MUNICIPAL CORPORATIONS (LOCAL GOVERNMENT UNITS)

A.

PUBLIC CORPORATIONS

Q:

What is the concept of Public Corporations?

A:

A public corporation is one created by the state either by general or special

act for purposes of administrative of local government or rendering service in
the public interest.
It is one formed or organized for the government of portion of a state; it is
created by the state as its own agency for the accomplishment of parts of its
own public works. (Elliot, Municipal Corporation, page 1)

Q:

How
are
public
corporations?

corporations

distinguished

from

private

A:

1. Public corporations are established for purposes connected with the

administration of civil or local governments; while private corporations are
created for private aim, gain or benefits of its members.
2. Public corporations are creations of the state either by general or special
act; while private corporations are created by the will of the incorporators
with the recognizance of the state.
3. Public corporations are involuntary consequence of the legislation; while
private corporations constitute a voluntary agreement by and among its
members.

Q:

How is a public corporation distinguished from a government-owned

or controlled corporation (GOCC)?

A:

Unlike a public corporation, a GOCC is created as agencies of the state for

narrow and limited purpose. GOCCs are created in order to render public
service or supply public want while public corporations are created for
purposes of administration of civil or local governments.

Q:

What are the classifications of public corporations?

A:

There are two classifications:

a.

Quasi-public corporations which are created as agencies of the state for

narrow and limited purposes without the powers and liabilities of selfgoverning corporations. They render public service or supply public wants.

b.

Municipal Corporations it is a body politic and corporate constituted by the

incorporation of the inhabitants for purposes of local government thereof; it is
established by law partly as an agency of the state to assist in the civil
government of the country, but chiefly to regulate and administer the local or
internal affairs of the city, town or district which is incorporated. (Dillon,
Municipal Corporations, Volume 2, pp. 58-59)

B.

MUNICIPAL CORPORATIONS

Q:

What is the definition of local government?

A:

Local government refers to a political subdivision of a nation or state which is

constituted by law and has substantial control of local affairs. (UP Law Center
Constitution Revision Project, Part II, p. 712)

Q:

What are the elements of a municipal corporation?

A:

1. Alegal 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 power which are executed through duly constituted officers
and agents;
4. A place or territory within which the local government and corporate
functions are exercised. (Laurel, Cases on Municipal Corporations, p. 29)

Q:

What are the municipal corporations in the Philippines?

A:

The municipal corporations or territorial subdivisions of the Philippines are

the provinces, cities, municipalities, barangays and the Autonomous Regions
of Muslim Mindanao and in the Cordilleras as well as the special metropolitan
political subdivisions (Sec. 1, Art X, 1987 Constitution)

Q:

What is the concept and principles of local autonomy?

A:

The principle of local autonomy under the 1987 Constitution simply means
decentralization; it does not make the local governments sovereign within
the state or an imperium in imperio. (Bascovs PAGCOR, 197 SCRA 52)
In LimbonasvsMangelin, 170 SCRA 786, the Supreme Court declared that
autonomy is either decentralization of administration or decentralization of
power. There is decentralization of administration when the Government
delegates administrative powers to political subdivisions in order to broaden
the base of government power and in the process, make local governments
more responsive and accountable and ensure their fullest development as
self reliant communities and make them more effective partners in the
pursuit of national development and social progress.
On the other hand, decentralization of powers involves the abdication of
political power in favour of local government units declared to be
autonomous. I that case, the autonomous government is free to chart its own
destiny and shape its future with minimum intervention since in that event,
the autonomous government becomes accountable not to the central
authorities but to its constituency.

Q:

What is decentralization?

A:

Decentralization simply means the devolution of national administration, not

power, to local governments. Local officials remain accountable to the central
government as the law may provide.

Q:

What is devolution?

A:

Devolution means the act by which the National government confers power
and authority upon the various local government units to perform specific
functions and responsibilities. (Sec. 17 (e), Local Government Code)

Q:

What are relevant Constitutional provisions with regards to Local

Government Units?

A:

Section 25, Article II states that The State shall ensure the autonomy of local
governments. The whole Article X of the 1987 Constitution is entirely about
Local Government.

Q:

What is the distinction of power of control from supervision over

LGUs? Who exercises them?

A:

Congress retains control of the local government units although in

significantly reduced degree now under our previous Constitution. 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 (Congress) is still the
principal of local government units, which cannot defy its will or modify or
violate it. Ours is still a unitary form of government, not a federal state. Being
so any form of autonomy granted to local governments will necessarily be
limited and confined within the extent allowed by the central authority.
(LinavsPano, GR No. 129093, August 30, 2001)
Even as we recognize that the Constitution guarantees autonomy to local
government units, the exercise of local autonomy remains subject to the
power of control by Congress, and the power of general supervision by the
President.
The President can only interfere in the affairs and activities of local
government unit if he can find that the latter had acted contrary to law. This
is the scope of the Presidents supervisory power over the LGUs. Hence, the
President or any of his alter egos, cannot interfere in local affairs as long as
the concerned LGU acts within the parameters of the Constitution and the
law. Any directive therefore of the President or his alter egos seeking to alter
the wisdom of a law-conforming judgment on local affairs of an LGU is a
patent nullity, because it violates the principles of local autonomy, as well as
the doctrine of separation of powers of the executive and the legislative
departments in governing municipal corporations. (Judge Dadolevs COA, GR
No. 125350, December 3, 2002)

Q:

How are the provisions of the Local Government Code of 1991 (RA
7160) to be interpreted?

A:

The Rules of Interpretation is provided for in Section 5 of the said Code. Such
section provides that any doubt or question on a power of an LGU shall be
resolved in favor of devolution/decentralization of powers and in favour of the
lower LGU.
However, for tax measures enacted by the LGUs, any doubt shall be
construed strictly against the LGU and liberally in favour of the taxpayer.

Q:

How is a local government unit created, divided, merged, abolished

or its boundaries substantially altered?

A:

A local government unit may be created, divided, merged, abolished or its

boundaries substantially altered either by law created by Congress, in the
case of a province, city or municipality, or any other political subdivision, or
by an ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its territorial
subdivision, subject to limitations and requirements prescribed by law. (Sec.
6, RA 7160)
In other words, Congress has the power to create or abolish a province, city,
municipality or any other political subdivision. The sangguniang panlalawigan
(province) or sangguniang panlungsod (city) has the power to create and
abolish barangays located within its territorial jurisdiction; the sangguniang
panlalawigan in case the barangay is located in a municipality (e.g. Albuera),
and the sangguniang panlungsod concered in case the barangay is located in
a component city (e.g. Baybay City) independent component city (e.g. Ormoc
City) or a Highly Urbanized City (e.g. Tacloban City).

Q:

What are the requisites for creation or conversion of an LGU?

A:

1. Income must be sufficient, based on acceptable standards, to provide

for all essential government facilities and services and special functions
commensurate with the size of its population, as expected of the local
government unit concerned. Average annual income for the last two
consecutive years based on 1991 constant prices should be at least:
Municipality
City
HUC
Province

:
:
:
:

(in Pesos)
2,500,000.00
100,000,000.00 (Year 2000 constant prices, RA 9009)
50,000,000.00
20,000,000.00

In Alvarez vsGuingona, 252 SCRA 695, it was held that the Internal Revenue
Allotment (IRAs) should be included in the computation of the average annual
income of the municipality (for purposes of determining whether the
municipality may be validly converted into a city), but under RA 9009, it is
specifically provided that for conversion of cities, the municipalitys income
should not include the IRA.
2. Population it shall be determined as the total number of inhabitants
(residence for at least 6 months) within the territorial jurisdiction of the LGU
concerned. Required minimum population are:
Barangay
5,000
Municipality
City
HUC
Province

2,000 inhabitants, however in Metropolitan area or HUC,

:
:
:
:

25,000
150,000
200,000
250,000

3. Land area it must be contiguous, unless it comprises of two or more

islands or is separated by a local government unit independent of the others;
properly identified by metes and bounds with technical descriptions and
sufficient to provide for such basic services and facilities to meet the
requirements of its populace. Area requirements are:
Municipality :
City
:

50 square kilometres
100 square kilometres

Province

2,000 square kilometres

Compliance with the foregoing indicators (income, population and land area)
shall be attested to by the Department of Finance, National Statistics Office,
and Lands Management Bureau of the DENR.
Q:

What are the conditions for the division or merger of local

government units?

