REVIEWER ON LOCAL GOVERNMENT LAW

Alberto C. Agra
(cases as of October 10, 2017)

Table of Contents

Part 1 Local Governments

Nature of Local Government Units

Types of Local Government Units
Creation of Local Government Units

Part 2 Local Autonomy

Unitary, not Federal, Form

Local Autonomy
Devolution and Deconcentration
Executive Supervision
Legislative Control

Part 3 Powers of Local Governments

Delegation and Interpretation of Powers

Police Power
Eminent Domain
Public Land vs. Patrimonial Property
Reclassification of Land
Local Legislation
Other Governmental and Corporate Powers

Part 4 Fiscal Autonomy and Local Sources of Funds

Sources of Funds
Fiscal Autonomy
Internal Revenue Allotment
Share in National Wealth Proceeds
Power of Taxation
Participation in Public Auction/ Biddings

Reviewer on Local Government Law 1

Alberto C. Agra, Ateneo Law School
Part 5 Local Government Officials

Legislative Control over Structure

Term of Office
Powers of Local Officials
Power to Appoint
Ban on Holding Dual Positions
Vacancies

Part 6 Accountability of Local Government Units

and Officials

Suability and Liability

Liability of Local Government Units
Liability of Local Officials
Administrative Proceedings
Penalties
Preventive Suspension
Effect of Re-Election

Part 7 People’s Participation

Venues for Popular Participation

Prior Mandatory Consultation
Initiative and Referendum
Local Special Bodies
Partnerships and Assistance
Recall
Sectoral Representatives

Part 1. LOCAL GOVERNMENTS

Nature of Local Government Units

1. Under the 1987 Constitution, local governments or local government units

(LGUs) or municipal corporations proper are referred to as “territorial and
political subdivisions” (Section 1, Article X, 1987 Constitution).

1.1 An LGU is a public office, a public corporation, and is classified as a

municipal corporation proper.

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Alberto C. Agra, Ateneo Law School
 a. The four elements of an LGU are: (1) legal creation; (2)
corporate name; (3) inhabitants; and (4) place or territory
(Public Corporations, Ruperto G. Martin, 1985).

b. They are established for the government of a portion of the

State (Public Corporations, Ruperto G. Martin, 1985).

c. An LGU can only exercise its powers within its territorial

boundary or jurisdiction. Its powers are intramural. As
exceptions, an LGU can exercise its powers outside the
subdivision (extramural) on three occasions; namely, (1)
protection of water supply; (2) prevention of nuisance; and (3)
police purposes. (Public Corporations, Ruperto G. Martin, 1985).
Forest lands, although under the management of the DENR, are
not exempt from the territorial application of municipal laws,
for local government units legitimately exercise their powers of
government over their defined territorial jurisdiction (Aquino v.
Municipality of Malay, Aklan, G.R. No. 211356, September 29, 2014).

d. “Municipal waters” includes “not only streams, lakes, and tidal

waters within the municipality, not being the subject of private
ownership and not comprised within the national parks, public
forest, timber lands, forest reserves or fishery reserves, but also
marine waters included between two lines drawn
perpendicularly to the general coastline from points where the
boundary lines of the municipality or city touch the sea at low
tide and a third line parallel with the general coastline and
fifteen (15) kilometers from it.” Although the term “municipal
waters” appears in the 1991 LGC in the context of the grant of
quarrying and fisheries privileges for a fee by LGs, its inclusion in
Book II which covers local taxation means that it may also apply
as guide in determining the territorial extent of the local
authorities' power to levy real property taxation (Capitol
Wireless Inc. v. Provincial Government of Batangas, G.R. No.
180110, May 30, 2016).

1.2 Local governments are administrative agencies and agencies of

Government distinguished from the National Government, which
refers to the entire machinery of the central government (Sections 2
[4] and [2], 1987 Administrative Code). Under the 1987
Administrative Code, an “Agency of the Government" refers to any
of the various units of the Government, including a department,

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Alberto C. Agra, Ateneo Law School
 bureau, office, instrumentality, or government-owned or controlled
corporations, or a local government or a distinct unit therein.

1.3 Public corporations created by local governments are referred to as

quasi-municipal corporations (Public Corporations, Ruperto G.
Martin, 1985).

1.4 Local governments are distinguished from quasi-corporations.

Quasi-corporations are created by the State, either by law or by
authority of law, for a specific governmental purpose (Public
Corporations, Ruperto G. Martin, 1985).

a. A government-owned and -controlled corporation (GOCC) must

be organized either as a stock or non-stock corporation. (MIAA
vs. CA, G.R. No. 155650, July 20, 2006).

i. A GOCC is vested by law with a legal personality separate

and distinct from those acting for and in its behalf and, in
general, from the people comprising it (MIAA vs. CA, G.R. No.
155650, July 20, 2006).

ii. A GOCC created through special charter must meet two

conditions, namely: (a) it must be established for the
common good; and (b) it must meet the test of economic
viability (Section 16, Article XII, 1987 Constitution).

Congress shall not, except by general law, provide for the

formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be
created or established by special charters in the interest of the
common good and subject to the test of economic viability.

iii. By definition, three attributes make an entity a GOCC: first,

its organization as stock or non-stock corporation; second,
the public character of its function; and third, government
ownership over the same. Possession of all three attributes
is necessary to deem an entity a GOCC. (Funa vs. MECO, G.R.
No. 193462, February 4, 2014).

iv. In order to qualify as a GOCC, a corporation must also, if not

more importantly, be owned by the government (Funa vs.
MECO, G.R. No. 193462, February 4, 2014).

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Alberto C. Agra, Ateneo Law School
 v. Examples of GOCCs are: GOCCs incorporated under the
Corporation Code, subsidiaries of GOCCs, Government
Financial Institutions (GFIs), Water Districts, and
government-acquired asset corporations (MIAA vs. CA, G.R.
No. 155650, July 20, 2006).

b. A government instrumentality (GI) is neither a stock nor a non-

stock corporation (MIAA vs. CA, G.R. No. 155650, July 20, 2006).

i. A GI, which is operationally autonomous, remains part of

the National Government machinery although not
integrated with the department framework (MIAA vs. v. CA,
G.R. No. 155650, July 20, 2006).

ii. Examples of GIs are: Bangko Sentral ng

Pilipinas, Philippine Rice Research Institute, Laguna Lake
Development Authority, Fisheries Development Authority,
Bases Conversion Development Authority, Philippine Ports
Authority, Cagayan de Oro Port Authority, San Fernando
Port Authority, Cebu Port Authority, and Philippine National
Railways (MIAA vs. v. CA, G.R. No. 155650, July 20, 2006).

c. Exception: The Manila Economic and Cultural Office (MECO)

was organized as a non-stock, non-profit corporation under the
Corporation Code, not owned or controlled by the Republic of
the Philippines. The “desire letters” that the President transmits
is merely recommendatory and not binding on the corporation.
In order to qualify as a GOCC, a corporation must also, if not
more importantly, be owned by the government. Mere
performance of functions with a public aspect are not by
themselves sufficient to consider the MECO a GOCC. From its
over-reaching corporate objectives, its special duty and
authority to exercise certain consular functions, up to the
oversight by the executive department over its operations—all
the while maintaining its legal status as a non-governmental
entity—the Manila Economic and Cultural Office is, for all
intents and purposes, sui generis (Funa vs. MECO, G.R. No. 193462,
February 4, 2014).

2. The character of LGs is two-fold; i.e., governmental or public, and proprietary

or private (City of Manila vs. Intermediate Appellate Court, G.R. No. 71159,
November 15, 1989).

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Alberto C. Agra, Ateneo Law School
 2.1 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 powers of
government. Examples are: delivery of sand for a municipal road
(Municipality of San Fernando, La Union vs. Firme, G.R. No. L-52179,
April 8, 1991), local legislation, control over police and abatement of
nuisance.

2.2 Proprietary powers, on the other hand, are exercised for the
special benefit and advantage of the community and include those
powers which are ministerial, private and corporate (Municipality of
San Fernando, La Union vs. Firme, G.R. No. L-52179, April 8, 1991).
Examples are: public cemeteries, markets, ferries and waterworks.

2.3 Therefore, the purpose of LGs is also two-fold, i.e., LGs are agents
of the State in the exercise of government or public powers, and
are agents of the community and people in the exercise of
proprietary or private powers (Lina, Jr. vs. Paňo, G.R. No. 129093,
August 30, 2001; Magtajas vs. Pryce Properties and Philippine
Amusements and Gaming Corporation, G.R. No. 111097, July 20, 1994;
Basco vs. Philippine Amusements and Gaming Corporation, G.R. No.
91649, May 14, 1991).

3. The rule on corporate succession applies to local governments.

3.1 They have the power of continuous succession under their

corporate name. (Section 22, Local Government Code of 1991 or 1991
LGC).

3.2 When there is a perfected contract executed by the former

Governor, the succeeding Governor cannot revoke or renounce
the same without the consent of the other party (Government
Service Insurance System vs. Province of Tarlac, G.R. No. 157860,
December 1, 2003).

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Alberto C. Agra, Ateneo Law School
Chapter X, Section 3, 1987 Constitution:
“The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system
of decentralization with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers, responsibilities,
and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all
other matters relating to the organization and operation of the local units.”

4. Congress in enacting the 1991 LGC and charters of particular LGs allocates
among the different LGs their powers, responsibilities, and resources and
provides for the qualifications, election, appointment and removal, term,
salaries, powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local units (Section 3,
Article X, 1987 Constitution).

Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of
the local units.

4.1 One such power is the power to appoint officials. While the
Governor has the authority to appoint officials and employees
whose salaries are paid out of the provincial funds, this does not
extend to the officials and employees of the sangguniang
panlalawigan because such authority is lodged with the Vice-
Governor (Atienza vs. Villarosa, G.R. No. 161081, May 10, 2005).

4.2 The authority to appoint casual and job order employees of the
sangguniang panlalawigan belongs to the Vice-Governor. The
authority of the Vice-Governor to appoint the officials and
employees of the sangguniang panlalawigan is anchored on the fact
that the salaries of these employees are derived from the
appropriation specifically for said local legislative
body. Accordingly, the appointing power of the Vice-Governor is
limited to those employees of the sangguniang panlalawigan, as well
as those of the Office of the Vice-Governor, whose salaries are paid

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Alberto C. Agra, Ateneo Law School
 out of the funds appropriated for the sangguniang panlalawigan
(Atienza vs. Villarosa, G.R. No. 161081, May 10, 2005).

4.3 In allocating local powers, Congress may provide for a system of

checks and balances.

a. The system of checks and balances under the current system is

statutorily, not constitutionally (unlike the three branches of
National Government), prescribed.

b. Under the 1983 Local Government Code, the local chief

executive performed dual functions – executive and legislative,
he/she being the presiding officer of the sanggunian. Under the
1991 LGC, the union of legislative and executive powers in the
office of the local chief executive has been disbanded, so that
either department now comprises different and non-
intermingling official personalities with the end in view of
ensuring better delivery of public service and providing a
system of check and balance between the two (Atienza vs.
Villarosa, G.R. No. 161081, May 10, 2005).

4.4 With the twin criteria of standard and plebiscite satisfied, the
delegation to LGUs of the power to create, divide, merge, abolish
or substantially alter boundaries has become a recognized
exception to the doctrine of non-delegation of legislative powers.
The source of the delegation of power to the LGUs under Sec. 6 of
the LGC and to the President under Sec. 453 of the same code is
none other than Sec. 10, Art. X of the Constitution. Conversion to a
highly-urbanized city is substantial alteration of boundaries
governed by Sec. 10, Art. X and resultantly, said provision applies,
governs and prevails over Sec. 453 of the LGC (Umali vs. COMELEC,
G.R. No. 203974, April 22, 2014).

Types of Local Government Units

1. There are five levels/ kinds of political and territorial subdivisions, namely: (1)
Autonomous Regions; (2) Provinces; (3) Cities; (4) Municipalities; and (5)
Barangays (Section 1, Article X, 1987 Constitution).

Chapter X, Section 15, 1987 Constitution:

“There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas

Reviewer on Local Government Law 8

Alberto C. Agra, Ateneo Law School
sharing common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.”

Chapter X, Section 16, 1987 Constitution:

“The President shall exercise general supervision over autonomous regions to ensure
that the laws are faithfully executed.”

Chapter X, Section 17, 1987 Constitution:

“All powers, functions, and responsibilities not granted by this Constitution or by
law to the autonomous regions shall be vested in the National Government.”

Chapter X, Section 18, 1987 Constitution:

“The Congress shall enact an organic act for each autonomous region with the
assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from
multisectoral bodies. The organic act shall define the basic structure of government
for the region consisting of the executive department and legislative assembly, both
of which shall be elective and representative of the constituent political units. The
organic acts shall likewise provide for special courts with personal, family, and
property law jurisdiction consistent with the provisions of this Constitution and
national laws. The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a plebiscite called
for the purpose, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.”

Chapter X, Section 19, 1987 Constitution:

“The first Congress elected under this Constitution shall, within eighteen months
from the time of organization of both Houses, pass the organic acts for the
autonomous regions in Muslim Mindanao and the Cordilleras.”

Chapter X, Section 20, 1987 Constitution:

“Within its territorial jurisdiction and subject to the provisions of this Constitution
and national laws, the organic act of autonomous regions shall provide for legislative
powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;

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Alberto C. Agra, Ateneo Law School
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.”

Chapter X, Section 21, 1987 Constitution:

“The preservation of peace and order within the regions shall be the responsibility of
the local police agencies which shall be organized, maintained, supervised, and
utilized in accordance with applicable laws. The defense and security of the regions
shall be the responsibility of the National Government.”

1.1 The Constitution identifies two Autonomous Regions, i.e., Muslim

Mindanao and Cordilleras that Congress may incorporate.

a. Autonomous Regions consist of provinces, cities, municipalities,

and geographical areas which share common and distinctive
historical and cultural heritage, economic and social structures,
and other relevant characteristics (Section 15, Article X, 1987
Constitution).

b. Autonomous Regions are under the general supervision of the

President (Section 16, Article X, 1987 Constitution).

c. Section 20, Article X of the 1987 Constitution enumerates the

irreducible legislative powers of autonomous regions.

d. Regional peace and order, and defense and security shall be the
responsibility of the local police agencies and the National
Government respectively (Section 21, Article X, 1987
Constitution).

e. Whatever power or authority is not vested on the autonomous

regions remains with the National Government (Section 17,
Article X, 1987 Constitution). Residual regional powers lie with
the National Government.

f. Republic Act No. 6734 or the Organic Act of the Autonomous

Region of Muslim Mindanao (ARMM) is constitutional and is
not violative of the Tripoli Agreement since the former is a later
enactment. Further, the Tripoli Agreement must conform with
national laws such as the Organic Act. (Abbas vs. Commission on
Elections, G.R. No. 89651, November 10, 1989).

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Alberto C. Agra, Ateneo Law School
 g. The single plebiscite contemplated by the Constitution and R.A.
No. 6734 will 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 comprise it (Abbas vs. Commission on Elections, G.R. No.
89651, November 10, 1989).

h. 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 without being approved in a plebiscite
(Disomangcop vs. Secretary of Public Works and Highways, G.R.
No. 149848, November 25, 2004).

i. Exempt from devolution, even to the ARMM, are nationally-

funded projects, facilities, programs and services (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014).

j. An act of the Regional Assembly of ARMM cannot amend the

Organic Act nor can it amend the 1991 LGC. The 1991 LGC and
the 1987 Administrative Code cannot amend the Organic Act
(Pandi vs. Court of Appeals, G.R. No. 116850, April 11, 2002).

k. The Autonomous Region of the Cordilleras has not been

incorporated since in the plebiscite held, the creation has been
rejected by all the covered provinces and city, save one
province. There can be no autonomous region consisting of
only one province (Badua vs. Cordillera Bodong Administration,
G.R. No. 92649, February 14, 1991; Ordillos vs. Commission on
Elections, G.R. No. 93054, December 4, 1990).

l. However, the President can create the Cordillera

Administrative Region (CAR). The Executive Order does not
create the autonomous region for the Cordilleras. The CAR: (1) is
not a territorial and political subdivision; (2) is not a public
corporation; (3) does not have a separate juridical personality;
(4) is subject to control and supervision of the President; and (5)
is merely a regional consultative and coordinative council
(Cordillera Broad Coalition vs. Commission on Audit, G.R. No.
79956, January 29, 1990).

1.2 There are three sub-types of cities, namely: (1) highly-urbanized

(HUC); (2) independent cities; and (3) component cities (CC).

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Alberto C. Agra, Ateneo Law School
 Chapter X, Section 12, 1987 Constitution:
“Cities that are highly urbanized, as determined by law, and component cities
whose charters prohibit their voters from voting for provincial elective
officials, shall be independent of the province. The voters of component
cities within a province, whose charters contain no such prohibition, shall not
be deprived of their right to vote for elective provincial officials.”

a. The highly-urbanized cities and independent component cities

are not under the supervision of provinces and their voters are
not qualified to vote for provincial officials (Section 12, Article X,
1987 Constitution; Section 29, 1991 LGC). These cities are under
the direct supervision of the President (Section 25, 1991 LGC) and
are independent of provinces.

b. In accordance with Section 12 of Article X of the 1987

Constitution, cities that are highly urbanized, as determined by
law, and component cities whose charters prohibit their voters
from voting for provincial elective officials, shall be independent
of the province, but the voters of component cities within a
province, whose charters contain no such prohibition, shall not
be deprived of their right to vote for elective provincial officials.
Hence, all matters relating to its administration, powers and
functions were exercised through its local executives led by the
City Mayor, subject to the President's retained power of general
supervision over provinces, HUCs, and independent component
cities pursuant to and in accordance with Section 25 of the 1991
Local Government Code, a law enacted for the purpose of
strengthening the autonomy of the LGUs in accordance with
the 1987 Constitution. (Rama vs. Moises, G.R. No. 197146,
December 6, 2016).

a.1. An HUC is not subject to provincial oversight

because the complex and varied problems in an HUC
due to a bigger population and greater economic
activity require greater autonomy. The provincial
government stands to lose the power to ensure that
the local government officials act within the scope of
its prescribed powers and functions, to review
executive orders issued by the city mayor, and to
approve resolutions and ordinances enacted by the
city council. The province will also be divested of
jurisdiction over disciplinary cases concerning the

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Alberto C. Agra, Ateneo Law School
 elected city officials of the new HUC, and the appeal
process for administrative case decisions against
barangay officials of the city will also be modified
accordingly. Likewise, the registered voters of the
city will no longer be entitled to vote for and be
voted upon as provincial officials (Umali vs. COMELEC,
G.R. No. 203974, April 22, 2014).

c. Component cities are under the supervision of provinces and

their voters elect provincial officials (Section 12, Article X, 1987
Constitution).

Creation of Local Government Units

Chapter X, Section 10, 1987 Constitution:

“No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the
criteria established in the Local Government Code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.”

Chapter X, Section 10, 1987 Constitution:

“The Congress may, by law, create special metropolitan political subdivisions,
subject to a plebiscite as set forth in Section 10 hereof. The component cities and
municipalities shall retain their basic autonomy and shall be entitled to their own
local executives and legislative assemblies. The jurisdiction of the metropolitan
authority that will hereby be created shall be limited to basic services requiring
coordination.”

1. Only Congress and, by authority of law, local legislative councils, can create
specific LGs. Creation is a legislative act. The enabling law is referred to as the
charter of the LGU.

1.1 The President or the Executive Branch of Government has no

power to create local governments (Camid vs. Office of the
President, G.R. No. 161414, January 17, 2005).

a. Municipalities created by executive fiat but whose existence

were not judicially nullified and which continue to operate and
exist after 1992 are considered regular municipalities. The 1991
LGC is thus a curative legislation. If judicially annulled in a quo
warranto case, the 1991 LGC will have no curative effect
(Section 442[d], 1991 LGC).

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Alberto C. Agra, Ateneo Law School
 b. An LGU created by executive fiat which operated or functioned
without interruption for a considerable length of time is
considered a municipality by prescription (Municipality of
Jimenez vs. Baz, G.R. No. 105746, December 2, 1996).

1.2 Congress can provide for the incorporation of Autonomous Regions

identified under the 1987 Constitution. It has no power to create
other Autonomous Regions other than in Muslim Mindanao and
Cordilleras.

a. The Organic Act shall define the basic structure of government

for the region consisting of the executive department and
legislative assembly, both of which shall be elective and
representative of the constituent political units. The organic
acts shall likewise provide for special courts with personal,
family, and property law jurisdiction consistent with the
provisions of this Constitution and national laws (Section 18,
Article X, 1987 Constitution).

b. The creation of the autonomous region shall be effective when

approved by majority of the votes cast by the constituent units
in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such
plebiscite shall be included in the autonomous region (Section
18, Article X, 1987 Constitution).

The Congress shall enact an organic act for each autonomous

region with the assistance and participation of the regional
consultative commission composed of representatives appointed
by the President from a list of nominees from multi-sectoral
bodies. The organic act shall define the basic structure of
government for the region consisting of the executive
department and legislative assembly, both of which shall be
elective and representative of the constituent political units. The
organic acts shall likewise provide for special courts with personal,
family, and property law jurisdiction consistent with the
provisions of this Constitution and national laws.

The creation of the autonomous region shall be effective when

approved by majority of the votes cast by the constituent units in
a plebiscite called for the purpose, provided that only provinces,

Reviewer on Local Government Law 14

Alberto C. Agra, Ateneo Law School
 cities, and geographic areas voting favorably in such plebiscite
shall be included in the autonomous region.

c. The 1987 Constitution (Section 19, Article X) sets a timeframe for

the passage of the organic acts for the two identified
autonomous regions.

The first Congress elected under this Constitution shall, within

eighteen months from the time of organization of both Houses,
pass the organic acts for the autonomous regions in Muslim
Mindanao and the Cordilleras.

d. The President cannot create a “state”; i.e., Bangsamoro

Juridical Entity established under a Memorandum of
Agreement, whose relationship with the government is
characterized by shared authority and responsibility. It is a state
in all but name as it meets the criteria of statehood: (1) a
permanent population; (2) a defined territory; (3) a
government; and (4) a capacity to enter into relations with
other states (Province of North Cotabato vs. Government of the
Republic of the Philippines Peace Panel on Ancestral Domain, G.R.
No. 183591, October 14, 2008).

e. While the power to merge administrative regions is not

provided for expressly 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. The power to transfer a regional center is also an
executive function. This power of supervision is found in the
Constitution as well as in the Local Government Code of 1991
(Republic vs. Bayao, G.R. No. 179492, June 5, 2013).

1.3 Congress can create provinces, cities, municipalities and barangays

subject to the criteria specified under the 1991 LGC (Section 10,
Article X, 1987 Constitution) and special laws such as Republic Act
No. 9009 which pertains to the conversion of municipalities to
component cities.

No province, city, municipality, or barangay may be created, divided,

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

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Alberto C. Agra, Ateneo Law School
 a. Congress, by special law, can provide for different requirements
other than those specified in the 1991 LGC (League of Cities of
the Philippines v. Commission on Elections, G.R. Nos. 176951,
177499 and 178056, April 12, 2011).

b. The implementing rules and regulations cannot provide

different requirements other than what is provided by law.
Exemption by administrative regulation from land requirement
when the province to be created is composed of one or more
islands is invalid (Navarro vs. Ermita, G.R. No. 180050, April 12,
2011).

c. The sangguniang panlalawigan and sangguniang panlungsod can

create barangays (Section 6, 1991 LGC). The sangguniang bayan
has no such authority under the 1991 LGC.

1.4 An LGU is deemed created on the day its charter takes effect.

a. It is deemed incorporated on the day the charter is approved by

a majority of the votes cast in a plebiscite in the political units
directly affected (Section 10, Article X, 1987 Constitution; Section
10, 1991 LGC).

i. When a municipality is split into two, all the barangays of

the original municipality must vote. The plebiscite
electorate includes those who will be economically
dislocated and is based on plurality of units (Padilla vs.
Commission on Elections, G.R. No. 103328, October 19, 1992).

ii. A plebiscite is required when a municipality is converted

into an independent component city and when the latter is
later converted to a component city as there was an
“upgrade” and “downgrade” particularly insofar as taxes
and supervision are concerned (Miranda vs. Aguirre, G.R. No.
133064, September 16, 1999).

iii. A boundary dispute presents a prejudicial question to a

plebiscite and thus must be resolved prior to the conduct of
any plebiscite (City of Pasig vs. Commission on Elections, G.R.
No. 125646, September 10, 1999).

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Alberto C. Agra, Ateneo Law School
 iv. The Commission on Elections, not the regular courts, has
jurisdiction over plebiscite protest cases (Buac vs.
Commission on Elections, G.R. No. 155855, January 26, 2004).

b. The corporate existence of an LGU shall commence upon the

election and qualification of its chief executive and a majority of
the members of its sanggunian, unless some other time is fixed
therefor by the law or ordinance creating it (Section 14, 1991
LGC).

2. The requirements for creation of local governments are: (1) population; (2)
income; and (3) land area.

2.1 Under the 1991 LGC, these are specific requirements for every type
or level of LGU (Sections 461, 450, 442, 386, 1991 LGC):

Requirement Province City Municipality Barangay

Income 20 million 20 million 2.5 million ---
CC
50 million
HUC
100 million
M to CC
Population 250,000 150,000 CC 25,000 2,000
200,000 5,000 Metro
HUC
Land Area 2,000 km2 100 km2 50 km2 Contiguous

2.2 For purposes of creation, only the land area is material. The law is
clear.

a. The aggregate territory which includes waters is not the criteria

for creation under the 1991 LGC (Section 131 [r]).

b. A charter states the boundaries of the local government. Areas

or barangays not mentioned are excluded (Municipality of
Nueva Era vs. Municipality of Marcos, G.R. No. 169435, February 27,
2008).

