on the
date of effectivity of the new Code and arising out of contracts or
any other source of prestation involving a local government unit
shall be governed by the original terms and conditions of the said
contracts or the law in force at the time such rights were vested.

79 | L o c a l

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(Guanzon)

SYLLABUS PART 3: ELECTIVE OFFICIALS, VACANCIES,

SUCESSION, DISCIPLINARY ACTIONS
Qualifications
Abella v. COMELEC 201 SCRA 253
Facts: Initially, Silvestre dela Cruz (Benjamin Abella was allowed
to intervene) filed a petition with the COMELEC to disqualify
petitioner Larrazabal from running as governor of Leyte on the
ground that she misrepresented her residence in her certificate of
candidacy as Kananga, Leyte. It was alleged that she was in fact a
resident of Ormoc City like her husband who was earlier
disqualified from running for the same office.
The COMELEC granted the petition. However, when the
Commission granted the decision, Larrazabal was already
proclaimed the Governor, hence, when she was disqualified,
Abella, who gathered the second highest votes in the said area,
sought to take his oath as governor of Kananga, Leyte.
The petitioner, however, avers that the COMELEC decision is
erroneous when it relied on the provisions of the Family Code to
rule that the petitioner lacks the required residence to qualify her
to run for the position of governor of Leyte. She opines that under
"the Election Law, the matter of determination of the
RESIDENCE is more on the principle of INTENTION, the animus
revertendi rather than anything else."
In this regard she states that ... "her subsequent physical transfer
of residence to Ormoc City thereafter, did not necessarily erased
(sic) or removed her Kananga residence, for as long as she had the
ANIMUS REVERTENDI evidenced by her continuous and regular
acts of returning there in the course of the years, although she had
physically resided at Ormoc City."
Issue: Whether or not the candidate who got the second highest
vote may be proclaimed as governor when the candidate for such
position was disqualified.
Held: The Supreme Court held that while it is true that SPC No.
88-546 was originally a petition to deny due course to the
certificate of candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed, the fact remains that the local
elections of February 1, 1988 in the province of Leyte proceeded
with Larrazabal considered as a bona fide candidate. The voters of
the province voted for her in the sincere belief that she was a
qualified candidate for the position of governor. Her votes were
counted and she obtained the highest number of votes. The net
effect is that the petitioner lost in the election. He was repudiated
by the electorate.
As regards the principle of ANIMUS REVERTENDI (Faypon
v. Quirino:[M) ere absence from one's residence or origin-domicileto pursue studies, engage in business, or practice his avocation, is
not sufficient to constitute abandonment or loss of such
residence.' ... The determination of a persons legal residence or
domicile largely depends upon intention which may be inferred
from his acts, activities and utterances. The party who claims that
a person has abandoned or left his residence or origin must show

S . Y.

08-09:

2nd

Sem.

and prove pre-ponderantly such abandonment or loss.) In the

instant case, there is no evidence to prove that the petitioner
temporarily left her residence in Kananga, Leyte in 1975 to
pursue any calling, profession or business. What is clear is that
she established her residence in Ormoc City with her husband and
considers herself a resident therein. The intention of animus
revertendi not to abandon her residence in Kananga, Leyte
therefor, is nor present. The fact that she occasionally visits
Kananga, Leyte through the years does not signify an intention to
continue her residence therein. It is common among us Filipinos
to often visit places where we formerly resided specially so when
we have left friends and relatives although for intents and
purposes we have already transferred our residence to other
places.
Whether or not the petitioner is a registered voter of
Kananga, Leyte (the petitioner insists that she is such a
registered voter based on the following antecedents: 1 She
cancelled her registration in Ormoc City on Nov 25, 1987, and 2
she then transferred her registration to Kananga, Leyte on
November 25, 1987 by registering thereat and 3) she later voted on
election day (Feb 1, 1988) in Kananga, Leyte. )
We find the version pressed by respondent unworthy of belief. The
story is marked by so many bizarre cirumtances not consistent
with the ordinary course of events or the natural behavior of
persons. Among these are:
The application for cancellation of registration by respondent
Adelina Y. Larrazabal happened to be misplaced by a clerk in the
Election Registrar's Office for Ormoc City so it was not sent to the
Board of Election Inspectors in a sealed envelope;
The 'inadverterment' (sic) misplacement was discovered only on
January 9,1988;
The voter's affidavit was delivered by itself without any
endorsement or covering letter from the Election Registrar or
anybody else;
The election clerk delivered the application for cancellation only
towards the last hour of the revision day, allegedly at 4:30 P.M.,
January 9, 1988;
All the members of the BEI had already signed the Minutes
indicating that no revision of the voter's list was made as of 5:00
PM
The poll clerk and the third member prepared another minutes
stating that the election clerk had delivered the application for
cancellation at 4:30 P.M. without any reference to the minutes
they had previously signed;
Emeterio Larrazabal, who was supposed to have registered in
Precinct 17, Mahawan, Kananga, was supposed to have filled up
an application for cancellation of his registration in Precinct No.
15, Ormoc City at Precinct 17 concurrent with his registration.
His application for cancellation was never submitted in evidence.
The serial number of the voter's affidavits of the spouses
Larrazabal in Precinct No. 17 are far removed from the serial
numbers of the other new registrants in November 28, 1987 in the
same precinct.
The most telling evidence is the list of voters, that the Chairman
and the poll clerk had written in Part II of the same, closed by the
signatures of both officials showing that there were only 9

80 | L o c a l

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(Guanzon)

additional registered voters in Precinct 17, petitioner was not

there. It was only on February 15, 1988, or two weeks after the
election day that the same Registrar certified for the first time
that there were two voters lists, the first without the names of the
Larrazabals and the second, which appeared only after February
1, submitted by the Chairman of the Board for Precinct 17 which
contained the spouses Larrazabals' names.
Failing in her contention that she is a resident and registered
voter of Kananga, Leyte, the petitioner poses an alternative
position that her being a registered voter in Ormoc City was no
impediment to her candidacy for the position of governor of the
province of Leyte.
Section 12, Article X of the Constitution provides:
Relating therefore, section 89 of R.A. 179 to section 12, Article X of
the Constitution one comes up with the following conclusion: that
Ormoc City when organized was not yet a highly-urbanned city
but is, nevertheless, considered independent of the province of
Leyte to which it is geographically attached because its charter
prohibits its voters from voting for the provincial elective officials.
The question now is whether or not the prohibition against the
'city's registered voters' electing the provincial officials necessarily
mean, a prohibition of the registered voters to be elected as
provincial officials. The argument is untenable.
Section 12, Article X of the Constitution is explicit in that aside
from highly-urbanized cities, component cities whose charters
prohibit their voters from voting for provincial elective officials are
independent of the province. In the same provision, it provides for
other component cities within a province whose charters do not
provide a similar prohibition. Necessarily, component cities like
Ormoc City whose charters prohibit their voters from voting for
provincial elective officials are treated like highly urbanized cities
which are outside the supervisory power of the province to which
they are geographically attached. This independence from the
province carries with it the prohibition or mandate directed to
their registered voters not to vote and be voted for the provincial
elective offices. The resolution in G.R. No. 80716 entitled Peralta
v. The Commission on Elections, et al. dated December 10, 1987
applies to this case. While the cited case involves Olongapo City
which is classified as a highly urbanized city, the same principle is
applicable.
Moreover, Section 89 of Republic Act 179, independent of the
constitutional provision, prohibits registered voters of Ormoc City
from voting and being voted for elective offices in the province of
Leyte. We agree with the COMELEC en banc that "the phrase
'shall not be qualified and entitled to vote in the election of the
provincial governor and the members of the provincial board of the
Province of Leyte' connotes two prohibitions one, from running for
and the second, from voting for any provincial elective official."
The petitioner takes exception to this interpretation. She opines
that such interpretation is "wrong English" since nowhere in the
provision is there any reference to a prohibition against running
for provincial elective office. She states that if the prohibition to
run was indeed intended, the provision should have been phrased
"Shall not be qualified TO RUN in the election FOR provincial
governor." A comma should have been used after the word
qualified and after the word "vote" to clearly indicate that the
phrase "in the election of the provincial governor" is modified

S . Y.

08-09:

2nd

Sem.

separately and distinctly by the words "not qualified" and the

words "not entitled to vote."
The Court finds the petitioner's interpretation fallacious.
In the case of Mapa v. Arroyo, the conjunction and between the
phrase shall not be qualified and entitled to vote refer to two
prohibitions as ruled by the COMELEC in relation to the
demonstrative phrase "in the election of the provincial governor
and the members of the provincial board of the Province of Leyte."
Finally, the petitioner contends that the February 14, 1991
decision of the COMELEC's second division is null and void on the
ground that on that date, the term of Commissioner Andres
Flores, one of the signatories of the majority opinion (vote was 2-1)
had already expired on February 2, 1991. Commissioner Flores
was appointed for a three-year term from February 15, 1988 to
February 15, 1991. In these three years he exercised his duties
and functions as Commissioner. Granting in the absence of a
statute expressly stating when the terms of the COMELEC
Chairman and members commence and expire, that his term
expired on February 2, 1991 to enable a faithful compliance with
the constitutional provision that the terms of office in the
COMELEC are on a staggered basis commencing and ending at
fixed intervals, his continuance in office until February 15, 1991
has a color of validity. Therefore, all his official acts from February
3, 1991 to February 15, 1991, are considered valid.
Issue:

WON Abella can assume position of governor by virtue

of Section 6 RA 6646
Ratio:

Abella claims that the Frivaldo and Labo cases were

misapplied by the COMELEC. According to him these cases are

fundamentally different from SPC No. 88-546 in that the Frivaldo
and Labo cases were petitions for a quo warranto filed under
section 253 of the Omnibus Code, contesting the eligibility of the
respondents after they had been proclaimed duly elected to the
Office from which they were sought to be unseated while SPC No.
88-546 which was filed before proclamation under section 78 of the
Omnibus Election Code sought to deny due course to Larrazabal's
certificate of candidacy for material misrepresentations and was
seasonably filed on election day. He, therefore, avers that since
under section 6 of Republic Act 6646 it is provided therein that:
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes case for him shall
not be counted.
The votes cast in favor of Larrazabal who obtained the highest
number of votes are not considered counted making her a noncandidate, he, who obtained the second highest number of votes
should be installed as regular Governor of Leyte in accordance
with the Court's ruling in G.R. No. 88004.
While it is true that SPC No. 88-546 was originally a petition to
deny due course to the certificate of candidacy of Larrazabal and
was filed before Larrazabal could be proclaimed the fact remains
that the local elections of February 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona-fide
candidate. The voters of the province voted for her in the sincere
belief that she was a qualified candidate for the position of
governor. Her votes were counted and she obtained the highest
number of votes. The net effect is that the petitioner lost in the

81 | L o c a l

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(Guanzon)

election. He was repudiated by the electorate. In the Frivaldo and

Labo cases, this is precisely the reason why the candidates who
obtained the second highest number of votes were not allowed to
assume the positions vacated by Frivaldo the governorship of
Sorsogon, and Labo, the position of mayor in Baguio City. The
nature of the proceedings therefore, is not that compelling. What
matters is that in the event a candidate for an elected position
who is voted for and who obtains the highest number of votes is
disqualified for not possessing the eligibility requirements at the
time of the election as provided by law, the candidate who obtains
the second highest number of votes for the same position can not
assume the vacated position. It should be stressed that in G.R. No.
88004, the Court set aside the dismissal of SPC No. 88-546, and
directed the COMELEC to conduct hearings to determine whether
or not Larrazabal was qualified to be a candidate for the position
of governor in the province of Leyte. This is the import of the
decision in G.R. No. 88004. Thus, the Court ruled in the case of
Labo, Jr. v. Commission on Elections:
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v.
Commission on Elections, decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then, with three dissenting and
another two reserving their vote. One was on official leave.
... it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who
has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots
that they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no measure
can be declared carried unless he or it receives a majority or
plurality of the legal votes cast in the election.
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid the vote the
winner into office or maintain him there. However the absence of a
statute which clearly asserts a contrary politics and legislative
policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not
be treated as stray, void or meaningless.
In sum, the Court does not find any reason to reverse and set aside
the questioned decision and resolution of the COMELEC. The

S . Y.

08-09:

2nd

Sem.

COMELEC has not acted without or in excess of jurisdiction or in

grave abuse of discretion.
Labo v. COMELEC (1989)
FACTS: Ramon Labo, Jr. married an Australian citizen in the
Philippines. He was granted Australian citizenship in 1976. In
1980, the marriage was declared void for being bigamous.
Labo returned to the Philippines in 1980, using an Australian
passport, and obtained an Alien Certificate of Registration (ACR).
He later applied for a change in status from immigrant to
returning Filipino citizen. However, the Commission on
Immigration and Deportation denied his application for the
cancellation of his ACR since he has not applied for reacquisition
of his Filipino citizenship.
According to the records of the Australian Embassy (as certified by
the Australian Consul), Labo was still an Australian citizen as of
April 12, 1984. Although no direct evidence was presented to prove
that he took an oath of allegiance as a naturalized Australian
citizen, the laws of Australia at the time required any person over
the age of 16 years who is granted Australian citizenship to take
an oath of allegiance. The wording/text of this oath includes a
renunciation of all other allegiance.
Labo ran and won as Mayor of Baguio City in the local elections
held on January 18, 1988. The second-placer, Luis Lardizabal,
filed a petition for quo warranto, alleging that Labo is disqualified
from holding public office on the grounds of alienage, and asking
that the latter's proclamation as Mayor be annulled.
ISSUES: *The original issue raised before the Supreme Court
concerned only the COMELEC's jurisdiction over Lardizabal's
petition. Labo contended that the petition for quo warranto was
not filed on time, hence the COMELEC lacks the jurisdiction to
conduct an inquiry regarding his citizenship. However, the SC
decided to rule on the merits of the case, given that the issue is
also of considerable importance (a foreign citizen holding public
office in the Philippines), and in the interest of the speedy
administration of justice.
Does the COMELEC have the jurisdiction to inquire into Labo's
citizenship?
Is Ramon Labo, Jr. a Filipino citizen?
Is he qualified to hold public office in the Philippines?
If Labo is not eligible to serve as Mayor, can Lardizabal, as the
runner-up in the elections, replace him?
HELD/RATIO:
Yes. Contrary to Labo's claim, the petition for quo warranto was
filed on time. Lardizabal did not immediately pay the filing fee
because the COMELEC had at first considered the petition as a
pre-proclamation proceeding, which does not require the payment
of such a fee. When the COMELEC reclassified the petition,
Lardizabal immediately paid the filing fee -- thus, he still complied
with the prescribed 10-day period. Furthermore, the Court held
that such technicalities should not hinder judicial decisions on
significant issues, such as the one being decided in this case.

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(Guanzon)

Labo is not a Filipino citizen. He had lost his Philippine

citizenship by all 3 modes specified in the Constitution: (1)
naturalization in a foreign country, (2) express renunciation of
citizenship, and (3) subscribing to an oath of allegiance to support
the Constitution or laws of a foreign country. He has not
reacquired Philippine citizenship by any of the 3 methods
prescribed in the Constitution: (1) direct act of Congress, (2)
naturalization, and (3) repatriation.
Contrary to Labo's claim, his naturalization in Australia did not
confer him with dual citizenship. The Constitution explicitly states
that dual citizenship is inimical to national interest.
The contention that his marriage to an Australian national did not
automatically divest him of Filipino citizenship is irrelevant.
There was no claim that Labo had automatically ceased to be a
Filipino because of that marriage. Also, his Filipino citizenship
has not been automatically restored upon the annulment of his
Australian citizenship, when his marriage was declared void on
the grounds of bigamy.
The Commission on Immigration and Deportation held in in 1988
that Labo was not a Filipino citizen. The earlier contrary decision
by the COMELEC in 1982 is totally baseless, and is even alleged
to have been politically motivated. The latter can be reversed
because the doctrine of res judicata does not apply to questions of
citizenship.
Labo is not eligible to hold public office in the Philippines. He was
not even a qualified voter when he was elected.
Despite getting the second highest number of votes, Lardizabal
cannot assume the position of Mayor because he has not been duly
elected by the people of Baguio City. Labo's disqualification alone
does not entitle him to take office. Instead, the elected Vice Mayor
shall replace Labo.
*Separate concurring opinion (Gutierrez Jr., J.):
Although no decision has been rendered by the COMELEC and
elevated to the SC for review, it is undeniable that a foreigner
cannot be allowed to hold public office in the Philippines. It is
regrettable, however, that Labo should be disqualified on the basis
of his citizenship because he has already achieved a lot while
serving as Mayor during the pendency of the case.
Frivaldo v. COMELEC (1996)
Facts:

Petitioner Juan G. Frivaldo was proclaimed governor-

elect and assume office in due time. The League of Municipalities

filed with the COMELEC a petition for annulment of Frivaldos
election and proclamation on the ground that he was not a
Filipino citizen, having been naturalized in the United States.
Frivaldo admitted the allegation but pleaded the special and
affirmative defenses that his naturalization was merely forced
upon himself as a means of survival against the unrelenting
prosecution by the Martial Law Dictators agent abroad.
Issue:

Whether or not Frivaldo was a citizen of the Philippines

at the time of his election.

S . Y.
Held:

08-09:

2nd

Sem.

No. Section 117 of the Omnibus Election Code provides

that a qualified voter must be, among other qualifications, a

citizen of the Philippines, this being an indispensable requirement
for suffrage under Article V, Section 1, of the Constitution.
Even if he did lose his naturalized American citizenship, such
forfeiture did not and could not have the effect of automatically
restoring his citizenship in the Philippines that he had earlier
renounced. Qualifications for public office are continuing
requirements and must be possessed not only at the time of
appointment or election or assumption of office but during the
officers entire tenure.
Frivaldo declared not a citizen of the Philippines and therefore
disqualified from serving as a Governor of the Province of
Sorsogon.
In the certificate of candidacy he filed, Frivaldo described himself
as a "natural-born" citizen of the Philippines, omitting mention of
any subsequent loss of such status. The evidence shows, however,
that he was naturalized as a citizen of the United States in 1983
per the following certification from the United States District
Court, Northern District of California, as duly authenticated by
Vice Consul Amado P. Cortez of the Philippine Consulate General
in San Francisco, California, U.S.A.
This evidence is not denied by the petitioner. In fact, he expressly
admitted it in his answer. Nevertheless, as earlier noted, he claims
it was "forced" on him as a measure of protection from the
persecution of the Marcos government through his agents in the
United States.
The Court sees no reason not to believe that the petitioner was one
of the enemies of the Marcos dictatorship. Even so, it cannot agree
that as a consequence thereof he was coerced into embracing
American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and voluntary
choice is totally unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly
situated as Frivaldo, and some of them subject to greater risk
than he, who did not find it necessary nor do they claim to have
been coerced to abandon their cherished status as Filipinos. They
did not take the oath of allegiance to the United States, unlike the
petitioner who solemnly declared "on oath, that I absolutely and
entirely renounce and abjure all allegiance and fidelity to any
foreign prince, potentate, state or sovereignty of whom or which I
have heretofore been a subject or citizen," meaning in his case the
Republic of the Philippines. The martyred Ninoy Aquino heads the
impressive list of those Filipinos in exile who, unlike the
petitioner, held fast to their Philippine citizenship despite the
perils of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the
international law principle of effective nationality which is clearly
not applicable to the case at bar. That case is not relevant to the
petition before us because it dealt with a conflict between the
nationality laws of two states as decided by a third state. No third
state is involved in the case at bar; in fact, even the United States
is not actively claiming Frivaldo as its national. The sole question
presented to us is whether or not Frivaldo is a citizen of the
Philippines under our own laws, regardless of other nationality
laws. We can decide this question alone as sovereign of our own
territory, conformably to Section 1 of the said Convention

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(Guanzon)

providing that "it is for each State to determine under its law who
are its nationals." It is also worth noting that Nottebohm was
invoking his naturalization in Liechtenstein whereas in the
present case Frivaldo is rejecting his naturalization in the United
States.
If he really wanted to disavow his American citizenship and
reacquire Philippine citizenship, the petitioner should have done
so in accordance with the laws of our country. Under CA No. 63 as
amended by CA No. 473 and PD No. 725, Philippine citizenship
may be reacquired by direct act of Congress, by naturalization, or
by repatriation.
It does not appear that Frivaldo has taken these categorical acts.
He contends that by simply filing his certificate of candidacy he
had, without more, already effectively recovered Philippine
citizenship. But that is hardly the formal declaration the law
envisions surely, Philippine citizenship previously disowned is not
that cheaply recovered. If the Special Committee had not yet been
convened, what that meant simply was that the petitioner had to
wait until this was done, or seek naturalization by legislative or
judicial proceedings.
Gutierrez Jr, Concurring: I concur in the pragmatic approach
taken by the Court. I agree that when the higher interests of the
State are involved, the public good should supersede any
procedural infinities which may affect a petition filed with the
Commission on Elections. I fail to see how the Court could allow a
person who by his own admissions is indubitably an alien to
continue holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by
law for the filing of a protest whether quo warranto or election
contest is mandatory and jurisdictional.
As a rule, the quo warranto petition seeking to annul the
petitioner's election and proclamation should have been filed with
ten days after the proclamation of election results. The purpose of
the law in not allowing the filing of protests beyond the period
fixed by law is to have a certain and definite time within which
petitions against the results of an election should be filed and to
provide summary proceedings for the settlement of such disputes.
The Rules of Court allow the Republic of the Philippines to file quo
warranto proceedings against any public officer who performs an
act which works a forfeiture of his office. However, where the
Solicitor General or the President feel that there are no good
reasons to commence quo warranto proceedings, the Court should
allow a person like Estuye or his league to bring the action.
I must emphasize, however, that my concurrence is limited to a
clear case of an alien holding an elective public office. And perhaps
in a clear case of disloyalty to the Republic of the Philippines.
Where the disqualification is based on age, residence, or any of the
many grounds for ineligibility, I believe that the ten-day period
should be applied strictly.
The pragmatic approach is also shown by the fact that the Court
found it inexpedient to wait for the final decision of COMELEC.
This step is most unusual but considering the total lack of any
serious grounds for the petitioner's claim of having regained his
Philippine citizenship, I am constrained to concur in the procedure
pro hac vice.
Mercado v. Manzano (1999)

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08-09:

2nd

Sem.

FACTS: This is a petition for certiorari seeking to set aside the

resolution of the COMELEC en banc and to declare Manzano
disqualified to hold the office of vice-mayor of Makati City.
Important details on Edu Manzano: born September 4, 1955 in
San Francisco, California, USA to Filipino parents.
On the May 11, 1998 elections for vice-mayoralty of Makati City, 3
candidates competed for the post: Eduardo B. Manzano, Ernesto S.
Mercado, and Gabriel V. Daza III. Manzano won the elections but
his proclamation was suspended due to a pending petition for
disqualification filed by a certain Ernesto Mamaril alleging that
Manzano was an American citizen. On May 7, 1998, the Second
Division of the COMELEC cancelled the certificate of candidacy of
Manzano on the grounds of his dual-citizenship, which disqualifies
him according to Sec.40(d) of the Local Government Code.
Manzano filed a motion for reconsideration. Mercado sought to
intervene in the case for disqualification. Manzano opposed the
motion to intervene. The motion was unresolved. But on August
31, 1998, the COMELEC en banc (with 1 commissioner
abstaining) reversed the Second Divisions ruling on the
cancellation of the certificate of candidacy and directing the
proclamation of Manzano as winner, saying:
Manzano, being born in the USA, obtained US citizenship by
operation of the US constitution and laws under principle of jus
soli (basis is place of birth).
Yet, by being born to Filipino parents, Manzano natural born
Filipino citizen, by operation of the 1935 Philippine Constitution
and laws under principle jus sanguinis (the right of blood).
Although he is registered as an alien with the Philippine Bureau
of Immigration and holds and American passport, he has not lost
his Filipino citizenship since he has not renounced it and has not
taken an oath of allegiance to the USA.
Manzano, after the age of majority, registered himself as a voter
and voted in the 1992, 1995, and 1998 Philippine elections which
effectively renounced his US citizenship under American law.
Under Philippine law, he no longer had US citizenship.
Private respondent Manzano was then proclaimed as vice-mayor
of Makati City.
ISSUES:
WON petitioner Mercado has personality to bring this suit
considering that he was not an original party in the case for
disqualification filed by Ernesto Mamaril nor was his motion for
leave to intervene granted. Yes.
WON respondent Manzano is a dual citizen and if so, WON he is
disqualified from being a candidate for vice-mayor in Makati City.
No.
REASONS: Manzano argues that Mercado has neither legal
interest in the matter of litigation nor an interest to protect
because he is a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of
Makati City even if the private respondent be ultimately
disqualified by final and executory judgment.

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(Guanzon)

S . Y.

This assumes that at the time intervention was sought, there had
already been a proclamation of the election results for the vicemayoralty elections when in fact, there has not been such a
proclamation. Certainly, the petitioner had, and still has an
interest in ousting private respondent from the race when he
sought to intervene. The rule in Labo v. COMELEC only applies
when the election of the respondent is contested, and the question
is WON the second placer may be declared winner. If Mamaril was
competent to bring action, so was Mercado, being a rival
candidate.
Petitioner has right to intervene even if he filed the motion on May
20, 1998, when it was shown that the private respondent had the
most votes. Electoral Reforms Law of 1987 provides that
intervention

may

be

allowed

in

proceedings

for

disqualification even after election if there has been no

final judgment rendered. Failure of COMELEC en banc to
resolve

petitioners

motion

for

intervention

was

tantamount to denial of the motion, justifying this petition

for certiorari.
Invoking the maxim dura lex sed lex, petitioner contends that
through Sec.40(d) of the Local Government Code (which declares
as disqualified from running for elective local position Those
with dual-citizenship), Congress has command[ed] in explicit
terms the ineligibility of persons possessing dual allegiance to
hold elective office.
Dual citizenship is different from dual allegiance. Dual citizenship
is involuntary; it arises out of circumstances of birth or marriage,
where a person is recognized to be a national by two or more
states. Dual allegiance is a result of a persons volition; it is a
situation wherein a person simultaneously owes, by some positive
act, loyalty to two or more states. Dual citizenship is an issue
because a person who has this raises a question of which states
law must apply to him/her, therefore posting a threat to a
countrys sovereignty. In Sec.5 Article IV of the Constitution on
Citizenship, the concern was not with dual citizenship per se, but
with naturalized citizens who maintain allegiance to their
countries of origin even after naturalization. Hence, dual
citizenship in the aforementioned disqualification clause must
mean dual allegiance. Therefore, persons with mere dual
citizenship do not fall under this disqualification.
It should suffice that upon filing of certificates for candidacy, such
persons with dual citizenships have elected their Philippine
citizenship to terminate their dual citizenship. In private
respondents certificate of candidacy, he made these statements
under oath on March 27, 1998: I am a Filipino citizen
Natural-born. I am not a permanent resident of , or
immigrant to , a foreign country. I am eligible for the
office I seek to be elected. I will support and defend the
Constitution of the Philippines and will maintain true
faith and allegiance thereto The filing of such certificate
of

candidacy

sufficed

to

renounce

his

American

citizenship, effectively removing any disqualification he

might have as a dual-citizen. In Frivaldo v. COMELEC, it was
held that By laws of the United States Frivaldo lost his
American citizenship when he took his oath of allegiance to the
Philippine Government when he ran for Governor in 1988, in

08-09:

2nd

Sem.

1992, and in 1995. Every certificate of candidacy contains an

oath of allegiance to the Philippine Government. Therefore,
petitioner Mercados contention that the oath of allegiance
contained in private respondents certificate of candidacy is
insufficient to constitute his renunciation of his American
citizenship. Also, equally without merit is his contention that, to
be effective, such renunciation should have been made upon
reaching the age of majority since no law requires the election of
Philippine citizenship to be made upon majority age.
Plus, the fact that Manzano admitted that he was registered as an
American citizen with the Philippine Bureau of Immigration and
Deportation and that he holds an American passport which he
used for his last travel to the US dated April 22, 1997should not be
such a big deal. At the time of said travel, the use of an American
passport was simply an assertion of his American nationality
before the termination of his American citizenship. Admitting that
he was a registered alien does not mean that he is not still a
Filipino (Aznar v. COMELEC).
Manzanos oath of allegiance, together with the fact he has spent
his life here, received his education here, and practiced his
profession here, and has taken part in past Philippine elections,
leaves no doubt of his election of Philippine citizenship.
WHEREFORE, petition for certiorari, DISMISSED. *Ineligibility
refers to lack of qualifications prescribed.
Coquilla v. COMELEC (2002)
Nature: Petition for certiorari to set aside the resolution, dated
July 19, 2001, of the Second Division of the COMELEC, ordering
the cancellation of the certificate of candidacy of petitioner
Teodulo M. Coquilla for the position of mayor of Oras, Eastern
Samar in the May 14, 2001 elections and the order, dated January
30, 2002, of the COMELEC en banc denying petitioners motion
for reconsideration.Special Civil Action in the SC. Certiorari
Facts:

February 17, 1938 Coquilla was born of Filipino

parents in Oras, Eastern Samar. He grew up and resided there

until 1965, when he joined the US Navy. He was subsequently
naturalized as a U.S. citizen.
1970-1973, petitioner thrice visited the Philippines while on leave
from the U.S. Navy. Otherwise, even after his retirement from the
U.S. Navy in 1985, he remained in the U.S.
October 15, 1998, petitioner came to the Philippines and took out
a residence certificate, although he continued making several trips
to the U.S. the last of which took place on July 6, 2000 and lasted
until August 5, 2000.
Subsequently, petitioner applied for repatriation under R.A. No.
81715 to the Special Committee on Naturalization which was
approved Nov. 7, 2000
Nov. 10, 2000 oath-taking as Filipino citizen; issued Certificate
of Repatriation No. 000737 and Bureau of Immigration
Identification Certificate No. 115123 three days after
November 21, 2000 - applied for registration as a voter of Butnga,
Oras, Eastern Samar. Approved by Election Registration Board on
January 12, 2001.

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(Guanzon)

February 27, 2001 filed certificate of candidacy stating therein

that he had been a resident of Oras, Eastern Samar for "two (2)
years."
March 5, 2001, Neil M. Alvarezrespondent, incumbent mayor of
Oras and reelectionistsought cancellation of petitioners
certificate of candidacy on the ground that the latter had made a
material misrepresentation in his certificate of candidacy by
stating that he had been a resident of Oras for two years when in
truth he had resided therein for only about six months since
November 10, 2000, when he took his oath as a citizen of the
Philippines.
COMELEC unable to render judgment on the case before the
elections on May 14, 2001 where petitioner won over private
respondents by 379 votes.
May 17, 2001 - petitioner proclaimed mayor of Oras by the
Municipal Board of Canvassers and subsequently took his oath of
office.
July 19, 2001, the Second Division of the COMELEC granted
private respondents petition and ordered the cancellation of
petitioners certificate of candidacy on the basis the respondents
frequent or regular trips to the Philippines and stay in Oras,
Eastern Samar after his retirement from the U.S. Navy in 1985
cannot be added to his actual residence thereat after November
10, 2000 until May 14, 2001 to cure his deficiency in days, months,
and year to allow or render him eligible to run for an elective office
in the Philippines. The 1-yr residency requirement of Sec 39(a) of
the Local Government Code of 1991 in relation to Secs 65 and 68
of the Omnibus Election Code contemplates of the actual residence
of a Filipino citizen in the constituency where he seeks to be
elected.
Petitioner filed a motion for reconsideration, but his motion was
denied by the COMELEC en banc on January 30, 2002. Hence this
petition.
Issues:
WON the 30-day period for appealing the resolution of the
COMELEC was suspended by the filing of a motion for
reconsideration by petitioner.
Private respondent contention: petition should be dismissed cause
his motion for reconsideration was denied for being pro forma and
did not suspend the running of the 30-day period for filing this
petition, pursuant to Rule 19, 4 of the COMELEC Rules of
Procedure, so and since the resolution was received on July 28,
2001 and the petition in this case was filed on February 11, 2002,
the same should be considered as having been filed late and
should be dismissed.
Petitioners MFR and petition for certiorari were filed within the
prescribed periods. 5-day period for filing MFR under Rule 19, 2
should be counted from receipt of decision, resolution, order, or
ruling of COMELEC. In this case, petitioner received a copy of
COMELECs Second Division July 19, 01 resolution on July 28,
2001. 5 days later, on Aug. 2, 01, he filed his MFR. On Feb. 6, 02,
he received a copy of the order, dated Jan. 30, 02, of the
COMELEC en banc denying his MFR. 5 days later, on Feb 11, 02,
he filed this petition for certiorari.
Contention that petitioners MFR did not suspend the running of
the period for filing this petition because the motion was pro forma

S . Y.

08-09:

2nd

Sem.

and, thus, petition shouldve been filed on or before Aug 27, 01 is

not correct. It was actually filed, however, only on February 11,
2002. The MFR was not pro forma and its filing did suspend the
period for filing the petition for certiorari in this case. The mere
reiteration in a motion for reconsideration of the issues raised by
the parties and passed upon by the court does not make a motion
pro forma; otherwise, the movants remedy would not be a
reconsideration of the decision but a new trial or some other
remedy.
In the cases where MFR was held to be pro forma, the motion was
so held because
it was a second motion for reconsideration, or
it did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not
supported by the evidence,or
it failed to substantiate the alleged errors, or
it merely alleged that the decision in question was contrary to law,
or
the adverse party was not given notice thereof.
Petitioners MFR suffers from none of these defects, and
COMELEC erred in ruling that petitioners MFR was pro forma
because the allegations raised therein are a mere "rehash" of his
earlier pleadings or did not raise "new matters." Hence, the filing
of the motion suspended the running of the 30-day period to file
the petition in this case, which, as earlier shown, was done within
the reglementary period provided by law.
WON COMELEC retained jurisdiction to decide this case
notwithstanding the proclamation of petitioner.
R.A. No. 6646, Sec 6 & 7: Candidates who are disqualified by final
judgment before the election shall not be voted for and the votes
cast for them shall not be counted. But those against whom no
final judgment of disqualification had been rendered may be voted
for and proclaimed, unless, on motion of the complainant, the
COMELEC suspends their proclamation because the grounds for
their disqualification or cancellation of their certificates of
candidacy are strong. Meanwhile, the proceedings for
disqualification of candidates or for the cancellation or denial of
certificates of candidacy, which have been begun before the
elections, should continue even after such elections and
proclamation of the winners.
In Abella v. COMELEC and Salcedo II v. COMELEC the SC, in
the first case, affirmed and, in the second, reversed the decisions of
the COMELEC rendered after the proclamation of candidates, not
on the ground that the latter had been divested of jurisdiction
upon the candidates proclamation but on the merits.
WON petitioner had been a resident of Oras, Eastern
Samar at least one (1) year before the elections held on
May 14, 2001 as he represented in his certificate of
candidacy.
No.
First, 39(a) of the Local Government Code (R.A No. 7160)
provides: An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city,
or province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan,

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Government

(Guanzon)

the district where he intends to be elected; a resident therein for

at least 1 year immediately preceding the day of the election; and
able to read and write Filipino or any other local language or
dialect.
Residence" is to be understood as referring to "domicile" or legal
residencethe place where a party actually or constructively has
his permanent home, where he, no matter where he may be found
at any given time, eventually intends to return and remain
(animus manendi).
A domicile of origin is acquired by every person at birth. It is
usually the place where the childs parents reside and continues
until the same is abandoned by acquisition of new domicile
(domicile of choice).
In the case at bar, petitioner lost his domicile of origin in Oras by
becoming a U.S. citizen after enlisting in the U.S. Navy in 1965.
From then on and until Nov. 10, 00, when he reacquired
Philippine citizenship, petitioner was an alien without any right to
reside in the Philippines save as our immigration laws may have
allowed him to stay as a visitor or as a resident alien.
If immigration to the United States by virtue of a "greencard,"
which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines (Caasi v.
CA), much more does naturalization in a foreign country result in
an abandonment of domicile in the Philippines, as was the case
with the petitioner.
Petitioner was repatriated not under R.A. No. 2630, which applies
to the repatriation of those who lost their Philippine citizenship by
accepting commission in the Armed Forces of the US, but under
R.A. No. 8171, which provides for the repatriation of, among
others, natural-born Filipinos who lost their citizenship on
account of political or economic necessity. In any event, the fact is
that, by having been naturalized abroad, he lost his Philippine
citizenship and with it his residence in the Philippines and had
not reacquired it until November 10, 00
Second, petitioner did not reestablished residence in this country
in 1998 when he came back to prepare for the mayoralty elections
of Oras by securing a Community Tax Certificate in that year and
by "constantly declaring" to his townmates of his intention to seek
repatriation and run for mayor in the May 14, 2001 elections.
The status of being an alien and a non-resident can be waived
either separately, when one acquires the status of a resident alien
before acquiring Philippine citizenship, or at the same time when
one acquires Philippine citizenship. As an alien, an individual
may obtain an immigrant visa under 13 of the Philippine
Immigration Act of 1948 and an Immigrant Certificate of
Residence (ICR) and thus waive his status as a non-resident.
On the other hand, he may acquire Philippine citizenship by
naturalization under C.A. No. 473, as amended, or, if he is a
former Philippine national, he may reacquire Philippine
citizenship by repatriation or by an act of Congress, in which case
he waives not only his status as an alien but also his status as a
non-resident alien.
In the case at bar, the only evidence of petitioners status when he
entered the country on Oct and Dec 98, Oct 99, and June 00 is
the statement "Philippine Immigration () Balikbayan" in his
1998-2008 U.S. passport. As for his entry on Aug 5, 00, the stamp
bore the added inscription "good for one year stay." Under 2 of

S . Y.

08-09:

2nd

Sem.

R.A. No. 6768 (An Act Instituting a Balikbayan Program), the

term balikbayan includes a former Filipino citizen who had been
naturalized in a foreign country and comes or returns to the
Philippines and, if so, he is entitled, among others, to a "visa-free
entry to the Philippines for a period of one (1) year" (3(c)). It
would appear then that when petitioner entered the country on
the dates in question, he did so as a visa-free balikbayan visitor
whose stay as such was valid for 1-yr only. Hence, petitioner can
only be held to have waived his status as an alien and as a nonresident only on Nov 10, 00 upon taking his oath as a citizen of
the Philippines under R.A. No. 8171. He lacked the requisite
residency to qualify him for the mayorship of Oras
Petitioner cannot invoke the ruling in the cases Frivaldo v.
Commission on Elections and Bengson as residency was not an
issue in these.
Third, petitioners contends that his registration as a voter of
Butnga, Oras, Eastern Samar in January 2001 is conclusive of his
residency as a candidate because 117 of the Omnibus Election
Code requires that a voter must have resided in the Philippines for
at least one year and in the city or municipality wherein he
proposes to vote for at least six months immediately preceding the
election. But, registration as a voter does not bar the filing of a
subsequent case questioning a candidates lack of residency (Nuval
v. Guray).
Fourth, petitioner was not denied due process because the
COMELEC failed to act on his motion to be allowed to present
evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral
Reforms Law of 1987), proceedings for denial or cancellation of a
certificate of candidacy are summary in nature. The holding of a
formal hearing is thus not de rigeur. In any event, petitioner
cannot claim denial of the right to be heard since he filed a
Verified Answer, a Memorandum and a Manifestation, all dated
March 19, 2001, before the COMELEC in which he submitted
documents relied by him in this petition, which, contrary to
petitioners claim, are complete and intact in the records.
WON COMELEC was justified in ordering the cancellation
of his certificate of candidacy since the statement in
petitioners certificate of candidacy that he had been a
resident of Oras, Eastern Samar for "two years" at the time
he filed such certificate is not true.
Yes. Petitioner made a false representation of a material fact in
his certificate of candidacy, thus rendering such certificate liable
to cancellation.
Sec 78 of the Omnibus Election Code provides that a verified
petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground
that any material representation contained therein as required
under Section 74 hereof is false.
In the case at bar, what is involved is a false statement concerning
a candidates qualification for an office for which he filed the
certificate of candidacy. This is a misrepresentation of a material
fact justifying the cancellation of petitioners certificate of
candidacy. The cancellation of petitioners certificate of candidacy
in this case is thus fully justified.

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(Guanzon)

Judgment: WHEREFORE, the petition is DISMISSED and the

resolution of the Second Division of the Commission on Elections,
dated July 19, 2001, and the order, dated January 30, 2002 of the
Commission on Elections en banc are AFFIRMED.
Disqualifications
Caasi v. CA (1990)
Facts: Private respondent Merito Miguel was elected as municipal
mayor of Bolinao, Pangasinan during the local elections of
January 18, 1988. His disqualification, however, was sought by
herein petitioner, Mateo Caasi, on the ground that under Section
68 of the Omnibus Election Code private respondent was not
qualified because he is a green card holder, hence, a permanent
resident of the United States of America, not of Bolinao.
Issues:
1. Whether or not a green card is proof that the holder is a
permanent resident of the United States.
2.
Whether respondent Miguel had waived his status as a
permanent resident of or immigrant to the U.S.A. prior to the
local elections on January 18, 1988.
Held: The Supreme Court held that Miguels application for
immigrant status and permanent residence in the U.S. and his
possession of a green card attesting to such status are conclusive
proof that he is a permanent resident of the U.S. despite his
occasional visits to the Philippines. The waiver of such immigrant
status should be as indubitable as his application for it. Absent
clear evidence that he made an irrevocable waiver of that status or
that he surrendered his green card to the appropriate U.S.
authorities before he ran for mayor of Bolinao in the local election
on January 18, 1988, the Courts conclusion is that he was
disqualified to run for said public office, hence, his election thereto
was null and void.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this
Constitution allegiance at all times, and any public officer or
employee who seeks to change his citizenship or acquire the status
of an immigrant of another country during his tenure shall be
dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus
Election Code of the Philippines provides:
SEC. 68. Disqualifications ... Any person who is a permanent
resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant
of a foreign country in accordance with the residence requirement
provided for in the election laws.
In the case of Merito Miguel, the Court deems it significant that in
the "Application for Immigrant Visa and Alien Registration"
which Miguel filled up in his own handwriting and submitted to
the US Embassy in Manila before his departure for the United
States in 1984, Miguel's answer to Question No. 21 therein
regarding his "Length of intended stay ," Miguel's answer was,
"Permanently."

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08-09:

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Sem.

On its face, the green card that was subsequently issued by the
United States Department of Justice and Immigration and
Registration Service to Miguel identifies him in clear bold letters
as a RESIDENT ALIEN. On the back of the card, the upper
portion, the following information is printed: Person identified by
this card is entitled to reside permanently and work in the United
States."
Despite his vigorous disclaimer, Miguel's immigration to the
United States in 1984 constituted an abandonment of his domicile
and residence in the Philippines. For he did not go to the United
States merely to visit his children or his doctor there; he entered
the limited States with the intention to have there permanently as
evidenced by his application for an immigrant's (not a visitor's or
tourist's) visa. Based on that application of his, he was issued by
the U.S. Government the requisite green card or authority to
reside there permanently.
Immigration is the removing into one place from another; the act
of immigrating the entering into a country with the intention of
residing in it. As a resident alien in the U.S., Miguel owes
temporary and local allegiance to the U.S., the country in which
he resides. This is in return for the protection given to him during
the period of his residence therein.
Section 18, Article XI of the 1987 Constitution which provides that
"any public officer or employee who seeks to change his citizenship
or acquire the status of an immigrant of another country during
his tenure shall be dealt with by law" is not applicable to Merito
Miguel for he acquired the status of an immigrant of the United
States before he was elected to public office, not "during his
tenure" as mayor of Bolinao, Pangasinan.
Did Miguel, by returning to the Philippines in November 1987 and
presenting himself as a candidate for mayor of Bolinao in the
January 18,1988 local elections, waive his status as a permanent
resident or immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the
law requires that the candidate who is a green card holder must
have "waived his status as a permanent resident or immigrant of a
foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent resident or
immigrant of the United States. The waiver of his green card
should be manifested by some act or acts independent of and done
prior to filing his candidacy for elective office in this country.
Without such prior waiver, he was "disqualified to run for any
elective office"
Miguel admits that he holds a green card, which proves that he is
a permanent resident or immigrant it of the United States, but
the records of this case are starkly bare of proof that he had
waived his status as such before he ran for election as municipal
mayor of Bolinao on January 18, 1988. We, therefore, hold that he
was disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not
hard to find. Residence in the municipality where he intends to
run for elective office for at least 1 year at the time of filing his
certificate of candidacy, is one of the qualifications that a
candidate for elective public office must possess (Sec. 42, LGC).
Miguel did not possess that qualification because he was a
permanent resident of the United States and he resided in Bolinao

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for a period of only 3 months (not one year) after his return to the
Philippines in Nov 1987 and before he ran for mayor of that
municipality on Jan 18, 1988.
In banning from elective public office Philippine citizens who are
permanent residents or immigrants of a foreign country, the
Omnibus Election Code has laid down a clear policy of excluding
from the right to hold elective public office those Philippine
citizens who possess dual loyalties and allegiance. The law has
reserved that privilege for its citizens who have cast their lot with
our country "without mental reservations or purpose of evasion."
The assumption is that those who are resident aliens of a foreign
country are incapable of such entire devotion to the interest and
welfare of their homeland for with one eye on their public duties
here, they must keep another eye on their duties under the laws of
the foreign country of their choice in order to preserve their status
as permanent residents thereof.
Miguel insists that even though he applied for immigration and
permanent residence in the United States, he never really
intended to live there permanently, for all that he wanted was a
green card to enable him to come and go to the U.S. with ease. In
other words, he would have this Court believe that he applied for
immigration to the U.S. under false pretenses; that all this time
he only had one foot in the United States but kept his other foot in
the Philippines. Even if that were true, this Court will not allow
itself to be a party to his duplicity by permitting him to benefit
from it, and giving him the best of both worlds so to speak.
Miguel's application for immigrant status and permanent
residence in the U.S. and his possession of a green card attesting
to such status are conclusive proof that he is a permanent resident
of the U.S. despite his occasional visits to the Philippines. The
waiver of such immigrant status should be as indubitable as his
application for it. Absent clear evidence that he made an
irrevocable waiver of that status or that he surrendered his green
card to the appropriate U.S. authorities before he ran for mayor of
Bolinao in the local elections on January 18, 1988, our conclusion
is that he was disqualified to run for said public office, hence, his
election thereto was null and void.
Marquez v. COMELEC (1995)
Facts:

It is averred that at the time respondent Rodriguez filed

his certificate of candidacy, a criminal charge against him for ten

counts of insurance fraud or grand theft of personal property was
still pending before the Municipal Court of Los Angeles, USA. A
warrant issued by said court for his arrest, it is claimed, has yet to
be served on private respondent on account of his alleged flight
from that country.
Before the May 1992 elections, a petition for cancellation of
respondents certificate of candidacy on the ground of the
candidates disqualification was filed by petitioner, but COMELEC
dismissed the petition.
Private respondent was proclaimed Governor-elect of Quezon.
Petitioner instituted quo warranto proceedings against private
respondent before the COMELEC but the latter dismissed the
petition.
Issue:

Whether private respondent, who at the time of the

filing of his certificate of candidacy is said to be facing a criminal

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charge before a foreign court and evading a warrant of arrest

comes within the term fugitive from justice.
Held:

The Supreme Court ruled that Article 73 of the Rules

and Regulations implementing the Local Government Code of

1991 provides:
Article 73. Disqualifications The following persons shall be
disqualified from running for any elective local position:
(a) xxxx
(e) Fugitives from justice in criminal or non-political cases here
or abroad. Fugitive from justice refers to a person who has been
convicted by final judgment.
It is clear from this provision that fugitives from justice refer only
to persons who has been convicted by final judgment.
However, COMELEC did not make any definite finding on whether
or not private respondent is a fugitive from justice when it
outrightly denied the petition for quo warranto. The Court opted
to remand the case to COMELEC to resolve and proceed with the
case.
The Oversight Committee evidently entertained serious
apprehensions on the possible constitutional infirmity of Section
40(e) of RA 7160 if the disqualification therein meant were to be so
taken as to embrace those who merely were facing criminal
charges. A similar concern was expressed by Senator R. A. V.
Saguisag who, during the bicameral conference committee of the
Senate and the House of Representatives, made this
reservation: . . . de ipa-refine lang natin 'yung language especially
'yung, the scope of fugitive. Medyo bothered ako doon, a.
The Oversight Committee finally came out with Article 73 of the
Rules and Regulations Implementing the Local Government Code
of 1991. It provided:
Art. 73. Disqualifications.
The following persons shall be
disqualified from running for any elective local position:
(e) Fugitives from justice in criminal or non-political cases here or
abroad. Fugitive from justice refers to a person who has been
convicted by final judgment.
Private respondent reminds us that the construction placed upon
law by the officials in charge of its enforcement deserves great and
considerable weight . The Court certainly agrees; however, when
there clearly is no obscurity and ambiguity in an enabling law, it
must merely be made to apply as it is so written. An
administrative rule or regulation can neither expand nor constrict
the law but must remain congruent to it. The Court believes and
thus holds, albeit with some personal reservations of the ponente,
that Article 73 of the Rules and Regulations Implementing the
Local Government Code of 1991, to the extent that it confines the
term "fugitive from justice" to refer only to a person (the fugitive)
"who has been convicted by final judgment." is an inordinate and
undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding
on whether or not, in fact, private respondent is a "fugitive from
justice" as such term must be interpreted and applied in the light
of the Court's opinion. The omission is understandable since the
COMELEC dismissed outrightly the petition for quo warranto on
the basis instead of Rule 73 of the Rules and Regulations
promulgated by the Oversight Committee. The Court itself, not

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being a trier of facts, is thus constrained to remand the case to the

COMELEC for a determination of this unresolved factual matter.
Davide, Concurring. The term "fugitive from justice" refers not
only to those who flee after conviction to avoid punishment but
also to those who, after being charged, flee to avoid prosecution. In
his ponencia, Mr. Justice Jose C. Vitug finds the definition given to
it by the Oversight Committee, i.e., "a person who has been
convicted by final judgment," as appearing in Article 73 of the
Rules and Regulations Implementing the Local Government Code
of 1991, as inordinate and as undue circumscription of the law. I
agree. But this is only one side of the coin. I further submit that it
also unreasonably expands the scope of the disqualification in the
1991 Local Government Code because it disqualifies all those who
have been convicted by final judgment, regardless of the extent of
the penalty imposed and of whether they have served or are
serving their sentences or have evaded service of sentence by
jumping bail or leaving for another country. The definition thus
disregards the true and accepted meaning of the word fugitive.
This new definition is unwarranted for nothing in the legislative
debates has been shown to sustain it and the clear language of the
law leaves no room for a re-examination of the meaning of the
term.
I do not share the doubt of Mr. Justice Vitug on the
constitutionality of the disqualification based on the presumption
of innocence clause of the Bill of Rights. There are certain
fundamental considerations which do not support the applications
of the presumption
Firstly, Section 1, Article V of the Constitution recognizes the
authority of Congress to determine who are disqualified from
exercising the right of suffrage. Since the minimum requirement
of a candidate for a public office is that he must be a qualified
voter, it logically follows that Congress has the plenary power to
determine who are disqualified to seek election for a public office.
Secondly, a public office is a public trust. Thirdly, the
disqualification in question does not, in reality, involve the issue of
presumption of innocence. Elsewise stated, one is not disqualified
because he is presumed guilty by the filing of an information or
criminal complaint against him. He is disqualified because he is a
"fugitive from justice," i.e., he was not brought within the
jurisdiction of the court because he had successfully evaded arrest;
or if he was brought within the jurisdiction of the court and was
tried and convicted, he has successfully evaded service of sentence
because he had jumped bail or escaped. The disqualification then
is based on his flight from justice. In the face of the settled
doctrine that flight is an indication of guilt, it may even be truly
said that it is not the challenged disqualifying provision which
overcomes the presumption of innocence but rather the
disqualified person himself who has proven his guilt.

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justice. Private respondent revealed that a charge for fraudulent

insurance claims, grand theft and attempted grand theft of
personal property is pending against the petitioner before the Los
Angeles Municipal Court. Rodriguez is therefore a fugitive from
justice which is a ground for his disqualification/ ineligibility
under Section 40 (e) of the Local Government Code according to
Marquez.
Rodriguez, however, submitted a certification from the
Commission of Immigration showing that Rodriguez left the US
on June 25, 1985- roughly five (5) months prior to the institution
of the criminal complaint filed against him before the Los Angeles
Court.
The COMELEC complied therewith by filing before the Court, on
December 26, 1995, a report entitled "'EVIDENCE OF THE
PARTIES and COMMISSION'S EVALUATION" wherein the
COMELEC, after calibrating the parties' evidence, declared that
Rodriguez is NOT a "fugitive from justice" as defined in the main
opinion in the MARQUEZ Decision, thus making a 180-degree
turnaround from its finding in the Consolidated Resolution. In
arriving at this new conclusion, the COMELEC opined that intent
to evade is a material element of the MARQUEZ Decision
definition. Such intent to evade is absent in Rodriguez' case
because evidence has established that Rodriguez arrived in the
Philippines long before the criminal charge was instituted in the
Los Angeles Court.
But the COMELEC report did not end there. The poll body
expressed what it describes as its "persistent discomfort" on
whether it read and applied correctly the MARQUEZ Decision
definition of "fugitive from justice".
Issue:

Whether or not Rodriguez is a fugitive from justice.

Held:

No. The Supreme Court reiterated that a fugitive from

justice includes not only those who flee after conviction to avoid
punishment but likewise who, being charged, flee to avoid
prosecution. The definition thus indicates that the intent to evade
is the compelling factor that animates ones flight from a
particular jurisdiction. And obviously, there can only be an intent
to evade prosecution or punishment when there is knowledge by
the fleeing subject of an already instituted indictment or of a
promulgated judgement of conviction.

Rodriguez v. COMELEC (1996)

The definition thus indicates that the intent to evade is the

compelling factor that animates one's flight from a particular
jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment when there is knowledge by the fleeing
subject of an already instituted indictment, or of a promulgated
judgment of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute
that his arrival in the Philippines from the US on June 25, 1985,
as per certifications issued by the Bureau of Immigrations dated

Facts:

April 27

The petitioner Eduardo T. Rodriguez was a candidate for

Governor in the Province of Quezon in the May 8, 1995 elections.

His rival candidate for the said position was Bienvenido O.
Marquez, Jr., herein private respondent. Private respondent filed
a petition for disqualification before the COMELEC based
principally on the allegation that Rodriguez is a fugitive from

and June 26 of 1995, preceded the filing of the felony

complaint in the Los Angeles Court on November 12, 1985 and of

the issuance on even date of the arrest warrant by the same
foreign court, by almost five (5) months. It was clearly impossible
for Rodriguez to have known about such felony complaint and
arrest warrant at the time he left the US, as there was in fact no

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complaint and arrest warrant much less conviction to speak of yet

at such time. What prosecution or punishment then was
Rodriguez deliberately running away from with his departure
from the US? The very essence of being a "fugitive from justice"
under the MARQUEZ Decision definition, is just nowhere to be
found in the circumstances of Rodriguez.
The circumstantial fact that it was 17 days after Rodriguez'
departure that charges against him were filed cannot overturn the
presumption of good faith in his favor. The same suggests nothing
more than the sequence of events which transpired. A subjective
fact as that of petitioner's purpose cannot be inferred from the
objective data at hand in the absence of further proof to
substantiate such claim. In fact, the evidence of Rodriguez
sufficiently proves that his compulsion to return to the Philippines
was due to his desire to join and participate vigorously in the
political campaigns against former President Marcos. For indeed,
not long after petitioner's arrival in the country, the upheaval
wrought by the political forces and the avalanche of events which
occurred resulted in one of the more colorful events in the
Philippine history. And being a figure in these developments,
Rodriguez began serving his home province as OIC-Board Member
of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he
was elected Governor in 1988 and continues to be involved in
politics in the same capacity as re-elected Governor in 1992 and
the disputed re-election in 1995. Altogether, these landmark dates
hem in for petitioner a period of relentless, intensive and extensive
activity of varied political campaigns first against the Marcos
government, then for the governorship. And serving the people of
Quezon province as such, the position entails absolute dedication
of one's time to the demands of the office.
Having established petitioner's lack of knowledge of the charges to
be filed against him at the time he left the United States, it
becomes immaterial under such construction to determine the
exact time when he was made aware thereof. While the law, as
interpreted by the Supreme Court, does not countenance flight
from justice in the instance that a person flees the jurisdiction of
another state after charges against him or a warrant for his arrest
was issued or even in view of the imminent filing and issuance of
the same, petitioner's plight is altogether a different situation.
When, in good faith, a person leaves the territory of a state not his
own, homeward bound, and learns subsequently of charges filed
against him while in the relative peace and service of his own
country, the fact that he does not subject himself to the
jurisdiction of the former state does not qualify him outright as a
fugitive from justice.
However, Marquez and the COMELEC seem to urge the
Court to re-define "fugitive from justice". They espouse the broader
concept of the term and culled from foreign authoritie scited in the
MARQUEZ Decision itself, i.e., that one becomes a "fugitive from
justice" by the mere fact that he leaves the jurisdiction where a
charge is pending against him, regardless of whether or not the
charge has already been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the
Court to craft an expanded re-definition of "fugitive from justice"
(which is at variance with the MARQUEZ Decision) and proceed
therefrom in resolving the instant petition. The various definitions
of that doctrine have been laid down in People v. Pinuila. To

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elaborate, the same parties (Rodriguez and Marquez) and issue

(whether or not Rodriguez is a "fugitive from justice") are involved
in the MARQUEZ Decision and the instant petition. The
MARQUEZ Decision was an appeal from EPC No. 92-28 (the
Marquez' quo warranto petition before the COMELEC). The
instant petition is also an appeal from EPC No. 92-28 although
the COMELEC resolved the latter jointly with SPA No. 95-089
(Marquez' petition for the disqualification of Rodriguez).
Therefore, what was irrevocably established as the controlling
legal rule in the MARQUEZ Decision must govern the instant
petition. And we specifically refer to the concept of "fugitive from
justice" as defined in the main opinion in the MARQUEZ Decision
which highlights the significance of an intent to evade but which
Marquez and the COMELEC, with their proposed expanded
definition, seem to trivialize. Besides, to re-define "fugitive from
justice" would only foment instability in our jurisprudence when
hardly has the ink dried in the MARQUEZ Decision.
Torres, Jr: Petitioner returned to the Philippines from the United
States on June 25, 1985 while the criminal complaint against him
for fraudulent insurance claims, grand theft and attempted grand
theft of personal property was filed almost 5 months later, or on
November 12, 1985. Verily, it cannot be said that he fled to avoid
prosecution for at the time he left the United States, there was yet
no case or prosecution to avoid. That petitioner did not know of the
imminent filing of charges against him and that he did not flee to
avoid prosecution are bolstered by the facts that: 1.) he returned to
the United States twice: on August 14 and October 7 of the same
year but arrived in the Philippines on October 26 likewise in the
same year; 2.) he left his wife in the United States; and 3.) his wife
was later on arrested for the same charges. Had petitioner been
aware of the imminent filing of charges against him, he would
never have returned to the United States and he would not have
left his wife in there.
Petitioner is a citizen of this country. Why should he not come
home? Coming home to the Philippines was the most natural act
of the petitioner, who happens to maintain his residence in the
country. The fact that he remains here even after he was formally
accused cannot be construed as an indication of an intent to flee,
there being no compelling reason for him to go to the United
States and face his accusers. On the contrary, it is his official duty,
as an incumbent Governor of Quezon, to remain in the country
and perform his duties as the duly elected public official.
"Fugitive from justice" must be given a meaning in the instant
case having regard to "the circumstances and the time it is used."
Philosophers and jurists have tried unsuccessfully at an exact
definition of such an abstruse term as justice. Unfortunately,
whether in the metaphysical sense or otherwise, the question of
justice is still unanswered as it ever was albeit characterized by
secular skepticism. If the question is asked: What standard of
justice should we enforce? The American sense of justice or the
Philippine sense of justice? Undoubtedly, the forum in which it is
raised should be controlling. By way only of hypothesis, if an
American flees to escape from Philippine Laws to the United
States, may we enforce in the United States our standard of
justice based on Philippine Laws? I am tempted to ask these

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questions considering our zealousness to solve legal problems in

the light of laws obtaining in the United States.
At any rate, an accused charged with a crime in the Philippines
cannot be a candidate and at the same time flee from prosecution.
Once he goes campaigning his opponent would have him arrested.
For this and the reasons above discussed, the provision on
disqualification of fugitive from justice, being unnecessary and
serving only to undermine one's constitutional right to equal
access to opportunities for public service, should even be scantily
considered.
Finally, petitioner appears to have garnered 285,202 votes.
According to the election results, petitioner won over private
respondent by a majority of 140,000 votes more or less. As it is, to
disqualify petitioner on the shaky ground of being a "fugitive from
justice" would amount to disenfranchising the electorate in whom
sovereignty resides.
De la Torre v. COMELEC (1996)
Facts:

Rolando P. Dela Torre filed an instant petition for

certiorari seeks the nullification of resolutions issued by the

Commission on Elections (COMELEC) allegedly with grave abuse
of discretion amounting to lack of jurisdiction in a case for
disqualification filed against him before the COMELEC. The first
assailed resolution dated 6 May 1995 declared dela Torre
disqualified from running for the position of Mayor of Cavinti,
Laguna in the 8 May 1995 elections, citing as the ground therefor,
Section 40(a) of RA 7160 (i.e. Those sentenced by final judgment
for an offense involving moral turpitude or for an offense
punishable by 1 year or more of imprisonment within 2 years after
serving sentence); the other is the denial of the motion for
reconsideration.
Issue:

Whether the crime of fencing involves moral turpitude

Held:

A crime involving moral turpitude is one which is an act

of baseness, vileness, or depravity in the private duties which a

man owes his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man and
woman or conduct contrary to justice, honesty, modesty, or good
morals. The elements of the crime of fencing (as gleaned from the
definition of fencing in Section 2 of PD 1612, Anti-fencing Law)
are: (1) A crime of robbery or theft has been committed; (2) The
accused who is not a principal or accomplice in the crime of
robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of value, which have
been deprived from the proceeds of the said crime; (3) The accused
knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime
of robbery or theft; and (4) There is, on the part of the accused,
intent to gain for himself or for another. Moral turpitude is
deducible from the third element. Actual knowledge by the fence
of the fact that property received is stolen displays the same
degree of malicious deprivation of ones rightful property as that
which animated the robbery or theft which, by their very nature,
are crimes of moral turpitude. Thus, the COMELEC did not err in
disqualifying the petitioner on the ground that the offense of

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fencing of which he had been previously convicted by final

judgment was one involving moral turpitude.
Moral turpitude is deducible from the third element. Actual
knowledge by the fence of the fact that good morals. The duty
not to appropriate, or to return, anything acquired either by
mistake or with malice is so basic it finds expression in some key
provisions of the Civil Code on Human Relations and Solutio
Indebiti.
Verily, circumstances normally exist to forewarn, for instance, a
reasonably vigilant buyer that the object of the property received
is stolen displays the same degree of malicious deprivation of ones
rightful property as that which animated the robbery or theft
which, by their very nature, are crimes of moral turpitude. And
although the participation of each felon in the unlawful taking
differs in point in time and in degree, both the fence and the
actual perpetrator/s of the robbery or theft invaded ones peaceful
dominion for gain - thus deliberately reneging in the process
private duties they owe their fellowmen or society in a manner
contrary to x x x accepted and customary rule of right and duty x x
x, justice, honesty x x x or
sale may have been derived from the proceeds of robbery or theft.
Such circumstances include the time and place of the sale, both of
which may not be in accord with the usual practices of commerce.
The nature and condition of the goods sold, and the fact that the
seller is not regularly engaged in the business of selling goods may
likewise suggest the illegality of their source, and therefore should
caution the buyer. This justifies the presumption found in Section
5 of P.D. No. 1612 that mere possession of any goods, x x x, object
or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing- a presumption
that is, according to the Court, reasonable for no other natural or
logical inference can arise from the established fact of x x x
possession of the proceeds of the crime of robbery or theft. All told,
the COMELEC did not err in disqualifying the petitioner on the
ground that the offense of fencing of which he had been previously
convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his
probation had the effect of suspending the applicability of Section
40 (a) of the Local Government Code, suffice it to say that the legal
effect of probation is only to suspend the execution of the sentence.
Petitioners conviction of fencing which we have heretofore
declared as a crime of moral turpitude and thus falling squarely
under the disqualification found in Section 40 (a), subsists and
remains totally unaffected notwithstanding the grant of
probation. In fact, a judgment of conviction in a criminal case ipso
facto attains finality when the accused applies for probation,
although it is not executory pending resolution of the application
for probation. Clearly then, petitioners theory has no merit.
Magno v. COMELEC (2002)
Facts: This is a petition for the disqualification of Nestor Magno
as mayoralty candidate of San Isidro, Nueva Ecija during the May
14, 2001 elections on the ground that petitioner was previously
convicted by the Sandiganbayan of four counts of direct bribery.
Thereafter, petitioner applied for probation and was discharged on
March 5, 1998 upon order of the Regional Trial Court of Gapan,

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Nueva Ecija. The Comelec ruled that petitioner was disqualified

from running for the position of mayor by virtue of Section 12 of
BP 881 (Omnibus Election Code) (crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon, or granted
amnesty.) According to the COMELEC, inasmuch as petitioner
was considered to have completed the service of his sentence on
March 5, 1998, his five-year disqualification will end only on
March 5, 2003. The MR was denied the by Comelec.

offender takes advantage of his office and position is a betrayal of

the trust reposed on him by the public. It is a conduct clearly
contrary to the accepted rules of right and duty, justice, honesty
and good morals. In all respects, direct bribery is a crime
involving moral turpitude.