A:

1. They shall comply with the same requirements like income, population, and
land area. (Section 7, RA 7160);
2. The division shall not reduce the income, population, and land area of local
government unit or units concerned to less than the minimum requirements
of the Code;
3. The income classification of the original local government units or units
shall not fall below its current income classification prior to such division.
(Sec. 8, RA 7160)

Q:

How is an LGU abolished?

A:

An LGU may be abolished when its income, population or land area has been
irreversibly reduced to less than the minimum standards prescribed for its
creation, as certified by the national agencies mentioned. The law or
ordinance abolishing a local government unit shall specify the province, city,
municipality or barangay with which the LGU sought to be abolished will be
incorporated or merged.

Q:

Is plebiscite an indispensable requirement for the creation, division,

merger, abolition or substantial alteration of LGU boundaries?

A:

Yes. Plebiscite Requirement No creation, division, merger, abolition or

substantial alteration of boundaries of LGUs shall take effect unless approved
by a majority of the votes cast in a plebiscite called for the purpose in the
political unit or units directly affect. Said plebiscite shall be conducted by the
COMELEC within 120 days from the date of effectivity of the law or ordinance
effecting such action, unless said law or ordinance fixes another date.(Section
10, RA 7160)

Q:

Is population an indispensable requirement in the creation of a

province? Explain.

A:

No. A province may be crated if it has an average annual income, as certified

by the DOF, of not less than Twenty Million Pesos (Php20,000,000) and either
of the following requisites:
1. A contiguous territory of at least two thousand (2,000) square kilometres,
as certified by the Lands Management Bureau; or
2. A population of not less than two hundred fifty thousand (250,000)
inhabitants as certified by the NSO.
Notably, the requirement of population is not an indispensable requirement,
but is merely an alternative addition to the indispensable income
requirement. (Aqunio vs. COMELEC, GR No. 189793, April 2, 2010)

C.

Powers of Local Government Units (LGUs)

Q:

What is the General Welfare Clause? What is its basis?

A:

Section 16 of RA 7160 is the so-called general welfare clause which

empowers local government units to enact and implement measures for the
general well-being of their inhabitants. Its basis is the police power of the
State as delegated to local government units.
Verily, the powers of a local government unit are not absolute. They are
subject to limitations laid down by the Constitution and the laws such as our
Civil Code. Moreover, the exercise of such powers should be subservient to
paramount considerations of health and well-being of the members of the
community. Every local government unit has the sworn obligation to enact
measures that will enhance the public health, safety and convenience,
maintain peace and order, and promote the general prosperity of the
inhabitants of the local units. Based on this objective, the local government
should refrain from acting towards that which prejudice or adversely affect
the general welfare. (MakasianovsDiokno, 212 SCRA 464)

Q:

How is the general welfare clause characterized?

A:

The general welfare clause can be said to be a statutory grant of police power
to local government units.

Q:

What are the limitations on the exercise of the General Welfare

Clause?

A:

1. Territoriality police power can be exercised only within the territorial

jurisdiction except for the protection of water supply;
2. The equal protection clause this means that the interest of the public as
against private interest is required;
3. The due process clause it simply means that the means employed are
reasonably necessary for the attainment of the purposes. It must not be
unduly oppressive.
4. The exercise must not be contrary to law prohibited acts cannot be made
legal under the guise of regulation.

Q:

An ordinance imposing Php0.30 as police inspection fee per sack of

cassava flour produced and shipped out of a municipality was
questioned as illegal, the contention being that it is unreasonable.
Decide.

A:

The ordinance is not valid. It is not a license but a tax. It is unjust and
unreasonable, for the only service rendered by the police is the verification
from the driver of the trucks as to the number of sacks loaded. (Matalin
Coconut Co. Vs Municipal Council of Malabang, Lanao Del Sur, GR No. L28138, August 16, 1986)

Q:

May an ordinance be passed prohibiting the operation of cabarets?

Why?

A:

No, the ordinance is void. The local government unit may regulate their
operation but it is not empowered to prohibit them. (Cruz vs Paras, GR No.
111097, July 20, 1994)

Q:

An ordinance was passed prohibiting barbershops from operating

massage business in another room. Is the ordinance valid? Why?

A:

The ordinance is valid because it is intended for the protection of the morals
of the people. (Velasco vs Villegas, 120 SCRA 568)

Q:

What are other cases

government unit?

A:

A local government unit may, in the exercise of police power under the
general welfare clause, order the closure of a bank for failure to secure the
appropriate mayors permit and business licenses. (Rural Bank of Makati vs
Municipality of Makati, GR No. 150763, July 2, 2004)

involving the police

power of

a local

In Tanovs Socrates, GR No. 119294, August 21, 1997, the Supreme Court
upheld, as legitimate exercise of police power, the validity of the Puerto
Princesa Ordinance banning the shipment of live fish and lobster outside
Puerto Princesa City from January 1, 1993 to January 1, 1998 as well as the
SangguniangPanlalawigan Resolution prohibiting the catching, gathering,
possessing, buying, selling and shipment of live marine coral dwelling of
aquatic organisms for a period of five years, coming from Palawan waters.
In Binayvs Domingo, 201 SCRA 508, it was held that the power of municipal
corporations is broad and has been said to be commensurate with but not to
exceed the duty to provide for the real needs of the people in their health,
safety, comfort and convenience, and consistently as may be with private
rights. Ordinance is not unconstitutional merely because it incidentally
benefits a limited number of persons. The support for the poor has long been
an accepted exercise of the police power in the promotion of the common
good.
Philippine Gamefowl Commission vs IAC, 146 SCRA 294, is authority for the
rule that the power to issue permits to operate cockpit is vested in the Mayor,
in line with the policy of local autonomy.
Ortigas vs Feati Bank, 94 SCRA 533, held that a zoning ordinance
reclassifying residential into commercial or light industrial area is a valid
exercise of the police power.
Q:

May local government units exercise the power of eminent domain?

If so, under what conditions?

A:

Yes, a local government unit may, through its Chief Executive, exercise the
power of eminent domain.
The condition are:
1. The property to be taken must be intended for public use or purpose, or
welfare for the benefit of the poor and landless;
2. There must be payment of just compensation;
3. The exercise must be pursuant to an ordinance;
4. There must be a valid and definite offer previously made to the owner of
the property and such offer must not have been accepted. (Section 19, RA
7160)

Q:

Under what circumstances may the local government unit take

possession of the property to be expropriated?

A:

under the following circumstances, the local government unit may take
possession of the property immediately:
1. The expropriation proceedings must have been filed;
2. There must be a deposit with the proper court of at least 15% of the fair
market value of the property based on the current tax declaration of the
property to be expropriated. (Section 19, RA 7160)

Q:

Who shall determine the value of the property to be expropriated

and upon which is it based?

A:

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, RA 7160)

Q:

What are the established jurisprudence on LGUs power of eminent

domain?

A:

In Modayvs CA, 243 SCRA 152, it was held that the Sangguniang
Panlalawigan cannot validly disapprove the resolution of the municipality
expropriating a parcel of land for the establishment of a government center.
The power of eminent domain is explicitly granted to the municipality under
the Local Government Code.
However, in Municipality of Paranaque vs VM Realty Corporation, 292 SCRA
676, the SC held that there was lack of compliance with Section 19 of the LGC
where the municipal mayor filed a complaint for the expropriation of two
parcels of land on the strength of a resolution passed by the Sanggunian
Bayan, because what is required by law is an ordinance. There are basic
differences between an ordinance and a resolution, an ordinance is a law
while a resolution is merely a declaration of sentiment or opinion of a law
making-body on a specific matter.

Q:

Do LGUs have the power to generate and apply resources?

A:

Yes. Local government units shall have the power and authority to establish
an organization that shall be responsible for the efficient and effective
implementation of their development plans, program and objectives and
priorities; to create their own sources of revenue and to levy taxes, fees and
charges which shall accrue exclusively to their use and disposition and which
shall be retained by them; to have a just share in the national taxes which
shall be automatically and directly released to them without need of any
further action; to have an equitable share in the proceeds from the utilization
and development of the national wealth and resources within their respective
territorial jurisdiction including develop, lease, encumber, alienate or
otherwise dispose of real or personal property held by them in their
proprietary capacity to apply their resources and assets for productive,
development or welfare purposes, in the exercise of furtherance of their
governmental or proprietary powers and functions and thereby ensure their
development into self-reliant communities and active participants in the
attainment of national goals. (Section 18, RA 7160)

Q:

What are the fundamental principles governing the exercise of the

taxing and other revenue-raising powers of LGUs?