2.3 A charter need not mention the population census (Tobias vs.
Abalos, G.R. No. 114783, December 8, 1994).

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Alberto C. Agra, Ateneo Law School
 2.4 Failure to state the seat of government in the charter is not fatal
(Samson vs. Aguirre, G.R. No. 133076, September 22, 1999).

2.5 Income under the 1991 LGC pertains to all funds of the LGU
including the Internal Revenue Allotment (Alvarez vs. Guingona,
G.R. No. 118303, January 31, 1996). However, under R.A. 9009 which
deals with the conversion of a municipality to a component city,
the funds must be internally-generated.

2.6 The requirements for the creation of a component city and an

independent component city are the same.

2.7 Depending on the type of LGU created, the presence of all the
requirements of Population (P), Land Area (LA) and Income (Y) may
vary (Sections 461, 450, 442, 386, 1991 LGC):

Barangay P and LA Municipality P and LA and Y

City P and Y, or Y and LA HUC P and Y
Province P and Y, or Y and LA

3. When a municipality is converted to a city, the latter acquires a distinct legal

personality from the former. There is material change in the political and
economic rights of the two LGs (Latasa vs. Commission on Elections, G.R. No.
154829, December 10, 2003). An examination of charters of LGUs would
however reveal that municipal ordinances, debts, assets and properties are
transferred to and absorbed by the city.

Part 2. LOCAL AUTONOMY

Chapter X, Section 2, 1987 Constitution:

“The territorial and political subdivisions shall enjoy local autonomy.”

Unitary, not Federal, Form

1. The form of LGU bureaucracy is unitary, not federal (Magtajas vs. Pryce
Properties and Philippine Amusements and Gaming Corporation, G.R. No. 111097,
July 20, 1994). Political history, the fact that there is no mention of federal
form of government in the Constitution, jurisprudence, reference to
subdivisions and not states in the Constitution where LGUs have no claim
against the State, and the supervisory authority of the President over LGUs
establish the current unitary form of government.

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Alberto C. Agra, Ateneo Law School
 1.1 LGs as political and territorial subdivisions are units of the State.
Being so, any form of autonomy granted to LGs will necessarily be
limited and confined within the extent allowed by the central
authority (Magtajas vs. Pryce Properties and Philippine Amusements
and Gaming Corporation, G.R. No. 111097, July 20, 1994).

1.2 LGs are not sovereign units within the State. They are not empires
within an empire (Lina, Jr. vs. Paňo, G.R. No. 129093, August 30, 2001;
Magtajas vs. Pryce Properties and Philippine Amusements and Gaming
Corporation, G.R. No. 111097, July 20, 1994).

1.3 Autonomy does not contemplate making mini-states out of LGs

(Ganzon vs. Court of Appeals, G.R. No. 93252, August 5, 1991),
although in one case, the Supreme Court cited Jefferson when he
said that “(m)unicipal corporations are the small republics from
which the great one derives its strength” (Philippine Gamefowl
Commission v. Intermediate Appellate Court, G.R. No. 72969-70,
December 17, 1986).

1.4 The 1987 Constitution does not contemplate any state in this
jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of
Philippine territory for independence (Province of North Cotabato
vs. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain, G.R. No. 183591, October 14, 2008).

1.5 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 (Disomangcop vs. Secretary of Public Works and
Highways, G.R. No. 149848, November 25, 2004).

1.6 Local autonomy granted to LGUs does not completely sever them
from the national government or turn them into impenetrable
states. Autonomy does not make local governments sovereign
within the state. Thus, notwithstanding the local fiscal autonomy
being enjoyed by LGUs, they are still under the supervision of the
President and may be held accountable for malfeasance or
violations of existing laws (Villafuerte v. Robredo, G.R. No. G.R. No.
195390, December 10, 2014).

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Alberto C. Agra, Ateneo Law School
Local Autonomy

1. All LGUs enjoy local autonomy. This is a constitutional right (Section 2, Article
X, 1987 Constitution) which cannot be taken away save in a constitutional
revision.

The territorial and political subdivisions shall enjoy local autonomy.

1.1 This right is anchored on a constitutional state policy (Section 25,

Article II, 1987 Constitution).

The State shall ensure the autonomy of local governments.

1.2 This policy is mirrored in the 1991 LGC [Section 2(a)]. This statute
provides that, “It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their
fullest development as self-reliant communities and make them
more effective partners in the attainment of national goals. Toward
this end, the State shall provide for a more responsive and
accountable local government structure instituted through a
system of decentralization whereby local government units shall be
given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the national
government to the local government units.

2. Local autonomy means a more responsive and accountable local government

structure instituted through a system of decentralization (Section 3, Article X,
1987 Constitution; Section 2[a], 1991 LGC; Ganzon vs. Court of Appeals, G.R. No.
93252, August 5, 1991).

2.1 Under a unitary set-up, local autonomy does not mean absolute
self-governance, self-rule or self-determination (Public Corporations,
Ruperto G. Martin, 1985). Local autonomy may mean qualified or
limited yet broad governance. LGs cannot exercise a power
contrary to the 1987 Constitution, the 1991 LGC, statutes, and their
respective charters.

2.2 Autonomy is not meant to end the relation of partnership and

interdependence between the central administration and LGUs, or
otherwise, to usher in a regime of federalism (Ganzon vs. Court of
Appeals, G.R. No. 93252, August 5, 1991).

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Alberto C. Agra, Ateneo Law School
 2.3 Local autonomy is intended to provide the needed impetus and
encouragement to the development of local political subdivisions
as self-reliant communities (Philippine Gamefowl Commission v.
Intermediate Appellate Court, G.R. No. 72969-70, December 17, 1986).

2.4 Local autonomy also grants local governments the power to

streamline and reorganize. This power is inferred from Section 76
of the Local Government Code on organizational structure and
staffing pattern, and Section 16 otherwise known as the general
welfare clause. Local autonomy allows an interpretation of Secs. 76
and 16 of the LGC as granting a city the authority to create its
organization development program. (City of General Santos vs. COA,
G.R. No. 199439, April 22, 2014).

2.5 The intent of local autonomy to provide the needed impetus and
encouragement to the development of local political subdivisions
as "self-reliant communities” could be blunted by undue
interference by the national government in purely local affairs
which are best resolved by the officials and inhabitants of such
political units (Belgica v. Ochoa, G.R. No. 208566, 19 November 2013,
citing Philippine Gamefowl Commission v. IAC, G.R. No. 72969-70,
December 17, 1986).

2.5.1 Legislators, who are national officers, who intervene in

affairs of purely local nature through the “Pork Barrel”
system, despite the existence of capable local institutions
such as local legislative councils and local development
councils, subvert genuine local autonomy (Belgica, et..al., v.
Ochoa, et. al., G.R. 208566, November 19, 2013).

2.6 There shall be a continuing mechanism to enhance local autonomy

not only by legislative enabling acts but also by administrative and
organizational reforms (Section 3[h], 1991 LGC).

3. There are two levels of decentralization. Local autonomy is either

decentralization of administration or decentralization of power (Limbona vs.
Mangelin, G.R. No. 80391, February 28, 1989).

3.1 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

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Alberto C. Agra, Ateneo Law School
 communities and make them more effective partners in the pursuit
of national development and social progress. (Limbona vs.
Mangelin, G.R. No. 80391, February 28, 1989).

3.2 Decentralization of power, on the other hand, involves an

abdication of political power in favor of local government units
declared to be autonomous. The autonomous government is free
to chart its own destiny and shape its future with minimum
intervention from central authorities (Limbona vs. Mangelin, G.R. No.
80391, February 28, 1989).

Decentralization of Decentralization of
Administration Power
Delegation of administrative Abdication of political
and regulatory powers power
Relieves state from burden of Chart own destiny
managing local affairs
Executive supervision Executive supervision;
minimal intervention
Accountability to central Accountability to people;
government self-immolation
Applies to provinces, cities, Applies to autonomous
municipalities and barangays regions

3.3 The constitutional guarantee of local autonomy in the Constitution

Art. X, Sec. 2 refers to the administrative autonomy of local
government units or, cast in more technical language, the
decentralization of government authority. It does not make local
governments sovereign within the State. Administrative autonomy
may involve devolution of powers, but subject to limitations like
following national policies or standards, and those provided by the
Local Government Code, as the structuring of local governments
and the allocation of powers, responsibilities, and resources among
the different local government units and local officials have been
placed by the Constitution in the hands of Congress under Section
3, Article X of the Constitution (League of Provinces of the
Philippines vs. DENR, G.R. No. 175368, April 11, 2013).

4. The ARMM enjoys political autonomy (Limbona vs. Mangelin, G.R. No. 80391,
February 28, 1989; Cordillera Broad Coalition vs. Commission on Audit, G.R. No.
79956, January 29, 1990). The creation of autonomous regions contemplates
the grant of political autonomy i.e., an autonomy which is greater than the

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Alberto C. Agra, Ateneo Law School
 administrative autonomy granted to (other) LGs (Disomangcop vs. Secretary of
Public Works and Highways, G.R. No. 149848, November 25, 2004).

4.1 Regional autonomy is the degree of self-determination exercised

by the LGU vis-à-vis the central government. Regional autonomy
refers to the granting of basic internal government powers to the
people of a particular area or region with least control and
supervision from the central government (Disomangcop vs.
Secretary of Public Works and Highways, G.R. No. 149848, November
25, 2004).

4.2 The aim of the 1987 Constitution is to extend to the autonomous

peoples, the people of Muslim Mindanao in this case, the right to
self-determination, i.e., a right to choose their own path of
development; the right to determine the political, cultural and
economic content of their development path within the framework
of the sovereignty and territorial integrity of the Philippine Republic
(Disomangcop vs. Secretary of Public Works and Highways, G.R. No.
149848, November 25, 2004).

5. The Executive Department violates local autonomy when it ignores the

statutory authority of province to nominate budget officials (San Juan vs. Civil
Service Commission, G.R. No. 92299, April 19, 1991).

6. The essence of the express reservation of power by the national government

in Sec. 17 of the LGC is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which funding has
been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU. A complete relinquishment of
central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against
it. Local autonomy is not absolute. The national government still has the say
when it comes to national priority programs which the local government is
called upon to implement. There is no undue encroachment by the national
government upon the autonomy enjoyed by the local governments if the
wording of the law is not mandatory upon LGUs (Imbong v. Ochoa, G.R. No.
204819, April 8, 2014).

7. Where a law is capable of two interpretations, one in favor of centralized

power and the other beneficial to local autonomy, the scales must be
weighed in favor of autonomy (San Juan vs. Civil Service Commission, G.R. No.
92299, April 19, 1991).

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Alberto C. Agra, Ateneo Law School
8. Consistent with the declared policy to provide local government units genuine
and meaningful local autonomy, contiguity and minimum land area
requirements for prospective local government units should be liberally
construed in order to achieve the desired results (Navarro vs. Ermita, G.R. No.
180050, April 12, 2011).

9. LGUs have broad powers in the following areas: (1) Police Power; (2) Power of
Taxation; (3) Power to Impose Fees and Charges; (4) Sources of Local
Revenues; (5) Corporate Powers; and (6) Local Legislation. The 1991 LGC in
these areas does not provide an exclusive listing of powers. It may be said that
LGUs have residual powers. This is consistent with the liberal view of
autonomy which provides that LGUs can exercise: (1) those powers expressly
given to them; (2) those powers implied from the express powers; (3) those
powers not given to the National Government or any governmental agency or
instrumentality by law; (4) those powers not prohibited or forbidden by the
Constitution and statutes; (5) provided the powers are necessary for the
carrying out of the mandates and duties entrusted to LGUs with the end in
view of promoting the general welfare in response to local concerns and as
agents of the communities.

A local government unit may exercise its residual power to tax when there is
neither a grant nor a prohibition by statute (Alta Vista Golf and Country Club vs.
City of Cebu, G.R. No. 180235, January 20, 2016).

10. Because of local autonomy, the mandate to protect the general welfare, and
concept of subordinate legislation, LGUs:

a) Can prohibit an activity that is not prohibited by statute;

b) Cannot allow or regulate an activity that is prohibited by statute;
c) Can regulate an activity not regulated by statute; and
d) Can regulate an activity that is regulated by statute provided, the
ordinance is not inconsistent with the statute.

11. Section 3(b) of P.D. No. 198 [“(b) Appointing authority. The person empowered
to appoint the members of the Board of Directors of a local water district,
depending upon the geographic coverage and population make-up of the
particular district. In the event that more than seventy-five percent of the total
active water service connections of a local water district are within the boundary
of any city or municipality, the appointing authority shall be the mayor of that
city or municipality, as the case may be; otherwise, the appointing authority shall
be the governor of the province within which the district is located. If portions of
more than one province are included within the boundary of the district, and the

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Alberto C. Agra, Ateneo Law School
 appointing authority is to be the governors then the power to appoint shall
rotate between the governors involved with the initial appointments made by
the governor in whose province the greatest number of service connections
exists.”] should be partially struck down for being repugnant to the local
autonomy granted by the 1987 Constitution to LGUs, and for being
inconsistent with R.A. No. 7160 (1991 Local Government Code) and related
laws on local governments (Rama vs. Moises, G.R. No. 197146, December 6.
2016).

Devolution and Deconcentration

1. Devolution refers to the act by which the national government confers power
and authority upon the various LGs to perform specific functions and
responsibilities (Section 17[e], 1991 LGC). The national government shall, six (6)
months after the effectivity of the 1991 LGC, effect the deconcentration of
requisite authority and power to the appropriate regional offices or field
offices of national agencies or offices whose major functions are not devolved
to LGUs (Section 528, 1991 LGC).

1.1 The power to regulate and responsibility to deliver basic services

are the functions devolved to LGs. Examples are (Section 17[e], 1991
LGC):

National Government Basic Services Regulatory Powers

Department of Agricultural extension Inspection of meat
Agriculture and on-site research products
Department of Community-based Enforcement of
Environment and forestry projects environmental laws
Natural Resources
Department of Health and hospital Quarantine
Health services
Department of Operation of Tricycles
Transportation and
Communications
Department of Public Public works locally Enforcement of
Works and Highways funded National Building Code

1.2 Devolution shall also include the transfer to LGUs of the records,
equipment, and other assets and personnel of national agencies
and offices corresponding to the devolved powers, functions, and
responsibilities (Section 17 [l], 1991 LGC). Devolved personnel
(former employees of the national government) may be

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Alberto C. Agra, Ateneo Law School
 reappointed by the city mayor (Plaza vs. Cassion, G.R. No. 136809,
July 27, 2004). Thus, the four components of devolution are:
transfer of authority to deliver basic services, regulatory powers,
assets and personnel.

2. Devolution is a legislative act. As to what state powers should be

decentralized and what may be delegated to LGs remains a matter of policy,
which concerns wisdom. It is therefore a political question (Basco vs. Philippine
Amusements and Gaming Corporation, G.R. No. 91649, May 14, 1991). Any
provision on a power of an LGU shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be resolved in favor of devolution of
powers (Section 5 [a], 1991 LGC).

3. There are two levels of decentralization, i.e., administrative decentralization

or deconcentration, and political decentralization or devolution (Disomangcop
vs. Secretary of Public Works and Highways, G.R. No. 149848, November 25, 2004;
Sections 17 and 528, 1991 LGC).

Administrative Decentralization Political Decentralization

Deconcentration Devolution
Powers to be transferred not Powers to be transferred are
specified specified
Transfer is from national
Transfer is from national
government agencies to its field government agencies to local
offices governments
Transfer is mandatory Transfer is mandatory on the
devolving national government
agency and the receiving local
government
Administrative in character Powers, responsibilities, personnel
and resources
6-month deadline from January 1, 6-month deadline from January 1,
1992 1992

4. Devolution entails the transfer of powers from national government agencies

(transferor; source of power) to LGs (transferee; recipient of powers).
Powers not devolved are retained by or remain with the relevant national
government agency.

4.1 The regulatory functions of the National Pollution Control

Commission were devolved to LGs. Pursuant to such devolution,
LGs may conduct inspections at reasonable times, without doing

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Alberto C. Agra, Ateneo Law School
 damage, after due notice to the owners of buildings, to ascertain
compliance with noise standards under the laws and order
compliance therewith, or suspend or cancel any building permits or
clearance certificates after due hearing (AC Enterprises vs. Frabelle
Properties Corporation, G.R. No. 166744, November 2, 2006).

4.2 The power to issue permits and locational clearances for locally-
significant projects is now lodged with cities and municipalities
with comprehensive land use plans. The power of the Housing Land
Use Regulatory Board (HLURB) to issue locational clearance is now
limited to projects considered to be of vital and national or
regional economic or environmental significance. The power to
act as appellate body over decisions and actions of local and
regional planning and zoning bodies and deputized officials of the
board was retained by the HLURB. (Iloilo City Zoning Board of
Adjustment and Appeals vs. Gegato-Abecia Funeral Homes, Inc., G.R.
No. 157118, December 8, 2003).

4.3 Cities now have the power to regulate the operation of tricycles-
for-hire and to grant franchises for the operation thereof. The
devolved power pertains to the franchising and regulatory powers
exercised by the Land Transportation Franchising and Regulatory
Board (LTFRB) and not its function to grant franchises to other
vehicles, and not the functions of the Land Transportation Office
relative to the registration of motor vehicles and issuances of
licenses for the driving thereof (Land Transportation Office vs. City
of Butuan, G.R. No. 131512, January 20, 2000).

4.4 The Department of Environment and Natural Resources retains the

power to confiscate and forfeit any conveyances utilized in
violation of the Forestry Code or other forest laws, rules and
regulations (Paat vs. Court of Appeals, G.R. No. 111107, January
10,1997).

4.5 The authority to grant franchises for the operation of jai-alai

frontons lies with Congress, while the regulatory function is vested
with the Games and Amusement Board (Lim vs. Pacquing, G.R. No.
115044, January 27, 1995).

4.6 Exempt from devolution, even to the ARMM, are nationally-

funded projects, facilities, programs and services. The plenary
power of Congress cannot be restricted on matters of common
interest (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014).

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Alberto C. Agra, Ateneo Law School
 4.7 Control and regulation of ground water under the Water Code is
vested with the National Water Resource Board, not with LGUs.
(City of Batangas vs. Philippine Shell Petroleum Corporation, G.R. No.
195003, June 7, 2017).

Executive Supervision

Chapter X, Section 4, 1987 Constitution:

“The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays shall ensure that the
acts of their component units are within the scope of their prescribed powers and
functions.”

1. The State shall ensure the autonomy of local governments (Section 25, Article
II, 1987 Constitution).

2. The 1987 Constitution defines and prescribes the relationship between the
President and the Executive Branch, and local governments. The relationship
is one of supervision, not control.

2.1 The President exercises direct supervision over autonomous

regions, provinces outside autonomous regions, highly-urbanized
cities, and independent component cities.

2.2 The President exercises general or indirect supervision over

provinces within autonomous regions, component cities and
municipalities, and barangays.

2.3 Provinces exercise direct supervision over component cities and

municipalities, and indirect supervision over barangays.

2.4 Cities and municipalities exercise direct supervision over barangays.

To illustrate, the President can suspend an erring provincial

governor (outside AR) but has no authority to suspend an erring
barangay official. The provincial governor can suspend an erring
mayor of a component city/ municipality but cannot suspend an
erring barangay official.

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Alberto C. Agra, Ateneo Law School
3. The President or the “higher” local government has no power of control over
LGs and “lower” LGs, respectively (Drilon vs. Lim, G.R. No. 112497, August 4,
1994; Social Justice Society vs. Atienza, G.R. No. 156052, February 13, 2008; Leynes
vs. Commission on Audit, G.R. No. 143596, December 11, 2003).

3.1 Control is the power of an officer to alter or modify or set aside

what a subordinate officer had done in the performance of his/her
duties and to substitute the judgment of the former for the latter.
An officer in control lays down the rules in the doing of an act. It
they are not followed, he/she may, in his/her discretion, order the
act undone or re-done by his/her subordinate or he/she may even
decide to do it himself/herself (Drilon vs. Lim, G.R. No. 112497, August
4, 1994; Social Justice Society vs. Atienza, G.R. No. 156052, February 13,
2008; Leynes vs. Commission on Audit, G.R. No. 143596, December 11,
2003).

3.2 Supervision is the power of a superior officer to see to it that

lower officers perform their functions in accordance with law. The
supervisor or superintendent merely sees to it that the rules are
followed, but he/she himself/herself does not lay down such rules,
nor does he/she have the discretion to modify or replace them. If
the rules are not observed, he/she may order the work done or re-
done but only to conform to the prescribed rules. He/she may not
prescribe his/her own manner for the doing of the act. He/she has
no judgment on this matter except to see to it that the rules are
followed (Drilon vs. Lim, G.R. No. 112497, August 4, 1994; Social Justice
Society vs. Atienza, G.R. No. 156052, February 13, 2008; Leynes vs.
Commission on Audit, G.R. No. 143596, December 11, 2003).

Supervision Control
o Overseeing o Lays down rules in doing of an
o Ensure that supervised unit act
follows law/ rules o Impose limitations when there is
o Allows interference if none imposed by law
supervised unit acted contrary o Decide for subordinate or
to law change decision
o Over actor and act o Substitute judgment over that
o There must be a law made by subordinate
o Only involves questions of law o Alter wisdom, law-conforming
(declare legal or illegal); not judgment or exercise of
wisdom or policy discretion
o Discretion to order act undone
or re-done

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Alberto C. Agra, Ateneo Law School
 o Prescribe manner by which act
is done

4. Supervision involves the power to review of executive orders and ordinances,

i.e., declare them ultra vires or illegal (Sections 30, 56 and 57, 1991 LGC); the
power to discipline (Section 61, 1991 LGC); the power to integrate
development plans and zoning ordinances (Sections 447, 458 and 467, 1991
LGC); the power to resolve boundary disputes (Section 118, 1991 LGC); the
power to approve leaves (Section 47, 1991 LGC), accept resignations (Section
82, 1991 LGC) and fill-up vacancies in the sanggunian (Section 44, 1991 LGC); and
the power to augment basic services (Section 17, 1991 LGC).

5. An LGU can:

5.1 Grant and release the disbursement for the hospitalization and
health care insurance benefits of provincial officials and
employees without any prior approval from the President since
there is no law requiring prior approval. Further, Administrative
Order No. 103 does not cover local governments (Negros Occidental
vs. Commission on Audit, G.R. No. 182574, September 28, 2010).

5.2 Provide allowances to judges, subject to availability of local funds.

The Department of Budget of Management cannot impose a cap on
the allowance since there is no law which limits the amount,
otherwise, this will amount to control (Leynes vs. Commission on
Audit, G.R. No. 143596, December 11, 2003).

5.3 Provide for additional allowances and other benefits to national

government officials stationed or assigned to a municipality or
city, provided that the grant of benefits does not run in conflict
with other statutes (Villarena vs. Commission on Audit, G.R. No.
145383-84, August 6, 2003).

5.4 Enact tax ordinances, subject to review by the Secretary of Justice

to ascertain the constitutionality or legality thereof. The Secretary
however, has no the right to declare the tax measure unjust,
excessive, oppressive or confiscatory, or direct the substitution of
provisions since this will amount to control (Drilon vs. Lim, G.R. No.
112497, August 4, 1994).

5.5 Expropriate agricultural land without securing approval from the

Department of Agrarian Reform (DAR) since there is no law which

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Alberto C. Agra, Ateneo Law School
 requires this. DAR’s authority is confined to the conversion of
agricultural lands (Camarines Sur vs. Court of Appeals, G.R. No.
175604, September 18, 2009).

5.6 Reclassify lands from residential to non-agricultural lands without

DAR approval as there is no law mandating such approval (Pasong
Bayabas Farmers Association vs. Court of Appeals, G.R. No. 142359 /
142980, May 25, 2004).

5.7 Elect representatives to the National Liga ng mga Barangay, as the

Department of Interior and Local Government (DILG) cannot
appoint an interim caretaker to manage and administer the affairs
of the Liga without violating local autonomy (National Liga ng mga
Barangay vs. Paredes, G.R. Nos. 130775/ 131939, September 27, 2004).

5.8 Privatize the administration of parking for environmental and

peace and safety reasons, both of which are within its powers
under Sec. 458(A)(5)(v) and (vi) of the LGC. By delegating
governmental functions in terms of regulating the designation and
use of parking spaces, as well as the collection of fees for such use,
the privatization contract takes the essential character of a
franchise because what is being privatized is a government-
monopolized function (Sangguniang Panlungsod ng Baguio City v.
Jadewell Parking Systems Corp., G.R. No. 169588, October 7, 2013).

5.9 Grant and release hospitalization and health care insurance

benefits to its officials and employees who were sickly and
unproductive due to health reasons. This criteria negates the
position that the benefits provide for supplementary retirement
benefits that augment existing retirement laws. Local autonomy
allows an interpretation of Sections 76 and 16 as granting petitioner
city the authority to create its organization development program
(City of General Santos vs. Antonino-Custodio, G.R. No. 199439, April
22, 2014).

6. However, an LGU cannot:

6.1 Go beyond the requirements set forth in the Cockfighting Law

despite the fact that cockfighting is a devolved power. Further, the
Cockfighting Law has not been repealed (Tan vs. Perena, G.R. No.
149743, February 18, 2005).