Issue:
Held:
Ratio:

WON direct bribery is a crime involving moral turpitude

Yes
Petitioner argues that direct bribery is not a crime

involving moral turpitude. Likewise, he cites Section 40 of RA

7160, which he claims is the law applicable to the case at bar, not
BP 881 or the Omnibus Election Code as claimed by the
COMELEC. Said provision reads: Section 40. Disqualifications. The following persons are disqualified from running for any
elective local position: (a) Those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years after
serving sentence.
Petitioner insists that he had already served his sentence as of
March 5, 1998 when he was discharged from probation. Such
being the case, the two-year disqualification period imposed by
Section 40 of the Local Government Code expired on March 5,
2000. Thus, petitioner was qualified to run in the 2001 elections.
Moral turpitude is an act of baseness, vileness, or depravity in
the private duties which a man owes his fellow men, or to society in
general, contrary to the accepted and customary rule of right and
duty between man and woman or conduct contrary to justice,
honesty, modesty, or good morals.
Not every criminal act, however, involves moral turpitude. It
frequently depends on the circumstances surrounding the
violation of the law. In this case, we need not review the facts and
circumstances relating to the commission of the crime considering
that petitioner did not assail his conviction. By applying for
probation, petitioner in effect admitted all the elements of the
crime of direct bribery:
the offender is a public officer;
the offender accepts an offer or promise or receives a gift or present
by himself or through another;
such offer or promise be accepted or gift or present be received by
the public officer with a view to committing some crime, or in
consideration of the execution of an act which does not constitute a
crime but the act must be unjust, or to refrain from doing
something which it is his official duty to do; and
the act which the offender agrees to perform or which he executes is
connected with the performance of his official duties.
Moral turpitude can be inferred from the third element. The fact
that the offender agrees to accept a promise or gift and
deliberately commits an unjust act or refrains from performing an
official duty in exchange for some favors, denotes a malicious
intent on the part of the offender to renege on the duties which he
owes his fellowmen and society in general. Also, the fact that the

Issue:

What law should apply in this case

Held:

Local Government Code

Ratio:

It is the second sub-issue which is problematical. There

appears to be a glaring incompatibility between the five-year

disqualification period provided in Section 12 of the Omnibus
Election Code and the two-year disqualification period in Section
40 of the Local Government Code.
It should be noted that the Omnibus Election Code (BP 881) was
approved on December 3, 1985 while the Local Government Code
(RA 7160) took effect on January 1, 1992. It is basic in statutory
construction that in case of irreconcilable conflict between two
laws, the later enactment must prevail, being the more recent
expression of legislative will. Legis posteriores priores contrarias
abrogant. In enacting the later law, the legislature is presumed to
have knowledge of the older law and intended to change it.
Furthermore, the repealing clause of Section 534 of RA 7160 or
the Local Government Code states that: (f) All general and special
laws, acts, city charters, decrees, executive orders, proclamations
and administrative regulations, or part or parts thereof which are
inconsistent with any provisions of this Code are hereby repealed or
modified accordingly.
In accordance therewith, Section 40 of RA 7160 is deemed to have
repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil
Code provides that laws are repealed only by subsequent ones, and
not the other way around. When a subsequent law entirely
encompasses the subject matter of the former enactment, the
latter is deemed repealed.
The intent of the legislature to reduce the disqualification period
of candidates for local positions from five to two years is evident.
The cardinal rule in the interpretation of all laws is to ascertain
and give effect to the intent of the law. The reduction of the
disqualification period from five to two years is the manifest
intent. Therefore, although his crime of direct bribery involved
moral turpitude, petitioner nonetheless could not be disqualified
from running in the 2001 elections. Article 12 of the Omnibus
Election Code (BP 881) must yield to Article 40 of the Local
Government Code (RA 7160). Petitioners disqualification ceased
as of March 5, 2000 and he was therefore under no such
disqualification anymore when he ran for mayor of San Isidro,
Nueva Ecija in the May 14, 2001 elections.
Unfortunately, however, neither this Court nor this case is the
proper forum to rule on (1) the validity of Sonia Lorenzos
proclamation and (2) the declaration of petitioner as the rightful
winner. Inasmuch as Sonia Lorenzo had already been proclaimed
as the winning candidate, the legal remedy of petitioner would
have been a timely election protest.
Lingating v. COMELEC (2002)

93 | L o c a l
Facts:

Government

(Guanzon)

Petitioner filed a petition for the disqualification of

Sulong, pursuant to 40(b) of RA 7160 which disqualifies from

running for any elective local position those removed from office
as a result of an administrative case. It appears that Sulong had
previously won as mayor of Lapuyan on January 18, 1988. In the
May 11, 1992, and again in the May 8, 1995 elections, he was
reelected. In a petition for disqualification, petitioner alleged that
in 1991, during his first term as mayor of Lapuyan, Sulong, along
with a municipal councilor of Lapuyan and several other
individuals, was administratively charged with various offenses,
and that, on February 4, 1992, the Sangguniang Panlalawigan of
Zamboanga del Sur found him guilty of the charges and ordered
his removal from office. Petitioner claimed that this decision had
become final and executory, and consequently the then vice-mayor
of Lapuyan, Vicente Imbing, took his oath as mayor.
The comelec was unable to render judgment before the elections,
Rulong was voted for in the elections and he won as mayor. The
comelec then rendered a decision declaring Sulong disqualified as
he was guilty of violating the Anti Graft and Corrupt Practices
Act. Sulong filed an MR contending that the decision has not
become final and executor as the final disposition thereof was
overtaken by the local elections of May 1992.
The comelec en banc, however, reversed. It ruled that while it is
true that one of the disqualifications from running in an elective
position is removal from office as a result of an administrative
case, said provision no longer applies if the candidate whose
qualification is questioned got re-elected to another term. The reelection of Sulong in the 1992 and 1995 elections would be
tantamount to a condonation of the Sangguniang Panlalawigan
decision which found him guilty of dishonesty, malversation of
public funds etc[.], granting said decision has become final and
executory.
Moreover, the people of LAPUYAN have already expressed their
will when they cast their votes in the recent elections as evidenced
by the results which found respondent Sulong to have won
convincingly.
Issue:

WON Sulong was entitled to occupy the office thus

vacated
Held:

Yes

Ratio:

We stated in Reyes: Petitioner invokes the ruling in

Aguinaldo v. COMELEC, in which it was held that a public official

could not be removed for misconduct committed during a prior
term and that his reelection operated as a condonation of the
officers previous misconduct to the extent of cutting off the right
to remove him therefor. But that was because in that case, before
the petition questioning the validity of the administrative decision
removing petitioner could be decided, the term of office during
which the alleged misconduct was committed expired. Removal
cannot extend beyond the term during which the alleged
misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he
is thereafter reelected [for] another term. This is the rationale for
the ruling in the two Aguinaldo cases.

S . Y.

08-09:

2nd

Sem.

The case at bar is the very opposite of those cases. Here, the
decision in the administrative case, was served on petitioner and
it thereafter became final on April 3, 1995, because petitioner
failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40(b) of the Local
Government Code, he was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided
there was no provision similar to 40(b) which disqualifies any
person from running for any elective position on the ground that
he has been removed as a result of an administrative case. The
Local Government Code of 1991 (R.A. No. 7160) could not be given
retroactive effect.
However, Reyes cannot be applied to this case because it appears
that the 1992 decision of the Sangguniang Panlalawigan, finding
respondent Sulong guilty of dishonesty, falsification and
malversation of public funds, has not until now become final. The
records of this case show that the Sangguniang Panlalawigan of
Zamboanga del Sur rendered judgment in AC No. 12-91 on
February 4, 1992, a copy of which was received by respondent
Sulong on February 17, 1992; that on February 18, 1992, he filed a
motion for reconsideration and/or notice of appeal; that on
February 27, 1992, the Sangguniang Panlalawigan, required Jim
Lingating, the complainant in AC No. 12-91, to comment; and that
the complainant in AC No. 12-91 has not filed a comment nor has
the Sangguniang Panlalawigan resolved respondents motion. The
filing of his motion for reconsideration prevented the decision of
Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing
of a motion for reconsideration, the same cannot be interpreted as
a prohibition against the filing of a motion for reconsideration.
Thus, it was held that a party in a disbarment proceeding under
Rule 139-B, 12(c) can move for a reconsideration of a resolution of
the Integrated Bar of the Philippines although Rule 139-B does
not so provide: Although Rule 139-B, 12(c) makes no mention of a
motion for reconsideration, nothing in its text or history suggests
that such motion is prohibited. It may therefore be filed . . . .
Indeed, the filing of such motion should be encouraged before [an
appeal is] resort[ed] to . . . as a matter of exhaustion of
administrative remedies, to afford the agency rendering the
judgment [an] opportunity to correct any error it may have
committed through a misapprehension of facts or misappreciation
of evidence.
There is thus no decision finding respondent guilty to speak of. As
Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca
attested, the Sangguniang Panlalawigan simply considered the
matter as having become moot and academic because it was
overtaken by the local elections of May [11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan,
Vicente Imbing, and the highest ranking municipal councilor of
Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor,
respectively, be considered proof that the decision in AC No. 12-91
had become final because it appears to have been made pursuant
to 68 of the Local Government Code, which makes decisions in
administrative cases immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan
to resolve respondents motion, it is unfair to the electorate to be
told after they have voted for respondent Sulong that after all he

94 | L o c a l

Government

(Guanzon)

is disqualified, especially since, at the time of the elections on May

14, 2001, the decision of the Sangguniang Panlalawigan had been
rendered nearly ten years ago.
Flores v. Drilon (1998)
Facts:

The constitutionality of Sec. 13, par. (d), of R.A. 7227,

otherwise known as the "Bases Conversion and Development Act

of 1992," under which Mayor Richard J. Gordon of Olongapo City
was appointed Chairman and Chief Executive Officer of the Subic
Bay Metropolitan Authority (SBMA), is challenged in this original
petition with prayer for prohibition, preliminary injunction and
temporary restraining order. Under said provision, for the first
year of its operations from the effectivity of this Act, the mayor of
the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority.
Petitioners, as taxpayers, contend that said provision is
unconstitutional as under the following constitutional and
statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be
eligible for appointment or designation in any capacity to any
public officer or position during his tenure," because the City
Mayor of Olongapo City is an elective official and the subject posts
are public offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall appoint all other officers of the
Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint",
since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts; and, (c)
Sec. 261, par. (g), of the Omnibus Election Code.
Issue:

WON the proviso in Sec. 13, par. (d), of R.A. 7227

violates the constitutional proscription against appointment or

designation of elective officials to other government posts
Held:

Yes

Ratio:

The rule expresses the policy against the concentration

of several public positions in one person, so that a public officer or

employee may serve full-time with dedication and thus be efficient
in the delivery of public services. It is an affirmation that a public
office is a full-time job. Hence, a public officer or employee, like the
head of an executive department described in Civil Liberties
Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft
League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary
of Agrarian Reform, G.R. No. 83815, should be allowed to attend to
his duties and responsibilities without the distraction of other
governmental duties or employment. He should be precluded from
dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and
inefficiency.
In the case before us, the subject proviso directs the President to
appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief
Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no stretching
of the imagination to conclude that the proviso contravenes Sec. 7,
first par., Art. IX-B, of the Constitution. Here, the fact that the

S . Y.

08-09:

2nd

Sem.

expertise of an elective official may be most beneficial to the

higher interest of the body politic is of no moment.
It is argued that Sec. 94 of the LGC permits the appointment of a
local elective official to another post if so allowed by law or by the
primary functions of his office. But, the contention is fallacious.
Section 94 of the LGC is not determinative of the constitutionality
of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail
over the fundamental law of the land. Moreover, since the
constitutionality of Sec. 94 of LGC is not the issue here nor is that
section sought to be declared unconstitutional, we need not rule on
its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to
another post if allowed by law or by the primary functions of his
office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the
second paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary
functions of his position, the first paragraph appears to be more
stringent by not providing any exception to the rule against
appointment or designation of an elective official to the
government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and
planning agency; the Vice-President, who may be appointed
Member of the Cabinet; and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council.
It is further argued that the SBMA posts are merely ex officio to
the position of Mayor of Olongapo City, hence, an excepted
circumstance, citing Civil Liberties Union v. Executive Secretary,
where we stated that the prohibition against the holding of any
other office or employment by the President, Vice-President,
Members of the Cabinet, and their deputies or assistants during
their tenure, as provided in Sec. 13, Art. VII, of the Constitution,
does not comprehend additional duties and functions required by
the primary functions of the officials concerned, who are to perform
them in an ex officio capacity as provided by law, without receiving
any additional compensation therefor. This argument is
apparently based on a wrong premise. Congress did not
contemplate making the subject SBMA posts as ex officio or
automatically attached to the Office of the Mayor of Olongapo City
without need of appointment. The phrase "shall be appointed"
unquestionably shows the intent to make the SBMA posts
appointive and not merely adjunct to the post of Mayor of
Olongapo City. Had it been the legislative intent to make the
subject positions ex officio, Congress would have, at least, avoided
the word "appointed" and, instead, "ex officio" would have been
used. Even in the Senate deliberations, the Senators were fully
aware that subject proviso may contravene Sec. 7, first par., Art.
IX-B, but they nevertheless passed the bill and decided to have the
controversy resolved by the courts. Indeed, the Senators would not
have been concerned with the effects of Sec. 7, first par., had they
considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the
subject proviso was stated, Senator Rene Saguisag remarked that
"if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative
choice."The Senator took a view that the constitutional

95 | L o c a l

Government

(Guanzon)

proscription against appointment of elective officials may have

been sidestepped if Congress attached the SBMA posts to the
Mayor of Olongapo City instead of directing the President to
appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the
posts to be appointive, thus nibbling in the bud the argument that
they are ex officio.
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d), itself
vests in the President the power to appoint the Chairman of the
Board and the Chief Executive Officer of SBMA, although he
really has no choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a
person, by the person or persons having authority therefor, to
discharge the duties of some office or trust," or "[t]he selection or
designation of a person, by the person or persons having authority
therefor, to fill an office or public function and discharge the duties
of the same. In his treatise, Philippine Political Law, Senior
Associate Justice Isagani A. Cruz defines appointment as "the
selection, by the authority vested with the power, of an individual
who is to exercise the functions of a given office." Considering that
appointment calls for a selection, the appointing power necessarily
exercises a discretion. Indeed, the power of choice is the heart of
the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the choice of
the appointee is a fundamental component of the appointing
power.
Hence, when Congress clothes the President with the power to
appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can
only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of appointment.
In the case at bar, while Congress willed that the subject posts be
filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227, the proviso
nevertheless limits the appointing authority to only one eligible,
i.e., the incumbent Mayor of Olongapo City. Since only one can
qualify for the posts in question, the President is precluded from
exercising his discretion to choose whom to appoint. Such
supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of
appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations of
SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify.

S . Y.

08-09:

2nd

Sem.

Where, as in the case of Gordon, an incumbent elective official

was, notwithstanding his ineligibility, appointed to other
government posts, he does not automatically forfeit his elective
office nor remove his ineligibility imposed by the Constitution. On
the contrary, since an incumbent elective official is not eligible to
the appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of eligibility.
As incumbent elective official, respondent Gordon is ineligible for
appointment to the position of Chairman of the Board and Chief
Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his
acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those of a
lawful officer, the law, upon principles of policy and justice, will
hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . . under
color of a known election or appointment, void because the officer
was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power or
defect being unknown to the public . . . . [or] under color of an
election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such.
Election Cases Involving Local Elective Officials
Galido v. COMELEC (1991)
Facts:

Galido and private respondent Galeon were candidates

during the January 1988 local elections for mayor of GarciaHernandez, Bohol. Petitioner was proclaimed the duly-elected
Mayor. Private respondent filed an election protest before the
RTC. After hearing, the said court upheld the proclamation of
petitioner. Private respondent appealed the RTC decision to the
COMELEC. Its First Division reversed the RTC decision and
declared private respondent the duly-elected mayor. After the
COMELEC en banc denied the petitioners motion for
reconsideration and affirmed the decision of its First Division. The
COMELEC held that the fifteen (15) ballots in the same precinct
containing the initial C after the name Galido were marked
ballots and, therefore, invalid.
Undaunted by his previous failed actions the petitioner filed the
present petition for certiorari and injunction before the Supreme
Court and succeeded in getting a temporary restraining order. In
his comment to the petition, private respondent moved for
dismissal, citing Article IX (C), Section 2(2), paragraph 2 of the
1987 Constitution, that Final decisions, orders or rulings of the
COMELEC in election contests involving elective municipal offices
are final and executory, and not appealable.
Issue:

Whether or not a COMELEC decision may, if it sets

aside the trial courts decision involving marked ballots, be

brought to the Supreme Court by a petition for certiorari by the
aggrieved party?
Held:

Yes

96 | L o c a l
Ratio:

Government

(Guanzon)

The fact that decisions, final orders or rulings of the

COMELEC in contests involving elective municipal and barangay

offices are final, executory and not appealable, does not preclude a
recourse to this Court by way of a special civil action of certiorari.
Under Article IX (A), Section 7 of the Constitution, which
petitioner cites, it is stated, Unless otherwise provided by this
Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari
by the aggrieved party within thirty days from receipt thereof. We
resolve this issue in favor of the petitioner.
The petition involves pure questions of fact as they relate to
appreciation of evidence (ballots) which is beyond the power of
review of this Court. The COMELEC found that the writing of the
letter "C" after the word "Galido" in the fifteen (15) ballots of
Precinct 14 is a clear and convincing proof of a pattern or design to
identify the ballots and/or voters. This finding should be
conclusive on the Court.
The Commission on Elections (COMELEC) has exclusive original
jurisdiction over all contests relating to the elections, returns, and
qualifications of all elective regional, provincial, and city officials
and has appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction or
involving elective barangay officials decided by trial courts of
limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of
the 1987 Constitution).
In the present case, after a review of the trial court's decision, the
respondent COMELEC found that fifteen (15) ballots in the same
precinct containing the letter "C" after the name Galido are clearly
marked ballots. May this COMELEC decision be brought to this
court by a petition for certiorari by the aggrieved party (the herein
petitioner)?
Under Article IX (A) Section 7 of the Constitution, which
petitioner cites in support of this petition, it is stated: "(U)nless
otherwise provided by this Constitution or by law, any decision,
order, or ruling of each (Constitutional) Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof."
On the other hand, private respondent relies on Article IX, (C),
Section 2(2), paragraph 2 of the Constitution which provides that
decisions, final orders, or rulings of the Commission on Elections
in contests involving elective municipal and barangay offices shall
be final, executory, and not appealable. (Emphasis supplied)
We resolve this issue in favor of the petitioner. The fact that
decisions, final orders or rulings of the Commission on Elections in
contests involving elective municipal and barangay offices are
final, executory and not appealable, does not preclude a recourse
to this Court by way of a special civil action of certiorari. The
proceedings in the Constitutional Commission on this matter are
enlightening.
We do not, however, believe that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in
rendering the questioned decision. It is settled that the function of
a writ of certiorari is to keep an inferior court or tribunal within
the bounds of its jurisdiction or to prevent it from committing a
grave abuse of discretion amounting to lack or excess of
jurisdiction.

S . Y.

08-09:

2nd

Sem.

As correctly argued by the COMELEC, it has the inherent power

to decide an election contest on physical evidence, equity, law and
justice, and apply established jurisprudence in support of its
findings and conclusions; and that the extent to which such
precedents apply rests on its discretion, the exercise of which
should not be controlled unless such discretion has been abused to
the prejudice of either party. Finally, the records disclose that
private respondent had already assumed the position of Mayor of
Garcia-Hernandez as the duly-elected mayor of the municipality
by virtue of the COMELEC decision. The main purpose of
prohibition is to suspend all action and prevent the further
performance of the act complained of. In this light, the petition at
bar has become moot and academic.
Rivera v. COMELEC (1991)
Facts:

Juan Garcia Rivera and Juan Mitre Garcia II were

candidates for the position of Mayor of Guinobatan, Albay, during

the local elections in January 1988. The Municipal Board of
Canvassers proclaimed Rivera as the duly elected Mayor by a
majority of 10 votes.
Garcia filed an election protest with the RTC, which rendered its
verdict finding Garcia to have obtained 6,376 votes as against
Rivera's 6,222. On appeal to the Comelec, the Comelec sustained
with modification the judgment. It ruled that Juan Garcia was the
duly elected municipal mayor by a majority of 153 votes over Juan
Rivera instead of plurality of 154 votes. Upon MR, the Comelec
affirmed the decision.
Garcia commenced to discharge the duties and functions of Mayor
of Guinobatan on 10 October 1990, by virtue of a writ of execution
implementing the COMELEC decision of 6 September 1990. He
continued as mayor until 10 November 1990 when he was served
notice of this Court's temporary restraining order, issued upon
Rivera's motion.
In this petition, Rivera prayed for the issuance of a restraining
order arguing that the judgment had not yet become final and
executory. He cites Article IX-C, Section 2, Par. (2) of the 1987
Constitution, in relation to Part VII, Rule 39, Section 1 of the
COMELEC Rules of Procedure. He also contends that since the
COMELEC decision has not yet become final and executory, the
COMELEC has no authority to issue the assailed order and writ
of execution. Petitioner maintains further that he has a period of
thirty (30) days from 6 September 1990 or until 6 October 1990
within which to elevate the COMELEC decision, on certiorari, to
this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules
of Procedure. He submits that the questioned COMELEC decision
is not one that became final and executory unless restrained by
this Court as provided under Section 3, Rule 39 of the COMELEC
Rules, as said rule applies only to "decisions in pre-proclamation
cases and petitions to deny due course or to disqualify a candidate,
and postpone or suspend elections." Lastly, according to petitioner,
Section 13(a) of Rule 18 (finality of Comelec decisions or
resolutions) and Section 1 of Rule 39 (review by the Supreme
Court of Comelec decisions, orders and rulings) of the COMELEC
Rules of Procedure, should be read in the context of Section 7,
Article IX-A of the Constitution (Supreme Court authority to
review on certiorari a Comelec decision, order or ruling).

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Government

(Guanzon)

Garcia contends that the Constitution declares that the Comelec

decision on election contests involving elective municipal and
barangay officials are to be final, executor and not appealable.
Issue:
WON the decisions of the COMELEC in election contests
involving elective municipal and barangay officials, being final and
executory and not appealable, preclude the filing of a special civil
action of certiorari
Held:

Yes

Ratio:
Under Article IX (A), Section 7 of the Constitution,
which petitioner cites in support of this petition, it is stated:
"(U)nless otherwise provided by the Constitution or by law, any
decision, order, or ruling of each (Constitutional) Commission may
be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof. On the
other hand, private respondent relies on Article IX, (C), Section 2
(2), paragraph 2 of the Constitution which provides that decisions,
final orders, or rulings of the Commission on Elections in contests
involving elective municipal and barangay offices shall be final,
executory and not appealable.
We resolve this issue in favor of the petitioner. The fact that
decisions, final orders or rulings of the Commission on Elections in
contests involving elective municipal and barangay offices are
final, executory and not appealable, does not preclude a recourse
to this Court by way of a special civil action of certiorari. The
proceedings in the Constitutional Commission on this matter are
enlightening.
Flores vs Comelec: Obviously, the provision of Article IX-C,
Section 2(2) of the Constitution that "decisions, final orders, or
rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not
appealable" applies only to questions of fact and not of law. That
provision was not intended to divest the Supreme Court of its
authority to resolve questions of law as inherent in the judicial
power conferred upon it by the Constitution. We eschew a literal
reading of that provision that would contradict such authority.
Actually, the main thrust of the present petition for certiorari is
that the COMELEC en banc committed grave abuse of discretion
when it affirmed the decision of its First Division, promulgated on
2 May 1990, annulling the proclamation of the petitioner as the
duly elected Mayor of Guinobatan, Albay and when it did not
exclude from the total votes of Garcia at least 10 votes which were
allegedly misappreciated in Garcia's favor.
We have closely scrutinized the challenged COMELEC decision
and find that the said decision was not arrived at capriciously or
whimsically by respondent COMELEC. A painstaking reevaluation of the questioned 67 ballots was made by the
COMELEC en banc. In fact, fourteen (14) ballots originally
adjudicated in Garcia's favor were overruled by the Commission
en banc, thus reducing the number of votes in his favor to 894
votes out of the 2,445 contested ballots. On the other hand, 16
ballots were added in Rivera's favor, thus increasing the votes in
his favor to 1,087 votes. Moreover, the appreciation and reevaluation of ballots are factual determinations. It is settled that
in a petition for certiorari, findings of fact of administrative bodies

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are final unless grave abuse of discretion has marred such factual
determinations. We find none in this case.
Regalado, concurring: What the foregoing observations actually
boil down to is that the decisions, orders, or rulings of said
constitutional commissions are not subject to appellate review,
that is, with this Court acting in the exercise of appellate
jurisdiction and exercising its power of review over alleged errors
of law and, sometimes, of fact or both. Such decisions, orders or
rulings are not, however, invulnerable to an original civil action of
certiorari, prohibition or mandamus invoking the original
jurisdiction of this Court, under its power of control and
supervision over the lower courts, to pass upon errors of
jurisdiction imputed to said commissions. This is inevitable and
justified because no appeal or any other plain, speedy or adequate
remedy in the ordinary course of law lies from said adjudications.
Narvasa, dissenting: It bears stressing that the final, executory
and unappealable character of the COMELEC's rulings, orders or
decisions in election contests involving elective municipal and
barangay offices, is pronounced not by statute or presidential
issuance, but by the Constitution itself. This is a relevant
consideration because while Congress is granted by Section 2,
Article VIII of the Constitution the "power to define, prescribe,
and apportion the jurisdiction of the various courts, . . . (it) may
not deprive the Supreme Court of its jurisdiction over cases
enumerated in Section 5" of the same Article VIII; and said
Section 5 declares it to be one of the powers of the Supreme Court
to "(r)eview, reverse, modify, or affirm on appeal or certiorari, as
the law or the Rules of Court may provide, final judgments and
orders of lower courts in . . . (specifically listed cases)." It is in
truth this fundamental limitation on the legislative prerogative to
"define, prescribe, and apportion the jurisdiction" of courts which
is, that the Supreme Court may not be deprived by law of
jurisdiction over certain particular cases that underlay this
Court's doctrines allowing review by the special civil action of
certiorari under Rule 65 of judgments and final orders of the
National Labor Relations Commission under the Labor Code, and
the Central Board of Assessment Appeals, from which no appeal is
prescribed by law.
It cannot be gainsaid however that while Congress may not
deprive the Supreme Court of its constitutionally stated powers,
that self-same Constitution may itself effect that deprivation; and
this appears to be precisely the purpose and intent of said Section
2, Article IX-C of the Constitution as written: to remove from this
Court's power to review, revise, reverse, modify, or affirm on
appeal or certiorari final judgments and orders of the COMELEC
in "election contests involving elective municipal and barangay
offices."
Rivera v. COMELEC (2007)
Facts: In the May 2004 Synchronized National and Local
Elections, Marino Morales ran as candidate
Mabalacat. On January 5, 2004, he filed his
Candidacy. On January 10, petitioners filed before
petition to cancel Morales certificate of candidacy

for mayor of
Certificate of
the Comelec a
on the ground

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that the was elected and had served three previous consecutive
terms as mayor of Mabalacat contrary to RA 43(b) of RA 7160.
Morales admitted that he was elected mayor of Mabalacat for the
term commencing July 1, 1995 to June 30, 1998 (first term) and
July 1, 2001 to June 30, 2004 (third term), but he served the
second term from July 1, 1998 to June 30, 2001 only as a
caretaker of the office or as a de facto officer because he was not
validly elected as his proclamation as mayor was declared void by
the RTC and thereafter, he was preventively suspended by the
ombudsman.
The Comelec ruled that Morales was disqualified to run for public
office. Morales MR was however granted. The Comelec ruled that
his proclamation before was void and that the discharge of the
duties is that of a de facto mayor.
In the other case filed by Anthony Dee: After Morales was
proclaimed as the duly elected mayor, Anthony Dee filed a petition
for quo warranto before the RTC. Dee reiterated the previous
arguments of petitioners. The RTC dismissed Dees petition for
quo warranto on the ground that Morales did not serve the threeterm limit since he was not the duly elected mayor of Mabalacat,
but Dee in the May 1998 elections for the term 1998 to 2001.
Comelec affirmed.
Issue:

WON Morales is disqualified from running for mayor

Held:

Yes

Ratio:

This Court, through Mr. Justice Cancio C. Garcia,

resolved the same issue in Ong v. Alegre with identical facts, thus:
For the three-term limit for elective local government officials to
apply, two conditions or requisites must concur, to wit: (1) that the
official concerned has been elected for three (3) consecutive terms
in the same local government post, and (2) that he has fully served
three (3) consecutive terms.
We hold that such assumption of office constitutes, for Francis,
service for the full term, and should be counted as a full term
served in contemplation of the three-term limit prescribed by the
constitutional and statutory provisions, supra, barring local
elective officials from being elected and serving for more than
three consecutive terms for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election
Protest Case No. 6850, that it was Francis opponent (Alegre) who
won in the 1998 mayoralty race and, therefore, was the legally
elected mayor of San Vicente. However, that disposition, it must
be stressed, was without practical and legal use and value, having
been promulgated after the term of the contested office has
expired. Petitioner Francis contention that he was only a
presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly
elected mayor. His proclamation by the Municipal Board of
Canvassers of San Vicente as the duly elected mayor in the 1998
mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of
the term, should legally be taken as service for a full term in
contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not
hard to discern. Such contrary view would mean that Alegre

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would-under the three-term rule-be considered as having served a

term by virtue of a veritably meaningless electoral protest ruling,
when another actually served such term pursuant to a
proclamation made in due course after an election.
It bears stressing that in Ong v. Alegre cited above, Francis Ong
was elected and assumed the duties of the mayor of San Vicente,
Camarines Norte for three consecutive terms.
But his
proclamation as mayor in the May 1998 election was declared void
by the RTC of Daet, Camarines Norte in its Decision dated July 4,
2001. As ruled by this Court, his service for the term 1998 to
2001 is for the full term.

Clearly, the three-term limit rule

applies to him. Indeed, there is no reason why this ruling should

not also apply to respondent Morales who is similarly situated.
Here, Morales invoked not only Lonzanida v. COMELEC, but also
Borja, Jr. v. Commission on Elections which is likewise
inapplicable. In Borja, the Court held that Capcos assumption of
the office of mayor upon the death of the incumbent may not be
regarded as a term under Section 8, Article X of the Constitution
and Section 43 (b) of R.A. No. 7160 (the Local Government Code).
He held the position from September 2, 1989 to June 30, 1992, a
period of less than three years. Moreover, he was not elected to
that position.
Similarly, in Adormeo v. COMELEC, this Court ruled that
assumption of the office of mayor in a recall election for the
remaining term is not the term contemplated under Section 8,
Article X of the Constitution and Section 43 (b) of R.A. No. 7160
(the Local Government Code). As the Court observed, there was a
break in the service of private respondent Ramon T. Talanga as
mayor. He was a private citizen for a time before running for
mayor in the recall elections.
Here, Morales was elected for the term July 1, 1998 to June 30,
2001. He assumed the position. He served as mayor until June
30, 2001. He was mayor for the entire period notwithstanding the
Decision of the RTC in the electoral protest case filed by petitioner
Dee ousting him (respondent) as mayor. To reiterate, as held in
Ong v. Alegre, such circumstance does not constitute an
interruption in serving the full term. Section 8, Article X of the
Constitution can not be more clear and explicitRespondent 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.
This Court reiterates that the framers of the Constitution
specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged
stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive
terms as municipal mayor would obviously defeat the very intent
of the framers when they wrote this exception. Should he be
allowed another three consecutive term as mayor of the City of
Digos, petitioner would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for
a total of eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not abhorred by it.

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This is the very situation in the instant case. Morales maintains

that he served his second term (1998 to 2001) only as a caretaker
of the office or as a de facto officer. Section 8, Article X of the
Constitution is violated and its purpose defeated when an official
serves in the same position for three consecutive terms. Whether
as caretaker or de facto officer, he exercises the powers and
enjoys the prerequisites of the office which enables him to stay on
indefinitely. Morales should be promptly ousted from the position
of mayor of Mabalacat.
Having found respondent Morales ineligible, his Certificate of
Candidacy dated December 30, 2003 should be cancelled. In the
light of the foregoing, Morales can not be considered a candidate
in the May 2004 elections. Not being a candidate, the votes cast
for him SHOULD NOT BE COUNTED and must be considered
stray votes.
Since respondent Morales is DISQUALIFIED from continuing to
serve as mayor of Mabalacat, the instant petition for quo warranto
has become moot.
Issue:

WON it is the vice-mayor or petitioner Dee who shall

serve for the remaining portion of the 2004 to 2007 term.

Held:

Yes

Ratio:

In Labo v. Comelec, this Court has ruled that a second

place candidate cannot be proclaimed as a substitute winner. As a

consequence of petitioners ineligibility, a permanent vacancy in
the contested office has occurred. This should now be filled by the
vice-mayor in accordance with Section 44 of the Local Government
Code.
Montebon v. Comelec ( 2008)
Facts:

Montebon, Ondoy and Potencioso, Jr. were candidates for

municipal councilor of the Municipality of Tuburan, Cebu for the

May 14, 2007 Elections. Petitioners and other candidates filed a
petition for disqualification against respondent with the
COMELEC alleging that respondent had been elected and served
three consecutive terms as municipal councilor in 1998-2001,
2001-2004, and 2004-2007. Thus, he is proscribed from running
for the same position in the 2007 elections as it would be his
fourth consecutive term. Respondent admitted having been
elected, but claimed that the service of his second term in 20012004 was interrupted on January 12, 2004 when he succeeded as
vice mayor of Tuburan due to the retirement of Vice Mayor
Petronilo L. Mendoza. Consequently, he is not disqualified from
vying for the position of municipal councilor in the 2007 elections.
Petitioners, on the other hand contended that voluntary
renunciation of the office shall not be considered an interruption
in the continuity of service for the full term for which the official
concerned was elected.
The comelec denied the petition for disqualification. On appeal,
the Comelec en banc affirmed and ruled that there was no
voluntary renunciation of office, but rather, an effective disruption
in the full service of his second term as councilor.

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WON respondent's assumption of office as vice-mayor in

January 2004 interrupted his 2001-2004 term as municipal

councilor.
Held:

Yes

Ratio:

In Lonzanida v. Commission on Elections the Court held

that the two conditions for the application of the disqualification

must concur: 1) that the official concerned has been elected for
three consecutive terms in the same local government post; and 2)
that he has fully served three consecutive terms. In Borja, Jr. v.
Commission on Elections, the Court emphasized that the term
limit for elective officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position.
Thus, for the disqualification to apply, it is not enough that the
official has been elected three consecutive times; he must also
have served three consecutive terms in the same position.
While it is undisputed that respondent was elected municipal
councilor for three consecutive terms, the issue lies on whether he
is deemed to have fully served his second term in view of his
assumption of office as vice-mayor of Tuburan on January 12,
2004.
Succession in local government offices is by operation of law.
Section 44 of Republic Act No. 7160, otherwise known as the Local
Government Code, provides that if a permanent vacancy occurs in
the office of the vice mayor, the highest ranking sanggunian
member shall become vice mayor.
In this case, a permanent vacancy occurred in the office of the vice
mayor due to the retirement of Vice Mayor Mendoza. Respondent,
being the highest ranking municipal councilor, succeeded him in
accordance with law. It is clear therefore that his assumption of
office as vice-mayor can in no way be considered a voluntary
renunciation of his office as municipal councilor.
In Lonzanida v. Commission on Elections, the Court explained the
concept of voluntary renunciation as follows: The second sentence
of the constitutional provision under scrutiny states, `Voluntary
renunciation of office for any length of time shall not be considered
as an interruption in the continuity of service for the full term for
which he was elected.' The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-term limit
by a voluntary renunciation of office and at the same time respect
the people's choice and grant their elected official full service of a
term is evident in this provision. Voluntary renunciation of a
term does not cancel the renounced term in the computation of the
three term limit; conversely, involuntary severance from office
for any length of time short of the full term provided by
law amounts to an interruption of continuity of service.
Thus, respondent's assumption of office as vice-mayor in January
2004 was an involuntary severance from his office as municipal
councilor, resulting in an interruption in the service of his 20012004 term. It cannot be deemed to have been by reason of
voluntary renunciation because it was by operation of
law. Succession by law to a vacated government office is
characteristically not voluntary since it involves the performance
of a public duty by a government official, the non-performance of
which exposes said official to possible administrative and criminal
charges of dereliction of duty and neglect in the performance of

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public functions. It is therefore more compulsory and obligatory

rather than voluntary.
Borja v. COMELEC (1991)
Facts:

Jose Capco, Jr. was elected vice-mayor of Pateros on

January 18, 1988 for a term ending June 30, 1992. On September
2, 1989, he became mayor, by operation of law, upon the death of
the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30,
1995. On May 8, 1995, he was reelected mayor for another term of
three years ending June 30, 1998.
Jose Capco filed a certificate of candidacy for mayor of Pateros
relative to the May 11, 1998 elections. Benjamin Borja, Jr., who
was also a candidate for mayor, sought Capcos disqualification on
the theory that the latter would have already served as mayor for
three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
Comelec ruled in favor of petitioner and declared Capco
disqualified from running for reelection as mayor of Pateros. On
motion, the Comelec en banc reversed the decision and declared
Capco eligible to run for mayor. It ruled that Capcos succession
into office is not counted as one term for purposes of the
computation of the three term limitation under the Constitution
and Local Government Code.
Capco was voted for in the elections. He received 16,558 votes
against petitioners 7,773 votes and was proclaimed elected by the
Municipal Board of Canvassers.
Issue:

WON Capco is eligible to run for mayor

Held:

Yes

Ratio:

(Purpose of the three term rule) First, to prevent the

establishment of political dynasties is not the only policy embodied

in the constitutional provision in question. The other policy is
that of enhancing the freedom of choice of the people. To consider,
therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by
succession by operation of law would be to disregard one of the
purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of
the Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom
of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal
put forth by Commissioner Edmundo F. Garcia that after serving
three consecutive terms or nine years there should be no further
reelection for local and legislative officials. Instead, they adopted
the alternative proposal of Commissioner Christian Monsod that
such officials be simply barred from running for the same position
in the succeeding election following the expiration of the third
consecutive term. Monsod warned against prescreening
candidates (from) whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft
constitution provision recognizing peoples power.
Two ideas thus emerge from a consideration of the proceedings of
the Constitutional Commission. The first is the notion of service

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of term, derived from the concern about the accumulation of power

as a result of a prolonged stay in office. The second is the idea of
election, derived from the concern that the right of the people to
choose those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the
drafters of the Constitution did so on the assumption that the
officials concerned were serving by reason of reelection.
Indeed, a fundamental tenet of representative democracy is that
the people should be allowed to choose whom they please to govern
them. To bar the election of a local official because he has already
served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate
this principle.
Second, not only historical examination but textual analysis as
well supports the ruling of the COMELEC that Art. X, 8
contemplates service by local officials for three consecutive terms
as a result of election. The first sentence speaks of the term of
office of elective local officials and bars such official[s) from
serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be
deemed to have served his full term of office, states that
voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his
service for the full term for which he was elected. The term
served must therefore be one for which (the official concerned)
was elected. The purpose of this provision is to prevent a
circumvention of the limitation on the number of terms an elective
official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the
official he succeeds, such official cannot be considered to have fully
served the term now withstanding his voluntary renunciation of
office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI,
7, which similarly bars members of the House of Representatives
from serving for more than three terms. Commissioner Bernas
states that if one is elected Representative to serve the unexpired
term of another, that unexpired term, no matter how short, will be
considered one term for the purpose of computing the number of
successive terms allowed. This is actually based on the opinion
expressed by Commissioner Davide: Yes, because we speak of
term and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for
the Senator and two more terms for the Members of the Lower
House.
There is a difference, however, between the case of a vice-mayor
and that of a member of the House of Representatives who
succeeds another who dies, resigns, becomes incapacitated, or is
removed from office. The vice-mayor succeeds to the mayorship by
operation of law. On the other hand, the Representative is elected
to fill the vacancy. In a real sense, therefore, such Representative
serves a term for which he was elected. As the purpose of the
constitutional provision is to limit the right ot be elected and to
serve in Congress, his service of the unexpired term is rightly
counted as his first term. Rather than refute what we believe to
be the intendment of Art. X, 8 with regard to elective local
officials, the case of a Representative who succeeds another
confirms the theory.

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Petitioner also cites Art. VII, 4 of the Constitution which provides

for succession of the Vice-President to the Presidency in case of
vacancy in that office. This provision says that No person who
has succeeded as President and has served as such for more than
four years shall be qualified for election to the same office at any
time. Petitioner contends that, by analogy, the vice-mayor should
likewise be considered to have served a full term as mayor if he
succeeds to the latters office and serves for the remainder of the
term.
The framers of the Constitution included such a provision because,
without it, the Vice-President, who simply steps into the
Presidency by succession would be qualified to run for President
even if he has occupied that office for more than four years. The
absence of a similar provision in Art. X, 8 on elective local
officials throws in bold relief the difference between the two cases.
It underscores the constitutional intent to cover only the terms of
office to which one may have been elected for purpose of the
three-term limit on local elective officials, disregarding for this
purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to
the Presidency and serves in that office for more than four years is
ineligible for election as President. The Vice-President is elected
primarily to succeed the President in the event of the latters
death, permanent disability, removal or resignation. While he
may be appointed to the cabinet, his becoming so is entirely
dependent on the good graces of the President. In running for
Vice-President, he may thus be said to also seek the Presidency.
For their part, the electors likewise choose as Vice-President the
candidate who they think can fill the Presidency in the event it
becomes vacant. Hence, service in the presidency for more than
four years may rightly be considered as service for a full term.
This is not so in the case of the vice-mayor. Under the local
Government Code, he is the presiding officer of the sanggunian
and he appoints all officials and employees of such local assembly.
He has distinct powers and functions, succession to mayorship in
the event of vacancy therein being only one of them. It cannot be
said of him, as much as of the Vice-President in the event of a
vacancy in the Presidency, that in running for vice-mayor, he also
seeks the mayorship. His assumption of the mayorship in the
event of vacancy is more a matter of chance than of design.
Hence, his service in that office should not be counted in the
application of any term limit.
To recapitulate, the term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve
in the same elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an elective
local office, he must also have been elected to the same position for
the same number of times before the disqualification can apply.

the purpose of applying the term limit. Under Art. X, 8,

voluntary renunciation of the office is not considered as an
interruption in the continuity of his service for the full term only if
the term is one for which he was elected. Since A is only
completing the service of the term for which the deceased and not
he was elected. A cannot be considered to have completed one
term. His resignation constitutes an interruption of the full term

Borja Supplement:

Adorneo v. COMELEC (2002)

Case No. 1. Suppose A is a vice-mayor who becomes mayor by

reason of the death of the incumbent. Six months before the next
election, he resigns and is twice elected thereafter. Can he run
again for mayor in the next election.
Yes, because although he has already first served as mayor by
succession and subsequently resigned from office before the full
term expired, he has not actually served three full terms in all for

Case No. 2. Suppose B is elected Mayor and, during his first term,
he is twice suspended for misconduct for a total of 1 year. If he is
twice reelected after that, can he run for one more term in the
next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because
the two conditions for the application of the disqualification
provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he
has fully served three consecutive terms. In the first case, even if
the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term,
the fact remains that he has not been elected three times. In the
second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by
succession involves a total failure of the two conditions to concur
for the purpose of applying Art. X 8. Suppose he is twice elected
after that term, is he qualified to run again in the next election?
Yes, because he was not elected to the office of the mayor in the
first term but simply found himself thrust into it by operation of
law. Neither had he served the full term because he only
continued the service, interrupted by the death , of the deceased
mayor.
To consider C in the third case to have served the first term in full
and therefore ineligible to run a third time for reelection would be
not only to falsify reality but also to unduly restrict the right of the
people to choose whom they wish to govern them. If the vicemayor turns out to be a bad mayor, the people can remedy the
situation by simply not reelecting him for another term. But if, on
the other hand, he proves to be a good mayor, there will be no way
the people can return him to office (even if it is just the third time
he is standing for reelection) if his service of the first term is
counted as one of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the
people should be protected from the evils that a monopoly of
political power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.

Facts:

Petitioner

and private respondent were the only

candidates for mayor of Lucena City in the May 14, 2001 elections.
Talaga, Jr. was elected mayor in May 1992. He served the full
term. Again, he was re-elected in 1995-1998. In the election of
1998, he lost to Bernard G. Tagarao. In the recall election of May

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12, 2000, he again won and served the unexpired term of Tagarao
until June 30, 2001.
Petitioner filed with the Office of the Provincial Election
Supervisor, Lucena City a Petition to Deny Due Course to or
Cancel Certificate of Candidacy and/or Disqualification of Ramon
Y. Talaga, Jr., on the ground that the latter was elected and had
served as city mayor for three (3) consecutive terms as follows: (1)
in the election of May 1992, where he served the full term; (2) in
the election of May 1995, where he again served the full term;
and, (3) in the recall election of May 12, 2000, where he served
only the unexpired term of Tagarao after having lost to Tagarao in
the 1998 election. Petitioner contended that Talagas candidacy as
Mayor constituted a violation of Section 8, Article X of the 1987
Constitution.
On March 9, 2001, private respondent responded that he was not
elected City Mayor for three (3) consecutive terms but only for two
(2) consecutive terms. He pointed to his defeat in the 1998
election by Tagarao. Because of his defeat the consecutiveness of
his years as mayor was interrupted, and thus his mayorship was
not for three consecutive terms of three years each. Respondent
added that his service from May 12, 2001 until June 30, 2001 for
13 months and eighteen (18) days was not a full term, in the
contemplation of the law and the Constitution.
The Comelec found Talaga disqualified for the position of city
mayor. The Comelec en banc reversed and ruled that 1)
respondent was not elected for three (3) consecutive terms because
he did not win in the May 11, 1998 elections; 2) that he was
installed only as mayor by reason of his victory in the recall
elections; 3) that his victory in the recall elections was not
considered a term of office and is not included in the 3-term
disqualification rule, and 4) that he did not fully serve the three
(3) consecutive terms, and his loss in the May 11, 1998 elections is
considered an interruption in the continuity of his service as
Mayor of Lucena City.
Issue:

WON Talaga is disqualified to run for mayor

Held:

No

Ratio: The issue before us was already addressed in

Borja,

Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we

held,
To recapitulate, the term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve
in the same elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an elective
local office, he must also have been elected to the same position for
the same number of times before the disqualification can apply.
This point can be made clearer by considering the following case
or situation:
Case No. 2. Suppose B is elected mayor and, during his first term,
he is twice suspended for misconduct for a total of 1 year. If he is
twice reelected after that, can he run for one more term in the
next election?
Yes, because he has served only two full terms successively.

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To consider C as eligible for reelection would be in accord with the

understanding of the Constitutional Commission that while the
people should be protected from the evils that a monopoly of
political power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.
Likewise, in the case of

Lonzanida vs. COMELEC,

311 SCRA 602, 611 (1999), we said,

This Court held that the two conditions for the application of the
disqualification must concur: a) that the official concerned has
been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive
terms. Accordingly, COMELECs ruling that private respondent
was not elected for three (3) consecutive terms should be upheld.
For nearly two years he was a private citizen. The continuity of
his mayorship was disrupted by his defeat in the 1998 elections.
Patently untenable is petitioners contention that COMELEC in
allowing respondent Talaga, Jr. to run in the May 1998 election
violates Article X, Section 8 of 1987 Constitution. To bolster his
case, respondent adverts to the comment of Fr. Joaquin Bernas, a
Constitutional Commission member, stating that in interpreting
said provision that if one is elected representative to serve the
unexpired term of another, that unexpired, no matter how short,
will be considered one term for the purpose of computing the
number of successive terms allowed.
As pointed out by the COMELEC en banc, Fr. Bernas comment is
pertinent only to members of the House of Representatives. Unlike
local government officials, there is no recall election provided for
members of Congress.
Neither can respondents victory in the recall election be deemed a
violation of Section 8, Article X of the Constitution as voluntary
renunciation for clearly it is not. In

COMELEC, we said:

Lonzanida vs.

The second sentence of the constitutional provision under

scrutiny states, Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of
service for the full term for which he was elected. The clear
intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the peoples choice and grant
their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the
renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption
of continuity of service. The petitioner vacated his post a few
months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect.
Such
involuntary severance from office is an interruption of continuity
of service and thus, the petitioner did not fully serve the 19951998 mayoral term.
Socrates v. COMELEC (2002)
Facts:

On July 2, 2002, 312 out of 528 members of the

incumbent barangay officials of the Puerto Princesa convened into

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a Preparatory Recall Assembly to initiate the recall of Victorino

Dennis M. Socrates (mayor). The members of the PRA designated
Mark David M. Hagedorn, president of the Association of
Barangay Captains, as interim chair of the PRA. The PRA passed
a Resolution declaring its loss of confidence in Socrates and called
for his recall. Socrates filed a petition to deny due course to the
Recall Resolution but the Comelec en banc dismissed the case for
lack of merit.
Edward M. Hagedorn filed his certificate of candidacy for mayor in
the recall election.Ma. Flores F. Adovo and Merly E. Gilo filed a
petition before the COMELEC, to disqualify Hagedorn from
running in the recall election and to cancel his certificate of
candidacy. The petitions were all anchored on the ground that
Hagedorn is disqualified from running for a fourth consecutive
term, having been elected and having served as mayor of the city
for three (3) consecutive full terms immediately prior to the
instant recall election for the same post. The Comelec declared
Hagedorn qualified to run in the recall election.
G.R. No. 154512. Socrates sought to nullify the COMELEC en
banc resolution which gave due course to the Recall Resolution
and scheduled the recall election on September 7, 2002. Socrates
cites the following circumstances as legal infirmities attending the
convening of the PRA and its issuance of the Recall Resolution:
(1) not all members of the PRA were notified of the meeting to
adopt the resolution; (2) the proof of service of notice was palpably
and legally deficient; (3) the members of the PRA were themselves
seeking a new electoral mandate from their respective
constituents; (4) the adoption of the resolution was exercised with
grave abuse of authority; and (5) the PRA proceedings were
conducted in a manner that violated his and the publics
constitutional right to information.
G.R. No. 154683. Vicente S. Sandoval, Jr. sought to annul
COMELEC Resolution No. 5673 insofar as it fixed the recall
election on September 7, 2002, giving the candidates only a tenday campaign period. He prayed that the COMELEC be enjoined
from holding the recall election on September 7, 2002 and that a
new date be fixed giving the candidates at least an additional 15
days to campaign. The court gave the candidates an additional 15
days within which to campaign. Thus, the COMELEC reset the
recall election to September 24, 2002.
G.R. Nos. 155083-84. Petitioners Adovo, Gilo and Ollave assail
the COMELECs resolutions declaring Hagedorn qualified to run
for mayor in the recall election. The Court ordered the COMELEC
to desist from proclaiming any winning candidate in the recall
election until further orders from the Court. In the meantime,
Hagedorn garnered the highest number of votes in the recall
election with 20,238 votes.
Rival candidates Socrates and
Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Issue:

WON the recall resolution was valid

Held:

Yes

Ratio:

Petitioner

Socrates

argues

that

the

COMELEC

committed grave abuse of discretion in upholding the Recall

Resolution despite the absence of notice to 130 PRA members and
the defective service of notice to other PRA members. The

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COMELEC, however, found that the proponents for the Recall of

incumbent City Mayor Victorino Dennis M. Socrates sent notices
of the convening of the PRA to the members thereof pursuant to
Section 70 of the Local Government Code. Notices of the convening
of the Puerto Princesa PRA were also sent to the following: [a list
of 25 names of provincial elective officials, print and broadcast
media practitioners, PNP officials, COMELEC city, regional and
national officials, and DILG officials].
The Court is bound by the findings of fact of the COMELEC on
matters within the competence and expertise of the COMELEC,
unless the findings are patently erroneous. In the instant case, we
do not find any valid reason to hold that the COMELECs findings
of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to
adopt the Recall Resolution on July 2, 2002 because a majority of
PRA members were seeking a new electoral mandate in the
barangay elections scheduled on July 15, 2002. This argument
deserves scant consideration considering that when the PRA
members adopted the Recall Resolution their terms of office had
not yet expired. They were all de jure sangguniang barangay
members with no legal disqualification to participate in the recall
assembly under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents conducted
the PRA proceedings violated his constitutional right to
information on matters of public concern. Socrates, however,
admits receiving notice of the PRA meeting and of even sending
his representative and counsel who were present during the entire
PRA proceedings. Proponents of the recall election submitted to
the COMELEC the Recall Resolution, minutes of the PRA
proceedings, the journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated master list of
barangay officials in Puerto Princesa. Socrates had the right to
examine and copy all these public records in the official custody of
the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in
Socrates claim that respondents violated his constitutional right
to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in
scheduling the recall election on September 24, 2002.
Issue:

WON Hagedorn is qualified to run for mayor in the

recall election
Held:

No

Ratio:

The constitutional and statutory provisions have two

parts. The first part provides that an elective local official cannot
serve for more than three consecutive terms. The clear intent is
that only consecutive terms count in determining the three-term
limit rule. The second part states that voluntary renunciation of
office for any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance from
office for any length of time interrupts continuity of service and
prevents the service before and after the interruption from being
joined together to form a continuous service or consecutive terms.

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After three consecutive terms, an elective local official cannot seek

immediate reelection for a fourth term. The prohibited election
refers to the next regular election for the same office following the
end of the third consecutive term. Any subsequent election, like
a recall election, is no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall election is no
longer an immediate reelection after three consecutive terms.
Second, the intervening period constitutes an involuntary
interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would
be no further election after three terms, or whether there would be
no immediate reelection after three terms.
What the
Constitution prohibits is an immediate reelection for a fourth
term following three consecutive terms.
The Constitution,
however, does not prohibit a subsequent reelection for a fourth
term as long as the reelection is not immediately after the end of
the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but
not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election
involving the same term of office. What the Constitution prohibits
is a consecutive fourth term. The debates in the Constitutional
Commission evidently show that the prohibited election referred
to by the framers of the Constitution is the immediate
reelection after the third term, not any other subsequent election.
If the prohibition on elective local officials is applied to any
election within the three-year full term following the three-term
limit, then Senators should also be prohibited from running in any
election within the six-year full term following their two-term
limit. The constitutional provision on the term limit of Senators is
worded exactly like the term limit of elective local officials. The
framers of the Constitution thus clarified that a Senator can run
after only three years following his completion of two terms. The
framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent
election, during the six-year period following the two term limit.
The framers of the Constitution did not intend the period of rest
of an elective official who has reached his term limit to be the full
extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001. Hagedorn did not seek
reelection in the 2001 elections. Hagedorn was elected for three
consecutive terms in the 1992, 1995 and 1998 elections and served
in full his three consecutive terms as mayor of Puerto Princesa.
Under the Constitution and the Local Government Code,
Hagedorn could no longer run for mayor in the 2001 elections.
The Constitution and the Local Government Code disqualified
Hagedorn, who had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. Thus, Hagedorn
did not run for mayor in the 2001 elections. Socrates ran and won
as mayor of Puerto Princesa in the 2001 elections.
After
Hagedorn ceased to be mayor on June 30, 2001, he became a

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private citizen until the recall election of September 24, 2002

when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24,
2002, the mayor of Puerto Princesa was Socrates. During the
same period, Hagedorn was simply a private citizen. This period
is clearly an interruption in the continuity of Hagedorns service
as mayor, not because of his voluntary renunciation, but because
of a legal prohibition. Hagedorns three consecutive terms ended
on June 30, 2001. Hagedorns new recall term from September 24,
2002 to June 30, 2004 is not a seamless continuation of his
previous three consecutive terms as mayor. One cannot stitch
together Hagedorns previous three-terms with his new recall
term to make the recall term a fourth consecutive term because
factually it is not. An involuntary interruption occurred from
June 30, 2001 to September 24, 2002 which broke the continuity
or consecutive character of Hagedorns service as mayor.
In Hagedorns case, the nearly 15-month period he was out of
office, although short of a full term of three years, constituted an
interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a
full term of three years. The clear intent is that interruption for
any length of time, as long as the cause is involuntary, is
sufficient to break an elective local officials continuity of service.
Adormeo established the rule that the winner in the recall
election cannot be charged or credited with the full term of
three years for purposes of counting the consecutiveness of
an elective officials terms in office. In the same manner,
Hagedorns recall term does not retroact to include the tenure in
office of Socrates. Hagedorn can only be disqualified to run in the
September 24, 2002 recall election if the recall term is made to
retroact to June 30, 2001, for only then can the recall term
constitute a fourth consecutive term. But to consider Hagedorns
recall term as a full term of three years, retroacting to June 30,
2001, despite the fact that he won his recall term only last
September 24, 2002, is to ignore reality. This Court cannot
declare as consecutive or successive terms of office which
historically and factually are not.
Worse, to make Hagedorns recall term retroact to June 30, 2001
creates a legal fiction that unduly curtails the freedom of the
people to choose their leaders through popular elections. The
concept of term limits is in derogation of the sovereign will of the
people to elect the leaders of their own choosing. Term limits
must be construed strictly to give the fullest possible effect to the
sovereign will of the people
A necessary consequence of the interruption of continuity of
service is the start of a new term following the interruption. An
official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for
purposes of counting the three-term limit. This is clear from the
following discussion in the Constitutional Commission. Although
the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a
recall election of local officials. Otherwise, an elective local official
who serves a recall term can serve for more than nine consecutive
years comprising of the recall term plus the regular three full
terms. A local official who serves a recall term should know that
the recall term is in itself one term although less than three

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years. This is the inherent limitation he takes by running and

winning in the recall election.
Davide, concurring and dissenting. The ponencia is then
correct when it holds that the three-term limit bars an immediate
reelection for a fourth term. But I disagree when it rules that in
the case of Hagedorn he did not seek an immediate reelection for a
fourth term because he was not a candidate for reelection in the
May 2001 election. It forgets that what would have been his fourth
term by virtue of the May 2001 election was for the period from 30
June 2001 to 30 June 2004. The flaw in the ruling results from an
apparent confusion between term and election, the root cause of
which is the attempt to distinguish voluntary renunciation of
office from involuntary severance from office and the term of
office to which it relates.
I wish to add that the Constitutional Commission debates on the
issue of no immediate reelection after three consecutive terms
for members of Congress clearly indicated that the no immediate
reelection after the 3-term limit would equally apply to the
elective local officials.
This accounted for the immediate
acceptance by the Committee on Local Governments of the
aforementioned Amendment of Commissioner Davide, which is
now Section 8 of Article X of the Constitution. These debates
clearly showed the Intent of the Commission that the ban against
an immediate reelection after three consecutive terms applies to
the fourth term, i.e., the term immediately following the three
consecutive terms, to be filled up by the regular election for such
fourth term. For one to be able to run again after three
consecutive terms, he has to rest for the entire immediately
succeeding fourth term. On the next fifth term he can run again
to start a new series of three consecutive terms.
The dichotomy made in the ponencia between voluntary
renunciation of the office as used in Section 8 of Article X of the
Constitution and Section 43(b) of R.A. No. 7160 and involuntary
severance from office is unnecessary, if not misplaced. From the
discussion in the ponencia, the latter is made to apply to the
banned term, i.e., the fourth term immediately following three
consecutive terms. Speaking now of Hagedorn, he cannot have
suffered involuntary severance from office because there was
nothing to be severed; he was not a holder of an office either in a
de jure or de facto capacity. He knew he was disqualified from
seeking a third reelection to office. Disqualification is, definitely,
not synonymous with involuntary severance. Even if we concede
that involuntary severance is an act which interrupts the
continuity of a term for purposes of applying the three-term
principle the rule laid down in Lonzanida vs. COMELEC (311
SCRA 609), cited in the ponencia, page 17, is not applicable in the
case of Hagedorn. The involuntary severance referred to in that
case was one that took place during any of the three terms; hence,
the term during which it occurred should be excluded in the
computation. In the case of Hagedorn, no such involuntary
severance took place during any of his three terms brought about
by his election in 1992 and reelections in 1995 and 1998.
More importantly, the voluntary renunciation referred to in
Section 8, Article X of the Constitution and Section 43(b) of R.A.
No. 7160 is one that takes place at any time during either the first,
second, or third term of the three consecutive terms. This is very

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clear from the last clause of Section 8, Article X of the

Constitution, which reads: shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected. The purpose of the provision is to prevent
an elective local official from voluntarily resigning from office for
the purpose of circumventing the rule on the belief that the term
during which he resigned would be excluded in the counting of the
three-term rule. In short, the provision excluded is intended to
impose a penalty on one who flouts the rule or make a mockery of
it by the simple act of resigning. Thus, applying it in the case of
Hagedorn, even if he voluntarily resigned on his third term, he
would still be barred from seeking reelection in the May 2001
election.
Hagedorn cannot likewise avail of the ruling in Adormeo vs.
COMELEC (G.R. No. 147927, 4 February 2002) because in that
case Talaga did not win in his second reelection bid, or for a third
term, in the May 1998 elections. He won in the recall election of 12
May 2000.
Hagedorn, as earlier stated, fully served three
successive terms.
Mendoza v. COMELEC (2002)
For resolution is a petition for certiorari filed by petitioners
Melanio L. Mendoza and Mario E. Ibarra, seeking to set aside the
resolution of the Commission on Elections, dated August 15, 2001,
in EPC No. 2001-5 and to declare respondent Leonardo B.
Romans election as governor of Bataan on May 14, 2001 as null
and void for allegedly being contrary to Art. X, 8 of the
Constitution, which provides that:
The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years
and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
After due deliberation, the Court voted 8 to 7 to DISMISS the
petition:

VITUG, J.,

joined by YNARES-SANTIAGO, J., voted to

dismiss the petition. He contended that as revealed by the records

of the Constitutional Commission, the Constitution envisions a
continuous and an uninterrupted service for three full terms
before the proscription applies. Therefore, not being a full term, a
recall term should not be counted or used as a basis for the
disqualification whether served prior (as in this case) or
subsequent (as in the Socrates case) to the nine-year, full threeterm limit.