A:

1. Taxation shall be uniform in each local government unit.

2. Taxes, fees and charges and other impositions shall be equitable and based
as far as practicable on the taxpayers ability to pay; levied and collected
only for public purpose; not unjust, excessive, oppressive or confiscatory; and
not contrary to law, public policy, national economic policy, or in restrained of
trained;
3. The collection of local taxes, fees, charges, and other impositions shall in
no case be let to any private person;
4. The revenue collected shall inure solely to the benefit of, and be subject to
disposition by, the local government unit, unless specifically provided therein;
and
5. Each local government unit, as far as practicable, evolve a progressive
system of taxation.

Q:
What are the decided cases regarding the power of taxation of the
LGUs?
A:

Philippine Petroleum Corporation vs Municipality of Pililia, Rizal, 198 SCRA 82:

The exercise by local governments of the power to tax is ordained by the
Constitution; only guidelines and limitations that may be established by
Congress can define and limit such power of local governments.
Basco vs PAGCOR, 197 SCRA 52: Congress has the power of control over local
governments; if Congress can grant municipal corporations the power to tax
certain matters, it can also provide for exemptions or even tack back the
powers. The power of LGUs to impose taxes and fees is always subject to
limitations which Congress may provide by law. LGUs have no power to tax
instrumentalities of the National Government.
LGUs have the power to create their own sources of revenue, levy taxes, etc.
but subject to such guidelines and limitations by Congress. (Estanislao vs
Costales, 196 SCRA 853)
Section 187 of RA 7160, which authorizes the Secretary of Justice to review
the constitutionality or legality of a tax ordinance and if warranted, to
revoke it on either or both grounds is valid, and does not confer the power
of control over local government units in the Secretary of Justice, as even if
the latter can set aside a tax ordinance, he cannot substitute his own
judgment for that of the local government unit. (Drilonvs Lim, GR No. 112497,
August 4, 1994)

Q:

What are some fundamental principles governing the financial

affairs, transactions, and operations of local government units?

A:

1. No money shall be paid out of the local treasury except in pursuance of an

appropriate ordinance or law;
2. Local government funds or monies shall be spent solely for public
purposes;
3. Local revenue is generated only from sources expressly authorized by law
or ordinance, and collection thereof shall at all times be acknowledged
properly;
4. All monies officially received by an LGU officer in any capacity or on any
occasion shall be accounted for as local funds, unless otherwise provided by
law.

Q:
A:

Do LGUs have the power to close or open roads?

Yes. A local government unit may, pursuant to an ordinance, permanently or
temporarily close or open any local road, alley, park or square falling within
its jurisdiction provided that in permanent closure, such ordinance must be
approved by at least 2/3 of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility shall be provided.

Q:
Are there any other limitations in case of permanent closure of
roads?
A:

Yes. In case of permanent closure, adequate provision for the maintenance of

public safety must be made; and the property may be used or conveyed for
any purpose for which other real property may be lawfully used or conveyed,
but no freedom park shall be closed permanently without provision for its
transfer or relocation to a new site.

Q:

May a road be closed without an ordinance?

A:

Yes, but only in cases of temporary closure during an actual emergency,

fiesta celebrations, public rallies, etc.

Q:
What are some landmark cases in the opening or closure of roads by
the LGU?
A:

Pilapilvs CA, 216 SCRA 33: a municipality has the authority to prepare and
adopt a land use map, promulgate a zoning ordinance, and close any
municipal road.
Cabrera vs CA, 195 SCRA 314: One whose property is not located on the
closed section of the street ordered closed by the Provincial Board of
Catanduanes has no right to compensation for the closure if he still has
reasonable access to the general system of streets.
Favis vs City of Baguio, 29 SCRA 456: the city council has the authority to
determine whether or not a certain street is still necessary for public use.
Cruz vs
CA, 153 SCRA 142: the city mayor of Manila cannot, by himself,
withdraw Padre Rada as a public market. The establishment and maintenance
of public markets is among the legislative powers of the city of Manila, hence,
the need for joint action by the Sanggunian and the mayor.

Q:

Who exercises the legislative power of the LGU?

A:

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, RA 7160)

Q:

Who shall preside over the local legislative bodies?

A:

The vice governor shall be the presiding officer of the sangguniang

panlalawigan; the city vice mayor, of the sangguniang panlungsod; the
municipal vice mayor, of the sangguniang bayan; and the punong barangay,
of the sangguniang barangay. The presiding officer shall vote only to break a
tie. (Section 49 (a), RA 7160)

Q:

What are the products of legislative actions of a local Sanggunian?

A:

Ordinance which prescribes a permanent rule of conduct.

Resolution which is of temporary character, or expressions of sentiment.

Q:

What are the requisites for an ordinance to be valid?

A:

1.
2.
3.
4.

It must not contravene the Constitution and any statute;

Must not be unfair or oppressive;
Must not be partial or discriminatory;
Must not prohibit, but may regulate trade;

5. Must not be unreasonable; and

6. Must be general in application and consistent with public policy.
Q:

Is publication a requirement for an ordinance?

A:

Yes. The gist of all the ordinances with penal sanctions shall be published in a
newspaper of general circulation within the province where the local
legislative body concerned belongs. In the absence of a newspaper of general
circulation within the province, posting of such ordinances shall be made in
all municipalities and cities of the province where the sanggunian of origin is
situated.
In the case of HUCs and ICCs, the main feature of the ordinance or resolution
duly enacted shall, in addition to being posted in conspicuous places, be
published once in a local newspaper of general circulation within the city; if
there is no such newspaper within the city, then publication shall be made in
any newspaper of general circulation.

Q:

What is local initiative?

A:

It is the legal process whereby the registered voters of a local government

unit may directly propose, enact or amend any ordinance. It may be
exercised by all registered voters of the provinces, cities, municipalities and
barangays.

Q:

What is local referendum?

A:

It is the legal process whereby the registered voters in the local government
unit may approve, amend, or reject any ordinance enacted by the
sanggunian.

Q:

How is local initiative differentiated from local referendum?

A:

Initiative is resorted to by the people directly either because the law-making

body fails or refuses to enact the law, ordiance, 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 lawmaking
authority. (SBMA vs COMELEC, 262 CRA 492)

Q:

Who are the different local chief executives?

A:

The punong barangay shall be the chief executive of a barangay. He shall

exercise such powers and perform such duties and functions, as provided by
the LGC and other laws. (Section 389, RA 7160)
The municipal mayor, as the chief executive f the municipal government,
shall exercise such powers and perform such duties and functions as provided
by the Code and other laws. (Section 444, RA 7160)
The city mayor shall be the chief executive of a city and shall exercise such
powers and perform such duties and functions as provided in the LGC and
other laws. (Section 455, RA 7160)
The provincial governor, as the chief executive of the provincial government,
shall exercise such powers and perform such duties and functions as provided
by the LGC and other laws. (Section 465, RA 7160)

Q:

Define the dual personality of an LGU?

A:

Section 15 of RA 7160 defines a local government and embodies the dual

personality of a local government unit as a subdivision or agency of the
government, and as a corporate entity representing the inhabitants of its
territory.
Municipal corporations perform dual functions, one governmental and
another corporate. In the exercise of its governmental powers and duties,
municipal corporations are agencies of the national government. When
engaged in corporate activities, municipal corporations are on the same
plane as any private corporation. (Villas vs City of Manila, 42 Phil. 953)

Q:

What are the corporate powers of an LGU?

A:

Local government units shall enjoy full autonomy in the exercise of their
proprietary functions and in the management of their economic enterprises,
subject to limitations provided in the Code and other applicable laws. The
corporate powers of local government units are:
1. To have continuous succession in its corporate name;
2. To sue and be sued;
3. To have and use a corporate seal;
4.To acquire and convey real or personal property;
5. To enter into contracts; and
6. To exercise such other powers as are granted to corporations, subject to
limitations provided in this Code and other laws. (Section 22, RA 7160)

Q:

What are the rules when an LGU sues?

