Public Corporations: Ulep Lectures (Finals Period)
Disclaimer: These notes merely relied on the lectures of Atty, Ulep as taken down by humble and generous individuals. The authors only ascertain its veracity to the extent of what they have noted only.
or premises and two other conspicuous places within the territorial jurisdiction of the local government - taxability attaches upon the place where the sale is perfected and consummated
Determining if a Newspaper is of General Circulation: POWER TO TAX 1. Registered Registered with with the the National National Library Library The pow power to tax tax is not inh inheren erentt to local ocal government units. There must be an VALID and EXPRESS DELEGATION DELEGATION by the legislature, since it invade invades s the personal personal and proper property ty right rights s of the citizens •
In inte interp rpre reti ting ng tax tax ordi ordina nanc nces es,, it must must be cons constr true ued d agai agains nstt the the gove govern rnme ment nt becaus because e it invade invades s the personal personal and proper property ty right rights s of the citizens •
Source of taxing power of the LGUs: From the Constitution itself, which recognizes the power of these units to create its own sources of revenue and to levy levy taxes taxes subjec subjectt to the guideli guidelines nes and limitatio limitations ns the congress congress may provide, provide, constituen constituentt with the basic policy of the local autonomy. •
The Proc Proced edur ure e Ordinances:
for for
the
impl mplemen ementtati ation
of
Tax
1. Municipal Municipal council council to sponsor sponsor a tax ordinance ordinance 2. Publi Public c hearin hearing g for all the major major stakehold stakeholders ers to be noti notifi fied ed of the the natu nature re and and effe effect cts s of the the tax tax ordinance
3. After public hearing, 2/3 vote is needed at the 3rd reading for the approval 4. Presiding Presiding officer officer (Vice (Vice Mayor) Mayor) to endorse endorse to the mayo mayorr the the tax tax ordi ordina nanc nce e for for the the appr approv oval al and and signature
2. In circula circulati tion on for at least least one year (Purpose (Purpose:: to avoid avoid suspic suspicion ion that that the newspa newspaper per is a ‘fly‘fly-bybynight’ corporation 3. Must Must have have a subscr subscribe iberr base base and article articles s must must be of general interest, not merely special or for a particular group 4. Accr Accred edit ited ed by the the clerk clerk of cour courtt where where the the principal place of business is located Note: The law does not make distinction as regards to the place where the tax ordinance is published. Thus, Thus, even if the publication publication of a tax ordinance ordinance for Marikina took place in Manila, it shall be considered valid.
Fundamental Principles in Taxation A. Procedure ordinance
for
contesting
a
tax
1.Tax assessment be in accordance with the Local Government Code 2.Any question regarding legality of tax ordinance may be raised on appeal within 30 days to the Secretary of Justice 3.Upon receipt of appeal, the Secretary of Justice should decide on the controversy for a period of 60 days
5. Publication of the tax ordinance 3 times in 3 cons consec ecut utiv ive e week weeks s in a news newspa pape perr of gene genera rall circulation
Allied Thread Co. Inc. v. City of Manila Doctrine: Local tax code provides two modes of apprising the public 1. Publication in a newspaper of general circulation 2. Posting of copies thereof in the local legislative hall
4.Pend 4.Penden ency cy of appe appeal al does does not not fore forest stal alll the the enforcement of the tax ordinance, including all the accrued taxes due.
5.
If taxpayer/ er/s dis disagre grees with the Secretary of Justice’s decision, they may file in regular court of law (RTC) where the taxpayer/s reside.
Reyes v. Court of Appeals Doctrine: To impose taxes used to raise revenues to finance and support the acts of the LGU for the delivery of basic services essential to the promotion of general welfare and enhancement of peace, progress and prosperity. CONSEQUENTLY, any delay in the implementation of the tax ordinance would be detrimental to the public
The question raised in the case: may the province impose taxes on the act of quarrying of stones and gravel and sand on the private lands? o
NO. It is only the national government that can impose tax on all quarrying activities o
Palma v. City of Batangas
•
B.