MENDOZA, J., in whose opinion QUISUMBING, J. joined,

voted to dismiss the petition on the ground that, in accordance
with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 (1998);
Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.);
Lonzanida v. COMELEC, 311 SCRA 602 (1999); and Adormeo v.
COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which
succession to a local elective office takes place or a recall election
is held should not be counted in determining whether an elective
local official has served more than three consecutive terms. He
argued that the Constitution does not prohibit elective local
officials from serving for more than three consecutive terms

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because, in fact, it excludes from the three-term limit

interruptions in the continuity of service, so long as such
interruptions are not due to the voluntary renunciation of the
office by an incumbent. Hence, the period from June 28, 1994 to
June 30, 1995, during which respondent Leonardo B. Roman
served as governor of Bataan by virtue of a recall election held in
1993, should not be counted. Since on May 14, 2001 respondent
had previously served as governor of Bataan for only two
consecutive terms (1995-1998 and 1998-2001), his election on that
day was actually only his third term for the same position.

PANGANIBAN, J.,

joined by PUNO, J., also voted to

dismiss the petition. He argued that a recall term should not be

considered as one full term, because a contrary interpretation
would in effect cut short the elected officials service to less than
nine years and shortchange his constituents. The desire to
prevent monopoly of political power should be balanced against
the need to uphold the voters obvious preference who, in the
present case, is Roman who received 97 percent of the votes cast.
He explained that, in Socrates, he also voted to affirm the clear
choice of the electorate, because in a democracy the people should,
as much as legally possible, be governed by leaders freely chosen
by them in credible elections. He concluded that, in election cases,
when two conflicting legal positions are of almost equal weight,
the scales of justice should be tilted in favor of the peoples
overwhelming choice.

AZCUNA, J.,

joined by BELLOSILLO, J., also voted to

On the other hand,

SANDOVAL-GUTIERREZ, J.,

dismiss, arguing that it is clear from the constitutional provision

that the disqualification applies only if the terms are consecutive
and the service is full and continuous. Hence, service for less than
a term, except only in case of voluntary renunciation, should not
count to disqualify an elective local official from running for the
same position. This case is different from Socrates, where the full
three consecutive terms had been continuously served so that
disqualification had clearly attached.
with whom DAVIDE, JR., C.J., and AUSTRIA-MARTINEZ,
CORONA, and CALLEJO, SR., JJ. concurred, holds the view that
the recall term served by respondent Roman, comprising the
period June 28, 1994 to June 30, 1995, should be considered as
one term. Since he thereafter served for two consecutive terms
from 1995 to 1998 and from 1998 to 2001, his election on May 14,
2001 was actually his fourth term and contravenes Art. X, 8 of
the Constitution. For this reason, she voted to grant the petition
and to declare respondents election on May 14, 2001 as null and
void.

CARPIO, J.,

joined by CARPIO MORALES, J., also

dissented and voted to grant the petition. He held that a recall

term constitutes one term and that to totally ignore a recall term
in determining the three-term limit would allow local officials to
serve for more than nine consecutive years contrary to the
manifest intent of the framers of the Constitution. He contended
that respondent Romans election in 2001 cannot exempt him from
the three-term limit imposed by the Constitution.
Tenure of Office

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Osmena v. COMELEC (2002)

Facts:

The petition) calls for a determination of the validity

and constitutionality of Republic Act 7056, "An Act Providing for

the National and Local Elections in 1992, Pave the Way for
Synchronized and Simultaneous Elections Beginning 1995, and
Authorizing Appropriations Therefor," which was signed into law
on June 20, 1991. The suit was instituted by Governor Emilio M.
Osmea (Cebu), Gov Roberto Pagdanganan on behalf of the
League of Governors of the Philippines, Representatives Pablo P.
Garcia (3rd District-Cebu), Raul V. del Mar (North District-Cebu
City), Antonio T. Bacaltos (1st District-Cebu), Wilfredo G. Cainglet
(3rd District-Zamboanga del Norte) and Romeo Guanzon (lone
District-Bacolod City), by way of a petition for Prohibition,
mandamus and Injunction with temporary restraining order
and/or preliminary injunction to prevent the implementation of
said Republic Act 7056 and the consequent expenditure of public
funds and to compel the Comelec to immediately and with all
deliberate speed set up the machinery and make the necessary
preparation for the holding of synchronized national and local
elections on the second Monday of May, 1992.
The petitioners' claim they have actual and material legal interest
in the subject matter of this case not only because, as public
officials, they have taken an oath to support and defend the
Constitution but also because, as taxpayers, they have an interest
in seeing to it that public funds are properly and, more
importantly, lawfully disbursed. They pray for this Court to
declare Republic Act No. 7056 as unconstitutional and, therefore,
invalid and inoperative because: 1. Republic Act 7056 violates the
mandate of the Constitution for the holding of synchronized
national and local elections on the second Monday of May 1992.
2. Republic Act 7056, particularly the 2nd paragraph of Section 3
thereof, providing that all incumbent provincial, city and
municipal officials shall hold over beyond June 30, 1992 and shall
serve until their successors shall have been duly elected and
qualified violates Section 2, Article XVIII (Transitory Provision) of
the Constitution.
3. The same paragraph of Section 3 of Republic Act 7056, which in
effect, shortens the term or tenure of office of local officials to be
elected on the 2nd Monday of November, 1992 violates Section 8,
Article X of the Constitution.
4. Section 8 of Republic Act 7056, providing for the campaign
periods for Presidential, Vice-Presidential and Senatorial
elections, violates the provision of Section 9, Article IX under the
title "Commission on Elections" of the Constitution.
5. The so-called many difficult if not insurmountable problems
mentioned in Republic Act 7056 to synchronized national and
local elections set by the Constitution on the second Monday of
May, 1992, are not sufficient, much less, valid justification for
postponing the local elections to the second Monday of November
1992, and in the process violating the Constitution itself. If, at all,
Congress can devise ways and means, within the parameters of
the Constitution, to eliminate or at least minimize these problems
and if this, still, is not feasible, resort can be made to the selfcorrecting mechanism built in the Constitution for its amendment
or revision.

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The Solicitor General prays for the denial of the petition on the
ground that the question is political in nature and that the
petitioners are merely asking for an advisory opinion from the
court, there being no justiciable controversy for resolution. On the
merits of the case, the Solicitor General contends that Republic
Act 7056 is a valid exercise of legislative power by Congress and
that the regular amending process prescribed by the Constitution
does not apply to its transitory provisions.
Issue:

WON the Court has competence to act on the matter at

bar
Held:

Yes

Ratio:

What is involved here is the legality, not the wisdom of

RA 7056. And even if we were to assume that the issue presented

before us is political in nature, We would still not be precluded
from resolving it under the expanded jurisdiction conferred upon
us that now covers in proper cases even political questions,
provided naturally, that the question is not solely and exclusively
political (as when the Executive extends recognition to a foreign
government) but one which really necessitates a forthright
determination of constitutionality, involving as it does a question
of national importance.
On the other procedural issues raised, We held as early as in the
Emergency Power Cases that where serious constitutional
questions are involved, "the transcendental importance to the
public of these cases demands that they be settled promptly and
definitely, brushing aside if we must, technicalities of procedure."
It would appear undeniable, therefore, that before us is an
appropriate invocation of our jurisdiction to prevent the
enforcement of an alleged unconstitutional statute. We are left
with no choice then; we must act on the matter.
To summarize, on the procedural issue, We hold in view of the
foregoing considerations, that the issue presented to us in the case
at bar, is justiciable rather than political. Even if the question
were political in nature, it would still come within our powers of
review under the expanded jurisdiction conferred upon us by
Article VIII, Section 1 of the 1987 Constitution, which includes the
authority to determine whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been committed by
any branch or instrumentality of the government. As for the other
alleged procedural flaws lack of court standing, etc., assuming the
existence of such flaws, the same may be brushed aside,
conformably with existing doctrine so that the important
constitutional issue raised may be addressed.
Accordingly, We are left with no other alternative but to uphold
the jurisdiction of the Court over the present cases. It goes
without saying that We do this not because the Court is superior
to the Executive and/or Legislative but simply because the
Executive, the Legislative and this Court are subject to the
Constitution as the supreme law.
Issue:

WON RA 7056 is unconstitutional

Held:

Yes

S . Y.
Ratio:

08-09:

2nd

Sem.

It is evident from the wording of Article XVIII, Sections

2 and 5 of the 1987 Constitution that the term of synchronization

is used synonymously as the phrase holding simultaneously since
this is the precise intent in terminating their Office Tenure on the
same day or occasion. This common termination date will
synchronize future elections to once every three years.
That the election for Senators, Members of the House of
Representatives and the local officials (under Sec. 2, Art. XVIII)
will have to be synchronized with the election for President and
Vice President (under Sec. 5, Art. XVIII) is likewise evident from
the following records of the proceedings in the Constitutional
Commission. It thus becomes very evident that the Constitution
has mandated a synchronized national and local election prior to
June 30, 1992 or more specifically as provided for in Article XVIII,
Sec. 5-on the second Monday of May, 1992.
On this point, it has to be stressed that the term of office of
elective local officials, except barangay officials, is fixed by the
Constitution at three years (Sec. 8, Art. X). The incumbent local
officials were elected in January 1988. Therefore, their term would
have expired on February 2, 1991. But their term was adjusted to
expire at noon of June 30, 1992. The reason for the said
adjustment, as well as those of the Senators, members of the
House of Representatives, President and Vice-President, is the
same to synchronize the national and local elections.
Upon the other hand, and contrary to the express mandate of the
1987 Constitution, RA 7056 provides for two (2) separate elections
in 1992 as follows: Sec. 2. Start of Synchronization To start the
process of synchronization of election in accordance with the policy
hereinbefore declared there shall be held:
(a) An election for President and Vice-President of the Philippines,
twenty four (24) Senators and all elective Members of the House of
Representatives on the second Monday of May, 1992, and
(b) An election of all provincial, city and municipal elective officials
on the second Monday of November, 1992.
The purpose of Republic Act 7056 is as stated in Section 1 thereof
under the heading "Statement of Policy"
. . . to start, as much as practicable, the synchronization of the
elections so that the process can be completed in the 1995
elections with the result that beginning 1995 there shall be only
one (1) simultaneous regular elections for national and local
elective officials every three (3) years.
With the clear mandate of the 1987 Constitution to hold
synchronized (simultaneous) national and local elections in the
second Monday of May, 1992, the inevitable conclusion would be
that Republic Act 7056 is clearly violative of the Constitution
because it provides for the holding of a desynchronized election.
Stated differently, Republic Act 7056 particularly Sections 1 and 2
thereof contravenes Article XVIII, Sections 2 and 5 of the 1987
Constitution.
But this is not all. There are other provisions of the Constitution
violated by RA 7056. For one, there is Section 2, Article XVIII of
the Constitution which provides that the local official first elected
under the Constitution shall serve until noon of June 30, 1992.
But under Sec. 3 of RA 7056, these incumbent local officials shall
hold over beyond June 30, 1992 and shall serve until their
successors shall have been duly elected and qualified. It has been
held that:

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It is not competent for the legislature to extend the term of officers

by providing that they shall hold over until their successors are
elected and qualified where the constitution has in effect or by
clear implication prescribed the term and when the Constitution
fixes the day on which the official term shall begin, there is no
legislative authority to continue the office beyond that period, even
though the successors fail to qualify with the time.
If the local election will be held on the second Monday of
November 1992 under RA 7056, those to be elected will be serving
for only two years and seven months, that is, from November 30,
1992 to June 30, 1995, not three years as provided for by the
Constitution.
Then also, Section 9, Article IX of the Constitution provides that:
Unless otherwise fixed by the Commission in special cases, the
election period shall commence ninety days before the day of
election and shall end thirty days thereafter. Under this provision
the filing of the Certificate of Candidacy and the ensuing
campaign period must be embraced or circumscribed within that
election period of ninety days, except when in special cases, the
Comelec (not Congress) alters the period. But RA 7056 provides
for a different campaign period, as follows: Sec. 8.
(a) For President arid Vice-Presidential elections one hundred
thirty (130) days before the day of election.
(b) For Senatorial elections, ninety (90) days before the day of the
election, and
(c) For the election of Members of the House of Representatives
and local elective provincial, city and municipal officials forty-five
(45) days before the day of the elections.
All these the postponement of the holding of a synchronized
national and local election from 1992 to 1995; the hold-over
provision for incumbent local officials; the reduction of the term of
office of local officials to be elected on the second Monday of
November 1992 and the change in the campaign periods, are
violative of the 1987 Constitution.
The contention of the Solicitor General that the method of
amendment or revision prescribed by the Constitution (Article
XVIII) does not apply to the Transitory Provisions because in the
nature of things Transitory Provisions are to be carried out as
soon as practicable, and Congress can, in the exercise of its
legislative power enact the needed legislation, in this case RA
7056, deserves no consideration at all. The 1987 Constitution has
stated in clear and categorical language that "the six-year term of
the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of
elections, hereby extended to noon of June 30, 1992 (Article XVIII,
Sec. 5)." As discussed earlier, the elections referred to, to be
synchronized with the election of the President and Vice-President
on the second Monday of May 1992, is the election for Senators,
Members of the House of Representatives and local officials.
It is noteworthy that the Solicitor General evaded the issue of the
constitutionality of RA 7056. Although he made a lengthy
discussion on the procedural issues and on the legislative power of
Congress, he failed to refute the arguments of the petitioners that
RA 7056 violated several provisions of the 1987 Constitution more
importantly, the provision on synchronization of election.
Vacancies and Succession

S . Y.

08-09:

2nd

Sem.

Jainal v. Comelec, G.R. No. 147927 (2007)

Facts: Petitioner Jainal Julhatab J. Talib were duly certified
candidates for Mayor of Indanan, Sulu in the 10 May 2004
elections. During the canvassing, Talib objected to the inclusion of
certain returns before the Municipal Board of Canvassers (MBC).
On 20 May 2004, petitioner was proclaimed by the MBC as the
winning candidate with a margin of 1,018 votes. On May 23, Talib
filed a pre proclamation case iwith the Comelec praying for the
annulment of election returns pertaining to 21 precints
representing 2788 votes. He alleged that the watchers were asked
to leave the precincts before the counting and preparation of the
election returns. Also, the returns were not signed by the members
of the board of election inspectors. Also, the number of votes
exceeded the number of voters in two precincts.
Petitioner prayed for the dismissal of the case contending that the
allegations are not the proper subject of an election protest. The
comelec annulled the election returns in nine precincts. The
proclamation of Jainal was also annulled. Hence, petitioner filed
the instant petition, including Hussi Ahajan as private respondent
in his capacity as Vice-Mayor who, under the provisions of the
Local Government Code, will fill up the vacancy created by the
annulment of petitioners proclamation.
Issue:

WON Talib should have followed the procedure outlined

in Section 20 of RA 7166 for contesting election returns

Held:
No
Ratio: Sec. 20 of R.A. No. 7166 provides for the steps, outlined
below, to be undertaken by a party contesting the inclusion or
exclusion of any election return:
Submitting oral objections and thereupon entering the objections
in the form for written objections to be prescribed by the
COMELEC;
Submitting evidence in support of the objections within twentyfour (24) hours;
Informing the MBC of his intention to appeal from the MBC
ruling on his objections;
Filing with the MBC a written and verified notice of appeal within
forty-eight (48) hours from suspension of the canvass, and taking
an appeal to the COMELEC within an inextendible period of five
(5) days from filing the notice of appeal.
However, the provision also requires the MBC to perform certain
acts, to wit:
Recording the oral objections in the minutes of the canvass;
Automatically deferring the canvass of the contested returns and
proceeding to canvass the uncontested returns;
Summarily and immediately ruling on the objections upon receipt
of the evidence;
Entering its ruling in the prescribed form and authenticating the
same;
Entering in the minutes of the canvass a partys signified
intention to appeal the ruling to the COMELEC;
Suspending the canvass after canvassing all the uncontested
returns and ruling upon the contested returns; and
Making an appropriate report to the COMELEC immediately
upon receipt of the notice of appeal, elevating therewith the

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complete records and evidence submitted in the canvass, and

furnishing the parties with copies of the report.
Petitioner does not state in what respect and on what basis Talib
failed to comply with Sec 20 of RA 7166. It is incumbent upon
petitioner to prove the alleged non-compliance. In the absence of
such proof, there is no aspect in the proceedings before the MBC
which legally precludes Talib from filing his petition before the
COMELEC in accordance with the COMELEC Rules of Procedure.
In fact, petitioner did not even raise this issue of non-compliance
with Sec. 20 of R.A. No. 7166 in his Answer and Memorandum
filed before the COMELEC.
The general rule is that a pre-proclamation case before the
COMELEC is, logically, no longer viable after a proclamation has
been made. However, this rule admits of exceptions, as when the
proclamation is null and void. The proclamation of petitioner in
this case is void for three (3) reasons: (1) it was based on a canvass
that should have been suspended with respect to the contested
election returns; (2) it was done without prior COMELEC
authorization which is required in view of the unresolved
objections of Talib to the inclusion of certain returns in the
canvass; and (3) it was predicated on a canvass that included
unsigned election returns involving such number of votes as will
affect the outcome of the election. In this regard, it has long been
recognized that among the reliefs that the COMELEC may grant
is to nullify a proclamation or suspend the effects of one.
Assuming, however, that Sec. 20 of R.A. No. 7166 was not complied
with, Talib cannot be faulted or made to suffer for such noncompliance as it was the MBC who did not comply with its duties
under Sec. 20 of R.A. No. 7166. When Talib made his objections to
the inclusion of the contested election returns, there was no other
recourse for the MBC except to rule on the objections, suspend the
canvass of the contested election returns, and suspend the
proclamation of petitioner, in that sequence. Instead of doing so,
the MBC, after ruling on the objections, included the contested
returns in the canvass and immediately proclaimed petitioner.
These actions of the MBC rendered it impossible for Talib to
comply with Sec. 20 of R.A. No. 7166 any further. It should be
noted that the forty-eight (48)-hour period for filing a verified
notice of appeal with the MBC is reckoned from suspension of the
canvass. The appeal to the COMELEC is also reckoned five (5)
days from suspension of the canvass. Understandably, Talib had
no other recourse but to go directly to the COMELEC. It is worthy
of note that what was filed with and resolved by the poll body is a
pre-proclamation case. Pre-proclamation cases refer to any
question pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of election
returns.
Issue:

WON the order of the RTC of Jolo, Sulu in Election

Protest Case No. 5-4-04 upholding petitioners proclamation as

Mayor of Indanan, Sulu precludes the COMELEC from issuing the
assailed resolutions
Held:

No

S . Y.
Ratio:

08-09:

2nd

Sem.

Note that Election Protest Case No. 5-4-04 is an election

protest case filed by Isnaji, the third candidate for the position of
Mayor against petitioner and Talib. Being an election protest or a
post-proclamation case, it is markedly different from the case filed
by Talib before the COMELEC which is a pre-proclamation case.
Verily, the order of the trial court in the election protest case does
not conflict with nor diminish the legal effect of the COMELEC en
banc Resolution, invalidating eight (8) of the nine (9) questioned
election returns. Particularly, the order is not inconsistent with
the directive of the COMELEC to the Election Officer of Indanan
to convene the BEI in the concerned precincts for a recount, after
notice to the parties and after ensuring that the integrity of the
ballot boxes are not compromised. The order of the trial court
directed a dismissal of the election protest on a technicality, that
is, for failure of Isnaji as protestant to prosecute the protest. No
election returns were examined and no ballots revised. The
questioned election returns could not have been examined before
the trial court because they were already with the COMELEC at
that time in connection with Talibs pre-proclamation case. The
trial court perfunctorily considered the report of the Revision
Committee and on that basis concluded that it was no longer
necessary to continue with the case because of petitioners
"enormous lead" over Isnaji, not Talib.
Although denominated as a respondent in Election Protest Case
No. 5-4-04, Talib could not be expected to participate therein
because of his pending pre-proclamation case with the
COMELEC. Had he participated in the election protest, his preproclamation case would have been deemed abandoned because
the general rule is that the filing of an election protest or a
petition for quo warranto precludes the subsequent filing of a preproclamation controversy, or amounts to the abandonment of one
earlier filed. Without a doubt, the dismissal of Election Protest
Case No. 5-4-04 could not have cast an adverse or prejudicial effect
on Talibs pending pre-proclamation case.
Issue:

WON the Comelec observed the procedure outlined in

Section 235 of BP 881

Held:

Yes

Ratio:

Contrary to petitioners contention, the COMELEC fully

complied with this Courts exhortation in Dagloc v. COMELEC

that the provision be followed to ascertain the will of the
electorate. Indeed, the COMELEC did not instantaneously nullify
the questioned election returns as claimed by petitioner. Utilizing
the first procedure contained in the first sentence of Sec. 235, the
COMELEC used other copies of said suspect election returns,
namely the election returns submitted by Talib. When this was
not enough, it even resorted to an examination of the COMELEC
copies. And when it was evident that the election returns for the
nine precincts were manufactured or fabricated because the
printed names and signatures of the members of the BEI were
absent, it was only then that the COMELEC annulled the said
election returns and petitioners proclamation. The COMELEC
thereafter ordered the Election Officer of Indanan to convene the
BEI in the concerned precincts for a recount, if possible, or to
report to the COMELEC the impossibility of a recount so that a
special election can be immediately scheduled. Clearly, the

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issuances of the COMELEC can hardly be described as precipitate

and premature.
Issue:

WON it was proper for Comelec to pierce the veil of

election returns
Held:
No
Ratio:

It is a well-entrenched rule in jurisprudence that in a

pre-proclamation controversy, the board of canvassers and the

COMELEC are not to look beyond or behind election returns
which are on their face regular and authentic returns. In Chu v.
COMELEC, aside from reiterating the rule against piercing the
veil of returns, this Court intimated that a pre-proclamation case
is the proper remedy if the defects and irregularities are apparent
from a physical inspection of the election returns.
In the case at bar, the COMELEC did not have to look at other
evidence to conclude that the election returns were manufactured
because the defects were apparent on the face of the election
returns themselves. In fact, a detailed description of each
questioned election return was provided in the Resolution of the
COMELEC (2nd Division).
Forum Shopping: The relief sought in the Extreme Urgent ExParte Manifestation is basically the same as the prayer for a
temporary restraining order in the present petition which was still
pending resolution by this Court at the time the Extreme Urgent
Ex-Parte Manifestation was filed before the COMELEC. However,
for as long as the present petition, including the prayer for
injunctive relief, pends before this Court, the assailed COMELEC
resolutions remain presumptively valid. With the filing of the
present petition, only this Court has jurisdiction to nullify the
COMELEC resolutions or suspend their enforcement.
Another violation of the ban against forum-shopping lies in
petitioners failure to inform this Court of its filing of the Extreme
Urgent Ex-Parte Manifestation with the COMELEC. What is worse
than petitioners forum-shopping is the poll bodys favorable action
on petitioners Extreme Urgent Ex-Parte Manifestation despite
knowledge of the pending petition with this Court. Such action on
the part of COMELEC should not be countenanced and deserves
disapprobation.
Position of Municipal Mayor: The Local Government Code is clear
on the matter of succession. Sec. 44 of R.A. No. 7160 and Art. 83,
Rule XIV of the Implementing Rules of the Local Government
Code governing vacancies and succession, quoted below, apply:
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice
Governor, Mayor, and Vice Mayor. If a permanent vacancy
occurs in the office of the governor or mayor, the vice-governor
or vice-mayor concerned shall become the governor or
mayor. If a permanent vacancy occurs in the offices of the
governor, vice governor, mayor or vice mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the
second highest-ranking sanggunian member, shall become the
governor, vice governor, mayor or vice mayor as the case may be.
Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their
ranking as defined herein:

S . Y.

08-09:

2nd

Sem.

(b) If a permanent vacancy occurs in the office of the punong

barangay, the highest ranking sanggunian barangay member or,
in case of his permanent inability, the second highest ranking
sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian
members shall be resolved by the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired
terms of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from office, voluntarily
resigns, or is otherwise permanently incapacitated to discharge
the functions of his office.
For purposes of succession as provided in this Chapter, ranking in
the sanggunian shall be determined on the basis of the proportion
of votes obtained by each winning candidate to the total number of
registered voters in each district in the immediately preceding
local election. [Emphasis supplied.]
Verily, the vacancy created by the nullification of petitioners
proclamation is in the nature of a permanent vacancy and may be
qualified as a "permanent incapacity to discharge the functions of
his office." Ahajans assumption of the office of Mayor should be
understood as subject to the result of the recount to be conducted
in accordance with the issuances of the COMELEC. Thus, there is
an immediate need for the COMELEC to speedily ascertain the
true will of the electorate in the eight (8) precincts whose election
returns were nullified.
Labo, Jr. v. COMELEC (1992), supra.
The doctrine of res judicata does not apply to questions of
citizenship.
Modes of losing Philippine citizenship
naturalization in a foreign country, express renunciation of
citizenship, subscribing to an oath of allegiance to support the
Constitution or laws of a foreign country. The annulment of
Labos Australian citizenship as a result of the finding that his
marriage to an Australian national was bigamous did not
automatically restore is Philippine citizenship.
Menzon v. Petilla 197 SCRA 251 (1991)
Facts: On February 16, 1988, by virtue of the fact that no
Governor had been proclaimed in the province of Leyte, the
Secretary of Local Government Luis Santos designated the ViceGovernor, Leopoldo E. Petilla as Acting Governor of Leyte. On
March 25, 1988, Aurelio D. Menzon, a senior member of the
Sangguniang Panlalawigan was also designated by Secretary Luis
Santos to act as the Vice-Governor for the province of Leyte.
Menzon took his oath of office before Senator Alberto Romulo.
The Provincial Administrator, Tente U. Quintero inquired from
the Undersecretary of the DILG as to the legality of the
appointment of the petitioner to act as the Vice-Governor of Leyte.
Undersecretary Rubllar stated that since B.P. 337 has no provision
relating to succession in the Office of the Vice-Governor in case of
a temporary vacancy, the appointment of the petitioner as the
temporary Vice- Governor is not necessary since the ViceGovernor who is temporarily performing the functions of the
Governor, could concurrently assume the functions of both offices.

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As a result of the foregoing communications between Tente U.

Quintero and Jacinto T. Rubillar, Jr., the Sangguniang
Panlalawigan, in a special session held on July 7, 1989, issued
Resolution No. 505 where it held invalid the appointment of the
petitioner as acting Vice-Governor of Leyte. The petitioner
through the acting LDP Regional Counsel, Atty. Zosimo Alegre,
sought clarification from Undersecretary Rubillar, Jr. regarding
the June 22, 1989 opinion. Undersecretary Rubillar replied and
explained his opinion: On the basis of the foregoing and
considering that the law is silent in case of temporary vacancy, in
the Office of the Vice-Governor, it is our view that the peculiar
situation in the Province of Leyte, where the electoral controversy
in the Office of the Governor has not yet been settled, calls for the
designation of the Sangguniang Member to act as vice-governor
temporarily.
In view, of the clarificatory letter of Undersecretary Rubillar, the
Regional Director of the DILG, Region 8, Resurreccion
Salvatierra, on July 17, 1989, wrote a letter addressed to the
Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the
latter that Resolution No. 505 of the Sangguniang Panlalawigan
be modified accordingly. Despite these several letters of request,
the Acting Governor and the Sangguniang Panlalawigan, refused
to correct Resolution No. 505 and correspondingly to pay the
petitioner the emoluments attached to the Office of Vice-Governor.
Thus, petitioner filed before this Court a petition for certiorari and
mandamus. The petition sought the nullification of Resolution No.
505 and for the payment of his salary for his services as the acting
Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte
was settled and Adelina Larrazabal was proclaimed the Governor
of the province of Leyte.
Issue:

WON there was a vacancy

Held:

Yes

Ratio:

The law on Public Officers is clear on the matter. There

is no vacancy whenever the office is occupied by a legally qualified

incumbent. A sensu contrario, there is a vacancy when there is no
person lawfully authorized to assume and exercise at present the
duties of the office. Applying the definition of vacancy to this case,
it can be readily seen that the office of the Vice-Governor was left
vacant when the duly elected Vice-Governor Leopoldo Petilla was
appointed Acting Governor. In the eyes of the law, the office to
which he was elected was left barren of a legally qualified person
to exercise the duties of the office of the Vice-Governor.
There is no satisfactory showing that Petilla, notwithstanding his
succession to the Office of the Governor, continued to
simultaneously exercise the duties of the Vice-Governor. The
nature of the duties of a Provincial Governor call for a full-time
occupant to discharge them. More so when the vacancy is for an
extended period. Precisely, it was Petilla's automatic assumption
to the acting Governorship that resulted in the vacancy in the
office of the Vice-Governor. The fact that the Secretary of Local
Government was prompted to appoint the petitioner shows the
need to fill up the position during the period it was vacant. The
Department Secretary had the discretion to ascertain whether or

S . Y.

08-09:

2nd

Sem.

not the Provincial Governor should devote all his time to that
particular office. Moreover, it is doubtful if the Provincial Board,
unilaterally acting, may revoke an appointment made by a higher
authority.
Issue:

WON the Secretary of Local Government had the

authority to designate the petitioner.

Held:

Yes

Ratio: The Local Government Code is silent on the mode of

succession in the event of a temporary vacancy in the Office of the
Vice-Governor. However, the silence of the law must not be
understood to convey that a remedy in law is wanting. The
circumstances of the case reveal that there is indeed a necessity
for the appointment of an acting Vice-Governor. For about two
years after the governatorial elections, there had been no de jure
permanent Governor for the province of Leyte, Governor Adelina
Larrazabal, at that time, had not yet been proclaimed due to a
pending election case before the Commission on Elections.
The two-year interregnum which would result from the
respondents' view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the
people and in the proper management of the affairs of the local
government of Leyte. Definitely, it is incomprehensible that to
leave the situation without affording any remedy was ever
intended by the Local Government Code.
Under the circumstances of this case and considering the silence
of the Local Government Code, the Court rules that, in order to
obviate the dilemma resulting from an interregnum created by the
vacancy, the President, acting through her alter ego, the Secretary
of Local Government, may remedy the situation. We declare valid
the temporary appointment extended to the petitioner to act as
the Vice-Governor. The exigencies of public service demanded
nothing less than the immediate appointment of an acting ViceGovernor.
It may be noted that under Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the President is empowered
to make temporary appointments in certain public offices, in case
of any vacancy that may occur. Albeit both laws deal only with the
filling of vacancies in appointive positions. However, in the
absence of any contrary provision in the Local Government Code
and in the best interest of public service, we see no cogent reason
why the procedure thus outlined by the two laws may not be
similarly applied in the present case. The respondents contend
that the provincial board is the correct appointing power. This
argument has no merit. As between the President who has
supervision over local governments as provided by law and the
members of the board who are junior to the vice-governor, we have
no problem ruling in favor of the President, until the law provides
otherwise.
A vacancy creates an anomalous situation and finds no
approbation under the law for it deprives the constituents of their
right of representation and governance in their own local
government.
In a republican form of government, the majority rules through
their chosen few, and if one of them is incapacitated or absent,

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etc., the management of governmental affairs to that extent, may

be hampered. Necessarily, there will be a consequent delay in the
delivery of basic services to the people of Leyte if the Governor or
the Vice-Governor is missing.
The appointment of the petitioner, moreover, is in full accord with
the intent behind the Local Government Code. There is no
question that Section 49 in connection with Section 52 of the Local
Government Code shows clearly the intent to provide for
continuity in the performance of the duties of the Vice-Governor.
By virtue of the surroundings circumstance of this case, the mode
of succession provided for permanent vacancies may likewise be
observed in case of a temporary vacancy in the same office. In this
case, there was a need to fill the vacancy. The petitioner is himself
the member of the Sangguniang Panlalawigan who obtained the
highest number of votes. The Department Secretary acted
correctly in extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary
attached to the Office of the Vice Governor is indubitable. The
compensation, however, to be remunerated to the petitioner,
following the example in Commonwealth Act No. 588 and the
Revised Administrative Code, and pursuant to the proscription
against double compensation must only be such additional
compensation as, with his existing salary, shall not exceed the
salary authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint the
petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation.
There is no denying that the petitioner assumed the Office of the
Vice-Governor under color of a known appointment. As revealed by
the records, the petitioner was appointed by no less than the alter
ego of the President, the Secretary of Local Government, after
which he took his oath of office before Senator Alberto Romulo in
the Office of Department of Local Government Regional Director
Res Salvatierra. Concededly, the appointment has the color of
validity. The respondents themselves acknowledged the validity of
the petitioner's appointment and dealt with him as such. It was
only when the controversial Resolution No. 505 was passed by the
same persons who recognized him as the acting Vice-Governor
that the validity of the appointment of the petitioner was made an
issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties
attached to the Office of the Vice-Governor. He was acclaimed as
such by the people of Leyte. Upon the principle of public policy on
which the de facto doctrine is based and basic considerations of
justice, it would be highly iniquitous to now deny him the salary
due him for the services he actually rendered as the acting ViceGovernor of the province of Leyte.
Docena v. Sang. Panlalawigan of Eastern Samar (1991)
Facts:

Luis Capito, elected and serving as member of the

Sangguniang Panlalawigan (SP) died in office. Petitioner Agustin

Docena was appointed to succeed Capito. This appontment was
issued by Department of Local Government Secretary Santos
on November 19, 1990. November 27: For unknown reasons,
respondent Socrates Alar was also appointed by Secretary Santos
to the position already occupied by Docena. December 18: the SP

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passed Resolution No. 75 recognizing Alar rather than Docena as

legitimate successor of the late Capito. December 19: Secretary
Santos sent a letter to Alar, informing the latter of the prior
appointment of Docena and recalling Alar's appointment
Issue:

WON Docena should be the appointed member to the

Sangguniang Panlalawigan
Held:

Yes

Ratio:

The pertinent legal provision is Section 50, LGC:

SEC. 50. Permanent Vacancies in Local Sanggunians. Except for

the sangguniang barangay, the appointee shall come from the
political party of the sanggunian member who caused the vacancy,
and shall serve the unexpired term of the vacant office.
1. From the tenor of the appointment extended to Docena on
November 19, 1990, there is no question that it was intended to be
permanent. Petitioner's appointment had already become
complete and enforceable at the time it was supposed to have been
"superseded" by the appointment in favor of Alar.
Docena had already acquired security of tenure in the position and
could be removed therefrom only for any of the causes, and
conformably to the procedure, prescribed by the Local Government
Code. These requirements could not be circumvented by the simple
process of recalling his appointment.
2. The respondents are ambivalent about the power of the
Secretary of Local Government to recall his appointments.
They described the December 19 recall of Alar as "whimsical,
capricious and wishy-washy" for lack of a previous hearing
(although they had no similar complaints about the recall of
Docena's appointment although also made without hearing).
Appointive Local Officials Common to all Municipalities, Cities
and Provinces
De Rama v. CA (2001)
Facts :

Petitioner Conrado L. de Rama, Mayor of Pagbilao,

Quezon, wrote a letter to the Civil Service Commission (dated July

13, 1995) seeking the recall of the appointments of fourteen (14)
municipal employees. Petitioner de Rama justified his recall
request on the allegation that the appointments of said employees
were midnight appointments of the former mayor, Ma. Evelyn S.
Abeja, done in violation of Article VII, Section 15 of the 1987
Constitution.
Three of the said employees, namely: Elsa Marino, Morell Ayala,
and Flordeliza Oriazel, filed with the CSC a claim for payment of
their salaries, alleging that although their appointments were
declared permanent by Conrado Gulim, Director II of the CSC
Field Office based in Quezon, petitoner de Rama withheld the
payment of their salaries and benefits pursuant to Office Order
No. 95-01.
Based on the documents submitted by Marino, Ayala and Oriazel,
the Legal and Quasi-Judicial Division of the CSC issued an Order
finding that since the claimants-employees had assumed their
respective positions and performed their duties pursuant to their

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appointments, they are entitled to receive the salaries and

benefits appurtenant to their positions. The CSC Legal and QuasiJudicial Division ruled that the said employees cannot be deprived
of their salaries and benefits by the unilateral act of the newlyassumed mayor.
CSC denied petitoners request for the recall of appointments of
the fourteen employees, for lack of merit, and declared that the
appointments of the said employees were issued in accordance
with pertinent laws, and cannot be withdrawn or revoked by the
appointing authority until disproved by the CSC. Furthermore,
CSC dismissed petitioners allegation that these were midnight
appointments. Constitutional provision prohibits only those
appointments made by an outgoing President and cannot apply to
local elective officials.
CSC upheld the validity of the appointments, and petitioners
failure to present evidence would warrant the revocation or recall
of the said appointments.
Petitioner moved for the reconsideration of the CSCs Resolution,
averring that the CSC was without jurisdiction: (1) to refuse to
revoke the subject appointments; and (2) to uphold the validity of
said appointments, even assuming there was failure to present
eveidence.
Issue :

Whether

or

not

Article

VII,

Section 15

of

the

Constitution covers local elective officials.

Decision : No. Records reveal that when the petitioner brought

the matter of recalling the appointments of the fourteen (14)
private respondents before the CSC, the only justification he gave
was that these were midnight appointments that are forbidden
under Article VII, Section 15 of the Constitution. The CSC ruled,
and correctly so, that the said prohibition applies only to
presidential appointments. In truth, there is no law that prohibits
local elective officials from making appointments during the last
days of his or her tenure.
DISSENTING

OPINION:

Mendoza.

What

the

majority

overlooks is that Article VII, Section 15 is simply an application of

a broader principle that after the appointing authority has lost the
elections, his is the duty of a prudent caretaker of the office, and
therefore, he should not fill positions in the government unless
required by the imperatives of public service.
Leagues of Local Barangay Units and Elective Officials
David v. COMELEC (1997)
Facts:

In his capacity as barangay chairman of Barangay 77,

Zone 7, Kalookan City and as president of the Liga ng mga

Barangay sa Pilipinas, Alex L. David filed a petition for
prohibition to prohibit the holding of the barangay election
scheduled on the second Monday of May 1997.

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Petitioner Liga ng mga Barangay Quezon City Chapter

represented by its president Bonifacio M. Rillon filed a petition "to
seek a judicial review by certiorari to declare as unconstitutional:
1. Section 43(c) of R.A. 7160 which reads as follows: (c) The
term of office of barangay officials and members of the
sangguniang kabataan shall be for three (3) years, which shall
begin after the regular election of barangay officials on the second
Monday of May 1994.
2. COMELEC Resolution Nos. 2880 and 2887 fixing the date of
the holding of the barangay elections on May 12, 1997 and other
activities related thereto;
3.
The budgetary appropriation of P400 million contained in
Republic Act No. 8250 otherwise known as the General
Appropriations Act of 1997 intended to defray the costs and
expenses in holding the 1997 barangay elections:
Both petitions though worded differently raise the same ultimate
issue: How long is the term of office of barangay officials?
Petitioners contend that under Sec. 2 of RA 6653 "(t)he term of
office of barangay officials shall be for five (5) years . . ." This is
reiterated in RA 6679. Petitioners further aver that although Sec.
43 of RA 7160 reduced the term of office of all local elective
officials to three years, such reduction does not apply to barangay
officials because (1) RA 6679 is a special law applicable only to
barangays while RA 7160 is a general law which applies to all
other local government units; (2) RA 7160 does not expressly or
impliedly repeal RA 6679 insofar as the term of barangay officials
is concerned; (3) while Sec. 8 of Article X of the 1987 constitution
fixes the term of elective local officials at three years, the same
provision states that the term of barangay officials "shall be
determined by law"; and (4) thus, it follows that the constitutional
intention is to grant barangay officials any term, except three
years; otherwise, "there would be no rhyme or reason for the
framers of the Constitution to except barangay officials from the
three year term found in Sec. 8 (of) Article X of the Constitution."
Comelec maintains that RA 7160 repealed all other special laws
relied upon by the petitioner.
Issue:

WON the term of the barangay officials should be

limited only to three years

Held:
Ratio:

Yes
In light of the brief historical background, the intent

and design of the legislature to limit the term of barangay officials

to only three (3) years as provided under the Local Government
Code emerges as bright as the sunlight. The cardinal rule in the
interpretation of all laws is to ascertain and give effect to the
intent of the law. And three years is the obvious intent.
First. RA 7160, the Local Government Code, was enacted later
than RA 6679. It is basic that in case of an irreconcilable conflict
between two laws of different vintages, the later enactment
prevails. Legis posteriores priores contrarias abrogant. The
rationale is simple: a later law repeals an earlier one because it is
the later legislative will. It is to be presumed that the lawmakers
knew the older law and intended to change it. In enacting the
older law, the legislators could not have known the newer one and
hence could not have intended to change what they did not know.

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Under the Civil Code, laws are repealed only by subsequent ones
and not the other way around.
Under Sec. 43-c of RA 7160, the term of office of barangay officials
was fixed at "three (3) years which shall begin after the regular
election of barangay officials on the second Monday of May 1994."
This provision is clearly inconsistent with and repugnant to Sec. 1
of RA 6679 which states that such "term shall be for five years."
Note that both laws refer to the same officials who were elected "on
the second Monday of May 1994."
Second. RA 6679 requires the barangay voters to elect seven
kagawads and the candidate obtaining the highest number of
votes shall automatically be the punong barangay. RA 6653
empowers the seven elected barangay kagawads to select the
punong barangay from among themselves. On the other hand, the
Local Autonomy Code mandates a direct vote on the barangay
chairman by the entire barangay electorate, separately from the
seven kagawads. Hence, under the Code, voters elect eight
barangay officials, namely, the punong barangay plus the seven
kagawads. Under both RA 6679 and 6653, they vote for only seven
kagawads, and not for the barangay chairman.
Third. During the barangay elections held on May 9, 1994 (second
Monday), the voters actually and directly elected one punong
barangay and seven kagawads. If we agree with the thesis of
petitioners, it follows that all the punong barangays were elected
illegally and thus, Petitioner Alex David cannot claim to be a
validly elected barangay chairman, much less president of the
national league, of barangays which he purports to represent in
this petition. It then necessarily follows also that he is not the real
party-in-interest and on that ground, his petition should be
summarily dismissed.
Fourth. In enacting the general appropriations act of 1997,
Congress appropriated the amount of P400 million to cover
expenses for the holding of barangay elections this year. Likewise,
under Sec. 7 of RA 8189, Congress ordained that a general
registration of voters shall be held "immediately after the
barangay elections in 1997." These are clear and express
contemporaneous statements of Congress that barangay officials
shall be elected this May, in accordance with Sec. 43-c of RA 7160.
Fifth. In Paras vs. Comelec, this Court said that "the next regular
election involving the barangay office concerned is barely seven (7)
months away, the same having been scheduled in May, 1997." This
judicial decision, per Article 8 of the Civil Code, is now a "part of
the legal system of the Philippines."
Sixth. Petitioners pompously claim that RA 6679, being a special
law, should prevail over RA 7160, all alleged general law pursuant
to the doctrine of generaila specialibus non derogant. Petitioners
are wrong. RA. 7160 is a codified set of laws that specifically
applies to local government units. It specifically and definitively
provides in its Sec. 43-c that "the term of office of barangay
officials . . . shall be for three years." It is a special provision that
applies only to the term of barangay officials who were elected on
the second Monday of May 1994. With such particularity, the
provision cannot be deemed a general law. Petitioner may be
correct in alleging that RA 6679 is a special law, but they are
incorrect in stating (without however giving the reasons therefor)
that RA 7160 is necessarily a general law. It is a special law
insofar as it governs the term of office of barangay officials. In its

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repealing clause, RA 7160 states that "all general and special laws
. . . which are inconsistent with any of the provisions of this Code
are hereby repealed or modified accordingly." There being a clear
repugnance and incompatibility between the two specific
provisions, they cannot stand together. The later law, RA 7160,
should thus prevail in accordance with its repealing clause. When
a subsequent law encompasses entirely the subject matter of the
former enactments, the latter is deemed repealed.
Issue:

WON the three year term is in accord with the

constitution
Held:

Yes

Ratio:

Petetioner Liga ng mga Barangay Quezon City Chapter

posits that by excepting barangay officials whose "term shall be

determined by law" from the general provision fixing the term of
"elective local officials" at three years, the Constitution thereby
impliedly prohibits Congress from legislating a three year term for
such officers. We find this theory rather novel but nonetheless
logically and legally flawed.
Undoubtedly, the Constitution did not expressly prohibit Congress
from fixing any term of office for barangay officials. It merely left
the determination of such term to the lawmaking body, without
any specific limitation or prohibition, thereby leaving to the
lawmakers full discretion to fix such term in accordance with the
exigencies of public service. It must be remembered that every law
has in its favor the presumption of constitutionality. 38 For a law
to be nullified, it must be shown that there is a clear and
unequivocal (not just implied) breach of the Constitution. 39 To
strike down a law as unconstitutional, there must be a clear and
unequivocal showing that what the fundamental law prohibits, the
statute permits. The petitioners have miserably failed to discharge
this burden and to show clearly the unconstitutionality they aver.
There is absolutely no doubt in our mind that Sec. 43-c of RA 7160
is constitutional. Sec. 8, Article X of the Constitution limiting the
term of all elective local officials to three years, except that of
barangay officials which "shall be determined by law" was an
amendment proposed by Constitutional Commissioner (now
Supreme Court Justice) Hilario G. Davide, Jr. According to Fr.
Joaquin G. Bernas, S.J., the amendment was "readily accepted
without much discussion and formally approved." Indeed, a search
into the Record of the Constitutional Commission yielded only a
few pages of actual deliberations.
Issue:

WON petitioners are Estopped From Challenging Their

Three-Year Terms
Held:

Yes

Ratio:

Respondent Commission on Elections submitted as

Annex "A" of its memorandum, 43 a machine copy of the certificate

of candidacy of Petitioner Alex L. David in the May 9, 1994
barangay elections, the authenticity of which was not denied by
said petitioner. In said certificate of candidacy, he expressly stated
under oath that he was announcing his "candidacy for the office of
punong barangay for Barangay 77, Zone 7" of Kalookan City and

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that he was "eligible for said office." The Comelec also submitted
as Annex "B" 44 to its said memorandum, a certified statement of
the votes obtained by the candidates in said elections.
If, as claimed by petitioners, the applicable law is RA 6679, then
(1) Petitioner David should not have run and could not have been
elected chairman of his barangay because under RA 6679, there
was to be no direct election for the punong barangay; the kagawad
candidate who obtained the highest number of votes was to be
automatically elected barangay chairman; (2) thus, applying said
law, the punong barangay should have been Ruben Magalona, who
obtained the highest number of votes among the kagawads 150,
which was much more than David's 112; (3) the electorate should
have elected only seven kagawads and not one punong barangay
plus seven kagawads. In other words, following petitioners' own
theory, the election of Petitioner David as well as all the barangay
chairmen of the two Liga petitioners was illegal.
The sum total of these absurdities in petitioners' theory is that
barangay officials are estopped from asking for any term other
than that which they ran for and were elected to, under the law
governing thie very claim to such offices: namely, RA 7160, the
Local Government Code. Petitioners' belated claim of ignorance as
to what law governed their election to office in 1994 is
unacceptable because under Art. 3 of the Civil Code, "(i)gnorance
of the law excuses no one from compliance therewith."
Private Counsel/Lawyers for elective local officials
Alinsug v. RTC and Mayor Ponseca (1993)
Facts: Zonsayda Alinsug, had been a regular employee of the
municipal government of Escalante, Negros Occidental, when she
received a permanent appointment as Clerk III in the office of the
Municipal Planning and Development Coordinator of the same
municipality. Mayor Rolando Ponsica detailed her to the Office of
the Mayor. On 19 June 1992, Zonsayda absented herself from
work allegedly to attend to family matters. She had asked
permission from the personnel officer but not from the mayor.
Mayor Ponsica issued Office Order No. 31, suspending Zonsayda
for one month and one day commencing on 24 June 1992 for "a
simple misconduct which can also be categorized as an act of
insubordination." The order also stated that the suspension
"carries with it forfeiture of benefits such as salary and PERA and
leave credits during the duration of its effectivity."
Zonsayda filed with the RTC a petition for injunction with
damages. She alleged that her suspension was an act of political
vendetta. Mayor Ponsica, through private practitioner Samuel SM
Lezama, claimed that Zonsayda had not yet exhausted
administrative remedies and that her suspension was in
accordance with law.
The foregoing elicited a motion from the petitioner, praying that
the answer be disregarded and expunged from the record, and that
the respondents be all declared in default on the ground that since
the respondents were sued in their official capacities, "not
including their private capacities," they should have been
represented by either the municipal legal officer or the provincial
legal officer or prosecutor as provided for by Sec. 481 (b) (i) and (3)
of the Local Government Code. It also cited Sec. 1 of Rep. Act No.

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10 and Art. 177 of the RPC which penalizes usurpation of public

authority.
The respondents opposed the motion. Manifesting that the
municipality of Escalante has no legal officer, they asserted that
both the Local Government Code and the Administrative Code of
1987 do not have any provision "relative to the duty of any
provincial legal officer or prosecutor to represent a municipality or
its officials in suits filed against them by an employee or a private
individual." They contended that it was "unnecessary to provide
such a provision because there (exist) administrative and judicial
rulings sustaining the validity of the employment of a private
counsel by municipal officials.
The lower court issued the Order denying the motion on the thesis
that since the appointment of a legal officer was optional on the
part of the municipal government (Art. 481, third paragraph,
Local Government Code) and the municipality of Escalante had
not, in fact, designated any such legal officer, petitioner's move to
declare respondents in default "for having retained a private
counsel" was not thereby legally sustainable.
Issue:
WON
a private counsel may represent municipal
officials sued in their official capacities
Ratio:
It appears that the law allows a private counsel to be
hired by a municipality only when the municipality is an adverse
party in a case involving the provincial government or another
municipality or city within the province. This provision has its
apparent origin in the ruling in De Guia v. The Auditor General
where the Court held that the municipality's authority to employ a
private attorney is expressly limited only to situations where the
provincial fiscal would be disqualified to serve and represent it.
With Sec. 1683 of the old Administrative Code as legal basis, the
Court therein cited Enriquez, Sr. v. Gimenez which enumerated
instances when the provincial fiscal is disqualified to represent in
court a particular municipality; if and when original jurisdiction
of case involving the municipality is vested in the Supreme Court,
when the municipality is a party adverse to the provincial
government or to some other municipality in the same province,
and when, in a case involving the municipality, he, or his wife, or
child, is pecuniarily involved, as heir legatee, creditor or
otherwise.
Thereafter, in Ramos v. Court of Appeals, the Court ruled that a
municipality may not be represented by a private law firm which
had volunteered its services gratis, in collaboration with the
municipal attorney and the fiscal, as such representation was
violative Sec. 1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have been dictated by
the fact that "the municipality should not be burdened with
expenses of hiring a private lawyer" and that "the interests of the
municipality would be best protected if a government lawyer
handles its litigations."
But would these proscriptions include public officials? Not
necessarily. It can happen that a government official, ostensibly
acting in his official capacity and sued in that capacity, is later
held to have exceeded his authority. On the one hand, his defense
would have then been underwritten by the people's money which
ordinarily should have been his personal expense. On the other

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hand, personal liability can attach to him without, however, his

having had the benefit of assistance of a counsel of his own choice.
In Correa v. CFI of Bulacan, 10 the Court held that in the
discharge of governmental functions, "municipal corporations are
responsible for the acts of its officers, except if and when, the only
to the extent that, they have acted by authority of the law, and in
conformity with the requirements thereof."
In such instance, this Court has sanctioned that representation by
private counsel. In one case, We held that where rigid adherence
to the law on representation of local officials in court actions could
deprive a party of his right to redress for a valid grievance, the
hiring of a private counsel would be proper. And, in Albuera v.
Torres, this Court also said that a provincial governor sued in his
official capacity may engage the services of private counsel when
"the complaint contains other allegations and a prayer for moral
damages, which, if due from the defendants, must be satisfied by
them in their private capacity."
The key then to resolving the issue of whether a local government
official may secure the services of private counsel, in an action
filed against him in his official capacity, lies on the nature of the
action and the relief that is sought.
While the petition below was filed against respondents as public
officials, its allegations were also aimed at questioning certain acts
that can well bring the case beyond the mere confines of official
functions; thus
2.12 These actuations of the respondent mayor in detailing
petitioner to his office and eventually suspending her from work,
particularly the latter are no doubt respondent mayor's political
vendetta of petitioner, a vengeance unleased on her for her
children's and family's not going with and voting for him in the
May 11, 1992 election and instead supporting the candidacy of
their relative-candidate (Mr. Barcelona) in said election, who was
his greated (sic) worry at that time.
2.13 The aforesaid acts of respondent mayor are clearly,
apparently and obviously a political harassment and persecution,
appreasive (sic), acts of vindictiveness, a grave abuse of executive
discretion, despotic, unjust, unwarranted, condemnable and
actionable; the indefinite detail order and, especially the
suspension, were not done in good faith, not for a valid cause, and
done without giving petitioner opportunity to be heard, hence, null
and void for being violative of petitioner's legal and constitutional
right to due process. .
The petition then went on to claim moral and exemplary damages,
as well as litigation expenses, as shown by its prayer. Moral
damages cannot generally be awarded unless they are the
proximate result of a wrongful act or omission. Exemplary
damages, on the other hand, are not awarded if the defendant had
not acted in a wanton, oppressive or malevolent manner nor in the
absence of gross or reckless negligence. A public official, who in
the performance of his duty acts in such fashion, does so in excess
of authority, and his actions would be ultra vires that can thereby
result in an incurrence of personal liability.
Municipality of Pililia, Rizal v. CA (1994)
Facts: The RTC rendered judgment in favor of petitioner
Municipality of Pililla, Rizal, against private respondent
Philippine Petroleum Corporation, ordering therein defendant to

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pay said plaintiff (1) the amount of P5,301,385.00 representing the

tax on business due from the defendant under Section 9(A) of
Municipal Tax Ordinance No. 1 of said municipality for the period
from 1979 to 1983. The SC affirmed the judgment with
modification .
Atty. Felix E. Mendiola filed a motion in behalf of plaintiff
municipality with the RTC for the examination of defendant
corporation's gross sales for the years 1976 to 1978 and 1984 to
1991 for the purpose of computing the tax on business imposed
under the Local Tax Code, as amended. The corporation filed a
manifestation to the effect that the mayor already received the
sum as evidenced by the release and quitclaim documents
executed by said mayor. The court below issued an order denying
plaintiff municipality's motion for examination and execution of
judgment on the ground that the judgment in question had
already been satisfied.
When Atty. Mendiola ffiled a petition for certiorari with the SC,
PPC filed a motion questioning Atty. Mendiola's authority to
represent petitioner municipality. The CA dismissed the petition
for having been filed by a private counsel in violation of law and
jurisprudence, but without prejudice to the filing of a similar
petition by the Municipality of Pililla through the proper
provincial or municipal legal officer.
Issue:

WON Atty. Mendiola has authority to file a petition in

behalf of the municipality

Held:

No

Ratio:

The Court of Appeals is correct in holding that Atty.

Mendiola has no authority to file a petition in behalf of and in the

name of the Municipality of Pililla. The matter of representation
of a municipality by a private attorney has been settled in Ramos
vs. Court of Appeals, et al., and reiterated in Province of Cebu vs.
Intermediate Appellate Court, et al., where we ruled that private
attorneys cannot represent a province or municipality in lawsuits.
Under the above provision, complemented by Section 3, Republic
Act No. 2264, the Local Autonomy Law, only the provincial fiscal
and the municipal attorney can represent a province or
municipality in their lawsuits. The provision is mandatory. The
municipality's authority to employ a private lawyer is expressly
limited only to situations where the provincial fiscal is disqualified
to represent it. For the aforementioned exception to apply, the fact
that the provincial fiscal was disqualified to handle the
municipality's case must appear on record. In the instant case,
there is nothing in the records to show that the provincial fiscal is
disqualified to act as counsel for the Municipality of Pililla on
appeal, hence the appearance of herein private counsel is without
authority of law.
The submission of Atty. Mendiola that the exception is broad
enough to include situations wherein the provincial fiscal refuses
to handle the case cannot be sustained. The fiscal's refusal to
represent the municipality is not a legal justification for employing
the services of private counsel. Unlike a practicing lawyer who has
the right to decline employment, a fiscal cannot refuse to perform
his functions on grounds not provided for by law without violating
his oath of office. Instead of engaging the services of a special

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attorney, the municipal council should request the Secretary of

Justice to appoint an acting provincial fiscal in place of the
provincial fiscal who has declined to handle and prosecute its case
in court, pursuant to Section 1679 of the Revised Administrative
Code.
It is also significant that the lack of authority of herein counsel,
Atty. Mendiola, was even raised by the municipality itself in its
comment and opposition to said counsel's motion for execution of
his lien, which was filed with the court a quo by the office of the
Provincial Prosecutor of Rizal in behalf of said municipality.
The contention of Atty. Mendiola that private respondent cannot
raise for the first time on appeal his lack of authority to represent
the municipality is untenable. The legality of his representation
can be questioned at any stage of the proceedings. In the cases
hereinbefore cited, the issue of lack of authority of private counsel
to represent a municipality was only raised for the first time in the
proceedings for the collection of attorney's fees for services
rendered in the particular case, after the decision in that case had
become final and executory and/or had been duly executed.
Furthermore, even assuming that the representation of the
municipality by Atty. Mendiola was duly authorized, said
authority is deemed to have been revoked by the municipality
when the latter, through the municipal mayor and without said
counsel's participation, entered into a compromise agreement with
herein private respondent with regard to the execution of the
judgment in its favor and thereafter filed personally with the court
below two pleadings entitled and constitutive of a "Satisfaction of
Judgment" and a "Release and Quitclaim".
A client, by appearing personally and presenting a motion by
himself, is considered to have impliedly dismissed his lawyer.
Herein counsel cannot pretend to be authorized to continue
representing the municipality since the latter is entitled to
dispense with his services at any time. Both at common law and
under Section 26, Rule 138 of the Rules of Court, a client may
dismiss his lawyer at any time or at any stage of the proceedings,
and there is nothing to prevent a litigant from appearing before
the court to conduct his own litigation.
The client has also an undoubted right to compromise a suit
without the intervention of his lawyer. 22 Even the lawyers' right to
fees from their clients may not be invoked by the lawyers
themselves as a ground for disapproving or holding in abeyance
the approval of a compromise agreement. The lawyers concerned
can enforce their rights in the proper court in an appropriate
proceeding in accordance with the Rules of Court, but said rights
may not be used to prevent the approval of the compromise
agreement.
The apprehension of herein counsel that it is impossible that the
municipality will file a similar petition, considering that the
mayor who controls its legislative body will not take the initiative,
is not only conjectural but without factual basis. Contrary to his
pretensions, there is presently a manifestation and motion
pending with the trial court filed by the aforesaid municipal mayor
for the withdrawal of the "Satisfaction of Judgment" and the
"Release and Quitclaim" 24 previously filed in the case therein as
earlier mentioned.
Ramos v. CA (1997)

S . Y.
Facts:

08-09:

2nd

Sem.

On April 18, 1990, petitioners filed a petition before the

court a quo for the Declaration of Nullity of Municipal Ordinances

No. 91 (1976) and No. 7 (1990) and the contract of lease over a
commercial arcade to be constructed in the municipality of
Baliuag, Bulacan. Meanwhile, the provincial Fiscal and the
Provincial Attorney, Oliviano D. Regalado, filed an Answer on
behalf of respondent municipality.
At the pre-trial conference, Atty. Roberto B. Romanillos appeared,
manifesting that he was counsel for the municipality. On the same
date, Atty. Romanillos filed a motion to dissolve injunction and a
motion to admit an Amended Answer with motion to dismiss. The
provincial attorney appeared as collaborating counsel of Atty.
Romanillos. The Provincial Fiscal did not appear. It was Atty.
Romanillos who submitted the Reply to petitioners' Opposition to
respondents' motion to dissolve injunction. It was also Atty.
Romanillos who submitted a written formal offer of evidence for
the municipality.
Despite the hearing, petitioners questioned the personality of Atty
Romanillos to appear as counsel of the municipality. Meanwhile,
Atty. Romanillos and Atty. Regalado filed a joint stating that Atty.
Romanillos was withdrawing as counsel for respondent
municipality and that Atty. Regalado, as his collaborating counsel
for respondent municipality, is adopting the entire proceedings
participated in/undertaken by Atty. Romanillos. The judge denied
the petitioners motion to disqualify.
Issue:

Who is Authorized to Representa Municipality in its

Lawsuits?
Ratio:

In the recent case of Municipality of Pililla, Rizal vs. CA,

this Court, through Mr. Justice Florenz D. Regalado, set in clearcut terms the answer to the question of who may legally represent
a municipality in a suit for or against it, thus: . . . The matter of
representation of a municipality by a private attorney has been
settled in Ramos vs. CA, et al., and reiterated in Province of Cebu
vs. IAC, et al., where we ruled that private attorneys cannot
represent a province or municipality in lawsuits.
Section 1683 of the Revised Administrative Code provides: Sec.
1683.
Duty of fiscal to represent provinces and provincial
subdivisions in litigation. The provincial fiscal shall represent the
province and any municipality or municipal district thereof in any
court, except in cases whereof (sic) original jurisdiction is vested in
the Supreme Court or in cases where the municipality or
municipal district in question is a party adverse to the provincial
government or to some other municipality or municipal district in
the same province. When the interests of a provincial government
and of any political division thereof are opposed, the provincial
fiscal shall act on behalf of the province. When the provincial fiscal
is disqualified to serve any municipality or other political
subdivision of a province a special attorney may be employed by its
council.
Under the above provision, complemented by Section 3, RA 2264,
the Local Autonomy Law, only provincial fiscal and the municipal
attorney can represent a province or municipality in their
lawsuits. The provision is mandatory. The municipality's authority
to employ a private lawyer is expressly limited only to situations
where the provincial fiscal is disqualified to represent it. For the

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aforementioned exception to apply, the fact that the provincial

fiscal was disqualified to handle the municipality's case must
appear on record. In the instant case, there is nothing in the
records to show that the provincial fiscal is disqualified to act as
counsel for the Municipality of Pililla on appeal, hence the
appearance of herein private counsel is without authority of law.
The provincial fiscal's functions as legal officer and adviser for the
civil cases of a province and corollarily, of the municipalities
thereof, were subsequently transferred to the provincial attorney.
The foregoing provisions of law and jurisprudence show that only
the provincial fiscal, provincial attorney, and municipal attorney
should represent a municipality in its lawsuits. Only in
exceptional instances may a private attorney be hired by a
municipality to represent it in lawsuits.
These exceptions are enumerated in the case of Alinsug vs. RTC
Br. 58, San Carlos City, Negros Occidental, to wit: Indeed, it
appears that the law allows a private counsel to be hired by a
municipality only when the municipality is an adverse party in a
case involving the provincial government or another municipality
or city within the province. This provision has its apparent origin
in the ruling in De Guia v. The Auditor General where the Court
held that the municipality's authority to employ a private attorney
is expressly limited only to situations where the provincial fiscal
would be disqualified to serve and represent it. With Sec. 1683 of
the old Administrative Code as legal basis, the Court therein cited
Enriquez, Sr. v. Gimenez which enumerated instances when the
provincial fiscal is disqualified to represent in court a particular
municipality; if and when original jurisdiction of case involving
the municipality is vested in the Supreme Court, when the
municipality is a party adverse to the provincial government or to
some other municipality in the same province, and when, in a case
involving the municipality, he, or his wife, or child, is pecuniarily
involved, as heir legatee, creditor or otherwise.
Thereafter, in Ramos vs. CA, the Court ruled that a municipality
may not be represented by a private law firm which had
volunteered its services gratis, in collaboration with the municipal
attorney and the fiscal, as such representations was violative of
Sec. 1683 of the old Administrative Code. This strict coherence to
the letter of the law appears to have been dictated by the fact that
"the municipality should not be burdened with expenses of hiring
a private lawyer" and that the interests of the municipality would
be best protected if a government lawyer handles its litigations.
None of the foregoing exceptions is present in this case. It may be
said that Atty. Romanillos appeared for respondent municipality
inasmuch as he was already counsel of Kristi Corporation which
was sued with respondent municipality in this same case. The
order of the trial court dated September 19, 1990, stated that Atty.
Romanillos "entered his appearance as collaborating counsel of
the provincial prosecutor and the provincial attorney." This
collaboration is contrary to law and hence should not have been
recognized as legal. It has already been ruled in this wise:
The fact that the municipal attorney and the fiscal are supposed to
collaborate with a private law firm does not legalize the latter's
representation of the municipality of Hagonoy in Civil Case No.
5095-M. While a private prosecutor is allowed in criminal cases,
an analogous arrangement is not allowed in civil cases wherein a
municipality is the plaintiff.