A:

The rule is that the suit is commenced by the local chief executive, upon
authority of the Sanggunian, except when the City Councilors, by themselves
and as representatives of or on behalf of the LGU, bring the action to prevent
unlawful disbursement of City funds. (City Council of Cebu vsCuizon, 47 SCRA
325)
The municipality cannot be represented by a private attorney. Only provincial
fiscals or the municipal attorney can represent a province or municipality in
lawsuits. This is mandatory. The municipalitys authority to employ a private
lawyer is limited to situations where the provincial fiscal is disqualified to
represent it, and the fact of disqualification must appear on record. The
fiscals refusal to represent the municipality is not a legal justification for
employing the services of a private counsel, the municipality should request
the Secretary of Justice to appoint an acting provincial fiscal in place of the
one who declined to handle the case in court. (Municipality of Pililia, Rizal vs
CA, 233 SCRA 484)

Q:

Can an LGU acquire or convey real or personal properties? If so,

what are the established jurisprudence?

A:

Yes. The local government unit may acquire real or personal, tangible or
intangible properties, in any manner allowed by law, e.g. sale, donation, etc.
The local government unit may alienate only patrimonial property, upon
proper authority (City of Naga vs CA, 1989). In the absence of proof that the
property was acquired through corporate or private funds, the presumption is
that it came from the State upon the creation of the municipality and, thus, is
governmental or public property (Salas vsJarencio, 48 SCRA 734; Rebucovs
Villegas, 55 SCRA 656).

Town plazas are properties of public domain; they may be occupied

temporarily, but only for the duration of an emergency (Espiritu
vsPangasinan, 102 Phil. 866).
Q:

Since LGUs can enter into contracts, what are the requisites of a
valid municipal contract?

A:

1. The local government unit has the express, implied or inherent power to
enter into a particular contract;
2. The contract is entered into by the proper department, board, committee,
officer or agent. Unless otherwise provided by the Code, no contract may be
entered into by the LCE on behalf of the LGU without prior authorization by
the sanggunian concerned;
3. The contract must comply with substantive requirements;
4. The contract must comply with the formal requirements of written
contracts.

Q:

When are contracts entered into by the LGU considered ultra vires?

A:

When a contract is entered into without compliance with the first and the
third requisites (above), the same is not only ultra vires but are also null and
void. Such contract cannot be ratified or validated. Ratification of defective
municipal contracts is possible only when there is non-compliance with the
second and/or the fourth requirements above. Ratification may either be
expressed or implied.

Q:

Are LGUs liable for damages for the death or injury to persons or
damage to property?

A:

Yes, because under RA 7160, local government units and their officials are not
exempt from liability for death or injury to persons or damage to property.

Q:

Are local government

officers?

A:

Local government units are liable for the acts of their public officers, only
when they have acted by authority of law and in conformity with the
requirements thereof. (Correa vs CFI of Bulacan, July 30, 1979)
X, a driver of the BPH in Ilocos Norte, hit Y killing him. At that time,
he was driving the truck in the performance of his duties. Is the
Province of Ilocos Norte liable? Why?

Q:

units liable for the acts of their public

A:

No, a province is not liable for the act or omission of its regular agent. The
liability attaches if the agent is a special agent. (Palafox vs Province of Ilocos
Norte, January 31, 1958)

Q:

The City Treasurer of Naga allowed sidewalk vendors to occupy an

area surrounding the plaintiffs stalls. Is the act binding on the City?
Why?

A:

No, because the treasurer cannot bind the City. The act is beyond the scope
of his authority. (City of Naga vs CA, 96 Phil. 53)

Q:

What are other cases involving the liability of LGUs?

A:

City of Manila vs Teotico, 22 SCRA 267: the City of Manila was held liable for
damages when a person fell into an open manhole in the streets of the city.
Jimenez vs City of Manila, 150 SCRA 510: despite a management and
operating contract with Asiatic Integrated Corporation over the Sta. Public

Market, the City of Manila (because of Mayor Bagatsings admission that the
City still has control and supervision) is solidarily liable for injuries sustained
by an individual who stepped on a rusted nail while the market was flooded.
Guilatcovs City of Dagupan, 171 SCRA 382: liability of the City for injuries due
to defective road attaches even if the road does not belong the local
government unit, as long as the City exercises control or supervision over
said road.
Q:

When is the LGU liable for tort?

A:

If the local government unit is engaged in governmental functions, it is not

liable (Palafox vs IlocosNorte, 102 Phil. 1186; Municipality of San Fernando
vsFirme, 195 SCRA 692).
If engaged in proprietary functions, LGU is liable (Mendoza vs De Leon, 33
Phil 508; Torio vs Fontanilla, 85 SCRA 599)

Q:

How are boundary disputes among LGUs settled?

A:

Boundary disputes between and among local government units shall, as

much as possible, be settled amicably. The rules on settlement of disputes
are:
1. Involving two or more barangays in the same city or municipality, referred
to the sangguniang panlungsod or bayan;
2. Involving two or more municipalities in the same province, referred to the
sangguniang panlalawigan;
3. Involving municipalities or component cities in different provinces, jointly
referred to the sanggunians of the provinces concerned;
4. Involving a component city or municipality on the one hand and an HUC on
the other, or two or more HUCs, jointly referred to the respective sanggunians
of the parties.

D. Qualification and Terms of Office of Local Elective Officials

Q:
A:

State the qualifications of elective officials

a) An elective official must be a citizen of the Philippines; a registered voter in
the barangay, municipality, city or province or in the case of the sangguniang
panlalawigan, sangguniang panglungsod or sangguniang bayan, the district
where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect;
b) Candidates for the position of governor, vice-governor or members of the
sangguniang panlalawigan, or mayor , vice-mayor or members of the
sangguniang panglungsod of highly-urbanized cities must be at least twenty
three (23) years of age on election day.

c) Candidates for the position of mayor, or vice mayor of independent

component cities, component cities, or municipalities must be at least twenty
one (21) years of age on the election day;
d) Candidates for the position of sangguniang panlungsod or sangguninag
bayan must be at least eighteen (18) years of age on election day;
e) Candidates for the position of punong barangay or members of the
sangguninang barangay must be at least eighteen (18) years of age on
election day; and
f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election day.
(Sec. 39, R.A. No. 7160)
Q:

Who are disqualified from running for public office?

A:

a) Those sentenced by final judgment for the offense involving moral

turpitude or for an offense punishable by one (1) year or more of
imprisonment , within two years after serving sentence.
b) Those removed from office as a result of an administrative case;
c) Those convicted by final judgment for violating the oath of allegiance to
the republic;
d) Those with dual citizenship
e) Fugitives from justice in criminal or non-political cases here and abroad;
f) Permanent residents in a foreign country or those who have acquired the
right to reside abroad and continue to avail of the same rights after the
effectivity of this code; and
g) The insane or feeble-minded.
(Sec. 40, R.A. No. 7160)

Q:

Is property ownership an indicia of the right vote and to be voted?

A:

No. In Aquino v. COMELEC, One of the qualifications to run for mayor is that
the candidate must be a resident of the place at least 1 year immediately
preceding the day of the election. The domicile of origin is not easily lost. To
successfully effect a change in domicile, there must be concurrence of the
following requirements:
a) An actual removal or an actual change of domicile.
b) A bona fide intention of abandoning the former place of residence and
establishing a new one.
c) Acts which correspond with the purpose.

Without clear and positive proof of these requirements the domicile of origin
continues. To
effect change there must be animus manendi and animus non
revertendi. The intent to remain
in the new domicile of choice must be for an
indefinite period of time, the change of residence must be voluntary, and the
residence at the place chosen for the new domicile must be actual.
Q:
A was elected as municipal mayor in 1988, An administrative case
was filed against him and
he was found guilty by the Sangguniang
Panlalawigan and ordered his removal. He filed a
motion
for
reconsideration. His term ended without the decision becoming final. In
1992 he
was reelected. The Sangguniang Panlalawigan declared
the case moot. In 2001 he ran for mayor again, his opponent filed a
petition to disqualify him because of the decision in the administrative
case against him.
A:

In the case of Lingatin v. COMELEC, The filing of the motion for

reconsideration by A prevented the decision of the Sangguniang Panlalwigan

from becoming final. There is thus no decision finding him guilty to speak of.
He is not disqualified.
Q:

What is moral turpitude?

A:

In Dela Torre v. COMELEC, Moral turpitude implies something immoral in

itself regardless of the fact that it is punishable by law or not. It must not be
merely mala prohibita but the act itself must be inherently immoral. The
doing of the act itself and not the prohibition by statute fixes the moral
turpitude. Moral turpitude does not however include acts as are not of
themselves immoral but whose illegality lies in their being positively
prohibited. It is an act of baseness, vileness and depravity in the private
duties which a man owes his fellowmen, contrary to the accepted and
customary rule of right and duty of man and woman or conduct contrary to
justice, honesty, modesty and good morals.