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 6.2 Authorize the city administrator to act on violations of the
National Building Code since under the law, only the city engineer,
as the building official, has the exclusive authority to act on matters
relating to the issuance of demolition permits or the revocation or
suspension thereof (People of the Philippines vs. Sandiganbayan, G.R.
No. 144159, September 29, 2004). It is the Building Official, and not
the City Mayor, who has the authority to order the demolition of
the structures under the National Building Code of the Philippines.
Moreover, before a structure may be abated or demolished, there
must first be a finding or declaration by the Building Official that
the building/structure is a nuisance, ruinous or dangerous.
(Alangdeo vs. City Mayor of Baguio, G.R. No. 206423, July 1, 2015)

6.3 Regulate the subscriber rates charged by Cable Television

operators within its territorial jurisdiction since this power is
vested with the National Telecommunications Commission (NTC) to
the exclusion of other bodies (Batangas CATV vs. Court of Appeals,
G.R. No. 138810, October 20, 2004).

6.4 In the absence of constitutional or legislative authorization, grant

franchises to cable television operators as this power has been
delegated to the NTC (Zoomzat vs. People of the Philippines, G.R. No.
135535, February 14, 2005).

6.5 Order a donation of delineated roads and streets without just

compensation. Section 50 contemplates roads and streets in a
subdivided property, not public thoroughfares built on a private
property that was taken from an owner for public purpose. A public
thoroughfare is not a subdivision road or street. Delineated roads
and streets, whether part of a subdivision or segregated for public
use, remain private and will remain as such until conveyed to the
·government by donation or through expropriation proceedings. An
owner may not be forced to donate his or her property even if it
has been delineated as road lots because that would partake of an
illegal taking. He or she may even choose to retain said properties.
If he or she chooses to retain them, however, he or she also retains
the burden of maintaining them and paying for real estate taxes.
When the road or street was delineated upon government request
and taken for public use the government has no choice but to
compensate the owner for his or her sacrifice, lest it violates the
constitutional provision against taking without just compensation
(Hon. Alvin P. Vergara, in his capacity as City Mayor of Cabanatuan
City vs. Lourdes Melencio S. Grecia, G.R. 185638, August 10, 2016).

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 7. Insofar as the President, Executive Branch, National Government Agencies
and Quasi-Corporations are concerned:

7.1 The President has the power to discipline erring local elective
officials. The power to discipline is not incompatible with
supervision (Joson vs. Torres, G.R. No. 131255, May 20, 1998).
Supervision and investigation are not inconsistent terms.
Investigation does not signify control, a power which the President
does not have (Ganzon vs. Court of Appeals, G.R. No. 93252, August 5,
1991).

7.2 The Philippine Amusement and Gaming Corporation (PAGCOR) can

set up casinos even without the approval of the LGs as the charter
of PAGCOR empowers it to centralize gambling (Magtajas vs. Pryce
Properties and Philippine Amusements and Gaming Corporation, G.R.
No. 111097, July 20, 1994).

7.3 The Laguna Lake Development Authority (LLDA), pursuant to its

charter, can order the dismantling of fishpens. Laguna de Bay
therefore cannot be subjected to fragmented concepts of
management policies where lakeshore LGs exercise exclusive
dominion over specific portions of the lake water (Laguna Lake
Development Authority vs. Court of Appeals, G.R. No. 120865-71,
December 7, 1995).

7.4 The LLDA, pursuant to its mandate, can issue cease and desist
orders against LGs to stop the dumping of its garbage in an open
dumpsite (Laguna Lake Development Authority, G.R. No. 110120,
March 16, 1994).

8. In resolving conflicts between the National Government Agencies (NGAs),

government-owned and -controlled corporations (GOCCs), and government
instrumentalities (GIs) on one hand and LGUs on the other, the Supreme
Court has ruled in favor of the former and latter applying the following
reasons:

In favor of NGAs, GOCCs and GIs In favor of LGUs

o Law is clear and categorical o Local autonomy
o Integration of concerns and o Local concern/ issue
policies at the national/ regional/ o ‘Isolated’ issue
inter-LGU levels o No law will be violated

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 o Centralization o Amounted to control, not just
o Avoid fragmentation supervision, if NGA/ GOCC/ GI
o Mandate exclusive under prevails
Charter/ law o Express repeal; Conclusive
o Implied repeals not favored implied repeal
o Instrumentalities of the State o Beyond powers of NGA/ GOCC
o National or cross-boundary o Local concerns are best
concerns are best addressed by addressed by LGUs (i.e.,
NGAs/ GOCCs Principles of Subsidiarity and
Stewardship)

Legislative Control

1. The State shall ensure the autonomy of local governments (Section 25, Article
II, 1987 Constitution).

2. Congress retains control of the LGUs although in a significantly reduced

degree now than under previous Constitutions. The power to create still
includes the power to destroy. The power to grant still includes the power to
withhold or recall. The National Legislature is still the principal of the LGs,
which cannot defy its will, or modify or violate its laws (Magtajas vs. Pryce
Properties and Philippine Amusements and Gaming Corporation, G.R. No. 111097,
July 20, 1994).

3. Under the 1987 Constitution, Congress has the power to:

3.1 Allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters
relating to the organization and operation of the local units
(Section 3, Article X, 1987 Constitution).

3.2 Prescribe guidelines and limitations on sources of local

government revenues and local power to levy taxes, fees, and
charges provided these are consistent with the basic policy of local
autonomy (Section 5, Article X, 1987 Constitution).

Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees, and charges subject to
such guidelines and limitations as the Congress may provide,

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 consistent with the basic policy of local autonomy. Such taxes, fees,
and charges shall accrue exclusively to the local governments.

3.3 Determine the just share in the national taxes of local

governments (Section 6, Article X, 1987 Constitution).

Local government units shall have a just share, as determined by law,

in the national taxes which shall be automatically released to them.

3.4 Provide the manner by which local governments receive their

equitable share in the proceeds of the utilization and development
of the national wealth within their respective areas (Section 7,
Article X, 1987 Constitution).

Local governments shall be entitled to an equitable share in the

proceeds of the utilization and development of the national wealth
within their respective areas, in the manner provided by law,
including sharing the same with the inhabitants by way of direct
benefits.

3.5 Set the term limits of barangay officials (Section 8, Article X, 1987
Constitution). Under R.A. No. 9164, the current term of office of
elective barangay officials is three years.

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.

3.6 Prescribe the manner by which sectoral representatives shall be

installed in local legislative bodies (Section 9, Article X, 1987
Constitution).

Legislative bodies of local governments shall have sectoral

representation as may be prescribed by law.

3.7 Define the criteria for the creation, division, merger, abolition and
substantial alteration of boundaries of local governments (Section
10, Article X, 1987 Constitution).

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 3.8 Establish special metropolitan political subdivisions (Section 11,
Article X, 1987 Constitution).

The Congress may, by law, create special metropolitan political

subdivisions, subject to a plebiscite as set forth in Section 10 hereof.
The component cities and municipalities shall retain their basic
autonomy and shall be entitled to their own local executives and
legislative assemblies. The jurisdiction of the metropolitan authority
that will hereby be created shall be limited to basic services requiring
coordination.

3.9 Pass the organic act of the autonomous regions (Section 18, Article
X, 1987 Constitution).

3.10 Provide for exemption to devolution such as nationally-funded

projects, facilities, programs and services since the power of
Congress to legislate on all matters of common interest is plenary
(Imbong v. Ochoa, G.R. No. 204819, April 8, 2014).

4. Congress exercises control over the properties of LGs.

4.1 Article 424 of the Civil Code lays down the basic principles that
properties of the public dominion devoted to public use and made
available to the public in general are outside the commerce of men
(persons) and cannot be disposed of or leased by the LGU to
private persons (Macasiano vs. Diokno, G.R. no. 97764, August 10,
1992).

4.2 Pursuant to the Regalian doctrine, any land that has never been
acquired through purchase, grant or any other mode of acquisition
remains part of the public domain and is owned by the State. LGs
cannot appropriate to themselves public lands without prior grant
from the government (Rural Bank of Anda vs. Roman Catholic
Archbishop of Lingayen-Dagupan, G.R. No. 155051, May 21, 2007).

4.3 A lot comprising the public plaza is property of public dominion;

hence, not susceptible to private ownership by the church or by the
municipality (Roman Catholic Bishop of Kalibo, Aklan vs. Municipality
of Buruanga, Aklan, G.R. No. 149145, March 31, 2006).

4.4 A city can validly reconvey a portion of its street that has been
closed or withdrawn from public use where Congress has

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 specifically delegated to such political subdivision, through its
charter, the authority to regulate its streets. Such property
withdrawn from public servitude to be used or conveyed for any
purpose for which other property belonging to the city may be
lawfully used or conveyed. (Figuracion vs. Libi, G.R. No. 155688
November 28, 2007)

4.5 The conversion of the public plaza into a commercial center is

beyond the municipality’s jurisdiction considering the property’s
nature as one for public use and thereby, forming part of the public
dominion. Accordingly, it cannot be the object of appropriation
either by the State or by private persons. Nor can it be the subject
of lease or any other contractual undertaking (Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667, April 17, 2013; In an Amended
Decision dated April 22, 2015, the Second Division set aside the
decision and remanded the case.)

Part 3. POWERS OF LOCAL GOVERNMENTS

Delegation and Interpretation of Powers

1. LGs have constitutional, statutory and jurisprudential powers.

1.1 The sources of powers of LGs are the 1987 Constitution, the 1991
LGC, statutes, charters of LGs and jurisprudence or case law.

1.2 The power to tax is a constitutional (Section 5, Article X, 1987

Constitution) and statutory power (Section 18, 1991 LGC). Other than
the 1991 LGC, Republic Act No. 7305 or the Magna Carta for Public
Health Workers, Republic Act No. 7883 or the Barangay Health
Workers’ Benefits and Incentives Act of 1995, among others, are
the statutes that govern LGs. The Supreme Court in the case of
Pimentel vs. Aguirre (G.R. No. 132988, July 19, 2000) declared that
LGs have fiscal autonomy.

1.3 Constitutional powers cannot be repealed or modified by Congress

save in a constitutional amendment. Statutes can be repealed or
modified by Congress. Powers defined or interpreted by the
Supreme Court can be re-defined and re-interpreted by it.

1.4 There are other classifications of LGU powers: (1) governmental

(e.g. power to legislate) and proprietary (e.g. operating a public

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 market); (2) codal-1991 LGC (e.g. power to close local roads) and
non-codal (e.g. power of operational control over police under
Republic Acts Nos. 6975 and 8551; devolution of training services
under the Technical Education and Skills Development Authority
pursuant to Republic Act No. 7796); (3) state-delegated (e.g. police
power) and devolved (e.g. barangay daycare centers); (4) express
(e.g. power to create an office) and implied (e.g. power to abolish
that office; (5) executive (e.g. power to veto an ordinance) and
legislative (e.g. power to enact an ordinance); (6) general
legislative (e.g. power to issue business permits) and police power
proper (e.g. power to impose a curfew); (7) intramural (e.g. power
of eminent domain) and extramural (e.g. police purposes); (8)
mandatory (e.g. power to deliver basic services as part of
devolution) and discretionary (e.g. power to expropriate a piece of
property); (9) internal (e.g. power to adopt the sanggunian internal
rules of procedure) and external (e.g. power to enact a zoning
ordinance); and (10) specific to an LGU (e.g. power to legislate) and
inter-LGU (e.g. power to enter into a collaborative alliance with
other LGs).

2. Congress “allocates among the different local government units their powers,
responsibilities, and resources, and provides for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation
of the local units” (Section 3, Article X, 1987 Constitution).

3. The following are the rules of interpretation of the powers of LGs:

3.1 Where a law is capable of two interpretations, one in favor of

centralized power and the other beneficial to local autonomy, the
scales must be weighed in favor of autonomy (San Juan vs. Civil
Service Commission, G.R. No. 92299, April 19, 1991).

3.2 Any provision on a power of an LGU shall be liberally interpreted in

its favor, and in case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the lower LGU
(Section 5[a], 1991 LGC).

3.3 Any fair and reasonable doubt as to the existence of the power
shall be interpreted in favor of the LGU concerned (Section 5[a],
1991 LGC).

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 a. Considering that the powers of the Department of Energy
regarding the “Pandacan Terminals” are not categorical, any
doubt as to the validity of a zoning ordinance disallowing the
maintenance of such terminals must be resolved in favor of the
ordinance’s validity. (Social Justice Society vs. Atienza, G.R. No.
156052, February 13, 2008)

b. While the law did not expressly vest on provincial governments

the power to abolish that office, absent however, any contrary
provision, that authority should be deemed embraced by
implication from the power to create it (Javier vs. Court of
Appeals, G.R. No. L-49065, June, 1, 1994).

c. The provision in the city charter on the local power to provide

for the maintenance of waterworks for supplying water to the
inhabitants of the city does not carry with it the right and
authority to appropriate water. (Buendia vs. City of Iligan, G.R.
No. 132209, April 29, 2005)

d. Statutes conferring the power of eminent domain to political

subdivisions cannot be broadened or constricted by implication
(Province of Camarines Sur vs. Court of Appeals, G.R. No. 175604,
September 18, 2009).

3.4 In case of doubt, any tax ordinance or revenue measure shall be

construed strictly against the LGU enacting it, and liberally in favor
of the taxpayer. Any tax exemption, incentive or relief granted by
any LGU pursuant to the provisions of this Code shall be construed
strictly against the person claiming it (Section 5[b], 1991 LGC).

3.5 The general welfare provisions in the 1991 LGC shall be liberally
interpreted to give more powers to LGs in accelerating economic
development and upgrading the quality of life for the people in the
community (Section 5[c], 1991 LGC).

a. The liberal interpretation of the general welfare clause supports

the stance that a city can grant early retirement benefits to its
employees since such benefit does not violate the rule against
the proliferation of retirement benefits (City of General Santos
vs. Antonino-Custodio, G.R. No. 199439, April 22, 2014).

3.6 Rights and obligations existing on the date of effectivity of the 1991
LGC and arising out of contracts or any other source of

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 presentation involving an LGU shall be governed by the original
terms and conditions of said contracts or the law in force at the
time such rights were vested (Section 5[d], 1991 LGC).

3.7 In the resolution of controversies arising under the 1991 LGC where
no legal provision or jurisprudence applies, resort may be had to
the customs and traditions in the place where the controversies
take place (Section 5[e], 1991 LGC).

3.8 In interpreting statutory provisions on municipal fiscal powers,

doubts will have to be resolved in favor of municipal corporations
(San Pablo City vs. Reyes, G.R. No. 127708, March 25, 1999).

3.9 In case of doubt, any tax ordinance or revenue measure shall be

construed strictly against the LG enacting it, and liberally in favor of
the taxpayer. Any tax exemption, incentive or relief granted by any
local government unit pursuant to the provisions of 1991 LGC shall
be construed strictly against the person claiming it. (Section 5[b],
1991 LGC)

3.10 Section 206 of the LGC categorically provides that every person by
or for whom real property is declared, who shall claim exemption
from payment of real property taxes imposed against said
property, shall file with the provincial, city or municipal assessor
sufficient documentary evidence in support of such claim. The
burden of proving exemption from local taxation is upon whom the
subject real property is declared. By providing that real property
not declared and proved as tax-exempt shall be included in the
assessment roll, the above quoted provision implies that the local
assessor has the authority to assess the property for realty taxes,
and any subsequent claim for exemption shall be allowed only
when sufficient proof has been adduced supporting the claim.
Thus, if the property being taxed has not been dropped from the
assessment roll, taxes must be paid under protest if the exemption
from taxation is insisted upon (National Power Corporation vs. The
Provincial Treasurer of Benguet, G.R. No. 209303, November 14, 2016).

Police Power

1. Police power is the plenary power vested in the legislature to make statutes
and ordinances to promote the health, morals, peace, education, good order
or safety and general welfare of the people. The State, through the

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 legislature, has delegated the exercise of police power to LGUs, as agencies
of the State. This delegation of police power is embodied in Section 16 of the
1991 LGC, known as the General Welfare Clause (Fernando v. St. Scholastica’s
College, G.R. No. 161107, March 12, 2013).

1.1 Police power of LGs is a statutory delegated power under Section 16

of the 1991 LGC. The general welfare clause is the delegation in
statutory form of the police power of the State to LGs (Manila vs.
Laguio, G.R. No. 118127, April 12, 2005; Ermita-Malate Hotel and Motel
Operations Association, Inc., vs. Mayor of Manila, G.R. No. L-24693,
July 31, 1967).

1.2 Section 16 of the 1991 LGC states: “Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.”

2. For a valid exercise of police power, two requisites must concur: (1) Lawful
Subject (i.e., substantive due process; equal protection; public interest
requires interference); and (2) Lawful Method (i.e., procedural due process;
reasonable means to achieve the purpose) (Lucena Grand Central Terminal vs.
JAC Liner, G.R. No. 148339, February 23, 2005).

2.1 An LGU is considered to have properly exercised its police powers

only when the following requisites are met: (1) the interests of the
public generally, as distinguished from those of a particular class,
require the interference of the State; and (2) the means employed
are reasonably necessary for the attainment of the object sought to
be accomplished and are not unduly oppressive upon individuals.
The first requirement refers to the equal protection clause, and the
second to the due process clause of the Constitution (Parayno vs.
Jovellanos, G.R. No. 148408 July 14, 2006; Lucena Grand Central

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 Terminal vs. JAC Liner, G.R. No. 148339, February 23, 2005; (Ferrer vs.
Bautista, G.R. No. 210551, June 30, 2015).

2.2 The power to establish zones for industrial, commercial and

residential uses is derived from the police power itself and is
exercised for the protection and benefit of the residents of a
locality (Social Justice Society vs. Atienza, G.R. No. 156052, February
13, 2008).

2.3 A municipality failed to comply with the due process clause when it
passed a Resolution ordering the closure/transfer of a gasoline
station where it did not even attempt to determine if there was an
actual violation of a zoning ordinance (Parayno vs. Jovellanos, G.R.
No. 148408 July 14, 2006).

2.4 An ordinance aimed at relieving traffic congestion meets the first

standard. However, declaring bus terminals as nuisance per se or
public nuisances and ordering their closure or relocation
contravenes the second standard. Terminals are not public
nuisances. Their operation is a legitimate business which, by itself,
cannot be said to be injurious to the rights of property, health, or
comfort of the community (Lucena Grand Central Terminal vs. JAC
Liner, G.R. No. 148339, February 23, 2005).

2.5 Generally, LGUs have no power to declare a particular thing as a

nuisance unless such a thing is a nuisance per se. Despite the hotel’s
classification as a nuisance per accidens, however, the LGU may
nevertheless properly order the hotel’s demolition. This is
because, in the exercise of police power and the general welfare
clause, property rights of individuals may be subjected to restraints
and burdens in order to fulfil the objectives of the government.
(Aquino v. Municipality of Malay, Aklan, G.R. No. 211356, September
29, 2014).

2.6 Demolitions and evictions may be validly carried out even without
a judicial order in the following instances: (1) when the property
involved is an expropriated property xxx pursuant to Section 1 of
P.D. No. 1315; (2) when there are squatters on government
resettlement projects and illegal occupants in any homelot,
apartment or dwelling unit owned or administered by the NHA
pursuant to Section 2 of P.D. No. 1472; (3) when persons or entities
occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways and other public places

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 such as sidewalks, roads, parks and playgrounds, pursuant to
Section 28(a) of R.A. No. 7279; (4) when government infrastructure
projects with available funding are about to be implemented
pursuant to Section 28(b) of R.A. No. 7279 (Kalipunan ng Damayang
Mahihirap, Inc. vs. Robredo, G.R. No. 200903, July 22, 2014).

2.7 If the enforcement of a writ of execution would be limited to one

option out of three provided in the LGC (i.e., demolition of the
structures), it is not due to any defect in the writ itself, but to the
circumstances of the case and the situation of the parties at the
time of execution. Thus, the writ would still be valid (Vargas vs.
Cajucom, G.R. No. 171095, June 22, 2015).

3. According to Fernando v. St. Scholastica’s College (G.R. No. 161107, March 12,
2013), to successfully invoke the exercise of police power as the rationale for
the enactment of an ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used: (1) the rational relationship
test, and (2) the strict scrutiny test.

3.1 The rational basis test has been applied mainly in analysis of equal
protection challenges. Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate
governmental interest. Under intermediate review, governmental
interest is extensively examined and the availability of less
restrictive measures is considered.

a) Under the rational relationship test, an ordinance must pass the

following requisites: (1) the interests of the public generally, as
distinguished from those of a particular class, require its
exercise, and (2) the means employed are reasonably necessary
for the accomplishment of the purpose and not unduly
oppressive upon individuals. In short, there must be a
concurrence of a lawful subject and lawful method. Lacking a
concurrence of these two requisites, the police power measure
shall be struck down as an arbitrary intrusion into private rights
and a violation of the due process clause.

Thus, this test is not complied with when an ordinance requires

that a private owner demolish a wall or build a fence with a
setback for the purpose of allowing the general public to use
the property of the private owner for free depriving the owner
of exclusive use. Compelling the respondents to construct their

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 fence in accordance with the assailed ordinance is, thus, a clear
encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.
An LGU may not, under the guise of police power, permanently
divest owners of the beneficial use of their property solely to
preserve or enhance the aesthetic appearance of the
community.

b) A substantially overinclusive or underinclusive classification

tends to undercut the governmental claim that the classification
serves legitimate political ends. Where overinclusiveness is the
problem, the vice is that the law has a greater discriminatory or
burdensome effect than necessary. In this light, an ordinance is
void for carrying an invidious classification, and for thereby
violating the Equal Protection Clause (City Government of Davao
vs. Court of Appeals, G.R. 189305, August 16, 2016).

3.2 Applying strict scrutiny, the focus is on the presence of compelling,

rather than substantial, governmental interest and on the absence
of less restrictive means for achieving that interest.

3.3 The precautionary principle shall only be relevant if there is

concurrence of three elements, namely: uncertainty, threat of
environmental damage and serious or irreversible harm. In
situations where the threat is relatively certain, or ·that the causal
link between an action and environmental damage can be
established, or the probability of occurrence can be calculated, only
preventive, not precautionary measures, may be taken. Neither will
the precautionary principle apply if there is no indication of a threat
of environmental harm, or if the threatened harm is trivial or easily
reversible (City Government of Davao vs. Court of Appeals, G.R.
189305, August 16, 2016).

4. The general welfare clause has two branches (Rural Bank of Makati vs.
Municipality of Makati, G.R. No. 150763 July 02, 2004).

4.1 The first, known as the general legislative power, authorizes the
local legislative council to enact ordinances and make regulations
not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the local
legislative council by law (Rural Bank of Makati vs. Municipality of
Makati, G.R. No. 150763 July 02, 2004). An example would be the

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 abatement of a nuisance as this is an explicit power under the 1991
LGC [Sections 447 (a)(4)(ii) and 458 (a)(4)(ii)].

4.2 The second, known as the police power proper, authorizes the
local government to enact ordinances as may be necessary and
proper for the health and safety, prosperity, morals, peace, good
order, comfort, and convenience of the municipality and its
inhabitants, and for the protection of their property (Rural Bank of
Makati vs. Municipality of Makati, G.R. No. 150763 July 02, 2004). An
example would be the imposition of curfew.

5. The power to legislate under the General Welfare Clause is not meant to be an
invincible authority. In fact, Salaveria and Abendan emphasized the
reasonableness and consistency of the exercise by the local government units
with the laws or policies of the State. More importantly, because the police
power of the local government units flows from the express delegation of the
power by Congress, its exercise is to be construed in strictissimi juris. Any
doubt or ambiguity arising out of the terms used in granting the power should
be construed against the local legislative units. Judicial scrutiny comes into
play whenever the exercise of police power affects life, liberty or property.
The presumption of validity and the policy of liberality are not restraints on the
power of judicial review in the face of questions about whether an ordinance
conforms with the Constitution, the laws or public policy, or if it is
unreasonable, oppressive, partial, discriminating or in derogation of a
common right. The ordinance must pass the test of constitutionality and the
test of consistency with the prevailing laws (City Government of Davao vs.
Court of Appeals, G.R. 189305, August 16, 2016).

6. In the exercise of police power, an LGU can:

3.1 Issue zoning classification. A zoning ordinance is defined as a local

city or municipal legislation which logically arranges, prescribed,
defines and apportions a given political subdivision into specific
land uses as present and future projection of needs (Pasong
Bayabas Farmers Association vs. Court of Appeals, G.R. Nos. 142359/
142980, May 25, 2004).

3.2 Prohibit the expansion of a hospital based on the approval of a

new zoning ordinance identifying another zone for hospitals, but
which allows existing structures to continue in their present
location (Delfino vs. St. James Hospital, Inc., G.R. No. 166735,
November 23, 2007).

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 3.3 Restrict the use of property since contractual restrictions on the
use of property could not prevail over the reasonable exercise of
police power through zoning regulations (United BF Homes vs. City
Mayor of Paranaque, G.R. 41010, February 07, 2007; Ortigas & Co. vs.
Feati Bank and Trust Co., G.R. No. L-24670, December 14, 1979).

3.4 Regulate 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 (Tatel vs. Municipality of Virac,
G.R. No. 40243, March 11, 1992).

3.5 Order the closure and padlocking of a plant causing pollution

when the closure was in response to complaints of residents, after
an investigation was conducted, when there was no building permit
from the host municipality, and when the temporary permit to
operate by the National Pollution Control Commission has expired
(Technology Developers, Inc. vs. Court of Appeals, G.R. No. 94759,
January 21, 1991).

3.6 Regulate the installation and maintenance of a

telecommunications tower. In the exercise of its police power, it
does not encroach on NTC’s regulatory powers (Smart
Communications vs. Municipality of Malvar, Batangas, G.R. No.
204429, February 18, 2014).

3.7 Order the closing and demolition of establishments. This power

granted by the LGC, is not the same power devolved in favor of the
LGU under Sec. 17 (b)(2)(ii), as above-quoted, which is subject to
review by the DENR (Aquino v. Municipality of Malay, Aklan, G.R. No.
211356, September 29, 2014).

