PUBLIC CORPORATION

Definition of public corporation It is formed or organized for the government of a portion of the State (Corporation Code) Elements of a municipal corporation 1. A legal creation or incorporation 2. A corporate name by which the artificial personality or legal entity is known and in which all corporate acts are done 3. Inhabitants constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents 4. A place or territory within which the local civil government and corporate functions are exercised. Dual nature of municipal corporations 1. Governmental a. The municipal corporation acts as an agent of the State for the government of the territory and the inhabitants within the municipal limits b. It exercises by delegation a part of the sovereignty of the State 2. Private/proprietary a. It acts in a similar category as a business corporation, performing functions not strictly governmental or political b. Those exercised for the special benefit and advantage of the community. *Note: Local Government Code 15. Every LGU created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a POLITICAL SUBDIVISION of the national government and as a CORPORATE ENTITY representing the inhabitants of its territory. Requisites for the Incorporation of a Municipal Corporation 1. Territory 2. Population 3. Charter Requisites of a De Facto Municipal Corporation 1. A valid law authorizing incorporation 2. An attempt in good faith to organize under it 3. A colorable compliance with the law 4. An assumption of corporate powers An attack on Legal Existence A quo warranto proceeding brought by the State is the proper remedy. It should be commenced within 5 years from the time the act complained of was committed. Creation of Local Government Units (LGUs) 1. Authority to Create LGUs ( 6, LGC) By law enacted by Congress Province City Municipality Any other political subdivision (A barangay may also be created by law. See 386) 2. By ordinance passed by Sangguniang Panlalawigan/Panlungsod For barangay located within its territorial jurisdiction 3. Indicators for creation/conversion a. Income b. Population c. Land Area 4. Plebiscite Requirement a. It applies to the creation, division, merger, abolition or substantial alteration of boundaries of LGU. b. Creation etc. should be approve by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. 5. Beginning of Corporate Existence ( 14, LGC) Corporate existence commences upon the election and qualification of its chief executive and a majority of members of the Sanggunian unless some other time is fixed by the law or ordinance creating it.

Local Autonomy Local autonomy can be considered a measure of decentralization of the functions of government. Under the principle of local autonomy and decentralization, LGUs have more powers, authority, responsibilities and resources. Decentralization It is the devolution of national administration, not power, to the local levels, in which local officials remain accountable to the central government in the manner the law may provide. Levels of Decentralization 1. Administrative Autonomy a. The central government delegates administrative powers to the political subdivisions. b. Purposes To broaden the local power base To make the units more responsive and accountable To ensure the full development of LGUs into self-reliant communities To break the monopoly of the national government over managing local affairs To relieve the national government from the burden of managing local affairs 2. Political Autonomy a. Involves the abdication of political power in favor of LGUs declared to be autonomous b. It would amount to self-immolation because the autonomous government would become accountable to its constituency, not to the central government. Devolution It refers to the act by which the national government confers power and authority upon the various LGUs to perform specific functions and responsibilities. ( 17, LGC). It is considered mandatory under the LGC. Distinction between Supervision and Control 1. Supervision a. It means the overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. b. In relation to LGUS, the President only has the power of supervision over LGUS. Thus, he cannot interfere with the local governments as long as they act within the scope of their authority. c. Under the LGC (25), the President exercises direct supervision over provinces, highly urbanized cities and independent component cities. He exercises indirect supervision over component cities and municipalities through the provinces. He also exercises indirect supervision over barangays through the city or municipality concerned. 2. Control a. It means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his/her duties and to substitute the judgment of the former for that of the latter. b. In relation to LGUs, it is Congress which exercises control over them. Police Power 1. Police power is not inherent in municipal corporations. Under the LGC, LGUs exercise police power under the general welfare clause (See 16) 2. Branches of the general welfare clause a. One branch relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. b. The second branch is more independent of the specific functions of the council. It authorizes ordinances as are necessary and proper to provide for the health and safety, promote prosperity, improve morals, peace, good order etc. Eminent Domain and Reclassification of Land 1. Requisites for Valid Exercise [CODE: OPJO] a. ORDINANCE authorizing the local chief executive to subject a certain property to expropriation b. Expropriation should be for a PUBLIC USE/PURPOSE or for the WELFARE of the POOR/LANDLESS. c. Payment of JUST COMPENSATION d. Valid and definite OFFER TO PAY which was NOT accepted. 2. Role of Supervising Local Government Unit It can only declare the ordinance invalid on the sole ground that it is beyond the power of the lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is unnecessary. (Moday v. CA, Feb. 20, 1997) 3. Role of National Government The approval of the national government is not required for local governments to exercise the power of eminent domain.