Q:

What does fugitive from justice means?

A:

In Marquez, Jr. v COMELEC. The term fugitive from justice as aground for
disqualification or ineligibility of a person seeking to run for any elective local
position under sec. 40e LGC includes not only those who flee after conviction
to avoid punishment but likewise those who after being charged, flee to avoid
prosecution. The definition thus indicates that the intent to evade is the
compelling factor that connotes ones flight from particular jurisdiction.
Obviously, there can only be an intent to evade prosecution or punishment
when there is knowledge by the fleeing subject of an already instituted
indictment, or of a promulgated judgment of conviction.

Q:

What is the term of office of all elective officials elected after the
effectivity of the Local Government Code?

A:

They shall serve for three (3) years starting from noon of June 30, 1992 or
such date as may be provided for by law, except that of barangay officials.
(Sec. 43, R.A. No. 7160)

Q:

How long may a local elective official serve as such?

A:

No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.

Q:

What are the tests in determining whether a candidate is

disqualified because of the 3-term limit? Explain.

A:

For purposes of determining the resulting disqualification brought about by

the 3-term limit, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected
to the same position for the same number of times. There should be
concurrence of two conditions for the application of the disqualification: 1)
that the official concerned has been elected for three consecutive terms in
the same local government post and 2) that he has fully served three
consecutive terms.

Q:
A:

The 3-term limit has two parts. Explain.

The first part provides that an elective local official cannot serve for more
than 3 consecutive terms. The clear intent is that only consecutive terms

count in determining the 3-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the
continuity of service. The clear intent is that involuntary severance from
office for any length of time interrupts continuity of service and prevents the
service before and after the interruption from being joined together to form a
continuous service or consecutive terms.
After the 3 consecutive terms, an elective local official cannot seek
immediate re-election for a fourth term. The prohibited election refers to the
next regular election for the same office following the end of the third
consecutive term.
Q:

Explain the reason for the maximum term limit.

A:

The framers of the Constitution , by including this exception , wanted to

establish some safeguards against the excessive accumulation of power as a
result of consecutive terms.
As held in Latasa vs. COMELEC, the 3-term limit is an exception to the
peoples freedom to choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office.

Q:

Discuss the landmark cases as regards the issues on failure of

election, recall, the conversion of a municipality into a city and
preventive suspension as to whether or not there is interruption or
completion of the 3 term limit rule.

A:

1) In the case of Lonzanida v. COMELEC, the result of the mayoralty

elections was declared a nullity for the stated reason of failure of election
and as a consequence thereof, the proclamation of Lonzanida as mayor elect
was nullified, followed by an order for him to vacate the office of the mayor.
Lonzanida vacated his post few months before the next mayoral election, not
by voluntary renunciation but in compliance with the legal process of the writ
of execution issued by the COMELEC to that effect. Such involuntary
severance from office is an interruption of continuity of service and thus the
petitioner did not fully serve the 1995-1998 mayoral term. He is qualified to
run again for the third term.
In the case of of Ong v. Alegre and Rivera v. COMELEC. Like the
Lonzanida case wherein it involved an issue on whether or not there has been
a completed term for purposes of the 3 term limit, these cases however
presented an interesting twist. A final judgment on the electoral protest came
after the term of the contested office had expired so that the elective officials
in these cases were never effectively unseated. Despite the ruling that Ong
was never entitled to the office and thus was never validly elected, the Court
concluded that there was nevertheless an election and service for a full term
in contemplation of the 3-term rule based on the following premises: 1) the
final decision that the 3rd termer lost the election was without practical and
legal use and value, having been promulgated after the term of the contested
office had expired 2) the official assumed and continuously exercised the
functions of the office from the start to the end of the term. The Court noted
in Ong the absurdity and the deleterious effect of a contrary view-that the
official (Referring to the winner of the election protest) would, under the 3term rule, be considered to have served a term by virtue of a veritably
meaningless electoral protest ruling, when another actually served the term
pursuant to a proclamation made in due course after an election. This factual
variation led the Court to rule differently from Lonzanida.
2) In Adormeo v. COMELEC, private respondent was elected and served
for 2 consecutive terms as mayor. He then ran his 3 rd term in the 1998
election, but lost to his opponent. In June 1998, his opponent faced recall

proceedings and in the recall elections of May 2000 private respondent won
and served the unexpired term. For May 2001 elections, private respondent
filed for his certificate of candidacy for the office of the mayor. This was
questioned; the contention was that he had already served as mayor for 3
consecutive terms.
The court ruled, that private respondent cannot be construed as having
been elected and served for 3 consecutive terms. His loss in May 1998
elections was considered by the court as an interruption in the continuity of
his service as mayor. For nearly 2 years, private respondent therein lived as a
private citizen.
3) In the case of Socrates v. COMELEC, Edward Hegedorn served for
three full term as mayor. As he was disqualified to run for a fourth term, he
did not participate in the election that immediately followed his 3 rd term. In
this election Victorino Dennis Socrates was elected mayor. Less than 1
years after Socrates assumed the office, a recall proceedings were initiated
against him leading to call for recall election. Hagedorn filed his candidacy for
mayor in the recall election. Socrates filed a petition for disqualification of
Hagedorn on the ground that Hagedorn had already fully served the 3 terms
prior to the recall election and thus disqualified to run because of the 3 term
limit rule. The court ruled in favour of Hagedorn, stating that:
After 3 consecutive terms, an elective local official cannot seek
immediate re-election for a fourth term. The prohibited election refers to the
next regular election for the same office following the end of the 3 rd
consecutive term. Any subsequent election, like a recall election, is no longer
covered by the prohibition for 2 reasons: 1) a subsequent election like recall
election is no longer an immediate re-election after 3 consecutive terms 2)
the intervening period constitutes an involuntary interruption in the
continuity of service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be no
further election after the 3 terms or whether there would be no immediate reelection after the 3 terms.
Clearly, what the Constitution prohibits is an immediate re-election for
a 4 term following the 3 consecutive terms. The constitution does not
prohibit a 4th term as long as the re-election is not immediately after the
term following the 3rd consecutive term. A recall election mid-way in the term
following the 3rd consecutive term is a subsequent election but not an
immediate re-election after the 3rd term.
th

Neither does the constitution prohibit one barred from seeking

immediate re-election to run in any other subsequent election involving the
same term of office. What the constitution prohibits is a consecutive
4th term.
4) In the case of Latasa v. COMELEC, the novel question of whether
a municiapal mayor who had fully served for 3 consecutive terms could run
as city mayor in the light of the intervening conversion of the municipality
into a city. The court ruled that the conversion of a municipality into a city did
not convert the office of the municipal mayor into a local government post
different from the office of the city mayor. the territorial jurisdiction is the
same ; the inhabitants were the same group of voters who elected the
municipal mayor for 3 consecutive terms; and they were the same
inhabitants over whom the municipal mayor held power and authority as their
chief executive for nine years. Should he be allowed another 3 consecutive
terms as mayor of the City, petitioner would then be possibly holding office
as chief executive over the same territorial jurisdiction and inhabitants for a

total of 18 consecutive years. This is the very scenario sought to be avoided

by the Constitution if not abhorred by it.
5) Aldovino Jr. v. COMELEC. The preventive suspension is not a
term-interrupting event as the elective officers continued stay 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.

Q:

State the rule in filling up vacancies in the office of the governor,

vice governor, mayor and vice mayor.

A:

a) If the permanent vacancy occurs in the office of the governor or mayor,

the vice governor or the vice mayor shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice governor
mayor or vice mayor , the highest ranking sanggunian member or in case of
his permanent inability , the second highest ranking sangguniang member,
shall become the governor , vice governor, mayor or vice mayor as the case
may be. Subsequent vacancies in the said office shall be filled automatically
by the other sanggunian members according to their rank therein.
b) If a permanent vacancy occurs in the office of the punong barangay, the
highest ranking sangguniang barangay member or in the case of his
permanent inability, the second highest ranking sanggunian member shall
become the punong barangay;
c) A tie between or among the highest ranking sanggunian members shall
be resolved by the drawing of lots;
d) The successors as defined herein shall serve only the unexpired terms of
their predecessors.

Q:

When does permanent vacancy arise?

A:

A permanent vacancy arise when an elective official fills a higher vacant

office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is permanently incapacitated to discharge the functions
of his office.

Q:

For purposes of succession, how is the ranking in the sanggunian

determined?