3.8 Order the stoppage of quarrying operations. In order for an entity

to legally undertake a quarrying business, he must first comply with
all the requirements imposed not only by the national government
(Mines and Geosciences Bureau and DENR), but also by the local
government unit where his business is situated (Province of Cagayan
v. Lara, G.R. No. 188500, July 24, 2013).

3.9 Supervise and control the collection of garbage within its

corporate limits. Ordinances regulating waste removal carry a
strong presumption of validity. Necessarily, LGUs are statutorily
sanctioned to impose and collect such reasonable fees and charges

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 for services rendered (Ferrer vs. Bautista, G.R. No. 210551, June 30,
2015).

3.10 Purchase the property in behalf of the city (by the City Treasurer),
in the absence of the public in the public bidding. Reason would
dictate that this purchase by the city is the very forfeiture
mandated by the law. The contemplated “forfeiture” in the
provision points to the situation where the local government ipso
facto “forfeits” the property for want of a bidder (The City of Davao
vs. Intestate Estate of Amado S. Dalisay, G.R. No. 207791, July 15, 2015).

3.11 Maintain the public order through the issuance by the Punong
Barangay of a barangay protective order under the Anti-Violence
against Women and Children Act (Fua v. Mangrobang, 714 SCRA 428).

3.12 Substantiate its defense of the power to regulate businesses

within its territorial jurisdiction (City of Iloilo vs. Judge Honrado, G.R.
No. 160399, December 9, 2015).

3.13 Issue a cease and desist order and order the closure of a poultry
farm for failure to apply for and secure the necessary business
permit to operate, on account of inability to obtain the required
barangay clearance due to complaints of foul odor being emitted
by the said farm (Cayabyab vs. Dimson, G.R. No. 223862, July 10, 2017).

3.14 Enact curfew ordinances narrowly tailored as to ensure minimal

constraint not only on the minors' right to travel but also on their
other constitutional rights (Samahan ng mga Progresibong Kabataan
(SPARK) vs. Quezon City, G.R. No. 225442, August 8, 2017).

2. However, an LGU cannot:

4.1 Require a private owner to demolish a wall or build a fence with a

setback for the purpose of allowing the general public to use the
property of the private owner for free depriving the owner of
exclusive use (Fernando v. St. Scholastica’s College, G.R. No. 161107,
March 12, 2013).

4.2 Prohibit the operation of sauna and massage parlors, karaoke

bars, beerhouses, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels, inns or order their
transfer or conversion without infringing the constitutional
guarantees of due process and equal protection of laws not even

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 under the guise of police power (Ermita-Malate Hotel and Motel
Operations Association, Inc., vs. Mayor of Manila, G.R. No. L-24693,
July 31, 1967).

4.3 Enact an ordinance preventing motels from offering wash rates

and renting out a room more than once a day is an unreasonable
exercise of police power where the behavior which the ordinance
seeks to curtail (i.e., prostitution, use of illicit drugs) is already
prohibited and can be curtailed by applying existing laws
(Whitelight Corporation vs. City of Manila, G.R. No. 122846, January
20, 2009).

4.4 Prohibit the operation of nightclubs. They may be regulated, but

not prevented from carrying on their business (Dela Cruz vs. Paras,
G.R. Nos. L-42571-72, July 25, 1983).

4.5 Modify the terms of an application for a public assembly permit

without indicating how the city mayor arrived at such a decision
against the standard of the clear and present danger test
(Integrated Bar of the Philippines vs. Atienza, G.R. No. 175241,
February 24, 2010).

4.6 Impose an absolute ban on public assemblies. A mayor, however,

can deny the issuance of a rally permit on the ground of clear and
present danger to public order, public safety, public convenience,
public morals or public health (Bayan vs. Ermita, G.R. No. 169838,
April 25, 2006).

4.7 Regulate the practice of a profession, like that of optometry,

through the issuance of a permit. Such a function is within the
exclusive domain of the administrative agency specifically
empowered by law to supervise the profession, i.e., Professional
Regulations Commission and the Board of Examiners in Optometry
(Acebedo Optical vs. Court of Appeals, G.R. No. 100152 March 31,
2000).

4.8 Cause the summary abatement of concrete posts where the posts
did not pose any hazard to the safety of persons and property but
merely posed an inconvenience to the public by blocking the free
passage of people to and from the national road. The post is not
nuisance per se (Telmo vs. Bustamante, G.R. No. 182567, July 13,
2009).

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 4.9 Cause the destruction of quonset building where copra is stored
since this is a legitimate business. By its nature, it cannot be said to
be injurious to rights of property, of health or of comfort of the
community. If it is a nuisance per accidens it may be so proven in a
hearing conducted for that purpose (Estate Francisco vs. Court of
Appeals, G.R. No. 95279, July 26, 1991).

4.10 Order the closure of a bank for non-payment of taxes since the
appropriate remedies to enforce payment of delinquent taxes or
fees are provided in Section 62 of the Local Tax Code. Closure is not
a remedy (Rural Bank of Makati vs. Municipality of Makati, G.R. No.
150763, July 02, 2004).

4.11 Order summary demolition or eviction if it was not shown that the
structures are in danger areas or public areas, such as a sidewalk,
road, park, or playground; that a government infrastructure project
is about to be implemented; and that there is a court order for
demolition or eviction; or when the occupants are neither new
squatters nor professional squatters nor members of squatting
syndicates as defined in RA No. 7279. (Alangdeo vs. City Mayor of
Baguio, G.R. No. 206423, July 1, 2015)

4.12 Demand compliance with an ordinance within an unreasonable

period. Requiring compliance with the consequences of the ban
within the (insufficient) three-month period under pain of penalty
like fine, imprisonment and even cancellation of business permits
would definitely be oppressive as to constitute abuse of police
power (City Government of Davao vs. Court of Appeals, G.R. 189305,
August 16, 2016).

4.13 Regulate and control the use of pesticides. The enumerated

devolved functions to the local government units do not include
the regulation and control of pesticides and other agricultural
chemicals (since this is within the jurisdiction of the Fertilizer and
Pesticide Authority). An ordinance that regulates and controls the
same is therefore ultra vires. As a local government unit, the City of
Davao could act only as an agent of Congress, and its every act
should always conform to and reflect the will of its principal (City
Government of Davao vs. Court of Appeals, G.R. 189305, August 16,
2016).

4.14 Control and regulate the use of ground water. An ordinance that
effectively contravenes the provisions of the Water Code as it

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 arrogates unto LGU the power to control and regulate the use of
ground water which, by virtue of the provisions of the Water Code,
pertains solely to the NWRB (City of Batangas vs. Philippine Shell
Petroleum Corporation, G.R. No. 195003, June 7, 2017).

4.15 Enact ordinances with penal provisions imposing reprimand and

fines/imprisonment on minors since they conflict with Section 57-A
of the Juvenile Justice and Welfare Act of 2006. (Samahan ng mga
Progresibong Kabataan (SPARK) vs. Quezon City, G.R. No. 225442,
August 8, 2017).

3. No compensation is needed to be paid by the LGU as there is no compensable

taking in the condemnation of private property under police power. Property
condemned under police power is usually noxious or intended for a noxious
purpose (Didipio Earth-Savers’ Multi-Purpose Association vs. Gozun, G.R. No.
157882, March 30, 2006).

5.1 In the exercise of police power, property rights of private

individuals are subjected to restraints and burdens in order to
secure the general comfort, health, and prosperity of the state.
Where a property interest is merely restricted because the
continued use thereof would be injurious to public welfare, or
where property is destroyed because its continued existence would
be injurious to public interest, there is no compensable taking
(Didipio Earth-Savers’ Multi-Purpose Association vs. Gozun, G.R. No.
157882, March 30, 2006).

5.2 In the exercise of its police power regulation, the state restricts the
use of private property, but none of the property interests in the
bundle of rights which constitute ownership is appropriated for use
by or for the benefit of the public (Didipio Earth-Savers’ Multi-
Purpose Association vs. Gozun, G.R. No. 157882, March 30, 2006).

Eminent Domain

1. Eminent Domain is a statutory power of LGs. The 1991 LGC defines the power
and enumerates the requirements, to wit: “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

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 the power of eminent domain may not be exercised unless a valid and definite
offer has been previously made to the owner, and 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.” (Section 19, 1991 LGC).

2. The power of eminent domain delegated to LGs is in reality not eminent but
“inferior.” Congress is still the principal of LGs, and the latter cannot go
against the principal's will or modify the same (Beluso vs. Municipality of Panay,
G.R. No. 153974, August 07, 2006).

3. The power of eminent domain is essentially legislative in nature but may be

validly delegated to local government units. The basis for its exercise is
granted under Section 19 of Republic Act 7160. No hearing is actually required
for the issuance of a writ of possession, which demands only two
requirements: (a) the sufficiency in form and substance of the complaint, and
(b) the required provisional deposit. The sufficiency in form and substance of
the complaint for expropriation can be determined by the mere examination
of the allegations of the complaint (Municipality of Cordova vs. Pathfinder
Development Corporation, G.R. No. 205544, June 29, 2016).

4. Two mandatory requirements should underlie the Government's exercise of

the power of eminent domain namely: (1) that it is for a particular public
purpose; and (2) that just compensation be paid to the property owner. These
requirements partake the nature of implied conditions that should be
complied with to enable the condemnor to keep the property expropriated
(Hon. Alvin P. Vergara, in his capacity as City Mayor of Cabanatuan City vs.
Lourdes Melencio S. Grecia, G.R. 185638, August 10, 2016).

5. In the exercise of the power of eminent domain, it is basic that the taking of
private property must be for a public purpose (Section 19, 1991 LGC).

3.1 Public use is defined as whatever is beneficially employed for the

community (Barangay Sindalan, San Fernando vs. Court of Appeals,
G.R. No. 150640, March 22, 2007).

3.2 If the intended feeder road will only benefit the residents of a
private subdivision, then there is no valid purpose (Barangay

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 Sindalan, San Fernando vs. Court of Appeals, G.R. No. 150640, March
22, 2007).

3.3 The ordinance must show why the subject property was singled
out for expropriation or what necessity impelled the particular
choice or selection (Lagcao vs. Labra, G.R. No. 155746, October 13,
2004).

6. To justify the payment of just compensation, there must be compensable

taking. The expropriated property must be used after taking (Didipio Earth-
Savers’ Multi-Purpose Association vs. Gozun, G.R. 157882, March 30, 2006).

4.1 When a property interest is appropriated and applied to some

public purpose, there is compensable taking. The deprivation of use
can in fact be total and it will not constitute compensable taking if
nobody else acquires use of the property or any interest therein. If,
however, in the regulation of the use of the property, somebody
else acquires the use or interest thereof, such restriction
constitutes compensable taking (Didipio Earth-Savers’ Multi-Purpose
Association vs. Gozun, G.R. 157882, March 30, 2006).

4.3 Ordering a particular type of business to wind up, transfer,

relocate or convert to an allowable type of business in effect
permanently restricts the use of property and thus goes beyond
regulation. Just compensation is therefore required (Manila vs.
Laguio, G.R. No. 118127, April 12, 2005).

4.4 The determination of just compensation in eminent domain cases is

a judicial function and any valuation for just compensation laid
down in the statutes may serve only as a guiding principle or one of
the factors in determining just compensation but it may not
substitute the court's own judgment as to what amount should be
awarded and how to arrive at such amount (Hon. Alvin P. Vergara, in
his capacity as City Mayor of Cabanatuan City vs. Lourdes Melencio S.
Grecia, G.R. 185638, August 10, 2016).

4.5 Apart from the requirement that compensation for expropriated

land must be fair and reasonable, compensation, to be "just", must
also be made without delay. Without prompt payment,
compensation cannot be considered "just" if the property is
immediately taken as the property owner suffers the immediate
deprivation of both his land and its fruits or income. The rationale
for imposing the interest is to compensate the petitioners for the

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 income they would have made had they been properly
compensated for their properties at the time of the taking. There is
a need for prompt payment and the necessity of the payment of
interest to compensate for any delay in the payment of
compensation for property already taken. Settled is the rule that
the award of interest is imposed in the nature of damages for delay
in payment which in effect makes the obligation on the part of the
government one of forbearance. This is to ensure prompt payment
of the value of the land and limit the opportunity loss of the owner
that can drag from days to decades (Hon. Alvin P. Vergara, in his
capacity as City Mayor of Cabanatuan City vs. Lourdes Melencio S.
Grecia, G.R. 185638, August 10, 2016).

7. The foundation of the right to exercise eminent domain is genuine necessity

and that necessity must be of public character (Section 19, 1991 LGC).

5.1 Government may not capriciously or arbitrarily choose which

private property should be expropriated. The condemnor must
show the necessity (Jesus is Lord Christian School Foundation vs.
Pasig, G.R. No. 152230, August 09, 2005; Meycauyan vs. Intermediate
Appellate Court, G.R. No. 72126, January 29, 1988).

5.2 The claim of the LGU that the piece of property is the “shortest and
most suitable access road” and that the “lot has been surveyed as
the best possible ingress and egress” must be proven by a showing
of a preponderance of evidence (Jesus is Lord Christian School
Foundation vs. Pasig, G.R. No. 152230, August 09, 2005).

5.3 The right to take private property for public purposes necessarily
originates from the necessity and the taking must be limited to
such necessity. There is no genuine necessity when taking of
private property is done for the benefit of a small community which
seeks to have its own sports and recreational facility,
notwithstanding the fact that there is a recreational facility only a
short distance away (Masikip vs. City of Pasig, G.R. No. 136349,
January 23, 2006).

8. The enabling instrument for the exercise of eminent domain is an ordinance,

not a resolution (Section 19, 1991 LGC).

6.1 A resolution which merely expresses the sentiment of the

municipal council will not suffice (Beluso vs. Municipality of Panay,

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 G.R. No. 153974, August 07, 2006; Paranaque vs. VM Realty
Corporation, G.R. No. 127820 July 20, 1998).

6.2 In a resolution, there is no positive act of instituting the intended

expropriation proceedings (Antonio vs. Geronimo, G.R. No. 124779,
November 29, 2005).

6.3 The enactment of the ordinance must precede the filing of the
expropriation complaint (Saguitan vs. Mandaluyong City, G.R. No.
135087, March 14, 2000).

9. There must be a valid and definite offer (Section 19, 1991 LGC).

7.1 Reasonable efforts must be exhausted in acquiring the property

voluntarily (Jesus is Lord Christian School Foundation vs. Pasig, G.R.
No. 152230, August 09, 2005).

7.2 An LGU has the burden of proving compliance with the mandatory
requirement of a valid and definite offer to the owner of the
property before filing its complaint and the rejection thereof by the
latter. It is incumbent upon the condemnor to exhaust all
reasonable efforts to obtain the land it desires by agreement.
Failure to prove compliance with the mandatory requirement will
result in the dismissal of the complaint (Jesus is Lord Christian
School Foundation vs. Pasig, G.R. No. 152230, August 09, 2005).

7.3 The offer must be complete, indicating with sufficient clearness the
kind of contract intended and definitely stating the essential
conditions of the proposed contract. An offer would require,
among other things, a clear certainty on both the object and the
cause or consideration of the envisioned contract. There is no valid
offer when the letter sent by the LGU to the owner is a mere
invitation to a conference to discuss the project and the price
(Jesus is Lord Christian School Foundation vs. Pasig, G.R. No. 152230,
August 09, 2005).

10. In the exercise of this power, the Constitution and other pertinent laws must
be followed (Section 19, 1991 LGC).

8.1 Private lands rank last in the order of priority for purposes of
socialized housing. Expropriation proceedings are to be resorted to
only after the other modes of acquisition have been exhausted
under Republic Act. No. 7279, the Urban Development and Housing

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 Act of 1992 (Estate of Heirs of Late Ex-Justice Jose B.L. Reyes vs.
Manila, G.R. No. 132431/ 137146, February 12, 2004; Filstream
International vs. Court of Appeals, G.R. No. 125218 / 128077, January 23,
1998).

11. The authority of the supervising-higher LGU in exercising its review authority
over ordinances of supervised-lower LGU is limited to questions of law/legal
questions, i.e., whether or not the ordinances are within the powers of
supervised-lower LGU to enact; whether or not ultra vires; and whether or
not procedures were followed. The power to review does not extend to
choice of property to be expropriated; otherwise, this would amount to
control, not just supervision (Moday vs. Court of Appeals, G.R. No. 107916
February 20, 1997).

12. The approval of the Department of Agrarian Reform (DAR) is not required
before an LGU can expropriate an agricultural land (Province of Camarines Sur
vs. Court of Appeals, G.R. No. 175604, September 18, 2009).

13. Judicial review of the exercise of eminent domain is limited to the following
areas of concern: (1) the adequacy of the compensation; (2) the necessity of
the taking; and (3) the public use character of the purpose of the taking
(Masikip vs. City of Pasig, G.R. No. 136349, January 23, 2006).

11.1 An expropriation suit is incapable of pecuniary estimation.

Accordingly, it falls within the jurisdiction of Regional Trial Courts,
regardless of the value of the subject property. An expropriation
suit does not involve the recovery of a sum of money but involves
the government’s authority to expropriate (Bardillon vs. Masili, G.R.
No. 146886, April 30, 2003).

11.2 The requisites for authorizing immediate entry in the exercise of

an LGU’s right of eminent domain are as follows: (1) the filing of a
complaint for expropriation sufficient in form and substance; and
(2) the deposit of the amount equivalent to 15% of the fair market
value of the property to be expropriated based on its current tax
declaration. Upon compliance with these requirements, the
issuance of a writ of possession becomes ministerial (Iloilo City vs.
Legaspi, G.R. No. 154614, November 25, 2004).

a. For a writ of possession to issue, only two requirements are

required: (1) the sufficiency in form and substance of the
complaint; and (2) the required provisional deposit. No hearing
is required for the issuance of a writ of possession. The

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 sufficiency in form and substance of the complaint for
expropriation can be determined by the mere examination of
the allegations of the complaint (Iloilo City vs. Legaspi, G.R. No.
154614, November 25, 2004).

b. The law does not make the determination of a public purpose a

condition precedent to the issuance of a writ of possession
(Francia vs. Meycauayan, G.R. No. 170432, March 24, 2008).

c. The required deposit is based on the property’s current tax

declaration (Knecht, Inc. vs. Municipality of Cainta, G.R. 145254,
July 17, 2006).

11.3 The owner of the expropriated property has certain remedies.

a. The owner may file a mandamus case against the LGU in order
to compel its sanggunian to enact another appropriation
ordinance replacing a previous one which charged the
payment for just compensation to a non-existent bank account
(Ortega vs. City of Cebu, G.R. No. 181562-63, October 2, 2009).

b. 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 (Makati vs. Court of Appeals, G.R.
No. 898998-89, October 01, 1990; Yujuico vs. Atienza, G.R. No.
164282, October 12, 2005).

c. The non-filing of an expropriation case will not necessarily lead

to the return of the property to its owner. Recovery of
possession can no longer be allowed where the owner was
guilty of estoppel and, more importantly, where what was
constructed on the property was a public road. What is left to
the owner is the right to just compensation (Eusebio vs. Luis,
G.R. No. 162474, October 15, 2009).

Reclassification of Land

1. Reclassification is the act of specifying how agricultural lands shall be utilized

for non-agricultural (residential, industrial, commercial) as embodied in the

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 land use plan, subject to the requirements and procedure for land use
conversion (Section 20, 1991 LGC).

1.1 Conversion is different from reclassification. Conversion is the act

of changing the current use of a piece of agricultural land into some
other use as approved by the Department of Agrarian Reform
(DAR). Accordingly, a mere reclassification of agricultural land
does not automatically allow a landowner to change its use and
thus cause the ejectment of the tenants. He/she has to undergo
the process of conversion before he/she is permitted to use the
agricultural land for other purposes (Ros vs. DAR, G.R. No. 132477,
August 31, 2005).

Eminent Domain Zoning Reclassification Conversion

Compensable Police Power Administrative Administrative
Taking
Change of Owner No change of No change of No change of
(private to LGU) owner owner owner
Any land Any land Agricultural to Agricultural to
non-Agricultural non-Agricultural
Change actual use No change No change Change actual use
All LGUs Originates from Cities/ Department of
Cities/ Municipalities Agrarian Reform
Municipalities;
Province
integrates
No hearing No hearing Public hearing No hearing
mandated mandated required mandated

Public Land vs. Patrimonial Property

1. Properties of local governments are classified as either (a) properties for

public use, or (b) patrimonial properties. The capacity in which the property is
held by a local government is dependent on the use to which it is intended and
for which it is devoted. If the property is owned by the municipal corporation
in its public and governmental capacity, it is public and Congress has absolute
control over it; but if the property is owned in its private or proprietary
capacity, then it is patrimonial and Congress has no absolute control, in which
case, the municipality cannot be deprived of it without due process and

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 payment of just compensation (Sangguniang Panlalawigan of Bataan vs.
Congressman Garcia, G.R. No. 174964, October 5, 2016).

2. Property registered in the name of the municipal corporation but without

proof that it was acquired with its corporate funds is deemed held by it in trust
for the State. The grant of autonomy to local governments, although a radical
policy change under the 1973 and 1987 Constitutions, does not affect the
settled rule that they possess property of the public domain in trust for the
State (Sangguniang Panlalawigan of Bataan vs. Congressman Garcia, G.R. No.
174964, October 5, 2016).

Local Legislation

1. Local legislative power is the power of LGUs through their local legislative
councils to enact, repeal, amend, modify ordinances and issue resolutions.

1.1 Local legislative power shall be exercised by the sangguniang

panlalawigan for the province; the sangguniang panlungsod for the
city; the sangguniang bayan for the municipality; and the
sangguniang barangay for the barangay (Section 48, 1991 LGC).

2. Local legislation is referred to as subordinate legislation.

2.1 Local political subdivisions are able to legislate only by virtue of a

valid delegation of legislative power from the national legislature
except only that the power to create their own sources of revenue
and to levy taxes is conferred by the Constitution itself. They are
mere agents vested with what is called the power of subordinate
legislation. As delegates of Congress, LGUs cannot contravene but
must obey at all times the will of their principal. An enactment local
in origin cannot prevail against a decree, which has the force and
effect of a statute (Manila vs. Laguio, G.R. No. 118127, April 12, 2005).

2.2 An ordinance in conflict with a state law of general character and

statewide application is universally held to be invalid. The principle
is frequently expressed in the declaration that municipal
authorities, under a general grant of power, cannot adopt
ordinances which infringe upon the spirit of a state law or
repugnant to the general policy of the state. In every power to pass
ordinances given to a municipality, there is an implied restriction
that the ordinances shall be consistent with the general law

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 (Batangas CATV vs. Court of Appeals, G.R. No. 138810, October 20,
2004).

2.3 The delegate cannot be superior to the principal or exercise powers

higher than those of the latter (Lagcao vs. Labra, G.R. No. 155746,
October 13, 2004).

2.4 A proviso in an ordinance directing that the real property tax be

based on the actual amount reflected in the deed of conveyance or
the prevailing Bureau of Internal Revenue zonal value is invalid not
only because it mandates an exclusive rule in determining the fair
market value but more so because it departs from the established
procedures stated in the Local Assessment Regulations No. 1-92
(Allied Banking vs. Quezon City, G.R. No. 154126, October 11, 2005).

3. Local legislative acts are referred to as denominated ordinances. For an

ordinance to be valid, it must not only be within the corporate powers of the
LGU to enact and must be passed according to the procedure prescribed by
law, it must also conform to the following substantive requirements: (1) must
not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public policy; and
(6) must not be unreasonable (Lagcao vs. Labra, G.R. No. 155746, October 13,
2004; Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015).

4. As jurisprudence indicates, the tests are divided into the formal (i.e., whether
the ordinance was enacted within the corporate powers of the LGU and
whether it was passed in accordance with the procedure prescribed by law),
and the substantive (i.e., involving inherent merit, like the conformity of the
ordinance with the limitations under the Constitution and the statutes, as well
as with the requirements of fairness and reason, and its consistency with
public policy). (Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015)

5. In order for an ordinance to be valid, it must not only be within the corporate
powers of the concerned LGU to enact, but must also be passed in accordance
with the procedure prescribed by law. Moreover, the ordinance (i) must not
contravene the Constitution or any statute; (ii) must not be unfair or
oppressive; (iii) must not be partial or discriminatory; (iv) must not prohibit,
but may regulate trade; (v) must be general and consistent with public policy;
and (vi) must not be unreasonable (City of Batangas vs. Philippine Shell
Petroleum Corporation, G.R. No. 195003, June 7, 2017).

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6. The measure of the substantive validity of an ordinance is the underlying
factual basis for which it was enacted. Hence, without factual basis, an
ordinance will necessarily fail the substantive test for validity. (City of Batangas
v. Philippine Shell Petroleum Corporation, G.R. No. 195003, 7 June 2017).

7. Ordinances enacted by LGUs enjoy the presumption of constitutionality. To

overthrow this presumption, there must be a clear and unequivocal breach of
the Constitution, not merely a doubtful or argumentative contradiction. In
short, the conflict with the Constitution must be shown beyond reasonable
doubt. When doubt exists, even if well-founded, there can be no finding of
unconstitutionality (Tano vs. Socrates, G.R. No. 110249, August 21, 1997).

8. An ordinance must muster the test of constitutionality and the test of

consistency with the prevailing laws. If not, it is void. (Ferrer vs. Bautista, G.R.
No. 210551, June 30, 2015)

9. An ordinance carries with it the presumption of validity. The question of

reasonableness, though, is open to judicial inquiry. Much should be left thus
to the discretion of municipal authorities. Courts will go slow in writing off an
ordinance as unreasonable unless the amount is so excessive as to be
prohibitive, arbitrary, unreasonable, oppressive, or confiscatory. A rule which
has gained acceptance is that factors relevant to such an inquiry are the
municipal conditions as a whole and the nature of the business made subject
to imposition (Victorias Milling Co., Inc. v. Municipality of Victorias, G.R. No. L-
21183, September 27, 1968; Smart Communications, Inc. v. Municipality of Malvar,
Batangas, G.R. No. 204429, February 18, 2014).