Sources of Revenue
1.
o
Major source of revenue
Condominium Unit Owners no need to pay real estate taxes since residents enjoy ownership of common areas, not the land itself where the condominium is erected. (Tamane v. BA Lepanto)
government
units
are
MERALCO v. Laguna
•
•
Exemptions granted by congress in the franchise holder must be respected and followed o
Ericsson Case
•
Congress has the sole authority to determine the power to tax. Therefore, the congress can grant exemptions [and can also withdraw tax exemptions]; LGU may exercise the general power to levy taxes and otherwise create sources of revenue pursuant to direct authority under Sec. 5 Art. X of the Philippine Constitution (City Govt of QC v. Bayantel)
local
prohibited to impose “wharfage” dues/service fees. Such imposition is controlled by the national government
Real Estate Tax •
The
•
Lucman v. Malawi – If the IRA (internal revenue allotment) is transmitted to a bank for the purpose of withholding, and refuses to release it, the proper remedy for the local government unit should be file a petition for mandamus to compel bank to release the IRA; Whoever claims to be entitled to the IRA must prove, through evidence, his authority to such fund
Gross receipts , collectibles, even though not actually collected, shall serve as basis. o
Petron v. Tiangco
•
Excise taxes on articles and charges based on petroleum products are lodged in the national government. Such are within the bounds of congress authority o
•
NAPOCOR v. Cabanatuan
•
Franchise Tax is a right or privilege affected with public interest imposed by the national government on persons; for public welfare and good o
o
1. Franchise must be located within a specific geographic area
C. Limitations Pepsi Cola v. Butuan
•
Double taxation is allowed; tax evasion not allowed
2. Petitioner as a franchise concept of a special franchise
o
o
Excise tax and consignment tax on the
same product is valid because there is substantial distinction between the two acts •
Province of Bulacan v. CA
2 requisites for franchise to be valid
–
RCPI Case
•
Towers, machineries are subject to real property tax, not franchise tax. o
Radio Communications of the Phil. v. Provincial
Assessor of South Cotabato Doctrine: Tax Exemptions are strictly construed against the taxpayer and liberally in favor of the taxing authority. It is the taxpayer's duty to justify the exception by words too plain to be mistaken and too categorical to be misinterpreted
before the Local Board Assessment Authority (LBAA) - The amount of the claim being a factual matter must be proven by the presentation of tax declaration, affidavits, documents, and other documentary evidence San Juan v. Castro (TAKE NOTE OF THIS PROCEDURE) •
PLDT Case
•
Remedy for erroneous tax computation/ Procedure: o
Not exempted to franchise tax, but merely exempted from the rules and regulations of the NTC o
o
In relation to the case, the Digitel Case
If the demand letter is not adhered to, go directly to court
provides that a franchise is not a personal property
Basco v. PAGCOR
•
Laurel v. Abrugar, SkyCable Case(?) •
o
ABS-CBN
v. Can LGU tax instrumentalities if the Government? o
The grant of franchise is for the purpose
LGU cannot instrumentalities
of public service, that is why such grantee is not entitled to collect damages Side note: ABS-CBN revenues from advertisements o
o
o
generates
Olivarez v. Marquez Taxpayer must first pay tax before he complains on the tax computation, since it is most advantageous for the local government unit and it will not delay its public use. (Tax as lifeblood of govt)* If the decision regarding the protest comes favourable for the taxpayer, such excess payment may be refunded or entered as tax credits o
government
Sec. 133 (o) - Unless otherwise provided therein, the exercise of the taxing powers of the LGU shall not extend to the levy of taxes, fees, or charges of any kind on the national government and its agencies and instrumentalities and LGUs
(Abrugar Case) Electricity is a personal
o
tax
o
property since it can be a subject of theft •
Write a demand letter
Manila International Airport Authority v. Court of Appeals Doctrine: Reason the Sec. 133 (o): 1. LGU cannot tax the national government which historically merely delegated to LGU the power to tax 2. There is no sense in transpiring public funds from one government pocket to another, unless there is a sound compelling reason to do so. PAGCOR case
•
Amusement Tax – LGU may impose tax in order to avoid corruption o
•
Allied Banking Corp. V. QC o
If taxpayer claims for refund of the
o
Franking privilege is the free postage availed of by all departments of the government o
Tax paid pursuant to a proviso in a city
ordinance which was already declared by the Supreme Court as null and void will not be automatically refunded to the taxpayer without filing a claim for refund
Re: Franking Privilege
•
excess tax payment, he must present evidence to show that he is entitled to refund
Mactan Case (reiteration of the Basco Ruling) •
Airports caters to both public and private activities. As such, it cannot be subject of real estate tax o
Side Note: NAIA is an instrumentality of the government, although a GOCC o
Phil Rural Electric Coop v. Sec. Of DILG
•
Congress determines the power to tax. Thus, LGUs’ power to tax is subject to control of congress o
PLDT v. Province of Laguna
•
Tax exemptions granted must express, clear, and unequivocal o
Ty v. Trampe Doctrine: Appeals to the LBAA may be fruitful only where there is a question as to the reasonableness of the amount assessed - He must pay first the tax under protest. Otherwise, the city or municipal treasurer will not act on his protest. - Here the petitioneres are questioning the very authority and power of the assessor acting solely and independently to impose the taxes; these are not the questions merely on the amounts of the increase in the tax but attacks on the very validity of any increase
be
City of Davao v. RTC Branch XII Davao
•
Tax - Applies to all kinds of exactions which becomes public funds.