A:

It shall be determined on the basis of the proportion of votes obtained by

each winning candidate to the total number of registered voters in each
district in the immediately preceding election.

Q:

State the rules in the filling up of permanent vacancies in the

Sanggunian.

A:

a) Permanent vacancies in the sanggunian where automatic successions

provided above do not apply shall be filled by appointment in the following
manner.

1) The President, through the executive secretary , the Sangguniang

Panlalawigan and the Sangguniang Panglungsod of highly- urbanized cities
and independent component cities;
2) The governor, in the case of Sangguniang Panlungsod of component cities
and the sangguniang bayan; and
3) The city or municipal mayor , in the case of the sangguniang barangay , upon
recommendation of the sangguniang barangay concerned.
b) Except for the sangguniang barangay, only the nominee of the political
party under which the sanggunian member concerned has been elected and
whose elevation to the position next higher in rank created the last vacancy
in the sanggunian shall be appointed in the manner hereinabove provided.
The appointee shall come from the same political party as that of the
sanggunian member who caused the vacancy and shall serve the unexpired
term of the vacant office. In the appointment herein mentioned , a
nomination and certificate of membership of the appointee from the highest
official of the political party concerned are conditions sine qua non , an any
appointment without such nomination and certification shall be null and void
ab initio and shall be ground for administrative action against the officials
responsible therefor;
c) in case the permanent vacancy is caused by a sanggunian member who
does not belong to any political party , the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a qualified person to
fill the vacancy; and
d) In case of vacancy in the representation of the youth and the barangay in
the sanggunian, said vacancy shall be filled automatically by the official next
in rank of the organization concerned.
Q:

What is the rule in case the permanent vacancy is caused by a

sanggunian member who does not belong to any political party?

A:

In the case of Farinas v Barba G.R. No. 116763. The recommendation of

the SB is considered a condition sine qua non for the validity of appointment.
Where there is no political party to make the nomination, the SB where the
vacancy occurs must be considered the appropriate authority for making the
recommendation by analogy to vacancies created in the SB whose members
are by law prohibited from having any party affiliation. The appointing
authority is not bound to appoint anyone recommended by the SB concerned
since the power of appointment is a discretionary power, yet neither is he
vested with so large a discretion that he can disregard the recommendation
of the SB concerned. Since the recommendation takes the place of
nomination by political party, the recommendation must likewise be
considered a condition sine qua non for the validity of appointment.

Q:

State the rules in filling up the temporary vacancies in the office of

the Local Chief executive.

A:

a) When the governor , city or municipal mayor, or punong barangay is

temporarily incapacitated to perform his duties for physical or legal reasons
such as, but not limited to, leave of absence , travel abroad, and suspension
from office, the vice-governor , city or municipal vice-mayor , or the highest
ranking sanggunian member shall automatically exercise the powers and
perform the duties and functions of the local chief executive concerned,
except the power to appoint , suspend , or dismiss employees which can only
be exercised if the period of temporary incapacity exceeds 30 working days.
b) Said temporary incapacity shall terminate upon submission to the
appropriate sanggunian of a written declaration by the local chief executive

concerned that he has reported back to office . In cases where the temporary
incapacity is due to legal causes, the local chief executive concerned shall
also submit necessary documents showing that said legal causes no longer
exist.
c) When the incumbent local chief executive is travelling within the country
but outside his territorial jurisdiction for a period not exceeding 3 consecutive
days , he may designate in writing the officer in charge of the said office.
Such authorization shall specify powers and functions that the local official
concerned shall exercise in the absence of the local chief executive except
the power to appoint, suspend, or dismiss employees.
d) In the event, however, that the local chief executive concerned fails or
refuses to issue such authorization, the vice-governor, the city or municipal
vice-mayor , or the highest ranking sangguniang barangay member as the
case may be , shall have the right to assume the powers, duties , and
functions in said office on the 4th day of absence of the local chief executive,
subject to limitation imposed in subsection (c )hereof.
e) Except as provided above, the local chief executive shall in no case
authorize any local official to assume the powers, duties and functions of the
office, other than the vice-governor, city or municipal vice mayor or the
highest ranking sanggunian barangay member, as the case may be. (Sec. 46,
R.A. No. 7160)
Q:

A was elected governor, but since he was suspended, the vice

governor assumed the functions of the governor. In the meantime,
the secretary of the interior and local government designated B as
acting vice-governor, as he was the member of the sanggunian
panlalawigan who obtained the highest number of votes in relation
to the number of voters in his district. C, another member of the
sangguniang panlalawigan, argued that he should have been the one
designated, because the ranking of the members of the sangguniang
panlalawigan should not be based on the number of registered
voters in their district but on the number of voters who actually
voted.

A:

In Victoria v. COMELEC, Cs argument is not valid. The ranking shall be

determined on the basis of the total number of registered voters of each
district.

Q:

Mayor Cesar Calimlim of Mapandan, Pangasinan died, hence Vicemayor Baltazar Aquino succeeded as mayor. SB member Tamayo was
elevated to Vice-mayor having garnered the highest number of
votes. He was a member of the Reforma-LM political party. Gov.
Agbayani appointed Navarro as member of the SB as he belonged to
the same party as that of Tamayo. A petition to annul the
appointment was filed with the RTC, but it was denied. It was
contended that it was the Vice-mayor who created the permanent
vacancy in the SB he being a member of the same, hence the
appointee should come from Lakas-NUCD-Kampi. Tamayo contended
otherwise, saying that it should come from his political party as he
caused the permanent vacancy in the SBpursuant to Sec. 45(b) of
R.A. 7160. The CA resolved in favour of the respondents saying that
with the death of the mayor, a series of vacancies and successions
were created by operation of law.
By this interpretation, petitioner Tamayos former position as the
highest ranking member of the sangguniang bayan was filled up by
the second highest ranking member and that vacated by the second
highest ranking member and that vacated by the second highest-

ranking member of the Sanggunian, that is, the eight position

occupied by Rolando Lalas. The CA then concluded that it was the
appointment of the eight councillor, who was Rolando Lalas to the
number seven position which created the last vacancy.therefore the
person to be appointed to the vacant position should come from the
same political party to which Rolando Lalas belonged, which was the
Lakas-NUCD-Kampi.
A:

In Navarro et al v. CA, the court ruled, that the reason behind the right
given to a political party to nominate a replacement where permanent
vacancy occurs in the Sanggunian is to maintain the party representation as
willed by the people in the election.
With the elevation of petitioner Tamayo who belonged to Reforma-LM to the
position of Vice-mayor, a vacancy occurred in the Sanggunian that should be
filled up with someone who belonged to the political party of the petitioner
Tamayo. Otherwise , Reforma-LMs representation in the Sanggunian would
be dimished. To argue that the vacancy created was theat formerly held by
Roalndo Lalas, a Lakas-NUCD-Kampi member would result in the increase of
that partys representation in the SAnggunian at the expense of the ReformaLM. This interpretation is contrary to the letter andspirit of the law and thus
violative of a fundamental rule in statutory construction which is to ascertain
and give effect to the intent and purpose of the law.

Q:
A:

What is Hold-over capacity?

The Principle of Hold-Over, in the absence of any express or implied
constitutional or statutory provision to the contrary, the public officer is
entitled to hold his office until his successor shall have been duly chosen and
shall have qualified. The purpose of the hold-over principle is to prevent a
hiatus in public service. The principle was reiterated in Lecaroz v.
Sandiganbayan No. 130872, March 25, 1999,, where the Supreme Court said
that although B.P 51 does not authorize a Sangguniang Kabataan Chairman
who sits as if a Sangguniang Bayan member to continue to occupy his post
after the expiration of his term in case his successor fails to qualify, it does
not also say that he is proscribed from holding over. The legislative intent of
not allowing holdover must be clearly expressed or at least implied in the
legislative enactment, otherwise, it is reasonable to assume that the lawmaking body favors the same.
a) But see Art. 237, Revised penal Code, which penalizes any public officer
who shall continue to exercise the duties and powers of his office beyond
the period provided by law.
b) During this period of hold-over, the public officer is a de jure officer.
c) When the law fixes a specific date for the end of the term, there is an
implied prohibition against hold-over.

Q:
A:

Q:

What is recall elections and by whom exercised?

It is the termination of official relationship of an elective official for loss of
confidence prior to the expiration of his term through the will of the
electorate.
It is exercised by the registered voters of a local government unit to which
the local elective official subject to recall belongs.