S . Y.

08-09:

2nd

Sem.

As already stated, private lawyers may not represent

municipalities on their own. Neither may they do so even in
collaboration with authorized government lawyers. This is
anchored on the principle that only accountable public officers may
act for and in behalf of public entities and that public funds should
not be expanded to hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality
of the appearance of Atty. Romanillos, notwithstanding that they
questioned the witnesses of respondent municipality during the
hearing of its motion to dissolve the preliminary injunction.
Municipality of Pililla, Rizal vs. Court of Appeals held that the
legality of the representation of an unauthorized counsel may be
raised at any stage of the proceedings.
Elementary fairness dictates that parties unaware of the
unauthorized representation should not be held in estoppel just
because they did not question on the spot the authority of the
counsel for the municipality. The rule on appearances of a lawyers
is that until the contrary is clearly shown, an attorney is
presumed to be acting under authority of the litigant whom he
purports to represent. His authority to appear for and represent
petitioner in litigation, not having been questioned in the lower
court, it will be presumed on appeal that counsel was properly
authorized to file the complaint and appear for his client.
Issue:

Would the adoption by Atty. Regalado of the proceedings

participated in by Atty. Romanillos validate such proceedings?

Held:

Yes

Ratio: It does not appear that the adoption of proceedings

participated in or undertaken by Atty. Romanillos when he was
private counsel for the respondent municipality of Baliuag such
as the proceedings on the motion to dissolve the injunction,
wherein petitioners had even cross-examined the witnesses
presented by Atty. Romanillos in support of said motion and had
even started to present their witnesses to sustain their objection
to the motion would have resulted in any substantial prejudice to
petitioners' interest. As Wee see it, to declare the said proceedings
null and void notwithstanding the formal adoption thereof by
Atty. Regalado as Provincial Attorney of Bulacan in court and to
require trial anew to cover the same subject matter, to hear the
same witnesses and to admit the same evidence adduced by the
same parties cannot enhance the promotion of justice.
This Court believes that conferring legitimacy to the appearance
of Atty. Romanillos would not cause substantial prejudice on
petitioners. Requiring new trial on the mere legal technicality
that the municipality was not represented by a legally authorized
counsel would not serve the interest of justice. After all, this Court
does not see any injustice committed against petitioners by the
adoptions of the work of private counsel nor any interest of justice
being served by requiring retrial of the case by the duly authorized
legal representative of the town.
In sum, although a municipality may not hire a private lawyer to
represent it in litigations, in the interest of substantial justice
however, we hold that a municipality may adopt the work already
performed in good faith by such private lawyer, which work is
beneficial to it (1) provided that no injustice it thereby heaped on

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(Guanzon)

the adverse party and (2) provided further that no compensation

in any guise is paid therefor by said municipality to the private
lawyer. Unless so expressly adopted, the private lawyers work
cannot bind the municipality.
Issue:

WON Joint Motion Need Not Comply with Rule 15

Held:

Yes

Ratio:
We also agree with the justification of public respondent
than a motion to withdraw the appearance of an unauthorized
lawyer is a non-adversarial motion that need not comply with
Section 4 Rule 15 as to notice to the adverse party. The
disqualification of Atty. Romanillos was what petitioners were
really praying for when they questioned his authority to appear for
the municipality. The disqualification was granted, thereby
serving the relief prayed for by petitioners. such being the case, no
"notice directed to the parties concerned and served at least 3 days
before the hearing thereof" 30 need be given petitioners, the
questioned motion not being contentious. Besides, what
petitioners were questioning as to lack of authority was remedied
by the adoption of proceedings by an authorized counsel, Atty.
Regalado. The action of the trial court allowing the motion of
respondent municipality effectively granted petitioners motion to
disqualify Atty. Romanillos. In People vs. Leviste, we ruled that:
While it is true any motion that does not comply with the
requirements of Rule 15 should not be accepted for filing and, if
filed, is not entitled to judicial cognizance, this Court has likewise
held that where a rigid application of the rule will result in a
manifest failure or miscarriage of justice, technicalities may be
disregarded in order to resolve the case. Litigations should, as
much as possible, be decided on the merits and not on
technicalities. As this Court held in Galvez vs. Court of Appeals,
"an order of the court granting the motion to dismiss despite the
absence of a notice of hearing, or proof of service thereof, is merely
an irregularity in the proceedings . . . which cannot deprive a
competent court of jurisdiction over the case."
It should be remembered that rules of procedure are but tools
designed to facilitate the attainment of justice, such that when
rigid application of the rules tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend their
operation.
Salalima v. Guingona 257 SCRA 55 (1996)
Facts:

This refers to the administrative complaint filed against

Albay Governor Romeo Salalima, Vice-Governor Danilo Azafla,

Albay Sangguniang Panlalawigan Members Juan Victoria,
Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo,
Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and
Nemesio Baclao relative to the retainer contract for legal services
entered into between the Province of Albay, on the one hand, and
Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the
other, and the disbursement of public fund in payment thereof.
The complaint alleges that by entering into the retainer
agreement with private lawyers and paying P7, 380, 410.31 to the
said private lawyers, respondents violated several provisions of
law which warrants the imposition of administrative penalties

S . Y.

08-09:

2nd

Sem.

against them. It is to be noted that respondents Victoria, Reyeg,

Cabredo, Marcellana and Osia were not yet members of the
Sangguniang Panlalawigan when Resolution No. 129 was passed.
However, the complaint alleges that these respondents were
named in the complaint because they approved the supplemental
budget/appropriation ordinances providing for the payment of the
attorneys fees.
Issue:

WON

respondents

have

incurred

administrative

liability in entering into the retainer agreement with Atty.

Cornago and the Cortes & Reyna Law Firm and in making
payments pursuant to said agreement for purposes of the case
filed by NPC with the Supreme Court against the Province.
Held:

Yes

Ratio:

Sec. 481 of the Local Government Code (R.A. No. 7160)

requires the appointment of a legal officer for the province whose

functions include the following: Represent the local government
unit in all civil actions and special proceedings wherein the local
government unit or any official thereof, in his official capacity is a
party; Provided, That, in actions or proceeding where a component
city or municipality is a party adverse to the provincial
government or to another component city or municipality, a special
legal officer may be employed to represent the adverse party.
The Supreme Court has ruled in Municipality of Bocaue, et al. v.
Manotok, that local government units cannot be represented by
private lawyers and it is solely the Provincial Fiscal who can
rightfully represent them. This ruling applies squarely to the case
at hand because Sec. 481 of the Local Government Code is based
on Sec. 1681 of the Revised Administrative Code which was the
subject of interpretation in the case of Municipality of Bocaue, et
al. v. Manotok. In hiring private lawyers to represent the Province
of Albay, respondents exceeded their authority and violated the
abovequoted section of the Local Government Code and the
doctrine laid down by the Supreme Court.
qMoreover, the entire transaction was attended by irregularities.
First, the disbursements to the lawyers amounting to
P7,380,410.31 were disallowed by the Provincial Auditor on the
ground that these were made without the prior written conformity
of the Solicitor General and the written concurrence of the
Commission on Audit (COA) as required by COA Circular No. 8625 5 dated 2 April 1986.
The respondents attempted to dispute this finding by presenting
the Solicitor Generals conformity dated 15 July 1993. This
conformity was, however obtained after the disbursements were
already made in 1990 and 1992. What is required by COA Circular
No. 86-255 is a prior written conformity and acquiescence of the
Solicitor General.
Another irregularity in the transaction concerns the lawyers.
Resolution No. 0 1-90 authorized the respondent Governor to sign
and confirm a retainer contract for legal services with the Cortes
& Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City.
The retainer contract signed by respondent Governor was,
however, not only with the Cortes & Reyna Law Firm but also
with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas
Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the

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Cortes & Reyna Law Firm are two separate entities is evident
from the retained contract itself.
In entering into a retainer agreement not only with the Cortes &
Reyna Law Firm but also with Atty. Jose R. Cornago, respondent
Governor exceeded his authority under Resolution No. 01-90.
Complicating further the web of deception surrounding the
transaction is the fact that it was only Atty. Cornago who
appeared as collaborating counsel of record of the Province in the
Supreme Court case. Even the Solicitor General, in his letter to
respondent Governor dated 15 July 1993, noted that the Province
is represented in the Supreme Court by Attys. Ricafort Cornago
and Glenn Manahan but not by the Cortes & Reyna Law Firm.
Furthermore, the memorandum with the Supreme Court filed for
the Province was signed by Atty. Cornago and not by the Cortes &
Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm
was not counsel of record of the Province in G.R. No. 87479. And
yet, six of the ten checks paid by the Province and amounting to
more than P3.6 million were issued in favor of the Cortes & Reyna
Law Firm through Atty. Antonio Jose Cortes. In other words,
respondents disbursed money to the Cortes & Reyna Law Firm
although the latter did not appear as counsel for the Province in
the Supreme Court in G.R. No. 87479.
Finally, the attorneys fees agreed upon by respondent Salalima
and confirmed by the other respondents are not only unreasonable
but also unconscionable. The contingent fee of 18% of the P2l4
million claim of the Province against NPC amounts to P38.5
million. The word unconscionable, as applied to attorneys fee,
means nothing more than that the fee contracted for, standing
alone and unexplained would be sufficient to show that an unfair
advantage had been taken of the client, or that a legal fraud had
been taken of the client, or that a legal fraud had been
perpetrated on him.
The Province has a legal officer, Atty. Ricafort, who had already
filed a comment on NPCs petition against the Province. The
comment filed by Atty. Ricafort already covers the basic issues
raised in the petition. When Atty. Cornago filed an appearance
and subsequently a memorandum for the Province, the petition
was already been given due course by the Supreme Court and the
only pleading to be filed by the parties before the Court would
issue its decision was a memorandum. Surely, one memorandum
could not be worth P38.5 million.
Furthermore, the professional character and social standing of
Atty. Cornago are not such as would merit a P38.5 million fee for
the legal services rendered for the Province. During the hearing,
respondent Governor admitted that he had hired Atty. Cornago
because they were schoolmates at San Beda College.
It is evident that respondent Governor hired Atty. Cornago not on
the basis of his competency and standing in the legal community
but purely for personal reasons. Likewise, the standing of the
Cortes & Reyna Law Firm is not such as would merit P38.5
million for one memorandum, which, in this case, it had not even
filed because it was not the counsel of record. Hence, considering
the labor and time involved, the skill and experience called for in
the performance of the services and the professional character and
social standing of the lawyers, the attorneys fee of P38.5 million is
unconscionable. By allowing such scandalously exorbitant
attorneys fees which is patently disadvantageous to the

S . Y.

08-09:

2nd

Sem.

government, respondents betrayed a personal bias to the lawyers

involved and committed abuse of authority.
Disciplinary Actions
Ganzon v. CA (1991), supra.
Facts:

DLG Secretary issued against Mayor Ganzon 3 separate

orders of 60-day preventive suspensions dated Aug11 1988, Oct11

1988, and May3 1990. A fourth order was issued on July3, 1991.
On August 5, 1991, SC issued order that the first 3 suspensions
are affirmed provided that Ganzon may not be made to serve
future suspensions on account of any of the remaining admin
charges against him. Ganzon filed a petition for mandamus with
"manifestation and compliance," alleging that he had already fully
served the suspension orders issued against him, in compliance
with the August 5 SC Order, and that he should be allowed to reassume his office starting September 4 1991.
Held:

Simultaneous service of the 3 rd and 4th orders of

suspension can be allowed Under the bizarre circumstances of

CAB, It would work in favor of Ganzon, an elective official, and it
presumably will favor the local constituency and certainly lessen if
not offset the harsh effects of whatever motive may be behind the
intriguing action of DLG Sec in issuing the successive suspension
orders especially when he could have pursued a consolidated
effort.
SC takes judicial notice of recently-approved LGC which provides,
under Sec63 as to imposition of preventive suspensions, that
Sec63 (b). . . that, any single preventive suspension of local elective
official shall not extend beyond sixty (60) days: Provided, further
that in the event that several administrative cases are filed against
an elective official, he cannot be preventively suspended for more
than ninety (90) days within a single year on the same ground or
grounds existing and known at the time of the first suspension."
Espiritu v. Melgar (1992)
Facts:

Ramir Garing filed a sworn letter-complaint with

Secretary Luis Santos of DILG charging Mayor Nelson Melgar of

Naujan. Oriental Mindoro, with grave misconduct, oppression.
abuse of authority, culpable violation of the Constitution and
conduct prejudicial to the best interest of the public service.
Melgar allegedly assaulted Garing and ordered his arrest and
detention in the municipal jail of Naujan without filing any
charges until his released the following day. An identical letter
complaint was filed by Garing with Provincial Governor of
Oriental Mindoro Benjamin Espiritu, accusing Melgar of the same
violations.A third complaint filed by Garing with the Presidential
Action Center, OP.
Mayor Melgar submitted his answer wherein he said that while he
was delivering a speech during a graduation ceremony, Garing
suddenly clapped causing disturbance on the part of the audience.
When the Mayor ended his speech, he instructed a policeman to
investigate Garing. It appeared that Garing was drunk. The
mayor also presented medical certificate proving that Garing was
not hurt. A balison was then taken from Garing. The mayor

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informed Garing to go home (he had sobered up), but he refused to

go and only did so the following morning.
The Sangguniang Panlalawigan of Oriental Mindoro passed
Resolution No 55, recommending to the Provincial Governor that
the Mayor be preventively suspended for 45 days pending the
investigation of the administrative complaint. When the mayor
received the order of suspension, he filed a "Petition for Certiorari
with Preliminary Injunction with prayer for Restraining Order" in
the RTC of Oriental Mindoro
alleging that "the order of
suspension was an arrogant, despotic and arbitrary abuse of
power" by the Governor. The RTC judge issued a writ of
preliminary injunction enjoining Governor Espiritu from
implementing the Order of suspension against Mayor Melgar
On appeal, petitioner contends that the trial judge erred in
granting the preliminary injunction since the Governor is
empowered under Sec 63 LGC to place an elective municipal
official under preventive suspension pending decision of an
administrative case against the elective municipal official.
Also, under Sec 61 LGC, the Sangguniang Panlalawigan has
jurisdiction over the complaints against any municipal official,
while Section 19(c) of the Judiciary Reorganization Act of 1930
withdrew from RTCs jurisdictions over such cases. Also, the mayor
has a remedy of appeal under Sec 66 LGC.
Issue:

WON the governor has the power to suspend the mayor

Held:

Yes

Ratio: Under Section 63 LGC, the provincial governor of Oriental

Mindoro is authorized by law to preventively suspend the
municipal mayor of Naujan at anytime after the issues had been
joined and any of the following grounds were shown to exist:
When there is reasonable ground to believe that the respondent
has committed the act or acts complained of;
When the evidence of culpability is strong;
When the gravity of the offense so warrants; or
When the continuance in office of the respondent could influence
the witnesses or pose a threat to the safety and integrity of the
records and other evidence.
There is nothing improper in suspending an officer before the
charges against him are heard and before he is given an
opportunity to prove his innocence. Preventive suspension is
allowed so that the respondent may not hamper the normal course
of the investigation through the use of his influence and authority
over possible witnesses.
Since the mayor believed that his preventive suspension was
unjustified and politically motivated, he should have sought relief
first from the Secretary of DILG, not from the courts. Mayor
Melgar's direct recourse to the courts without exhausting
administrative remedies was premature. The RTC had no
jurisdiction over Special Civil Action No. R-5003 and gravely
abused its discretion in refusing to dismiss the case.
There may exist honest differences of opinion with regard to the
seriousness of the charges, or as to whether they warrant
disciplinary action. However, as a general rule, the office or body
that is invested with the power of removal or suspension should be
the sole judge of the necessity and sufficiency of the cause. So,

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unless a flagrant abuse of the exercise of that power is shown,

public policy and a becoming regard for the principle of separation
of powers demand that the action of said officer or body should be
left undisturbed.
However, in this particular case. since the 60-day preventive
suspension of Mayor Melgar was maintained by the Temporary
Restraining Order which we issued on August 6, 1991, and
therefore has already been served, he is deemed reinstated in
office without prejudice to the continuation of the administrative
investigation of the charges against him.
Aguinaldo v. Santos (1992)
Facts: Petitioner was the duly elected Governor of the province of
Cagayan. Shortly after the December 1989 coup d'etat was
crushed, the Secretary of Local Government sent a telegram and a
letter, to petitioner requiring him to show cause why he should not
be suspended or removed from office for disloyalty to the Republic,
within forty-eight (48) hours from receipt thereof.
A sworn
complaint for disloyalty to the Republic and culpable violation of
the Constitution was filed by Veronico Agatep, Manuel Mamba
and Orlino Agatep, the mayors of the municipalities of Gattaran,
Tuao and Lasam, all in Cagayan, against petitioner for acts the
latter committed during the coup.
In his letter, petitioner denied being privy to the planning of the
coup or actively participating in its execution, though he admitted
that he was sympathetic to the cause of the rebel soldiers. The
Secretary suspended petitioner from office for 60 days from notice,
pending the outcome of the formal investigation. During the
hearing, petitioner did not present any evidence and instead
moved that the Secretary inhibit himself, which motion was
denied. Later, the Secretary rendered a decision finding petition
guilty as charged and ordering his removal from office. The Vice
Governor, Melvin Vargas was installed as Governor.
In this appeal, the power of the Secretary to suspend officials was
repealed by the 1987 Constitution and that the act of disloyalty
committed by petitioner was not proven beyond reasonable doubt.
While the case was pending before the SC, petitioner filed his
certificate of candidacy for the position of Governor of Cagayan.
Three petitions for disqualification were filed against him on the
ground that he had been removed from office. The Comelec
granted the petition. Later, this was reversed on the ground that
the decision of the Secretary has not yet attained finality and is
still pending review with the Court. As petitioner won by a
landslide margin in the elections, the resolution paved the way for
his eventual proclamation as Governor of Cagayan.
Issue: WON the Secretary has the power to suspend or remove
local government officials as alter ego of the President
Held: Yes
Ratio: Petitioner's re-election to the position of Governor of
Cagayan has rendered the administrative case pending before Us
moot and academic. It appears that after the canvassing of votes,
petitioner garnered the most number of votes among the
candidates for governor of Cagayan province. As held by this Court
in Aguinaldo v. Comelec et al:

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the reelection to office operates as a condonation of the officer's

misconduct to the extent of cutting off the right to remove him
therefor. The Court should never remove a public officer for acts
done prior to his present term of office. To do otherwise would be
to deprive the people of their right to elect their officers. When the
people have elected a man to office, it must be assumed that they
did this with knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if he had been
guilty of any. It is not for the court, by reason of such fault or
misconduct, to practically overrule the will of the people.
Clearly then, the rule is that a public official can not be removed
for administrative misconduct committed during a prior term,
since his re-election to office operates as a condonation of the
officer's previous misconduct to the extent of cutting off the right
to remove him therefor. The foregoing rule, however, finds no
application to criminal cases pending against petitioner for acts he
may have committed during the failed coup.
The power of respondent Secretary to remove local government of
officials is anchored on both the Constitution and a statutory
grant from the legislative branch. The constitutional basis is
provided by Articles VII (17) and X (4) of the 1987 Constitution
which vest in the President the power of control over all executive
departments, bureaus and offices and the power of general
supervision over local governments, and by the doctrine that the
acts of the department head are presumptively the acts of the
President unless expressly rejected by him. 4 The statutory grant
found in B.P. Blg. 337 itself has constitutional roots, having been
enacted by the then Batasan Pambansa pursuant to Article XI of
the 1973 Constitution, Section 2. A similar provision is found in
Section 3, Article X of the 1987 Constitution.
Inasmuch as the power and authority of the legislature to enact a
local government code, which provides for the manner of removal
of local government officials, is found in the 1973 Constitution as
well as in the 1987 Constitution, then it can not be said that
BP337 was repealed by the effectivity of the present Constitution.
Moreover, in Bagabuyo et al. v. Davide, Jr., BP 337 remained in
force despite the effectivity of the Constitution, until such time as
the proposed Local Government Code of 1991 is approved.
The power of he Secretary of the DILG to remove local elective
government officials is found in Secs. 60 and 61 of BP 337. As to
petitioner's argument of the want of authority of the Secretary to
appoint Melvin Vargas as Governor, We need but point to Section
48 (1) of B.P. Blg. 337 to show the fallacy of the same. Equally
without merit is petitioner's claim that before he could be
suspended or removed from office, proof beyond reasonable doubt
is required inasmuch as he is charged with a penal offense of
disloyalty to the Republic which is defined and penalized under
Article 137 of the RPC. Petitioner is not being prosecuted
criminally under the provisions of the RPC, but administratively
with the end in view of removing petitioner as the duly elected
Governor of Cagayan Province for acts of disloyalty to the Republic
where the quantum of proof required is only substantial evidence.
Reyes v. COMELEC (1996)
Facts:

G.R. No. 120905. Renato Reyes was the incumbent

mayor of the municipality of Bongabong, Oriental Mindoro. An

administrative complaint was filed against him with the

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Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged,

that petitioner exacted and collected P50,000,00 from each market
stall holder in the Bongabong Public Market. Also, that certain
checks issued to him by the National Reconciliation and
Development Program of the DILG were never received by the
Municipal Treasurer nor reflected in the books of accounts of the
same officer; and that he took 27 heads of cattle from beneficiaries
of a cattle dispersal program after the latter had reared and
fattened the cattle for seven months. The Sangguniang
Panlalawigan found petitioner guilty of the charges and ordered
his removal from office.
Petitioner filed a petition for certiorari, prohibition and injunction
with the RTC of Oriental Mindoro. Later, the Presiding Officer of
the Sangguniang Panlalawigan, Vice Governor Pedrito Reyes,
issued an order for petitioner to vacate the position of mayor and
peacefully turn over the office to the incumbent vice mayor. But
service of the order upon petitioner was also refused.
Meanwhile, petitioner filed a certificate of candidacy wit the
Comelec. Rogelio de Castro sought the disqualification of
petitioner as candidate for mayor, citing the LGC. The Comelec
canceled petitioners certificate of candidacy. However, the
Municipal Board of Canvassers of Bongabong, apparently unaware
of the disqualification of Reyes by the COMELEC, proclaimed him
the duly-elected mayor. The Comelec en banc affirmed. Invoking
the ruling in the case of Aguinaldo v. Santos, petitioner argues
that his election on May 8, 1995 is a bar to his disqualification.
G.R. No. 120940. Julius Garcia, who obtained the highest number
of votes next to Reyes intervened, contending that because Reyes
was disqualified, he (Garcia) was entitled to be proclaimed mayor
of Bongabong, Oriental Mindoro. The Comelec en banc denied
Garcias prayer since a candidate who obtains the second highest
number of votes in an election cannot be declared winner
Issue:

WON the decision of the Sangguniang Panlalawigan is

not yet final because he has not been served a copy thereof.
Held:

No

Ratio:

The failure of the Sangguniang Panlalawigan to deliver

a copy of its decision was due to the refusal of petitioner and his
counsel to receive the decision. As the secretary to the
Sangguniang Panlalawigan, Mario Manzo, stated in his
certification, repeated attempts had been made to serve the
decision on Reyes personally and by registered mail, but Reyes
refused to receive the decision.
If a judgment or decision is not delivered to a party for reasons
attributable to him, service is deemed completed and the
judgment or decision will be considered validly served as long as it
can be shown that the attempt to deliver it to him would be valid
were it not for his or his counsel's refusal to receive it.
Indeed that petitioner's counsel knew that a decision in the
administrative case had been rendered is evident in his effort to
bargain with the counsel for the Sangguniang Panlalawigan not to
have the decision served upon him and his client while their
petition for certiorari in the RTC was pending. His refusal to
receive the decision may, therefore, be construed as a waiver on
his part to have a copy of the decision.

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The purpose of the rules on service is to make sure that the party
being served with the pleading, order or judgment is duly
informed of the same so that he can take steps to protect his
interests, enable a party to file an appeal or apply for other
appropriate reliefs before the decision becomes final.
Petitioner was given sufficient notice of the decision. Prudence
required that, rather than resist the service, he should have
received the decision and taken an appeal to the Office of the
President in accordance with R.A. No. 7160, 67. But petitioner
did not do so. Accordingly, the decision became final on April 2,
1995, 30 days after the first service upon petitioner.
The net result is that when the elections were held on May 8,
1995, the decision of the Sangguniang Panlalawigan had already
become final and executory. The filing of a petition for certiorari
with the Regional Trial Court did not prevent the administrative
decision from attaining finality. An original action of certiorari is
an independent action and does not interrupt the course of the
principal action nor the running of the reglementary period
involved in the proceeding.
Consequently, to arrest the course of the principal action during
the pendency of the certiorari proceedings, there must be a
restraining order or a writ of preliminary injunction from the
appellate court directed to the lower court. In the case at bar,
although a temporary restraining order was issued by the
Regional Trial Court, no preliminary injunction was subsequently
issued. The temporary restraining order issued expired after 20
days. From that moment on, there was no more legal barrier to
the service of the decision upon petitioner.
Issue:

WON petitioners reelection rendered the administrative

charges against him moot and academic

Held:

No

Ratio:

The case at bar is the very opposite of Aguinaldo vs

Comelec. Here, although Reyes brought an action to question the

decision in the administrative case, the TRO issued in the action
he brought lapsed, with the result that the decision was served on
petitioner and it thereafter became final on April 3, 1995, because
petitioner failed to appeal to the Office of the President. He was
thus validly removed from office and, pursuant to 40(b) of the
LGC, he was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided
there was no provision similar to 40(b) which disqualifies any
person from running for any elective position on the ground that
he has been removed as a result of an administrative case. R.A.
No. 7160 could not be given retroactive effect.
Furthermore, the decision has not yet attained finality. As
indicated earlier, the decision of the then Secretary of Local
Government was questioned by the petitioner in this Court and
that to date, the petition remains unresolved.
All in all, herein Mayor Reyes was given by this Sanggunian a
period of sixty one (61) days to file his verified answer however, he
resorted to dilatory motions which in the end proved fatal to his
cause. Veritably, he neither filed nor furnished the complainant a
copy of his answer. Failure of the respondent to file his verified
answer within fifteen (15) days from receipt of the complaint shall

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be considered a waiver of his rights to present evidence in his

behalf ((1). Art. 126 of Rules and Regulations implementing the
Local Government Code of 1991). All persons shall have the right
to a speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies (Sec. 16, Art. III of the
Constitution).
Indeed, it appears that petitioner was given sufficient opportunity
to file his answer. He failed to do so. Nonetheless, he was told that
the complainant would be presenting his evidence and that he
(petitioner) would then have the opportunity to cross-examine the
witnesses. But on the date set, he failed to appear. He would say
later that this was because he had filed a motion for postponement
and was awaiting a ruling thereon. This only betrays the pattern
of delay he employed to render the case against him moot by his
election.
Issue:

WON Julius Garcia should be declared mayor in view of

the disqualification of Renato Reyes

Held:

No

Ratio:

That the candidate who obtains the second highest

number of votes may not be proclaimed winner in case the

winning candidate is disqualified is now settled. To simplistically
assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The
second placer is just that, a second placer. He lost the elections. He
was repudiated by either a majority or plurality of voters. He could
not be considered the first among qualified candidates because in
a field which excludes the disqualified candidate, the conditions
would have substantially changed. We are not prepared to
extrapolate the results under the circumstances.
Garcia's plea that the votes cast for Reyes be invalidated is
without merit. The votes cast for Reyes are presumed to have been
cast in the belief that Reyes was qualified and for that reason can
not be treated as stray, void, or meaningless. The subsequent
finding that he is disqualified cannot retroact to the date of the
elections so as to invalidate the votes cast for him.
As for Garcia's contention that the COMELEC committed a grave
abuse of discretion in not deciding the case before the date of the
election, suffice it to say that under R.A. No. 6646, 6, the
COMELEC can continue proceedings for disqualification against a
candidate even after the election and order the suspension of his
proclamation whenever the evidence of his guilt is strong. For the
same reason, we find no merit in the argument that the
COMELEC should have seen right away that Reyes had not
exhausted administrative remedies by appealing the decision of
the Sangguniang Panlalawigan and, therefore, should have
disqualified him before the elections.
Hagad v. Gozo-Dadole (1995)
Facts:

Criminal and administrative complaints were filed

against respondents (Mayor Alfredo Ouano, Vice-Mayor Paterno

Caete and Sangguniang Panlungsod Member Rafael Mayol, all
public officials of Mandaue City, by Mandaue City Councilors
Magno B. Dionson and Gaudiosa O. Bercede) by Mandaue City
Councilors Magno B. Dionson and Gaudiosa O. Bercede with the

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Office of the Deputy Ombudsman for the Visayas. The respondents

were charged with having violated R.A No. 3019, as amended;
Articles 170 and 171 RPC; and R.A. No. 6713. Councilors Dionson
and Bercede averred that respondent officials, acting in
conspiracy, had caused the alteration and/or falsification of
Ordinance No. 018/92 by increasing the allocated appropriation
therein from P3,494,364.57 to P7M without authority from the
Sangguniang Panlungsod of Mandaue City.
Aside from opposing the motion for preventive suspension,
respondent officials prayed for the dismissal of the complaint on
the ground that the Ombudsman supposedly was bereft of
jurisdiction to try, hear and decide the administrative case filed
against them since, under Section 63 LGC, the power to
investigate and impose administrative sanctions against said local
officials, as well as to effect their preventive suspension, had now
been vested with the Office of the President. Dionson and Bercede
argued that the LGC could not have repealed, abrogated or
otherwise modified the pertinent provisions of the Constitution
granting to the Ombudsman the power to investigate cases
against all public officials and that, in any case, the power of the
Ombudsman to investigate local officials under the Ombudsman
Act had remained unaffected by the provisions of the Local
Government Code of 1991.
The Office of the Deputy Ombudsman denied the motion to
dismiss and recommended the preventive suspension of
respondent officials, except City Budget Officer Pedro M. Guido,
until the administrative case would have been finally resolved by
the Ombudsman.
A petition for prohibition, with prayer for a writ of preliminary
injunction and temporary restraining order, was filed by
respondent officials with the RTC. Acting favorably on the pleas of
petitioning officials, respondent Judge issued a restraining order
directed at petitioner, enjoining him from enforcing and/or
implementing the questioned order of preventive suspension
issued in OMB-VIS-ADM-92-015.
Issue:

WON the Ombudsman has jurisdiction over the case

Held:

Yes

Ratio:

The general investigatory power of the Ombudsman is

decreed by Section 13(1,) Article X1, of the 1987 Constitution,

while his statutory mandate to act on administrative complaints is
contained in Section 19 of R.A. No. 6770. Section 21 of the same
statute names the officials who could be subject to the disciplinary
authority of the Ombudsman. Taken in conjunction with Section
24 of R.A. No. 6770, petitioner thus contends that the Office of the
Ombudsman correspondingly has the authority to decree
preventive suspension on any public officer or employee under
investigation by it.
Respondent officials, upon the other hand, argue that the
disciplinary authority of the Ombudsman over local officials must
be deemed to have been removed by the subsequent enactment of
the Local Government Code of 1991 which vests the authority to
investigate administrative charges, listed under Section 60
thereof, on various offices In the case specifically of complaints
against elective officials of provinces and highly urbanized cities.

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Thus, respondents insist, conformably with Section 63 of the Local

Government Code, preventive suspension can only be imposed by:
". . . the President if the respondent is an elective official of a
province, a highly urbanized or an independent component
city; . . ."
There is nothing in the LGC to indicate that it has repealed,
whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in
question are not so inconsistent, let alone irreconcilable, as to
compel us to only uphold one and strike down the other. Well
settled is the rule that repeals of laws by implication are not
favored, and that courts must generally assume their congruent
application. The two laws must be absolutely incompatible, and a
clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim,
interpretare et concordare leqibus esf optimus interpretendi, i e,
every statute must be so interpreted and brought into accord with
other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have
known the existing laws on the subject and not to have enacted
conflicting statutes. Hence, all doubts must be resolved against
any implied repeal, and all efforts should be exerted in order to
harmonize and give effect to all laws on the subject.
Certainly, Congress would not have intended to do injustice to the
very reason that underlies the creation of the Ombudsman in the
1987 Constitution which "is to insulate said office from the long
tentacles of officialdom."
Quite interestingly, Sections 61 and 63
of the present Local Government Code run almost parallel with
the provisions then existing under the old code.
The authority to conduct administrative investigation and to
impose preventive suspension over elective provincial or city
officials was at that time entrusted to the Minister of Local
Government until it became concurrent with the Ombudsman
upon the enactment of R.A No. 6770, specifically under Sections
21 and 24 thereof, to the extent of the common grant The Local
Government Code of 1991 (R.A No. 7160), in fine, did not effect a
change from what already prevailed, the modification being only
in the substitution of the Secretary (the Minister) of Local
Government by the Office of the President.
Respondent local officials contend that the 6-month preventive
suspension without pay under Section 24 of the Ombudsman Act
is much too repugnant to the 60-day preventive suspension
provided by Section 63 of the Local Government Code to even now
maintain its application. The two provisions govern differently. In
order to justify the preventive suspension of a public official under
Section 24 of R.A. No. 6770, the evidence of guilt should be strong,
and (a) the charge against the officer or employee should involve
dishonestly, oppression or grave misconduct or neglect in the
performance of duty; (b) that charges should warrant removal
from the service; or (c) the respondent's continued stay in office
would prejudice the case filed against him. The Ombudsman can
impose the 6-month preventive suspension to all public officials,
whether elective or appointive, who are under investigation. Upon
the other hand, in imposing the shorter period of sixty (60) days of
preventive suspension prescribed in the Local Government Code of
1991 on an elective local official (at any time after the issues are
joined), it would be enough that (a) there is reasonable ground to

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believe that the respondent has committed the act or acts

complained of, (b) the evidence of culpability is strong,(c) the
gravity of the offense so warrants, or (d) the continuance in office
of the respondent could influence the witnesses or pose a threat to
the safety and integrity of the records and other evidence.
The contention is without merit. The records reveal that petitioner
issued the order of preventive suspension after the filing (a) by
respondent officials of their opposition on the motion for
preventive suspension and (b) by Mayor Ouano of his
memorandum in compliance with the directive of petitioner Be
that, as it may, we have heretofore held that, not being in the
nature of a penalty, a preventive suspension can be decreed on an
official under investigation after charges are brought and even
before the charges are heard. Naturally, such a preventive
suspension would occur prior to any finding of guilt or innocence.
Moreover, respondent officials were, in point of fact, put on
preventive suspension only after petitioner had found, in
consonance with our ruling in Buenaseda vs. Flavier, that the
evidence of guilt was strong.
Finally, it does appear, as so pointed out by the Solicitor General
that respondent officials' petition for prohibition, being an
application for remedy against the findings of petitioner contained
in his 21 September 1992 order, should not have been entertained
by the trial court.
Salalima v. Guingona (1996), supra.
In Salalima v. Guingona, Jr., the Court en banc categorically ruled
that the Office of the President is without any power to remove
elected officials, since the power is exclusively vested in the proper
courts as expressly provided for in the last paragraph of Section 60
of the LGC. It further invalidated Article 125, Rule XIX of IRR.
The Court nullified the rule since the Oversight Committee that
prepared the Rules and Regulations of the Local Government
Code exceeded its authority when it granted to the disciplining
authority the power to remove elective officials, a power which the
law itself granted only to the proper courts.
Grego v. COMELEC 274 SCRA 481 (1997)
Facts:

On October 31, 1981, Basco was removed from his

position as Deputy Sheriff by the Court Court upon a finding of

serious misconduct in an administrative complaint lodged by Nena
Tordesillas. Subsequently, Basco ran as a candidate for Councilor
in the Second District of the City of Manila during the 1988, local
elections. He won and, accordingly, assumed office.
After his term, he sought reelection in the 1992 election. He again
won. However, a case for quo warranto was filed by Cenon
Ronquillo (Candidate for councilor), who alleged Basco's
ineligibility to be elected councilor on the basis of the Tordesillas
ruling. Other complaints were filed before the Office of the
Ombudsman and in the DILG. In 1995, Basco ran again for
councilor.
William Grego, claiming to be a registered voter of Precinct No.
966, District II, City of Manila, filed with the COMELEC a
petition for disqualification, praying for Basco's disqualification,
for the suspension of his proclamation, and for the declaration of
Romualdo S. Maranan as the sixth duly elected Councilor of

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Manila's Second District. The Manila BOC however proclaimed

Basco as a duly elected councilor of the Second District of Manila.
In view of the proclamation, Grego filed an urgent motion seeking
to annul the illegal proclamation. The Comelec dismissed the
petition for disqualification ruling that the administrative penalty
imposed by the SC on Basco was wiped away and condoned by the
electorate who elected him.
Issue:

WON Section 40 (b) of Republic Act No. 7160 apply

retroactively to those removed from office before it took effect on

January 1, 1992
Held:

No

Ratio:

Petitioner submits that although the Code took effect

only on January 1, 1992, Section 40 (b) must nonetheless be given

retroactive effect and applied to Basco's dismissal from office
which took place in 1981. It is stressed that the provision of the
law as worded does not mention or even qualify the date of
removal from office of the candidate in order for disqualification
thereunder to attach. Hence, petitioner impresses upon the Court
that as long as a candidate was once removed from office due to an
administrative case, regardless of whether it took place during or
prior to the effectivity of the Code, the disqualification applies. We
do not, however, subscribe to petitioner's view. Our refusal to give
retroactive application to the provision of Section 40 (b) is already
a settled issue and there exist no compelling reasons for us to
depart therefrom.
Well-settled is the principle that while the Legislature has the
power to pass retroactive laws which do not impair the obligation
of contracts, or affect injuriously vested rights, it is equally true
that statutes are not to be construed as intended to have a
retroactive effect so as to affect pending proceedings, unless such
intent is expressly declared or clearly and necessarily implied from
the language of the enactment. There is no provision in the
statute which would clearly indicate that the same operates
retroactively. It, therefore, follows that [Section] 40 (b) of the Local
Government Code is not applicable to the present case."
Issue:

WON private respondent's election to office as City

Councilor of Manila in the 1988, 1992 and 1995 elections wipe

away and condone the administrative penalty against him, thus
restoring his eligibility for public office
Ratio:

At first glance, there seems to be a prima facie

semblance of merit to petitioner's argument. However, the issue of

whether or not Basco's triple election to office cured his alleged
ineligibility is actually beside the point because the argument
proceeds on the assumption that he was in the first place
disqualified when he ran in the three previous elections. This
assumption, of course, is untenable considering that Basco was
NOT subject to any disqualification at all under Section 40 (b) of
the Local Government Code which, as we said earlier, applies only
to those removed from office on or after January 1, 1992. In view
of the irrelevance of the issue posed by petitioner, there is no more
reason for the Court to still dwell on the matter at length.

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Anent Basco's alleged circumvention of the prohibition in

Tordesillas against reinstatement to any position in the national
or local government, including its agencies and instrumentalities,
as well as government-owned or controlled corporations, we are of
the view that petitioner's contention is baseless. Neither does
petitioner's argument that the term "any position" is broad enough
to cover without distinction both appointive and local positions
merit any consideration.
Contrary to petitioner's assertion, the Tordesillas decision did not
bar Basco from running for any elective position. (And with
prejudice to reinstatement..)
In this regard, particular attention is directed to the use of the
term "reinstatement." Under the former Civil Service Decree, 16
the law applicable at the time Basco, a public officer, was
administratively dismissed from office, the term "reinstatement"
had a technical meaning, referring only to an appointive position.
In light of these definitions, there is, therefore, no basis for
holding that Basco is likewise barred from running for an elective
position inasmuch as what is contemplated by the prohibition in
Tordesillas is reinstatement to an appointive position.

irregular for the COMELEC to have used instead the word "shall"
in its rules.
Moreover, there is no reason why the Manila City BOC should not
have proclaimed Basco as the sixth winning City Councilor.
Absent any determination of irregularity in the election returns,
as well as an order enjoining the canvassing and proclamation of
the winner, it is a mandatory and ministerial duty of the Board of
Canvassers concerned to count the votes based on such returns
and declare the result.
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by
petitioner are all irrelevant and inapplicable to the factual
circumstances at bar and serve no other purpose than to muddle
the real issue. These three cases do not in any manner refer to
void proclamations resulting from the mere pendency of a
disqualification case.

Issue:

Ratio:

WON

private respondent's proclamation as sixth

winning candidate on May 17, 1995, while the disqualification

case was still pending consideration by COMELEC is void ab
initio?
Ratio:

The inapplicability of RA 7166 Section 20(i) to the

present case is very much patent on its face considering that the
same refers only to a void proclamation in relation to contested
returns and NOT to contested qualifications of a candidate.
RA 6646 Section 6 does not support petitioner's contention that
the COMELEC, or more properly speaking, the Manila City BOC,
should have suspended the proclamation. The use of the word
"may" indicates that the suspension of a proclamation is merely
directory and permissive in nature and operates to confer
discretion. What is merely made mandatory, according to the
provision itself, is the continuation of the trial and hearing of the
action, inquiry or protest. Thus, in view of this discretion granted
to the COMELEC, the question of whether or not evidence of guilt
is so strong as to warrant suspension of proclamation must be left
for its own determination and the Court cannot interfere
therewith and substitute its own judgment unless such discretion
has been exercised whimsically and capriciously. The COMELEC,
as an administrative agency and a specialized constitutional body
charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall, has more than enough expertise
in its field that its findings or conclusions are generally respected
and even given finality. The COMELEC has not found any ground
to suspend the proclamation and the records likewise fail to show
any so as to warrant a different conclusion from this Court. Hence,
there is no ample justification to hold that the COMELEC gravely
abused its discretion.
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule
25 of the COMELEC Rules of Procedure seeks to implement,
employed the word "may," it is, therefore, improper and highly

Issue:

WON

Romualdo S. Maranan, a seventh placer, be

legally declared a winning candidate

Held:

No
Obviously, he may not be declared a winner. In the first

place, Basco was a duly qualified candidate pursuant to our

disquisition above. Furthermore, he clearly received the winning
number of votes which put him in sixth place. Thus, petitioner's
emphatic reference to Labo v. COMELEC, where we laid down a
possible exception to the rule that a second placer may not be
declared the winning candidate, finds no application in this case.
The exception is predicated on the concurrence of two
assumptions, namely: (1) the one who obtained the highest
number of votes is disqualified; and (2) the electorate is fully
aware in fact and in law of a candidate's disqualification so as to
bring such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate.
Both assumptions, however, are absent in this case. Petitioner's
allegation that Basco was well-known to have been disqualified in
the small community where he ran as a candidate is purely
speculative and conjectural, unsupported as it is by any convincing
facts of record to show notoriety of his alleged disqualification.
In sum, we see the dismissal of the petition for disqualification as
not having been attended by grave abuse of discretion. There is
then no more legal impediment for private respondent's
continuance in office as City Councilor for the Second District of
Manila.
Joson v. Executive Secretary Torres 290 SCRA 279 (1998)
Facts: Oscar C. Tinio is the Vice-Governor of Nueva Ecija while
Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos,
Vicente C. Palilio and Napoleon G. Interior are members of the
Sangguniang Panlalawigan. The private respondents filed with
the Office of the President a complaint charging Governor
Eduardo Joson with grave misconduct and abuse of authority.
Allegedly, Joson belligerently barged into the Hall and angrily
kicked the door and chairs in the Hall and uttered threatening
words at private respondents during a scheduled session. Private
respondents claim that this incident was an offshoot of their
resistance to a pending legislative measure supported by

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petitioner that Nueva Ecija obtain a loan of P150 million from the
PNB. Josons acts were intended to harass them into approving
this loan, which private respondents opposed the loan because the
province had an unliquidated obligation of more than P70 million
incurred without prior authorization from the Sangguniang
Panlalawigan. Private respondents prayed for the suspension or
removal of petitioner; for an emergency audit of the provincial
treasury of Nueva Ecija; and for the review of the proposed loan in
light of the financial condition of the province,
Joson failed to file his answer despite numerous grant of
extension. Thus, DILG Undersecretary Manuel Sanchez issued an
order declaring Joson in default. Later, Joson, thru counsel, filed a
Motion to Dismiss alleging that the letter complaint was not
verified and that the DILG has no jurisdiction over the case and
has no authority to require him to answer the complaint.
Executive Secretary Torres issued an order placing Joson under
preventive suspension for 60 days pending investigation of the
charges against him. Also, the Motion to Dismiss was denied.
Secretary Barbers directed the PNP to assist the implementation
of the order of preventive suspension. Also, Vice Governor Oscar
Tinio was appointed as Acting Governor.
Joson filed a petition for certiorari and prohibition with the CA
challenging the preventive suspension and default order. The CA
dismissed the case. Joson claimed that there was nothing in his
conduct that threatened the members of the Sangguniang
Panlalawigan or caused alarm to the employees. He said that like
Vice-Governor Tinio, he was always accompanied by his official
security escorts whenever he reported for work. He also alleged
that the joint affidavit of Elnora Escombien and Jacqueline Jane
Perez was false. Escombien was purportedly not inside the
session hall during the incident but was at her desk at the office
and could not in any way have seen petitioner in the hall.
Issue:

WON the filing of a letter complaint before the Office of

the President was proper

Held:

Yes

Ratio: Administrative disciplinary proceedings against elective

local officials are governed by the Local Government Code of
1991.In all matters not provided in A.O. No. 23, the Rules of Court
and the Administrative Code of 1987 apply in a suppletory
character.
Section 60 of Chapter 4, Title II, Book I of the LGC enumerates
the grounds for which an elective local official may be disciplined,
suspended or removed from office. When an elective local official
commits an act that falls under the grounds for disciplinary
action, the administrative complaint against him must be verified
and filed under Section 61.
In the instant case, Joson is an elective official of the province of
Nueva Ecija. The letter-complaint against him was therefore
properly filed with the Office of the President. According to
petitioner, however, the letter-complaint failed to conform with the
formal requirements set by the Code. He alleges that the
complaint was not verified by private respondents and was not
supported by the joint affidavit of the two witnesses named
therein; that private respondents later realized these defects and

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surreptitiously inserted the verification and sworn statement

while the complaint was still pending with the Office of the
President.
We find no merit in the contention of the petitioner. The absence
of the document, page or book number of the notarial register of
the subscribing officer is insufficient to prove petitioner's claim.
The lack of these entries may constitute proof of neglect on the
part of the subscribing officer in complying with the requirements
for notarization and proper verification. They may give grounds
for the revocation of his notarial commission. But they do not
indubitably prove that the verification was inserted or intercalated
after the letter-complaint was filed with the Office of the
President.
Nor is the fact of intercalation sufficiently established by the
affidavit of Solita Santos. Santos was one of the signatories to the
letter-complaint. In her affidavit, she prayed that she be dropped
as one of the complainants since she had just joined the political
party of Joson. She decided to reveal the intercalation because
she was disillusioned with the "dirty tactics" of Vice-Governor
Tinio to grab power from petitioner Joson. Santos cannot in any
way be considered an unbiased witness. Her motive and change of
heart render her affidavit suspect.
Assuming, nonetheless, that the letter-complaint was unverified
when submitted to the Office of the President, the defect was not
fatal. The requirement of verification was deemed waived by the
President himself when he acted on the complaint. Verification is
a formal, not jurisdictional requisite. Verification is mainly
intended to secure an assurance that the allegations therein made
are done in good faith or are true and correct and not mere
speculation. The lack of verification is a mere formal defect. The
court may order the correction of the pleading, if not verified, or
act on the unverified pleading if the attending circumstances are
such that a strict compliance with the rule may be dispensed with
in order that the ends of justice may be served.
Issue:

WON the DILG has jurisdiction over the case

Held:

Yes

Ratio: The Disciplining Authority is the President of the

Philippines, whether acting by himself or through the Executive
Secretary. The Secretary of the Interior and Local Government is
the Investigating Authority, who may act by himself or constitute
an Investigating Committee. The Secretary of the DILG, however,
is not the exclusive Investigating Authority. In lieu of the DILG
Secretary, the Disciplining Authority may designate a Special
Investigating Committee.
The power of the President over administrative disciplinary cases
against elective local officials is derived from his power of general
supervision over local governments. The power of supervision
means "overseeing or the authority of an officer to see that the
subordinate officers perform their duties. If the subordinate
officers fail or neglect to fulfill their duties, the official may take
such action or step as prescribed by law to make them perform
their duties. The President's power of general supervision means
no more than the power of ensuring that laws are faithfully
executed, or that subordinate officers act within the law.

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Supervision is not incompatible with discipline. And the power to

discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of
the act or conduct of local officials when in his opinion the good of
the public service so requires.
The power to discipline evidently includes the power to
investigate. As the Disciplining Authority, the President has the
power derived from the Constitution itself to investigate
complaints against local government officials. A. O. No. 23,
however, delegates the power to investigate to the DILG or a
Special Investigating Committee, as may be constituted by the
Disciplining Authority. This is not undue delegation, contrary to
Joson's claim. The President remains the Disciplining Authority.
What is delegated is the power to investigate, not the power to
discipline.
Moreover, the power of the DILG to investigate administrative
complaints is based on the alter-ego principle or the doctrine of
qualified political agency. This doctrine is corollary to the control
power of the President. Control is said to be the very heart of the
power of the presidency. As head of the Executive Department, the
President, however, may delegate some of his powers to the
Cabinet members except when he is required by the Constitution
to act in person or the exigencies of the situation demand that he
acts personally. The members of Cabinet may act for and in behalf
of the President in certain matters because the President cannot
be expected to exercise his control (and supervisory) powers
personally all the time. Each head of a department is, and must
be, the President's alter ego in the matters of that department
where the President is required by law to exercise authority.
In the case at bar, petitioner claims that the DILG Secretary
usurped the power of the President when he required petitioner to
answer the complaint. Undisputably, the letter-complaint was
filed with the Office of the President but it was the DILG
Secretary who ordered petitioner to answer.
Strictly applying the rules, the Office of the President did not
comply with the provisions of A.O. No. 23. The Office should have
first required petitioner to file his answer. Thereafter, the
complaint and the answer should have been referred to the
Investigating Authority for further proceedings. Be that as it may,
this procedural lapse is not fatal. The filing of the answer is
necessary merely to enable the President to make a preliminary
assessment of the case. The President found the complaint
sufficient in form and substance to warrant its further
investigation. The judgment of the President on the matter is
entitled to respect in the absence of grave abuse of discretion.
Issue:

WON Joson was properly placed under preventive

suspension
Held:
Ratio:

Yes
In view of petitioner's inexcusable failure to file answer,

the DILG did not err in recommending to the Disciplining

Authority his preventive suspension during the investigation.
Preventive suspension is authorized under Section 63 of the LGC.
Preventive suspension may be imposed at any time after the
issues are joined, that is, after respondent has answered the

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complaint, when the evidence of guilt is strong and, given the

gravity of the offense, there is a great possibility that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence.
The failure of respondent to file his answer despite several
opportunities given him is construed as a waiver of his right to
present evidence in his behalf. The requisite of joinder of issues is
squarely met with respondent's waiver of right to submit his
answer. The act of respondent in allegedly barging violently into
the session hall of the Sangguniang Panlalawigan in the company
of armed men constitutes grave misconduct. The allegations of
complainants are bolstered by the joint-affidavit of two (2)
employees of the Sangguniang Panlalawigan. Respondent who is
the chief executive of the province is in a position to influence the
witnesses. Further, the history of violent confrontational politics
in the province dictates that extreme precautionary measures be
taken.'
Executive Secretary Torres found that all the requisites for the
imposition of preventive suspension had been complied with.
Petitioner's failure to file his answer despite several opportunities
given him was construed as a waiver of his right to file answer and
present evidence; and as a result of this waiver, the issues were
deemed to have been joined. The Executive Secretary also found
that the evidence of petitioner Joson's guilt was strong and that
his continuance in office during the pendency of the case could
influence the witnesses and pose a threat to the safety and
integrity of the evidence against him.
Issue:
WON the Resolution finding Joson guilty and imposing
on him the penalty of suspension from office for six months
without pay was proper
Held:
Ratio: Settled is the rule that in administrative proceedings,
technical rules of procedure and evidence are not strictly applied.
The essence of due process is to be found in the reasonable
opportunity to be heard and to submit evidence one may have in
support of one's defense. To be heard does not only mean verbal
arguments in court; one may be heard also through pleadings.
Where opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of procedural due
process. Thus, when respondent failed to submit his position
paper as directed and insisted for the conduct of formal
investigation, he was not denied of his right of procedural process.
The denial of petitioner's Motion to Conduct Formal Investigation
is erroneous. Petitioner's right to a formal investigation is spelled
out in the following provisions of A.O. No. 23. The records show
that on August 27, 1997, petitioner submitted his Answer Ad
Cautelam where he disputed the truth of the allegations that he
barged into the session hall of the capitol and committed physical
violence to harass the private respondents who were opposed to
any move for the province to contract a P150 million loan from
PNB. In his Order of October 8, 1997, Undersecretary Sanchez
admitted petitioner's Answer Ad Cautelam but treated it as a
position paper. On October 15, 1997, petitioner filed a Motion to

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Conduct Formal Investigation. Petitioner reiterated this motion

on October 29, 1997. Petitioner's motion was denied on November
11, 1997. Secretary Barbers found petitioner guilty as charged on
the basis of the parties' position papers. On January 8, 1998,
Executive Secretary Torres adopted Secretary Barbers' findings
and recommendations and imposed on petitioner the penalty of six
(6) months suspension without pay.
The rejection of petitioner's right to a formal investigation denied
him procedural due process. Section 5 of A. O. No. 23 provides
that at the preliminary conference, the Investigating Authority
shall summon the parties to consider whether they desire a formal
investigation. This provision does not give the Investigating
Authority the discretion to determine whether a formal
investigation would be conducted.
The records show that
petitioner filed a motion for formal investigation. As respondent,
he is accorded several rights under the law.
An erring elective local official has rights akin to the
constitutional rights of an accused. These rights are essentially
part of procedural due process. The local elective official has the
(1) right to appear and defend himself in person or by counsel; (2)
the right to confront and cross-examine the witnesses against him;
and (3) the right to compulsory attendance of witness and the
production of documentary evidence. These rights are reiterated
in the Rules Implementing the LGC and in A.O. No. 23.
Petitioner's right to a formal investigation was not satisfied when
the complaint against him was decided on the basis of position
papers. There is nothing in the Local Government Code and its
Implementing Rules and Regulations nor in A.O. No. 23 that
provide that administrative cases against elective local officials
can be decided on the basis of position papers. A.O. No. 23 states
that the Investigating Authority may require the parties to submit
their respective memoranda but this is only after formal
investigation and hearing. A.O. No. 23 does not authorize the
Investigating Authority to dispense with a hearing especially in
cases involving allegations of fact which are not only in contrast
but contradictory to each other. These contradictions are best
settled by allowing the examination and cross-examination of
witnesses. Position papers are often-times prepared with the
assistance of lawyers and their artful preparation can make the
discovery of truth difficult. The jurisprudence cited by the DILG
in its order denying petitioner's motion for a formal investigation
applies to appointive officials and employees. Administrative
disciplinary proceedings against elective government officials are
not exactly similar to those against appointive officials. In fact,
the provisions that apply to elective local officials are separate and
distinct from appointive government officers and employees. This
can be gleaned from the LGC itself.
In the LGC, the entire Title II of Book I of the Code is devoted to

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against appointive local officials and employees as well as their

suspension and removal" are "in accordance with the civil service
law and rules and other pertinent laws," the results of which
"shall be reported to the Civil Service Commission."
It is the Administrative Code of 1987, specifically Book V on the
Civil Service, that primarily governs appointive officials and
employees. Their qualifications are set forth in the Omnibus
Rules Implementing Book V of the said Code. The grounds for
administrative disciplinary action in Book V are much more in
number and are specific than those enumerated in the Local
Government Code against elective local officials. The disciplining
authority in such actions is the Civil Service Commission
although the Secretaries and heads of agencies and
instrumentalities, provinces, cities and municipalities are also
given the power to investigate and decide disciplinary actions
against officers and employees under their jurisdiction. When a
complaint is filed and the respondent answers, he must "indicate
whether or not he elects a formal investigation if his answer is not
considered satisfactory." If the officer or employee elects a formal
investigation, the direct evidence for the complainant and the
respondent "consist[s] of the sworn statement and documents
submitted in support of the complaint and answer, as the case
may be, without prejudice to the presentation of additional
evidence deemed necessary x x x, upon which the crossexamination by respondent and the complainant, respectively, is
based." The investigation is conducted without adhering to the
technical rules applicable in judicial proceedings." Moreover, the
appointive official or employee may be removed or dismissed
summarily if (1) the charge is serious and the evidence of guilt is
strong; (2) when the respondent is a recidivist; and (3) when the
respondent is notoriously undesirable.
The provisions for administrative disciplinary actions against
elective local officials are markedly different from appointive
officials. The rules on the removal and suspension of elective local
officials are more stringent. The procedure of requiring position
papers in lieu of a hearing in administrative cases is expressly
allowed with respect to appointive officials but not to those elected.
An elective official, elected by popular vote, is directly responsible
to the community that elected him. The official has a definite
term of office fixed by law which is relatively of short duration.
Suspension and removal from office definitely affects and shortens
this term of office. When an elective official is suspended or
removed, the people are deprived of the services of the man they
had elected. Implicit in the right of suffrage is that the people are
entitled to the services of the elective official of their choice.
Suspension and removal are thus imposed only after the elective
official is accorded his rights and the evidence against him
strongly dictates their imposition.

elective officials. It provides for their qualifications and election,

vacancies and succession, local legislation, disciplinary actions,
and recall. Appointive officers and employees are covered in Title

Conducto v. Monzon (1998)

III of Book I of the Code entitled "Human Resources and

Development." All matters pertinent to human resources and
development in local government units are regulated by "the civil
service law and such rules and regulations and other issuances
promulgated thereto, unless otherwise provided in the Code." The
"investigation and adjudication of administrative complaints

Panlungsod of San Pablo City against Benjamin Maghirang, the

barangay chairman of Barangay III-E of San Pablo City, for abuse
of authority, serious irregularity and violation of law as
Maghirang appointed his sister-in-law, Mrs. Florian Maghirang, to
the position of barangay secretary in violation of Section 394 of the
LGC. At the same time, complainant filed a complaint for

Facts: Complainant filed a complaint with the Sangguniang

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violation of Article 244 RPC with the Office of the City Prosecutor
against Maghirang, which was, however, dismissed on the ground
that Maghirangs sister-in-law was appointed before the effectivity
of the LGC, which prohibits a punong barangay from appointing a
relative within the fourth civil degree of consanguinity or affinity
as barangay secretary. The order of dismissal was submitted to
the Office of the Deputy Ombudsman for Luzon.
Complainant obtained an Opinion from Dir. Jacob Montesa of the
DILG declaring the appointment of Maghirang void. The Office of
the Deputy Ombudsman dismissed the case but ordered
Maghirang to replace his sister in law as barangay secretary.
Later, the Office of the Deputy Ombudsman granted the MR and
ordered the filing of an information for unlawful appointment
against Maghirang.
With prior leave from the Office of the Deputy Ombudsman, the
City Prosecutor filed, in Criminal Case No. 26240, a motion for the
suspension of Maghirang pursuant to Section 13 of R.A. No. 3019.
The judge denied the motion and ruled that since Maghirang was
reelected as barangay chairman, the offenses committed during
the previous term are not causes for removal.
The Office of the Court Administrator (OCA) recommended that
the judge liable for ignorance of the law and that he be
reprimanded with a warning that a repetition of the same or
similar acts in the future shall be dealt with more severely. The
OCA said that it is well settled in Section 13 of RA 3019 that the
court suspends any public officer against whom a valid
information was filed against him.
Issue: WON the judge was grossly ignorant of the law
Held: Yes
Ratio: All things considered, while concededly, respondent Judge
manifested his ignorance of the law in denying complainants
Motion for Suspension of Brgy. Chairman Maghirang, there was
nothing shown however to indicate that he acted in bad faith or
with malice. Be that as it may, it would also do well to note that
good faith and lack of malicious intent cannot completely free
respondent from liability.
The findings and conclusions of the Office of the Court
Administrator are in order. However, the penalty recommended,
i.e., reprimand, is too light, in view of the fact that despite his
claim that he has been continuously keeping abreast of legal and
jurisprudential development (sic) in law ever since he passed the
Bar Examinations in 1995, respondent, wittingly or otherwise,
failed to recall that as early as 1967 in Ingco v. Sanchez this
Court explicitly ruled that the re-election of a public official
extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office, thus:
The ruling, therefore, that -- when the people have elected a man
to his office it must be assumed that they did this with knowledge
of his life and character and that they disregarded or forgave his
faults or misconduct if he had been guilty of any -- refers only to
an action for removal from office and does not apply to a criminal
case, because a crime is a public wrong more atrocious in
character than mere misfeasance or malfeasance committed by a
public officer in the discharge of his duties, and is injurious not

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only to a person or group of persons but to the State as a whole.

This must be the reason why Article 89 of the Revised Penal Code,
which enumerates the grounds for extinction of criminal liability,
does not include reelection to office as one of them, at least insofar
as a public officer is concerned. Also, under the Constitution, it is
only the President who may grant the pardon of a criminal
offense.
There is a whale of a difference between the two cases. The basis
of the investigation which has been commenced here, and which is
sought to be restrained, is a criminal accusation the object of
which is to cause the indictment and punishment of petitionerappellant as a private citizen; whereas in the cases cited, the
subject of the investigation was an administrative charge against
the officers therein involved and its object was merely to cause his
suspension or removal from public office. While the criminal cases
involves the character of the mayor as a private citizen and the
People of the Philippines as a community is a party to the case, an
administrative case involves only his actuations as a public officer
as (they) affect the populace of the municipality where he serves.
Then on 20 June 1969, in Luciano v. The Provincial Governor, et
al.,[20) this Court likewise categorically declared that criminal
liabilities incurred by an elective public official during his previous
term of office were not extinguished by his re-election, and that
Pascual v. Provincial Governor and Lizares v. Hechanova referred
only to administrative liabilities committed during the previous
term of an elective official.
Petitioner's reliance on the loose language used in Pascual v.
Provincial Board of Nueva Ecija that "each term is separate from
other terms and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent of
cutting off the right to remove him therefor" is misplaced. The
Court has in subsequent cases made it clear that the Pascual
ruling (which dealt with administrative liability) applies
exclusively to administrative and not to criminal liability and
sanctions. Thus, in Ingco v. Sanchez the Court ruled that the
reelection of a public officer for a new term does not in any manner
wipe out the criminal liability incurred by him in a previous term.
Punishment for a crime is a vindication for an offense against the
State and the body politic. The small segment of the national
electorate that constitutes the electorate of the municipality of
Antipolo has no power to condone a crime against the public
justice of the State and the entire body politic. Reelection to
public office is not provided for in Article 89 of the Revised Penal
Code as a mode of extinguishing criminal liability incurred by a
public officer prior to his reelection. On the contrary, Article 9 of
the Anti-Graft Act imposes as one of the penalties in case of
conviction perpetual disqualification from public office and Article
30 of the Revised Penal Code declares that such penalty of
perpetual disqualification entails "the deprivation of the public
offices and employments which the offender may have held, even if
conferred by popular election."
It is manifest then, that such condonation of an officer's fault or
misconduct during a previous expired term by virtue of his
reelection to office for a new term can be deemed to apply only to
his administrative and not to his criminal guilt. As succinctly
stated in then Solicitor General (now Associate Justice) Felix Q.
Antonio's memorandum for the State, "to hold that petitioner's

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reelection erased his criminal liability would in effect transfer the

determination of the criminal culpability of an erring official from
the court to which it was lodged by law into the changing and
transient whim and caprice of the electorate. This cannot be so,
for while his constituents may condone the misdeed of a corrupt
official by returning him back to office, a criminal action initiated
against the latter can only be heard and tried by a court of justice,
his nefarious act having been committed against the very State
whose laws he had sworn to faithfully obey and uphold. A
contrary rule would erode the very system upon which our
government is based, which is one of laws and not of men."
While diligence in keeping up-to-date with the decisions of this
Court is a commendable virtue of judges -- and, of course,
members of the Bar -- comprehending the decisions is a different
matter, for it is in that area where ones competence may then be
put to the test and proven. Thus, it has been said that a judge is
called upon to exhibit more than just a cursory acquaintance with
statutes and procedural rules; it is imperative that he be
conversant with basic legal principles and aware of well-settled
and authoritative doctrines.[23) He should strive for excellence,
exceeded only by his passion for truth, to the end that he be the
personification of justice and the Rule of Law. Needless to state,
respondent was, in this instance, wanting in the desired level of
mastery of a revered doctrine on a simple issue.
Pablico v. Villapando (2002)
Facts:

Solomon

B.