*SIDE NOTE*: Other Relevant Discussions White Light Corp. V. City of Manila
•
City Short-time motels – synonymous with wash rates o
GOCC (Govt. Owned and controlled corporations) are exempt from paying taxes [RATIO: such corporations render PUBLIC SERVICE] o
City of Manila provided an ordinance prohibiting short-time rates on grounds of preventing the proliferation of immoral activities in the motels o
GOCCs perform government functions which is for the public good and general welfare o
RIGHT to PRIVACY – city cannot intrude to such right anymore o
San Fernando v. Sta. Roman
•
Ordinance declared invalid for infringing on the right to privacy o
Power to collect taxes on excavation of gravel and sand– Province and Municipality? o
City Govt of QC v. Ericta
•
6% of land of private cemeteries shall be reserved for paupers, otherwise no grant of business permit
Province, since the province serves as a comptroller as long as natural resources are concerned
o
o
violation of right to property. Supposed to be eminent domain, but also CONTROLS the business operation
Compania General de Tabacos de Filipinas v. City of Manila Doctrine: Both license fee and tax may be imposed in the same business or occupation or selling the same article, this not being a violation of the rule against double taxation License fee 1. Imposed in the exercise of police power 2. For purposes of regulation Taxes 1. imposed under taxing power 2. for purpose of raising revenues
Such ordinance was set aside due to
Such ordinance would amount confiscation; no just compensation o
to
HLURB – subdivision/land developers must give 30% of the land for open spaces, roads, etc. •
Cul de sac – donated to the city or municipality •
In case it is not donated, it shall remain as a private compound. Responsibility remains to the home-owners •
In cases of floods, roads in the subdivisions should be the responsibility of the local government .
4. Camino Vecinal – the LGU *Such roads are subject to the responsibility of their respective jurisdictions
•
Private memorial corporations (i.e. Loyola Memorial Parks, Manila Memorial) still pertains to the corporation. State has no responsibility over it. •
LIMITATION ON THE EXERCISE OF EMINENT DOMAIN •
o
Due process
o
Payment of just compensation Chinese Community Case
•
Whatever donated for public use cannot be donated for another public use o
You cannot expropriate a historical cultural heritage (Catacombs of historical heritage = Everything in the surface is a sacred ground o
+++++++++++++++++++++++++++++++++++++++++++
Figuracion Case o
The LGU has the ability to:
1.Control the use of local roads 2.Requisites for closure a.Pursuant to an ordinance and a 2/3 vote b.Substitute route provided As a general rule, the CONGRESS has the authority over such roads. However, by way of exception provided by the LGC, LGUs are also possessed with some authority over such roads that are within the jurisdiction of their control and supervision. Kinds of roads:
1. National – by the State 2. Provincial – by the Provincial Govt. 3. Municipal or City – the LGU
Sangalang v. IAC - The "Orbit Street" subdivision gate was a public nuisance in the sense that it "hinders or impairs" the use of the property which may be abated without judicial proceedings - Notification to BAVA (Bel-Air) by the Mayor that the Orbit and Jupiter Streets would be opened up is enough compliance with due process Cebu Oxygen and Acetylene Co. Inc. v. Beralles - A private purchaser can have a lot bought from the government, registered in his name. Such lot being formerly a part of public road intended for public use, but has now been abandoned by the city council through a resolution, [shall form part of the patrimony of the State] Pilapil v. Court of Appeals - A camino vecinal is a municipal road. It is also a property for public use. Pursuant, therefore to the powers of the LGU as stated in the LGC, the municipality has the unassailable authority: 1. Prepare and adopt a land use map 2. Promulgate a zoning ordinance which may consider the municipal roads to be constructed, maintained, improved, or repaired 3. Close any municipal road
Cabrera Case o
It is the LGU who has the authority to determine whether or not a road is still dedicated for public use.