How is recall election initiated and what are the procedures?

A:

lnitiation of the recall process [Sec.70, R.A. 7160] is done by the registered
voters of the local government unit.

By virtue of R.4.9244, Sec.s. 70 and 71 of the Local Government Code were

amended, and the Preparatory Recall Assembly has been eliminated as a
mode of initiating recall of elective local government officials.
Procedure for initiating recall. Recall of a provincial, city, municipal, or
barangay official shall be initiated upon petition by at least 25% of the total
number of registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was elected.
a) A written petition for recall duly signed before the election registrar or his
representative, and in the presence of a representative of the petitioner and
representative of the official sought to be recalled, and in a public place in
the province, city, municipality or barangay, as the case may be, shall be
filed with the Comelec through its office in the local government unit
concerned. The COMELEC or its duly authorized representative shall cause
the publication of the petition in a public and conspicuous place for a period
of not less than 10 days or more than 20 days, for the purpose of verifying
the authenticity and genuineness of the petition and the required percentage
of voters.
ln Angobung v. Comelec, G.R. No. 126571, March 5, 1997,the Supreme Court
underscored the need for a petition signed by at least 25% of the total
number of registered voters in the constituency in order to validly initiate a
recall election. Thus, where the petition is signed only by the petitioner and
does not even bear the names of the citizens who have allegedly lost
confidence in the public official, then the petition should be dismissed.
b) Upon the lapse of the aforesaid period, the Comelec or its duly authorized
representative shall announce the acceptance of candidates to the position
and thereafter prepare the list of candidates which shall include the name of
the official sought to be recalled.
Election on Recall. Upon the filing of a valid petition for recall with the appropriate
local office of the Comelec, the Commission or its duly authorized
representative shall set the date for the election on recall, which shall not be
later than 30 days after the filing of the resolution or petition in the case of
the barangay, city or municipal officials, and 45 days in the case of provincial
officials. The official or officials sought to be recalled shall automatically be
considered as duly registered candidate or candidates to the pertinent
positions and, like other candidates shall be entitled to be voted upon
(Sec.71, R.A.7160)
Effectivity of Recall. The recall of an elective local official shall be effective only
upon the election and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during the election on
recall. Should the official sought to be recalled receive the highest number of
votes confidence in him is thereby affirmed, and he shall continue in office
(Sec.72, R.A. No. 71601)
Prohibition from resignation. The elective local official sought to be recalled shall not
be allowed to resign while the recall process is in progress.
Q:
A:

Are there limitations on Recall Election?

Limitations on Recall (sec. 74, R.A. 7160)

a) Any elective local official may be the subject of a recall election only once
during his term of office for loss of confidence.
b) No recall shall take place within one year from the date of the official's
assumption to office or one year immediately preceding a regular local
election.
ln Paras v. Comelec, G.R. No. 123169, November 4, 1996 it was held that the
Sangguniang Kabataan (SK) election is not a regular election within the
contemplation of the Local Govemment Code as would bar the holding of a
recall election. Neither will the recall election of the Mayor be barred by the
barangay elections. ln Angobung v. Comelec, supra., It was held that the
"regular local election" referred to in Sec. 74, Local Government Code, means
that the approaching local election must be one where the position of the
official to be recalled is actually contested and to be filled by the electorate.

Q:

For purposes of recall, what does the term regular local election
refer to?

A:

In Paras v. COMELEC, the term regular election in sec.74(b) of the LGC

refers to one where the position of the local official is to be actually contested
and filled by the electorate. The one year time bar will not apply where the
local official sought to be recalled is a mayor and the approaching election is
a barangay election. On the same line, a recall election involving a punong
barangay could be held one year or less immediately preceding a
Sangguniang Kabataan election.

E. Discipline of Local Officials

Q:

State the grounds for the discipline, suspension or removal from

office of any local elective official.

A:

An elective local official may be disciplined, suspended or removed from

office on any of the following grounds:
a) Disloyalty to the Republic of the Philippines
b) Culpable violation of the Constitution
c) Dishonesty, oppression, misconduct in office, gross negligence, or dereliction
of duty;
d) Commission of any offense involving moral turpitude or an offense punishable
by at least prision mayor.
e) Abuse of authority
f) Unauthorized absence for 15 consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay
g) Application for, or acquisition of foreign citizenship or residence or the status
of an immigrant of another country

h) Such other grounds as may be provided in the Local Government Code and
other laws.
Q:

Where shall an administrative complaint against a local official be

filed?

A:

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 shall be appealed to
the office of the President;
3) A complaint against any elective barangay official shall be filed before the
sangguniang
panglungsod or sangguniang bayan concerned whose decision
shall be final and executory.

Q:

If an administrative complaint is filed against an elective local

official, is he entitled to due process? Why?

A:

Yes, because the Local Government Code provides that within 7 days after
the administrative complaint is filed, the office of the President or the
sanggunian concerned shall require him to submit a verified answer within 15
days from the receipt thereof, and commence an investigation of the case
within 10 days from receipt thereof, and commence an investigation of the
case within 10 days from the receipt of such answer from the respondent.

Q:

Is the giving of notice or formal hearing necessary in order to

preventively suspend and elective local official?

A:

CORNEJO v. GABRIEL,41 Phil. r88, 11/17122. The provincial governor, in

receiving
and investigating complaints against such officers, may take three courses.
For a minor delinquency he may reprimand the offender; but if the
maladministration in office is more serious he may temporarily suspend the
officer, and thereafter may file written charges against the officer with the
provincial board. The important fact is that the law, in permitting a provincial
governor to temporarily suspend municipal officer, makes no mention of a
formal hearing of the charges. Power to suspend may be exercised without
notice to person suspended. Notice and hearing are not prerequisites to
suspension unless required by the statute and therefore suspension without
such notice does not deprive the officer of an office without due process of
law. Suspension does not remove the officer, but merely prevents him, for the
time being, from performing the functions of his office; and from the very
necessity of the case cannot precede a trial or hearing. Such temporary
suspension without previous hearing is fully in accordance with the analogies
of the law.

Q:

Who may impose preventive suspension?

A:

Preventive suspension may be imposed:

1) By the President, if the respondent is an elective official of the province, a
highly urbanized or an independent component city.
2) By the Governor, if the respondent is an elective official of component city
or municipality; or

3) By the mayor, if the respondent is an elective official of the barangay.

Q:

Sec. 60 of the Local Government Code vests the authority to

investigate administrative charges on various offices, especially the
Office of the President in cases where there are complaints against
elective officials of provinces and highly urbanized cities. The OSG
Contended that despite such law, the code did not withdraw from
the Ombudsman the disciplinary power over such officials conferred
upon it under R.A. No. 6770. Is the contention correct? Why?

A:

Yes. There is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not
so inconsistent, let alone irreconcilable, as to compel the SC to only uphold
one and strike down the other. The well settled rule is that a repeal of laws by
implication is not favoured, and that all courts must generally assume this
congruent application. Every statute must be so interpreted and brought into
accord with other laws as to form a uniform system of jurisprudence. The
fundamental rule is that the legislature is presumed to have known the
existing laws on the subject and not to have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all efforts
should be exerted in order to harmonize and give effect to all laws on the
subject.
Quite interestingly, Sections 60 and 61 of the present LGC run almost parallel
with provision then existing under the old LGC (B.P. Blg. 337) . The authority
to conduct administrative investigation and impose preventive suspension
over elective provincial or city officials was at that time entrusted to the
Ministry of Local Government until it became concurrent with the
Ombudsman upon the enactment of R.A. No. 6770, specifically under sections
21 and 24 thereof, to the extent of the common grant. The Local Government
Code of 1991 (R.A. No. 7610) in time, did not effect a change from what was
already provided, the modification being only in the substitution of the
Secretary (the minister) of the Local Government by the Office of the
President.

Q:
A:

Q:

When may preventive suspension be imposed?

Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in office of the
respondent could influence the witness or pose a threat to safety and
integrity of the records and other evidence.

For how long may preventive suspension last?

A:

Any single preventive suspension of local official shall not extend beyond 60
days

Q:

Suppose there are several administrative cases filed against an

elective local official, how long will the preventive suspension last?

A:

In the event that 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 grounds existing and known at the time of the first
suspension.

Q:

What happens after the expiration of the preventive suspension of a

local elective official?

A:

The suspended official shall be deemed reinstated in office without prejudice

to the continuation of the proceedings against him, which shall be terminated
within 120 days from the time he was formally notified of the charge against
him.