Maagad,

and

Renato

M.

Fernandez

(members of the Sangguniang Bayan of San Vicente, Palawan)

filed with the Sangguniang Panlalawigan of Palawan an
administrative complaint against Mayor Alejandro A. Villapando
for abuse of authority and culpable violation of the Constitution.
Villapando allegedly entered into a consultancy agreement with
Orlando Tiape (defeated mayoralty candidate) which amounted to
an appointment to a government position within the prohibited
one year period under the Constitution. Villapando claimed that
he did not appoint Tiape, but he merely hired him and a
consultant does not constitute an appointment to a government
office or position as prohibited by the Constitution.
The Sangguniang Panlalawigan of Palawan found respondent
guilty of the administrative charge and imposed on him the
penalty of dismissal from service. The Office of the President
affirmed the decision of the Sangguniang Panlalawigan.
Villapando filed a certiorari and prohibition before the CA seeking
to annul the decision of the Office of the President. The CA
declared void the decision of the OP and the Sangguniang
Panlalawigan.
Issue:

WON local legislative bodies and/or the Office of the

President, on appeal, can validly impose the penalty of dismissal

from service on erring elective local officials
Held:

No

Ratio:

The pertinent portion of Section 60 of the Local

Government Code of 1991 provides:

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Section 60. Grounds for Disciplinary Actions. An elective local

official may be disciplined, suspended, or removed from office on
any of the following grounds:
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
It is clear from the last paragraph of the provision that the
penalty of dismissal from service upon an erring elective local
official may be decreed only by a court of law. Thus, in Salalima, et
al. v. Guingona, et al we held that "[t]he Office of the President is
without any power to remove elected officials, since such power is
exclusively vested in the proper courts as expressly provided for in
the last paragraph of the aforequoted Section 60."
Article 124 (b), Rule XIX of the Rules and Regulations
Implementing the Local Government Code, however, adds that
"(b) An elective local official may be removed from office on the
grounds enumerated in paragraph (a) of this Article [The grounds
enumerated in Section 60, Local Government Code of 1991] by
order of the proper court or the disciplining authority
whichever first acquires jurisdiction to the exclusion of the
other." The disciplining authority referred to pertains to the
Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of
the President. As held in Salalima, this grant to the "disciplining
authority" of the power to remove elective local officials is clearly
beyond the authority of the Oversight Committee that prepared
the Rules and Regulations. No rule or regulation may alter,
amend, or contravene a provision of law, such as the LGC.
Implementing rules should conform, not clash, with the law that
they implement, for a regulation which operates to create a rule
out of harmony with the statute is a nullity. Even Senator
Aquilino Q. Pimentel, Jr., the principal author of the Local
Government Code of 1991, expressed doubt as to the validity of
Article 124 (b), Rule XIX of the implementing rules.
It is beyond cavil, therefore, that the power to remove erring
elective local officials from service is lodged exclusively with the
courts. Hence, Article 124 (b), Rule XIX, of the Rules and
Regulations Implementing the Local Government Code, insofar as
it vests power on the "disciplining authority" to remove from office
erring elective local officials, is void for being repugnant to the last
paragraph of Section 60 of the Local Government Code of 1991.
The law on suspension or removal of elective public officials must
be strictly construed and applied, and the authority in whom such
power of suspension or removal is vested must exercise it with
utmost good faith, for what is involved is not just an ordinary
public official but one chosen by the people through the exercise of
their constitutional right of suffrage. Their will must not be put to
naught by the caprice or partisanship of the disciplining authority.
Where the disciplining authority is given only the power to
suspend and not the power to remove, it should not be permitted
to manipulate the law by usurping the power to remove. As
explained by the Court in Lacson v. Roque:
"the abridgment of the power to remove or suspend an elective
mayor is not without its own justification, and was, we think,
deliberately intended by the lawmakers. The evils resulting from a
restricted authority to suspend or remove must have been weighed
against the injustices and harms to the public interests which
would be likely to emerge from an unrestrained discretionary
power to suspend and remove."

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Removal only by courts

Sangguaning

Barangay

of

Don

Mariano

v.

Punong

Barangay Martines (2008)

Facts:

Severino Martinez was administratively charged with

Dishonesty and Graft and Corruption by petitioner through the

filing of a verified complaint before the Sangguniang Bayan as the
disciplining authority over elective barangay officials pursuant to
Section 64 of RA 7160. The complaint was later amended for
Dishonesty, Misconduct in Office and Violation of the Anti-Graft
and Corrupt Practices Act. Petitioner alleged that Martinez
committed the following acts:
1. Failure to submit and fully remit to the Barangay
Treasurer the income of their solid waste management project
since 2001 particularly the sale of fertilizer derived from
composting.
2. Failure to submit/remit to the barangay treasurer the sale
of recyclable materials taken from garbage collection.
3. Using the garbage truck for other purposes like hauling
sand and gravel for private persons without monetary benefit to
the barangay because no income from this source appears in the
year end report even if payments were collected x x x.
4. Using/spending barangay funds for repair, gasoline,
lubricants, wheels and other spare parts of the garbage truck
instead of using the money or income of said truck from the
garbage fees collected as income from its Sold Waste Management
Project. x x x.
5. Unliquidated traveling expenses for Seminar/Lakbay-Aral
in 2003 because although a cash advance was made by the
respondent for the said purpose, he, however, did not attend said
seminar because on the dates when he was supposed to be on
seminar they saw him in the barangay. x x x.
6. That several attempts to discuss said problem during
sessions were all in vain because respondent declined to discuss it
and would adjourn the session.x x x.
For failure to file an Answer, Martinez was declared in default and
was placed under preventive suspension for 60 days. Thereafter,
the Sangguniang Bayan rendered its Decision which imposed upon
Martinez the penalty of removal from office. The decision was
conveyed to the mayor of Bayombong, Nueva Ecija. The mayor,
however, issued a Memo wherein he stated that the Sangguniang
Bayan has no power to order Martinez removal from office.
However, the decision remains valid until reversed. Martinez then
filed a special civil action for certiorari before the RTC. The court
declared the decision void and maintained that the proper courts,
and not the petitioner, are empowered to remove an elective official
from office.
Issue:

WON the Sanggunian may remove Martinez, an elective

local official, from office.

Held:

No

Ratio:

Section 60 of the Local Government Code conferred upon

the courts the power to remove elective local officials from office.

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08-09:

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During the deliberations of the Senate on the Local Government

Code,[16] the legislative intent to confine to the courts, i.e., RTCs,
the Sandiganbayan and the appellate courts, jurisdiction over
cases involving the removal of elective local officials was evident.
In Salalima v. Guingona, Jr., the Court en banc categorically ruled
that the Office of the President is without any power to remove
elected officials, since the power is exclusively vested in the proper
courts as expressly provided for in the last paragraph of Section 60
of the LGC. It further invalidated Article 125, Rule XIX of IRR.
The Court nullified the rule since the Oversight Committee that
prepared the Rules and Regulations of the Local Government
Code exceeded its authority when it granted to the disciplining
authority the power to remove elective officials, a power which the
law itself granted only to the proper courts. Thus, it is clear that
under the law, the Sangguniang Bayan is not vested with the
power to remove Martinez.
Petitioner contends that administrative cases involving elective
barangay officials may be filed with, heard and decided by the
Sangguniang Panlungsod or Sangguniang Bayan concerned,
which can, thereafter, impose a penalty of removal from office. It
further claims that the courts are merely tasked with issuing the
order of removal, after the Sangguniang Panlungsod or
Sangguniang Bayan finds that a penalty of removal is warranted.
The aforementioned position put forward by the petitioner would
run counter to the rationale for making the removal of elective
officials an exclusive judicial prerogative. In Pablico v. Villapando,
the court declared that:The law on suspension or removal of
elective public officials must be strictly construed and applied, and
the authority in whom such power of suspension or removal is
vested must exercise it with utmost good faith, for what is involved
is not just an ordinary public official but one chosen by the people
through the exercise of their constitutional right of suffrage. Their
will must not be put to naught by the caprice or partisanship of
the disciplining authority. Where the disciplining authority is
given only the power to suspend and not the power to remove, it
should not be permitted to manipulate the law by usurping the
power to remove. (Emphasis supplied.)
The rule which confers to the proper courts the power to remove
an elective local official from office is intended as a check against
any capriciousness or partisan activity by the disciplining
authority. Vesting the local legislative body with the power to
decide whether or not a local chief executive may be removed from
office, and only relegating to the courts a mandatory duty to
implement the decision, would still not free the resolution of the
case from the capriciousness or partisanship of the disciplining
authority. Thus, the petitioners interpretation would defeat the
clear intent of the law.
Moreover, such an arrangement clearly demotes the courts to
nothing more than an implementing arm of the Sangguniang
Panlungsod, or Sangguniang Bayan. This would be an
unmistakable breach of the doctrine on separation of powers, thus
placing the courts under the orders of the legislative bodies of
local governments. The courts would be stripped of their power of
review, and their discretion in imposing the extreme penalty of
removal from office is thus left to be exercised by political factions
which stand to benefit from the removal from office of the local

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elective official concerned, the very evil which Congress sought to

avoid when it enacted Section 60 of the Local Government Code.
As the law stands, Section 61 of the Local Government Code
provides for the procedure for the filing of an administrative case
against an erring elective barangay official before the
Sangguniang Panlungsod or Sangguniang Bayan. However, the
Sangguniang Panlungsod or Sangguniang Bayan cannot order the
removal of an erring elective barangay official from office, as the
courts are exclusively vested with this power under Section 60 of
the Local Government Code. Thus, if the acts allegedly committed
by the barangay official are of a grave nature and, if found guilty,
would merit the penalty of removal from office, the case should be
filed with the regional trial court. Once the court assumes
jurisdiction, it retains jurisdiction over the case even if it would be
subsequently apparent during the trial that a penalty less than
removal from office is appropriate. On the other hand, the most
extreme penalty that the Sangguniang Panlungsod or
Sangguniang Bayan may impose on the erring elective barangay
official is suspension; if it deems that the removal of the official
from service is warranted, then it can resolve that the proper
charges be filed in court.
Petitioner alleged that an interpretation which gives the judiciary
the power to remove local elective officials violates the doctrine of
separation of powers. This allegation runs contrary to the 1987
Constitution itself, as well as jurisprudence.The doctrine of
separation of powers is not absolute in its application; rather, it
should be applied in accordance with the principle of checks and
balances. The removal from office of elective officials must not be
tainted with partisan politics and used to defeat the will of the
voting public. Congress itself saw it fit to vest that power in a
more impartial tribunal, the court. Furthermore, the local
government units are not deprived of the right to discipline local
elective officials; rather, they are prevented from imposing the
extreme penalty of dismissal.
Petitioner questions the Decision of the trial court for allowing the
petition filed before it as an exception to the doctrine of exhaustion
of administrative remedies. If, indeed, the Sangguniang Bayan
had no power to remove Martinez from office, then Martinez
should have sought recourse from the Sangguniang Panlalawigan.
This Court upholds the ruling of the trial court. The doctrine of
exhaustion of administrative remedies, which is based on sound
public policy and practical consideration, is not inflexible. There
are instances when it may be dispensed with and judicial action
may be validly resorted to immediately. Among these exceptions
are: 1) where there is estoppel on the part of the party invoking
the doctrine; 2) where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction; 3) where there
is unreasonable delay or official inaction that will irretrievably
prejudice the complainant; 4) where the amount involved is
relatively small as to make the rule impractical and oppressive; 5)
where the question raised is purely legal and will ultimately have
to be decided by the courts of justice; 6) where judicial
intervention is urgent; 7) where its application may cause great
and irreparable damage; 8) where the controverted acts violate
due process; 9) when the issue of non-exhaustion of administrative
remedies has been rendered moot; 10) where there is no other

S . Y.

08-09:

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plain, speedy and adequate remedy; 11) when strong public

interest is involved; and 13) in quo warranto proceedings.
As a general rule, no recourse to courts can be had until all
administrative remedies have been exhausted. However, this rule
is not applicable where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction and where the
question or questions involved are essentially judicial. In this case,
it is apparent that the Sangguniang Bayan acted beyond its
jurisdiction when it issued the assailed Order dated 28 July 2005
removing Martinez from office. Such act was patently illegal and,
therefore, Martinez was no longer required to avail himself of an
administrative appeal in order to annul the said Order of the
Sangguniang Bayan.[24] Thus, his direct recourse to regular
courts of justice was justified.
Disciplinary actions over Local Appointive Officials
Mendez v. Civil Service Commission (1991)
Facts:

The Acting Register of Deeds of Quezon City Vicente N.

Coloyan filed an administrative complaint against the petitioner, a

legal research assistant in the Quezon City Office of the City
Attorney, for Gross Misconduct and Dishonesty, allegedly for
having torn off a portion of TCT 209287 from the registry book of
Quezon City and for having pocketed it.
After three months of investigation, Quezon City Mayor Adelina
Rodriguez dismissed the said complaint against the petitioner for
insufficiency of evidence.
Coloyan appealed to the Merit Systems Protection Board which
reversed the decision and ruled that Mendez is guilty as charged
and therefore dismissed from service. The CSC affirmed on
appeal.
Issue:

WON

the

exoneration

made

by

the

mayor

is

unappealable
Held:

Yes

Ratio:

The petitioner filed a motion for reconsideration,

assailing the reversal of the city mayor's decision by the MSPB

and the CSC on the ground that Coloyan is not an aggrieved party
or "party adversely affected by the decision" allowed by law to file
an appeal. Moreover, the petitioner claimed that his exoneration
by the city mayor is unappealable pursuant to Section 37,
paragraph (b) of P.D. 807.
It is axiomatic that the right to appeal is merely a statutory
privilege and may be exercised only in the manner and in
accordance with the provision of law.
A cursory reading of P.D. 807, otherwise known as "The Philippine
Civil Service Law" shows that said law does not contemplate a
review of decisions exonerating officers or employees from
administrative charges. The phrase "party adversely affected by
the decision" refers to the government employee against whom the
administrative case is filed for the purpose of disciplinary action
which may take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office. In the instant
case, Coloyan who filed the appeal cannot be considered an

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(Guanzon)

aggrieved party because he is not the respondent in the

administrative case below.
Finally, pursuant to Section 37 paragraph (b) of P.D. 807, the city
mayor, as head of the city government, is empowered to enforce
judgment with finality on lesser penalties like suspension from
work for one month and forfeiture of salary equivalent to one
month against erring employees.
By inference or implication, the remedy of appeal may be availed
of only in a case where the respondent is found guilty of the
charges filed against him. But when the respondent is exonerated
of said charges, as in this case, there is no occasion for appeal.
Macalingag and Carlos v. Chang (1992)
Facts:

Lorinda Carlos signed a formal administrative charge

approved by Victor Macalincag accusing Robert Chang of

dishonesty, neglect of duty and acts prejudicial to the best interest
of the service. They are for: (a) disbursing the amount of P30,000
to Ms. Marisa Chan during the local elections, (b) disbursing
certain funds allegedly as financial assistance to bereaved
families, (c) disbursing funds for merienda of the employees, (d)
incurring overdrafts, (e) transferring certain amounts from the
treasurers safe to the realty tax divisions safe, and (f) remitting
to the Bureau of Treasury the national collection.
Macalincag issued an Order of Preventive Suspension against
Chang. Chang filed a petition for prohibition with writ of
preliminary injunction before the RTC against Macalinlag and
Carlos. The judge sustained the power of the Secretary of Finance
to issue the Order of Preventive Suspension. Upon MR, the court
set aside its decision and ordered the petitioners to cease and
desist from enforcing the order of preventive suspension.
Issue:

WON the Secretary of Finance has jurisdiction to issue

an Order of Preventive Suspension against the acting municipal

treasurer of Makati, Metro Manila.
Held:

Yes

Ratio: Chang contends that a government officer is not suspended

until someone has assumed the post and the officer subject of the
suspension order has ceased performing his official function; that
the implementation of the questioned suspension order was
overtaken by the issuance of EO 392 creating the Metropolitan
Manila Authority and that the power to discipline is vested solely
on the person who has the power to appoint.
It is very apparent from the records that Chang was
administratively charged on October 6, 1989 for dishonesty,
neglect of duty and acts Prejudicial to the best interest of the
service. It was signed by Carlos, Executive Director, Bureau of
Local Government and approved by Macalincag, Undersecretary of
Finance, then acting Secretary. Simultaneous with the charge,
Chang was preventively suspended which caused him to file a
complaint for Prohibition with preliminary injunction in the lower
court. The lower court pointed out that in order that a preventive
suspension will be implemented, there are two steps involved, viz:
1) service of a copy of said order on the respondent and 2)
designation of his replacement. The trial court ruled that until an
acting municipal treasurer is appointed to replace the respondent,

S . Y.

08-09:

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the order of preventive suspension dated October 6, 1989 is

incomplete and cannot be said to have taken effect. This ruling of
the trial court is untenable.
Preventive Suspension is governed by Sec. 41 of P.D. 807 or the
Civil Service Law. It will be noted that under the law, designation
of the replacement is not a requirement to give effect to the
preventive suspension. On the contrary, Batas Pambansa Blg. 337,
otherwise known as the Local Government Code, provides in
Section 156, Article 5, Chapter 3, Title II thereof for the automatic
assumption of the assistant municipal treasurer or next in rank
officer in case of suspension of the municipal treasurer.
Accordingly, there appears to be no question that: the Order of
Preventive Suspension of respondent Chang became effective upon
his receipt thereof, which is presumed when he filed a complaint
in the trial court preventing the implementation of such Order of
Suspension. Otherwise stated, the designation of the OFFICERIN-CHARGE to replace Chang is immaterial to the effectivity of
the latter's suspension. A contrary view would render nugatory
the very purpose of preventive suspension.
Among others, Chang argued that EO 392 gave rise to the
creation of the Metropolitan Manila Authority (MMA) and vested
in the President of the Republic of the Philippines the power to
appoint municipal treasurers in Metro Manila. As the power to
suspend and remove a municipal official is an incident of the
power to appoint, he maintained that it is the President who may
suspend or remove him. Earlier, prior to EO 392, the power to
appoint the aforesaid public officials was vested in the Provincial
Treasurers and Assessors of the Municipalities concerned, under
PD 477 and later transferred to the Commissioner of Finance
under PD 921, but under both decrees, the power of appointment
was made subject to Civil Service Laws and the approval of the
Secretary of Finance. Verily, the intention of the aforesaid
legislations to follow the Civil Service Laws, Rules and
Regulations is unmistakable. Correspondingly, the power to
discipline is specifically vested under Sec. 37 of P.D. No. 807 in
heads of departments, agencies and instrumentalities, provinces
and chartered cities who have original jurisdiction to investigate
and decide on matters involving disciplinary action. Stated
differently, they are the proper disciplining authority referred to in
Sec. 41 of the same law.
The Office of the Municipal Treasurer is unquestionably under the
Department of Finance as provided for in Sec. 3, P.D. No. 477.
Hence, the Secretary of Finance is the proper disciplining
authority to issue the preventive suspension order. More
specifically acting Secretary of Finance, Macalincag, acted within
his jurisdiction in issuing the order.
By and large, even assuming that the power to appoint, includes
the power to discipline as argued by Chang, acting Secretary
Macalincag as Secretary of Finance is an alter ego of the President
and therefore, it is within his authority, as an alter ego, to
preventively suspend Chang.
Garcia v. Pajaro and the City of Dagupan (2002)
Facts:

Sebastian Garcia is an employee at the City Treasurers

Office, Dagupan City. He was ordered suspended by City

Treasurer Juanito Pajaro and directed the withholding of his
salary because of the Formal Charge filed against him. However,

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(Guanzon)

Pajaro continued reporting for work because he did not honor the
suspension order as the City Treasurer acted as the complainant
and that there was no complaint against him from the Office of the
City Mayor.
Juanito Pajaro, the City Treasurer of Dagupan City, claimed that
Garcia has been rating unsatisfactory in his performance for
several semesters, which is the reason why he was formally
charged. Garcia was preventively suspended for ninety days since
the charge is a major offense. An investigation was scheduled but
Garcia failed to appear and testify. Garcia also did not answer the
subpoena. So, Pajaro proceeded with an ex parte investigation.
The Bureau of Local Government Finance favorably approved the
suspension. This was affirmed by the Regional Director.
Affirming the RTC Decision, the CA held that private respondent
was vested with legal power and authority to institute disciplinary
action against subordinate officers and employees.
The appellate court further held that the requisites of
administrative due process had been fully observed by Pajaro
while investigating petitioner. But despite being informed of the
charges against him and being given the opportunity to be heard
in a formal investigation, petitioner chose not to answer those
charges.
Issue:

WON the City Treasurer has disciplinary powers over

the petitioner
Ratio:

At the outset, it should be pointed out that under the

old and the present Local Government Codes, appointive officers

and employees of local government units are covered by the Civil
Service Law; and such rules, regulations and other issuances duly
promulgated pursuant thereto, unless otherwise specified.
Moreover, the investigation and the adjudication of administrative
complaints against appointive local officials and employees, as well
as their suspension and removal, shall be in accordance with the
Civil Service Law and rules and other pertinent laws.
The Administrative Code of 1987, -- specifically Book V on the civil
service -- is the primary law governing appointive officials and
employees in the government. They may be removed or dismissed
summarily (1) [w]hen the charge is serious and the evidence of
guilt is strong; (2) [w]hen the respondent is a recidivist x x x; and
(3) [w]hen the respondent is notoriously undesirable. Technical
rules of procedure and evidence are not strictly applied; due
process in the administrative context cannot be fully equated with
that in the strict judicial sense.
The power to discipline is specifically granted by Section 47 of the
Administrative Code of 1987 to heads of departments, agencies
and instrumentalities, provinces and cities. On the other hand,
the power to commence administrative proceedings against a
subordinate officer or employee is granted by Section 34 of the
Omnibus Rules Implementing Book V of the said Administrative
Code to the secretary of a department, the head of office of
equivalent rank, the head of a local government unit, the chief of
an agency, the regional director or a person with a sworn written
complaint.
Further, the city treasurer may institute, motu propio,
disciplinary proceedings against a subordinate officer or
employee. Local Administrative Regulations (LAR) No. 2-85,

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which was issued by the Ministry of Finance on March 27, 1985,

authorized the minister (now secretary) of finance, the regional
director, and head of a local treasury or an assessment office to
start administrative disciplinary action against officers or
employees subordinate to them.
In the case at bar, the city treasurer is the proper disciplining
authority referred to in Section 47 of the Administrative Code of
1987. The term agency refers to any of the various units of the
government including a department, a bureau, an office, an
instrumentality, a government-owned or controlled corporation, or
a local government or a distinct unit therein. Respondent Pajaro,
as the city treasurer, was the head of the Office of the Treasurer;
while petitioner, a senior revenue collector, was an officer under
him. Thus, the city treasurer is the proper disciplining authority
who could investigate petitioner and issue a preventive suspension
order against him.
Petitioners contention that it is only the city mayor who may
discipline him is not persuasive. Section 455 (b-1-x) of the 1991
Local Government Code states that the city mayor may cause to
be instituted administrative or judicial proceedings against any
official or employee of the city. This rule is not incongruent with
the provisions of the 1987 Administrative Code, which authorizes
the heads of agencies to discipline subordinate employees.
Likewise, the old Local Government Code does not vest in city
mayors the sole power to discipline and to institute criminal or
administrative actions against any officers or employees under
their jurisdiction. In fact, there is no provision under the present
Local Government Code expressly rescinding the authority of the
Department of Finance to exercise disciplinary authority over its
employees. By the same token, there is nothing that prohibits the
city treasurer from filing a complaint against petitioner.
As a corollary, the power to discipline evidently includes the power
to investigate. In the present case, Pajaro was authorized to issue
the assailed Preventive Suspension Order against petitioner,
because the latter was charged with gross neglect of duty, refusal
to perform official duties and functions, and insubordination -grounds that allowed the issuance of such Order, as provided by
Section 51 of the 1987 Administrative Code. Clearly, the city
treasurer acted within the scope of his power when he commenced
the investigation and issued the assailed Order.
Issue:

WON Garcia was denied due process

Held:

No

Ratio:

In an administrative proceeding, the essence of due

process is simply the opportunity to explain ones side. Such

process requires notice and an opportunity to be heard before
judgment is rendered. One may be heard, not solely by verbal
presentation in an oral argument, but also -- and perhaps even
many times more creditably and practicably -- through pleadings.
So long as the parties are given the opportunity to explain their
side, the requirements of due process are satisfactorily complied
with. Moreover, this constitutional mandate is deemed satisfied if
a person is granted an opportunity to seek reconsideration of an
action or a ruling.

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In the case at bar, the administrative proceedings were conducted

in accordance with the procedure set out in the 1987
Administrative Code and other pertinent laws. First, petitioner
was furnished a copy of the May 30, 1990 formal charge against
him. Second, Pajaro requested the approval of the Order of
Preventive Suspension in his June 1, 1990 letter addressed to the
Bureau of Local Government Finance regional director, who
approved the Order in the First Indorsement dated June 4, 1990.
Third, a subpoena dated July 31, 1990 was issued to petitioner
ordering him to testify during an investigation on August 15,
1990. However, he admittedly refused to attend the investigation;
thus, it was conducted ex parte. Fourth, the Department of
Finance affirmed Respondent Pajaros findings in its August 1,
1991 Decision,.
We need only to reiterate that parties who choose not to avail
themselves of the opportunity to answer charges against them
cannot complain of a denial of due process. Petitioners refusal to
attend the scheduled hearings, despite due notice, was at his own
peril. He therefore cannot validly claim that his right to due
process was violated.
As to petitioners claim for damages, the extant rule is that a
public officer shall not be liable by way of moral and exemplary
damages for acts done in the performance of official duties, unless
there is a clear showing of bad faith, malice or gross negligence.
There was no such showing in the present case.
RECALL
Rivera v. COMELEC (2007), supra.
It bears stressing that in Ong v. Alegre cited above, Francis Ong
was elected and assumed the duties of the mayor of San Vicente,
Camarines Norte for three consecutive terms.
But his
proclamation as mayor in the May 1998 election was declared void
by the RTC of Daet, Camarines Norte in its Decision dated July 4,
2001. As ruled by this Court, his service for the term 1998 to
2001 is for the full term.

Clearly, the three-term limit rule

applies to him. Indeed, there is no reason why this ruling should

not also apply to respondent Morales who is similarly situated.
Here, Morales invoked not only Lonzanida v. COMELEC, but also
Borja, Jr. v. Commission on Elections which is likewise
inapplicable. In Borja, the Court held that Capcos assumption of
the office of mayor upon the death of the incumbent may not be
regarded as a term under Section 8, Article X of the Constitution
and Section 43 (b) of R.A. No. 7160 (the Local Government Code).
He held the position from September 2, 1989 to June 30, 1992, a
period of less than three years. Moreover, he was not elected to
that position.
Similarly, in Adormeo v. COMELEC, this Court ruled that
assumption of the office of mayor in a recall election for the
remaining term is not the term contemplated under Section 8,
Article X of the Constitution and Section 43 (b) of R.A. No. 7160
(the Local Government Code). As the Court observed, there was a
break in the service of private respondent Ramon T. Talanga as
mayor. He was a private citizen for a time before running for
mayor in the recall elections.

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Here, Morales was elected for the term July 1, 1998 to June 30,
2001. He assumed the position. He served as mayor until June
30, 2001. He was mayor for the entire period notwithstanding the
Decision of the RTC in the electoral protest case filed by petitioner
Dee ousting him (respondent) as mayor. To reiterate, as held in
Ong v. Alegre, such circumstance does not constitute an
interruption in serving the full term. Section 8, Article X of the
Constitution can not be more clear and explicit. 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.
This Court reiterates that the framers of the Constitution
specifically included an exception to the peoples freedom to
choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a
particular territorial jurisdiction as a result of a prolonged
stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive
terms as municipal mayor would obviously defeat the very intent
of the framers when they wrote this exception. Should he be
allowed another three consecutive term as mayor of the City of
Digos, petitioner would then be possibly holding office as chief
executive over the same territorial jurisdiction and inhabitants for
a total of eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not abhorred by it.
This is the very situation in the instant case. Morales maintains
that he served his second term (1998 to 2001) only as a caretaker
of the office or as a de facto officer. Section 8, Article X of the
Constitution is violated and its purpose defeated when an official
serves in the same position for three consecutive terms. Whether
as caretaker or de facto officer, he exercises the powers and
enjoys the prerequisites of the office which enables him to stay on
indefinitely. Morales should be promptly ousted from the position
of mayor of Mabalacat.
Having found respondent Morales ineligible, his Certificate of
Candidacy dated December 30, 2003 should be cancelled. In the
light of the foregoing, Morales can not be considered a candidate
in the May 2004 elections. Not being a candidate, the votes cast
for him SHOULD NOT BE COUNTED and must be considered
stray votes.
Since respondent Morales is DISQUALIFIED from continuing to
serve as mayor of Mabalacat, the instant petition for quo warranto
has become moot.
Evardone v. COMELEC (1991)
Facts:

Felipe Evardone the mayor of Sulat, Eastern Samar,

having been elected to the position during the 1988 local elections.
He assumed office immediately after proclamation. In 1990,
Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival filed
a petition for the recall of Evardone with the Office of the Local
Election Registrar, Municipality of Sulat. The Comelec issued a
Resolution approving the the recommendation of Election
Registrar Vedasto Sumbilla to hold the signing of petition for
recall against Evardone. Evardone filed a petition for prohibition
with urgent prayer of restraining order and/or writ of preliminary

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(Guanzon)

S . Y.

injunction. Later, in an en banc resolution, the Comelec nullified

the signing process for being violative of the TRO of the court.
Hence, this present petition.
Issue:

WON

Resolution

No.

2272

promulgated

by

the

COMELEC by virtue of its powers under the Constitution and BP

337 (Local Government Code) was valid
Held:

Yes

Ratio:

Evardone maintains that Article X, Section 3 of the 1987

Constitution repealed Batas Pambansa Blg. 337 in favor of one to

be enacted by Congress. Since there was, during the period
material to this case, no local government code enacted by
Congress after the effectivity of the 1987 Constitution nor any law
for that matter on the subject of recall of elected government
officials, Evardone contends that there is no basis for COMELEC
Resolution No. 2272 and that the recall proceedings in the case at
bar is premature.
The COMELEC avers that the constitutional provision does not
refer only to a local government code which is in futurum but also
in esse. It merely sets forth the guidelines which Congress will
consider in amending the provisions of the present LGC. Pending
the enactment of the amendatory law, the existing Local
Government Code remains operative.
Article XVIII, Section 3 of the 1987 Constitution express provides
that all existing laws not inconsistent with the 1987 Constitution
shall remain operative, until amended, repealed or revoked.
Republic Act No. 7160 providing for the Local Government Code of
1991, approved by the President on 10 October 1991, specifically
repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said
Act. But the Local Government Code of 1991 will take effect only
on 1 January 1992 and therefore the old Local Government Code
(B.P. Blg. 337) is still the law applicable to the present case. Prior
to the enactment of the new Local Government Code, the
effectiveness of B.P. Blg. 337 was expressly recognized in the
proceedings of the 1986 Constitutional Commission. We therefore
rule that Resolution No. 2272 promulgated by the COMELEC is
valid and constitutional. Consequently, the the COMELEC had
the authority to approve the petition for recall and set the date for
the signing of said petition.
Issue:

WON the TRO issued by this Court rendered nugatory

the signing process of the petition for recall held pursuant to

Resolution No. 2272.
Held:

No

Ratio:

In the present case, the records show that Evardone

knew of the Notice of Recall filed by Apelado, on or about 21

February 1990 as evidenced by the Registry Return Receipt; yet,
he was not vigilant in following up and determining the outcome
of such notice. Evardone alleges that it was only on or about 3 July
1990 that he came to know about the Resolution of the COMELEC
setting the signing of the petition for recall on 14 July 1990. But
despite his urgent prayer for the issuance of a TRO, Evardone filed
the petition for prohibition only on 10 July 1990. Indeed, this

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Court issued a TRO on 12 July 1990 but the signing of the petition
for recall took place just the same on the scheduled date through
no fault of the COMELEC and Apelado. The signing process was
undertaken by the constituents of the Municipality of Sulat and
its Election Registrar in good faith and without knowledge of the
TRO earlier issued by this Court. As attested by Election
Registrar Sumbilla, about 2,050 of the 6,090 registered voters of
Sulat, Eastern Samar or about 34% signed the petition for recall.
As held in Parades vs. Executive Secretary there is no turning
back the clock.
The right to recall is complementary to the right to elect or
appoint. It is included in the right of suffrage. It is based on the
theory that the electorate must maintain a direct and elastic
control over public functionaries. It is also predicated upon the
idea that a public office is "burdened" with public interests and
that the representatives of the people holding public offices are
simply agents or servants of the people with definite powers and
specific duties to perform and to follow if they wish to remain in
their respective offices. Whether or not the electorate of Sulat has
lost confidence in the incumbent mayor is a political question. It
belongs to the realm of politics where only the people are the
judge. "Loss of confidence is the formal withdrawal by an
electorate of their trust in a person's ability to discharge his office
previously bestowed on him by the same electorate. The
constituents have made a judgment and their will to recall
Evardone has already been ascertained and must be afforded the
highest respect. Thus, the signing process held last 14 July 1990
for the recall of Mayor Felipe P. Evardone of said municipality is
valid and has legal effect.
However, recall at this time is no longer possible because of the
limitation provided in Sec. 55 (2) of B.P. Blg, 337. The Constitution
has mandated a synchronized national and local election prior to
30 June 1992, or more specifically, as provided for in Article XVIII,
Sec. 5 on the second Monday of May, 1992. Thus, to hold an
election on recall approximately seven (7) months before the
regular local election will be violative of the above provisions of
the applicable Local Government Code
Garcia v. COMELEC (1993)
Facts:

Enrique Garcia was elected governor of the province of

Bataan. Some mayors, vice-mayors and members of the

Sangguniang Bayan of the twelve (12) municipalities of the
province constituted themselves into a Preparatory Recall
Assembly to initiate the recall election of Garcia. The mayor of
Mariveles, Honorable Oscar, de los Reyes, and the mayor of
Dinalupihan, the Honorable Lucila Payumo, were chosen as
Presiding Officer and Secretary of the Assembly, respectively.
Thereafter, the Vice-Mayor of Limay, the Honorable Ruben Roque,
was recognized and he moved that a resolution be passed for the
recall of the petitioner on the ground of "loss of confidence." The
motion was "unanimously seconded."
Petitioners filed with the Comelec a petition to deny due course to
the Resolution for failure to comply with the requirements under
the LGC. The comelec dismissed the petition and scheduled the
recall election. Petitioners filed a petition for certiorari and
prohibition with the SC on the ground that section 70 of R.A. 7160
allowing recall through the initiative of the PRAC is

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unconstitutional because: (1) the people have the sole and

exclusive right to decide whether or not to initiate proceedings,
and (2) it violated the right of elected local public officials
belonging to the political minority to equal protection of law. They
also argued that the proceedings followed by the PRAC in passing
Resolution No. I suffered from numerous defects, the most fatal of
which was the deliberate failure to send notices of the meeting to
sixty-five (65) members of the assembly.
Issue:

WON all the members of the Preparatory Recall

Assembly were notified of its meeting

Held:
Ratio:

Yes
The failure to give notice to all members of the

assembly, especially to the members known to be political allies of

Garcia was admitted by both counsels of the respondents. They
did not deny that only those inclined to agree with the resolution
of recall were notified as a matter of political strategy and
security. They justified these selective notices on the ground that
the law does not specifically mandate the giving of notice. We
reject this submission of the respondents. The due process clause
of the Constitution requiring notice as an element of fairness is
inviolable and should always be considered as part and parcel of
every law in case of its silence. The need for notice to all the
members of the assembly is also imperative for these members
represent the different sectors of the electorate of Bataan. To the
extent that they are not notified of the meeting of the assembly, to
that extent is the sovereign voice of the people they represent
nullified. The resolution to recall should articulate the majority
will of the members of the assembly but the majority will can be
genuinely determined only after all the members of the assembly
have been given a fair opportunity to express the will of their
constituents. Needless to stress, the requirement of notice is
indispensable in determining the collective wisdom of the
members of the Preparatory Recall Assembly. Its non-observance
is fatal to the validity of the resolution to recall petitioner Garcia
as Governor of the province of Bataan.
Issue:

WON the alternative mode of allowing a preparatory

recall assembly to initiate the process of recall is unconstitutional

Held:

No

Ratio:

A reading of the legislative history of these recall

provisions will reveal that the idea of empowering a preparatory

recall assembly to initiate the recall from office of local elective
officials, originated from the House of Representatives and not the
Senate. The legislative records reveal there were two (2) principal
reasons why this alternative mode of initiating the recall process
thru an assembly was adopted, viz: (a) to diminish the difficulty of
initiating recall thru the direct action of the people; and (b) to cut
down on its expenses. Our lawmakers took note of the undesirable
fact that the mechanism initiating recall by direct action of the
electorate was utilized only once in the City of Angeles,
Pampanga, but even this lone attempt to recall the city mayor
failed. Former Congressman Wilfredo Cainglet explained that this

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initiatory process by direct action of the people was too

cumbersome, too expensive and almost impossible to implement.
Consequently, our legislators added in the a second mode of
initiating the recall of local officials thru a preparatory recall
assembly. They brushed aside the argument that this second mode
may cause instability in the local government units due to its
imagined ease.
Petitioners cannot point to any specific provision of the
Constitution that will sustain this submission. To be sure, there is
nothing in the Constitution that will remotely suggest that the
people have the "sole and exclusive right to decide on whether to
initiate a recall proceeding." The Constitution did not provide for
any mode, let alone a single mode, of initiating recall elections.
Neither did it prohibit the adoption of multiple modes of initiating
recall elections. The mandate given by section 3 of Article X of the
Constitution is for Congress to "enact a local government code
which shall provide for a more responsive and accountable local
government structure through a system of decentralization with
effective mechanisms of recall, initiative, and referendum . . ." By
this constitutional mandate, Congress was clearly given the power
to choose the effective mechanisms of recall as its discernment
dictates. The power given was to select which among the means
and methods of initiating recall elections are effective to carry out
the judgment of the electorate. Congress was not straightjacketed
to one particular mechanism of initiating recall elections. What
the Constitution simply required is that the mechanisms of recall,
whether one or many, to be chosen by Congress should be effective.
Using its constitutionally granted discretion, Congress deemed it
wise to enact an alternative mode of initiating recall elections to
supplement the former mode of initiation by direct action of the
people. Congress has made its choice as called for by the
Constitution and it is not the prerogative of this Court to supplant
this judgment. The choice may be erroneous but even then, the
remedy against a bad law is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the
legislative that determines the necessity, adequacy, wisdom and
expediency of any law.
Petitioners also positive thesis that in passing Resolution 1, the
Bataan Preparatory Recall Assembly did not only initiate the
process of recall but had de facto recalled Garcia from office, a
power reserved to the people alone. Again, the contention cannot
command our concurrence. Petitioners have misconstrued the
nature of the initiatory process of recall by the PRAC. They have
embraced the view that initiation by the PRAC is not initiation by
the people. This is a misimpression for initiation by the PRAC is
also initiation by the people, albeit done indirectly through their
representatives. It is not constitutionally impermissible for the
people to act through their elected representatives. Nothing less
than the paramount task of drafting our Constitution is delegated
by the people to their representatives, elected either to act as a
constitutional convention or as a congressional constituent
assembly. The initiation of a recall process is a lesser act and there
is no rhyme or reason why it cannot be entrusted to and exercised
by the elected representatives of the people. More far out is
petitioners' stance that a PRA resolution of recall is the recall
itself. It cannot be seriously doubted that a PRA resolution of
recall merely, starts the process. It is part of the process but is not

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the whole process. This ought to be self evident for a PRA

resolution of recall that is not submitted to the COMELEC for
validation will not recall its subject official. Likewise, a PRA
resolution of recall that is rejected by the people in the election
called for the purpose bears no effect whatsoever. The initiatory
resolution merely sets the stage for the official concerned to
appear before the tribunal of the people so he can justify why he
should be allowed to continue in office. Before the people render
their sovereign judgment, the official concerned remains in office
but his right to continue in office is subject to question. This is
clear in section 72 of the Local Government Code which states
that "the recall of an elective local official shall be effective only
upon the election and proclamation of a successor in the person of
the candidate receiving the highest number of votes cast during
the election on recall."
Issue:

WON petitioners were denied equal protection of the

laws
Held:
Ratio:

No
Petitioners' argument does not really assail the law but

its possible abuse by the members of the PRAC while exercising

their right to initiate recall proceedings. More specifically, the fear
is expressed that the members of the PRAC may inject political
color in their decision as they may initiate recall proceedings only
against their political opponents especially those belonging to the
minority. A careful reading of the law, however, will ineluctably
show that it does not give an asymmetrical treatment to locally
elected officials belonging to the political minority. First to be
considered is the politically neutral composition of the preparatory
recall assembly, all mayors, vice-mayors and sangguniang
members of the municipalities and component cities are made
members of the preparatory recall assembly at the provincial
level. Its membership is not apportioned to political parties. No
significance is given to the political affiliation of its members.
Secondly, the preparatory recall assembly, at the provincial level
includes all the elected officials in the province concerned.
Considering their number, the greater probability is that no one
political party can control its majority. Thirdly, sec. 69 of the Code
provides that the only ground to recall a locally elected public
official is loss of confidence of the people. The members of the
PRAC are in the PRAC not in representation of their political
parties but as representatives of the people. By necessary
implication, loss of confidence cannot be premised on mere
differences in political party affiliation. Indeed, our Constitution
encourages multi-party system for the existence of opposition
parties is indispensable to the growth and nurture of democratic
system. Clearly then, the law as crafted cannot be faulted for
discriminating against local officials belonging to the minority.
The fear that a preparatory recall assembly may be dominated by
a political party and that it may use its power to initiate the recall
of officials of opposite political persuasions, especially those
belonging to the minority, is not a ground to strike down the law
as unconstitutional. To be sure, this argument has long been in
disuse for there can be no escape from the reality that all powers
are susceptible of abuse. The mere possibility of abuse cannot,

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however, infirm per se the grant of power to an individual or

entity. To deny power simply because it can be abused by the
grantee is to render government powerless and no people need an
impotent government. There is no democratic government that can
operate on the basis of fear and distrust of its officials, especially
those elected by the people themselves. On the contrary, all our
laws assume that officials, whether appointed or elected, will act
in good faith and will perform the duties of their office. Such
presumption follows the solemn oath that they took after
assumption of office, to faithfully execute all our laws.
There is only one ground for the recall of local government
officials: loss of confidence. This means that the people may
petition or the Preparatory Recall Assembly may resolve to recall
any local elective officials without specifying any particular
ground except loss of confidence. There is no need for them to
bring up any charge of abuse or corruption against the local
elective officials who are the subject of any recall petition.
Petitioners also contend that the resolution of the members of the
preparatory recall assembly subverted the will of the electorate of
the province of Bataan who elected Garcia with a majority of
12,500 votes. Again, the contention proceeds from the erroneous
premise that the resolution of recall is the recall itself. It refuses
to recognize the reality that the resolution of recall is a mere
proposal to the electorate of Bataan to subject petitioner to a new
test of faith. The proposal will still be passed upon by the
sovereign electorate of Bataan. As this judgment has yet to be
expressed, it is premature to conclude that the sovereign will of
the electorate of Bataan has been subverted. The electorate of
Bataan may or may not recall petitioner Garcia in an appropriate
election. If the electorate re-elects Garcia, then the proposal to
recall him made by the preparatory recall assembly is rejected. On
the other hand, if the electorate does not re-elect Garcia, then he
has lost the confidence of the people which he once enjoyed. The
judgment will write finis to the political controversy. For more
than judgments of courts of law, the judgment of the tribunal of
the people is final for "sovereignty resides in the people and all
government authority emanates from them."
In sum, the petition at bench appears to champion the sovereignty
of the people, particularly their direct right to initiate and remove
elective local officials thru recall elections. If the petition would
succeed, the result will be a return to the previous system of recall
elections which Congress found should be improved. The
alternative mode of initiating recall proceedings thru a
preparatory recall assembly is, however, an innovative attempt by
Congress to remove impediments to the effective exercise by the
people of their sovereign power to check the performance of their
elected officials. The power to determine this mode was specifically
given to Congress and is not proscribed by the Constitution.
Quaison, Concurring: The intent is clear that the 1987
Constitution leaves it to Congress to provide the recall mechanism
without any pre-ordained restrictions. The broad powers of
Congress in pescribing the procedure for recall include the
determination as to the number of electors needed to initiate the
recall, the method of voting of the electors, the time and place of
the voting and whether the process includes the election of the
successor of the recalled official. In the Local Government Code of

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1991 (R.A. 7160), Congress adopted an alternative procedure for

initiating the recall and made it as a mere stage of the recall
process.
Congress also deigned it wise to give the electorate a chance to
participate in the exercise twice: first, in the initiation of the
recall; and secondly, in the election of the person to occupy the
office subject of the recall. This is in contrast with the first recall
statute in the Philippines, the Festin Law (Com. Act No. 560)
where the participation of the electorate were denied the
opportunity to vote for the retention of the official subject of the
recall.
In a sense, the members of the PRA can be considered as
constituting a segment of the electorate because they are all
registered voters of the province. If they constitute less than one
per cent of the voters in the province, that miniscule number goes
to the policy, not the validity of the law and the remedy to correct
such a flaw is left with t he legislature, not with the judiciary.
Vitug, Concurring: It may not be amiss, however, to caution
against any idea of omnipotence in wielding the "power of recall"
conferred to the "Preparatory Recall Assembly." Clearly implicit in
any grant of power, like any other right, is an assumption of a
correlative duty to exercise it responsibly. When it, therefore,
becomes all too evident that there has been an abuse of that
authority, appropriate judicial recourse to, and corrective relief by,
this Court will not be denied.
Davide Jr, Dissenting: In both B.P. Blg. 337 and the Local
Government Code of 1991, our Legislature fixed it at 25% of the
total number of registered voters in the local government unit
concerned during the election in which the local official sought to
be recalled was elected. It follows then that said power cannot be
shared with any other group of persons or officials. The reason
why the initiation phase can and must be done only by the
electorate is not difficult to understand. If it can also be done by
another body, such as the PRA in this case, the exclusiveness or
indivisibility of the power is necessarily impaired or negated. In
such a case, the electorate is by passed and the resulting recall
petition or resolution can by no means be an authentic, free, and
voluntary act of the electorate, which characteristics are indicia of
the exercise of a power. The power to initiate, being a component of
the power or recall, necessarily includes the power not to initiate.
The power to initiate becomes meaningless if another body is
authorized to do it for the electorate. Worse, since the second
component of the power of recall, i.e., the recall election, does not
come into play without the recall petition, it follows that where the
petition is not done through the initiative of the electorate because
the latter chooses not to exercise its power to recall or finds no
reason therefor, that election becomes, as to the electorate would
in effect be compelled to participate in a political exercise it
neither called for nor decided to have.
Hence, the fullness of the power of recall precludes the delegation
of the corresponding authority to initiate it to any entity other
than the electorate, especially where the delegation unduly
infringes upon and impairs such power as in this case.
I might add that since Congress decided to retain the 25%
requirement for the traditional method of initiating recall which

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is the method in full accord and perfect harmony with the true
essence of recall the provision for an alternative method, i.e.,
recall resolution by a mere majority of the PRA, is subtly designed
to negate, if not altogether defeat, the power of the electorate and
to substitute the will of a very small group for the will of the
electorate.
Paras v. COMELEC (1997)
Facts:

Danilo E. Paras is the incumbent Punong Barangay of

Pula, Cabanatuan City. A petition for his recall as Punong

Barangay was filed by the registered voters of the barangay. The
Coelec scheduled the petition signing on October 14, 1995, and set
the recall election on November 13,1995. At least 29.30% of the
registered voters signed the petition, above the 25% requirement
provided by law. To prevent the holding of the recall election,
petitioner filed before the RTC petition for injunction. After
conducting a summary hearing, the trial court lifted the
restraining order, dismissed the petition and required petitioner
and his counsel to explain why they should not be cited for
contempt for misrepresenting that the barangay recall election
was without COMELEC approval.
The Comelec again re-scheduled the recall election, hence the
instant petition for certiorari with urgent prayer for injunction.
Issue:

WON the recall election to be held on January 13, 1996

is barred by the SK election to be held on May 1996.

Ratio:

Petitioner's argument is simple and to the point. Citing

Section 74 (b) of Republic Act No. 7160, otherwise known as the

Local Government Code, which states that "no recall shall take
place within one (1) year from the date of the official's assumption
to office or one (1) year immediately preceding a regular local
election", petitioner insists that the scheduled January 13, 1996
recall election is now barred as the Sangguniang Kabataan (SK)
election was set by Republic Act No. 7808 on the first Monday of
May 1996, and every three years thereafter.
The evident intent of Section 74 is to subject an elective local
official to recall election once during his term of office. Paragraph
(b) construed together with paragraph (a) merely designates the
period when such elective local official may be subject of a recall
election, that is, during the second year of his term of office. Thus,
subscribing to petitioner's interpretation of the phrase regular
local election to include the SK election will unduly circumscribe
the novel provision of the Local Government Code on recall, a
mode of removal of public officers by initiation of the people before
the end of his term. And if the SK election which is set by R.A No.
7808 to be held every three years from May 1996 were to be
deemed within the purview of the phrase "regular local election",
as erroneously insisted by petitioner, then no recall election can be
conducted rendering inutile the recall provision of the LGC.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law,
and the legislature is not presumed to have done a vain thing in
the enactment of a statute. An interpretation should, if possible,
be avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed,

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emasculated, repealed, explained away, or rendered insignificant,

meaningless, inoperative or nugatory.
It is likewise a basic precept in statutory construction that a
statute should be interpreted in harmony with the Constitution.
Thus, the interpretation of Section 74 of the Local Government
Code, specifically paragraph (b) thereof, should not be in conflict
with the Constitutional mandate of Section 3 of Article X of the
Constitution to "enact a local government code which shall provide
for a more responsive and accountable local government structure
instituted through a system of decentralization with effective
mechanism of recall, initiative, and referendum . . . ."
Finally, recall election is potentially disruptive of the normal
working of the local government unit necessitating additional
expenses, hence the prohibition against the conduct of recall
election one year immediately preceding the regular local election.
The proscription is due to the proximity of the next regular
election for the office of the local elective official concerned. The
electorate could choose the official's replacement in the said
election who certainly has a longer tenure in office than a
successor elected through a recall election. It would, therefore, be
more in keeping with the intent of the recall provision of the Code
to construe regular local election as one referring to an election
where the office held by the local elective official sought to be
recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of
the limitation stated under Section 74 (b) of the Code considering
that the next regular election involving the barangay office
concerned is barely seven (7) months away, the same having been
scheduled on May 1997.
Davide, Concurring: I wish to add another reason as to why the
SK election cannot be considered a "regular local election" for
purposes of recall under Section 74 of the Local Government Code
of 1991. The term "regular local election" must be confined to the
regular election of elective local officials, as distinguished from the
regular election of national officials. The elective national officials
are the President, Vice-President, Senators and Congressmen.
The elective local officials are Provincial Governors, ViceGovernors of provinces, Mayors and Vice-Mayors of cities and
municipalities, Members of the Sanggunians of provinces, cities
and municipalities, punong barangays and members of the
sangguniang barangays, and the elective regional officials of the
Autonomous Region of Muslim Mindanao. These are the only local
elective officials deemed recognized by Section 2(2) of Article IX-C
of the Constitution, which provides:
A regular election, whether national or local, can only refer to an
election participated in by those who possess the right of suffrage,
are not otherwise disqualified by law, and who are registered
voters. One of the requirements for the exercise of suffrage under
Section 1, Article V of the Constitution is that the person must be
at least 18 years of age, and one requisite before he can vote is
that he be a registered voter pursuant to the rules on registration
prescribed in the Omnibus Election Code (Section 113-118).
Under the law, the SK includes the youth with ages ranging from
15 to 21 (Sec. 424, Local Government Code of 1991). Accordingly,
they include many who are not qualified to vote in a regular
election, viz., those from ages 15 to less than 18. In no manner

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then may SK elections be considered a regular election (whether

national or local).
Malonzo v. COMELEC (1997)
Facts:

Petitioner was duly elected as Mayor, winning over

former Mayor Macario Asistio, Jr. Barely one year into his term,
1,057 Punong Barangays and Sangguniang Barangay members
and SK chairmen, constituting a majority of the members of the
Preparatory Recall Assembly of the City of Caloocan, met, and
upon deliberation and election, voted for the approval of
Preparatory Recall Assembly Resolution No. 01-96, expressing
loss of confidence in Mayor Malonzo, and calling for the initiation
of recall proceedings against him. The Comelec declared the recall
proceedings to be in order. Mayor Malonzo filed a petition for
certiorari with a prayer for TRO assailing the Comelecs
resolution. The Petition, in the main, raises the issue of the
validity of the institution and proceedings of the recall, putting to
fore the propriety of the service of notices to the members of the
Preparatory Recall Assembly, and the proceedings held, resulting
in the issuance of the questioned Resolution.
Issue:

WON notices were properly sent to the members of the

PRA
Held:

Yes

Ratio:

The Commission regards the sending of notice one thing,

and the completion of service thereof another, for indeed, the

requirement of notice can only be fully satisfied, if there was not
only service, but also completion of service thereof. Thus, we were
obliged to inquire more closely into the records and we found.
Personal services were acknowledged by receipts signed, if not by
the addressee himself, then, as indicated thereon, by his or her
spouse, nearest relative or a person of sufficient discretion in the
member 's residence or office. Service by registered mail was
evinced by the return card duly signed by the addressee or by
persons acting for him. There were instances when notices were
served but were refused, this fact noted in the acknowledgment
receipt by the server and his witnesses. The circumstances being
thus, we hold that there was complete service of the notices as
contemplated in Section 8, Rule 13 of the Rules of Court.
That it was Alex David, President of the LIGA ng mga Barangay
who sent the notices is of no moment. We had earlier determined
that as member of the PRA, he can legally exercise the
prerogatives attached to his membership in the Preparatory
Recall Assembly, sending notices to the other members of its
scheduled convening. It is evident from the foregoing and,
therefore, the Commission so holds that the requirements of notice
had been fully complied with. Needless to state, the issue of
propriety of the notices sent to the PRA members is factual in
nature, and the determination of the same is therefore a function
of the COMELEC. In the absence of patent error the Court should
not disturb the same.
Issue:

WON the proceedings held by the PRA are valid

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Held:

Yes

Ratio:

Petitioner's insistence, that the initiation of the recall

proceedings was infirm since it was convened by the Liga ng mga

Barangays, is misplaced. Petitioner observes that "respondent
Liga is an organization of all barangays. It is not an organization
of barangay captains and kagawads. The barangays are
represented in the Liga by the barangay captains as provided
under Section 492 LGC. It also provides that the Kagawad may
represent the barangay in the absence of the barangay chairman."
The Liga ng mga Barangay is undoubtedly an entity distinct from
the Preparatory Recall Assembly. It just so happens that the
personalities representing the barangays in the Liga are the very
members of the Preparatory Recall Assembly, the majority of
whom met on July 7, 1996, and voted in favor of the resolution
calling for the recall of Mayor Malonzo, after deliberation reported
in the record, in accordance with the existing law. Thus, the
Punong Barangays and Sangguniang Barangay members
convened and voted as members of the Preparatory Recall
Assembly of Caloocan, and not as members of the Liga ng mga
Barangay. The recall proceedings, therefore, cannot be denied
merit on this ground. Any doubt as to the propriety of the
proceedings held during the recall assembly should be laid to rest.
As the COMELEC pertinently observes: The Minutes of the
session of the Preparatory Assembly indicated that there was a
session held. Attendees constitute the majority of all the members
of the Preparatory Assembly, as we shall later on establish. Rules
of procedure, simple they may be were formulated. Deliberations
were conducted on the main issue, which was that of petitioner's
recall. The members were given the opportunity to articulate on
their resolve about the matter. More importantly, their sentiments
were expressed through their votes signified by their signatures
and thumbmarks affixed to the Resolution. No proof was adduced
by Petitioner to substantiate his claim that the signatures
appearing thereon represented a cause other than that of adopting
the resolution.
The charges of graft and corruption, violence and irregularities,
before and during the session of the preparatory recall assembly
are largely uncorroborated, and cannot override the substantiated
findings of the respondent COMELEC.
Claudio v. COMELEC (2000)
Facts: Jovito Claudio was the duly elected mayor of Pasay City in
the May 11, 1998. On May 19, 1999, several barangay chairs
formed an ad hoc committee for the purpose of convening the PRA.
Richard Advincula was designated chair. The members of the PRA
adopted Resolution No. 01, S-1999, initiating Claudios recall. The
petition for recall was filed on the Office of the City Mayor. The
comelec also posted the petition on the bulletin boards of certain
public places. Oppositions to the petition were filed by Jovito
Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging
procedural and substantive defects in the petition, to wit: (1) the
signatures affixed to the resolution were actually meant to show
attendance at the PRA meeting; (2) most of the signatories were
only representatives of the parties concerned who were sent there
merely to observe the proceedings; (3) the convening of the PRA
took place within the one-year prohibited period; (4) the election

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case, filed by Wenceslao Trinidad in this Court, seeking the

annulment of the proclamation of petitioner Claudio as mayor of
Pasay City, should first be decided before recall proceedings
against petitioner could be filed; and (5) the recall resolution failed
to obtain the majority of all the members of the PRA, considering
that 10 were actually double entries, were not duly accredited
members of the barangays, 40 sangguniang kabataan officials had
withdrawn their support, and 60 barangay chairs executed
affidavits of retraction.
The COMELEC granted the petition and dismissed the opposition.
It ruled that the 1,073 members who attended the May 29, 1999
meeting were more than necessary to constitute the PRA,
considering that its records showed the total membership of the
PRA was 1,790, while the statistics of the Department of Interior
and Local Government (DILG) showed that the total membership
of the PRA was 1,876. In either case, since only a majority is
required to constitute the PRA, clearly, a majority had been
obtained in support of the recall resolution. Hence, this petition.
Issue: WON Word "Recall" in Paragraph (b) of 74 of the Local
Government Code Includes the Convening of the Preparatory
Recall Assembly and the Filing by it of a Recall Resolution
Held: Yes
Ratio: We can agree that recall is a process which begins with the
convening of the preparatory, recall assembly or the gathering of
the signatures at least 25% of the registered voters of a local
government unit, and then proceeds to the filing of a recall
resolution or petition with the COMELEC, the verification of such
resolution or petition, the fixing of the date of the recall election,
and the holding of the election on the scheduled date.[5) However,
as used in paragraph (b) of 74, "recall" refers to the election itself
by means of which voters decide whether they should retain their
local official or elect his replacement. Several reasons can be cited
in support of this conclusion.
First, 74 deals with restrictions on the power of recall. It is in
fact entitled "Limitations on Recall." On the other hand, 69
provides that "the power of recall ...shall be exercised by the
registered voters of a local government unit to which the local
elective official belongs." Since the power vested on the electorate
is not the power to initiate recall proceedings[6) but the power to
elect an official into office, the limitations in 74 cannot be deemed
to apply to the entire recall proceedings. In other words, the term
"recall" in paragraph (b) refers only to the recall election,
excluding the convening of the PRA and the filing of a petition for
recall with the COMELEC, or the gathering of the signatures of at
least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held or petitions for recall filed
with the COMELEC - there is no legal limit on the number of
times such processes may be resorted to. These are merely
preliminary steps for the purpose of initiating a recall. The
limitations in 74 apply only to the exercise of the power of recall
which is vested in the registered voters. It is this - and not merely,
the preliminary steps required to be taken to initiate a recall which paragraph (b) of 74 seeks to limit by providing that no

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(Guanzon)

recall shall take place within one year from the date of assumption
of office of an elective local official.
The second reason why the term "recall" in paragraph (b) refers to
recall election is to be found in the purpose of the limitation itself.
There are two limitations in paragraph (b) on the holding of
recalls: (1) that no recall shall take place within one year from the
date of assumption of office of the official concerned, and (2) that
no recall shall take place within one year immediately preceding a
regular local election.
The purpose of the first limitation is to provide a reasonable basis
for judging the performance of an "The only logical reason which
we can ascribe for requiring the electors to wait one year before
petitioning for a recall election is to prevent premature action on
their part in voting to remove a newly elected official before having
had sufficient time to evaluate the soundness of his policies and
decisions." The one-year limitation was reckoned as of the filing of
a petition for recall because the Municipal Code involved in that
case expressly provided that "no removal petition shall be filed
against any officer or until he has actually held office for at least
twelve months." But however the period of prohibition is
determined, the principle announced is that the purpose of the
limitation is to provide a reasonable basis for evaluating the
performance of an elective local official. Hence, in this case, as
long as the election is held outside the one-year period, the
preliminary proceedings to initiate a recall can be held even before
the end of the first year in office of a local official.
Third, to construe the term "recall" in paragraph (b) as including
the convening of the PRA for the purpose of discussing the
performance in office of elective local officials would be to unduly
restrict the constitutional right of speech and of assembly of its
members. The people cannot just be asked on the day of the
election to decide on the performance of their officials. The
crystallization and formation of an informed public opinion takes
time. To hold, therefore, that the first limitation in paragraph (b)
includes the holding of assemblies for the exchange of ideas and
opinions among citizens is to unduly curtail one of the most
cherished rights in a free society. Indeed, it is wrong to assume
that such assemblies will always eventuate in a recall election. To
the contrary, they may result in the expression of confidence in the
incumbent.
To sum up, the term "recall" in paragraph (b) refers to the recall
election and not to the preliminary proceedings to initiate recall Because 74 speaks of limitations on "recall" which, according to
69, is a power which shall be exercised by the registered voters of
a local government unit. Since the voters do not exercise such
right except in an election, it is clear that the initiation of recall
proceedings is not prohibited within the one-year period provided
in paragraph (b);
Because the purpose of the first limitation in paragraph (b) is to
provide voters a sufficient basis for judging an elective local
official, and final judging is not done until the day of the election;
and Because to construe the limitation in paragraph (b) as
including the initiation of recall proceedings would unduly curtail
freedom of speech and of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more
than one year after petitioner assumed office as mayor of that city,
we hold that there is no bar to its holding on that date.

S . Y.

08-09:

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Sem.