Dacanay Case o
May a public land be leased to a private person thru an ordinance? NO. Such portion of land is solely for public use.
Albon v. Fernando o
o
Order to spend public funds in favour of a private subdivision. HLURB law provides that upon completion of subdivisions, roads shall be automatically be donated to the LGU
Who has jurisdiction over a sidewalk of a subdivision?
o
o
If it is donated, then LGU. Otherwise, the private owner thereof. The importance of which is to determine liability.
Figuracion v. Libi Gen. Rule: Local roads for public service considered public property under the absolute control of congress, hence local governments have no authority to control and regulate their use Exception: Congress, through LGC delegated to political subdivisions some control over local roads Favis v. City of Baguio - Power to vacate a street or alley is discretionary and discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion
Dacanay v. Asistio - Public Street is a property for public use, hence outside the commerce of man. Being outside the commerce of man, it may not be subject of lease or other contract
Examples: EDSA – National Road crossing through 8 cities. Liability shall be incurred by the National government and not the LGUs Municipality of San Fernando, La Union v. Firme Doctrine: The state mey not be sued except when it gives its consent to be sued. Consent may be express or implied - Express: 1. General Law, i.e. Act No. 3083 2. Special Law - Implied 1. Government enters into a business contract 2. State files a complaint - Municipal corporations are subject to suit because their charter grant them the competence to sue and be sued. Nevertheless, municipalities are generally not liable for the torts committed by them in the discharge of governmental functions •
Teotico Case o
•
Jimenez v. City of Manila o
Macasiano v. Diokno - The closure should be for the sole purpose of withdrawing the road of other public property from public use when circumstances show that such property is no longer intended or necessary for public use. When it is already withdrawn from public use, the p roperty becomes patrimonial property of the LGU which may be conveyed or used
Corporate Powers General Rule: LGU not liable in case of an injury made XPN: If the municipal officers are negligent Art. 2189, NCC: LGU are liable for injuries incurred in the roads, streets that are in their jurisdiction
Despite existence of city charter for nonliability over claims by individuals, Article 2189 prevails for liability for injuries caused by poorly engineered roads
Liability of subcontractor: such shall be deemed an employee to determine the liability of the city against the individual, despite the existence of non-liability in the provisions of the city charter
Rule on Grant of Franchises Telecommunication companies, by way of such franchise grants, excuses the local government unit from liability resulting from injuries from the public works it engages with. i.e. PLDT – Manhole covers tagged as property of PLDT serves its purpose as to determine who shall be liable for injuries arising from such facility.
Such is an absolute rule even though there attended fortuitous event, UNLESS company exercised due diligence in maintaining their facilities.
malice and in bad faith or beyond the scope of his authority or jurisdiction Doctrine of Respondent Superior - it can only be invoked only if the negligent employee was engaged in the performance of corporate/proprietary business functions. The construction or maintenance are governmental activities •
Quezon City Government v. Dacara PROXIMATE CAUSE - any cause that produces injury in the natural and continuous sequence, unbroken by any efficient intervening cause, such that the result would not have occured otherwise. It is determined from the facts of each case upon a combined consideration of logic, common sense, policy, and precedent. - The proximate cause when Dacara Jr.'s car turned turtle was the existence of a pile of earth from a digging done relative to the base failure at Matahimik St.Mary, a lighting device or reflectorized barricade or sign perhaps which could have served as an adequate warning to motorists, especially during the thick of the night where darkness is pervasive.
Municipality of San Juan v. Court of Appeals Doctrine: The obligation of the Municipality to maintain the safe condition of the road within its territory is a continuing one which is not suspended while a street is being repaired. Knowledge of the condition of the road and defects and/or obstructions on the road may be actual or constructive. It is enough that the authorities should have known of the circumstances in the exercise of ordinary care •
Dacara and San Juan Pronouncements: o
Municipalities
shall
be
liable
from
injuries arising from roads within its jurisdiction (i.e. municipal roads, camino vecinal
•
Palafox v. Province of Ilocos Norte o
Provincial Government can also be held liable, if it exercises proprietary function
o
If the facilities (i.e. the truck) are used even for purposes not relevant to the cause of the government, it shall be presumed that the conduct of work is RELEVANT to the governmental functions of the state’
o
Moral of the Case: If you see a car with ‘red plates’, “TABI!”