4. Role of Judiciary a. Can inquire into the legality of the exercise of the right. b. Can determine whether there was a genuine necessity 5. Only cities and municipalities can reclassify agricultural lands through the proper ordinance after conducting public hearings for the purpose. 6. Grounds for Reclassification a. When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture. b. When the land shall have substantially greater economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned. Taxation 1. Power to tax of LGUs is now pursuant to direct authority conferred by the 1987 Constitution. 2. Since LGUs have no inherent power to tax, their power must yield to a legislative act. Legislative Power 1. Local chief executive (except for punong barangay because he is already a member of the Sangguniang barangay) has to approve the ordinance enacted by the council. 2. Veto power of local chief executive. ( 55) a. Grounds 1. Ultra vires 2. Prejudicial to public welfare b. Item veto 1. Appropriations ordinance 2. Ordinance/resolution adopting local development plan and public investment program 3. Ordinance directing the payment of money or creating liability. 3. Review by Higher/Supervising Council a. The higher council can declare the ordinance/resolution invalid if it is beyond the scope of the power conferred upon the lower Sanggunian. b. For barangay ordinances, the higher council can also rule that it is inconsistent with law or city/municipal ordinances. Corporate Powers (Sec. 22) 1. To have continuous succession in its corporate name 2. To have and use a corporate seal 3. To acquire and convey real or personal property 4. To enter into contracts 5. To exercise such other powers as are granted to corporations, subject to limitations in LGC/other laws. Qualifications of Elective Local Officials ( 39) 1. Filipino citizen 2. Registered voter in the barangay, municipality, city or province where he intends ti be elected/Registered voter in the district where he intends to be elected in case of a member of the Sangguniang panlalawigan, Sangguniang panlungsod or Sangguniang bayan. 3. Resident therein for at least 1 year immediately preceding the day of the election. 4. Able to read and write Filipino/ any other local language or dialect 5. Age requirement AGE REQUIREMENT at least 23 years old on election day POSITION A. Governor B. Vice-Governor C. Mayor, Vice-Mayor, member of Sangguniang Panglungsod of highly urbanized cities A. Mayor, B. Vice-Mayor of independent component cities, component cities or municipalities A. Member of Sangguniang Panglungsod B. Member of Sangguniang Bayan C. Punong Barangay D. Member of Sangguniang Barangay

at least 21 years old

at least 18 years old on election day

Disqualifications for Local Elective Officials (Sec. 40)

1. Those sentenced by final judgment for an offense involving moral turpitude, or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence 2. Those removed from office as a result of an administrative case. 3. Those convicted by final judgment for violating the oath of allegiance to the Republic 4. Those with dual citizenship 5. Fugitives from justice in criminal or non-political cases here or abroad 6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code 7. The insane or feeble minded Term of Office 1. Term of office: 3 years 2. No local elective official shall serve for more than 3 consecutive terms in the same position 3. Voluntary renunciation of the office for any length of time shall be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. Vacancies 1. Permanent vacancy a. Grounds 1.Elective local official fills a higher vacant office 2.Refuses to assume office 3.Fails to qualify 4.Dies 5.Removed from office 6.Voluntarily resigns 7.Permanently incapacitated to discharge the functions of his office b. Filling of vacancy 1.Automatic succession VACANCY 1. In the office of the governor, mayor 2. In the office of the governor, vice-governor, mayor or vice-mayor 3. In the office of the highest ranking Sanggunian member (who was supposed to fill the vacant position of governor etc. 4. In the office of the punong barangay 2. By appointment VACANCY 1. Sanggunian Panlalawigan or Panlungsod of highly urbanized cities and independent component cities 2. Sangguniang Panlungsod of Component Cities, Sangguniang Bayan 3. Sangguniang Barangay APPOINTMENT BY WHOM President, through Executive Secretary Governor City/Municipal Mayor upon Recommendation of the Sanggunian barangay concerned SUCCESSOR Vice-Governor, Vice-Mayor Highest ranking Sanggunian member Second highest ranking Sanggunian member Highest ranking sangguniang barangay member/2nd highest ranking sanggunian member

c. Ranking- It is determined on the basis of proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election d. The general rule is that the successor (by appointment) should come from the same political party as the Sanggunian member whose position has become vacant. The exception would be in the case of vacancy in the Sangguniang barangay. 2. Temporary Vacancy a. Grounds (not exclusive list) 1.Leave of absence 2.Travel abroad 3.Suspension from office b. If the positions of governor, mayor or punong barangay become temporarily vacant, the vicegovernor, vice-mayor or highest ranking Sanggunian member will automatically exercise the powers and perform the duties and functions of the local chief executive concerned.

c.

Exception: He/she cannot exercise the power to appoint, suspend or dismiss employees. Exception to exception: If the period of temporary incapacity exceeds 30 working days.

d. Termination of temporary incapacity 1. Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office 2. IF the temporary incapacity was due to legal reasons, the local chief executive should also submit necessary documents showing that the legal causes no longer exist. 3. Appointment of OIC a. The local chief executive can designate in writing an OIC if he is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days. b. The OIC cannot exercise the power to appoint, suspend or dismiss employees. 4. Omnibus Election Code (Sec. 67) Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon filing of his certificate of candidacy. Grounds for Disciplinary Actions (Sec. 60) An elective local official may be disciplined, suspended or removed from office on any of the following grounds: 1. 2. 3. 4. 5. 6. 7. 8. Disloyalty to the Republic of the Philippines Culpable violation of the Constitution Dishonesty, oppression, misconduct in office, gross negligence, dereliction of duty Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor Abuse of authority Unauthorized absence for 15 consecutive working days, except in the case of members of the Sanggunian panlalawigan, Sangguniang panlungsod, Sangguniang bayan, Sangguniang barangay. Application for or acquisition of foreign citizenship or residence or the status of an immigrant of another country. Such other grounds as may be provided by the Code/other laws.