Issue: WON the Phrase "Regular Local Election" in the Same

Paragraph (b) of 74 of the LGC includes the Election Period for
that Regular Election or Simply the Date of Such Election
Ratio: The law is unambiguous in providing that "[n) o recall
shall take place within . . . one (1) year immediately preceding a
regular local election." Had Congress intended this limitation to
refer to the campaign period, which period is defined in the
Omnibus Election Code, it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the
period during which a recall election may be held. Actually,
because no recall election may be held until one year after the
assumption of office of an elective local official, presumably on
June 30 following his election, the free period is only the period
from July 1 of the following year to about the middle of May of the
succeeding year. This is a period of only nine months and 15 days,
more or less. To construe the second limitation in paragraph (b) as
including the campaign period would reduce this period to eight
months. Such an interpretation must be rejected, because it would
devitalize the right of recall which is designed to make local
government units" more responsive and accountable."
Indeed, there is a distinction between election period and
campaign period. Under the Omnibus Election Code, unless
otherwise fixed by the COMELEC, the election period commences
ninety (90) days before the day of the election and ends thirty (30)
days thereafter. Thus, to follow petitioner's interpretation that the
second limitation in paragraph (b) includes the "election period"
would emasculate even more a vital right of the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes
limitations on the holding of recall elections. First, paragraph (a)
prohibits the holding of such election more than once during the
term of office of an elective local official. Second, paragraph (b)
prohibits the holding of such election within one year from the
date the official assumed office. And third, paragraph (b) prohibits
the holding of a recall election within one year immediately
preceding a regular local election. As succinctly stated in Paras v.
COMELEC, "[p) aragraph (b) construed together with paragraph
(a) merely designates the period when such elective local official
may be subject to recall election, that is, during the second year of
office."
Issue:

WON the Recall RESOLUTION was Signed by a

Majority of the PRA and Duly Verified

Held:

Yes

Ratio:

Petitioner

alleges

other

grounds

for

seeking

the

annulment of the resolution of the COMELEC ordering the

holding of a recall election. He contends that a majority of the
signatures of the members of the PRA was not obtained because
74 members did not really sign the recall resolution. According to
petitioner, the 74 merely signed their names on pages 94-104 of
the resolution to signify their attendance and not their
concurrence. Petitioner claims that this is shown by the word

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(Guanzon)

"Attendance" written by hand at the top of the page on which the

signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised
for the first time in this case. It was not raised before the
COMELEC. Although the word "Attendance" appears at the top of
the page, it is apparent that it was written by mistake because it
was crossed out by two parallel lines drawn across it. Apparently,
it was mistaken for the attendance sheet which is a separate
document. It is absurd to believe that the 74 members of the PRA
who signed the recall resolution signified their attendance at the
meeting twice. It is more probable to believe that they signed
pages 94-104 to signify their concurrence in the recall resolution of
which the pages in question are part. The other point raised by
petitioner is that the recall petition filed in the COMELEC was
not duly verified, because Atty. Nelson Ng, who notarized it, is not
commissioned as notary public for Pasay City but for Makati City.
As in the case of the first claim, this issue was not raised before
the COMELEC itself. It cannot, therefore, be raised now.
HUMAN RESOURCES AND DEVELOPMENT
Practice of Profession by Mayors, Governors and other elective
officials
Javellana v. DILG and Santos 212 SCRA 475
Facts:

Attorney Erwin B. Javellana was an elected City Council

or of Bago City, Negros Occidental. City Engineer Ernesto C.

Divinagracia
filed
Administrative
Case
against
Javellana.Divinagracia's complaint alleged that Javellana has
continuously engaged in the practice of law without securing
authority for that purpose from the Regional Director,
Department of Local Government, as required by DLG
Memorandum Circular No. 80-38 in relation to DLG
Memorandum Circular No. 74-58 of the same department: that on
July 8, 1989, Javellana, as counsel for Antonio Javiero and
Rolando Catapang, filed a case against City Engineer Ernesto C.
Divinagracia of Bago City for "Illegal Dismissal and
Reinstatement with Damages" putting him in public ridicule: that
Javellana also appeared as counsel in several criminal and civil
cases in the city, without prior authority of the DLG Regional
Director, in violation of DLG Memorandum Circular No. 80-38
Javellana filed a Motion to Dismiss the administrative case
against him on the ground mainly that DLG Memorandum
Circular Nos. 80-38 and 90-81 are unconstitutional because the
Supreme Court has the sole and exclusive authority to regulate
the practice of law. The motion to dismiss was denied.
A few months later, the LGC was enacted which provides: "SEC.
90. Practice of Profession.
"(b) Sanggunian members may practice their professions, engage
in any occupation, or teach in schools except during session hours:
Provided, That sanggunian members who are also members of the
Bar shall not:
"(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency, or instrumentality of
the government is the adverse party;

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08-09:

2nd

Sem.

"(2) Appear as counsel in any criminal case wherein an officer or

employee of the national or local government is accused of an
offense committed in relation to his office:
"(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
official; and
"(4) Use property and personnel of the Government except when
the sanggunian member concerned is defending the interest of the
Government.
Javellana thereupon filed this petition for certiorari praying that
DLG Memorandum Circulars Nos. 80-38 and 90-81 and Section 90
of RA 7160 be declared unconstitutional and null and
Issue:

WON the Memorandum Circulars and Section 90 of RA

7160 are unconstitutional

Held:
Ratio:

No
In the first place, complaints against public officers and

employees relating or incidental to the performance of their duties

are necessarily impressed with public interest for by express
constitutional mandate, a public office is a public trust. The
complaint for illegal dismissal filed by Javiero and Catapang
against City Engineer Divinagracia is in effect a complaint against
the City Government of Bago City, their real employer, of which
petitioner Javellana is a councilman. Hence, judgment against
City Engineer Divinagracia, would actually be a judgment against
the City Government. By serving as counsel for the complaining
employees and assisting them to prosecute their claims against
City Engineer Divinagracia, the petitioner violated Memorandum
Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713)
prohibiting a government official from engaging in the private
practice of his profession, if such practice would represent
interests adverse to the government.
Petitioner's contention that Section 90 of the Local Government
Code of 1991 and DLG Memorandum Circular No. 90-81 violate
Article VIII. Section 5 of the Constitution is completely off
tangent. Neither the statute nor the circular trenches upon the
Supreme Court's power and authority to prescribe rules on the
practice of law. The Local Government Code and DLG
Memorandum Circular No. 90-81 simply prescribe rules of conduct
for public officials to avoid conflicts of interest between the
discharge of their public duties and the private practice of their
profession, in those instances where the law allows it.
Section 90 of the Local Government Code does not discriminate
against lawyers and doctors. It applies to all provincial and
municipal officials in the professions or engaged in any occupation.
Section 90 explicitly provides that sanggunian members "may
practice their professions, engage in any occupation, or teach in
schools except during session hours." If there are some
prohibitions that apply particularly to lawyers, it is because of all
the professions, the practice of law is more likely than others to
relate to, or affect, the area of public service.
LOCAL BOARDS AND COUNCILS
Osea v. Malaya (2002)

145 | L o c a l
Facts:

Government

(Guanzon)

S . Y.

Petitioner filed Protest Case with the Civil Service

Commission. She averred that she was appointed as Officer-inCharge, Assistant Schools Division Superintendent of Camarines
Sur, by DECS Secretary Ricardo T. Gloria, upon the endorsement
of the Provincial School Board of Camarines Sur. However,
President Ramos appointed respondent to the position of Schools
Division Superintendent of Camarines Sur. Respondents
appointment was made without prior consultation with the
Provincial School Board, in violation of Section 99 of the Local
Government Code of 1991.
Hence, petitioner prayed that
respondents appointment be recalled and set aside for being null
and void.
The CSC dismissed the protest complaint and held that Section 99
of the Local Government Code of 1991 contemplates a situation
where the DECS issues the appointments, whereas respondents
appointment was made by no less than the President, in the
exercise of his appointing power. Moreover, the designation of
respondent as Schools Division Superintendent of Camarines Sur
and of petitioner as Schools Division Superintendent of Iriga City
were in the nature of reassignments, in which case consultation
with the local school board was unnecessary.
Issue:

WON Petitioner is entitled to the position of as Officer-

in-Charge, Assistant
Camarines Sur
Ratio:

Schools

Division

Superintendent

of

Section 99 of the Local Government Code of 1991 applies

to appointments made by the Department of Education, Culture

and Sports. This is because at the time of the enactment of the
Local Government Code, schools division superintendents were
appointed by the Department of Education, Culture and Sports to
specific division or location. In 1994, the Career Executive Service
Board issued Memorandum Circular No. 21, Series of 1994,
placing the positions of schools division superintendent and
assistant schools division superintendent within the career
executive service. Consequently, the power to appoint persons to
career executive service positions was transferred from the
DECSto the President. The appointment may not be specific as to
location. The prerogative to designate the appointees to their
particular stations was vested in the DECS Secretary, pursuant to
the exigencies of the service, as provided in DECS Order No. 75,
Series of 1996.
In the case at bar, the appointment issued by President Ramos in
favor of respondent to the Schools Division Superintendent
position on September 3, 1996 did not specify her station. It was
Secretary Gloria who, in a Memorandum dated November 3, 1997,
assigned and designated respondent to the Division of Camarines
Sur, and petitioner to the Division of Iriga City.
We agree with the Civil Service Commission and the Court of
Appeals that, under the circumstances, the designation of
respondent as Schools Division Superintendent of Camarines Sur
was not a case of appointment. Her designation partook of the
nature of a reassignment from Iriga City, where she previously
exercised her functions as Officer-in-Charge-Schools Division
Superintendent, to Camarines Sur.
Clearly, therefore, the
requirement in Section 99 of the Local Government Code of 1991
of prior consultation with the local school board, does not apply. It

08-09:

2nd

Sem.

only refers to appointments made by the Department of

Education, Culture and Sports. Such is the plain meaning of the
said law. The plain meaning rule or verba legis in statutory
construction is thus applicable in this case. Where the words of a
statute are clear, plain and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation.
Appointment should be distinguished from reassignment. An
appointment may be defined as the selection, by the authority
vested with the power, of an individual who is to exercise the
functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure because of the
nature of his office. On the other hand, a reassignment is a
movement of an employee from one organizational unit to another
in the same department or agency which does not involve a
reduction in rank, status or salary and does not require the
issuance of an appointment. In the same vein, a designation
connotes merely the imposition of additional duties on an
incumbent official.
Petitioner asserts a vested right to the position of Schools Division
Superintendent of Camarines Sur, citing her endorsement by the
Provincial School Board. Her qualification to the office, however,
lacks one essential ingredient, i.e., her appointment thereto.
While she was recommended by Secretary Gloria to President
Ramos for appointment to the position of Schools Division
Superintendent of Camarines Sur, the recommendation was not
acted upon by the President. Petitioners designation as Officerin-Charge, Assistant Schools Division Superintendent, was
expressly made subject to further advice from the Department of
Education, Culture and Sports. Thus, her designation was
temporary. In fact, there was a need to recommend her to the
President for appointment in a permanent capacity. Inasmuch as
she occupied her position only temporarily, petitioner can be
transferred or reassigned to other positions without violating her
right to security of tenure. Indeed, petitioner has no vested right
to the position of Schools Division Superintendent of Camarines
Sur.
LOCAL GOVERNMENT UNITS
Barangay conciliation and mediation
Morata v. Go (1983)
Facts On August 5, 1982, Victor Go and Flora D. Go filed a
complaint against petitioners Julius Morata and Ma. Luisa
Morata for recovery of a sum of money plus damages amounting to
P49,400.00. On the basis of the allegation in the complaint that
the parties-litigants are all residents of Cebu City, petitioners filed
a motion to dismiss, citing as grounds therefor, the failure of the
complaint to allege prior availment by the plaintiffs of the
barangay conciliation process required by P.D. 1508, as well as the
absence of a certification by the Lupon or Pangkat Secretary that
no conciliation or settlement had been reached by the parties. The
judge denied the motion to dismiss, ruling that the provision of
Sec 6 of the law applies only to cases cognizable by the inferior
courts mentioned in Secs 11 and 12 of the law.

146 | L o c a l
Issue:

Government

(Guanzon)

WON the complaint should be dismissed for failure to

comply with PD 1508

Held:

Yes

Ratio: Section 6 of P.D. 1508 reads as follows:

SECTION 6. Conciliation pre-condition to filing of complaint. No
complaint, petition, action for proceeding involving any matter
within the authority of the Lupon as provided in Section 2 hereof
shall be filed or instituted in court or any other government office
for adjudication unless there has been a confrontation of the
parties before the Lupon Chairman or the Pangkat and no
conciliation or settlement has been reached as certified by the
Lupon Secretary or the Pangkat Secretary attested by the Lupon or
Pangkat Chairman, or unless the settlement has been repudiated.
However, the parties may go directly to court in the following cases:
[1] Where the accused is under detention;
[2] Where a person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings;
[3] Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support
pendente lite; and
[4] Where the action may otherwise be barred by the Statute of
Limitations
SECTION 2. Subject matters for amicable settlement. The Lupon
of each barangay shall have authority to bring together the parties
actually residing in the same city or municipality for amicable
settlement of all disputes except:
[1] Where one party is the government ,or any subdivision or
instrumentality thereof;
[2] Where one party is a public officer or employee, and the dispute
relates to the performance of his official functions;
[3] Offenses punishable by imprisonment exceeding 30 days, or a
fine exceeding P200.00;
[4] Offenses where there is no private offended party;
[5] Such other classes of disputes which the Prime Minister may in
the interest of justice determine upon recommendation of the
Minister of Justice and the Minister of Local Government.
Thus, except in the instances enumerated in sections 2 and 6 of
the law, the Lupon has the authority to settle amicably all types of
disputes involving parties who actually reside in the same city or
municipality. The law, as written, makes no distinction
whatsoever with respect to the classes of civil disputes that should
be compromised at the barangay level, in contradistinction to the
limitation imposed upon the Lupon by paragraph (3), section 2
thereof as regards its authority over criminal cases. In fact, in
defining the Lupon's authority, Section 2 of said law employed the
universal and comprehensive term "all", to which usage We should
neither add nor subtract in consonance with the rudimentary
precept in statutory construction that "where the law does not
distinguish, We should not distinguish. 2 By compelling the
disputants to settle their differences through the intervention of
the barangay leader and other respected members of the barangay,
the animosity generated by protracted court litigations between
members of the same political unit, a disruptive factor toward
unity and cooperation, is avoided. It must be borne in mind that

S . Y.

08-09:

2nd

Sem.

the conciliation process at the barangay level is likewise designed

to discourage indiscriminate filing of cases in court in order to
decongest its clogged dockets and, in the process, enhance the
quality of justice dispensed by it. Thus, to say that the authority of
the Lupon is limited to cases exclusively cognizable by the inferior
courts is to lose sight of this objective. Worse, it would make the
law a self-defeating one. For what would stop a party, say in an
action for a sum of money or damages, as in the instant case, from
bloating up his claim in order to place his case beyond the
jurisdiction of the inferior court and thereby avoid the mandatory
requirement of P.D. 1508? And why, indeed, should the law seek to
ease the congestion of dockets only in inferior courts and not in the
regional trial courts where the log-jam of cases is much more
serious? Indeed, the lawmakers could not have intended such halfmeasure and self-defeating legislation.
There can be no question that when the law conferred upon the
Lupon "the authority to bring together the parties actually
residing in the same city or municipality for amicable settlement
of all disputes, ... ," its obvious intendment was to grant to the
Lupon as broad and comprehensive an authority as possible as
would bring about the optimum realization of the aforesaid
objectives. These objectives would only be half-met and easily
thwarted if the Lupon's authority is exercised only in cases falling
within the exclusive jurisdiction of inferior courts.
Moreover, if it is the intention of the law to restrict its coverage
only to cases cognizable by the inferior courts, then it would not
have provided in Section 3 thereof the following rule on Venue, to
wit:
Section 3. Venue. ... However, all disputes which involve real
property or any interest therein shall be brought in the Barangay
where the real property or and part thereof is situated.
for it should be noted that, traditionally and historically,
jurisdiction over cases involving real property or any interest
therein, except forcible entry and detainer cases, has always been
vested in the courts of first instance [now regional trial court].
But it is pointed out by the respondent judge that Sections 11, 12,
and 14, of the law speak of the city and/or municipal courts as the
forum for the nullification or execution of the settlement or
arbitration award issued by the Lupon. We hold that this
circumstance cannot be construed as a limitation of the scope of
authority of the Lupon. As heretofore stated, the authority of the
Lupon is clearly established in Section 2 of the law; whereas
Sections 11, 12 and 14, relied upon by respondent judge, deal with
the nullification or execution of the settlement or arbitration
awards obtained at the barangay level. These sections conferred
upon the city and municipal courts the jurisdiction to pass upon
and resolve petitions or actions for nullification or enforcement of
settlement/arbitration awards issued by the Lupon, regardless of
the amount involved or the nature of the original dispute. But
there is nothing in the context of said sections to justify the thesis
that the mandated conciliation process in other types of cases
applies exclusively to said inferior courts.
Any doubt on the issue before Us should be dispelled by Circular
No. 22 issued by Chief Justice Enrique M. Fernando, regarding
the implementation of the Katarungang Pambarangay Law. It is
significant that the above-quoted circular embodying the directive
"to desist from receiving complaints, petitions, actions and

147 | L o c a l

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(Guanzon)

proceedings in cases falling within the authority of said Lupons,"

has been addressed not only to judges of city and municipal courts,
but also to all the judges of the courts of first instance, circuit
criminal courts, juvenile and domestic courts and courts of
agrarian relations, now known as regional trial courts under B.P.
No. 129. The said circular was noted by president Ferdinand E.
Marcos in a Letter of Implementation, dated November 12, 1979,
the first paragraph of which reads as follows: "with the view to
easing up the log-jam of cases and solving the backlogs in the case
of dockets of all government offices involved in the investigation,
trial and adjudication of cases, it is hereby ordered that immediate
implementation be made by all government officials and offices
concerned of the system of amicably settling disputes at the
barangay level as provided for in the Katarungang Pambarangay
Law [Presidential Decree No. 1508]."
Uy v. Contreras (1994)
Facts:

This is a petition for certiorari under Rule 65 of the

Rules of Court assailing the decision of herein respondent judge

which denied the petitioners motion to dismiss cases filed for
slight physical injuries. The motion to dismiss was based on the
failure of herein private respondents to comply with the
requirement on prior referral to the Lupong Tagapamayapa. The
court found the motion to be without merit whereas the barangay
conciliation proceedings between the parties had started but
nothing has been achieved by the barangay. The trial court also
stated that the accused and her witnesses had already filed their
counter-affidavits and documents which implied waiver on the
part of the accused to claim her right to a reconciliation
proceedings before the barangay. Further, the court held that the
complainants may go directly to the court since their complaint
was about to prescribe or be barred by statute of limitations.
Issue:

Whether or not the respondent judge committed grave

abuse of discretion amounting to lack of jurisdiction when he

denied the motion to dismiss for failure of the private respondents
to comply with the mandatory requirement on prior referral to the
Lupong Tagapamayapa.
Held:
Ratio:

Yes
The Court granted the petition. The filing of the cases

herein assailed was premature and the motion to dismiss should

have been granted. The trial courts contention that the action is
about to prescribe was also unmeritorious since upon the filing of
the complaint to the Lupon Tagapamayapa, the prescriptive period
shall be automatically suspended for a maximum period of sixty
days. Furthermore, having brought the dispute before the Lupon,
the private respondents are estopped from disavowing the
authority of the body which they themselves had sought. Their act
of trifling with the authority of the lupon by unjustifiably failing to
attend the scheduled mediation hearings and instead filing the
complaint right away with the trial court cannot be countenanced
for to do so would wreak havoc on the barangay conciliation
system.

S . Y.

08-09:

2nd

Sem.

In the proceeding before the court a quo, the petitioner and the
respondent had in mind only P.D. No. 1508. The petitioner further
invoked the Section 18. None knew of the repeal of the decree by
the Local Government Code of 1991. Even in her instant petition,
the petitioner invokes the decree and Section 18 of the Revised
Rule on Summary Procedure. However, the private respondents,
realizing the weakness of their position under P.D. No. 1508 since
they did refer their grievances to what might be a wrong forum
under the decree, changed tack. In their Comment, they assert
that on 20 April 1993 Atayde "filed a complaint against petitioner
before the barangay council of Barangay Valenzuela, Makati, in
compliance with the requirement of the Katarungang
Pambarangay Law under the Local Government Code." Yet, in a
deliberate effort to be cunning or shrewd, which is condemnable
for it disregards the virtue of candor, they assert that the said law
is not applicable to their cases before the court a quo because (a)
the petitioner and respondent Atayde are not residents of
barangays in the same city or municipality; (b) the law does not
apply when the action, as in the said cases, may otherwise be
barred by the statute of limitations; and (c) even assuming that
the law applies insofar as Atayde is concerned, she has
substantially complied with it.
The Office of the Provincial Prosecutor of Rizal should have
exerted enough diligence to inquire from the private respondents
if prior referral to the lupon was necessary before filing the
informations.
Respondent judge did not do any better. His total unawareness of
the Local Government Code of 1991, more specifically on the
provisions on the Katarungang pambarangay, is distressing. He
should have taken judicial notice thereof, ever mindful that under
Section 1, Rule 129 of the Rules of Court, courts are mandatorily
required to take judicial notice of "the official acts of the
legislative, executive and judicial departments of the Philippines."
We have ruled that a judge is called upon to exhibit more than just
a cursory acquaintance with the statutes and procedural rules.

21

He should have applied the revised katarungang pambarangay

law under the Local Government Code of 1991. Had he done so,
this petition would not have reached us and taken valuable
attention and time which could have been devoted to more
important cases.
In view of the private respondents' failure to appear at the first
scheduled mediation on 28 April 1993 for which the mediation was
reset to 26 May 1993, no complaint for slight physical injuries
could be validly filed with the MTC of Makati at any time before
such date. The filing then of Criminal Cases Nos. 145233 and
145234 with the said court on 11 May 1993 was premature and,
pursuant to paragraph (a), Section 412 of the Local Government
Code, respondent Judge Contreras should have granted the
motion to dismiss the criminal cases. He cannot justify its denial
by taking refuge under Section 6 of P.D. No. 1508 (more properly,
Section 412(b)(4) of the Local Government Code of 1991) which
states that the parties may go directly to court where the action is
about to prescribe. This is because, as earlier stated, pursuant to
paragraph (c), Section 410 of the Code, the prescriptive period was
automatically suspended for a maximum period of sixty days from
23 April 1993 when the private respondents filed their complaints
with the lupon of Valenzuela Makati.

148 | L o c a l

Government

(Guanzon)

Moreover, having brought the dispute before the lupon of barangay

Valenzuela, Makati, the private respondents are estopped from
disavowing the authority of the body which they themselves had
sought. Their act of trifling with the authority of the lupon by
unjustifiably failing to attend the scheduled mediation hearings
and instead filing the complaint right away with the trial court
cannot be countenanced for to do so would wreak havoc on the
barangay conciliation system. Granting arguendo that the
petitioner did inflict the alleged physical injuries, the offense for
which she may be liable would only be slight physical injuries
under paragraph (2), Article 266 of the Revised Penal Code,
considering that per the medical certificates the injuries sustained
by the private respondents would "heal" in nine days "in the
absence of complication" and there is no showing that the said
injuries incapacitated them for labor or would require medical
attendance for such period. The penalty therefor would only be
"arresto menor or a fine not exceeding 200 pesos and censure."
These penalties are light under Article 25 of the Revised Penal
Code and would prescribe in two months pursuant to Article 90.
Accordingly, since the slight physical injuries charged in Criminal
Cases Nos. 145233 and 145234 were allegedly inflicted on 17 April
1993, the prescriptive period therefor would have expired two
months thereafter. Nevertheless, its running was tolled by the
filing of the private respondents' complaints with the lupon of
Valenzuela, Makati, on 23 April 1993 and automatically
suspended for a period of sixty days, or until 22 June 1993. If no
mediation or conciliation could be reached within the said period
of suspension and, accordingly, a certification to file action is
issued, the private respondents would still have fifty-six days
within which to file their separate criminal complaints for such
offense. Evidently, there was no basis for the invocation by the
respondent judge of the exception provided for in paragraph (b),
Section 412 of the Local Government Code.
Neither are we persuaded by the reasoning of the Judge that the
petitioner "had already waived the right to a reconciliation
proceedings before the barangay of Valenzuela, Makati,
considering that the accused and the complainant are residents of
different barangays." The petitioner did not waive the
reconciliation proceedings before the lupon of Valenzuela, Makati;
she submitted to it and attended the scheduled conciliation on 28
April 1993 and invoked the pre-condition of referral to the lupon
in her counter-affidavit.
Nor would this Court accept the contention of the private
respondent that the parties could not agree on a compromise and
that they had to request the barangay captain to issue a
certification to file action. The request is dated 23 June 1993, or
nearly one and a half months after Criminal Cases Nos. 145233
and 145234 were filed with the court a quo. Evidently, this was
done to support their contention in the said court that, in any
event, there was substantial compliance with the requirement of
referral to the lupon. It must be stressed that the private
respondents, after failing to appear at the initial confrontation
and long after the criminal cases were filed, had no right to
demand the issuance of a certification to file action.
The respondent judge thus acted with grave abuse of discretion in
refusing to dismiss Criminal Cases Nos. 145233 and 145234.
Before closing these cases, this Court wishes to emphasize the

S . Y.

08-09:

2nd

Sem.

vital role which the revised katarungang pambarangay law plays

in the delivery of justice at the barangay level, in promoting peace,
stability, and progress therein, and in effectively preventing or
reducing expensive and wearisome litigation. Parties to disputes
cognizable by the lupon should, with sincerity, exhaust the
remedies provided by that law, government prosecutors should
exercise due diligence in ascertaining compliance with it, and trial
courts should not hesitate to impose the appropriate sanctions for
non-compliance thereof.
Wingarts v. Mejia (1995)
Facts:

The administrative complaints filed against Judge

Mejia were an offshoot of three criminal cases decided by the judge

and involving the Wingarts and Col. Rodulfo Munar. Complainant
Johan L.H. Wingarts was the accused in criminal cases for
malicious mischief and grave threats. The first two criminal cases
were initiated by Col. Munar as the private complainant therein.
Thereafter, the Wingarts made a counter-charge against Col.
Munar resulting in the third criminal case for usurpation of
authority docketed in the same court as Criminal Case No. 2696
with Col. Munar as the accused.
The judge is charged with malicious delay in the administration of
justice. The case allegedly dragged for one year and four months in
respondent's sala and was ultimately dismissed in a decision
dated June 8, 1994 after an ocular inspection of the burned
premises was conducted by the court personnel. As for the second
complaint, the judge was charged with incompetence and gross
ignorance of the law for taking cognizance of the case for grave
threats despite the lack of barangay conciliation. The third
complaint charges the judge with rendering an unjust decision.
The judge explained that he took cognizance of the grave threats
case for he believed that there had been substantial compliance
with the requirements of the Katarungang Pambarangay Law
since a certification of the barangay captain regarding a
confrontation of the parties, the fact that no amicable settlement
was reached by them, and that he was endorsing the filing of the
case in court, had been duly submitted to respondent judge. With
regard to the complaint for malicious delay, the judge contended
that "(t)he proceedings were continuous until the complainant was
acquitted of the crime charged against him. The case was decided
one (1) month and three (3) days after it was submitted for
decision. As to the third complaint, he claimed that the decision as
a result of his honest findings and conclusion based on the
evidence and the law in the hearing of the case.
The OCA ruled that the first charge is meritorious for failure to
remand the case to the lupon and instead, taking cognizance of
the case. In the second charge, the delay does not appear to be
malicious nor deliberate. Also, the OCA ruled that it does not
appear that the judge was motivated by an evil or corrupt motive
in rendering the decision.
Issue:

WON the judge is liable for incompetence and ignorance

of the law
Held:

Yes

149 | L o c a l
Ratio:

Government

(Guanzon)

Although there is no clear proof of malice, bad faith, bias

or partiality on his part, respondent judge should have exercised

the requisite prudence, especially under the environmental
circumstances of the aforesaid criminal case where personal
liberty was involved. He should have carefully examined all
relevant facts and issues and avoided the improvident issuance of
the warrant of arrest without a circumspect review of the case
which, after all, did not exhibit abstruse factual matters or
complicated legal questions. The present controversy could have
been avoided had he kept faith with the injunction that a member
of the bench must continuously keep himself abreast of legal and
jurisprudential developments because the learning process in law
never ceases.
In the present case, assuming that he did not act with. malice or
bad faith and that he subsequently issued an order to recall the
warrant or prevent the arrest of complainant, such considerations
can mitigate but will not altogether exculpate him from the charge
of incompetence and ignorance of the law, which accordingly
warrants the imposition of an appropriate penalty on him. If
judges wantonly misuse the powers vested in them by law, there
will not only be confusion in the administration of justice but even
oppressive disregard of the basic requirements of due process.
Moreover, judges are directed to desist from improvidently
receiving and desultorily acting on complaints, petitions, actions
or proceedings in cases falling within the authority of the Lupon
Tagapamayapa. We have repeatedly ruled that the proceedings
before the lupon are a precondition to the filing of any action or
proceeding in court or other government office. Such an initiatory
pleading, if filed without compliance with the precondition, may be
dismissed on motion of any interested party on the ground that it
fails to state a cause of action.
As to the charge of malicious delay in the administration of
justice, we agree with the observation of the Office of the Court
Administrator that while there was some delay in hearing the
case, the same does not appear to be malicious nor deliberate.
Respondent judge should not be unfairly subjected to liabilities,
for contretemps which were brought about by the parties and their
lawyers. Complainants could not have been unaware that the
delay of the hearing was due to postponements sought and
obtained by the parties and their respective counsel. Litigants
should not blame a judge for the delay which was not of his own
making.
However, the Court finds this as an appropriate occasion to once
again remind the members of the judiciary to adopt measures to
prevent unnecessary delays in the disposition of their cases. A
judge should administer justice not only impartially but also
without delay. As expressly mandated by the Code of Judicial
Conduct, he shall dispose of the court's business promptly and
decide cases within the required periods.
In connection with his decision in Criminal Case No. 2696, after a
careful analysis of the assailed decision, we find no showing that
respondent judge was motivated by bad faith, fraud, dishonesty or
corruption in rendering the same.
"An unjust judgment is one which is contrary to law or is not
supported by the evidence, or both. The source of an unjust
judgment may be error or ill-will. There is no liability at all for a
mere error. It is well-settled that a judicial officer, when required

S . Y.

08-09:

2nd

Sem.

to exercise his judgment or discretion, is not liable criminally for

any error which he commits, provided he acts in good faith. Bad
faith is therefore the ground of liability. If in rendering judgment
the judge fully knew that the same was unjust in the sense
aforesaid, then he acted maliciously and must have been actuated
and prevailed upon by hatred, envy, revenge, greed, or some other
similar motive. As interpreted by Spanish Courts, the term
"knowingly" means sure knowledge, conscious and deliberate
intention to do an injustice. Mere error therefore in the
interpretation or application of the law does not constitute the
crime.
In a recent administrative case decided by this Court, it was
reiterated that in order to hold a judge liable, it must be shown
beyond reasonable doubt that the judgment is unjust and that it
was made with conscious and deliberate intent to do an injustice.
The complainants in the present case have dismally failed to
convince us that respondent judge knew that his challenged
judgment is unjust, even assuming it to be so.
In any event, respondent judge deserves to be appropriately
penalized for his regrettably erroneous action in connection with
Criminal Case No. 2664 of his court. We have repeatedly stressed
that a municipal trial judge occupies the forefront of the judicial
arm that is closest in reach to the public he serves, and he must
accordingly act at all times with great constancy and utmost
probity. 20 Any kind of failure in the discharge of this grave
responsibility cannot be countenanced in order to maintain the
faith of the public in the judiciary, especially on the level of courts
to which most of them resort for redress.

Corpuz v. CA (1997)
Facts:

Corpuz filed an action for unlawful detainer against

Juanito Alvarado with the MTC for recovery of possession of the

room being occupied by the latter, which Corpuz' children
allegedly needed for their own use. Alvarado and Corpuz were two
of the tenants of a certain Lorenzo Barredo who, in May 1988,
decided to sell his property to the tenants. Due to economic
difficulties, Alvarado and the other lessees executed an "Affidavit
of Waiver" granting Barredo the right to sell his house to any
person who can afford to purchase the same. Consequently,
Barredo sold his house to Corpuz for P37,500. As a result of the
sale, a tenancy relationship was established between Corpuz and
Alvarado.
In October 1991, Corpuz sent a written notice to Alvarado
demanding that he vacate the room which he was occupying
because the children of Corpuz needed it for their own use.
Alvarado refused to vacate the room as demanded, prompting
Corpuz to seek his ejectment.
In his answer, Alvarado raised two major defenses, to wit: (1) the
alleged "Affidavit of Waiver" executed between him and Barredo
was a forgery; and (2) the dispute was not referred to the Lupong
Tagapayapa. The MTC ordered Alvarado to vacate the room. The
RTC reversed ruling that the sale between Corpuz and Barredo
was the subject of a pending case before the NGA. Also, the
Affidavit of Waiver was a forgery. The CA affirmed.

150 | L o c a l
Issue:

Government

(Guanzon)

WON Corpuz' unlawful detainer suit filed before the

MTC against Alvarado should be suspended until the resolution of

the case lodged in the NHA impugning the sale of said property
Held:

No

Ratio:

The MTC has exclusive jurisdiction over ejectment cases.

As the law now stands, the only issue to be resolved in forcible

entry and unlawful detainer cases is the physical or material
possession over the real property, that is, possession de facto.
Refugia v. CA: The inferior court may look into the evidence of
title or ownership and possession de jure insofar as said evidence
would indicate or determine the nature of possession. It cannot,
however, resolve the issue of ownership, that is, by declaring who
among the parties is the true and lawful owner of the subject
property, because the resolution of said issue would effect an
adjudication on ownership which is not sanctioned in the
summary action for unlawful detainer. With this as a premise and
taking into consideration the amendment introduced by BP 129, it
may be suggested that inferior courts are now conditionally vested
with adjudicatory power over the issue of title or ownership raised
by the parties in an ejectment suit."
Consequently, since the petition involves the issue of possession
intertwined with the issue of ownership (i.e., the controversy
pending in the NHA), the doctrinal pronouncement in Refugia is
applicable. Parenthetically speaking, the issue raised in this
petition is far from novel. The prevailing doctrine is that suits or
actions for the annulment of sale, title or document do not abate
any ejectment action respecting the same property.
The underlying reason for the above rulings is for the defendant
not to trifle with the ejectment suit, which is summary in nature,
by the simple expedient of asserting ownership thereon. Thus, the
controversy pending before the NHA for the annulment of the
Deed of Sale and assailing the authenticity of the "Affidavit of
Joint Waiver" cannot deter the MTC from taking cognizance of the
ejectment suit merely for the purpose of determining who has a
better possessory right among the parties.
It may be stressed that Alvarado is not without remedy. We have
ruled that a judgment rendered in an ejectment case shall not bar
an action between the same parties respecting title to the land or
building nor shall it be conclusive as to the facts therein found in a
case between the same parties upon a different cause of action
involving possession.
Issue:

WON the ejectment suit was not referred to the Lupon

Tagapayapa as required by PD 1508

Held:
Ratio:

No
We are not persuaded. This defense was only stated in

a single general short sentence in Alvarado's answer. We have

held in Dui v. Court of Appeals that failure of a party to
specifically allege the fact that there was no compliance with the
Barangay conciliation procedure constitutes a waiver of that
defense. A perusal of Alvarado's answer reveals that no reason or
explanation was given to support his allegation, which is deemed a
mere general averment.

S . Y.

08-09:

2nd

Sem.

In any event, the proceeding outlined in P.D. 1508 is not a

jurisdictional requirement and non-compliance therewith cannot
affect the jurisdiction which the lower court had already acquired
over the subject matter and the parties therein.
Bonifacio Law Office v. Judge Bellosillo (2002)
Facts:

In a letter-complaint, Atty. Ricardo M. Salomon Jr. of

the Bonifacio Law Office charged then acting Judge Reynaldo B.

Bellosillo of the MTC of QC, with ignorance of the law, grave
abuse of discretion, and obvious partiality. In an ejectment suit,
the judge referred the case back to the barangay conciliation
despite the fact that it was alleged in the verified complaint that
the case was already referred to the barangay and a copy of the
Certification to File Motion was attached to the verified coplaint.
Atty Salomon filed a compliance with respondents court attaching
therewith a copy of his complaint filed before the barangay and the
minutes of the proceedings held thereat.
After the filing of said compliance, no action was taken by the
court despite the fact that the case falls under the Rule on
Summary Procedure and the judge has still to come up with a
determination as to whether summons should be issued or not.
He then inquired personally with the court about the status of the
case and he was told that no action could be taken unless the
Order of April 2, 1996 had been complied with. Dismayed by the
Courts insistence of referring the case to the barangay though it
had already gone through all the requisite proceedings thereat, he
decided not to pursue the case and filed a notice to withdraw
complaint. Said withdrawal however was denied by respondent on
the basis of the action already taken thereon as contained in the
questioned Order. He then filed a Notice of Dismissal but the
same was still unacted upon by respondent.
It was only after a year from the time the complaint was filed that
respondent ordered that summons be served on defendants. When
defendants failed to file an Answer, he (complainant) filed a
Motion to Render Judgment in accordance with the provisions of
Sec.5 of the Rule on Summary Procedure. However, instead of
rendering judgment, respondent merely required defendants to
comment on the motion to render judgment. After defendants
filed their comment, respondent still did not act on the said
motion.
The judge, however, said that since there was a failure of
settlement of mediation proceedings before the Barangay
Chairman, it is necessary for the Pangkat to be constituted anew
so that parties may have a second opportunity to amicably settle
their dispute.
The OCA found respondent either ignorant or negligent in
referring the case back to the barangay despite the presence of
what it considered to be a valid Certification to File Action. It also
faulted him for disregarding the Rules on Summary Procedure by
(1) calling for a preliminary conference, (2) directing the
defendants to submit their Comment to complainants Motion to
Render Judgment, and (3) failing to render judgment within the
reglementary period.
Issue:

WON the judge was grossly ignorant of the law when it

ordered the parties to submit to another barangay conciliation

151 | L o c a l
Held:

No

Ratio:

The

Government

records

reveal

that

(Guanzon)

such

Certification

S . Y.

was

improperly and prematurely issued. In what appears to be a preprinted standard form thereof, the x before the second
enumerated statement clearly shows that no personal
confrontation
before a duly constituted
Pangkat
ng
Tagapagkasundo took place. Respondents position that the
Pangkat was not constituted, and that no face to face conciliation
of the parties had taken place before it is substantiated by the
Minutes submitted by complainant. Evidently, complainant failed
to complete the barangay conciliation proceedings.
We also note that the Complaint before the barangay was dated
February 16, 1996. Records show that the hearing was scheduled
for February 26, 1996 and was reset for February 29, 1996. And
yet, the Certification to File Action was issued on March 1, 1996,
less than fifteen days after the first scheduled hearing before the
barangay chairman.
Evidently, the barangay failed to exert enough effort required by
law to conciliate between the parties and to settle the case before
it. Hence, respondent judge was not incorrect in remanding the
case to it for completion of the mandated proceedings. We cannot
fault him for seeking to promote the objectives of barangay
conciliation and for taking to heart the provisions of Supreme
Court Circular No. 14-93. His referral of the case back to the
barangay cannot be equated with gross ignorance of the law.
Neither does it constitute grave abuse of discretion or obvious
partiality.
Thereafter, complainant filed a Motion praying that the
proceedings already held before the barangay be considered as
substantial compliance with the requirements of the law. Acting
on the Motion, the judge issued the summons and opted to
continue with the court proceedings without insisting on strict
compliance with the mandated barangay proceedings. He did so
after noting that complainant was apparently not making any
move to complete the barangay proceedings after the case had
been remanded to the barangay, and that the case fell under the
Rules on Summary Procedure.
Section 18 of the Rules on Summary Procedure, however, provides
that such cases may be revived only after the requirement for
conciliation has been complied with. Nevertheless, the judges
error is judicial in nature and cannot be corrected in
administrative proceedings. At any rate, because he chose to
continue with the proceedings of the case, and because
respondents failed to answer the ejectment Complaint on time, he
should have rendered judgment within thirty (30) days from the
expiration of the period to file an answer.
Complainant filed a Motion to Render Judgment dated March 25,
1997. Refusing to heed the Motion, respondent instead called a
preliminary conference and directed the defendants to submit
their Comment. The OCA correctly arrived at the following
findings:
x x x (T) he Judges resolution (to) the complainants Motion to
Render Judgement casts serious doubt on his understanding of
the law. The express language of the law states that when an
Answer has not been filed within the reglementary period, the
judge, motu proprio, or on motion, shall render judgment as may

08-09:

2nd

Sem.

be warranted by the facts alleged in the complaint (Section 6,

Revised Rule on Summary Procedure). This provision cannot, by
any stretch of the imagination, be construed to mean anything
other than what the words themselves communicate: that the
rendition of judgment is mandatory, and that the judgment should
be based only on what is contained within the four walls of the
complaint.
By calling for a preliminary conference and directing the
defendants to submit their Comment to the complainants Motion,
the Judge went beyond the bounds set by the law x x x.
Moreover, when he finally resolved the motion after the
defendants had submitted their Comment he merely ordered
that the case be deemed submitted for decision. Needless to say,
submission for decision is a far cry from rendition of judgment,
the character of immediacy implicit in the latter does not exist in
the former. And in this case, supposedly to be resolved under the
Summary Rule, immediacy is the defining characteristic. x x x.
Respondent rendered judgment on the case only on January 7,
1998, almost a year from the time the case had been deemed
submitted for resolution. Unacceptable is his explanation that he
waited for the defendants to avail themselves of their right to
appeal the Order deeming the case submitted for resolution. He
has no duty to wait, because the law mandates him to act and
decide the case promptly. Delay in the disposition of cases
undermines the peoples faith and confidence in the judiciary.
Hence, judges are enjoined to decide cases with dispatch. Their
failure to do so constitutes gross inefficiency and warrants the
imposition of administrative sanctions on them.
Mendova v. Judge Afable (2002)
Facts: Mendova alleged in his affidavit-complaint that on
February 18, 1998 he filed with the Office of the Barangay
Chairman of Poblacion San Julian, Eastern Samar a complaint
for slight physical injuries against Robert Palada. Barangay
Chairman Ronie Quintua, in his Certification confirmed such
fact. Pangkat Chairman Eufemia Cabago also certified in an
undated Minutes In Settling Disputes that the case was set for
hearing on March 16, 22 and 29, 1998, but the parties failed to
reach an amicable settlement. Mendova then filed with the MTC a
complaint for slight physical injuries against Palada.
The judge dismissed the complaint on grounds of prescription as
the complaint was filed on April 20, 1998 was filed with this
Court on May 4, 1998. However, the alleged offense took
place on February 15, 1998.

From the date of the

commission of the alleged offense, more than two months

have elapsed.
Mendova filed with the OCA an administrative complaint against
the judge. He alleged that in dismissing the case, the judge
showed his ignorance of the law when he did not apply the
provisions of Section 410(c) of Ra. 7160 (60 days interruption of
running of prescription).
In its Evaluation and Recommendation, the OCA, through Deputy
Court Administrator Zenaida N. Elepao, found respondent guilty
as charged and recommended that he be fined P3,000.00 with a
warning that a commission of similar acts will be dealt with more
severely, thus:

152 | L o c a l

Issue:

Government

(Guanzon)

S . Y.

WON the judge is liable administratively for dismissing

Criminal Case No. 2198-98 on the ground of prescription.

Held:

their duties and functions; and it is sound rule, which must

be recognized independently of statute, that judges are not

prosecution of a judge can be had only if there be a final

an administrative complaint is not the appropriate remedy for

every irregular or erroneous order or decision issued by a judge
where a judicial remedy is available, such as a motion for
reconsideration, or an appeal. For, obviously, if subsequent
developments prove the judges challenged act to be correct, there
would be no occasion to proceed against him at all. Besides, to
hold a judge administratively accountable for every erroneous
ruling or decision he renders, assuming he has erred, would be
nothing short of harassment and would make his position doubly
unbearable. To hold otherwise would be to render judicial office
untenable, for no one called upon to try the facts or interpret the
law in the process of administering justice can be infallible in his
judgment. It is only where the error is so gross, deliberate and
malicious, or incurred with evident bad faith that administrative
sanctions may be imposed against the erring judge.
What we said in Flores vs. Abesamis is illuminating:
As everyone knows, the law provides ample judicial remedies
against errors or irregularities being committed by a Trial Court
in the exercise of its jurisdiction. The ordinary remedies against
errors or irregularities which may be regarded as normal in
nature (i.e., error in appreciation or admission of evidence, or in
construction or application of procedural or substantive law
or legal principle) include a motion for reconsideration (or
after rendition of a judgment or final order, a motion for new
trial), and appeal. The extraordinary remedies against error or
irregularities which may be deemed extraordinary in character
(i.e., whimsical, capricious, despotic exercise of power or neglect of
duty, etc.) are inter alia the special civil actions of certiorari,
prohibition or mandamus, or a motion for inhibition, a petition for
change of venue, as the case may be.
Now, the established doctrine and policy is that
disciplinary proceedings and criminal actions against Judges
are not complementary or suppletory of, nor a substitute
judicial

remedies,

whether

ordinary

or

extraordinary. Resort to and exhaustion of these judicial

remedies, as well as the entry of judgment in the corresponding
action or proceeding, are pre-requisites for the taking of
other

Sem.

jurisdiction and in good faith; and that exceptionally,

Yes

these

2nd

generally liable for acts done within the scope of their

Ratio: It is axiomatic, as this Court has repeatedly stressed, that

for,

08-09:

measures

against

the

persons

of

the

judges

concerned, whether of civil, administrative, or criminal

declaration by a competent court in some appropriate

proceeding of the manifestly unjust character of the
challenged judgment or order, and x x x also evidence of
malice or bad faith, ignorance or inexcusable negligence,
on the part of the judge in rendering said judgment or
order or under the stringent circumstances set out in Article 32
of the Civil Code.
In the present case, we noticed from the records before us that the
complainant did not bother at all to file a motion for
reconsideration of respondent judges decision dismissing the
criminal case. No reason was advanced by complainant why he
failed to do so. Thus, following our settled pronouncements cited
above, his instant administrative complaint is premature.
According to complainant, Robert Palada committed the crime of
slight physical injuries on February 15, 1998. On February 18,
1998, complainant filed his complaint with the Office of the
Barangay Chairman at Poblacion, San Julian, Eastern Samar.
Pursuant to the provisions of Section 410(c) of The Local
Government Code of 1991, quoted earlier, such filing interrupted
the prescriptive period and started to run again upon receipt by
the complainant of the Certification to File Action issued by
the Pangkat Secretary. Here, records fail to show when
complainant received the Barangay Certification to File Action.
The undated certification he submitted merely states that the case
was set for hearing before the barangay on March 16, 22 and 29,
1998, but the parties failed to reach an amicable settlement.
When he filed on May 4, 1998 Criminal Case No. 2198-98 for
slight physical injuries with respondent's court, until the
dismissal of the case on November 3, 1998, he still failed to
present proof of his receipt of the Barangay Certification to File
Action. Clearly, he cannot now fault respondent judge for
dismissing the case on the ground of prescription.
While respondent admitted his mistake, the same may not be
considered ignorance of the law. If at all, it can only be an error of
judgment.
Finally, we noted that the complaint does not allege any bad faith
or malice on the part of respondent judge when he dismissed the
criminal case.
Sangguniang Kabataan

nature. It is only after the available judicial remedies have

Monteclaros v. COMELEC (2002)

been exhausted and the appellate tribunals have spoken

Facts: The Sangguniang Kabataan (SK) is a youth organization

originally established by Presidential Decree 684 as the
Kabataang Barangay (KB). The KB was composed of all barangay
residents who were less than 18 years old, without specifying the
minimum age. The KB was organized to provide its members with
the opportunity to express their views and opinions on issues of
transcendental importance. The Local Government Code of 1991
renamed the KB to SK and limited SK membership to those
youths at least 15 but not more than 21 years of age. The SK

with finality, that the door to an inquiry into his criminal,

civil or administrative liability may be said to have opened,
or closed.
Indeed, since judges must be free to judge, without
pressure or influence from external forces or factors, they
should not be subject to intimidation, the fear of civil,
criminal or administrative sanctions for acts they may do
and dispositions they may make in the performance of

153 | L o c a l

Government

(Guanzon)

remains as a youth organization in every barangay tasked to

initiate programs to enhance the social, political, economic,
cultural, intellectual, moral, spiritual, and physical development
of the youth. The SK in every barangay is composed of a
chairperson and 7 members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every barangay is
composed of all citizens actually residing in the barangay for at
least 6 months and who meet the membership age requirement.
The first SK elections took place on 4 December 1992. RA 7808
reset the SK elections to the first Monday of May of 1996 and
every three years thereafter. RA 7808 mandated the Comelec to
supervise the conduct of the SK elections under rules the Comelec
shall promulgate. Accordingly, the Comelec on 4 December 2001
issued Resolutions 4713 and 4714 to govern the SK elections on 6
May 2002. On 18 February 2002, Antoniette V.C. Montesclaros
sent a letter to the Comelec, demanding that the SK elections be
held as scheduled on 6 May 2002. Montesclaros also urged the
Comelec to respond to her letter within 10 days upon receipt of the
letter, otherwise, she will seek judicial relief. On 20 February
2002, Alfredo L. Benipayo, then Comelec Chairman, wrote
identical letters to the Speaker of the House and the Senate
President about the status of pending bills on the SK and
Barangay elections. In his letters, the Comelec Chairman
intimated that it was operationally very difficult to hold both
elections simultaneously in May 2002. Instead, the Comelec
Chairman expressed support for the bill of Senator Franklin
Drilon that proposed to hold the Barangay elections in May 2002
and postpone the SK elections to November 2002. 10 days lapsed
without the Comelec responding to the letter of Montesclaros.
Subsequently, Montesclaros, et. al. received a copy of Comelec En
Banc Resolution 4763 dated 5 February 2002 recommending to
Congress the postponement of the SK elections to November 2002
but holding the Barangay elections in May 2002 as scheduled. On
6 March 2002, the Senate and the House of Representatives
passed their respective bills postponing the SK elections. On 11
March 2002, the Bicameral Conference Committee of the Senate
and the House came out with a Report recommending approval of
the reconciled bill consolidating Senate Bill 2050 and House Bill
4456. The Bicameral Committees consolidated bill reset the SK
and Barangay elections to 15 July 2002 and lowered the
membership age in the SK to at least 15 but not more than 18
years of age. On 11 March 2002, Montesclaros filed the petition for
certiorari, prohibition and mandamus with prayer for a temporary
restraining order or preliminary injunction, seeking to prevent the
postponement of the SK elections originally scheduled 6 May 2002,
and also to prevent the reduction of the age requirement for
membership in the SK. On 11 March 2002, the Senate approved
the Bicameral Committees consolidated bill and on 13 March
2002, the House of Representatives approved the same. The
President signed the approved bill into law on 19 March 2002.
Issue: Whether there is actual controversy in the case which seeks
to prevent a postponement of the 6 May 2002 SK elections, and
which seeks to prevent Congress from enacting into law a
proposed bill
lowering the membership age in the SK.

S . Y.

08-09:

2nd

Sem.

Held: At the outset, the Court takes judicial notice of the following
events that have transpired since
Montesclaros filed the petition: (1) The 6 May 2002 SK elections
and 13 May 2002 Barangay elections were not held as scheduled;
(2) Congress enacted RA 9164 which provides that voters and
candidates for the SK elections must be at least 15 but less than
18 years of age on the day of the election. RA 9164 also provides
that there shall be a synchronized SK and Barangay elections on
15 July 2002. (3) The Comelec promulgated Resolution 4846, the
rules and regulations for the conduct of the 15 July 2002
synchronized SK and Barangay elections. The Courts power of
judicial review may be exercised in constitutional cases only if all
the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case or controversy; (2) a
personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case. Herein, there is no actual
controversy requiring the exercise of the power of judicial review.
While seeking to prevent a postponement of the 6 May 2002 SK
elections, Montesclaros, et. al. are nevertheless amenable to a
resetting of the SK elections to any date not later than 15 July
2002. RA 9164 has reset the SK elections to 15 July 2002, a date
acceptable to them. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial
intervention. Further, their prayer to prevent Congress from
enacting into law a proposed bill lowering the membership age in
the SK does not present an actual justiciable controversy. A
proposed bill is not subject to judicial review because it is not a
law. A proposed bill creates no right and imposes no duty legally
enforceable by the Court. A proposed bill, having no legal effect,
violates no constitutional right or duty. The Court has no power to
declare a proposed bill constitutional or unconstitutional because
that would be in the nature of rendering an advisory opinion on a
proposed act of Congress. The power of judicial review cannot be
exercised in vacuo. The second paragraph of Section 1, Article VIII
of the Constitution states that "Judicial power includes the duty of
the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government." Thus, there can be
no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review
only after a law is enacted, not before. Absent a clear violation of
specific constitutional limitations or of constitutional rights of
private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress.
Issue: WON SK membership is a property right within the
meaning of the Constitution
Held:
Ratio:

No
Congress

exercises

the

power

to

prescribe

the

qualifications for SK membership. One who is no longer qualified

because of an amendment in the law cannot complain of being

154 | L o c a l

Government

(Guanzon)

deprived of a proprietary right to SK membership. Only those

who qualify as SK members can contest, based on a statutory
right, any act disqualifying them from SK membership or from
voting in the SK elections. SK membership is not a property
right protected by the Constitution because it is a mere statutory
right conferred by law. Congress may amend at any time the law
to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution
expressly states, a [P]ublic office is a public trust. No one has a
vested right to any public office, much less a vested right to an
expectancy of holding a public office. In Cornejo v. Gabriel,
decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office a
property. It is, however, well settled x x x that a public
office is not property within the sense of the constitutional
guaranties of due process of law, but is a public trust or
agency. x x x The basic idea of the government x x x is that of a
popular representative government, the officers being mere agents
and not rulers of the people, one where no one man or set of men
has a proprietary or contractual right to an office, but where every
officer accepts office pursuant to the provisions of the law and
holds the office as a trust for the people he represents.
Petitioners, who apparently desire to hold public office, should
realize from the very start that no one has a proprietary right to
public office. While the law makes an SK officer an ex-officio
member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary
expectancy to sit in local legislative councils. The constitutional
principle of a public office as a public trust precludes any
proprietary claim to public office. Even the State policy directing
equal access to opportunities for public service cannot bestow on
petitioners a proprietary right to SK membership or a proprietary
expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youths
involvement in public affairs, this policy refers to those who belong
to the class of people defined as the youth. Congress has the
power to define who are the youth qualified to join the SK, which
itself is a creation of Congress. Those who do not qualify because
they are past the age group defined as the youth cannot insist on
being part of the youth. In government service, once an employee
reaches mandatory retirement age, he cannot invoke any property
right to cling to his office. In the same manner, since petitioners
are now past the maximum age for membership in the SK, they
cannot invoke any property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion
attended the postponement of the SK elections. RA No. 9164 is
now the law that prescribes the qualifications of candidates and
voters for the SK elections. This law also fixes the date of the SK
elections. Petitioners are not even assailing the constitutionality
of RA No. 9164. RA No. 9164 enjoys the presumption of
constitutionality and will apply to the July 15, 2002 SK elections.
The Municipality
Muez v. Ario 241 SCRA 478 (1995)

S . Y.
Doctrine:

08-09:

Municipal

Mayors

2nd

Sem.

cannot

conduct

preliminary

investigations and issue warrants of arrest. Section 143 of the

former LGC (BP 447) has been abrogated, rendered functus officio
by the 1987 Consti which took effect Feb. 2, 1987.
Facts:

Mayor Irisari of Agusan del Sur summoned complainant

Muez to his office for a conference regarding a land dispute with

the latter and Tirso Amado. As complainant failed to attend, the
Mayor issued a warrant of arrest against him. No investigation
was later conducted. Muez filed a complaint for grave misconduct
and usurpation of judicial function. Initially Judge Arino denied
the mayors motion to quash on the ground that the power of
mayors to issue warrants of arrest ceased to exist when the 1987
Consti took effect. For its part, the Sangguniang Panlalawigan
found the mayor guilty and suspended him for 8 months without
pay. On appeal, DILG reversed saying the warrant was merely an
invitation. Mayor Irisari filed an MR using DILG resolution and
Judge Arino correspondingly, dismissed the case. We subsequently
find out that the Jusge made a serious error and SC said he
showed poor judgement and gross ignorance of basic legal
principles.
Held:

It cannot be alleged that Mayor Irisari merely intended

to invite or summon Muez to his office because he had already

done this the day before, under the pretense of a conference. Thus,
the next day a warrant was issued given that complainant did not
show up for the conference despite the mayors summons. The
Judge mrely relied on the DILG opinion which was grossly
erroneous. A 5k fine is imposed on the errant judge.
Greater Balanga v. Municipality of Balanga, Bataan (1994)
Facts:

GBDC applied with the Office of the Balanga Mayor for a

business permit its property, certain portions of which as been

"unlawfully usurped and invaded" by Balanga, which had
"allowed/tolerated/abetted" the construction of shanties and
market stalls while charging market fees and market entrance fees
from the occupants and users of the area. Mayor issued a Mayor's
Permit granting GBDC the privilege of a "real estate
dealer/privately-owned public market operator" under the
registered trade name of Balanga Public Market.
However, the Sangguniang Bayan passed a Resolution annulling
the Mayor's permit issued to GBDC and advising the Mayor to
revoke the permit. Mayor revoked the permit insofar as it
authorized the operation of a public market. GBDC filed this
petition claiming that it had not violated any law/ordinance, thus
theres no reason to revoke the Mayor's permit. The EO and the
resolution in question were quasi-judicial acts and not mere
exercises of police power. Respondent also failed to observe due
process in revoking the permit. Balanga argues that Mayor may
issue, deny or revoke municipal licenses and permits. Resolution
and EO were legitimate exercise of local legislative authority.
GBDC violated Section 3A-06(b) of the Balanga Revenue Code
when it failed to disclose the true status of the area involved in the
permit when it did not secure separate permits for its two
businesses.

155 | L o c a l
Held:

Government

(Guanzon)

No. There was no ground for revocation. The application

for Mayor's permit requires the applicant to state what type of

business, profession, occupation and/or calling privileges is being
applied for. Petitioner left this entry bank in its application form.
Leaving an entry blank is not equal to false statement. There
must be proof of willful misrepresentation and deliberate intent to
make a false statement. The absence of the material info in the
application form was nonetheless supplied in the face of the
permit signed and issued by Mayor Banzon himself. Applying for
two businesses in one permit is also not a ground for revocation.
Par 2 Section 3A-06(b) does not expressly require two permits for
their conduct of two or more businesses in one place, but only that
separate fees be paid for each business. The powers of
municipal corporations are to be construed in strictissimi
juris (strictly in its legal terms) and any doubt or
ambiguity must be construed against the municipality
Granting, however, that separate permits are actually required,
the application form does not contain any entry as regards the
number of businesses the applicant wishes to engage in.
The City
Lim and Garayblas v. CA (2002)
Doctrine: City mayors have authority to issue business licenses
and permits, and collorarily make suspend, revoke and even refuse
the same, but due process must always be observed in exercising
these powers which means that the mayor must give applicant or
licensee notice and opportunity to be heard.
Facts:
Policemen under Mayor Lims instructions inspected and
investigated Bistro Pigalles license as well as the work permits
and health certificates of its staff causing the stoppage of work in
Bistros night club and restaurant operations. Lim also refused to
accept Bistros application for a business license, as well as the
work permit applications of Bistros staff, for the year 1993.Bistro
filed before the trial court a petition against Manila Mayor Lim..
Held:
The law expressly provides for such authority. Section 11 (l),
Article II of the Revised Charter of the City of Manila and Section
455 (3) (iv) of the LGC is clear that the power of the mayor to issue
business licenses and permits necessarily includes the corollary
power to suspend, revoke or even refuse to issue the same.
However, the power to suspend or revoke these licenses and
permits is expressly premised on the violation of the conditions of
these permits and licenses. Similarly, the power to refuse to issue
such licenses and permits is premised on non-compliance with the
prerequisites for the issuance of such licenses and permits. The
mayor must observe due process in exercising these powers, which
means that the mayor must give the applicant or licensee notice
and opportunity to be heard.
True, the mayor has the power to inspect and investigate private
commercial establishments for any violation of the conditions of
their licenses and permits. However, the mayor has no power to

S . Y.

08-09:

2nd

Sem.

order a police raid on these establishments in the guise of

inspecting or investigating these commercial establishments
The Province
Rivera v. Malolos (1957)
Facts:

Sometime in August 1949 the municipality of Malolos,

called for bids for the supply of road construction materials to

repair the road of the municipality. At the public bidding, the
petitioners bid was the lowest. On the same day, the acting
municipal treasurer informed the petitioner that the contract had
been awarded to him and requested him to call at his office for the
execution of the contract. The contract was then signed. It was
stipulated that for and in consideration of the sum of P19, 235 the
petitioner was to furnish and deliver to the municipality 2,700
cubic meters of crushed adobe stone and 1,400 cubic meters of
gravel. In compliance with the contract, the petitioner delivered
crushed adobe stone and gravel to the municipality.
On 29 July, 1950 the petitioner wrote to the municipal treasurer,
through the provincial auditor, calling his attention to the fact
that the sum of P19,339.56 due him as payment for the value of
crushed adobe stone and gravel delivered to the municipality had
not yet been paid and that as the fiscal year 1949-1950 had
already expired, he requested that the sum be included in the
appropriations for the incoming fiscal year 1950-1951 as an
outstanding obligation. The municipal council passed Resolution
No. 68 ratifying the public bidding called by the municipal
treasurer for the supply of road construction materials, and the
contract entered into by the municipality.
Later, the petitioner filed a complaint against the municipality of
Malolos in the Court of First Instance of Bulacan to collect the
sum of P19,235 for the value of crushed adobe stone and gravel
delivered by the petitioner under the contract. The CFI dismissed
the complaint. Petitioner sought the intervention of the
Presidential Complaints and Committee, which forwarded the
petitioner's claim on the ground that as there was no sum of
money appropriated to meet the obligation incurred before the
execution of the contract, as required by section 607 of the Revised
Administrative Code, the said contract is void, as provided in
section 608 of the same Code; and that even if there was such sum
appropriated to meet such obligation, the alleged deliveries of
crushed adobe stone and gravel could no longer be verified by the
Provincial Auditor of Bulacan or his representative.
Issue:

WON the contract between the municipality and the

petitioner is void
Held:

Yes

Ratio:

Before a contract may be entered into validly by a

municipality, the law requires that there should be an

appropriation of municipal funds to meet the obligation validly
passed by the municipal council and approved by the municipal
mayor. In answer to the statement of the Solicitor General that
there is no provision of law which authorizes a municipal mayor to
enter into a contract with a private contractor for furnishing the
municipality with public works materials, the petitioner cites

156 | L o c a l

Government

(Guanzon)

sections 2165 and 2196 of the Revised Administrative Code.

Section 2165 provides that "Municipalities .. are endowed with the
faculties of municipal corporations to be exercised by and through
their respective municipal governments in conformity with law." It
shall be competent for them, in their proper corporate name, .. to
contract and be contracted with, .." The power or authority
conferred upon municipal corporations must be exercised in
conformity with law, and the law provides that such contracts
must be entered into by the district engineer. The petitioner
contends, however, that section 1920 of the Revised
Administrative Code must be read in connection with sections
1912 and 1913 of the same Code and concludes that section 1920
does not abrogate the general rule that a municipal council may
designate an officer of the municipal corporation to execute such a
contraction behalf of the municipality. Section 1912 refers to
investigation and survey by the district engineer for a proposed
construction or repair of public works and submission by him to
the mayor to reports and estimates of the cost of such construction
or repair with his recommendations, and to the preparation of
plans and specifications for such public works and supervision of
the construction or repair of the same. The provisions of sections
1912 and 1913 of the Revised Administrative Code do not refer to
contracts entered into by the municipality for the supply of road
construction materials.
If the law requires that before a contract involving the expenditure
of P2,000 or more may be entered into or authorized, the
municipal treasurer must certify to the officer entering into such
contracts that funds have been duly appropriated for such purpose
and that the amount necessary to cover the proposed contract-is
available for expenditure on account thereof; and that purported
contract entered into contrary to the requirements just stated is
wholly void, the petitioner's claim that there is no longer any
question as to the validity of the contract entered into by and
between the petitioner and the municipal mayor of Malolos is not
correct.
Likewise, if the law provides that the provincial auditor or his
representative must check up the deliveries made by a contractor
pursuant to a contract lawfully and validly entered into, and there
was no such check up, the petitioner's claim that there is no longer
an issue as to whether the road construction materials have been
actually delivered by the petitioner and received by the respondent
is groundless. The Auditor General is not in duty bound to pass
and allow in audit the sum claimed by the petitioner if he or his
authorized representative did not check up the delivery of the
crushed adobe stone and gravel. To say that the purpose and aim
of this checking requirement is to forestall fraud and collusion is
to state what is obvious.
The petitioner enlisted the aid of the Presidential Complaints and
Action Committee to request the Auditor General to pass in audit
and authorize the payment of the petitioner's claim. The Auditor
General had no alternative but to comply with the provisions of
the law and as the contract entered into by the municipal mayor of
Malolos, Bulacan, was not in accordance with law, the Auditor
General was correct in denying the petitioner's claim.
Section 73, Act No. 3992, otherwise known as the Motor Vehicle
Law, as amended by section 2, Republic Act No. 314, invoked by
the petitioner, merely allocates 10 per cent of the money collected

S . Y.