10. A void legislative act such an ordinance granting a franchise to cable television
operators, a power vested on the National Telecommunications Commission,
does not confer any right nor vest any privilege (Zoomzat vs. People of the
Philippines, G.R. No. 135535, February 14, 2005).

11. Ordinances passed in the exercise of the general welfare clause and devolved
powers of LGUs need not be approved by the devolving agency in order to be
effective absent a specific provision of law (Tano vs. Socrates, G.R. No. 110249,
August 21, 1997). Otherwise, this would amount to control.

12. The objective adopted by the Sangguniang Panlungsod to promote the

constituents’ general welfare in terms of economic benefits cannot override
the very basic rights to life, security and safety of the people (Social Justice
Society vs. Mayor Lim, G.R. No. 187836, November 25, 2014).

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13. There are no unlawful disbursements of public funds when disbursements are
made pursuant to a re-enacted budget. Money can be paid out of the local
treasury since there is a valid appropriation (Villanueva vs. Ople, G.R. No. 165125,
October 18, 2005).

14. Local legislative councils enact ordinances and issue resolutions.

14.1 Legislative actions of a general and permanent character shall be

enacted in the form of ordinances, while those which are of a
temporary character shall be passed in the form of resolutions.
Matters relating to proprietary functions and to private concerns
shall also be acted upon by resolution (Art. 107, Implementing Rules
and Regulations of the 1991 LGC)

Ordinances Resolutions
Equivalent to Law Expression of Sentiment or
Opinion
Public or Governmental Private or Proprietary
More or Less Permanent Temporary
As a general rule, must As a general rule, only
undergo 3 readings undergoes 2 readings
All ordinances subject to Veto/ Only some resolutions subject to
Review Veto/ Review (i.e., local
development plan and public
investment program)
Examples: expropriation, tax, Congratulatory messages,
curfew, appropriations, authorizing local chief executive
exercise of police power to sign an agreement

15. LGUs can enter into contracts subject to certain requirements (Section
22[a][5], 1991 LGC).

15.1 Unless otherwise provided in the 1991 LGC, no contract may be

entered into by the local chief executive in behalf of the LGU
without prior authorization by the sanggunian concerned. A legible
copy of such contract shall be posted at a conspicuous place in the
provincial capitol or the city, municipal or barangay hall (Section
22[c], 1991 LGC). Without the council authorization/ ratification, the
contract is unenforceable.

15.2 A mayor validly entered into a Contract of Legal Services where the
sanggunian unanimously passed a resolution authorizing his/her to

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 hire a lawyer of his/her choice to represent the municipality’s
interest (Municipality of Tiwi vs. Betito, G.R. No. 171873, July 9, 2010).

15.3 The prior authorization may be in the form of an appropriation

ordinance passed for the year which specifically covers the project,
cost or contract to be entered into by the LGU (Quisumbing vs.
Garcia, G.R. No. 175527, December 8, 2008).

15.4 A loan agreement entered into by the provincial governor without

prior authorization from the sangguniang panlalawigan is
unenforceable. The sanggunian’s failure to impugn the contract’s
validity despite knowledge of its infirmity is an implied ratification
that validates the contract (Ocampo vs. People, G.R. Nos. 156547-51 /
156382-85, February 4, 2008).

15.5 The authority of the Punong Barangay to accept a donation on

behalf of the barangay is deemed ratified when through the years,
the sanggunian barangay did not repudiate the acceptance of the
donation and when the barangay and the people of the barangay
have continuously enjoyed the material and public service benefits
arising from the infrastructure projects put up on the subject
property (Dolar vs. Barangay Lublub, G.R. No. 152663, November 18,
2005).

15.6 A local chief executive has the authority to file suits for the
recovery of funds and property on behalf of the LGU, even without
the prior authorization from the sanggunian. Nowhere in the
enumerated powers and duties of the sanggunian can one find the
requirement of such prior authorization in favor of the local chief
executive for the purpose of filing suits on behalf of the LGU (City
of Caloocan vs. Court of Appeals, G.R. No. 145004, May 03, 2006).

15.7 For local government infrastructure projects, Regional Trial Courts

may issue provisional injunctive reliefs against government
infrastructure projects only when (1) there are compelling and
substantial constitutional violations; (2) there clearly exists a right
in esse; (3) there is a need to prevent grave and irreparable injuries;
(4) there is a demonstrable urgency to the issuance of the
injunctive relief; and (5) when there are public interest at stake in
restraining or enjoining the project while the action is pending that
far outweighs (a) the inconvenience or costs to the party to whom
the project is awarded and (b) the public benefits that will result
from the completion of the project. The time periods for the

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 validity of temporary restraining orders issued by trial courts should
be strictly followed. No preliminary injunction should issue unless
the evidence to support the injunctive relief is clear and convincing.
(Dynamic Builders and Construction Co., Inc. vs. Presbitero, G.R. No.
174201, April 7, 2015)

15.8 A municipality is a real party-in-interest and an indispensable party

that stands to be directly affected by any judicial resolution on the
case assailing the validity of the loan, considering that: (a) the
contracting parties to the loans are the bank and the municipality;
and (b) the municipality owns the Public Plaza as well as the
improvements constructed thereon, and must therefore be
impleaded in the case. (Land Bank vs. Cacayuran, G.R. No. 191667,
April 22, 2015)

15.9 Liabilities arising from construction contracts of LGUs do not

partake of loans or forbearance of money but are in the nature of
contracts of service. Hence, the rate of legal interest imposable on
the liability to pay for the service is 6% per annum. (WT
Construction, Inc. vs. The Province of Cebu, G.R. No. 208984,
September 16, 2015)

15.10 The terms and conditions of Loan Agreement No. 4833-PH, which is
an executive agreement within the purview of Section 4 of R.A.
No. 9184, being a project-based and government-guaranteed loan
facility, were incorporated and made part of the Subsidiary Loan
Agreement that was subsequently entered into by Land Bank with
the City Government of Iligan. Considering that Loan Agreement
No. 4833-PH expressly provides that the procurement of the goods
to be financed from the loan proceeds shall be in accordance with
the IBRD Guidelines and the provisions of Schedule 4, and that the
accessory SLA contract merely follows its principal's terms and
conditions, the procedure for competitive public bidding
prescribed under RA 9184 therefore finds no application to the
procurement of goods for the Iligan City Water Supply System
Development and Expansion Project (Land Bank of the Philippines
vs. Atlanta Industries, G.R. No. 193796, July 2, 2014).

16. The local legislative process has the following stages/steps: (1) sponsorship;
(2) 1st reading; (3) committee deliberations; (4) committee report; (5) 2nd
reading (interpellation and amendments); (6) 3rd readings, attestation; (7)
transmittal to local chief executive; (8) approval or veto; (9) publication/
posting; (10) effectivity; and (11) review by the supervising-higher sanggunian.

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17. A sanggunian is a collegial body.

17.1. Legislation requires the participation of all its members so that

they may not only represent the interests of their respective
constituents but also help in the making of decisions by voting
upon every question put upon the body (Zamora vs. Caballero, G.R.
No. 147767, January 14, 2004).

17.2 The acts of only a part of the sanggunian done outside the
parameters of the legal provisions are legally infirm. All such acts
cannot be given binding force and effect for they are considered
unofficial acts done during an unauthorized session (Zamora vs.
Caballero, G.R. No. 147767, January 14, 2004).

17.3 A majority of all members of the sanggunian who have been

elected and qualified shall constitute a quorum to transact official
business. The determination of the existence of a quorum is based
on the total number of members of the sanggunian without regard
to the filing of a leave of absence (Zamora vs. Caballero, G.R. No.
147767, January 14, 2004).

17.4 A sanggunian may provide for a vote requirement different from

that prescribed under the law (i.e., generally, majority vote) for
certain (but not all) ordinances as in amending a zoning ordinance.
(Casino vs. Court of Appeals, G.R. No. 91192, December 2, 1991).

17.5 The sanggunian’s verbal concurrence is not the concurrence

envisioned under the law. The sanggunian, as a legislative body,
acts through a resolution or an ordinance, adopted in a legislative
session (Montuerto vs. Ty, G.R. No. 177736, October 6, 2008).

17.6 There is nothing in the language of the law that restricts the
matters to be taken up during the first regular session merely to
the adoption or updating of the house rules. A supplemental
budget may be passed on the first session day of the sanggunian
(Malonzo vs. Zamora, G.R. No. 137718, July 27, 1999).

17.7 There is nothing in the law which prohibits the conduct of three
readings of a proposed ordinance from being held in just one
session day (Malonzo vs. Zamora, G.R. No. 137718, July 27, 1999).

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 18.8 Absent a law, local legislative councils have no contempt and
subpoena powers (Negros Oriental II Electric Cooperative Inc. vs.
Sangguniang Panlungsod of Dumaguete, G.R. No. 72492, November
05, 1987). This is not an inherent power of local councils.

18. Governors and mayors have the power to approve or veto ordinances. The
local chief executive may veto any ordinance of the sanggunian panlalawigan,
sangguniang panlungsod, or sanggunian bayan on the ground that it is ultra
vires or prejudicial to the public welfare, stating his reasons therefor in writing
(Section 55[a], 1991 LGC).

18.1 The governor or mayor has the power to veto the entire ordinance
or particular items thereof. The local chief executive, except the
punong barangay, shall have the power to veto any particular item
or items of an appropriations ordinance, an ordinance or resolution
adopting a local development plan and public investment program,
or an ordinance directing the payment of money or creating liability
(Section 55[b], 1991 LGC).

18.2 The local chief executive may veto an ordinance or resolution only
once. The sanggunian may override the veto of the local chief
executive concerned by two-thirds (2/3) vote of all its members,
thereby making the ordinance effective even without the approval
of the local chief executive concerned (Section 55[c], 1991 LGC).

18.3 The grant of the veto power confers authority beyond the simple
act of signing an ordinance or resolution as a requisite to its
enforceability. Such power accords the local chief executive the
discretion to sustain a resolution or ordinance in the first instance
or to veto it and return it with his/her objections to the sanggunian
(Delos Reyes vs. Sandiganbayan, G.R. No. 121215, November 13, 1997).

18.4 An appropriation ordinance signed by the local chief executive

authorizes the release of public funds. The mayor's signature
approving the budget ordinance was his/her assent to the
appropriation of funds. If he/she did not agree with such allocation,
he/she could have vetoed the item (Caloocan City vs. Allarde, G.R.
No. 107271, September 10, 2003).

18.5 A municipal mayor cannot issue a mayor’s permit to operate a

cockpit without an enabling ordinance. A general ordinance
empowering a mayor to issue permits cannot be used to justify the
issuance of a license. A mayor cannot also be compelled to issue

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 such a license since this would constitute an undue encroachment
on the mayor's administrative prerogatives (Canet vs. Decena, G.R.
No. 155344, October 20, 2004).

19. Review is a reconsideration or re-examination for purposes of correction. The

power of review is exercised to determine whether it is necessary to correct
the acts of the subordinate and to see to it that supervised unit performs the
duties in accordance with law (Casino vs. Court of Appeals, G.R. No. 91192,
December 2, 1991).

19.1There is a boundary dispute when a portion or the whole of the

territorial area of a Local Government Unit (LGU) is claimed by two (2)
or more LGUs. The RTC is without jurisdiction to settle a boundary
dispute involving barangays in the same city or municipality. Said
dispute shall be referred for settlement to the sangguniang
panglungsod or sangguniang bayan concerned. If there is failure of
amicable settlement, the dispute shall be formally tried by the
sanggunian concerned and shall decide the same within sixty (60) days
from the date of the certification referred to. Further, the decision of
the sanggunian may be appealed to the RTC having jurisdiction over the
area in dispute, within the time and manner prescribed by the Rules of
Court (Barangay Mayamot, Antipolo City vs. Antipolo City, G.R.
No.187349, August 17, 2016).

20 An LGU has two branches of government, i.e. executive and legislative. The
Governor for the Provinces, Mayors for Cities and Municipalities, and the
Punong Barangay for Barangays are the local chief executives, while the Vice-
Governor and Vice-Mayor are the vice-local chief executives. The 1991 LGC
does not provide for the position of Vice-Punong Barangay.

Local Chief Executive Vice-Local Chief Executive

Executive Legislative and Executive (as vice)
Veto or Approve Preside over sessions
Appoint Employees of the Executive Appoint Employees of Sanggunian and
Branch and Legislative Branch Office of Vice-Mayor funded from
funded by Executive Branch Sanggunian and OVLCE
Approves Disbursements and Approves Disbursements and
Vouchers for Executive Branch Vouchers for Legislative Branch
Appropriations: May Veto, If Enact Appropriations Ordinance
approved, must release funds

Veto Review

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 Veto Review
Approve or disapprove Reconsideration or re-examination for
purposes of correction
Intra-LGU (within the LGU) Inter-LGU (2 LGUs)
Executive Power Legislative Power
Local Chief Executive Supervising-Higher Sanggunian
Ultra Vires (beyond the powers of Ultra Vires
the LGU) or Prejudicial to Public
Welfare of law and fact/ wisdom
Involves question of law and Involves question of law only
fact/wisdom
Period to exercise: Province (15 30 days
days); City/ Municipality (10 days)
No Veto in Barangays No Review of Provincial Ordinances
Reversal by Override or Judicial Judicial Review (reversal only by
Review (reversal by courts) courts)

21 The 1991 LGC allows for review of certain ordinances.

21.1 The law requires that a dissatisfied taxpayer who questions the
validity or legality of a tax ordinance must file its appeal to the
Secretary of Justice within 30 days from effectivity thereof. In case
the Secretary decides the appeal, a period of 30 days is allowed for
an aggrieved party to go to court. But if the Secretary does not act
thereon, after the lapse of 60 days, a party could already proceed
to seek relief in court (Reyes et. al. vs. Court of Appeals, G.R. No.
118233, December 10, 1999; Section 187, 1991 LGC).

21.2 Failure to appeal to the Secretary of Justice within 30 days from the
effectivity date of the tax ordinance as mandated by Section 187 of
the 1991 LGC is fatal (Jardine Davies vs. Aliposa, G.R. No. 118900,
February 27, 2003).

21.3 A taxpayer need not comply with Sec. 187 of the LGC before going
to court if he raises only questions of law, since resolving
questions of law, which involve the interpretation and application
of laws, constitutes essentially an exercise of judicial power that is
exclusively allocated to the Supreme Court and such lower courts
the Legislature may establish (Alta Vista Golf and Country Club vs.
City of Cebu, G.R. No. 180235, January 20, 2016).

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 21.4 The Department of Budget and Management shall review
ordinances authorizing the annual or supplemental appropriations
of provinces, highly-urbanized cities, independent component
cities, and municipalities within the Metropolitan Manila Area
(Section 326, 1991 LGC).

21.5 Ordinances banning the catching of certain species of fishes and

corals need not be approved by the Department of Environment
and Natural Resources before they can be effective because in the
exercise of devolved power, such approval is not necessary (Tano
vs. Socrates, G.R. No. 110249, August 21, 1997).

21.6 The Office of the President, DILG, and other executive

departments are not given the power to review ordinances under
the 1991 LGC. To assume such power without statutory authority
amounts to control, not just supervision, and thus,
unconstitutional.

21.7 Ordinances and resolutions approving the local development plans

and public investment programs formulated by the local
development councils of the Sangguniang Bayan or Sangguniang
Panlungsod become effective after review by the Sangguniang
Panlalawigan, posting on the bulletin board, and publication. (Land
Bank of the Philippines v. Cacayuran, G.R. No. 191667, April 17, 2013; In
an Amended Decision dated April 22, 2015, the Second Division set
aside the decision and remanded the case.)

22 The constitutionality and legality of ordinances and resolutions may be raised

before the courts on judicial review.

22.1 A petition for certiorari filed against a sanggunian the legality of

an ordinance will not lie since the sanggunian does not fall within
the ambit of tribunal, board, or officer exercising judicial or quasi-
judicial functions. The enactment of an ordinance was done in the
exercise of legislative and executive functions of the sanggunian
and mayor respectively and do not partake of judicial or quasi-
judicial functions (Liga ng mga Barangay National vs. Manila, G.R. No.
154599, January 21, 2004).

22.2 The appropriate remedy is a petition for declaratory relief. The

requisites of an action for declaratory relief are: (1) the subject
matter of the controversy must be a deed, will, contract or other
written instrument, statute, executive order or regulation, or

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 ordinance; (2) the terms of said documents and the validity thereof
are doubtful and require judicial construction; (3) there must have
been no breach of the documents in question; (4) there must be an
actual justiciable controversy or the “ripening seeds” of one
between persons whose interests are adverse; (5) the issue must
be ripe for judicial determination; and (6) adequate relief is not
available through other means or other forms of action or
proceeding. Thus, an action for declaratory relief questioning two
resolutions and an ordinance by a sanggunian panlungsod is
premature where said issuances merely endorsed favorably to the
Housing Land Use and Regulatory Board (HLURB) an application to
develop a memorial park. The sanggunian has not yet acted on the
application with finality. The HLURB, being the sole regulatory body
for housing and land development, has the final say on the matter.
Under the doctrine of primary administrative jurisdiction, courts
cannot or will not determine a controversy where the issues for
resolution demand the exercise of sound administrative
discretion, requiring the special knowledge, experience, and
services of the administrative tribunal to determine technical and
intricate matters of fact (Ferrer, Jr. vs. Roco, Jr., G.R. No. 174129, July
5, 2010).

22.3 The Supreme Court can only review, revise, reverse, modify on
appeal or certiorari final judgments and orders of lower courts in all
cases in which the constitutionality or validity of, among other
things, an ordinance is in question (Ortega vs. Quezon City, G.R. No.
161400, September 02, 2005).

22.4 Without further proof that the local zoning board acted
whimsically, or arbitrarily in issuing its resolution, the Court should
respect the local zoning board’s exercise of discretion. The Court
cannot substitute its judgment for that of said officials who are in a
better position to consider and weigh the same in the light of the
authority specifically vested in them by law. Since the Court has no
supervisory power over the proceedings and actions of the
administrative departments of the government, it should not
generally interfere with purely administrative and discretionary
functions of the local government, as in a case where it determines
whether or not a “photobomber building” violates a local zoning
ordinance (Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, April
25, 2017).

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 22.5 It is a general rule that the regularity of the enactment of an
officially promulgated statute or ordinance may not be impeached
by parol evidence or oral testimony either of individual officers and
members, or of strangers who may be interested in nullifying
legislative action (Reyes et. al. vs. Court of Appeals, G.R. No. 118233,
December 10, 1999).

22.6 A person is real party-in-interest to assail the constitutionality and

legality of the ordinances because he is a registered co-owner of a
residential property in the city and that he paid property tax which
already included the SHT and the garbage fee. He has substantial
right to seek a refund of the payments he made and to stop future
imposition. While he is a lone petitioner, his cause of action to
declare the validity of the subject ordinances is substantial and of
paramount interest to similarly situated property owners in the city.
(Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015)

23 Nothing in the LGC allows the creation of another local legislative body
that will enact, approve, or reject local laws either through the regular
legislative process or through initiative or referendum. (Marmeto v.
COMELEC, G.R. No. 213953, 16 September 2017).

Other Governmental and Corporate Powers

1. The corporate powers of LGUs are enumerated in the 1991 LGC but the listing
is not exclusive.

1.1 Every LGU, as a corporation, shall have the following powers to: (1)
have continuous succession in its corporate name; (2) sue and be
sued; (3) have and use a corporate seal; (4) acquire and convey real
or personal property; (5) enter into contracts; and (6) exercise such
other powers as are granted to corporations, subject to the
limitations provided in the 1991 LGC and other laws (Section 22, 1991
LGC).

2. Aside from express powers, LGUs also have implied powers (i.e. those
powers implied from express powers and state policies).

2.1 While the law did not expressly vest on LGUs the power to abolish
that office, absent, however, any contrary provision, that authority
should be deemed embraced by implication from the power to
create it (Javier vs. Court of Appeals, G.R. No. L-49065, June, 1, 1994).

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 2.2 LGUs cannot use public funds for the widening and improvement of
privately-owned sidewalks. Under the law, no public money shall
be appropriated or applied for private purposes (Albon vs.
Fernando, G.R. No. 148357, June 30, 2006).

2.3 An LGU must comply with the legal conditions imposed on a

donation (City of Angeles vs. Court of Appeals, G.R. No. 97882, August
28, 1996).

3. LGUs, aside from relating with supervising and supervised LGUs, may
coordinate with other LGUs.

Chapter X, Section 13, 1987 Constitution:

“Local government units may group themselves, consolidate or coordinate their
efforts, services, and resources for purposes commonly beneficial to them in
accordance with law.”

3.1 In support of such undertakings, the local government units

involved may, upon approval by the sanggunian concerned after a
public hearing conducted for the purpose, contribute funds, real
estate, equipment, and other kinds of property and appoint or
assign personnel under such terms and conditions as may be agreed
upon by the participating local units through Memoranda of
Agreement (Section 33, 1991 LGC).

Chapter X, Section 14, 1987 Constitution:

“The President shall provide for regional development councils or other similar
bodies composed of local government officials, regional heads of departments and
other government offices, and representatives from non-governmental
organizations within the regions for purposes of administrative decentralization to
strengthen the autonomy of the units therein and to accelerate the economic and
social growth and development of the units in the region.”

3.2 Regional development councils and other similar bodies composed

of regional representatives from the public sector and non-
governmental organizations can be created by the President.

Part 4. FISCAL AUTONOMY AND LOCAL SOURCES OF FUNDS

Chapter X, Section 5, 1987 Constitution:

“Each local government unit shall have the power to create its own sources of

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revenues and to levy taxes, fees, and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.”

Chapter X, Section 6, 1987 Constitution:

“Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.”

Chapter X, Section 7, 1987 Constitution:

“Local governments shall be entitled to an equitable share in the proceeds of the
utilization and development of the national wealth within their respective areas, in
the manner provided by law, including sharing the same with the inhabitants by way
of direct benefits.”

Sources of Funds

1. LGUs have constitutional and statutory sources of funds.

1.1 Under the 1987 Constitution, the sources of funds of local

governments are their share in national taxes, equitable share in
the proceeds of the utilization and development national wealth,
local taxes, fees and charges, other sources of revenues (Sections 5,
6 and 7, Article X, 1987 Constitution).

1.2 Under the 1991 LGUs raise funds from loans (Sections 300 and 301,
1991 LGC), donations and grants (Section 23, 1991 LGC), float bonds
(Section 299, 1991 LGC), exercise of proprietary functions (Section
22[d]. 1991 LGC), and credit-financing schemes such as Build-
Operate-Transfer schemes (R.A. No. 7718 amending R.A. No. 6957).

Fiscal Autonomy

1. Local autonomy includes both administrative and fiscal autonomy (Province of

Batangas vs. Romulo, G.R. No. 152774, May 27, 2004; Pimentel vs. Aguirre, G.R. No.
132988, July 19, 2000).

1.1 LGUs enjoy fiscal autonomy. The constitutional basis of fiscal

autonomy is Section 5, Article X of the 1987 Constitution (Pimentel
vs. Aguirre, G.R. No. 132988, July 19, 2000).

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 1.2 Fiscal autonomy means that LGUs have the: (1) 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 (2) power to allocate their resources in accordance with their
own priorities. (3) It extends to the preparation of their budgets,
and local officials in turn-have to work within the constraints
thereof (Pimentel vs. Aguirre, G.R. No. 132988, July 19, 2000).

1.3 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 (Pimentel vs. Aguirre, G.R. No. 132988, July 19,
2000).

1.4 Fiscal autonomy does not leave LGUs with unbridled discretion in
the disbursement of public funds. They remain accountable to their
constituency. Thus, the DILG can issue circulars regarding the full
disclosure of local budgets and finances and list of expenses which
the internal revenue allotment (IRA) can be used and which
requires publication in biddings, since these are mere reiterations of
statutory provisions (Villafuerte v. Robredo, G.R. No. G.R. No. 195390,
December 10, 2014).

1.5 There can be no genuine local autonomy without fiscal autonomy.

In order for local governments to perform their constitutional and
statutory mandates, local governments must have sufficient funds
to cover the costs of maintaining the organization, undertaking
projects for the general welfare, performing their legal mandates
and obligations, delivering basic services and advancing sustainable
development, among other responsibilities. On the other hand,
fiscal autonomy cannot be realized without local autonomy in
terms of usage, setting priorities, and disbursement of local funds.
If there were no local autonomy, the exercise of discretion and
wisdom on the part of local governments in accessing and utilizing
revenues would be unduly clipped.

2. As a consequence of fiscal autonomy:

2.1 The Department of Budget and Management cannot impose a

limitation not found in the law such as setting a cap on the amount
of allowances for judges (Dadole vs. Commission on Audit, G.R. No.
125350, December 03, 2002).

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 2.2 In reviewing tax ordinances, the Department of Justice can only
declare a tax measure unconstitutional and illegal. The Secretary
cannot amend, modify or repeal the tax measure or declare it
excessive, confiscatory or contrary to public welfare (Drilon vs. Lim,
G.R. No. 112497, August 4, 1994).

2.3 The restrictive and limited nature of the tax exemption privileges
under the 1991 LGC is consistent with the State policy of local
autonomy. The obvious intention of the law is to broaden the tax
base of LGUs to assure them of substantial sources of revenue
(Philippine Rural Electric Cooperatives Association vs. DILG, G.R No.
143076, June 10, 2003).