Preventive Suspension (Sec. 63) 1. When can it be imposed a. After the issues are joined b. When the evidence of guilt is strong c. Given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence 2. Who can impose preventive suspension IMPOSED BY: 1. President 2. Governor 3. Mayor RESPONDENT LOCAL OFFICIAL Elective official of a province, highly urbanized or Independent component city Elective official of a component city or municipality Elective official of a barangay

3. Duration of preventive suspension a. Single preventive suspension should not exceed 60 days. b. IF several administrative cases are filed against an elective official, he cannot be preventively suspended for more than 90 days within a single year on the same ground/s existing and known at the time of the first suspension. Suspension 1. It should not exceed the unexpired term of the respondent or a period of 6 months for every administrative offense. 2. Penalty is NOT a bar to the candidacy of the respondent suspended as long as he meets the qualifications for the office.

Removal as result of Administrative Investigation It serves as a BAR to the candidacy of the respondent for any elective position. Recall ( 69-75) 1. By whom Exercised It is exercised by the registered voters of a LGU to which the local elective official subject to recall belongs. 2. GROUNDS = Loss of confidence 3. Initiation of Recall Process Preparatory Recall Assembly ( PRA) 1. Composition LEVEL 1. Provincial 2. City 3. Legislative district 4. Municipal COMPOSITION Mayors, vice-mayors, Sanggunian members of the municipalities and component cities Punong barangay and Sangguniang barangay members in the city Elective municipal/barangay officials Punong barangay and sangguniang barangay members in the municipality

2. Procedure Session in a public place to initiate recall proceeding Resolution adopted by a majority of all the members of the PRA during the session called for the purpose of initiating recall proceedings

Petition by Registered Voters

1. Petition OF at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected. 2. The written petition for recall should be duly signed before the election registrar or his representativ and in the presence of the representative of the petitioner and the official sought to be recalled. 3. It should be signed in a public place 4. Petition should be filed wit COMELEC through its office in the LGU concerned 5. Publication of petition for 10-20 days in order to verify the authenticity and genuineness of the petition and the required % of voters. Recall Election a. The official/s sought to be recalled are automatically considered as duly registered candidates. b. The date set for the recall election should not be less than 30 days after filing of resolution/petition in the case of barangay, city or municipal officials and 45 days in the case of provincial officials Effectivity of Recall a. Recall will only be effective upon the election and proclamation of a successor. b. IF the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office. Limitations on Recall a. Elective local official can be the subject of a recall election only onece during his term of office b. No recall shall take place within 1 year from the date of the officials assumption to office or 1 year immediately preceding a regular local election. Initiative ( 120-125) Definition of Local Initiative It is the legal process whereby the registered voters of a LGU may directly propose, enact or amend any ordinance Note: In Garcia v. Comelec, the SC ruled that a resolution can also be the proper subject of an initiative

Who May Exercise Power It may be exercised by all registered voters of the provinces, cities, municipalities, barangays. Procedure a. Number of voters who should file petition with Sanggunian concerned 1. Provinces and cities at least 1000 registered voters 2. Municipality at least 100 3. Barangay at least 50 b. Sanggunian concerned has 30 days to act on the petition. If the Sanggunian does not take any favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian.

c.

Proponents will have the following number of days to collect required number of signatures 1. Provinces and cities 90 days 2. Municipalities 60 days 3. Barangays 30 days

d. Signing of petition e. Date for initiative set by Comelec if required number of signatures has been obtained. Effectivity of Proposition a. If proposition is approved by a majority of the votes cast, it will take effect 15 days after certification by the Comelec as if the Sanggunian and the local chief executive had taken affirmative action. b. IF it fails to obtain required number of votes, it is considered defeated Limitations a. It should not be exercised more than once a year. b. It can only extend to subjects or matters which are within the legal powers of the Sanggunians to enact. c. If the Sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initative shall be cancelled. Limitations upon Sanggunians a. The Sanggunian cannot repeal, modify or amend any proposition or ordinance approved through system of initiative/referendum within 6 months from the date of approval thereof. b. The Sanggunian can amend, modify or repeal the proposition/ordinance w/in 3 years thereafter by a vote of of all its members. c. For barangays, the applicable period is 18 months. Referendum ( 126-127) Definition It is the legal process whereby the registered voters of the local government units may approve, amend or reject any ordinance enacted by the Sanggunian. Authority of Courts The proper courts can still declare void any proposition adopted pursuant to an initiative/referendum on the following grounds a. Violation of the Constitution b. Want of capacity of the Sanggunian concerned to enact the measure.