08-09:

2nd

Sem.

under its provisions to the road and bridge funds of the different
municipalities in proportion to population as shown in the latest
available census, for the repair, maintenance and construction of
municipal roads. This alone is not sufficient appropriation and
authority to disburse part of the 10 per cent collected under the
Motor Vehicle Law for the purpose of paying the claim of the
petitioner. Section 608 of the Revised Administrative Code affords
the petitioner a remedy.
The Autonomous Region in Muslim Mindanao
Disomancop v. Datumanong (2004)
Facts:

Challenged

in

the

instant

petition

for

certiorari,

prohibition and mandamus with prayer for

a temporary
restraining order and/or writ of preliminary injunction are the
constitutionality and validity of Republic Act No. 8999 entitled
An Act Establishing An Engineering District in the First District
of the Province of Lanao del Sur and Appropriating Funds
Therefor, and Department of Public Works and Highways
(DPWH) Department Order No. 119 on the subject, Creation of
Marawi Sub-District Engineering Office.
Pursuant to the constitutional mandate, Republic Act No. 6734
(R.A. 6734), entitled An Act Providing for An Organic Act for the
Autonomous Region in Muslim Mindanao, was enacted and
signed into law on 1 August 1989. The law called for the holding of
a plebiscite in the provinces of Basilan, Cotabato, Davao del Sur,
Lanao del Norte, Lanao del Sur, Maguindanao, Palawan, South
Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del
Norte, and Zamboanga del Sur, and the cities of Cotabato,
Dapitan, Dipolog, General Santos, Iligan, Marawi, Pagadian,
Puerto Princesa and Zamboanga. In the plebiscite, only four (4)
provinces voted for the creation of an autonomous region, namely:
Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi.
These
provinces became the Autonomous Region in Muslim Mindanao
(ARMM). The law contains elaborate provisions on the powers of
the Regional Government and the areas of jurisdiction which are
reserved for the National Government. President Aquino issued
E.O. 426, entitled Placing the Control and Supervision of the
Offices of the DPWH within the ARMM under the Autonomous
Regional Government, and for other purposes.
Nearly nine (9) years later, then DPWH Secretary Gregorio R.
Vigilar issued D.O. 119 (Creation of Marawi Sub-District
Engineering Officewhich shall have jurisdiction over all national
infrastructure projects and facilities under the DPWH within
Marawi City and the province of Lanao del Sur.)
Almost two years later, President Estrada approved and signed
into law R.A. 8999 (establishing engineering district in lanao del
sur).
Congress later passed R.A. 9054, entitled An Act to Strengthen
and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, Amending for the Purpose Republic Act No.
6734, entitled An Act Providing for the Autonomous Region in
Muslim Mindanao, as Amended.
On 23 July 2001, petitioners addressed a petition to DPWH
Secretary Simeon Datumanong, seeking the revocation of D.O. 119
and the non-implementation of R.A. 8999. No action, however, was
taken on the petition.[

157 | L o c a l

Government

(Guanzon)

Petitioners allege that D.O. 119 was issued with grave abuse of
discretion and that it violates the constitutional autonomy of the
ARMM. They point out that the challenged Department Order has
tasked the Marawi Sub-District Engineering Office with functions
that have already been devolved to the DPWH-ARMM First
Engineering District in Lanao del Sur.
Petitioners also contend that R.A. 8999 is a piece of legislation
that was not intelligently and thoroughly studied, and that the
explanatory note to House Bill No. 995 (H.B. 995) from which the
law originated is questionable. Petitioners assert as well that prior
to the sponsorship of the law, no public hearing nor consultation
with the DPWH-ARMM was made. The House Committee on
Public Works and Highways (Committee) failed to invite a single
official from the affected agency. Finally, petitioners argue that the
law was skillfully timed for signature by former President Joseph
E. Estrada during the pendency of the impeachment proceedings.
Issue:

Preliminaries

Ratio:

In seeking to nullify acts of the legislature and the

executive department on the ground that they contravene the

Constitution, the petition no doubt raises a justiciable controversy.
The challenge to the legal standing of petitioners cannot succeed.
Legal standing or locus standi is defined as a personal and
substantial interest in the case such that the party has sustained
or will sustain direct injury as a result of the governmental act
that is being challenged. The term interest means a material
interest, an interest in issue affected by the decree, as
distinguished from a mere interest in the question involved, or a
mere incidental interest.
But following the new trend, this Court is inclined to take
cognizance of a suit although it does not satisfy the requirement of
legal standing when paramount interests are involved. In several
cases, the Court has adopted a liberal stance on the locus standi of
a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people.
It is not far-fetched that the creation of the Marawi Sub-District
Engineering Office under D.O. 119 and the creation of and
appropriation of funds to the First Engineering District of Lanao
del Sur as directed under R.A. 8999 will affect the powers,
functions and responsibilities of the petitioners and the DPWHARMM. As the two offices have apparently been endowed with
functions almost identical to those of DPWH-ARMM First
Engineering District in Lanao del Sur, it is likely that petitioners
are in imminent danger of being eased out of their duties and, not
remotely, even their jobs. Their material and substantial interests
will definitely be prejudiced by the enforcement of D.O. 119 and
R.A. 8999. Such injury is direct and immediate. Thus, they can
legitimately challenge the validity of the enactments subject of the
instant case.
Issue:

WON Republic Act No. 8999 was valid

Held:

No

Ratio:

The challenged law never became operative and was

superseded or repealed by a subsequent enactment. The ARMM

S . Y.

08-09:

2nd

Sem.

Organic Acts are deemed a part of the regional autonomy scheme.

While they are classified as statutes, the Organic Acts are more
than ordinary statutes because they enjoy affirmation by a
plebiscite. Hence, the provisions thereof cannot be amended by an
ordinary statute, such as R.A. 8999 in this case. The amendatory
law has to be submitted to a plebiscite.
Although R.A. 9054 was enacted later, it reaffirmed the
imperativeness of the plebiscite requirement. In fact, R.A. 9054
itself, being the second or later ARMM Organic Act, was subjected
to and ratified in a plebiscite.
The first ARMM Organic Act, R.A. 6074, as implemented by E.O.
426, devolved the functions of the DPWH in the ARMM which
includes Lanao del Sur (minus Marawi City at the time) to the
Regional Government. By creating an office with previously
devolved functions, R.A. 8999, in essence, sought to amend R.A.
6074. The amendatory law should therefore first obtain the
approval of the people of the ARMM before it could validly take
effect. Absent compliance with this requirement, R.A. 8999 has
not even become operative.
From another perspective, R.A. 8999 was repealed and superseded
by R.A. 9054. Where a statute of later date clearly reveals an
intention on the part of the legislature to abrogate a prior act on
the subject, that intention must be given effect. R.A. 9054 is
anchored on the 1987 Constitution. It advances the constitutional
grant of autonomy by detailing the powers of the ARG covering,
among others, Lanao del Sur and Marawi City, one of which is its
jurisdiction over regional urban and rural planning. R.A. 8999,
however, ventures to reestablish the National Governments
jurisdiction over infrastructure programs in Lanao del Sur. R.A.
8999 is patently inconsistent with R.A. 9054, and it destroys the
latter laws objective.
Clearly, R.A. 8999 is antagonistic to and cannot be reconciled with
both ARMM Organic Acts, R.A. 6734 and R.A. 9054. The kernel of
the antagonism and disharmony lies in the regional autonomy
which the ARMM Organic Acts ordain pursuant to the
Constitution. On the other hand, R.A. 8999 contravenes true
decentralization which is the essence of regional autonomy.
Regional Autonomy Under R.A. 6734 and R.A. 9054. The idea
behind the 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 need for regional autonomy is more pressing in the case of the
Filipino Muslims and the Cordillera people who have been fighting
for it. Their political struggle highlights their unique cultures and
the unresponsiveness of the unitary system to their aspirations.
The Moros struggle for self-determination dates as far back as the
Spanish conquest in the Philippines. Even at present, the struggle
goes on.

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However, the creation of autonomous regions does not signify the

establishment of a sovereignty distinct from that of the Republic,
as it can be installed only within the framework of this
Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines.
The objective of the autonomy system is to permit determined
groups, with a common tradition and shared social-cultural
characteristics, to develop freely their ways of life and heritage,
exercise their rights, and be in charge of their own business. This
is achieved through the establishment of a special governance
regime for certain member communities who choose their own
authorities from within the community and exercise the
jurisdictional authority legally accorded to them to decide internal
community affairs.
In the Philippine setting, regional autonomy implies the
cultivation of more positive means for national integration. It
would remove the wariness among the Muslims, increase their
trust in the government and pave the way for the unhampered
implementation of the development programs in the region
A necessary prerequisite of autonomy is decentralization.
Decentralization is a decision by the central government
authorizing its subordinates, whether geographically or
functionally defined, to exercise authority in certain areas. It
involves decision-making by subnational units. It is typically a
delegated power, wherein a larger government chooses to delegate
certain authority to more local governments. Federalism implies
some measure of decentralization, but unitary systems may also
decentralize. Decentralization differs intrinsically from federalism
in that the sub-units that have been authorized to act (by
delegation) do not possess any claim of right against the central
government.
Decentralization comes in two formsdeconcentration 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.
The diminution of Congress powers over autonomous regions was
confirmed in Ganzon v. CA wherein this Court held that the
omission (of as may be provided by law) signifies nothing more
than to underscore local governments autonomy from Congress
and to break Congress control over local government affairs.
This is true to subjects over which autonomous regions have
powers, as specified in Sections 18 and 20, Article X of the 1987
Constitution. Expressly not included therein are powers over
certain areas. Worthy of note is that the area of public works is
not excluded and neither is it reserved for the National
Government.

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E.O. 426 officially devolved the powers and functions of the DPWH
in ARMM to the Autonomous Regional Government (ARG). More
importantly, Congress itself through R.A. 9054 transferred and
devolved the administrative and fiscal management of public
works and funds for public works to the ARG.
In treading their chosen path of development, the Muslims in
Mindanao are to be given freedom and independence with
minimum interference from the National Government. This
necessarily includes the freedom to decide on, build, supervise and
maintain the public works and infrastructure projects within the
autonomous region. The devolution of the powers and functions of
the DPWH in the ARMM and transfer of the administrative and
fiscal management of public works and funds to the ARG are
meant to be true, meaningful and unfettered. This unassailable
conclusion is grounded on a clear consensus, reached at the
Constitutional Commission and ratified by the entire Filipino
electorate, on the centrality of decentralization of power as the
appropriate vessel of deliverance for Muslim Filipinos and the
ultimate unity of Muslims and Christians in this country.
With R.A. 8999, however, this freedom is taken away, and the
National Government takes control again. The hands, once more,
of the autonomous peoples are reined in and tied up.
The challenged law creates an office with functions and powers
which, by virtue of E.O. 426, have been previously devolved to the
DPWH-ARMM, First Engineering District in Lanao del Sur. E.O.
426 clearly ordains the transfer of the control and supervision of
the offices of the DPWH within the ARMM, including their
functions, powers and responsibilities, personnel, equipment,
properties, and budgets to the ARG. Among its other functions,
the DPWH-ARMM, under the control of the Regional Government
shall be responsible for highways, flood control and water resource
development systems, and other public works within the ARMM.
Its scope of power includes the planning, design, construction and
supervision of public works. According to RA 9054, the reach of
the Regional Government enables it to appropriate, manage and
disburse all public work funds allocated for the region by the
central government. The use of the word powers in EO 426
manifests an unmistakable case of devolution.
It is clear from the foregoing provision of law that except for the
areas of executive power mentioned therein, all other such areas
shall be exercised by the Autonomous Regional Government
(ARG) of the Autonomous Region in Muslim Mindanao. It is
noted that programs relative to infrastructure facilities, health,
education, women in development, agricultural extension and
watershed management do not fall under any of the exempted
areas listed in the provision of law. Thus, the inevitable conclusion
is that all these spheres of executive responsibility have been
transferred to the ARG.
R.A. 8999 has made the DPWH-ARMM effete and rendered
regional autonomy illusory with respect to infrastructure projects.
The Congressional Record shows, on the other hand, that the lack
of an implementing and monitoring body within the area has
hindered the speedy implementation, of infrastructure projects.
Apparently, in the legislatures estimation, the existing DPWHARMM engineering districts failed to measure up to the task. But
if it was indeed the case, the problem could not be solved through
the simple legislative creation of an incongruous engineering

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Government

(Guanzon)

district for the central government in the ARMM. As it was,

House Bill No. 995 which ultimately became R.A. 8999 was passed
in record time on second reading (not more than 10 minutes),
absolutely without the usual sponsorship speech and debates. The
precipitate speed which characterized the passage of R.A. 8999 is
difficult to comprehend since R.A. 8999 could have resulted in the
amendment of the first ARMM Organic Act and, therefore, could
not take effect without first being ratified in a plebiscite. What is
more baffling is that in March 2001, or barely two (2) months after
it enacted R.A. 8999 in January 2001, Congress passed R.A. 9054,
the second ARMM Organic Act, where it reaffirmed the devolution
of the DPWH in ARMM, including Lanao del Sur and Marawi
City, to the Regional Government and effectively repealed R.A.
8999.
Issue:

WON DPWH Department Order No. 119 was valid

Ratio:

D.O. 119 creating the Marawi Sub-District Engineering

Office which has jurisdiction over infrastructure projects within

Marawi City and Lanao del Sur is violative of the provisions of
E.O. 426. The Executive Order was issued pursuant to R.A. 6734
which initiated the creation of the constitutionally-mandated
autonomous region and which defined the basic structure of the
autonomous government. E.O. 426 sought to implement the
transfer of the control and supervision of the DPWH within the
ARMM to the Autonomous Regional Government. In particular, it
identified four (4) District Engineering Offices in each of the four
(4) provinces, namely: Lanao del Sur, Maguindanao, Sulu and
Tawi-Tawi.[89) Accordingly, the First Engineering District of the
DPWH-ARMM in Lanao del Sur has jurisdiction over the public
works within the province.
The office created under D.O. 119, having essentially the same
powers, is a duplication of the DPWH-ARMM First Engineering
District in Lanao del Sur formed under the aegis of E.O. 426. The
department order, in effect, takes back powers which have been
previously devolved under the said executive order. D.O. 119 runs
counter to the provisions of E.O. 426. The DPWHs order, like
spring water, cannot rise higher than its source of powerthe
Executive.
The fact that the department order was issued pursuant to E.O.
124signed and approved by President Aquino in her residual
legislative powersis of no moment. It is a finely-imbedded
principle in statutory construction that a special provision or law
prevails over a general one.[90) Lex specialis derogant generali.
As this Court expressed in the case of Leveriza v. Intermediate
Appellate Court,[91) another basic principle of statutory
construction mandates that general legislation must give way to
special legislation on the same subject, and generally be so
interpreted as to embrace only cases in which the special
provisions are not applicable, that specific statute prevails over a
general statute and that where two statutes are of equal
theoretical application to a particular case, the one designed
therefor specially should prevail.
E.O. No. 124, upon which D.O. 119 is based, is a general law
reorganizing the Ministry of Public Works and Highways while
E.O. 426 is a special law transferring the control and supervision
of the DPWH offices within ARMM to the Autonomous Regional

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Government. The latter statute specifically applies to DPWHARMM offices. E.O. 124 should therefore give way to E.O. 426 in
the instant case.
In any event, the ARMM Organic Acts and their ratification in a
plebiscite in effect superseded E.O. 124. In case of an
irreconcilable conflict between two laws of different vintages, the
later enactment prevails because it is the later legislative will.
Further, in its repealing clause, R.A. 9054 states that all laws,
decrees, orders, rules and regulations, and other issuances or
parts thereof, which are inconsistent with this Organic Act, are
hereby repealed or modified accordingly. With the repeal of E.O.
124 which is the basis of D.O. 119, it necessarily follows that D.O.
119 was also rendered functus officio by the ARMM Organic Acts.
Abbas v. COMELEC (1989)
Facts: The Tripoli Agreement, more specifically, the Agreement
Between the Government of the Republic of the Philippines and
the Moro National Liberation Front with the participation of the
Quadripartite Ministerial Commission, Members of the Islamic
Conference and the Secretary General of the Organization of
Islamic Conference. It provided for the establishment of autonomy
in the southern Philippines within the realm of the sovereignty
and territorial integrity of the Republic of the Philippines and
enumerated the thirteen provinces comprising the areas of
autonomy.
In 1987, a new Constitution was ratified which for the first time
provided for regional autonomy. Pursuant to this constitutional
mandate, R.A. No. 6734 was enacted and signed into law.
Petitioner Abbas argues that R. A. No. 6734 unconditionally
creates an autonomous region in Mindanao, contrary to the
provisions of the Constitution on the autonomous region which
makes the creation of such region dependent upon the outcome of
the plebiscite.
Issue: Whether certain provisions of RA 6734 conflict with the
Tripoli Agreement.
Held: We find it neither necessary nor determinative of the case
to rule on the nature of the Tripoli Agreement and its binding
effect on the Philippine Government whether under public
international or internal Philippine law. In the first place, it is
now the Constitution itself that provides for the creation of an
autonomous region in Muslim Mindanao. The standard for any
inquiry into the validity of R.A. No. 6734 would therefore be what
is so provided in the Constitution. Thus, any conflict between the
provisions of R.A. No. 6734 and the provisions of the Tripoli
Agreement will not have the effect of enjoining the
implementation of the Organic Act. Assuming for the sake of
argument that the Tripoli Agreement is a binding treaty or
international agreement, it would then constitute part of the law
of the land. But as internal law it would not be superior to R.A.
No. 6734, an enactment of the Congress of the Philippines, rather
it would be in the same class as the latter. Thus, if at all, R.A. No.
6734 would be amendatory of the Tripoli Agreement, being a
subsequent law. Only a determination by this Court that R.A. No.
6734 contravened the Constitution would result in the granting of
the reliefs sought.

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Government

(Guanzon)

The matter of the creation of the autonomous region and its

composition needs to be clarified. First, the questioned provision
itself in R.A. No. 6734 refers to Section 18, Article X of the
Constitution which sets forth the conditions necessary for the
creation of the autonomous region. The reference to the
constitutional provision cannot be glossed over for it clearly
indicates that the creation of the autonomous region shall take
place only in accord with the constitutional requirements. Second,
there is a specific provision in the Transitory Provisions (Article
XIX) of the Organic Act, which incorporates substantially the
same requirements embodied in the Constitution and fills in the
details. Thus, under the Constitution and R.A. No 6734, the
creation of the autonomous region shall take effect only when
approved by a majority of the votes cast by the constituent units in
a plebiscite, and only those provinces and cities where a majority
vote in favor of the Organic Act shall be included in the
autonomous region. The provinces and cities wherein such a
majority is not attained shall not be included in the autonomous
region. It may be that even if an autonomous region is created, not
all of the thirteen (13) provinces and nine (9) cities mentioned in
Article II, section 1 (2) of R.A. No. 6734 shall be included therein.
The single plebiscite contemplated by the Constitution and R.A.
No. 6734 will therefore be determinative of (1) whether there shall
be an autonomous region in Muslim Mindanao and (2) which
provinces and cities, among those enumerated in R.A. No. 6734,
shall compromise it.
If the framers of the Constitution intended to require approval by
a majority of all the votes cast in the plebiscite they would have so
indicated. Thus, in Article XVIII, section 27, it is provided that "[t)
his Constitution shall take effect immediately upon its ratification
by a majority of the votes cast in a plebiscite held for the
purpose ... Comparing this with the provision on the creation of
the autonomous region, it will readily be seen that the creation of
the autonomous region is made to depend, not on the total
majority vote in the plebiscite, but on the will of the majority in
each of the constituent units and the proviso underscores this. for
if the intention of the framers of the Constitution was to get the
majority of the totality of the votes cast, they could have simply
adopted the same phraseology as that used for the ratification of
the Constitution, i.e. "the creation of the autonomous region shall
be effective when approved by a majority of the votes cast in a
plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a
simple majority of votes approving the organic Act in individual
constituent units and not a double majority of the votes in all
constituent units put together, as well as in the individual
constituent units.
More importantly, because of its categorical language, this is also
the sense in which the vote requirement in the plebiscite provided
under Article X, section 18 must have been understood by the
people when they ratified the Constitution.
Invoking the earlier cited constitutional provisions, petitioner
Mama-o, on the other hand, maintain that only those areas which,
to his view, share common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics should be properly included within the coverage of
the autonomous region. He insists that R.A. No. 6734 is

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08-09:

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unconstitutional because only the provinces of Basilan, Sulu,

Tawi-Tawi, Lanao del Sur, Lanao del Norte and Maguindanao and
the cities of Marawi and Cotabato, and not all of the thirteen (13)
provinces and nine (9) cities included in the Organic Act, possess
such concurrence in historical and cultural heritage and other
relevant characteristics. By including areas which do not strictly
share the same characteristics. By including areas which do not
strictly share the same characteristic as the others, petitioner
claims that Congress has expanded the scope of the autonomous
region which the constitution itself has prescribed to be limited.
Petitioner's argument is not tenable. The Constitution lays down
the standards by which Congress shall determine which areas
should constitute the autonomous region. Guided by these
constitutional criteria, the ascertainment by Congress of the areas
that share common attributes is within the exclusive realm of the
legislature's discretion. Any review of this ascertainment would
have to go into the wisdom of the law. This the Court cannot do
without doing violence to the separation of governmental powers.
After assailing the inclusion of non-Muslim areas in the Organic
Act for lack of basis, petitioner Mama-o would then adopt the
extreme view that other non-Muslim areas in Mindanao should
likewise be covered. He argues that since the Organic Act covers
several non-Muslim areas, its scope should be further broadened
to include the rest of the non-Muslim areas in Mindanao in order
for the other non-Muslim areas denies said areas equal protection
of the law, and therefore is violative of the Constitution.
Petitioner's contention runs counter to the very same
constitutional provision he had earlier invoked. Any determination
by Congress of what areas in Mindanao should compromise the
autonomous region, taking into account shared historical and
cultural heritage, economic and social structures, and other
relevant characteristics, would necessarily carry with it the
exclusion of other areas. As earlier stated, such determination by
Congress of which areas should be covered by the organic act for
the autonomous region constitutes a recognized legislative
prerogative, whose wisdom may not be inquired into by this Court.
Both petitions also question the validity of R.A. No. 6734 on the
ground that it violates the constitutional guarantee on free
exercise of religion. The objection centers on a provision in the
Organic Act which mandates that should there be any conflict
between the Muslim Code and the Tribal Code (still be enacted) on
the one had, and the national law on the other hand, the Shari'ah
courts created under the same Act should apply national law.
Petitioners maintain that the islamic law (Shari'ah) is derived
from the Koran, which makes it part of divine law. Thus it may not
be subjected to any "man-made" national law. Petitioner Abbas
supports this objection by enumerating possible instances of
conflict between provisions of the Muslim Code and national law,
wherein an application of national law might be offensive to a
Muslim's religious convictions.
In the present case, no actual controversy between real litigants
exists. There are no conflicting claims involving the application of
national law resulting in an alleged violation of religious freedom.
This being so, the Court in this case may not be called upon to
resolve what is merely a perceived potential conflict between the
provisions the Muslim Code and national law.

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Government

(Guanzon)

According to petitioners, said provision grants the President the

power to merge regions, a power which is not conferred by the
Constitution upon the President. That the President may choose
to merge existing regions pursuant to the Organic Act is
challenged as being in conflict with Article X, Section 10 of the
Constitution. It must be pointed out that what is referred to in
R.A. No. 6734 is the merger of administrative regions, i.e. Regions
I to XII and the National Capital Region, which are mere
groupings of contiguous provinces for administrative purposes.
Administrative regions are not territorial and political
subdivisions like provinces, cities, municipalities and barangays.
While the power to merge administrative regions is not expressly
provided for in the Constitution, it is a power which has
traditionally been lodged with the President to facilitate the
exercise of the power of general supervision over local
governments. There is no conflict between the power of the
President to merge administrative regions with the constitutional
provision requiring a plebiscite in the merger of local government
units because the requirement of a plebiscite in a merger
expressly applies only to provinces, cities, municipalities or
barangays, not to administrative regions.
Petitioners likewise question the validity of provisions in the
Organic Act which create an Oversight Committee to supervise
the transfer to the autonomous region of the powers,
appropriations, and properties vested upon the regional
government by the organic Act. Said provisions mandate that the
transfer of certain national government offices and their
properties to the regional government shall be made pursuant to a
schedule prescribed by the Oversight Committee, and that such
transfer should be accomplished within six (6) years from the
organization of the regional government.
It is asserted by petitioners that such provisions are
unconstitutional because while the Constitution states that the
creation of the autonomous region shall take effect upon approval
in a plebiscite, the requirement of organizing an Oversight
committee tasked with supervising the transfer of powers and
properties to the regional government would in effect delay the
creation of the autonomous region.
Under the Constitution, the creation of the autonomous region
hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region
immediately takes effect delay the creation of the autonomous
region.
Under the constitution, the creation of the autonomous region
hinges only on the result of the plebiscite. if the Organic Act is
approved by majority of the votes cast by constituent units in the
scheduled plebiscite, the creation of the autonomous region
immediately takes effect. The questioned provisions in R.A. No.
6734 requiring an oversight Committee to supervise the transfer
do not provide for a different date of effectivity. Much less would
the organization of the Oversight Committee cause an impediment
to the operation of the Organic Act, for such is evidently aimed at
effecting a smooth transition period for the regional government.
The constitutional objection on this point thus cannot be sustained
as there is no bases therefor.

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Every law has in its favor the presumption of constitutionality.

Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a
declaration. otherwise, their petition must fail. Based on the
grounds raised by petitioners to challenge the constitutionality of
R.A. No. 6734, the Court finds that petitioners have failed to
overcome the presumption. The dismissal of these two petitions is,
therefore, inevitable.
Pandi v. CA (2004)
Facts:

On August 9, 1993, Macacua, in her capacity as Regional

Director and as Secretary of the DOH of the ARMM, issued a

Memorandum designating Pandi, who was then DOH-ARMM
Assistant Regional Secretary, as Officer-in-Charge of the
Integrated Provincial Health Office-Amai Pakpak General
Hospital
(IPHO-APGH)
Lanao del Sur. In the same
Memorandum, Macacua detailed Dr. Mamasao Sani, then the
provincial health officer of the IPHO-APGH, Lanao del Sur, to the
DOH-ARMM Regional Office in Cotabato City.
Lanao del Sur Provincial Governor Mahid M. Mutilan issued
Office Order No. 07 designating Dr. Amer Saber also as Officer-inCharge of the IPHO-APGH, Lanao del Sur.
Sani filed a complaint with the RTC challenging the memo of
Macacuao. Saber filed with the CA a petition for quo warranto
claiming that he is the lawfully designated officer in charge of
IPHO-APGH.
President Fidel V. Ramos issued EO 133 transferring the powers
and functions of the DOH in the region to the Regional
Government of the ARMM.
Macacua, again, issued a
Memorandum reiterating Pandis designation as Officer-in-Charge
of the IPHO-APGH, Lanao del Sur, as well as Sanis detail to the
Regional Office of the DOH-ARMM in Cotabato City.
The CA ruled that that Saber is the lawfully designated Officer-inCharge of the IPHO-APGH, Lanao del Sur. The CA ruled that
Lanao del Sur Governor Mutilan has the power and authority to
appoint the provincial health officer under Section 478[10] of the
Local Government Code of 1991.
The Court of Appeals likewise ruled that the issuance of Executive
Order No. 133, and the Memorandum of Agreement entered
between the DOH of the National Government and the ARMM
pursuant to Executive Order No. 133, did not render moot and
academic the issues raised in the proceedings before it.
Neither did the Court of Appeals give credence to Pandi and
Macacuas argument that the passage of the ARMM Local Code
puts to rest the issues in the instant case. The Court of Appeals
maintained that the Organic Act of 1989 and the ARMM Local
Code could not prevail over the 1991 LGU Code. The Court of
Appeals interpreted Section 457 (b) and (d) of the ARMM Local
Code to mean that it is the ARMM Regional Governor, and not the
Provincial Governor, who exercises a recommendatory prerogative
in the appointment of the provincial health officer.
The Court of Appeals likewise ruled that there is nothing in
Section 18,[15] Chapter 5, Title IX, Book IV of the Revised
Administrative Code of 1987 which explicitly or even impliedly
vests in Macacua, as DOH-ARMM Secretary, the power to make
such an appointment or designation.

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Issue:

Government

(Guanzon)

WON an incumbent provincial health officer of Lanao del

Sur can be assigned to another province and if so, who can order
such assignment.
Second, who can designate the Officer-in-Charge in the provincial
health office of Lanao del Sur - the Provincial Governor or the
ARMM Secretary of Health.
Third, who is empowered to appoint the provincial health officer of
Lanao del Sur - the Provincial Governor, the Regional Governor or
the ARMM Secretary of Health.
The passage of the Organic Act of 2001 means that the powers and
functions of a Provincial Governor under the 1991 LGU Code are
now enjoyed, as a minimum, by a Provincial Governor in the
ARMM. Thus, the Provincial Governor appoints the provincial
health officer if the latters salary comes from provincial funds. If
the provincial health officers salary comes mainly from regional
funds, then the ARMM Local Code applies, in which case the
Regional Governor is the appointing power but he must appoint
only from among the three nominees of the Provincial Governor.
Moreover, the Provincial Governor exercises supervision and
control over the provincial health officer because the ARMM Local
Code has classified him as a provincial government official. This
is now the present state of the law on the appointment of
provincial health officers in the ARMM. This is actually the same
as the law after the effectivity of the ARMM Local Code but prior
to the passage of the Organic Act of 2001. The only difference is
that the Regional Assembly cannot amend the ARMM Local Code
to reduce or diminish this power of the Provincial Governor
because this devolved power, emanating from the 1991 LGU
Code, is now part of the Organic Act of 2001.
Application of the law to the designation of Saber. Lanao del Sur
Provincial Governor Mahid M. Mutilan designated Saber as
Officer-in-Charge of the IPHO-APGH, Lanao del Sur, on
September 15, 1993. On this date the provincial health officer of
Lanao del Sur was still a national government official paid
entirely from national funds. The provincial health officer was still
appointed by the national Secretary of Health to a region and not
to a province. The Secretary of Health exercised supervision and
control over the provincial health officer. The Secretary of Health
was also the official authorized by law to assign the provincial
health officer to any province within the region. Indisputably, on
September 15, 1993, Provincial Governor Mutilan had no power to
designate Saber as Officer-in-Charge of IPHO-APGH, Lanao del
Sur. Consequently, the designation of Saber as such Officer-inCharge is void.
The provincial health officer of Lanao del Sur became a provincial
government official only after the effectivity of the ARMM Local
Code, which was enacted by the Regional Assembly on January
25, 1994 and approved by the Regional Governor on March 3,
1994. Prior to the ARMM Local Code but after the issuance of
Executive Order No. 133, the Regional Governor appointed the
provincial health officer while the Regional Secretary of Health
could assign the provincial health officer to any province within
the ARMM. The Provincial Governor had no power to appoint or
even designate the Officer-in-Charge of the provincial health office.
The Court of Appeals reliance on Section 478 of the 1991 LGU
Code as Provincial Governor Mutilans authority to appoint Saber
is misplaced. Section 478 of the 1991 LGU Code, which provides

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that [T]he appointment of a health officer shall be mandatory for

provincial, city and municipal governments, is not a grant of
power to governors and mayors to appoint local health officers. It
is simply a directive that those empowered to appoint local health
officers are mandated to do so. In short, the appointment of local
health officers, being essential for public services, is a mandatory
obligation on the part of those vested by law with the power to
appoint them. Moreover, as explained earlier, the 1991 LGU Code
did not amend the Organic Act of 1989.
Application of the law to the appointment and transfer of Sani
Sani was appointed provincial health officer by then Secretary of
Health Alfredo R.A. Bengzon on January 1, 1988. He was
appointed as Provincial Health Officer (R-05 5th Step), Office of
the Regional Health Director, Regional Health Office No. XII,
Cotabato City. Sani was appointed provincial health officer in
Region XII since at that time Executive Order No. 119, the charter
of the Department of Health, expressly stated that provincial
health officers were to be appointed to a region. The Secretary of
Health, upon recommendation of the Regional Director, could
assign provincial health officers to any province within the region.
Consequently, Sani cannot claim any security of tenure as
provincial health officer of Lanao del Sur because he was never
appointed to that office.
Macacua, in her capacity as Regional Director and ARMM
Secretary of Health, detailed Sani to the DOH-ARMM Regional
Office in Cotabato City on August 9, 1993. As of that date, the
powers and functions of the Department of Health were not yet
transferred to the Regional Government, and the Secretary of
Health of the National Government still exercised the power to
assign the provincial health officers in the ARMM. Consequently,
the August 9, 1993 directive of Macacua detailing or assigning
Sani to the Regional Office in Cotabato City is void.
However, on November 6, 1993, Macacua issued another
Memorandum reiterating Sanis detail or assignment to the
Regional Office in Cotabato City. This second Memorandum was
issued after the issuance of Executive Order No. 133 which
expressly transferred supervision and control over all functions
and activities of the Regional Department of Health to the Head
of the Regional Department of Health. In Gen. Renato de Villa
vs. City of Bacolod, this Court ruled that the power of
administrative control encompasses the power to transfer
personnel who under the law may be reassigned to other stations.
The second detail or assignment of Sani to the Regional Office in
Cotabato, issued on November 6, 1993, is within the authority of
Macacua as Regional Secretary of Health. Thus, the second detail
of Sani is valid.
Application of the law to the designation of Pandi
Macacua, as Regional Director and Regional Secretary of Health,
designated Pandi Officer-in-Charge of the IPHO-APGH, Lanao del
Sur, on August 9, 1993 and again on November 6, 1993. The
designation dated August 9, 1993 is void since the Regional
Secretary at that time did not yet exercise supervision and control
over the provincial health offices of the ARMM. However, the
designation of Pandi on November 6, 1993 is valid since at that
time Executive Order No. 133 had already been issued vesting in
the Regional Secretary of Health supervision and control over all
functions and activities of the Department of Health in the

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ARMM. The designation of Pandi, however, while valid is only

temporary in nature, good until a new designation or a permanent
appointment is made.
As Regional Secretary of Health, Macacua was, as of November 6,
1993, the official vested by law to exercise supervision and control
over all provincial health offices in the ARMM. The Regional
Secretary, by virtue of Executive Order No. 133, assumed the
administrative powers and functions of the Secretary of Health of
the National Government with respect to provincial health offices
within the ARMM. The official exercising supervision and control
over an office has the administrative authority to designate, in the
interest of public service, an Officer-in-Charge if the office becomes
vacant. Macacua, therefore, had the authority on November 6,
1993 to designate an Officer-in-Charge in the provincial health
office of Lanao del Sur pending the appointment of the permanent
provincial health officer. After the effectivity of the ARMM Local
Code, the Regional Secretary of Health lost the authority to make
such a designation.
Under the ARMM Local Code, the provincial health officer became
for the first an official of the provincial government even though he
is appointed by the Regional Governor and draws his salary from
regional funds. The ARMM Local Code vests in the Provincial
Governor the power to exercise general supervision and control
over all programs, projects, services, and activities of the
provincial government. Upon the effectivity of the ARMM Local
Code, the power of supervision and control over the provincial
health officer passed from the Regional Secretary to the Provincial
Governor.
From then on the Provincial Governor began to
exercise the administrative authority to designate an Officer-inCharge in the provincial health office pending the appointment of
a permanent provincial health officer.
Bai Sema v. Comelec (2008), supra.
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 Code. Second,
such creation must not conflict with any provision of the
Constitution. Third, there must be a plebiscite in the political
units affected.
There is neither an express prohibition nor an express grant of
authority in the Constitution for Congress to delegate to regional
or local legislative bodies the power to create local government
units. However, under its plenary legislative powers, Congress can
delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided
no conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and
municipal councils, the power to create barangays within their
jurisdiction, subject to compliance with the criteria established in
the Local Government Code, and the plebiscite requirement in
Section 10, Article X of the Constitution. However, under the
Local Government Code, "only x x x an Act of Congress" can create
provinces, cities or municipalities.
Under Section 19, Article VI of RA 9054, Congress delegated to
the ARMM Regional Assembly the power to create provinces,
cities, municipalities and barangays within the ARMM. Congress

S . Y.

08-09:

2nd

Sem.

made the delegation under its plenary legislative powers because

the power to create local government units is not one of the
express legislative powers granted by the Constitution to regional
legislative bodies. In the present case, the question arises whether
the delegation to the ARMM Regional Assembly of the power to
create provinces, cities, municipalities and barangays conflicts
with any provision of the Constitution.
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 10, Article X of
the Constitution is followed. However, the creation of provinces
and cities is another matter. Section 5 (3), Article VI of the
Constitution provides, "Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative" in the House of Representatives. Similarly, Section
3 of the Ordinance appended to the Constitution provides, "Any
province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election to
at least one Member x x x."
Clearly, a province cannot be created without a legislative district
because it will violate Section 5 (3), Article VI of the Constitution
as well as Section 3 of the Ordinance appended to the
Constitution. For the same reason, a city with a population of
250,000 or more cannot also be created without a legislative
district. Thus, the power to create a province, or a city with a
population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of
less than 250,000 involves the power to create a legislative district
because once the city's population reaches 250,000, the city
automatically becomes entitled to one representative under
Section 5 (3), Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. Thus, the power to
create a province or city inherently involves the power to
create a legislative district.
Ordillo v. COMELEC (1990)
Facts:

On January 30, 1990, the people of the provinces of

Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao

and the city of Baguio cast their votes in a plebiscite held
pursuant to Republic Act No. 6766 entitled "An Act Providing for
an Organic Act for the Cordillera Autonomous Region." The official
COMELEC results of the plebiscite showed that the creation of
the Region was approved by a majority of 5,889 votes in only the
Ifugao Province and was overwhelmingly rejected by 148,676 votes
in the rest of the provinces and city above-mentioned.
Consequently, the COMELEC, on February 14, 1990, issued
Resolution No. 2259 stating that the Organic Act for the Region
has been approved and/or ratified by majority of the votes cast
only in the province of Ifugao. On March 8, 1990, Congress
enacted RA 6861 setting the elections in the CAR of Ifugao on the
first Monday of March 1991.
Even before the issuance of the COMELEC resolution, the
Executive Secretary on February 5, 1990 issued a Memorandum
granting authority to wind up the affairs of the Cordillera

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(Guanzon)

Executive Board and the Cordillera Regional Assembly created

under Executive Order No. 220.
On March 9, 1990, the petitioner filed a petition with COMELEC
to declare the non-ratification of the Organic Act for the Region.
The COMELEC merely noted said petition. The petitioners
maintain that there can be no valid Cordillera Autonomous
Region in only one province as the Constitution and Republic Act
No. 6766 require that the said Region be composed of more than
one constituent unit.
Issue:

WON the province of Ifugao can validly constitute CAR

Held:

No

Ratio:

The sole province of Ifugao cannot validly constitute the

Cordillera Autonomous Region. It is explicit in Article X, Section

15 of the 1987 Constitution that:
"Sec 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordillera consisting of provinces, cities,
municipalities and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty as
well as territorial integrity of the RP.
The keywords provinces, cities, municipalities and geographical
areas connote that "region" is to be made up of more than one
constituent unit. The term "region" used in its ordinary sense
means two or more provinces. This is supported by the fact that
the thirteen (13) regions into which the Philippines is divided for
administrative purposes are groupings of contiguous provinces.
Ifugao is a province by itself. To become part of a region, it must
join other provinces, cities, municipalities, and geographical areas.
It joins other units because of their common and distinctive
historical and cultural heritage, economic and social structures
and other relevant characteristics. The Constitutional
requirements are not present in this case.
Aside from the 1987 Constitution, a reading of the provisions of
RA 6766 strengthens the petitioner's position that the Region
cannot be constituted from only one province. Article III, Sections
1 and 2 of the Statute provide that the Cordillera Autonomous
Region is to be administered by the Cordillera government
consisting of the Regional Government and local government
units. From these sections, it can be gleaned that Congress never
intended that a single province may constitute the autonomous
region. Otherwise, we would be faced with the absurd situation of
having two sets of officials, a set of provincial officials and another
set of regional officials exercising their executive and legislative
powers over exactly the same small area.
Article V, Sections 1 and 4 of Republic Act 6766 vest the legislative
power in the Cordillera Assembly whose members shall be elected
from regional assembly districts apportioned among provinces and
the cities composing the Autonomous Region.
If we follow the respondent's position, the members of such
Cordillera Assembly shall then be elected only from the province
of Ifugao creating an awkward predicament of having two
legislative bodies the Cordillera Assembly and the Sangguniang
Panlalawigan
exercising their legislative powers over the

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08-09:

2nd

Sem.

province of Ifugao. And since Ifugao is one of the smallest

provinces in the Philippines, population-wise, it would have too
many government officials for so few people.
Article XII, Section 10 of the law creates a Regional Planning and
Development Board composed of the Cordillera Governor, all the
provincial governors and city mayors or their representatives, two
members of the Cordillera Assembly, and members representing
the private sector. The Board has a counterpart in the provincial
level called the Provincial Planning and Development Coordinator.
The Board's functions (Article XII, Section 10, par. 2, Republic Act
No. 6766) are almost similar to those of the Provincial
Coordinator's (Title Four, Chapter 3, Article 10, Section 220 (4),
Batas Pambansa Blg. 337
Local Government Code). If it takes
only one person in the provincial level to perform such functions
while on the other hand it takes an entire Board to perform
almost the same tasks in the regional level, it could only mean
that a larger area must be covered at the regional level. The
respondent's theory of the Autonomous Region being made up of a
single province must, therefore, fail.
Article XXI, Section 13 (B) (c) alloting the huge amount of Ten
Million Pesos (P10,000,000.00) to the Regional Government for its
initial organizational requirements can not be construed as
funding only a lone and small province. These sections of Republic
Act No. 6766 show that a one province Cordillera Autonomous
Region was never contemplated by the law creating it.
The province of Ifugao makes up only 11% of the total population
of the areas enumerated in Article I, Section 2 (b) of Republic Act
No. 6766 which include Benguet, Mountain Province, Abra,
Kalinga-Apayao and Baguio City. It has the second smallest
number of inhabitants from among the provinces and city above
mentioned. The Cordillera population is distributed in round
figures as follows: Abra, 185,000; Benguet, 486,000; Ifugao,
149,000; Kalinga-Apayao, 214,000; Mountain Province, 116,000;
and Baguio City, 183,000; Total population of these five provinces
and one city; 1,332,000 according to the 1990 Census.
`There are other provisions of Republic Act No. 6766 which are
either violated or which cannot be complied with. Section 16 of
Article V calls for a Regional Commission on Appointments with
the Speaker as Chairman and are (6) members coming from
different provinces and cities in the Region. Under the
respondents' view, the Commission would have a Chairman and
only one member. It would never have a quorum. Section 3 of
Article VI calls for cabinet members, as far as practicable, to come
from various provinces and cities of the Region. Section 1 of
Article VII creates a system of tribal courts for the various
indigenous cultural communities of the Region. Section 9 of
Article XV requires the development of a common regional
language based upon the various languages and dialects in the
region which regional language in turn is expected to enrich the
national language.
The entirety of Republic Act No. 6766 creating the Cordillera
Autonomous Region is infused with provisions which rule against
the sole province of Ifugao constituting the Region.
To
contemplate the situation envisioned by the respondent would not
only violate the letter and intent of the Constitution and Republic
Act No. 6766 but would also be impractical and illogical.

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`Our decision in Abbas, et al. v. COMELEC, is not applicable in

the case at bar contrary to the view of the Secretary of Justice.The
Abbas case established the rule to follow on which provinces and
cities shall comprise the autonomous region in Muslim Mindanao
which is, consequently, the same rule to follow with regard to the
autonomous region in the Cordillera. However, there is nothing in
the Abbas decision which deals with the issue on whether an
autonomous region, in either Muslim Mindanao or Cordillera
could exist despite the fact that only one province or one city is to
constitute it. Stated in another way, the issue in this case is
whether the sole province of Ifugao can validly and legally
constitute the Cordillera Autonomous Region. The issue is not
whether the province of Ifugao is to be included in the Cordillera
Autonomous Region. It is the first issue which the Court answers
in the instant case.
Cordillera Broad Coalition v. COA (1990), supra.
Ratio:

We have seen earlier that the CAR is not the

autonomous region in the Cordilleras contemplated by the

Constitution. Thus, we now address petitioners' assertion that
E.O. No. 220 contravenes the Constitution by creating a new
territorial and political subdivision. After carefully considering the
provisions of E.O. No. 220, we find that it did not create a new
territorial and political subdivision or merge existing ones into a
larger subdivision.
Firstly, the CAR is not a public corporation or a territorial and
political subdivision. It does not have a separate juridical
personality, unlike provinces, cities and municipalities. Neither is
it vested with the powers that are normally granted to public
corporations, e.g. the power to sue and be sued, the power to own
and dispose of property, the power to create its own sources of
revenue, etc. As stated earlier, the CAR was created primarily to
coordinate the planning and implementation of programs and
services in the covered areas.
The creation of administrative regions for the purpose of
expediting the delivery of services is nothing new. The Integrated
Reorganization Plan of 1972, which was made as part of the law of
the land by virtue of PD 1, established 11regions, later increased
to 12, with definite regional centers and required departments
and agencies of the Executive Branch of the National Government
to set up field offices therein. The functions of the regional offices
to be established pursuant to the Reorganization Plan are: (1) to
implement laws, policies, plans, programs, rules and regulations
of the department or agency in the regional areas; (2) to provide
economical, efficient and effective service to the people in the area;
(3) to coordinate with regional offices of other departments,
bureaus and agencies in the area; (4) to coordinate with local
government units in the area; and (5) to perform such other
functions as may be provided by law.
CAR is in the same genre as the administrative regions created
under the Reorganization Plan, albeit under E.O. No. 220 the
operation of the CAR requires the participation not only of the line
departments and agencies of the National Government but also
the local governments, ethno-linguistic groups and nongovernmental organizations in bringing about the desired
objectives and the appropriation of funds solely for that purpose.

S . Y.
Issue:

WON

08-09:
the

creation

2nd
of the

Sem.
CAR

contravened

the

constitutional guarantee of the local autonomy for the provinces

(Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province)
and city (Baguio City) which compose the CAR.
Held:

No

Ratio:

It must be clarified that the constitutional guarantee of

local autonomy in the Constitution refers to the administrative

autonomy of local government units or, cast in more technical
language, the decentralization of government authority. Local
autonomy is not unique to the 1987 Constitution, it being
guaranteed also under the 1973 Constitution. And while there was
no express guarantee under the 1935 Constitution, the Congress
enacted the Local Autonomy Act (R.A. No. 2264) and the
Decentralization Act (R.A. No. 5185), which ushered the
irreversible march towards further enlargement of local autonomy
in the country.
On the other hand, the creation of autonomous regions in Muslim
Mindanao and the Cordilleras, which is peculiar to the 1987
Constitution, contemplates the grant of political autonomy and not
just administrative autonomy to these regions. Thus, the provision
in the Constitution for an autonomous regional government with a
basic structure consisting of an executive department and a
legislative assembly and special courts with personal, family and
property law jurisdiction in each of the autonomous regions.
As we have said earlier, the CAR is a mere transitory coordinating
agency that would prepare the stage for political autonomy for the
Cordilleras. It fills in the resulting gap in the process of
transforming a group of adjacent territorial and political
subdivisions already enjoying local or administrative autonomy
into an autonomous region vested with political autonomy.
The Metropolitan Manila Development Authority and LGUs
MMDA v. Bel Air Village Assoc. Inc. (2001), supra.
Metropolitan or Metro Manila is a body composed of
several local government units - i.e., twelve (12) cities and five
(5) municipalities, namely, the cities of Caloocan, Manila,
Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las
Pinas, Marikina, Paranaque and Valenzuela, and the
municipalities of Malabon, , Navotas, , Pateros, San Juan and
Taguig. With the passage of RA 7924 in 1995, Metropolitan
Manila was declared as a "special development and
administrative region" and the Administration of "metrowide" basic services affecting the region placed under "a
development authority" referred to as the MMDA.
The implementation of the MMDAs plans, programs and
projects is undertaken by the local government units, national
government agencies, accredited peoples organizations, nongovernmental organizations, and the private sector as well as by
the MMDA itself. For this purpose, the MMDA has the power to
enter into contracts, memoranda of agreement and other
cooperative arrangements with these bodies for the delivery of the
required services within Metro Manila.

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Clearly, the scope of the MMDAs function is limited to the

delivery of the seven (7) basic services. One of these is transport
and traffic management which includes the formulation and
monitoring of policies, standards and projects to rationalize the
existing transport operations, infrastructure requirements, the
use of thoroughfares and promotion of the safe movement of
persons and goods. It also covers the mass transport system and
the institution of a system of road regulation, the administration
of all traffic enforcement operations, traffic engineering services
and traffic education programs, including the institution of a
single ticketing system in Metro Manila for traffic violations.
Under this service, the MMDA is expressly authorized "to set the
policies concerning traffic" and "coordinate and regulate the
implementation of all traffic management programs." In addition,
the MMDA may "install and administer a single ticketing system,"
fix, impose and collect fines and penalties for all traffic violations.
It will be noted that the powers of the MMDA are limited to the
following
acts:
formulation,
coordination,
regulation,
implementation, preparation, management, monitoring, setting of
policies, installation of a system and administration. There is no
syllable in R. A. No. 7924 that grants the MMDA police
power, let alone legislative power. Even the Metro Manila
Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no
provision in R. A. No. 7924 that empowers the MMDA or its
Council to "enact ordinances, approve resolutions and appropriate
funds for the general welfare" of the inhabitants of Metro Manila.
The MMDA is, as termed in the charter itself, a "development
authority." It is an agency created for the purpose of laying down
policies and coordinating with the various national government
agencies, peoples organizations, non-governmental organizations
and the private sector for the efficient and expeditious delivery of
basic services in the vast metropolitan area. All its functions
are administrative in nature and these are actually summed
up in the charter itself

MMDA v. Garlin (2005)

Facts:

The issue arose from an incident involving the Dante

Garin, a lawyer, who was issued a traffic violation receipt (TVR)

and his drivers license confiscated for parking illegally along
Gandara Street, Binondo, Manila. The following statements were
printed on the TVR: You are hereby directed to report to the
MMDA Traffic Operations Center Port Area Manila after 48 hours
from date of apprehension for disposition/appropriate action
thereon. Criminal case shall be filed for failure to redeem license
after 30 days. Valid as temporary DRIVERS license for seven days
from date of apprehension.
Garin sent a letter to MMDA Chairman Prospero Oreta
requesting the return of his license and his preference for his case
to be filed in court. When there was not reply, Garin filed a
complaint for preliminary injunction in the RTC contending that
the absence of an IRR of RA 7924 grants the MMDS unbridled
power to deprive motorists of their license, thereby violating the

S . Y.

08-09:

2nd

Sem.

due process clause. Also, there is undue delegation of legislative

authority to the MMDA.
For its part, the MMDA pointed out that the powers granted to it
by Sec. 5(f) of RA 7924 are limited to the fixing, collection and
imposition of fines and penalties for traffic violations, which
powers are legislative and executive in nature; the judiciary
retains the right to determine the validity of the penalty imposed.
It further argued that the doctrine of separation of powers does
not preclude admixture of the three powers of government in
administrative agencies. The trial court rendered a decision in
favor of respondent and ordered the MMDA to desist from
confiscating licenses without first giving the driver the
opportunity to be heard in an appropriate proceeding.
Meanwhile, on 12 August 2004, the MMDA, through its Chairman
Bayani Fernando, implemented Memorandum Circular No. 04,
Series of 2004, outlining the procedures for the use of the
Metropolitan Traffic Ticket (MTT) scheme. Under the circular,
erring motorists are issued an MTT, which can be paid at any
Metrobank branch. Traffic enforcers may no longer confiscate
drivers licenses as a matter of course in cases of traffic violations.
All motorists with unredeemed TVRs were given seven days from
the date of implementation of the new system to pay their fines
and redeem their license or vehicle plates. It would seem,
therefore, that insofar as the absence of a prima facie case to
enjoin the petitioner from confiscating drivers licenses is
concerned, recent events have overtaken the Courts need to decide
this case, which has been rendered moot and academic by the
implementation of Memorandum Circular No. 04, Series of 2004.
Issue:

WON the state in the exercise of its police power can

validly withhold a motorists license

Held:

Yes

Ratio:

A license to operate a motor vehicle is not a property

right, but a privilege granted by the state, which may be

suspended or revoked by the state in the exercise of its police
power, in the interest of the public safety and welfare, subject to
the procedural due process requirements.
State ex. Rel. Sullivan: Since motor vehicles are instruments of
potential danger, their registration and the licensing of their
operators have been required almost from their first appearance.
The right to operate them in public places is not a natural and
unrestrained right, but a privilege subject to reasonable
regulation, under the police power, in the interest of the public
safety and welfare. The power to license imports further power to
withhold or to revoke such license upon noncompliance with
prescribed conditions.
Pennsylvania Supreme Court in Commonwealth v. Funk:
The Legislature, in the exercise of the police power of the
commonwealth, not only may, but must, prescribe how and by
whom motor vehicles shall be operated on the highways. One of
the primary purposes of a system of general regulation of the
subject matter, as here by the Vehicle Code, is to insure the
competency of the operator of motor vehicles. Such a general law
is manifestly directed to the promotion of public safety and is well
within the police power.

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The legislature, in the exercise of police power, which has the

power and responsibility to regulate how and by whom motor
vehicles may be operated on the state highways.
Issue:

WON MMDA is vested with police power

Held:

No

Ratio:

In Metro Manila Development Authority v. Bel-Air

Village Association, Inc., we categorically stated that Rep. Act No.

7924 does not grant the MMDA with police power, let alone
legislative power, and that all its functions are administrative in
nature. Police power, as an inherent attribute of sovereignty, is the
power vested by the Constitution in the legislature to make,
ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without,
not repugnant to the Constitution, as they shall judge to be for the
good and welfare of the commonwealth, and for the subjects of the
same. Having been lodged primarily in the National Legislature, it
cannot be exercised by any group or body of individuals not
possessing legislative power. The Legislature, however, may
delegate this power to the president and administrative boards as
well as the lawmaking bodies of municipal corporations or LGUs.
Once delegated, the agents can exercise only such legislative
powers as are conferred on them by the national lawmaking body.
Our Congress delegated police power to the LGUs in the Local
Government Code of 1991.
Metropolitan or Metro Manila is a body composed of several local
government units. With the passage of Rep. Act No. 7924 in 1995,
Metropolitan Manila was declared as a "special development and
administrative region" and the administration of "metro-wide"
basic services affecting the region placed under "a development
authority" referred to as the MMDA. Clearly, the MMDA is not a
political unit of government. The power delegated to the MMDA is
that given to the Metro Manila Council to promulgate
administrative rules and regulations in the implementation of the
MMDAs functions. There is no grant of authority to enact
ordinances and regulations for the general welfare of the
inhabitants of the metropolis. 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.
Issue:

WON Sec. 5(f) grants the MMDA with the duty to

enforce existing traffic rules and regulations.

Ratio:

Section 5 of RA7924 enumerates the Functions and

Powers of the Metro Manila Development Authority. The

contested clause in Sec. 5(f) states that the petitioner shall install
and administer a single ticketing system, fix, impose and collect
fines and penalties for all kinds of violations of traffic rules and
regulations, whether moving or nonmoving in nature, and
confiscate and suspend or revoke drivers licenses in the
enforcement of such traffic laws and regulations, the provisions of
RA4136 and PD 1605 to the contrary notwithstanding, and that
(f)or this purpose, the Authority shall enforce all traffic laws and

S . Y.

08-09:

2nd

Sem.

regulations in Metro Manila, through its traffic operation center,

and may deputize members of the PNP, traffic enforcers of local
government units, duly licensed security guards, or members of
non-governmental organizations to whom may be delegated
certain authority, subject to such conditions and requirements as
the Authority may impose.
Thus, 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.
This is consistent with our ruling in Bel-Air that the MMDA is a
development authority created for the purpose of laying down
policies and coordinating with the various national government
agencies, peoples organizations, non-governmental organizations
and the private sector, which may enforce, but not enact,
ordinances.
This is also consistent with the fundamental rule of statutory
construction that a statute is to be read in a manner that would
breathe life into it, rather than defeat it, and is supported by the
criteria in cases of this nature that all reasonable doubts should
be resolved in favor of the constitutionality of a statute.
LIABILITY
Ultra Vires Act
San Diego v. Municipality of Naujan, Oriental Mindoro
Facts:

Following

public

bidding

conducted

by

the

municipality of Naujan, Oriental Mindoro for the lease of its

municipal waters, Resolution 46 was passed awarding the
concession of the Butas River and the Naujan Lake to Bartolome
San Diego. A contract was entered into between the said San
Diego and the municipality, for a period of lease for 5 years.
The lessee then requested for a five year extension of the original
lease period, this was granted by the municipal council. After the
resolution had been approved by the Provincial Board of Oriental
Mindoro, the lessor and the lessee, contracted for the extension of
the period of the lease. The contract was approved and confirmed
on December 29, 1951 by Resolution 229 of the municipal council
of Naujan whose term was then about to expire. Pursuant to the
said contract, the lessee filed a surety bond of P52,000 and then
reconstructed his fish corrals and stocked the Naujan Lake with
bangus fingerlings.
On January 2, 1952, the municipal council of Naujan, this time
composed of a new set of members, adopted Resolution 3, series of
1952, revoking Resolution 222, series of 1951. On the same date,
the new council also passed Resolution 11, revoking Resolution
229 of the old council which confirmed the extension of the lease
period. The lessee requested for reconsideration and recall of
Resolution 3, on the ground, among others, that it violated the
contract executed between him and the municipality on December
23, 1951, and, therefore, contrary to Article III, section 1, clause
10 of the Constitution. The request, however, was not granted.

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The lessee instituted proceedings to annul the Resolution. The

defendant asserted that the original lease contract, reducing the
lease rentals and renewing the lease are null and void for not
having been passed in accordance with law. The trial court upheld
the validity of the lease contract.
Issue:

WON Resolution No. 3, series of 1952, revoking

Resolution 222, series of 1951, of the municipal council of Naujan

is valid
Held:
Ratio:

No
The law (Sec. 2323 of the Revised Administrative Code)

requires that when the exclusive privilege of fishery or the right to

conduct a fish-breeding ground is granted to a private party, the
same shall be let to the highest bidder in the same manner as is
being done in exploiting a ferry, a market or a slaughterhouse
belonging to the municipality. The requirement of competitive
bidding is for the purpose of inviting competition and to guard
against favoritism, fraud and corruption in the letting of fishery
privileges. There is no doubt that the original lease contract in
this case was awarded to the highest bidder, but the reduction of
the rental and the extension of the term of the lease appear to
have been granted without previous public bidding.
Furthermore, it has been ruled that statutes requiring public
bidding apply to amendments of any contract already executed in
compliance with the law where such amendments alter the
original contract in some vital and essential particular. Inasmuch
as the period in a lease is a vital and essential particular to the
contract, we believe that the extension of the lease period in this
case, which was granted without the essential requisite of public
bidding, is not in accordance with law. And it follows the
Resolution 222, series of 1951, and the contract authorized
thereby, extending the original five-year lease to another five years
are null and void as contrary to law and public policy.
We agree with the defendant in that the question Resolution 3 is
not an impairment of the obligation of contract, because the
constitutional provision on impairment refers only to contract
legally executed. While, apparently, Resolution 3 tended to
abrogate the contract extending the lease, legally speaking, there
was no contract abrogated because, as we have said, the extension
contract is void and inexistent.
The lower court, in holding that the defendant-appellant
municipality has been estopped from assailing the validity of the
contract into which it entered on December 23, 1951, seems to
have overlooked the general rule that the doctrine of estoppel
cannot be applied as against a municipal corporation to validate a
contract which it has no power to make or which it is authorized to
make only under prescribed conditions, within prescribed
limitations, or in a prescribed mode or manner, although the
corporation has accepted the benefits thereof and the other party
has fully performed his part of the agreement, or has expended
large sums in preparation for performance. A reason frequently
assigned for this rule is that to apply the doctrine of estoppel
against a municipality in such case would be to enable it to do
indirectly what it cannot do directly. Also, where a contract is
violative of public policy, the municipality executing it cannot be

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estopped to assert the invalidity of a contract which has ceded

away, controlled, or embarrassed its legislative or government
powers.
As pointed out above, "public biddings are held for the best
protection of the public and to give the public the best possible
advantages by means of open competition between the bidders."
Thus, contracts requiring public bidding affect public interest, and
to change them without complying with that requirement would
indeed be against public policy. There is, therefore, nothing to
plaintiff-appellee's contention that the parties in this case being in
pari delicto should be left in the situation where they are found,
for "although the parties are in pari delicto, yet the court may
interfere and grant relief at the suit of one of them, where public
policy requires its intervention, even though the result may be
that a benefit will be derived by a plaintiff who is in equal guilt
with defendant. But here the guilt of the parties is not considered
as equal to the higher right of the public, and the guilty party to
whom the relief is granted is simply the instrument by which the
public is served."
In consonance with the principles enunciated above, Resolution
59, series of 1947, reducing the rentals by 20% of the original
price, which was also passed without public bidding, should
likewise be held void, since a reduction of the rental to be paid by
the lessee is a substantial alternation in the contract, making it a
distinct and different lease contract which requires the prescribed
formality of public bidding.
Rivera v. Municipality of Malolos (1957), supra.
Doctrine: Before a contract can be entered into by an LGU the
following must be present:
1. Funds have been appropriated
2. Amount necessary to cover expenditures is available.
If both requirements are not present, the contract it is void.
Also, the provincial auditor or his representative must check
deliveries made by a contractor pursuant to a contract lawfully
and validly entered into; and when there is no check up to show
that materials have been actually delivered, the Auditor General
is not duty bound to pass and allow in audit the sum claimed by
the contractor.
Rivera v. Maclang (1963)
Facts:

The municipality of Malolos called for bids for furnishing

and delivering materials to be used in the maintenance and repair

of barrio roads. Appellant won in the bidding and was asked by
the Municipal Treasurer to come to his office for execution of the
corresponding contract. The contract was signed by appellant and
by Carlo P. Maclang in his capacity as Municipal Mayor of
Malolos. Pursuant thereto appellant subsequently delivered to the
municipality gravel and adobe stones valued at P19,235.00. The
municipal council of Malolos passed a resolution approving the
contract, but in spite of repeated demands by appellant the price
of the materials was not paid.
In 1954 appellant sought the intervention of the Presidential
Complaint and Action Commission, which referred the matter to
the General Auditing Office. That office turned down the claim for
payment, whereupon appellant filed in this Court a petition for

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review. The Court sustained the action of the General Auditing

Office and held that the contract in question was void as far as
Malolos was concerned on the ground that no money had been
appropriated to meet the obligation prior to the execution of the
contract, as required by section 607, RAC. However, in the same
decision this Court indicated that section 608 of the same Code
afforded appellant a remedy. Consequently, he filed the present
action against defendant in his personal capacity pursuant to the
said provision.
The trial court dismissed the complaint since the contract had
been declared null and void by this Court, "it cannot produce any
legal effect for which thereafter no recovery can be made."
Issue:

WON the dismissal was proper

Held:

No

Ratio: Our ruling in the previous case is that the contract was null
and void visa-vis Malolos, by reason of non-compliance with the
requirement of section 607 RAC, which states that "except in the
case of a contract for supplies to be carried in stock, no contract
involving the expenditure by any province, municipality, chartered
city, or municipal district of two thousand pesos or more shall be
entered into or authorized until the treasurer of the political
division concerned shall have certified to the officer entering into
such contract that funds have been duly appropriated for such
purpose and that the amount necessary to cover the proposed
contract is available for expenditure on account thereof."
It should be noted that the present action is against defendant in
his personal capacity on the strength of section 608 of the same
code, which provides as follows:
SEC. 608. Void contract Liability of officer. A purported contract
entered into contrary to the requirements of the next preceding
section hereof shall be wholly void, and the officer assuming to
make such contract shall be liable to the Government or other
contracting party for any consequent damage to the same extent
as if the transaction had been wholly between private parties.
The position of defendant, as the officer who signed the contract
with appellant in violation of Sec 607, comes squarely under the
provision just quoted. His liability is personal, as it the
transaction had been entered into by him as a private party. We
take it that the intention of the law in this respect is to ensure
that public officers entering into transactions with private
individuals calling for the expenditure of public funds observe a
high degree of caution so that the government may not be the
victim of ill-advised or improvident action by those assuming to
represent it.
Liability on Torts (Quasi-Delict)
Palafox et., al v. Province of Ilocos Norte (1958)
Facts:

Sabas Torralba was employed as driver of Provincial

Govt of Ilocos Norte detailed to the Office of District Enginner.