2.4 With the added burden of devolution, it is even more imperative for
government entities to share in the requirements of local
development, fiscal or otherwise, by paying taxes or other charges
due from them (National Power Corporation vs. Cabanatuan City,
G.R. No. 149110, April 09, 2003).

2.5 In interpreting statutory provisions on municipal fiscal powers,

doubts will have to be resolved in favor of LGUs (San Pablo City vs.
Reyes, G.R. No. 127708, March 25, 1999).

Internal Revenue Allotment

1. LGUs shall have a just share, as determined by law, in the national taxes which
shall be automatically released to them (Section 6, Article X, 1987 Constitution).

1.2 At present, all LGUs have a 40% share in the national internal
revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year (Section 284, 1991 LGC).

1.3 Of the 40%, provinces and cities are entitled to 23% each;
municipalities, 34%; and barangays, 20%. The share of a particular
local government shall be based on this formula: population, 50%;
land area, 25%; and equal sharing, 25% (Section 285, 1991 LGC).

1.4 In the event that the national government incurs an unmanageable

public sector deficit, the President of the Philippines is hereby
authorized, upon the recommendation of Secretary of Finance,
Secretary of Interior and Local Government (SILG) and Secretary of
Budget and Management, and subject to consultation with the

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 presiding officers of both Houses of Congress and the presidents of
the “liga”, to make the necessary adjustments in the internal
revenue allotment of local government units but in no case shall
the allotment be less than thirty percent (30%) of the collection of
national internal revenue taxes of the third fiscal year preceding the
current fiscal year (Section 284, 1991 LGC).

1.5 The IRA of LGUs: (1) forms part of the income of local government
units; (2) forms part of the gross accretion of the funds of the local
government units; (3) regularly and automatically accrues to the
local treasury without need of further action on the part of the
LGU; (4) is a regular and recurring item of income; (5) accrues to
the general fund of the LGUs; (6) is used to finance local operations
subject to modes provided by the 1991 LGC and its implementing
rules; and (7) is included in the computation of the average annual
income for purposes of conversion of LGUs (Alvarez vs. Guingona,
G.R. No. 118303, January 31, 1996).

1.6 The share of each LGU shall be released, without need of any
further action, directly to the provincial, city, municipal or barangay
treasurer, as the case may be, on a quarterly basis within five (5)
days after the end of each quarter, and which shall not be subject
to any lien or holdback that may be imposed by the national
government for whatever purpose (Section 286, 1991 LGC).

a. The President cannot withhold 10% of the IRA without

complying with the requirements under Section 284 of the 1991
LGC. This would be violative of local autonomy and fiscal
autonomy (Pimentel vs. Aguirre, G.R. No. 132988, July 19, 2000).

b. The General Appropriation Act cannot place a portion of the

IRA in an Unprogrammed Fund only to be released when a
condition is met, i.e., the original revenue targets are realized
(Alternative Center vs. Zamora, G.R. No. 144256, June 8, 2005).
Rider

c. The provisions in the General Appropriation Act creating the

Local Government Special Equalization Fund and authorizing
the non-release of the full 40% to all LGUs are inappropriate
provisions/riders. Further, an appropriations act cannot amend a
substantive law, i.e., 1991 LGC (Province of Batangas vs. Romulo,
G.R. No. 152774, May 27, 2004).

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 d. A “no report, no release” policy may not be validly enforced
against offices vested with fiscal autonomy. The automatic
release provision found in the Constitution means that LGUs
cannot be required to perform any act to receive the “just
share” accruing to them from the national coffers (Civil Service
Commission vs. Department of Budget and Management, G.R. No.
158791, July 22, 2005).

Share in National Wealth Proceeds

1. LGUs shall be entitled to an equitable share in the proceeds of the utilization

and development of the national wealth within their respective areas, in the
manner provided by law, including sharing the same with the inhabitants by
way of direct benefits (Section 7, Article X, 1987 Constitution).

1.1 LGUs shall have a 40% share of gross collection derived by the
national government from the preceding fiscal year from mining
taxes, royalties, forestry and fishery charges, and such other taxes,
fees, or charges, including related surcharges, interests, or fines,
and from its share in any co-production, joint venture or production
sharing agreement in the utilization and development of the
national wealth within their territorial jurisdiction (Section 290, 1991
LGC).

1.2 The host province shall be entitled to 20%; component municipality/

city, 45% (If highly-urbanized or independent city, 65%), and
barangay, 35% (Section 292, 1991 LGC).

Power of Taxation

1. Each LGU shall have the power to levy taxes, fees, and charges subject to
such guidelines and limitations as the Congress may provide, consistent
with the basic policy of local autonomy. Such taxes, fees, and charges shall
accrue exclusively to the LGUs (Section 5, Article X, 1987 Constitution; Ferrer
vs. Bautista, G.R. No. 210551, June 30, 2015)

1.1 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 by virtue of a valid delegation as before, but
pursuant to direct authority conferred by Section 5, Article X of
the 1987 Constitution. The exercise of the power may be subject to

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 such guidelines and limitations as the Congress may provide which,
however, must be consistent with the basic policy of local
autonomy (Mactan Cebu International Airport Authority vs. Marcos,
G.R. No. 120082, September 11, 1996)

1.2 LGUs have no inherent power to tax except to the extent that such
power might be delegated to them either by the basic law or by the
statute. Under the now prevailing Constitution, where there is
neither a grant nor a prohibition by statute, the tax power must be
deemed to exist although Congress may provide statutory
limitations and guidelines. The basic rationale for the current rule is
to safeguard the viability and self-sufficiency of local government
units by directly granting them general and broad tax powers.
Nevertheless, the fundamental law did not intend the delegation to
be absolute and unconditional; the constitutional objective
obviously is to ensure that, while the local government units are
being strengthened and made more autonomous, the legislature
must still see to it that (a) the taxpayer will not be over-burdened
or saddled with multiple and unreasonable impositions; (b) each
local government unit will have its fair share of available resources;
(c) the resources of the national government will not be unduly
disturbed; and (d) local taxation will be fair, uniform, and just.
(Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015)

1.3 Under the Local Government Code (LGC), local business taxes are
payable for every separate or distinct establishment or place where
business subject to the tax is conducted, which must be paid by the
person conducting the same. For real property taxes, Presidential
Decree (PD) 464 or the Real Property Tax Code, as affirmed by
Sections 201 and 247 of the LGC, provides that collection is vested in
the locality where the property is situated. The location stated in
the certificate of title should be followed until amended through
proper judicial proceedings. The IRR of the LGC provides that in
case of a boundary dispute, the status of the affected area prior to
the dispute shall be maintained and continued for all purposes
(Municipality of Cainta v. City of Pasig, G.R. No. 176703/G.R. No. 176721,
28 June 2017).

1.4 An LGU is empowered as well to apply its resources and assets for
productive, developmental, or welfare purposes, in the exercise or
furtherance of their governmental or proprietary powers and
functions. (Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015)

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 1.5 The list of taxes under Book II of the 1991 LGC is not exclusive.
LGUs may exercise the power to levy taxes, fees or charges on any
base or subject: (1) not otherwise specifically enumerated herein or
taxed under the provisions of the National Internal Revenue Code,
as amended, or other applicable laws: Provided, That the taxes,
fees, or charges shall: (2) not be unjust, excessive, oppressive,
confiscatory or contrary to declared national policy: Provided,
further, That the: (3) ordinance levying such taxes, fees or charges
shall: (4) not be enacted without any prior public hearing
conducted for the purpose (Section 186, 1991 LGC).

1.6 To pass judicial scrutiny, a regulatory fee must not produce

revenue in excess of the cost of the regulation because such fee
will be construed as an illegal tax when the revenue generated by
the regulation exceeds the cost of the regulation. (Ferrer vs.
Bautista, G.R. No. 210551, June 30, 2015)

Provinces Cities Municipalities Barangays

Tax on Transfer Tax on Transfer Business Tax on Tax on Stores or
of Real Property of Real Property Manufacturers Retailers with
Ownership Ownership Business Tax on fixed business
Tax on Business Tax on Business Wholesalers, establishments
of Printing and of Printing and Distributors, or
Publication Publication Dealers
Franchise Tax Franchise Tax Business Tax on
Tax on Sand, Tax on Sand, Retailers
Gravel and Gravel and Business Tax on
Other Quarry Other Quarry Exporters, and
Resources Resources on
Professional Tax Professional Tax Manufacturers,
Amusement Tax Amusement Tax Wholesalers and
Annual Fixed Tax Annual Fixed Tax Retailers of
for Every for Every Essential
Delivery Truck or Delivery Truck Commodities
Van of or Van of Business Tax on
Manufacturers Manufacturers Contractors
or Producers, or Producers, Business Tax on
Wholesalers of, Wholesalers of, Banks
Dealers, or Dealers, or Business Tax on
Retailers in, Retailers in, Peddlers
Certain Products Certain Business Tax on
Products all other
Real Property Business Tax on Businesses

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 Provinces Cities Municipalities Barangays
Tax Manufacturers
Special Business Tax on Community Tax
Education Fund Wholesalers, Real Property Tax
Levy Distributors, or for Metro-Manila
Ad Valorem Tax Dealers Municipalities
on Idle Lands Business Tax on Special Education
Special Levy on Retailers Fund Levy
Land Benefited Business Tax on Ad Valorem Tax
by Public Works Exporters, and on Idle Lands
on Special Levy on
Manufacturers, Land Benefited
Wholesalers by Public Works
and Retailers of
Essential
Commodities
Business Tax on
Contractors
Business Tax on
Banks
Business Tax on
Peddlers
Business Tax on
all other
Businesses

Community Tax
Real Property
Tax
Special
Education
Fund Levy
Ad Valorem Tax
on Idle Lands
Special Levy on
Land Benefited
by Public Works

1.6 While local government units are authorized to burden all such
other class of goods with “taxes, fees and charges,” excepting
excise taxes, a specific prohibition is imposed barring the levying of
any other type of taxes with respect to petroleum products

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 (Petron Corporation v. Tiangco, G.R. No. 158881, April 16, 2008;
Batangas City vs. Pilipinas Shell Petroleum Corp., G.R. No. July 8, 2015)

1.7 The sanggunian of the municipality or city cannot enact an

ordinance imposing business tax on the gross receipts of
transportation contractors, persons engaged in the transportation
of passengers or freight by hire, and common carriers by air, land,
or water, when said sanggunian was already specifically prohibited
from doing so. Any exception to the express prohibition under
Section 133(j) of the LGC should be just as specific and
unambiguous (City of Manila vs. Judge Colet, G.R. No. 120051,
December 10, 2014).

1.8 The Local Government Code exempts BOI-registered pioneer

enterprises from the payment of local business taxes (LBTs) for a
period of 6 years from the date of registration. The municipality
acquired a clear and unmistakable right to collect LBTs upon the
expiration of the 6-year period (Municipality of Alfonso Lista, Ifugao
vs. Court of Appeals, Special Former Sixth Division, G.R. No. 191442,
July 27, 2016).

1.9 Section 187 of the LGC, which outlines the procedure for
questioning the constitutionality of a tax ordinance, is inapplicable
when the imposition is not in the nature of taxes, but of fees (Smart
Communications vs. Municipality of Malvar, Batangas, G.R. No.
204429, February 18, 2014).

1.10 The municipality is empowered to impose taxes, fees and charges,

not specifically enumerated in the LGC or taxed under the Tax Code
or other applicable law (Smart Communications vs. Municipality of
Malvar, Batangas, G.R. No. 204429, February 18, 2014).

1.11 A local government unit may exercise its residual power to tax
when there is neither a grant nor a prohibition by statute; or when
such taxes, fees, or charges are not otherwise specifically
enumerated in the Local Government Code, National Internal
Revenue Code, as amended, or other applicable laws (Alta Vista Golf
and Country Club vs. City of Cebu, G.R. No. 180235, January 20, 2016).

1.12 The Court of Tax Appeals has exclusive appellate jurisdiction to

review on appeal decisions, orders or resolutions of the Regional
Trial Courts in local tax cases originally resolved by them in the
exercise of their original or appellate jurisdiction; it has no

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 jurisdiction over cases involving fees, which are regulatory in
nature (Smart Communications, Inc. v. Municipality of Malvar,
Batangas, G.R. No. 204429, February 18, 2014).

1.13 The local franchise tax cannot be imposed on a taxpayer who no

longer owned or operated the business subject to local franchise
tax, and owned the properties being levied upon by the province
(National Power Corporation vs. Provincial Government of Bataan,
G.R. No. 180654, April 21, 2014).

1.14 The 1991 LGC allows the local government to collect an interest at
the rate not exceeding 2% per month of the unpaid taxes, fees, or
charges including surcharges, until such amount is fully paid.
However, the law provides that the total interest on the unpaid
amount or portion thereof should not exceed thirty-six (36) months
or three (3) years. In other words, the city cannot collect a total
interest on the unpaid tax including surcharge that is effectively
higher than 72% (National Power Corporation vs. City of Cabanatuan,
G.R. No. 177332, October 1, 2014).

1.15 The fact that a separate chapter is devoted to the treatment of real
property taxes, and a distinct appeal procedure is provided therefor
does not justify an inference that Section 7(a)(3) of R.A. 9282
pertains only to local taxes other than real property taxes. Rather,
the term “local taxes” in the aforementioned provision should be
considered in its general and comprehensive sense, which
embraces real property tax assessments, in line with the precept
Generalia verba sunt generaliter inteligencia—what is generally
spoken shall be generally understood. Based on the foregoing, the
general meaning of “local taxes” should be adopted in relation to
Paragraph (a)(3) of Section 7 of R.A. 9282, which necessarily
includes real property taxes (National Power Corporation vs.
Municipality of Navotas, G.R. No. 192300, November 24, 2014).

1.16 Setting the rate of the additional levy for the special education
fund at less than 1% is within the taxing power of local government
units. It is consistent with the guiding constitutional principle of
local autonomy. The option given to a local government unit
extends not only to the matter of whether to collect but also to the
rate at which collection is to be made. The limits on the level of
additional levy for the special education fund under Section 235 of
the Local Government Code should be read as granting fiscal

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 flexibility to local government units (Demaala v. COA, G.R. No.
199752, February 17, 2015).

1.17 Submarine or undersea communications cables are akin to electric

transmission lines which are "no longer exempted from real
property tax" and may qualify as "machinery" subject to real
property tax under the 1991 LGC. To the extent that the
equipment's location is determinable to be within the taxing
authority's jurisdiction, there is no reason to distinguish between
submarine cables used for communications and aerial or
underground wires or lines used for electric transmission, so that
both pieces of property do not merit a different treatment in the
aspect of real property taxation (Capitol Wireless Inc. v. Provincial
Government of Batangas, G.R. No. 180110, May 30, 2016).

1.18 The Airport Lands and Buildings are devoted to public use because
they are used by the public for international and domestic travel
and transportation. The fact that the MCIAA collects terminal fees
and other charges from the public does not remove the character
of the Airport Lands and Buildings as properties for public use. As
properties of public dominion, they indisputably belong to the
State or the Republic of the Philippines, and are not subject to
levy, encumbrance or disposition through public or private sale.
Any encumbrance, levy on execution or auction sale of any
property of public dominion is void for being contrary to public
policy. Essential public services will stop if properties of public
dominion are subject to encumbrances, foreclosures and auction
sale (Mactan Cebu International Airport vs. City of Lapu-Lapu, G.R. No.
181756, June 15, 2015).

1.19 By operation of Sec. 151 of the LGC extending to cities the authority
of provinces and municipalities to levy certain taxes, fees, and
charges, cities may therefore validly levy amusement taxes on
cinemas subject to the parameters set forth under the law (Film
Development Council of the Philippines vs. City of Cebu et al, G.R. No.
204418, June 16, 2015). However, amusement taxes may not be
levied on golf courses. (Alta Vista Golf and Country Club vs. City of
Cebu, G.R. No. 180235, January 20, 2016).

1.20 Taxes levied by LGUs shall accrue exclusively to the LGU and to
earmark, if not altogether confiscate, the income to be received by
the LGU from the taxpayers in favor of and for transmittal to the
Film Development Council of the Philippines, is repugnant to the

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 power of LGUs to apportion their resources in line with their
priorities (Film Development Council of the Philippines vs. City of
Cebu et al, G.R. No. 204418, June 16, 2015).

1.21 The expanded jurisdiction of the CTA includes its exclusive

appellate jurisdiction to review by appeal the decisions, orders or
resolutions of the RTC in local tax cases originally decided or
resolved by the RTC in the exercise of its original or appellate
jurisdiction. The power of the CTA includes that of determining
whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the RTC in issuing an
interlocutory order in cases falling within the exclusive appellate
jurisdiction of the tax court. (CE Casecnan Water and Energy
Company, Inc. vs. The Province of Nueva Ecija, G.R. No. 196278, June
17, 2015) The CTA has jurisdiction over a special civil action for
certiorari assailing an interlocutory order issued by the RTC in a
local tax case (City of Manila vs. Grecia-Cuerdo, G.R. No. 175723,
February 4, 2014).

1.22 An injunction case before the RTC is a local tax case. A certiorari
petition questioning an interlocutory order issued in a local tax case
falls under the jurisdiction of the CTA (CE Casecnan Water and
Energy Company, Inc. vs. The Province of Nueva Ecija, G.R. No. 196278,
June 17, 2015).

1.23 The mayor has the ministerial duty to ensure that all taxes and
other revenues of the city are collected, and that city funds are
applied to the payment of expenses and settlement of obligations
of the city, in accordance with law or ordinance. On the other hand,
under the LGC, all local taxes, fees, and charges shall be collected
by the provincial, city, municipal, or barangay treasurer, or their
duly-authorized deputies, while the assessor shall take charge,
among others, of ensuring that all laws and policies governing the
appraisal and assessment of real properties for taxation purposes
are properly executed. Thus, a writ of prohibition may be issued
against them to desist from further proceeding in the action or
matter specified in the petition (Ferrer vs. Bautista, G.R. No. 210551,
June 30, 2015).

1.24 Chapter 3, Title Two, Book II of the LGC of 1991, Sections 226 to 231,
17 provides for the administrative remedies available to a taxpayer
or real property owner who does not agree with the assessment of
the real property tax sought to be collected, particularly, the

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 procedural and substantive aspects of appeal before the LBAA and
CBAA, including its effect on the payment of real property taxes
(National Power Corporation vs. The Provincial Treasurer of Benguet,
G.R. No. 209303, November 14, 2016).

1.25 The socialized housing tax charged by the city is a tax which is
within its power to impose. Aside from the specific authority vested
by Section 43 of the UDHA, cities are allowed to exercise such other
powers and discharge such other functions and responsibilities as
are necessary, appropriate, or incidental to efficient and effective
provision of the basic services and facilities which include, among
others, programs and projects for low-cost housing and other mass
dwellings. The collections made accrue to its socialized housing
programs and projects. The tax is not a pure exercise of taxing
power or merely to raise revenue; it is levied with a regulatory
purpose. The levy is primarily in the exercise of the police power for
the general welfare of the entire city. It is greatly imbued with
public interest (Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015).

1.26 The socialized housing tax imposed by the city is not confiscatory or
oppressive since the tax being imposed therein is below what the
UDHA actually allows (Ferrer vs. Bautista, G.R. No. 210551, June 30,
2015).

1.27 The garbage fee is a charge fixed for the regulation of an activity. It
is not a tax and cannot violate the rule on double taxation (Ferrer
vs. Bautista, G.R. No. 210551, June 30, 2015).

1.28 The authority of a municipality or city to impose fees is limited to

the collection and transport of non-recyclable and special wastes
and for the disposal of these into the sanitary landfill. Barangays, on
the other hand, have the authority to impose fees for the collection
and segregation of biodegradable, compostable and reusable
wastes from households, commerce, other sources of domestic
wastes, and for the use of barangay MRFs (Ferrer vs. Bautista, G.R.
No. 210551, June 30, 2015).

1.29 For the purpose of garbage collection, there is, in fact, no

substantial distinction between an occupant of a lot, on one hand,
and an occupant of a unit in a condominium, socialized housing
project or apartment, on the other hand. Most likely, garbage
output produced by these types of occupants is uniform and does
not vary to a large degree; thus, a similar schedule of fee is both

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 just and equitable. Different rates based on the above classification
is therefore void (Ferrer vs. Bautista, G.R. No. 210551, June 30, 2015).

1.30 Since the lot remained in private ownership, there is no factual or

legal basis to question the sale thereof by the local government
unit for tax delinquency (Homeowners Association of Talayan
Village, Inc. vs. JM Tuason & Co., Inc., G.R. No. 203883, November 10,
2015).

2. LGUs may not tax national government instrumentalities.

2.1 The PEZA is an instrumentality of the national government exempt

from payment of real property taxes under Section 133(o) of the
Local Government Code. As this court said in Manila International
Airport Authority, “there must be express language in the law
empowering local governments to tax national government
instrumentalities. Any doubt whether such power exists is resolved
against local governments.” Furthermore, the lands owned by the
PEZA are real properties owned by the Republic of the Philippines.
(City of Lapu-Lapu vs. Philippine Economic Zone Authority, G.R. No.
184203, November 26, 2014).

2.2 Mactan Cebu International Airport Authority is an instrumentality

of the government not a GOCC; thus, its properties actually, solely
and exclusively used for public purposes, consisting of the airport
terminal building, airfield, runway, taxiway and the lots on which
they are situated, are not subject to real property tax and the city is
not justified in collecting taxes from petitioner over said properties
(Mactan Cebu International Airport vs. City of Lapu-Lapu, G.R. No.
181756, June 15, 2015).

3. LGUs may not tax duly registered cooperatives.

3.1 Under Section 133(n) of the Local Government Code, the taxing
power of local government units shall not extend to the levy of
taxes, fees, or charges on duly registered cooperatives under the
Cooperative Code. The exemption from real property taxes given to
cooperatives applies regardless of whether or not the land owned
is leased. This exemption benefits the cooperative's lessee. The
characterization of machinery as real property is governed by the
Local Government Code and not the Civil Code. (Provincial Assessor
of Agusan del Sur vs. Filipinas Palm Oil Plantation Inc., G.R. No. 183416,
October 5, 2016)

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Participation in Public Auction/ Biddings

1. The law authorizes the local government unit to purchase the auctioned
property only in instances where “there is no bidder” or “the highest bid is
insufficient.” A disqualified bidder is not among the authorized grounds
(Spouses Plaza vs. Lustiva, G.R. No. 172909, March 5, 2014).

2. The absence of the public in the public bidding impels the City Treasurer to
purchase the property in behalf of the city. Reason would therefore dictate
that this purchase by the City is the very forfeiture mandated by the law. The
contemplated “forfeiture” in the provision points to the situation where the
local government ipso facto “forfeits” the property for want of a bidder (The
City of Davao vs. Intestate Estate of Amado S. Dalisay, G.R. No. 207791, July 15,
2015).

3. Under the Government Procurement Reform Act, decisions of the Bids and
Awards Committee shall be protested or elevated to the head of the
procuring entity, who is the local chief executive (Land Bank of the Philippines
v. Atlanta Industries, 729 SCRA 12).

Part 5. LOCAL GOVERNMENT OFFICIALS

Legislative Control over Structure

1. The 1987 Constitution does not enumerate the local officials of the five
kinds/levels of LGUs.

2. Congress shall provide for the qualifications, election, appointment and

removal, term, salaries, and powers and functions and duties of local officials
(Section 3, Article X, 1987 Constitution). Congress exercises legislative control
over structure of LGUs.

Term of Office

Chapter X, Section 8, 1987 Constitution:

“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

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term for which he was elected.”

1. 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 (Section 8,
Article X, 1987 Constitution). Under R.A. No. 9164, the current term of office of
elective barangay officials is three years.

1.1 As summarized in the case of Abundo v. Vega (G.R. No. 201716,

January 8, 2013), there is involuntary interruption of a local
government officials’ term in the following instances:

a) When a permanent vacancy occurs in an elective position and

the official merely assumed the position pursuant to the rules
on succession under the LGC, then his service for the unexpired
portion of the term of the replaced official cannot be treated as
one full term as contemplated under the subject constitutional
and statutory provision that service cannot be counted in the
application of any term limit (Borja, Jr.). If the official runs again
for the same position he held prior to his assumption of the
higher office, then his succession to said position is by operation
of law and is considered an involuntary severance or
interruption (Montebon).

b) An elective official, who has served for three consecutive terms

and who did not seek the elective position for what could be his
fourth term, but later won in a recall election, had an
interruption in the continuity of the official’s service. For, he had
become in the interim, i.e., from the end of the 3rd term up to
the recall election, a private citizen (Adormeo and Socrates).

c) The abolition of an elective local office due to the conversion of

a municipality to a city does not, by itself, work to interrupt the
incumbent official’s continuity of service (Latasa).

d) Preventive suspension is not a term-interrupting event as the

elective officer’s continued stay and entitlement to the office
remain unaffected during the period of suspension, although he
is barred from exercising the functions of his office during this
period (Aldovino, Jr.).

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 e) When a candidate is proclaimed as winner for an elective
position and assumes office, his term is interrupted when he
loses in an election protest and is ousted from office, thus
disenabling him from serving what would otherwise be the
unexpired portion of his term of office had the protest been
dismissed (Lonzanida and Dizon). The break or interruption
need not be for a full term of three years or for the major part
of the 3-year term; an interruption for any length of time,
provided the cause is involuntary, is sufficient to break the
continuity of service (Socrates, citing Lonzanida).

f) When an official is defeated in an election protest and said

decision becomes final after said official had served the full term
for said office, then his loss in the election contest does not
constitute an interruption since he has managed to serve the
term from start to finish. His full service, despite the defeat,
should be counted in the application of term limits because the
nullification of his proclamation came after the expiration of the
term (Ong and Rivera).