Q:

Can the case against the local elective official be terminated beyond
120 days?

A:

Yes, but if the delay is due to his fault , neglect , or request, other than the
appeal duly filed, the duration of such delay shall not be counted in
computing the time of termination of the case.

Q:

Suppose a mayor was preventively suspended by the Governor, is he

entitled to his salary during that period?

A:

No, the law says that the official preventively suspended from office shall
receive no salary or compensation during such period. The reason is that he
is not performing his duties as a public servant.

Q:

Suppose the mayor was exonerated and reinstated, will he receive

his back salaries?

A:

Yes, because the law provides that upon subsequent exoneration and
reinstatement, he shall be paid full salary or compensation including such
emoluments arising during such suspension.

Q:

If an elected official is suspended, can he run for public office why?

A:

Yes, because the penalty of suspension shall not be a bar to his candidacy so
long as he meets the qualifications required for the office.

Q:

Who is vested with the power to remove an elective official and on

what grounds?

A:

An elective local official may be removed from office on the grounds

enumerated above (Sec. 60 R.A. No. 7160, par. a-h) by order of the proper
court.

Q:

How is the law on suspension and removal of officers construed?

A:

The law on suspension or removal of elective officials must be strictly

construed and applied, and authority in whom such power or removal is
vested must exercise it with utmost good faith, for what it involves is not just
an ordinary public official but one chosen by the people through the exercise
of their constitutional right of suffrage. Their will must not be put to naught
by the caprice or partisanship of the disciplining authority. Where the
disciplining authority is given only the power to suspend and not the power to
remove, it should not be permitted to manipulate the law by usurping the
power to remove by arbitrarily exercising the power to suspend in a manner
that result in the removal of an elected official from office.

Q:

May an elected officer still be held administratively liable for an act

committed during a prior term after re-election? Why?

A:

No, In Pascual vs. Provincial Board of Nueva Ecija, 106 Phil. 466 and
Aguinaldo vs. Santos, 212 SCRA 768. It was said:
Offenses committed, or acts done, during previous terms are generally not
to furnish cause for removal and this is especially true where the constitution
provides that the penalty in proceedings for removal shall not extend beyond
the removal from office, and disqualification from holding office was elected
or appointed.
The underlying theory is that each term is separate from other terms, and
that the re-election to office operates as a condonation of the officers
previous misconduct to the extent of cutting off the right to remove him
therefor.

Q:
A:

Is the rule applicable to criminal cases? Why?

The rule is that, a public official cannot be removed for administrative
misconduct committed during a prior term, since his re-election to office
operates as a condonation of the officers previous misconduct to the extent
of cutting off the right to remove him therefor. The foregoing rule, however,
finds no application in criminal cases. Hence, any administrative liability
incurred in a prior term is deemed extinguished by his re-election. This is
without prejudice to the institution of appropriate civil and criminal cases as
may be warranted by the attendant circumstances. ( Salalima et al. vs.
Guingona et al. , 70 SCAD 680, GR No. 117589-92, May 22,1996).

Q:
Suppose an elective official is administratively charged and
removed, can he run for public
office in the subsequent elections?
Why?
A:

Q:
A:

No, because the penalty of removal from his office as a result of an

administrative investigation shall be considered as a bar to the candidacy of
the respondent for any elective office.
What is the rule on Administrative appeal?
Decisions in administrative cases may, within thirty (30) days from receipt
thereof, be appealed to the following:
(a) The sangguniang panlalawigan, in the case of decisions of the
sangguniang panlungsod of
component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of decisions of the sangguniang
panlalawigan and the
sangguniang panlungsod of highly urbanized cities and independent
component cities.
Decisions of the Office of the president shall be final and executory.

Q:

What is the effect of an appeal on the administrative decision

against an elective local official?

A:

An appeal shall not prevent a decision from becoming final and executory.
The respondent shall be considered as having been placed under preventive

suspension during the pendency of an appeal in the event he wins such

appeal. (Sec. 68, R.A. No. 7160).
Q:

May local legislative bodies/ or the office of the President on appeal

validly impose the penalty of dismissal from service on erring
elective local official? Why?

A:

No. Under the local Government Code, an elective local official may be
removed from office by order of the proper court.( Sec 60). In the case of
Salalina vs. Guingona, it was said that the office of the President is without
authority/power to remove elected officials, since such power is exclusively
vested by the proper courts. Where the disciplining authority is given only the
power to suspend and not the power to remove, it should not be permitted to
manipulate the law by usurping the power to remove by arbitrarily exercising
the power to suspend in a manner that result in the removal of an elected
official from office.

Appointive Local Officials

Q:

Who is responsible for human resource and development in a local

government unit?

A:

The local chief executive shall be responsible for human resource and
development in his unit and shall take all personnel actions in accordance
with the constitution, pertinent laws, including such policies, guidelines and
standards as the civil service commission may establish; Provided that the
local Chief executive may employ emergency or casual employees or laborers
paid on a daily wage or piecework basis and hired through job orders for local
projects authorized by the sanggunian concerned, without need of approval

or attestation by the civil service commission, as long as the said

employment shall not exceed 6 months.
Q:

Does Governor have the authority to appoint an assistant provincial

treasurer?

A:

In Dimaandal v. Commission on Audit, 29 SCRA 322, it held that the

Provincial Governor is without authority to designate the petitioner as
assistant Provincial Treasurer for Administration, because under Sec. 471 of
the Local Government Code, it is the Secretary of Finance who has the power
to appoint Assistant Treasurers from a list of recommendees of the Provincial
Governor.

Q:

What are the offices common to all Municipalities, Cities and

Provinces?

A:

It is the imposition of additional duties usually by law on a person already in

service.
a) Secretary to the Sanggunian
b) Treasurer
c) Assessor
d) Accountant
e) Budget officer
f) Planning and Development Coordinator
g) Engineer
h) Health Officer
i) Civil Registrar
j) Administrator
k) Legal Officer
l) Agriculturist
m) Social Welfare and Development Officer
n) Environment and Natural Resources Officer
o) Architect
p) Information Officer
q) Cooperative Officer
r) Population Officer
s) Veterinarian
t) General Services Officer

Q:

Does the Local Government Code provide for a mandated appointive

official in the barangay level?

A:

Yes, In the barangay level, the mandated appointive officials are the
Barangay Secretary and Barangay Treasurer, although other officials of the
barangay may be appointed by the punong barangay

Q:

What should be the basis of investigation and adjudication of

administrative complaints against appointive local officials and
employees?

A:

Investigation and adjudication of administrative complaints against

appointive local officials as well as their suspension and removal shall be in
accordance with the civil service law, rules and other pertinent laws.

Q:

Who has the power to preventively suspend an erring official and on

what grounds?

A:

The local Chief executive may preventively suspend for a period not
exceeding 60 days any subordinate official and employee under his authority
pending investigation if the charge against such official or employee involves
dishonesty, oppression, or grave misconduct or neglect in the performance of
duty, or if there is reason to believe that the respondent is guilty of the
charges which would warrant removal from the service

Q:

When may an appointive official entitled to back salaries?

A:

In Plaza v. CA, G.R. No. 138464, January 18,2008. The Supreme Court upheld
the validity of the act of Governor Democrito Plaza preventively suspending
the respondents who were being investigated for administrative complaints
lodged against them. The suspension is not unjustified; it is one of the
sacrifice which holding a public office requires for the public good. To be
entitled to back salaries, private respondents must not only be found
innocent of the charges, but their suspension must likewise be unjustified.

Q:

What is the extent of the disciplinary jurisdiction of the Local Chief

Executive?

A:

Except as otherwise provided by law, the local chief executive may impose
the penalty of removal from service, demotion in rank, suspension for not
more than 1 year without pay, fine in an amount not exceeding 6 months
salary, or reprimand. If the penalty imposed is suspension without pay for not
more than 30 days, his decision shall be final, if the penalty imposed is
heavier, the decision shall be appealable to the Civil Service Commission
which shall decide the appeal within 30 days from the receipt thereof.

Q:

Does the City Mayor exercise disciplinary authority over a City

Revenue Officer?

A:

No. In Garcia v. Pajarito G.R. No. 141149, July 5, 2002. The City treasurer not
the city mayor exercises disciplinary authority over a City Revenue officer. As
head of the office of the treasurer, the Revenue Officer being an officer under
the City treasurer, he may validly investigate the said Revenue Officer and
place him under preventive suspension