While driving his truck in compliance with his duties, he ran over
Proceto Palafox killing him. Palafox was convicted of homicide
through reckless imprudence. Heirs bagan proceedings for
damages against provincial govt.

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Issue:

WON Provl Govt is liable

Held:

NO

Ratio:

To attach liability to the state, a declaration must be

made that Torralba was a special agent within the scope of Art
1903 par 5. But this principle applies only to the Insular Govt as
distinguished from provl or municipal govts.
The heirs of Palafox invoked the doctrine of respondeat superior,
that the master shall answer, as illustrated in Mendoza case
concerning liability of municipal corporations for negligent acts of
its employees. Mendoza held that if the negligent employee was
engaged in the performance of governmental duties as
distinguished from proprietary or business functions, the
government is not liable.
The construction or maintenance of roads in which the driver
worked at the time of the accident is admittedly governmental
activities. Hence, Govt is not liable.
Mendoza v. De leon (1916)
Facts: This is an action for damages against the individual
members of the municipal council of the municipality of Villasis,
Pangasinan, for the revocation of the lease of an exclusive ferry
privilege duly awarded to the plaintiff under the provisions of Act
No. 1643 of the Philippine Commission. After use of a little more
than one year, the plaintiff was forcibly ejected under and
pursuance of a resolution adopted by the defendants, awarding a
franchise for the same ferry to another person.
Issue:

WON the defendants are liable for damages

Held:

Yes

Ratio:

Municipalities of the Philippine Islands organized under

the Municipal Code have both governmental and corporate or

business functions. Of the first class are the adoption of regulation
against fire and disease, preservation of the public peace,
maintenance of municipal prisons, establishment of primary
schools and post-offices, etc. Of the latter class are the
establishment of municipal waterworks for the use of the
inhabitants, the construction and maintenance of municipal
slaughterhouses, markets, stables, bathing establishments,
wharves, ferries, and fisheries. Act No. 1643 provides that the use
of each fishery, fish-breeding ground, ferry, stable, market, and
slaughterhouse belonging to any municipality or township shall be
let to the highest bidder annually or for such longer period not
exceeding five years as may have been previously approved by the
provincial board of the province in which the municipality or
township is located.
The two fold character of the powers of a municipality under our
Municipal Code is so apparent and its private or corporate powers
so numerous and important that we find no difficulty in reaching
the conclusion that the general principles governing the liability of
such entities to applicable to it. The distinction between
governmental powers on the one hand, and corporate or

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proprietary or business powers on the other, as the latter class is

variously described in the reported cases, has been long
recognized in the United States and there is no dissent from the
doctrine.
The distinction is also recognized by Dillon in his work on
Municipal Corporations (5th ed.) section 38 and 39. As is
indicated in some of the above quoted cases, the municipality is
not liable for the acts of its officers or agents in the performance of
its governmental functions. Governmental affairs do not lose their
governmental character by being delegated to the municipal
governments. Nor of the municipality which, for convenience the
state allows the municipality to select, change their character. To
preserve the peace, protect the morals and health of the
community and so on to administer government, whether it be
done by the central government itself or is shifted to a local
organization. And the state being immune for injuries suffered by
private individuals in the administration of strictly governmental
functions, like immunity is enjoyed by the municipality in the
performance of the same duties, unless it is expressly made liable
by statute.
In Claussen vs. City of Luverne: It is elementary that neither the
state nor any of the subdivisions, like a municipality, through
which it operates, is liable for torts committed by public officers,
save in definitely excepted classes of cases. The exemption is based
upon the sovereign character of the state and its agencies, and
upon the absence of obligation, and not on the ground that no
means for remedy have been provided. "The government," said Mr.
Justice Story, "does not undertake to guarantee to any person the
fidelity of the officers or agents whom it employs, since that would
involve in all its operations in endless embarrassments, difficulties
and losses, which would be subversive of the public interest." This
general exemption has been applied to municipal corporations in
so far as the acts complained of were, in the language of the
memorandum of the trial court, "done in exercising powers for the
public at large as a governing agency." While so acting, the city
cannot be held liable for misfeasance; and ... the rule of respondeat
superior has no application.
Nor are officers or agents of the Government charged with the
performance of governmental duties which are in their nature
legislative, or quasi judicial, liable for the consequences of their
official acts, unless it be shown that they act willfully and
maliciously, and with the express purpose of inflicting injury upon
the plaintiff. If they exercise their honest judgment in the
performance of their duties, their errors cannot be charged against
them. So it may be said that in so far as its governmental
functions are concerned, a municipality is not liable at all, unless
expressly made so by statute; nor are its officers, so long as they
perform their duties honestly and in good faith. The most common
illustration of both phrases of this rule is the action for false
imprisonment so often brought either against a municipality or a
municipal police officer. So, in Field vs. City of Des Moines, it was
held that a municipality, acting under authority given it by the
central government to destroy houses in the path of a
conflagration, was not liable in damages in the absence of a
statute expressly making it so.
From what has already been said, it should be clear that a
municipality is not exempt from liability for the negligent

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performance of its corporate or proprietary or business functions.

In the administration of its patrimonial property, it is to be
regarded as a private corporation or individual so far as its
liability to third persons on contract or in tort is concerned. Its
contracts, validly entered into, may be enforced and damages may
be collected from it for the torts of its officers or agents within the
scope of their employment in precisely the same manner and to
the same extent as those of private corporations or individuals. As
to such matters the principles of respondeat superior applies. It is
for these purposes that the municipality is made liable to suits in
the courts.
Municipal corporations are subject to be sued upon contracts and
in tort. In a previous chapter we have considered at length the
authority of such corporations to make contracts, the mode of
exercising, and the effect of transcending the power. This leaves
but little to add in this place respecting their liability in actions ex
contractu. Upon an authorized contract that is, upon a contract
within the scope of the charter or legislative powers of the
corporation and duly made by the proper officers or agents they
are liable in the same manner and to the same extent as private
corporations or natural persons. (Dillon)
But questions such as these do not arise in the case at bar. Here is
it clear that the leasing of a municipal ferry to the highest bidder
for a specified period of time is not a governmental but a corporate
function. Such a lease, when validly entered into, constitutes a
contract with the lessee which the municipality is bound to
respect. The matter is thus summed up by Dillon on Municipal
Corporations:
Ordinances made by municipalities under charter or legislative
authority, containing grants to water and light companies and
other public service corporations of the right to use the streets for
pipes, mains, etc., upon the condition of the performance of service
by the grantee, are, after acceptance and performance by the
grantee, contracts protected by the prohibition of the Federal
Constitution against the enactment of any State law impairing the
obligation of contracts.
It seems clear, therefore, that under the provisions of Municipal
Code and Act No. 1634, above referred to, the plaintiff had a
vested right to the exclusive operation of the ferry in question for
the period of his lease. Were the municipality a party to this
action, it would be patent that a judgment for damages against it
for the rescission of the contract would be proper. This, be it said,
is the usual method of exacting damages, either ex contractu or ex
delicto arising from the exercise of corporate powers of
municipalities. But the present action is against the members of
the municipal council personally, and the question arises: Are they
liable? In administering the patrimonial property of
municipalities, the municipal council occupies, for most purposes,
the position of a board of directors of a private corporation. In
disposing of the local public utilities, if the term may be used, such
as the fishing and ferry rights, etc., they must exercise
considerable judgment. It required some considerable amount of
business acumen to compel performance on the part of lessees of
these privileges in accordance with the terms of their leases and
in a manner which will not cause the property to deteriorate.
Questions must continually arise which are not expressly provided
for in contracts and which must be settled, if possible, in a manner

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that will preserve the just claims of the municipality. Indeed, it is

not at all improbable that on occasion the councilors may have
reason to believe that a particular contract has been rescinded by
the other party or has never been legally entered into, in both of
which cases, decisive steps must be taken to safeguard the interest
of the municipality. Thus, in Municipality of Moncada vs.
Cajuigan, the lessee of a municipal fishery was evicted for failing
to pay his quarterly rents. The municipal authorities rightly held
that the contract was rescinded but forcibly evicted the lessee
instead of resorting to the courts. Hence, in an action by the
municipality against the lessee and his bondsmen to recover rent
arrears, damages were allowed the lessee on his counterclaim for
the loss caused by the forcible eviction. Nevertheless, we do not
think the councilors could have been held personally liable for
their error in resorting to forcible eviction of the lessee. Theirs was
an error of judgment, and honest mistake on their part as to the
rights of the municipality in the premises. We think the rule of
personal liability should be with municipal councilors in such
matters as it is with the directors or managers of an ordinary
private corporation.
Under the rule that directors are not liable for mistakes of
judgment, it follows naturally that they are not liable for the
mismanagement of the corporate affairs where such
mismanagement is a mistake of judgment. The wisdom of this rule
is not only approved by common experience but by law writers and
all courts. A rule so rigid as to hold directors personally liable for
honest mistakes in corporate management would deter all prudent
business men from accepting such positions. The remedy of
stockholders in all such cases is by a change in the directory. ...
The rule is that courts will not interfere even in the doubtful
cases. But directors and managing officers may be liable for
mismanagement to warrant the interposition of a court either as
against the contemplated action of the directors, or a majority of
the stockholders, or to give relief by way of damages after the
action as been taken; a case must be made out which plainly
shows that such action is so far opposed to the true interests of the
corporation itself as to lead to clear inference that no one thus
acting could have been influenced by any honest desire to secure
such interests, but that he must have acted with an intent to
subserve some outside purpose, regardless of the consequences to
the corporation, and in a manner inconsistent with its interests.
In the case at bar, there is not a scintilla of evidence that there
was any justifiable reason for forcibly evicting the plaintiff from
the ferry which he had leased. On the contrary, the defendant
councilors attempted to justify their action on the ground that the
ferry which he was operating was not the one leased to him; this,
in spite of the fact that the vice-president had personally placed
him in possession of it more than a year before, and the fact that
he had operated this ferry for over year, evidently with the
knowledge of the defendants. The evidence is so clear that the
ferry of which the plaintiff was dispossessed was the one which he
leased that no reasonable man would entertain any doubt
whatever upon the question. Hence, we cannot say that in
rescinding the contract with the plaintiff, thereby making the
municipality liable to an action for damages for no valid reason at
all, the defendant councilors were honestly acting for the interests
of the municipality. We are, therefore, of the opinion that the

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defendants are liable jointly and severally for the damages

sustained by the plaintiff from the rescission of his contract of
lease of the ferry privilege in question. In reaching this conclusion,
we have not failed to take into consideration the rule enunciated
in Dennison vs. The Moro Province, nor the distinction made by
the courts in the United States between the liability of a
municipal corporation, made such acceptance of a village or city
charter, and the involuntary quasi corporations known as
counties, towns, school districts, and especially the townships of
New England. Upon the question of the amount of damages
sustained, we accept the findings of the lower court.
Municipality of San Fernando v. Firme (1991), supra.
Ratio:

The doctrine of non-suability of the State is expressly

provided for in Article XVI, Section 3 of the Consti, to wit: "the

State may not be sued without its consent." Express consent may
be embodied in a general law or a special law. The standing
consent of the State to be sued in case of money claims involving
liability arising from contracts is found in Act No. 3083. A special
law may be passed to enable a person to sue the government for an
alleged quasi-delict. Consent is implied when the government
enters into business contracts, thereby descending to the level of
the other contracting party, and also when the State files a
complaint, thus opening itself to a counterclaim.
Municipal corporations are agencies of the State when they are
engaged in governmental functions and therefore should enjoy the
sovereign immunity from suit. Nevertheless, they are subject to
suit even in the performance of such functions because their
charter provided that they can sue and be sued.
A distinction should first be made between suability and liability.
"Suability depends on the consent of the state to be sued, liability
on the applicable law and the established facts. The circumstance
that a state is suable does not necessarily mean that it is liable; on
the other hand, it can never be held liable if it does not first
consent to be sued. Liability is not conceded by the mere fact that
the state has allowed itself to be sued. When the state does waive
its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable."
Anent the issue of whether or not the municipality is liable for the
torts committed by its employee, the test of liability of the
municipality depends on whether or not the driver, acting in
behalf of the municipality, is performing governmental or
proprietary functions (Torio vs. Fontanilla). According to City of
Kokomo vs Loy(Indiana SC), municipal corporations exist in a
dual capacity, and their functions are twofold. In one they exercise
the right springing from sovereignty, and while in the
performance of the duties pertaining thereto, their acts are
political and governmental. Their officers and agents in such
capacity, though elected or appointed by them, are nevertheless
public functionaries performing a public service, and as such they
are officers, agents, and servants of the state. In the other capacity
the municipalities exercise a private, proprietary or corporate
right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of
such functions act in behalf of the municipalities in their
corporate or individual capacity, and not for the state or sovereign
power."

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It has already been remarked that municipal corporations are

suable because their charters grant them the competence to sue
and be sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental functions
and can be held answerable only if it can be shown that they were
acting in a proprietary capacity.
In the case at bar, the driver of the dump truck of the municipality
insists that "he was on his way to the Naguilian river to get a load
of sand and gravel for the repair of San Fernando's municipal
streets." In the absence of any evidence to the contrary, the
regularity of the performance of official duty is presumed
pursuant to Section 3(m) of Rule 131 of the Revised Rules of
Court. Hence, We rule that the driver of the dump truck was
performing duties or tasks pertaining to his office.We already
stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte,
the District Engineer, and the Provincial Treasurer that "the
construction or maintenance of roads in which the truck and the
driver worked at the time of the accident are admittedly
governmental activities."
After a careful examination of existing laws and jurisprudence, We
arrive at the conclusion that the municipality cannot be held
liable for the torts committed by its regular employee, who was
then engaged in the discharge of governmental functions. Hence,
the death of the passenger tragic and deplorable though it may be
imposed on the municipality no duty to pay monetary
compensation.
Fernando v. CA and City of Davao (1992)
Facts:

Bibiano Morta, market master of the Agdao Public

Market filed a requisition request with the Chief of Property of the

City Treasurer's Office for the re-emptying of the septic tank in
Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito
Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suer, Jr.
Bascon won the bid. Bascon was notified and he signed the
purchase order. However, before such date, bidder Bertulano with
four other companions namely Joselito Garcia, William Liagoso,
Alberto Fernando and Jose Fajardo, Jr. were found dead inside the
septic tank. The City Engineer's office investigated the case and
learned that the five victims entered the septic tank without
clearance from it nor with the knowledge and consent of the
market master. In fact, the septic tank was found to be almost
empty and the victims were presumed to be the ones who did the
re-emptying.
The heirs of the deceased filed an action against the City of Davao.
The trial court dismissed the case. The IAC reversed and ordered
the City to pay compensatory and moral damages. However, upon
MR, the IAC reversed and dismissed the case.
Issue:

WON the City of Davao is guilty of negligence

Held:

No

Ratio:

Negligence has been defined as the failure to observe for

the protection of the interests of another person that degree of

care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. Under the law,
a person who by his omission causes damage to another, there

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being negligence, is obliged to pay for the damage done. As to what

would constitute a negligent act in a given situation, the case of
Picart v. Smith provides: The test by which to determine the
existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is
guilty of negligence. The question as to what would constitute the
conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of
the facts involved in the particular case. Reasonable foresight of
harm, followed by the ignoring of the suggestion born of this
provision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was
sufficiently probable warrant his foregoing the conduct or guarding
against its consequences.
To be entitled to damages for an injury resulting from the
negligence of another, a claimant must establish the relation
between the omission and the damage. He must prove under
Article 2179 of the New Civil Code that the defendant's negligence
was the immediate and proximate cause of his injury. Proximate
cause has been defined as that cause, which, in natural and
continuous sequence unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have
occurred. Proof of such relation of cause and effect is not an
arduous one if the claimant did not in any way contribute to the
negligence of the defendant. However, where the resulting injury
was the product of the negligence of both parties, there exists a
difficulty to discern which acts shall be considered the proximate
cause of the accident. In Taylor v. Manila Electric Railroad and
Light Co, this Court set a guideline for a judicious assessment of
the situation: Difficulty seems to be apprehended in deciding
which acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event
itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt.
Petitioners fault the city of Davao for failing to clean a septic tank
for the period of 19 years resulting in an accumulation of hydrogen
sulfide gas which killed the laborers. They contend that such
failure was compounded by the fact that there was no warning
sign of the existing danger and no efforts exerted by the public
respondent to neutralize or render harmless the effects of the toxic
gas. They submit that the public respondent's gross negligence
was the proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true that the
public respondent has been remiss in its duty to re-empty the
septic tank annually, such negligence was not a continuing one.
Upon learning from the report of the market master about the
need to clean the septic tank of the public toilet in Agdao Public
Market, the public respondent immediately responded by issuing
invitations to bid for such service. Thereafter, it awarded the bid
to the lowest bidder, Bascon. The city, therefore, lost no time in

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(Guanzon)

taking up remedial measures to meet the situation. It is likewise

an undisputed fact that despite the public respondent's failure to
re-empty the septic tank since 1956, people in the market have
been using the public toilet for their personal necessities but have
remained unscathed.
Petitioners made a lot of fuss over the lack of any ventilation pipe
in the toilet to emphasize the negligence of the city government
and presented witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses were not expert
witnesses. On the other hand, Engineer Demetrio Alindada of the
city government testified and demonstrated by drawings how the
safety requirements like emission of gases in the construction of
both toilet and septic tank have been complied with. He stated
that the ventilation pipe need not be constructed outside the
building as it could also be embodied in the hollow blocks as is
usually done in residential buildings. The petitioners submitted no
competent evidence to corroborate their oral testimonies or rebut
the testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission that
warning signs of noxious gas should have been put up in the toilet
in addition to the signs of "MEN" and "WOMEN" already in place
in that area. Toilets and septic tanks are not nuisances per se as
defined in Article 694 of the New Civil Code which would
necessitate warning signs for the protection of the public. While
the construction of these public facilities demands utmost
compliance with safety and sanitary requirements, the putting up
of warning signs is not one of those requirements.
In view of this factual milieu, it would appear that an accident
such as toxic gas leakage from the septic tank is unlikely to
happen unless one removes its covers. The accident in the case at
bar occurred because the victims on their own and without
authority from the public respondent opened the septic tank.
Considering the nature of the task of emptying a septic tank
especially one which has not been cleaned for years, an ordinarily
prudent person should undoubtedly be aware of the attendant
risks. The victims are no exception; more so with Mr. Bertulano,
an old hand in this kind of service, who is presumed to know the
hazards of the job. His failure, therefore, and that of his men to
take precautionary measures for their safety was the proximate
cause of the accident. In Culion Ice, Fish and Elect. Co., v. Phil.
Motors Corporation, We held that when a person holds himself out
as being competent to do things requiring professional skill, he
will be held liable for negligence if he fails to exhibit the care and
skill of one ordinarily skilled in the particular work which he
attempts to do. The fatal accident in this case would not have
happened but for the victims' negligence.
Petitioners further contend that the failure of the market master
to supervise the area where the septic tank is located is a
reflection of the negligence of the public respondent. We do not
think so. The market master knew that work on the septic tank
was still forthcoming. It must be remembered that the bidding
had just been conducted. Although the winning bidder was
already known, the award to him was still to be made by the
Committee on Awards. Upon the other hand, the accident which
befell the victims who are not in any way connected with the
winning bidder happened before the award could be given.
Considering that the case was yet no award to commence work on

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08-09:

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the septic tank, the duty of the market master or his security
guards to supervise the work could not have started. Also, the
victims could not have been seen working in the area because the
septic tank was hidden by a garbage storage which is more or less
ten (10) meters away from the comfort room itself. The
surreptitious way in which the victims did their job without
clearance from the market master or any of the security guards
goes against their good faith. Even their relatives or family
members did not know of their plan to clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of
the New Civil Code cannot be sustained. We approve of the
appellate court's ruling that "(w)hile one of the victims was invited
to bid for said project, he did not win the bid, therefore, there is a
total absence of contractual relations between the victims and the
City Government of Davao City that could give rise to any
contractual obligation, much less, any liability on the part of
Davao City." The accident was indeed tragic and We empathize
with the petitioners. However, the herein circumstances lead Us to
no other conclusion than that the proximate and immediate cause
of the death of the victims was due to their own negligence.
Consequently, the petitioners cannot demand damages from the
public respondent.
Tuzon and Mapagu v. CA and Jurado (1992), supra.
Ratio:

The private respondent anchors his claim for damages

on Article 27 CC (Refusal to Render Service). It has been

remarked that one purpose of this article is to end the "bribery
system, where the public official, for some flimsy excuse, delays or
refuses the performance of his duty until he gets some kind of
pabagsak." Official inaction may also be due to plain indolence or a
cynical indifference to the responsibilities of public service. The
provision presupposes that the refusal or omission of a public
official to perform his official duty is attributable to malice or
inexcusable negligence. In any event, the erring public functionary
is justly punishable under this article for whatever loss or damage
the complainant has sustained.
In the present case, it has not even been alleged that the Mayor
Tuzon's refusal to act on the private respondent's application was
an attempt to compel him to resort to bribery to obtain approval of
his application. It cannot be said either that the mayor and the
municipal treasurer were motivated by personal spite or were
grossly negligent in refusing to issue the permit and license to
Jurado.
It is no less significant that no evidence has been offered to show
that the petitioners singled out the private respondent for
persecution. Neither does it appear that the petitioners stood to
gain personally from refusing to issue to Jurado the mayor's
permit and license he needed. The petitioners were not Jurado's
business competitors nor has it been established that they
intended to favor his competitors. On the contrary, the record
discloses that the resolution was uniformly applied to all the
threshers in the municipality without discrimination or
preference.
The Court is convinced that the petitioners acted within the scope
of their authority and in consonance with their honest
interpretation of the resolution in question. We agree that it was
not for them to rule on its validity. In the absence of a judicial

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(Guanzon)

decision declaring it invalid, its legality would have to be

presumed (in fact, both the trial court and the appellate court said
there was nothing wrong with it). As executive officials of the
municipality, they had the duty to enforce it as long as it had not
been repealed by the Sangguniang Bayan or annulled by the
courts.
The private respondent complains that as a result of the
petitioners' acts, he was prevented from operating his business all
this time and earning substantial profit therefrom, as he had in
previous years. But as the petitioners correctly observed, he could
have taken the prudent course of signing the agreement under
protest and later challenging it in court to relieve him of the
obligation to "donate." Pendente lite, he could have continued to
operate his threshing business and thus avoided the lucro cesante
that he now says was the consequence of the petitioners' wrongful
act. He could have opted for the less obstinate but still dissentient
action, without loss of face, or principle, or profit.
Torio v. Fontanilla (1978)
Facts:

The Municipal Council of Malasiqui, Pangasinan, passed

Resolution No. 159 whereby "it resolved to manage the 1959

Malasiqui town fiesta celebration on January 21, 22, and 23,
1959." Resolution No. 182 was also passed creating the "1959
Malasiqui 'Town Fiesta Executive Committee" which in turn
organized a sub-committee on entertainment and stage, with Jose
Macaraeg as Chairman. the council appropriated the amount of
P100 for the construction of 2 stages, one for the "zarzuela" and
another for the cancionan Jose Macaraeg supervised the
construction of the stage.
During the zarzuela, the stage collapsed and Vicente Fontanilla
who was at the rear of the stage was pinned underneath.
Fontanilia was taken to tile San Carlos General Hospital where he
died in the afternoon of the following day. The heirs of Vicente
Fontanilia filed a complaint to recover damages. Named partydefendants were the Municipality of Malasiqui, the Municipal
Council of Malasiqui and all the individual members of the
Municipal Council in 1959. Their defense was that the holding of a
town fiesta was an exercise of governmental functions. The
councilors contended that they were merely acting as agents of the
municipality.
The judge ruled that the defendants exercised due diligence in the
construction of the stage. Also, the collapse of the stage was due to
force majeure. Hence, the complaint was dismissed. The CA
reversed and ordered the defendants to pay moral and actual
damages.
Issue:

WON celebration of a town fiesta an undertaking in the

excercise of a municipality's governmental or public function or is

it or a private or proprietary character
Held:
Ratio:

Governmental
Under Philippine laws municipalities are political

bodies corporate and as such are endowed with the faculties of

municipal corporations to be exercised by and through their
respective municipal governments in conformity with law, and in
their proper corporate name, they may inter alia sue and be sued,

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08-09:

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and contract and be contracted with. The powers of a municipality

are twofold in character public, governmental or political on the
one hand, and corporate, private, or proprietary on the other.
Governmental powers are those exercised by the corporation in
administering the powers of the state and promoting the public
welfare and they include the legislative, judicial public, and
political Municipal powers on the other hand are exercised for the
special benefit and advantage of the community and include those
which are ministerial private and corporate.
In Mendoza v. de Leon 1916, the Supreme Court, relying mainly
on American Jurisprudence classified certain activities of the
municipality as governmental, e.g.: regulations against fire,
disease, preservation of public peace, maintenance of municipal
prisons, establishment of schools, post-offices, etc. while the
following are corporate or proprietary in character, viz: municipal
waterwork, slaughter houses, markets, stables, bathing
establishments, wharves, ferries, and fisheries. Maintenance of
parks, golf courses, cemeteries and airports among others, are also
recognized as municipal or city activities of a proprietary
character.
If the injury is caused in the course of the performance of a
governmental function or duty no recovery, as a rule, can be. had
from the municipality unless there is an existing statute on the
matter, 10 nor from its officers, so long as they performed their
duties honestly and in good faith or that they did not act wantonly
and maliciously. With respect to proprietary functions, the settled
rule is that a municipal corporation can be held liable to third
persons ex contract or ex delicto.
The holding of the town fiesta in 1959 by the municipality of
Malsiqui Pangasinan was an exercise of a private or proprietary
function of the municipality.
Section 2282 of the Chatter on Municipal Law of the Revised
Administrative Code simply gives authority to the municipality to
accelebrate a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in
essence an act for the special benefit of the community and not for
the general welfare of the public performed in pursuance of a
policy of the state. The mere fact that the celebration, as claimed
was not to secure profit or gain but merely to provide
entertainment to the town inhabitants is not a conclusive test. For
instance, the maintenance of parks is not a source of income for
the nonetheless it is private undertaking as distinguished from
the maintenance of public schools, jails, and the like which are for
public service.
There can be no hard and fast rule for purposes of determining the
true nature of an undertaking or function of a municipality; the
circumstances of a particular case are to be considered and will be
decisive. The basic element, however beneficial to the public the
undertaking may be, is that it is governmental in essence,
otherwise, the function becomes private or proprietary in
character. Easily, no governmental or public policy of the state is
involved in the celebration of a town fiesta.
Issue:

WON petitioners are liable

Held:

Yes

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Ratio:

Government

(Guanzon)

S . Y.

It follows that under the doctrine of respondent superior,

the municipality is to be held liable for damages for the death of

Fontanilia if that was attributable to the negligence of the
municipality's officers, employees, or agents. On this point, the
Court of Appeals found and held that there was negligence. It
appeared that the front portion of the stage was not supported by
any braces. The CA also found that the stage was not strong
enough considering that only P100 was appropriate for the
construction of two stages and while the floor of the "zarzuela"
stage was of wooden planks, the Post and braces used were of
bamboo material We likewise observe that although the stage was
described by the Petitioners as being supported by "" posts,
nevertheless there were only 4 in front, 4 at the rear, and 5 on
each side. Where were the rest?
The "Midas Extravaganza" which was to be performed during the
town fiesta was a "donation" offered by an association of Malasiqui
employees of the Manila Railroad Co. in Caloocan, and that when
the Municipality of Malasiqui accepted the donation of services
and constructed precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect that the
Municipality through its "Committee on entertainment and stage"
would build or put up a stage or platform strong enough to sustain
the weight or burden of the performance and take the necessary
measures to insure the personal safety of the participants.
Lastly, petitioner or appellant Municipality cannot evade ability
and/or liability under the c that it was Jose Macaraeg who
constructed the stage. The municipality acting through its
municipal council appointed Macaraeg as chairman of the subcommittee on entertainment and in charge of the construction of
the "zarzuela" stage. Macaraeg acted merely as an agent of the
Municipality. Under the doctrine of respondent superior
mentioned earlier, petitioner is responsible or liable for the
negligence of its agent acting within his assigned tasks.
Issue:

WON

the

municipal

councilors

who

enacted

the

ordinance were liable

Held:

No

Ratio:

We agree with petitioners that the Court of Appeals

erred in applying Article 27 of the Civil Code against the for this
particular article covers a case of nonfeasance or non-performance
by a public officer of his official duty; it does not apply to a case of
negligence or misfeasance in carrying out an official duty.
The Court of Appeals in its decision now under review held that
the celebration of a town fiesta by the Municipality of Malasiqui
was not a governmental function. We upheld that ruling. The legal
consequence thereof is that the Municipality stands on the same
footing as an ordinary private corporation with the municipal
council acting as its board of directors. It is an elementary
principle that a corporation has a personality, separate and
distinct from its officers, directors, or persons composing it 26 and
the latter are not as a rule co-responsible in an action for damages
for tort or negligence culpa aquilla committed by the corporation's
employees or agents unless there is a showing of bad faith or gross
or wanton negligence on their part.

08-09:

2nd

Sem.

The ordinary doctrine is that a director, merely by reason of his

office, is not personally Stable for the torts of his corporation; he
Must be shown to have personally voted for or otherwise
participated in them Officers of a corporation 'are not held liable
for the negligence of the corporation merely because of their
official relation to it, but because of some wrongful or negligent act
by such officer amounting to a breach of duty which resulted in an
injury ... To make an officer of a corporation liable for the
negligence of the corporation there must have been upon his part
such a breach of duty as contributed to, or helped to bring about,
the injury; that is to say, he must be a participant in the wrongful
act.
Directors who merely employ one to give a fireworks Ambition on
the corporate are not personally liable for the negligent acts of the
exhibitor. On these people We absolve Use municipal councilors
from any liability for the death of Vicente Fontanilla. The records
do not show that said petitioners directly participated in the
defective construction of the "zarzuela" stage or that they
personally permitted spectators to go up the platform.
Liability by Express Provision of Law and contracts
City of Manila v. Teotico (1968)
Facts:

Genaro N. Teotico was at the corner of a "loading and

unloading" zone, waiting for a jeepney to take him down town.

After waiting for about five minutes, he managed to hail a jeepney
that came along to a stop. As he stepped down from the curb to
board the jeepney, and took a few steps, he fell inside an
uncovered and unlighted catch basin or manhole on P. Burgos
Avenue. Due to the fall, his head hit the rim of the manhole
breaking his eyeglasses and causing broken pieces thereof to
pierce his left eyelid. As blood flowed therefrom, impairing his
vision, several persons came to his assistance and pulled him out
of the manhole. One of them brought Teotico to the PGH. In
addition to the lacerated wound in his left upper eyelid, Teotico
suffered contusions on the left thigh, the left upper arm, the right
leg and the upper lip apart from an abrasion on the right infrapatella region.
Teotico filed a complaint for damages against the City of Manila,
its mayor, city engineer, city health officer, city treasurer and chief
of police. The trial court dismissed the complaitn. The CA
affirmed, except insofar as the City of Manila is concerned, which
was sentenced to pay damages in the aggregate sum of P6,750.00.
Issue:

Should RA 409 prevail over Art 2189 of the CC

Held:

No

Ratio:

RA 409: The city shall not be liable or held for damages

or injuries to persons or property arising from the failure of the

Mayor, the Municipal Board, or any other city officer, to enforce
the provisions of this chapter, or any other law or ordinance, or
from negligence of said Mayor, Municipal Board, or other officers
while enforcing or attempting to enforce said provisions.
Art 2189 CC: Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by, any person by
reason of defective conditions of road, streets, bridges, public

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(Guanzon)

buildings, and other public works under their control or

supervision.
It is true that, insofar as its territorial application is concerned,
Republic Act No. 409 is a special law and the Civil Code a general
legislation; but, as regards the subject-matter of the provisions
above quoted, Section 4 of Republic Act 409 establishes a general
rule regulating the liability of the City of Manila for: "damages or
injury to persons or property arising from the failure of" city
officers "to enforce the provisions of" said Act "or any other law or
ordinance, or from negligence" of the city "Mayor, Municipal
Board, or other officers while enforcing or attempting to enforce
said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces,
cities and municipalities . . . liable for damages for the death of, or
injury suffered by any person by reason "specifically" of the
defective condition of roads, streets, bridges, public buildings, and
other-public works under their control or supervision." In other
words, said section 4 refers to liability arising from negligence, in
general, regardless of the object thereof, whereas Article 2189
governs liability due to "defective streets," in particular. Since the
present action is based upon the alleged defective condition of a
road, said Article 2189 is decisive thereon.
It is urged that the City of Manila cannot be held liable to Teotico
for damages: 1) because the accident involving him took place in a
national highway; and 2) because the City of Manila has not been
negligent in connection therewith.
As regards the first issue, we note that it is based upon an
allegation of fact not made in the answer of the City. Moreover,
Teotico alleged in his complaint, as well as in his amended
complaint, that his injuries were due to the defective condition of a
street which is "under the supervision and control" of the City. In
its answer to the amended complaint, the City, in turn, alleged
that "the streets aforementioned were and have been constantly
kept in good condition and regularly inspected and the storm
drains and manholes thereof covered by the defendant City and the
officers concerned" who "have been ever vigilant and zealous in the
performance of their respective functions and duties as imposed
upon them by law." Thus, the City had, in effect, admitted that P.
Burgos Avenue was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national
highway was made, for the first time, in its motion for
reconsideration of the decision of the Court of Appeals. Such
assertion raised, therefore, a question of fact, which had not been
put in issue in the trial court, and cannot be set up, for the first
time, on appeal, much less after the rendition of the decision of the
appellate court, in a motion for the reconsideration thereof.
At any rate, under Article 2189 of the Civil Code, it is not
necessary for the liability therein established to attach that the
defective roads or streets belong to the province, city or
municipality from which responsibility is exacted. What said
article requires is that the province, city or municipality have
either "control or supervision" over said street or road. Even if P.
Burgos Avenue were, therefore, a national highway, this
circumstance would not necessarily detract from its "control or
supervision" by the City of Manila, under Republic Act 409.
This authority has been neither withdrawn nor restricted by
Republic Act No. 917 and Executive Order No. 113, dated May 2,

S . Y.

08-09:

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Sem.

1955, upon which the City relies. Said Act governs the disposition
or appropriation of the highway funds and the giving of aid to
provinces, chartered cities and municipalities in the construction
of roads and streets within their respective boundaries, and
Executive Order No. 113 merely implements the provisions of said
Republic Act No. 917, concerning the disposition and
appropriation of the highway funds. Moreover, it provides that
"the construction, maintenance and improvement of national
primary, national secondary and national aid provincial and city
roads shall be accomplished by the Highway District Engineers
and Highway City Engineers under the supervision of the
Commissioner of Public Highways and shall be financed from such
appropriations as may be authorized by the Republic of the
Philippines in annual or special appropriation Acts."
Then, again, the determination of whether or not P. Burgos
Avenue is under the control or supervision of the City of Manila
and whether the latter is guilty of negligence, in connection with
the maintenance of said road, which were decided by the Court of
Appeals in the affirmative, is one of fact, and the findings of said
Court thereon are not subject to our review.
Abella v. Municipality of Naga (1952)
Facts: This is an appeal from a judgment of the Court of First
Instance of Camarines Sur sentencing the municipality of Naga,
now Naga City, to pay the plaintiff, now appellee, P300 damages
resulting from the closing of a municipal street.
The complaint alleged two causes of action and the parties
submitted in the court below an agreed statement of facts on both.
As the second cause of action was dismissed and the plaintiff did
not appeal, and as the stipulated facts are long and somewhat
involved in many or most of them have become irrelevant to the
issues formulated in this appeal, it will suffice to state for the
purpose of these issues, that the defendant municipality by
resolution ordered the closing of that part of a municipal street
which ran between the public market and the plaintiff's property,
and used the closed thoroughfare to expand the market. "As a
consequence of this resolution, and immediately after the passage
of the same, says the agreement permanent, semi-permanent, as
well as temporary constructions were allowed by the defendant
municipality of Naga along the sidewalk of Plaintiff's property and
abutting to said property, facing P. Prieto Street, and extending
out in the middle of the same street, hence depriving the plaintiff's
property of access to said street, and consequently retarding her
reconstructions. "It was further stipulated "that if all the damages
is to be awarded the plaintiff, the same should not exceed the sum
of Three hundred pesos (P300)."
The appellant is the municipality of or city of Naga and the
burden of its contention is that "it acted and exercised its police
power" "prompted to preserve the peace and good order of the
community and promote the general welfare;" and this being the
case, it believes that it is not liable for damages.
Held: The appellant misses the point. The municipality or city of
Naga was not charged with any unlawful act, or with acting
without authority, or with invasion of plaintiff's property rights;
the basis of the lower court's decision in Section 2246 of the
Revised Administrative Code copied in appellant's brief, which

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(Guanzon)

provides that no municipal road, street, etc. or any part thereof

"shall be closed without indemnifying any person prejudiced
thereby."
The question then for determination by the court below was
reduced to whether the plaintiff was prejudiced by defendant
municipality's action. That she was economically damaged, the
stipulation of facts admits; and that the indemnity assessed is
within the bounds of the damages suffered, there is no dispute. As
a matter of fact, the damages awarded seem to be nominal judged
by the description of the plaintiff's interests adversely affected by
the conversion of P. Prieto Street into a market.
Satisfying/Executing Judgment Against Municipal Corporations
Tan Toco v. Municipal Council of Iloilo (1927)
Facts:

The widow of Tan Toco sued the municipal council of

Iloilo for the amount of P42,966.40, being the purchase price of

two strips of land, one on Calle J. M. Basa consisting of 592 sq. m.,
and the other on Calle Aldiguer consisting of 59 sq. m., which the
municipality of Iloilo had appropriated for widening said street.
The CFI Iloilo sentenced the said municipality to pay the Tantoco
the amount so claimed, plus the interest. Said judgment was
appealed, and was affirmed by the Supreme Court.
On account of lack of funds the municipality of Iloilo was unable to
pay the said judgment, wherefore plaintiff had a writ of execution
issue against the property of the said municipality, by virtue of
which the sheriff attached two auto trucks used for street
sprinkling, one police patrol automobile, the police stations on
Mabini street, and in Molo and Mandurriao and the concrete
structures, with the corresponding lots, used as markets by Iloilo,
Molo, and Mandurriao. After notice of the sale of said property
had been made, and a few days before the sale, the provincial
fiscal of Iloilo filed a motion with the CFI praying that the
attachment on the said property be dissolved, that the said
attachment be declared null and void as being illegal and violative
of the rights of the municipality. By order of 12 August 1925, the
Court declared the attachment levied upon the aforementioned
property of the municipality null and void, thereby dissolving the
said attachment. From this order Tantoco has appealed by bill of
exceptions.
Held/Ratio: The Supreme Court affirmed the judgment appealed
from with costs against Tantoco.
Municipalities capacity to sue and to be sued; Capacity to
acquire property
The municipal law, section 2165 of the Administrative Code,
provides that "Municipalities are political bodies corporate, and as
such are endowed with the faculties of municipal corporations, to
be exercised by and through their respective municipal
government in conformity with law. It shall be competent for
them, in their proper corporate name, to sue and be sued, to
contract and be contracted with, to acquire and hold real and
personal property for municipal purposes, and generally to
exercise the powers hereinafter specified or otherwise conferred
upon them by law." The Administrative Code does not specify the
kind of property that a municipality may acquire.
Property of provinces and municipalities
Article 343 of the Civil Code divides the property of provinces and

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08-09:

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(municipalities) into property for public use and patrimonial

property. According to article 344 of the Code, provincial roads
and foot-path, squares, streets, fountains, and public waters,
drives and public improvements of general benefit built at the
expense of the said towns or provinces, are property for public use.
All other property possessed by the said towns and provinces is
patrimonial and shall be subject to the provision of the Civil Code
except as provided by special laws.
Distinction according to Manresa; of little practical
importance in view of different principles under American
Rule
Commenting upon article 344, Manresa says that "In accordance
with administrative legislation" (Spanish) we must distinguish, as
to the patrimonial property of the towns, "between that of common
benefit and that which is private property of the town. The first
differs from property for public use in that generally its enjoyment
is less, as it is limited to neighbors or to a group or class thereof;
and furthermore, such use, more or less general, is not intrinsic
with this kind of property, for by its very nature it may be enjoyed
as though it were private property. The third group, that is,
private property, is used in the name of the town or province by
the entities representing it and, like any private property, giving a
source of revenue." Such distinction, however, is of little practical
importance in this jurisdiction in view of the different principles
underlying the functions of a municipality under the American
rule.
Property of public domain applies to municipal property
for public use; both not within the commerce of man
The principle governing property of the public domain of the State
is applicable to property for public use of the municipalities as
said municipal property is similar in character. The principle is
that the property for public use of the State is not within the
commerce of man and, consequently, is unalienable and not
subject to prescription. Likewise, property for public use of the
municipality is not within the commerce of man so long as it is
used by the public and, consequently, said property is also
inalienable.
US Law and Jurisprudence: Municipal properties for
public use, but not properties for quasi-private purposes,
exempted from attachment and execution
As expounded by McQuillin in Municipal Corporations (Vol. 3,
par.1160): State statutes often provide that court houses, jails
other buildings owned by municipalities and the lots on which
they stand shall be exempt from attachment and execution. But
independent of express statutory exemption, as a general
proposition, property, real and personal, held by municipal
corporations, in trust for the benefit of their inhabitants, and used
for public purposes, is exempt. Public buildings, school houses,
streets, squares, parks, wharves, engines and engine houses, and
the like, are not subject to execution. So city waterworks, and a
stock of liquors carried in a town dispensary, are exempt. The
reason for the exemption is obvious. Municipal corporations are
created for public purposes and for the good of the citizens in their
aggregate or public capacity. That they may properly discharge
such public functions corporate property and revenues are
essential, and to deny them these means the very purpose of their
creation would be materially impeded, and in some instances

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practically destroy it. There is something very repugnant to the

moral sense in the idea that a municipal corporation should
contract debts, and that having no resources but the taxes which
are due to it these should not be subjected by legal process to the
satisfaction of its creditors. This consideration, deduced from the
principles of moral equity has only given way to the more enlarged
contemplation of the great and paramount interests of public
order and the principles of government. Thus, tt is generally held
that property owned by a municipality, where not used for a public
purpose but for quasi private purposes, is subject to execution on a
judgment against the municipality, and may be sold. This rule
applies to shares of stock owned by a municipal corporation and
the like. But the mere fact that corporate property held for public
uses is being temporarily used for private purposes does not make
it subject to execution.
As stated in Corpus Juris (Vol. 23, p. 355), the rule is that
property held for public uses, such as public buildings, streets,
squares, parks, promenades, wharves landing places, fire engines,
hose and hose carriages. engine houses, public markets, hospitals,
cemeteries, and generally everything held for governmental
purposes, is not subject to levy and sale under execution against
such corporation. The rule also applies to funds in the hands of a
public officer. Likewise it has been held that taxes due to a
municipal corporation or county cannot be seized under execution
by a creditor of such corporation. But where a municipal
corporation or county owns in its proprietary, as distinguished
from its public or governmental capacity, property not useful or
used for a public purpose but for quasi private purposes, the
general rule is that such property may be seized and sold under
execution against the corporation, precisely as similar property of
individuals is seized and sold. But property held for public
purposes is not subject to execution merely because it is
temporarily used for private purposes, although if the public use is
wholly abandoned it becomes subject to execution. Whether or not
property held as public property is necessary for the public use is
a political, rather than a judicial question. Where property of a
municipal or other public corporation is sought to be subjected to
execution to satisfy judgments recovered against such corporation,
the question as to whether such property is leviable or not is to be
determined by the usage and purposes for which it is held."
US Law and Jurisprudence: Insurance money derived from
destroyed municipal property exempt from execution
likewise exempted
If municipal property exempt from execution is destroyed, the
insurance money stands in lieu thereof and is also exempt
(McQuillin).
US Law and Jurisprudence: Members or inhabitants not
personally liable for debts of the municipality
The members or inhabitants of a municipal corporation proper are
not personally liable for the debts of the municipality, except that
in the New England States the individual liability of the
inhabitant is generally maintained (McQuillin).
US Jurisprudence: Wharf a property for public use and not
subject to attachment
In City of New Orleans vs. Louisiana Construction Co., Ltd. (140
U. S., 654; 35 Law. ed., 556), it was held that a wharf for
unloading sugar and molasses, open to the public, was property

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for the public use of the City of New Orleans and was not subject
to attachment for the payment of the debts of the said city. In
Klein vs. City of New Orleans (98 U S., 149; 25 Law. ed., 430), it
was held that a public wharf on the banks of the Mississippi River
was public property and not subject to execution for the payment
of a debt of the City of New Orleans where said wharf was located.
It was held that land was public property as necessary as a public
street and was not subject to execution on account of the debts of
the city. It was further held that the fees collected were also
exempt from execution because they were a part of the income of
the city.
Tufexis v. Olaguera; Special concession of the right to
usufruct in a public market cannot be attached like any
ordinary right
It was held in Tufexis v. Olaguera, where the public market had
been levied upon by virtue of the execution arising from the debt
of the municipality of Guinobatan, that even though a creditor is
unquestionably entitled to recover out of his debtor's property, yet
when among such property there is included the special right
granted by the Government of usufruct in a building intended for
a public service, and when this privilege is closely related to a
service of a public character, such right of the creditor to the
collection of a debt owed him by the debtor who enjoys the said
special privilege of usufruct in a public market is not absolute and
may be exercised only through the action of a court of justice with
respect to the profits or revenue obtained under the special right
of usufruct enjoyed by debtor. The special concession of the right
to usufruct in a public market cannot be attached like any
ordinary right, because that would be to permit a person who has
contracted with the state or with the administrative officials
thereof to conduct and manage a service of a public character, to
be substituted, without the knowledge and consent of the
administrative authorities, by one who took no part in the
contract, thus giving rise to the possibility of the regular course of
a public service being disturbed by the more or less legal action of
a grantee, to the prejudice of the state and the public interests.
The privilege or franchise granted to a private person to enjoy the
usufruct of a public market cannot lawfully be attached and sold,
and a creditor of such person can recover his debt only out of the
income or revenue obtained by the debtor from the enjoyment or
usufruct of the said privilege, in the same manner that the rights
of the creditors of a railroad company can be exercised and their
creditors collected only out of the gross receipts remaining after
deduction has been made therefrom of the operating expenses of
the road.
Character of property for public use basis why property of
a municipality necessary for governmental purposes may
not be attached
The movable and immovable property of a municipality, necessary
for governmental purposes, may not be attached and sold for the
payment of a judgment against the municipality. The supreme
reason for this rule is the character of the public use to which such
kind of property is devoted. The necessity for government service
justifies that the property of public use of the municipality be
exempt from execution just as it is necessary to exempt certain
property of private individuals in accordance with section 452 of
the Code of Civil Procedure.

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Municipal income exempt from levy and execution

Even the municipal income is exempt from levy and execution. In
Municipal Corporations by Dillon (Vol. 1, p. 467), it was stated
that "municipal corporations are instituted by the supreme
authority of a state for the public good. They exercise, by
delegation from the legislature, a portion of the sovereign power.
The main object of their creation is to act as administrative
agencies for the state, and to provide for the police and local
government of certain designated civil divisions of its territory. To
this end they are invested with certain governmental powers and
charged with civil, political, and municipal duties. To enable them
beneficially to exercise these powers and discharge these duties,
they are clothed with the authority to raise revenues, chiefly by
taxation, and subordinately by other modes, as by licenses, fines,
and penalties. The revenue of the public corporation is the
essential means by which it is enabled to perform its appointed
work. Deprived of its regular and adequated supply of revenue,
such a corporation is practically destroyed, and the ends of its
erection thwarted. Based upon considerations of this character, it
is the settled doctrine of the law that not only the public-property
but also the taxes and public revenues of such corporations cannot
be seized under execution against them, either in the treasury or
when in transit to it. Judgments rendered for taxes, and the
proceeds of such judgments in the hands of officers of the law, are
not subject to execution unless so declared by statute. The doctrine
of the inviolability of the public revenues by the creditor is
maintained, although the corporation is in debt, and has no means
of payment but the taxes which it is authorized to collect."
Municipality of Makati v. CA (1990)
This is an off-shoot of expropriation proceedings initiated by
petitioner Municipality of Makati against private respondents.
Private respondents now want to get the just compensation from
Makati.
General Rule: In this jurisdiction, well-settled is the rule that
public funds are not subject to levy and execution, unless
otherwise provided for by statute. In the instant case, there is
already an account specifically opened for the expropriation
proceedings of the subject property pursuant to PD No. 42.
Remedy where there is no law appropriating funds yet:
Note that, where a municipality fails or refuses, without
justifiable reason, to effect payment of a final money judgment
rendered against it, the claimant may avail of the remedy of
mandamus in order to compel the enactment and approval of the
necessary appropriation ordinance, and the corresponding
disbursement of municipal funds therefore.
Pasay City Government v. CFI of Manila (1984)
Facts:

On August 12, 1964, V.D. Isip, Sons & Associates

represented by Vicente David Isip entered into a contract with the

City of Pasay represented by the then Mayor Pablo Cuneta. The
contract entitled "Contract and Agreement" was for the
construction of a new Pasay City Hall at F.B. Harrison St., Pasay
City. Pursuant to the contract, the respondent proceeded with the
construction of the new Pasay City Hall building as per duly
approved plans and specifications. The respondent accomplished

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under various stages of construction the amount of work

(including supplies and materials) equivalent to an estimated
value of P1,713,096 of the total contract price of P4,914,500.80.
The appellants paid only the total amount of P1,100,000 to the
respondent leaving an amount of P613,096 immediately due from
the petitioner to the respondent. Notwithstanding demands for
payment thereof, the petitioner failed to remit the amount of
P613,096.00 to the respondent.
On May 16, 1968, respondent filed an action for specific
performance with damages against herein petitioners-appellants
before the respondent Court.
The parties arrived at a draft of amicable agreement which was
submitted to the Municipal Board of Pasay City for its
consideration. Protracted pre-trial hearings and conferences were
held where the respondent Court suggested and advised that
"under the principle of quantum meruit, the plaintiff is forthwith
entitled to at least that which is due to him for defendants under
the contract and that public interest must perforce require the
continuity of construction of a public work project. The Municipal
Board of Pasay enacted Ordinance No. 1012 which approved the
Compromise Agreement and also authorized and empowered the
incumbent City Mayor Jovito Claudio to represent the appellant
Pasay City Government, subject to the final approval of the
respondent Court herein. The court approved the compromise
agreement.
On April 10, 1969, the appellants filed an urgent motion seeking a
declaration of legality of the original contract and agreement
dated August 4, 1964 from the Court. On May 10, 1969, the Court
issued an order declaring that the original contract is legal and
valid. On July 9, 1969, an application for and notice of
garnishment were made and effected upon the funds of appellant
Pasay City Government with the Philippine National Bank. On
July 11, 1969, the appellant filed an urgent motion to set aside the
respondent Court's order of June 21, 1969 and to quash the writ of
execution issued pursuant thereto upon the following grounds: 1)
that the execution sought was then still premature, the period of
90 days stipulated not having elapsed as yet; 2) that the
obligations of the parties under the Compromise Agreement were
reciprocal and the appellee not having put up a new performance
bond in the sufficient amount equivalent to 20% of the remaining
cost of construction as per agreement, the appellants cannot be
obliged to pay the sum due appellee as yet; 3) that the Sheriff has
no power or authority to levy or garnish on execution the general
funds, especially more so, the trust funds of the defendant Pasay
City. On July 19, 1969, the respondent Court issued an order
stating that inasmuch as the defendant has not yet paid the
plaintiff as of this date then "the writ of execution and of
garnishment are declared to be again in full force and effect.
Ratio:

The two purposes of a compromise agreement are

enunciated in Article 2028 of the New Civil Code. The first

purpose - "to avoid a litigation" - occurs when there is a threat of
an impending litigation. At this point, no case has yet reached the
courts. The moment a case has been filed in court then the second
purpose - "to put an end to one already commenced" - applies.
In the herein case, We are concerned with the second purpose. The
latter purpose is given effect in Article 2037 of the New Civil Code

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which reads: "Article 2037. A compromise has upon the parties

the effect and authority of res judicata; but there shall be no
execution except in compliance with a judicial compromise."
A compromise agreement not contrary to law, public order, public
policy, morals or good customs is a valid contract which is the law
between the parties themselves. A judgment on a compromise is a
final and executory. It is immediately executory in the absence of
a motion to set the same aside on the ground of fraud, mistake or
duress.
It is obvious that the respondent did not only succeed in enforcing
the compromise but said plaintiff likewise wants to rescind the
said compromise. It is clear from the language of the law,
specifically Article 2041 CC that one of the parties to a
compromise has two options: 1) to enforce the compromise; or 2) to
rescind the same and insist upon his original demand. The
respondent in the case herein before Us wants to avail of both of
these options. This can not be done. The respondent cannot ask for
rescission of the compromise agreement after it has already
enjoyed the first option of enforcing the compromise by asking for
a writ of execution resulting thereby in the garnishment of the
Pasay City funds deposited with the PNB which eventually was
delivered to the respondent.
Upon the issuance of the writ of execution, the petitionerappellants moved for its quashal alleging among other things the
exemption of the government from execution. This move on the
part of the petitioner-appellant is at first glance laudable for "all
government funds deposited with the Philippine National Bank by
any agency or instrumentality of the government, whether by way
of general or special deposit, remain government funds and may
not be subject to garnishment or levy. But, inasmuch as an
ordinance has already been enacted expressly appropriating the
amount of P613,096.00 of payment to the respondent, then the
herein case is covered by the exception to the general rule stated
in the case of Republic vs. Palacio: "Judgments against a State in
cases where it has consented to be sued, generally operate merely
to liquidate and establish plaintiff's claim in the absence of
express provision; otherwise they cannot be enforced by processes
of the law; and it is for the legislature to provide for the payment
in such manner as sees fit."
Having established that the compromise agreement was final and
immediately executory, and in fact as already enforced, the
respondent court was in error where it still entertained the
supplemental complaint filed by the respondent-appellee for by
then the respondent Court had no more jurisdiction over the
subject matter. When a decision has become final and executory,
the court no longer has the power and jurisdiction to alter, amend
or revoke, and its only power thereof is to order its execution.
What is crucial in sub-paragraph B of paragraph 1 of the
compromise agreement are the words "in proportion." If the
parties really intended the legal rate of 20% performance bond to
refer to the whole unfinished work, then the provision should have
required the plaintiff contractor to submit and file a new
performance bond to cover the remaining value/cost of the
unfinished work of the construction. Using the words in proportion
then significantly changed the meaning of the paragraph to

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ultimately mean a performance bond equal to 20% of the next

stage of work to be done.
And, We note that in the Contract and Agreement, the
respondent-appellee was allowed to file a performance bond of
P222,250.00 which is but 5% of the total bid of P4,914,500.80. A
security bond was likewise filed with an amount of P97,290.00.
The sum total of bond then filed was P320,540.00 which is just
6.5% of the total bid. It is rather curious why all of a sudden the
petitioners-appellants are insisting on a 20% performance bond of
the entire unfinished work when they were quite content with a
bond just 5% of the entire work. For Us to allow the petitionersappellants to adamantly stick to the 20% performance bond would
be tantamount to allowing them to evade their obligation in the
compromise agreement. This cannot be allowed. The bond of a
contractor for a public work should not be extended beyond the
reasonable intent as gathered from the purpose and language of
the instrument construed in connection with the proposals, plans
and specifications, and contract.
The premium of the bond will be sizeable and will eat up the profit
of the contractor, who is faced with the fluctuation of prices of
materials due to inflation and devaluation. Right now, many
contractors cannot proceed with the implementation of their
contracts because of the extraordinary rise in cost of materials and
labor. No contractor would be willing to bid for public works
contracts under the oppressive interpretation by petitionersappellants.
Municipality of Paoay, Ilocos Norte v. Manaois (1955)
Facts:

Teodoro Manaois having obtained a judgment against

the municipality of Paoay, Judge De Guzman of said province

issued a writ of execution against the municipality. In compliance
with said writ the Provincial Sheriff of Ilocos Norte levied upon
and attached the following properties:
The amount of One thousand seven hundred twelve pesos and one
centavo (P1,712.01) in the Municipal Treasury of Paoay, Ilocos
Norte, representing the rental paid by Mr. Demetrio Tabije of a
fishery lot belonging to the defendant municipality;
About forty fishery lots leased to thirty-five different persons by
the Municipality.
The municipality asked for the dissolution of the attachment since
they are properties for public use. It is therefore necessary to
ascertain the nature and status back a few years, specifically, to
the year 1937.
Issue:

WON the properties can be levied

Held:

No (but the revenues can be levied upon)

Ratio:

There can be no question that properties for public use

held by municipal corporation are not subject to levy and

execution. The authorities are unanimous on this point. This
Court in the case of Viuda de Tantoco vs. Municipal Council of
Iloilo after citing Manresa, the works of McQuillin and Dillon on
Municipal Corporations, and Corpus Juris, held that properties
for public use like trucks used for sprinkling the streets, police
patrol wagons, police stations, public markets, together with the
land on which they stand are exempt from execution. Even public

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revenues of municipal corporations destined for the expenses of

the municipality are also exempt from the execution. The reason
behind this exemption extended to properties for public use, and
public municipal revenues is that they are held in trust for the
people, intended and used for the accomplishment of the purposes
for which municipal corporations are created, and that to subject
said properties and public funds to execution would materially
impede, even defeat and in some instances destroy said purpose.
Property however, which is patrimonial and which is held by
municipality in its proprietary capacity is treated by great weight
of authority as the private asset of the town and may be levied
upon and sold under an ordinary execution. The same rule applies
to municipal funds derived from patrimonial properties, for
instance, it has been held that shares of stocks held by municipal
corporations are subject to execution. If this is true, with more
reason should income or revenue coming from these shares of
stock, in the form of interest or dividends, be subject to execution?
The fishery or municipal waters of the town of Paoay, Ilocos Norte,
which had been parceled out or divided into lots and later let out
to private persons for fishing purposes at an annual rental are
clearly not subject to execution. In the first place, they do not
belong to the municipality. They may well be regarded as property
of State. What the municipality of Paoay hold is merely what may
be considered the usufruct or the right to use said municipal
waters, granted to it by section 2321 of the Revised Administrative
Code
Now, is this particular usufruct of the municipality of Paoay over
its municipal waters, subject to execution to enforce a judgment
against the town? We are not prepared to answer this question in
the affirmative because there are powerful reasons against its
propriety and legality. In the first place, it is not a usufruct based
on or derived from an inherent right of the town. It is based
merely on a grant, more or less temporary, made by the
Legislature. Take the right of fishery over the sea or marine
waters bordering a certain municipality. These marine waters are
ordinarily for public use, open to navigation and fishing by the
people. The Legislature thru section 2321 of the Administrative
Code, as already stated, saw fit to grant the usufruct of said
marine waters for fishery purpose, to the towns bordering said
waters. Said towns have no visited right over said marine waters.
The Legislature, for reasons it may deem valid or as a matter of
public policy, may at any time, repeal or modify said section 2321
and revoke this grant to coastal towns and open these marine
waters to the public. Or the Legislature may grant the usufruct or
right of fishery to the provinces concerned so that said provinces
may operate or administer them by leasing them to private
parties.
All this only goes to prove that the municipality of Paoay is not
holding this usufruct or right of fishery in a permanent or
absolute manner so as to enable it to dispose of it or to allow it to
be taken away from it as its property through execution.
Another reason against subjecting this usufruct or right of fishery
over municipal waters, to execution, is that, if this were to be
allowed and this right sold on execution, the buyer would
immediately step into the shoes of the judgment-debtor
municipality. Such buyer presumably buys only the right of the
municipality. He does not buy the fishery itself nor the municipal

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waters because that belongs to the State. All that the buyer might
do would be to let out or rent to private individuals the fishery
rights over the lots into which the municipal waters had been
parceled out or divided, and that is, after public bidding. This, he
must do because that is the only right granted to the municipality
by the Legislature, a right to be exercised in the manner provided
by law, namely, to rent said fishery lots after public bidding. Then,
we shall have a situation rather anomalous to be sure, of a private
individual conducting public bidding, renting to the highest
bidders fishery lots over municipal waters which are property of
the State, and appropriating the results to his own private use.
The impropriety, if not illegality, of such a contingency is readily
apparent. But that is not all. The situation imagined implies the
deprivation of the municipal corporation of a source of a
substantial income, expressly provide by law. Because of all this,
we hold that the right or usufruct of the town of Paoay over its
municipal waters, particularly, the forty odd fishery lots included
in the attachment by the Sheriff, is not subject to execution.
But we hold that the revenue or income coming from the renting of
these fishery lots is certainly subject to execution. It may be
profitable, if not necessary, to distinguish this kind of revenue
from that derived from taxes, municipal licenses and market fees
are provided for and imposed by the law, they are intended
primarily and exclusively for the purpose of financing the
governmental activities and functions of municipal corporations.
In fact, the real estate taxes collected by a municipality do not all
go to it. A portion thereof goes to the province, in the proportion
provided for by law. For the same reason, municipal markets are
established not only to provide a place where the people may sell
and buy commodities but also to provide public revenues for the
municipality. To many towns, market fees constitute the bulk of
their assets and incomes. These revenues are fixed and definite, so
much so that the annual appropriations for the expenses of the
municipalities are based on these revenues. Not so with the
income derived form fisheries. In the first place, the usufruct over
municipal waters was granted by the Legislature merely to help or
bolster up the economy of municipal government. There are many
towns in the Philippines, specially in the interior, which do not
have municipal waters for fishery purpose and yet without much
source of revenue, they can function, which goes to prove that this
kind of revenue is not indispensable for the performance of
governmental functions. In the second place, the amount of this
income is far from definite or fixed. It depends upon the amounts
which prospective bidders or lessees are willing to pay. If fishing
on these marine water, lakes and rivers in the municipality is
good, the bids would be high and the income would be substantial.
If the fish in these waters is depleted or, if for some reasons or
another, fishing is not profitable, then the income would be greatly
reduced. In other words, to many municipalities engaged in this
business of letting out municipal waters for fishing purposes, it is
a sort of sideline, so that even for fishing purposes, it is sort of
sideline, so that even without it the municipality may still
continue functioning and perform its essential duties as such
municipal corporations.
We call this activity of municipalities in renting municipal waters
for fishing purposes as a business for the reasons that the law
itself allowed said municipalities to engage in it for profit. And it

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is but just that a town so engaged should pay and liquidate

obligations contracted in connection with said fishing business,
with the income derived therefrom.
In conclusion, we hold that the fishery lots numbering about forty
in the municipality of Paoay, mentioned at the beginning of this
decision are not subject to execution. For this reason, the levy and
attachment made by the Provincial Sheriff of Ilocos Norte of
theses fishery lots is void and the order of the Court of First
Instance of Pangasinan insofar as it failed to dissolve the
attachment made on these lots is reversed. However, the amount
of P1,712.01 in the municipal treasury of Paoay representing the
rental paid by Demetrio Tabije on fishery lots let out by the
municipality of Paoay is a proper subject of levy, and the
attachment made thereon by the Sheriff is valid. We may add that
other amounts coming or due from lessees of the forty odd fishery
lots leased by the municipality to different persons may also be
attached or garnished to satisfy the judgement against the
municipality of Paoay.

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