1.2 For the 3-term rule to apply, two conditions must concur: (1) the
official concerned has been elected for three consecutive terms in
the same local government post; and (2) he/she has fully served
three consecutive terms. A municipal councilor who was elected
for three consecutive terms but who had to assume the position of
vice-mayor on his/her second term in view of the incumbent’s
retirement is not deemed to have fully served three consecutive
terms (Montebon vs. Comelec, G.R. No. 180444, April 08, 2008).

1.3 He/she must also have been elected to the same position for the
same number of times before the disqualification can apply. The
first requisite is absent when a proclamation was subsequently
declared void since there was no proclamation at all. While a
proclaimed candidate may assume office on the strength of the
proclamation of the Board of Canvassers, he/she is only a
presumptive winner who assumes office subject to the final
outcome of the election protest. The second requisite is not
present when the official vacates the office not by voluntary
renunciation but in compliance with the legal process of writ of
execution issued by the Commission on Elections (Lonzanida vs.
Comelec, G.R. No. 135150, July 28, 1999).

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 1.4 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/she must also have been elected to the same position for the
same number of times before the disqualification can apply. Thus,
the term of a vice-mayor who became the mayor by succession is
not considered a term as mayor for purposes of the 3-term rule
(Borja vs. Comelec, G.R. No. 133495, September 03, 1998).

1.5 Preventive suspension, by its nature, does not involve an effective

interruption of a term and should therefore not be a reason to
avoid the 3-term limitation. Because it is imposed by operation of
law, preventive suspension does not involve a voluntary
renunciation; it merely involves the temporary incapacity to
perform the service that an elective office demands. The best
indicator of the suspended official’s continuity in office is the
absence of a permanent replacement and the lack of the authority
to appoint one since no vacancy exists (Aldovino, Jr. vs. Commission
on Elections, G.R. No. 184836, December 23, 2009).

1.6 A person who has run for three consecutive terms may run in a
recall election so long as the said candidate is not running for
immediate reelection following his/her three consecutive terms.
Term limits should be construed strictly to give the fullest possible
effect to the right of the electorate to choose their leaders. Thus,
the 3-term limit for local elected officials is not violated when a
local official wins in a recall election for mayor after serving three
full terms as mayor since said election is not considered immediate
reelection (Socrates vs. Comelec, G.R. No. 154512, November 12, 2002).

1.7 A person who served for two consecutive terms for mayor and
thereafter lost in the succeeding elections, can run in the next
election since the 3-term rule was not violated (Adormeo vs.
Comelec, G.R. No. 147927, February 04, 2002).

1.8 When it was only upon the favorable decision on his petition for
correction of manifest error that a candidate was proclaimed as
the duly-elected official, he is deemed not to have served office for
the full term of three years to which he was supposedly entitled,
since he only assumed the post and served the unexpired term of
his opponent (Albania v. COMELEC, G.R. No. 226792, 7 June 2017).

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 1.8 A punong barangay serving his/her third term of office who ran,
won and assumed office as sanggunian bayan member is deemed
to have voluntarily relinquished his/her office as punong barangay
for purposes of the three-term rule (Bolos vs. Comelec, G.R. No.
184082, March 17, 2009).

1.9 A 3-term mayor of a municipality converted into a city on the 3rd

term of the mayor cannot seek office as a city mayor in the 1st
elections of city officials considering the area and inhabitants of the
locality are the same and that the municipal mayor continued to
hold office until such time as city elections are held. There was no
involuntary renunciation on the part of the municipal mayor at any
time during the three terms. While the city acquired a new
corporate existence separate and distinct from that of the
municipality, this does not mean that for the purpose of applying
the constitutional provision on term limitations, the office of the
municipal mayor would be construed as different from that of the
office of the city mayor (Latasa vs. Comelec, G.R. No. 154829,
December 10, 2003).

1.10 A punong barangay who has served for three consecutive terms
when the barangay was still part of a municipality is disqualified
from running for a 4th consecutive term when the municipality was
converted to a city because the position and territorial jurisdiction
are the same (Laceda vs. Lumena, G.R. No. 182867, November 25,
2008).

1.11 In case of failure of elections involving barangay officials, the

incumbent officials shall remain in office in a hold-over capacity
pursuant to Section 5 of Republic Act No. 9164 (Adap vs. Comelec,
G.R. No. 161984, February 21, 2007).

1.12 The two-year period during which a mayor’s opponent was serving
as mayor should be considered as an interruption which effectively
removed the mayor’s case from the ambit of the three-term limit
rule. That two-year period is therefore not considered a term for
the mayor (Abundo v. Vega, G.R. No. 201716, January 8, 2013).

Powers of Local Officials

1. The powers of local government officials are defined under the 1991 LGC.

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2. The powers and responsibilities of the Provincial Governor are enumerated
under Section 465 of the 1991 LGC. Among others, the Governor shall exercise
general supervision and control over all programs, projects, services, and
activities of the provincial government; enforce all laws and ordinances
relative to the governance of the province; represent the province in all its
business transactions and sign in its behalf all bonds, contracts, and
obligations, and such other documents upon authority of the sangguniang
panlalawigan or pursuant to law or ordinance; ensure that all executive
officials and employees of the province faithfully discharge their duties and
functions as provided by law and the 1991 LGC; ensure that the acts of the
component cities and municipalities of the province and of its officials and
employees are within the scope of their prescribed powers, duties and
functions; and ensure that all taxes and other revenues of the province are
collected, and that provincial funds are applied to the payment of expenses
and settlement of obligations of the province, in accordance with law or
ordinance.

3. Only the Provincial Governor could competently determine the soundness of

an office order or the propriety of its implementation, for the Provincial
Governor has the power to supervise and control “programs, projects,
services, and activities” of the province pursuant to Section 465 of Republic
Act No. 7160 (Ejera vs. Merto, GR No. 163109, January 22, 2014).

4. The powers and responsibilities of the City/Municipal Mayor are listed under
Sections 455 and 444 of the 1991 LGC, respectively. Among others, the Mayor
shall exercise general supervision and control over all programs, projects,
services, and activities of the municipal government; enforce all laws and
ordinances relative to the governance of the municipality; upon authorization
by the sangguniang panglungsod/bayan, represent the municipality in all its
business transactions and sign on its behalf all bonds, contracts, and
obligations, and such other documents made pursuant to law or ordinance;
ensure that all executive officials and employees of the city/municipality
faithfully discharge their duties and functions; solemnize marriages; ensure
that the acts of the city/municipality's component barangays and of its
officials and employees are within the scope of their prescribed powers,
functions, duties and responsibilities; issue licenses and permits and suspend
or revoke the same for any violation of the conditions upon which said
licenses or permits had been issued, pursuant to law or ordinance; and ensure
the delivery of basic services and the provision of adequate facilities.
5. When an action is defended by the mayor of a municipality, that mayor does
not-and neither does he become-a real party in interest. That the mayor is a
Muslim is therefore irrelevant for purposes of complying with the jurisdictional
requirement under Article 143(2)(b) that both parties be Muslims for the

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 Shari’a District Court to obtain jurisdiction. To satisfy the requirement, it is the
real party defendant, the municipality, who must be a Muslim. Such a
proposition, however, is a legal impossibility, since it is not a natural person
capable of professing a belief (Municipality of Tangkal vs. Balindong, G.R. No.
193340, January 11, 2017).

6. While the authorization of the municipal mayor need not be in the form of an
ordinance, the obligation which the said local executive is authorized to enter
into must be made pursuant to a law or ordinance. The sanggunian must
approve and terms and conditions of the loan agreement in an ordinance
(Land Bank of the Philippines v. Cacayuran, G.R. No. 191667, April 17, 2013; In an
Amended Decision dated April 22, 2015, the Second Division set aside the decision
and remanded the case.).

7. The vice-mayor automatically assumes the powers and duties of the mayor in
case of the latter’s temporary absence, such as when he is on official vacation
leave and out of the country and during such time the vice mayor has the legal
capacity to file a motion for reconsideration on behalf of the local government
unit (Velasco v. Sandiganbayan, G.R. No. 169253, February 20, 2013).

8. The powers and responsibilities of the Punong Barangay are enumerated

under Section 389 of the 1991 LGC. Among others, the Punong Barangay shall
enforce of all laws and ordinances which are applicable within the barangay;
promote the general welfare of the barangay; negotiate, enter into, and sign
contracts for and in behalf of the barangay, upon authorization of the
sangguniang barangay; maintain public order in the barangay; call and preside
over the sessions of the sangguniang barangay and the barangay assembly,
and vote only to break a tie; upon approval by a majority of all the members of
the sangguniang barangay, appoint or replace the barangay treasurer, the
barangay secretary, and other appointive barangay officials; administer the
operation of the katarungang pambarangay; and exercise general supervision
over the activities of the sangguniang kabataan.

9. The issuance of a Barangay Protection Order by the Punong Barangay or, in

his unavailability, by any available Barangay Kagawad, merely orders the
perpetrator to desist from (a) causing physical harm to the woman or her
child; and (2) threatening to cause the woman or her child physical harm. Such
function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws
and ordinances," and to "maintain public order in the barangay. (Tua vs.
Mangrobang, G.R. No. 170701, January 22, 2014)

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Power to Appoint

1. The Local Chief Executive and the Vice-Local Chief Executive have the power
to appoint.

1.1 As a general rule, appointments made by defeated local candidates

after the elections are prohibited to avoid animosities between
outgoing and incoming officials, to allow the incoming
administration a free hand in implementing its policies, and to
ensure that appointments and promotions are not used as tools for
political patronage or as reward for services rendered to the
outgoing local officials. However, such appointments may be
allowed if the following requisites concur relative to their issuance:
(1) The appointment has gone through the regular screening by the
Personnel Selection Board (PSB) before the prohibited period on
the issuance of appointments as shown by the PSB report or
minutes of its meeting; (2) The appointee is qualified; (3) There is a
need to fill up the vacancy immediately in order not to prejudice
public service and/or endanger public safety; and (4) The
appointment is not one of those mass appointments issued after
the elections (Nazareno vs. City of Dumaguete, G.R. No. 168484, July
12, 2007).

1.2 Where a municipal mayor orders the suspension or dismissal of a

municipal employee on grounds he/she believes to be proper, but
his/her order is reversed or nullified by the Civil Service Commission
or the Court of Appeals, he/she has the right to contest such
adverse ruling. His/her right to appeal flows from the fact that
his/her power to appoint carries with it the power to remove.
Being chief executive of the municipality, he/she possesses this
disciplinary power over appointive municipal officials and
employees (Dagadag vs. Tongnawa, G.R. No. 161166-67, February 03,
2005).

1.3 The city legal officer has no disciplinary authority over the chief of
the Legal Affairs and Complaint Services of the Division of City
Schools. Inasmuch as the said official was appointed by and is a
subordinate of the regional director of the Department of
Education, Culture and Sports, he/she is subject to the supervision
and control of said director (Aguirre vs. De Castro, G.R. No. 127631,
December 17, 1999).

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 1.4 The prohibition on midnight appointments only applies to
presidential appointments. It does not apply to appointments
made by local chief executives. Nevertheless, the Civil Service
Commission has the power to promulgate rules and regulations to
professionalize the civil service. It may issue rules and regulations
prohibiting local chief executives from making appointments during
the last days of their tenure. Appointments of local chief executives
must conform to these civil service rules and in order to be valid.
(Provincial Government of Aurora vs. Marco, G.R. No. 202331, April 22,
2015)

Ban on Holding Dual Positions

1. No (local) elective official shall be eligible for appointment or designation in

any capacity to any public office or position during his/her tenure (Section 7[b],
Article IX[B], 1987 Constitution).

1.1 A city mayor cannot be appointed to the position of chairperson of

the Subic Bay Metropolitan Authority since such office is not an ex-
officio post or attached to the office of the mayor. This provision
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 (Flores vs. Drilon, G.R. No. 104732, June 22, 1993).

1.2 Pursuant to Section 7(8), Article II of the Guidelines in the Conduct

of Electric Cooperative District Elections, ex-officio sanggunian
members are disqualified from becoming board members of
electric cooperatives (National Electrification Administration vs.
Villanueva, G.R. No. 168203, March 9, 2010).

Vacancies

1. There are permanent and temporary causes of vacancies in local elective

positions under the 1991 LGC. The grounds are:

Permanent Temporary
Death Leave of absence
Voluntary resignation Travel abroad
Conviction Suspension from office
Expiration of term Preventive suspension

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 Permanent disability Sickness
Fills a higher vacant office Temporary disability
Refuses to assume office
Fails to qualify
Removed from office
Failure of elections

1.1 Where a permanent vacancy occurs due to disqualification in the

office of mayor, the proclaimed vice-mayor shall succeed as mayor,
pursuant to Section 44 of the 1991 LGC (Pundaodaya vs. Commission
on Elections, G.R. No. 179313, September 17, 2009).

1.2 When a mayor is adjudged to be disqualified, a permanent vacancy

was created for failure of the elected mayor to qualify for the
office. In such eventuality, the duly elected vice mayor shall
succeed as provided by law. The second placer cannot be declared
as mayor (Toral Kare vs. Comelec, G.R. Nos. 157526 / 157527, April 28,
2004).

1.3 In case there is a permanent vacancy caused by a sanggunian

member belonging to a political party, it shall be the President
acting through the executive secretary who shall appoint the
replacement, upon the certification and nomination of the political
party from where the replaced member comes from, for the
sangguniang panlalawigan and sangguniang panglungsod of a highly
urbanized or independent component city. For the sangguniang
panglungsod of component cities and it shall be the governor who
shall make the appointment upon the certification and nomination
of the political party from where the replaced member comes from.
In case the vacancy is caused by a member who does not come
from any political party, appointment shall be done by the officials
mentioned upon the recommendation of the sanggunian
concerned, without, however, need of the nomination or
certification from any political party. For sangguniang barangay
members, it is the mayor who appoints upon recommendation of
the sangguniang barangay (Farinas vs. Barba, G.R. No. 11673, April 19,
1996).

1.4 In case of vacancy in the sangguniang bayan, the nominee of the

party under which the member concerned was elected and whose
elevation to the higher position created the last vacancy will be
appointed. The last vacancy refers to that created by the elevation
of the councilor as vice-mayor. The reason behind the rule is to

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 maintain party representation (Navarro vs. Court of Appeals, G.R. No.
141307, March 28, 2001).

1.5 For purposes of succession in the filling up of vacancies under

Section 44 of 1991 LGC, the ranking in the sanggunian shall be
determined on the basis of the proportion of votes obtained by
each winning candidates to the total number of registered voters in
each district in the immediately preceding local election, not the
number of voters who actually voted (Victoria vs. Comelec, G.R. No.
109005, January 10, 1994).

1.6 The highest-ranking municipal councilor’s succession to the office

of vice-mayor cannot be considered a voluntary renunciation of
his/her office as councilor since it occurred by operation of law
(Montebon vs. Comelec, G.R. No. 180444, April 08, 2008).

1.7 Resignations by sangguniang panlalawigan members must submit

their letters of resignation to the President or to his/her alter ego,
the SILG. The letter must be submitted, received and acted upon
by the supervising officials, otherwise, there was no valid and
complete resignation (Sangguniang Bayan of San Andres vs. Court of
Appeals, G.R. No. 118883, January 16, 1998).

1.8 When the Vice-Governor exercises the powers and duties of the
Office of the Governor, he/she does not assume the latter office.
He/she only acts as the Governor but does not ‘become’ the
Governor. His/her assumption of the powers of the provincial Chief
Executive does not create a permanent vacuum or vacancy in
his/her position as the Vice-Governor. But he/she does temporarily
relinquish the powers of the Vice-Governor, including the power to
preside over the sessions of the sangguniang panlalawigan (Gamboa
vs. Aguirre, et. al., G.R. No. 134213, July 20, 1999).

1.9 Absence should be reasonably construed to mean ‘effective’

absence, i.e., one that renders the officer concerned powerless, for
the time being, to discharge the powers and prerogatives of his/her
office. 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 (Gamboa vs. Aguirre, et. al., G.R.
No. 134213, July 20, 1999).

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 Part 6. ACCOUNTABILITY OF LOCAL GOVERNMENT UNITS AND OFFICIALS

Suability and Liability

1. LGUs have the power to sue and be sued (Section 22 [a][2], 1991 LGC). Because
of the statutory waiver, LGUs are not immune from suit.

2. LGUs and their officials are not exempt from liability for death or injury to
persons or damage to property (Section 24, 1991 LGC).

3. The test of liability of the municipality depends on whether or not the driver,
acting on behalf of the municipality, is performing governmental or
proprietary functions. The distinction of powers becomes important for
purposes of determining the liability of the municipality for the acts of its
agents which result in an injury to third persons. Under the 1983 Local
Government Code, LGUs are exempt from liability while in the performance of
their official functions. Delivery of sand and gravel for the construction of a
municipal bridge is in the exercise of the governmental capacity of LGUs
(Municipality of San Fernando, La Union vs. Firme, G.R. No. L-52179, April 8, 1991).
Under the 1991 LGC, the distinction found under the 1983 Local Government
Code between governmental and proprietary powers has been removed.

4. The OSG may not be compelled to represent local government units. The LGC
vests exclusive authority upon the LGU’s legal officers to be counsels of local
government units. Even the employment of a special legal officer is expressly
allowed by the law only upon a strict condition that the action or proceeding
which involves the component city or municipality is adverse to the provincial
government or to another component city or municipality (OSG vs. CA and
Municipal Government of Suguiran, Lanao del Sur, G.R. No. 199027, June 9, 2014).

Liability of Local Government Units

1. In the discharge of governmental functions, municipal corporations are

responsible for the acts of its officers, except if and when, and only to the
extent that, they have acted by authority of the law, and in conformity with
the requirements thereof (Gontang v. Alayan, G.R. No. 191691, January 16, 2013).

2. When there is no malice or bad faith that attended the illegal dismissal and
refusal to reinstate on the part of the municipal officials, they cannot be held
personally accountable for the back salaries. The municipal government

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 should disburse funds to answer for the claims resulting from the dismissal
(Civil Service Commission vs. Gentallan, G.R. No. 152833 May 09, 2005).

3. The LGU is liable for the illegal dismissal of an appointive employee and the
appointment in his/her stead of another, a non-civil service eligible, whose
salaries it thereafter paid. The dismissal by the mayor was confirmed and
ratified when the city did not oppose the dismissal and the appointment
(Regis, Jr. vs. Osmeña, Jr., G.R. No. 26785, May 23, 1991).

4. An LGU is liable for injuries sustained due to defective roads and manholes.
For liability to arise under Article 2189 of the Civil Code, ownership of the
roads, streets, bridges, public buildings and other public works is not a
controlling factor, it being sufficient that a province, city or municipality has
control or supervision thereof (Municipality of San Juan vs. Court of Appeals,
G.R. No. 121920, August 9, 2005; Guilatco vs. Dagupan, G.R. No. 61516, March 21,
1989).

5. Inasmuch as the license for the establishment of a cockpit is a mere privilege

which can be suspended at any time by competent authority, the fixing in a
municipal ordinance of a distance of not less than two kilometers between
one cockpit and another, is not sufficient to warrant the annulment of such
ordinance on the ground that it is partial, even though it is prejudicial to an
already established cockpit (Abad vs. Evangelista, G.R. No. 38884, September
26, 1933).

6. Given that Presidential Decree No. 1445 and Administrative Circular No. 10-
2000 involve a settlement of a claim against a local government unit, the same
find no application in a case wherein no monetary award is actually awarded
to petitioner but a mere return or restoration of petitioner’s money, arising
from an excessive payment of tax erroneously or illegally imposed and
received (Coca-Cola Bottlers vs. City of Manila, G.R. No. 197561, April 7, 2014).

7. Mandamus is a remedy available to a property owner when a money

judgment is rendered in its favor and against a municipality or city (Spouses
Ciriaco vs. City of Cebu, G.R. No. 181562-63, October 2, 2009).

8. COA has the authority and power to settle “all debts and claims of any sort
due from or owing to the Government or any of its subdivisions, agencies
and instrumentalities.” This authority and power can still be exercised by the
COA even if a court’s decision in a case has already become final and
executory. In other words, COA still retains its primary jurisdiction to
adjudicate a claim due from or owing to the government or any of its
instrumentalities and agencies even after the issuance of a writ of execution

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 (Special Star Watchman and Detective Agency, Inc. vs. Puerto Princesa City, G.R.
No. 181792, April 21, 2014).

9. That the Province suddenly had no funds to pay for an appointee’s salaries
despite its earlier certification that funds were available under its 2004 Annual
Budget does not affect his appointment, if a Certification that funds were
available was issued at the time of the appointment. The appointment
remains effective, and the local government unit remains liable for the
salaries of the appointee. (Provincial Government of Aurora vs. Marco, G.R. No.
202331, April 22, 2015)

10. It is the City that would suffer an injustice if it were to be bound by its
officer’s suspect actions. The policy of enabling local governments to fully
utilize the income potentialities of the real property tax would be put at a
losing end if tax delinquent properties could be recovered by the sheer
expediency of a document erroneously or, perhaps fraudulently, issued by its
officers. This would place at naught, the essence of redemption as a statutory
privilege; for then, the statutory period for its exercise may be extended by
the indiscretion of scrupulous officers (The City of Davao vs. Intestate Estate of
Amado S. Dalisay, G.R. No. 207791, July 15, 2015).

11. The fundamental principles in local fiscal administration provided in the LGC
state that no money shall be paid out of the local treasury except in pursuance
of an appropriations ordinance or law, and that local government funds and
monies shall be spent solely for public purposes (Marmeto v. COMELEC, G.R. No.
213953, 16 September 2017).

12. It is part of a city’s fiscal responsibility to ensure that barangay funds would
not be released to a person without proper authority. Barangay funds shall be
kept in the custody of the city or municipal treasurer, at the option of the
barangay, and any officer of the local government unit whose duty permits or
requires the possession or custody of local government funds shall be
accountable and responsible for the safekeeping thereof in conformity with
the provisions of the law (City of Davao v. Olanolan, G.R. No. 181149, April 17,
2017).

Liability of Local Officials

1. The power of supervision is compatible with the power to discipline. The

power to discipline does not amount to executive control which is proscribed
under Section, 4, Article X of the 1987 Constitution.

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 1.1 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. Supervision is not
incompatible with discipline. 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/her opinion the good of the public service
so requires (Joson vs. Torres, G.R. No. 131255, May 20, 1998).

1.2 Jurisdiction over administrative disciplinary actions against

elective local officials is lodged in two authorities: the Disciplining
Authority and the Investigating Authority. The Disciplinary
Authority may constitute a Special Investigating Committee in lieu
of the SILG. With respect to a provincial governor, the disciplining
Authority is the President of the Philippines, whether acting by
himself/herself or through the Executive Secretary (Joson vs. Torres,
G.R. No. 131255, May 20, 1998).

1.3 The SILG is the Investigating Authority, who may act himself/
herself or constitute and Investigating Committee. The Secretary
of the Department, however, is not the exclusive Investigating
Authority. In lieu of the Department Secretary, the Disciplining
Authority may designate a Special Investigating Committee (Joson
vs. Torres, G.R. No. 131255, May 20, 1998).

2. The grounds for disciplinary action against local elective officials are: (1)
Disloyalty to the Republic of the Philippines; (2) Culpable violation of the
Constitution; (3) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty; (4) Commission of any offense involving
moral turpitude or an offense punishable by at least prision mayor; (5) Abuse
of authority; (6) Unauthorized absence for fifteen (15) consecutive working
days, except in the case of members of the sangguniang panlalawigan,
sangguniang panlungsod, sangguniang bayan, and sangguniang barangay; (7)
Application for, or acquisition of, foreign citizenship or residence or the status
of an immigrant of another country; and (8) Such other grounds as may be
provided in 1991 LGC and other laws (Section 60, 1991 LGC).

3. The basis of administrative liability differs from criminal liability. The purpose
of administrative proceedings is mainly to protect the public service, based on
the time-honored principle that a public office is a public trust. On the other
hand, the purpose of the criminal prosecution is the punishment of crime.
However, the re-election of a public official extinguishes only the
administrative, but not the criminal, liability incurred by him/her during

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 his/her previous term of office (Valencia vs. Sandiganbayan, G.R. No. 141336,
June 29, 2004).

4.1 For an offense to be “committed in relation to the office”, the

relation has to be such that, in the legal sense, the offense cannot
exist without the office. In other words, the office must be a
constituent element of the crime as defined in the statute, such as,
for instance, the crimes defined and punished in Chapter Two to
Six, Title Seven, of the Revised Penal Code. The use or abuse of
office does not adhere to the crime as an element; and even as an
aggravating circumstance, its materiality arises not from the
allegations but on the proof, not from the fact that the criminals
are public officials but from the manner of the commission of the
crime (Montilla vs. Hilario, G.R. No. L-4922, September 24, 1951).

4. An “administrative offense” means every act or conduct or omission which

amounts to, or constitutes, any of the grounds for disciplinary action (Salalima
vs. Guingona, G.R. No. 117589-92, May 22, 1996).

4.1 A municipal mayor, vice-mayor and treasurer were guilty of two (2)
counts of violation of the Anti-Graft and Corrupt Practices Act
where they knowingly simulated a bidding/canvassing in favor of
the mayor’s son (De Jesus, Sr. vs. Sandiganbayan, G.R. Nos. 182539-
40, February 23, 2011).

4.2 There are two modes by which a public officer who has a direct or
indirect financial or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of the Anti-Graft and Corrupt
Practices Act. The first mode is if in connection with his/her
pecuniary interest in any business, contract or transaction, the
public officer intervenes or takes part in his/her official capacity.
The second mode is when he/she is prohibited from having such
interest by the Constitution or any law. A mayor relative to the
issuance of a license to operate a cockpit which he/she owns
cannot be held liable under the first mode since he/she could not
have intervened or taken part in his/her official capacity in the
issuance of a cockpit license because he/she was not a member of
the sangguniang bayan. Under the 1991 LGC, the grant of a license is
a legislative act of the sanggunian. However, the mayor could be
liable under the second mode. (Domingo vs. Sandiganbayan, G.R. No.
149175 October 25, 2005; Teves vs. Sandiganbayan, G.R. No. 154182,
December 17, 2004).

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 4.3 When the validity of subsequent appointments to the position of
Assistant City Assessor has not been challenged, the city mayor
who appointed a person to serve in said position had every right to
assume in good faith that the one who held the position prior to
the appointments no longer held the same. Thus, the city mayor is
not liable for violation of Sections 3(a) and 3(e) of the Anti-Graft
and Corrupt Practices Act (Reyes vs. Atienza, G.R. No. 152243
September 23, 2005).

4.4 There are two (2) ways by which a public official violates Sec. 3(e)
of R.A. No. 3019 in the performance of his functions, namely: (a) by
causing undue injury to any party, including the Government; or (b)
by giving any private party any unwarranted benefits, advantage or
preference. The accused may be charged under either mode or
under both (Velasco vs. Sandiganbayan, G.R. No. 160991, February 28,
2005).

4.5 A prosecution for a violation of Sec. 3(e) of the Anti-Graft Law will
lie regardless of whether or not the accused public officer is
"charged with the grant of licenses or permits or other
concessions" (Mejorada vs. Sandiganbayan, G.R. Nos. L-51065-72 June
30, 1987)

4.6 To be criminally liable for violation of Section 3(e) of R.A. 3019, the
injury sustained must have been caused by positive or passive acts
of manifest partiality, evident bad faith, or gross inexcusable
negligence. Since the State Auditors even recommended that
municipal officials should not pay the claims due to irregularities in
the transactions and the patent nullity of the same, it cannot be
said that the injury claimed to have been sustained by was caused
by any of officials’ overt acts (Fuentes vs. Sandiganbayan, G.R. No.
164664, July 20, 2006).

4.7 The issuance of a certification as to availability of funds for the

payment of the wages and salaries of local officials awaiting
appointment by the Civil Service Commission (CSC) is not a
ministerial function of the city treasurer. Since the CSC has not yet
approved the appointment, there were yet no services performed
to speak of, and there was yet no due and demandable obligation
(Altres vs. Empleo, G.R. No. 180986, December 10, 2008).

4.8 A municipal mayor is mandated to abide by the 1991 LGC which

directs that executive officials and employees of the municipality

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 faithfully discharge their duties and functions as provided by law.
Such duty includes enforcing decisions or final resolutions, orders
or rulings of the Civil Service Commission (CSC). (Velasco vs.
Sandiganbayan, G.R. No. 160991, February 28, 2005).

4.9 A municipal mayor is not guilty of violating Section 3(e) of the Anti-Graft
and Corrupt Practices Act in issuing a Memorandum preventing vendors
with questionable lease contracts from occupying market stalls where
the said Memorandum applies equitably to all awardees of lease
contracts, and did not give any unwarranted benefit, advantage, or
preference to any particular private party (People vs. Sandiganbayan,
G.R. No. 153952-71, August 23, 2010).

4.10 All heads of offices have to rely to a reasonable extent on their

subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations. A public officer
cannot be expected to probe records, inspect documents, and
question persons before he/she signs vouchers presented for
his/her signature unless there is some added reason why he/she
should examine each voucher in such detail. When an exceptional
circumstance exist which should have prodded the officer, and if
he/she were out to protect the interest of the municipality he/she
swore to serve, he/she is expected go beyond what his/her
subordinates prepared or recommended (Leycano vs. Commission
on Audit, G.R. No. 154665, February 10, 2006).

4.11 Municipal employees were guilty of falsification of public

documents where they failed to disclose in their Statements of
Assets and Liabilities (SALN) their relationship within the fourth civil
degree of consanguinity and affinity to the municipal mayor who
appointed them to their positions (Galeos vs. People, G.R. Nos.
174730-37 / 174845-52, February 9, 2011).

4.12 When a complaint merely alleges that the disbursement for

financial assistance was neither authorized by law nor justified as a
lawful expense and no law or ordinance was cited that provided
for an original appropriation of the amount used for the financial
assistance and that it was diverted from the appropriation it was
intended for, the complaint is defective as it does not prove
technical malversation (Tetangco vs. Ombudsman, G.R. No. 156427,
January 20, 2006).

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 4.13 A candidate's conviction by final judgment of the crime of fencing
is a crime involving moral turpitude which disqualifies such a person
from elective public office under Section 40(a) of the 1991 LGC (Dela
Torre vs. Comelec, G.R. No. 121592, July 5, 1996).

4.14 A public official, more especially an elected one, should not be

onion skinned. Strict personal discipline is expected of an occupant
of a public office because a public official is a property of the public
(Yabut vs. Ombudsman, G.R. No. 111304, June 17, 1994).

4.15 A mayor who continues to perform the functions of the office

despite the fact that he/she is under preventive suspension usurps
the authority of the Office of the Mayor and is liable for violation of
Section 13 of the Anti-Graft and Corrupt Practices Act (Miranda vs.
Sandiganbayan, G.R. No. 154098, July 27, 2005).

4.16 A mayor cannot be held personally liable if his actions were done
pursuant to an ordinance which, at the time of the collection, was
yet to be invalidated. (Demaala v. COA, G.R. No. 199752, February 17,
2015)

5. When personal liability on the part of local government officials is sought, they
may properly secure the services of private counsel (Gontang v. Alayan, G.R.
No. 191691, January 16, 2013).

6. It would be premature for an LGU to question before the courts an Audit

Observation Memorandum issued by the Commission on Audit discussing the
impropriety of disbursements of funds due to the absence of a justiciable
controversy. The issuance of the AOM is just an initiatory step in the
investigative audit and is not yet conclusive (Corales v. Republic, G.R. No.
186613, August 27, 2013).

7. The writ was directed at the mayor not in his personal capacity, but in his
capacity as municipal mayor, so that it is not irregular whether it was served
upon him during his earlier term or in his subsequent one. (Vargas vs.
Cajucom, G.R. No. 171095, June 22, 2015)

8. Mandamus will only lie if the officials of the city have a ministerial duty to
consider standards for buildings covered by an ordinance. There can be no
such ministerial duty if the standards are not applicable to buildings beyond
the scope of the ordinance. If there is no law, ordinance, or rule that prohibits
the construction of a building outside a historic monument if it is within the

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 background sightline or view of such monument, there is no legal duty on the
part of the city to consider the standards set in its zoning ordinance in relation
to the developer’s application for a Building Permit, since under the ordinance,
these standards can never be applied outside the boundaries of the historical
monument’s surrounding park. (Knights of Rizal v. DMCI Homes, Inc., G.R. No.
213948, April 25, 2017).

Administrative Proceedings

1. A verified complaint against any erring local elective official shall be prepared
as follows: (1) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city shall be
filed before the Office of the President; (2) A complaint against any elective
official of a municipality shall be filed before the sangguniang panlalawigan
whose decision may be appealed to the Office of the President; and (3) A
complaint against any elective barangay official shall be filed before the
sangguniang panlungsod or sangguniang bayan concerned whose decision shall
be final and executor (Section 61, 1991 LGC).

2. In administrative proceedings, procedural due process simply means the

opportunity to explain one’s side or the opportunity to seek a reconsideration
of the action or ruling complained of. Procedural due process has been
recognized to include the following: (1) the right to actual or constructive
notice of the institution of proceedings which may affect a respondent’s legal
rights; (2) a real opportunity to be heard personally or with the assistance of
counsel, to present witnesses and evidence in one’s favor, and to defend
one’s rights; (3) a tribunal vested with competent jurisdiction and so
constituted as to afford a person charged administratively a reasonable
guarantee of honesty as well as impartiality; and (4) a finding by said tribunal
which is supported by substantial evidence submitted for consideration during
the hearing or contained in the records or made known to the parties affected
(Casimiro vs. Tandog, G.R. No. 146137, June 8, 2005).

2.1 Under the 1991 LGC, an elective local official must be a citizen of the
Philippines. One who claims that a local official is not has the
burden of proving his/her claim. In administrative cases and
petitions for disqualification, the quantum of proof required is
substantial evidence (Matugas vs. Comelec, G.R. No. 151944, January
20, 2004).

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 2.2 The lack of verification in a letter-complaint may be waived, the
defect not being fatal. Verification is a formal, not jurisdictional
requisite (Joson vs. Torres, G.R. No. 131255, May 20, 1998).

2.3 Under Section 61 of the 1991 LGC, a complaint against any elective
official of a municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the Office of the
President (Balindong vs. Dacalos, G.R. No. 158874, November 10,
2004).

2.4 The voting following the deliberation of the members of the

sanggunian in administrative cases does not constitute the decision
unless this was embodied in an opinion prepared by one of them
and concurred in by the majority. Until they have signed the
opinion and the decision is promulgated, the councilors are free to
change their votes. No notice of the session where a decision of the
sanggunian is to be promulgated on the administrative case is
required to be given to the any person. The deliberation of the
sanggunian is an internal matter (Malinao vs. Reyes, G.R. No. 117618,
March 29, 1996).

Penalties

1. Only the courts can remove a local elective official. The President and higher
supervising LGU have no such authority.

1.1 The Rules and Regulations Implementing the 1991 LGC, insofar as it
vests power on the “disciplining authority” to remove from office
erring elective local officials, is void. Local legislative bodies and/or
the Office of the President on appeal cannot validly impose the
penalty of dismissal from service on erring elective local officials. It
is beyond cavil that the power to remove erring elective local
officials from service is lodged exclusively with the courts (Pablico
vs. Villapando, G.R. No. 147870, July 31, 2002).

1.2 The sangguniang bayan is not empowered to remove an elective

local official from office. Section 60 of the 1991 LGC conferred
exclusively on the courts such power. Thus, if the acts allegedly
committed by a 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 (Sangguniang Barangay

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 of Don Mariano Marcos, Bayombong vs. Punong Barangay Martinez,
G.R. No. 170626, March 3, 2008).

1.3 A sangguniang panlalawigan may cause the removal of a municipal

mayor who did not appeal to the Office of the President within the
reglementary period the decision removing him/her from office
(Reyes vs. Comelec, G.R. No. 120905, March 7, 1996).

1.4 The President may suspend an erring provincial elected official who
committed several administrative offenses for an aggregate period
exceeding six months provided that each administrative offense,
the period of suspension does not exceed the 6-month limit
(Salalima vs. Guingona, G.R. No. 117589-92, May 22, 1996).

Preventive Suspension

1. Preventive suspension is merely a preventive measure, a preliminary step in an

administrative investigation. This is not a penalty.

2. The purpose of the suspension order is to prevent the accused from using
his/her position and the powers and prerogatives of his/her office to
influence potential witnesses or tamper with records which may be vital in
the prosecution of the case against him/her. If after such investigation, the
charge is established and the person investigated is found guilty of acts
warranting his/her suspension or removal, then he/she is suspended, removed
or dismissed. This is the penalty. Not being a penalty, the period within which
one is under preventive suspension is not considered part of the actual
penalty of suspension. Thus, service of the preventive suspension cannot be
credited as service of penalty (Quimbo vs. Gervacio, G.R. No. 155620, August 09,
2005).

3. A preventive suspension may be imposed by the disciplinary authority at any

time: (1) after the issues are joined, i.e., respondent has filed an answer; (2)
when the evidence of guilt is strong; and (3) given the gravity of the offenses,
there is great probability that the respondent, who continues to hold office,
could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence. These are the pre-requisites. However, the
failure of respondent to file his/her answer despite several opportunities given
him/her is construed as a waiver of his/her right to present evidence in his/her
behalf. In this situation, a preventive suspension may be imposed even if an
answer has not been filed (Joson vs. Court of Appeals, G.R. No. 160652, February
13, 2006).

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 3.1 The rule under the Ombudsman Act of 1989 is different.
Ombudsman Act of 1989 does not require that notice and hearing
precede the preventive suspension of an erring official. Only two
requisites must concur to render the preventive suspension order
valid. First, there must a prior determination by the Ombudsman
that the evidence of respondent’s guilt is strong. Second, (1) the
offense charged must involve dishonesty, oppression, grave
misconduct or neglect in the performance of duty; (2) the charges
would warrant removal from the service; or (3) the respondent’s
continued stay in the office may prejudice the case filed against him
(Carabeo vs. Court of Appeals, G.R. Nos. 178000/ 178003, December 4,
2009).

3.2 Section 63 of the 1991 LGC which provides for a 60-day maximum
period for preventive suspension for a single offense does not
govern preventive suspensions imposed by the Ombudsman. Under
the Ombudsman Act, the preventive suspension shall continue until
the case is terminated by the Office of the Ombudsman but not
more than six months (Miranda vs. Sandiganbayan, G.R. No. 154098,
July 27, 2005).

3.3 Under the 1991 LGC, a single preventive suspension of local

elective officials should not go beyond 60 days. Thus, the
Sandiganbayan cannot preventively suspend a mayor for 90 days
(Rios vs. Sandiganbayan, G.R. No. 129913, September 26, 1997).

4. Direct recourse to the courts without exhausting administrative remedies is

not permitted. Thus, a mayor who claims that the imposition of preventive
suspension by the governor was unjustified and politically motivated, should
seek relief first from the SILG, not from the courts (Espiritu vs. Melgar, G.R. No.
100874, February 13, 1992).

4.1 The Judiciary must not intervene because the office orders issued
by the Provincial Agriculturist both concerned the implementation
of a provincial executive policy. The matter should have been
raised with the Provincial Governor first (Ejera vs. Merto, G.R. No.
163109, January 22, 2014).

4.2. A municipal official placed under preventive suspension by a

sangguniang panlalawigan must file a motion for reconsideration
before the said sanggunian before filing a petition for certiorari

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 with the Court of Appeals (Flores vs. Sangguniang Panlalawigan of
Pampanga, G.R. No. 159022, February 23, 2005).

4.3 A municipal mayor may file before the Court of Appeals a petition
for certiorari, instead of a petition for review assailing the decision
of the Office of the President which reinstates the preventive
suspension order issued by the provincial governor. The special civil
action of certiorari is proper to correct errors of jurisdiction
including the commission of grave abuse of discretion amounting
to lack or excess of jurisdiction. Exhaustion of administrative
remedies may be dispensed with when pure questions of law are
involved (Joson vs. Court of Appeals, G.R. No. 160652, February 13,
2006).

Effect of Re-Election

1. An administrative case has become moot and academic as a result of the

expiration of term of office of an elective local official during which the act
complained of was allegedly committed. Proceedings against respondent
are therefor barred by his/her re-election (Malinao vs. Reyes, G.R. No. 117618,
March 29, 1996).

1.1 A reelected local official may not be held administratively

accountable for misconduct committed during his/her prior term
of office. The rationale for this holding is that when the electorate
put him/her back into office, it is presumed that it did so with full
knowledge of his/her life and character, including his/her past
misconduct. If, armed with such knowledge, it still reelects him/her,
then such reelection is considered a condonation of his/her past
misdeeds (Valencia vs. Sandiganbayan, G.R. No. 141336, June 29,
2004).

1.2 A public official cannot be removed for administrative misconduct

committed during a prior term since his/her re-election to office
operates as a condonation. To do otherwise would be to deprive
the people of their right to elect their officers. When the people
have elected a person to office, it must be assumed that they did
this with knowledge of his/her life and character that they
disregarded or forgave his/her fault, if he/she had been guilty of any
(Salalima vs. Guingona, G.R. No. 117589-92, May 22, 1996).

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 1.3 The electorate’s condonation of the previous administrative
infractions of reelected officials cannot be extended to that of
reappointed coterminous employees. In the latter’s case, there is
neither subversion of the sovereign will nor disenfranchisement of
the electorate to speak of. It is the populace’s will, not the whim of
the appointing authority, that could extinguish an administrative
liability (Salumbides vs. Office of the Ombudsman, G.R. No.180917,
April 23, 2010).

2. A provincial board member’s election to the same position for the third and
fourth time, in representation of the renamed district which encompasses 8
out of the 10 towns of the district he formerly represented, is a violation of
the three-term limit rule (Naval vs. COMELEC, G.R. No. 207851, July 8, 2014).

Part 7. PEOPLE’S PARTICIPATION

Venues for Popular Participation

1. There are seven venues by which ordinary citizens, non-governmental and

people’s organizations can participate in local governance. These are: (1) local
special bodies; (2) prior mandatory consultation; (3) recall; (4) disciplinary
action; (5) initiative and referendum; (6) sectoral representation; and (7)
partnership and assistance.

Prior Mandatory Consultation

1. Prior to the implementation of national projects, the prior approval by the

LGU and prior consultation with affected sectors are required (Sections 26 [c]
and 27, 1991 LGC).

1.1 The grant of an Environmental Clearance Certificate by the

Department of Environment and Natural Resources in favor of
National Power Corporation of the construction of a mooring
facility does not violate Sections 26 and 27 of the 1991 LGC. The
mooring facility itself is not environmentally critical and hence
does not belong to any of the six types of projects mentioned in the
law. The projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are
among those enumerated in Sections 26 and 27, to wit, those that:
(1) may cause pollution; (2) may bring about climatic change; (3)

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 may cause the depletion of non-renewable resources; (4) may
result in loss of crop land, rangeland, or forest cover; (5) may
eradicate certain animal or plant species; and (6) other projects or
programs that may call for the eviction of a particular group of
people residing in the locality where these will be implemented. It is
another matter if the operation of the power barge is at issue
(Bangus Fry Fisherfolk Diwata Magbuhos vs. Lanzanas, G.R. No. 131442,
July 10, 2003).

1.2 The 1991 LGC requires conference with the affected communities
of a government project. Thus, before the National Power
Corporation energizes and transmits high voltage electric current
through its cables in connection with Power Transmission Project
which could cause illnesses, the requirements set forth in Section 27
of the 1991 LGC must be followed (Hernandez vs. National Power
Corporation, G.R. No. 145328, March 23, 2006).

1.3 Under the 1991 LGC, two requisites must be met before a national
project that affects the environmental and ecological balance of
local communities can be implemented: prior consultation with the
affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory
requirements, the project’s implementation is illegal. The
establishment of a dumpsite/landfill by the national government
and the Metropolitan Manila Development Authority requires
compliance with these requirements (Province of Rizal vs. Executive
Secretary, G.R. No. 129546, December 13, 2005).

1.4 The requirement of prior consultation and approval under Sections

2(c) and 27 of the 1991 LGC applies only to national programs
and/or projects which are to be implemented in a particular local
community. Lotto is neither a program nor a project of the national
government, but of a charitable institution, the Philippine Charity
Sweepstakes Office. Though sanctioned by the national
government, it is far-fetched to say that lotto falls within the
contemplation of the law (Lina, Jr. vs. Paňo, G.R. No. 129093, August
30, 2001).

Initiative and Referendum

1. Nothing in the LGC allows the creation of another local legislative body that
will enact, approve, or reject local laws either through the regular legislative

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Alberto C. Agra, Ateneo Law School
 process or through initiative or referendum. The claim that the proposed
“sectoral council” will not legislate but will merely "facilitate" the people's
exercise of the power of initiative and referendum is rendered unnecessary by
the task the COMELEC must assume under the LGC. Section 122(c) of the LGC
provides that the COMELEC (or its designated representative) shall extend
assistance in the formulation of the proposition (Marmeto v. COMELEC, G.R. No.
213953, 16 September 2017).

2. COMELEC commits grave abuse of discretion when it dismisses an initiative

petition on the ground that there were no funds allocated for the purpose. It
is COMELEC which has the power to determine whether the propositions in an
initiative petition are within the powers of a concerned sanggunian to enact
(Marmeto v. COMELEC, G.R. No. 213953, 16 September 2017).

3. The voters have the power of initiative and referendum.

1.1 Local initiative is the legal process whereby the registered voters of
an LGU may directly propose, enact, or amend any ordinance
(Section 120, 1991 LGC).

1.2 Local referendum is the legal process whereby the registered

voters of the LGUs may approve, amend or reject any ordinance
enacted by the sanggunian (Section 126, 1991 LGC).

1.3 Initiative is resorted to or initiated by the people directly either

because the law-making body fails or refuses to enact the law,
ordinance, resolution or act that they desire or because they want
to amend or modify one already existing. On the other hand, in a
local referendum, the law-making body submits to the registered
voters of its territorial jurisdiction, for approval or rejection, any
ordinance or resolution which is duly enacted or approved by such
law-making authority (Subic Bay Metropolitan Authority vs. Comelec,
G.R. No. 125416, September 26, 1996).

1.4 The application of local initiatives extends to all subjects or matters

which are within the legal powers of the sanggunians to enact,
which undoubtedly includes ordinances and resolutions (Garcia vs.
Comelec, G.R. No. 111230, September 30, 1994).

Local Special Bodies

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Alberto C. Agra, Ateneo Law School
1. The local special bodies are the development councils (Section 106, 1991 LGC),
school boards (Section 98, 1991 LGC), health boards (Section 102, 1991 LGC),
peace and order councils (Section 116, 1991 LGC), and people’s law enforcement
boards (R.A. No. 6975). People’s and non-governmental organizations are
represented in these bodies.

2. The concept of legislator control underlying the “Pork Barrel” system

conflicts with the functions of the Local Development Councils (LDCs) which
are already legally mandated to assist the corresponding sanggunian in setting
the direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction. Considering that LDCs
are instrumentalities whose functions are essentially geared towards
managing local affairs, their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are national officers
that have no law-making authority except only when acting as a body. Under
the Pork Barrel system, a national legislator can simply bypass the local
development council and initiate projects on his/ her own, and even take sole
credit for its execution. (Belgica, et..al., v. Ochoa, et. al., G.R. 208566, November
19, 2013).

Partnerships and Assistance

1. Local governments shall promote the establishment and operation of people's

and non-governmental organizations to become active partners in the pursuit
of local autonomy. Local governments may provide assistance to, financial or
otherwise, and may enter into partnership and cooperative arrangements
with civil society groups, non-governmental and people’s organizations
(Sections 34 -36, 1991 LGC).

Recall

1. The power of recall or the power to remove a local elective official for loss of
confidence shall be exercised by the registered voters of an LGU to which the
local elective official subject to such recall belongs (Section 69, 1991 LGC).

1.1 Recall is a mode of removal of public officer by the people before

the end of his/her term of office. The people’s prerogative to
remove a public officer is an incident of their sovereign power and
in the absence of any Constitutional restraint, the power is implied
in all governmental operations. Loss of confidence as a ground for

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Alberto C. Agra, Ateneo Law School
 recall is a political question (Garcia vs. Comelec, G.R. No. 111511,
October 5, 1993).

1.2 The 1-year ban refers to election where the office held by the local
official sought to be recalled shall be contested. The scheduled
barangay election on May 1997 is not the regular election
contemplated for purposes of computing the 1-year prohibition for
recall of municipal elective officials (Jariol vs. Comelec, G.R. No.
127456, March 20, 1997).

1.3 The 1-year ban cannot be deemed to apply to the entire recall
proceedings. The limitations apply only to the exercise of the
power of recall which is vested in the registered voters. So, as long
as the election is held outside the one-year period, from
assumption to office the local official sought to be recalled, the
preliminary proceedings to initiate a recall can be held even before
the end of the first year in office of said local official (Claudio vs.
Comelec, G.R. No. 140560, May 4, 2000).

1.4 A party aggrieved by the issuance of a Commission on Election

resolution providing for the schedule of activities for the recall of
elective officials should have filed, when he/she had sufficient time,
a motion for reconsideration with the Commission pursuant to the
rule on exhaustion of administrative remedies (Jariol vs. Comelec,
G.R. No. 127456, March 20, 1997).

1.5 The authentication of signatures in a recall petition is done during

the determination of the names, signatures and thumbmarks of
petitioners, not during the determination of the sufficiency of the
form and substance of the petition (Sy-Alvarado v. Comelec,
February 17, 2015).

2. Under the 1991 LGC, there are two modes of initiating recall: (1) popular
petition by the voters; (2) resolution by the Preparatory Recall Assembly
composed of elective officials of the supervised-lower LGU. Under R.A. No.
9244, the second mode was repealed.

Sectoral Representatives

Chapter X, Section 9, 1987 Constitution:

“Legislative bodies of local governments shall have sectoral representation as may
be prescribed by law.”

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Alberto C. Agra, Ateneo Law School
1. There shall be three sectoral representatives in the provincial, city and
municipal legislative councils. In addition to the regular members, there shall
be one (1) sectoral representative from the women, one (1) from the workers,
and one (1) from any of the following sectors: the urban poor, indigenous
cultural communities, disabled persons, or any other sector as may be
determined by the sanggunian concerned within ninety (90) days prior to the
holding of the next local elections as may be provided for by law (Section 41,
1991 LGC).

1.1 Section 9 of the 1987 Philippine Constitution provides that

“legislative bodies of local government shall have sectoral
representation as may be prescribed by law”. The phrase “as may
be prescribed by law” does not and cannot, by its very wording,
restrict itself to the uncertainty of future legislation. Such
interpretation would defeat the very purpose of immediately
including sectoral representatives in the local law-making bodies.
Otherwise, in the interregnum, from the ratification of the
Constitution until the passage of the appropriate statute, the
sectors would have no voice in the formulation of legislation that
would directly affect their individual members (Supangan vs.
Santos, G.R. No. 84663, August 24, 1990).

Reviewer on Local Government Law 115

Alberto C. Agra, Ateneo Law School