Torio v. Fontanilla - Celebration of Town Fiesta is a proprietary function - A corporation has a personality separate and distinct from its officer - Officers are not as a rule co-responsible for damages for tort or negligence committed by the corporation's employees or agents, unless there is a showing of bad faith or wanton negligence on their part. ULEP: If NGO will be the culprit, who is liable? (i.e. Fire Fighter Volunteers’ Truck injured a passerby) They incur no liability, as long as the purpose of their function would contribute to the general welfare and public interest. If we are to hold them liable, then no other volunteers would dare to stand up for greater cause. What if ambulances owned by private corporations? They are still liable even when they are in the performance of their duties.
Dumlao v. Court of Appeals Doctrine: A public official may be liable in his personal capacity for whatever damage he may have caused by his act done which
Reason according to ULEP: They charge expensive fees for their service. ~~FUN FACTS ~~
Types of plate numbers •
=========== 6. Cabinet Sec. (26) and MMDA
Green and White– Private Premium – worth 50K – no need to register for five years; coding exemption o
Select – you can choose whether you want it personalized or not – worth 28/(5)K , but has limits (3 letters 2 numbers) o
Special combination) o
–
Personalized
(any
Commemorative/Vanity Plates – to be granted, an organization must be existing for at least 25 years o
•
Red and White – Government o
S**-123 – The S means “State”
•
Black and Yellow – Public utility
•
Blue and White– Diplomatic “1000” – for ambassadors only; absolute exemption o
6 digits combo – UN employees or other members of diplomatic corp
7. Senators (24) 8. House Reps (250+) 9. Assoc. Justices
10.Pres. Justice of CA NLRC (non judicial officers; appointed by president) OGCC OSG COMELEC A - Senior Justices (judicial officers) AA - Mid BBB – Newly appointed SAN (the name of the CA justice) 11. Commissioners of Different Constitutional Commission – includes Special Prosecutors under ombudsman 12. Undersecretaries 13. **NONE** 14. Assistant Secretaries
o
Flag Rule: if shown, ambassador on car and on official function. If not, ambassador not in the car.
15. Government officials under discretion of the president
o
In case of accidents/injuries: if on official function, the ambassador incurs no liability. o
**Importance of knowing the plate numbers assigned to government officials: To determine the rule of succession If senate president up to the chief justice assumes position, they are only in a caretaker capacity. PLATE NUMBERS to take note of:
1. President 2. Vice Pres 3. Senate Pres 4. Speaker of the House 5. Chief Justice
* up to 5 since only they can assume for succession.
16.RTC Judges – only judicial personality in 16th (LA) – Labor Arbiters (PP) – Provincial Prosec (CP) – City Prosec (AOSG) – Asst. Sol Gen (AOGCC) – for Govt owned and controlled corps 17. City judges 18. Municipal judges If City Prosecutor would want to be an RTC Judge? - it can be done by Lateral Transfer. It is neither a demotion or a promotion. **10 – NLRC plate contends that he is of the same level as a CA justice. That’s why he should be prosecuted only under the Supreme Court. Is he correct? - NO. It would be violative of the separation of powers clause What is the UNOFFICIAL 4 th branch of the government? - MEDIA. (PRINT/RADIO/TV)
What is the UNOFFICIAL 5 th Branch of the government? - Internet. Not part of the media, according to Ulep; it is an entity by itself
Doctrine of Implied Municipal Liability -
Municipal Corporation is liable negligence
if there is no
-
INCIONG: Payment of attorney’s employed by the city must pay the fee
Can a Municipal Judge stand as lawyer for his son? NO. Once a person took an oath of office to perform the functions of a judge, which is the interpreting the law. A judge abandons certain rights, even that of protecting his own son. Prohibition on LGC Sec. 90, LGC
o
-
if
NO AGREEMENT
Multiple position
-
Appointment who lost in election within 1 year from elections
-
Lawyers, members of the sanggunian, to practice their profession: if government is adverse party, counsel in criminal case, must file a leave of absence
-
JAVELLANA: to avoid conflict of interest, he is not allowed to appear in court. Appellate practice is allowed
-
VILLEGAS: Assemblyman cannot stand as a lawyer in lower courts, but only in appellate practice
-
Reason why there is no bar when practice on appellate courts: There are many justices that would be confronting the defense. (3 justices v. 1 defense/councilor) *numbers game.
Not authorized
Requisites determining if there is a need for EQUITY: - no law - no contract - no agreement - no jurisprudence
-
Quantum Meruit. Quantum Valebant, Quantum Sufficit – just take note of such terms
-
PILAR: Vice mayors’ salary Ratio: Raise in the salary is high
-
MADERAZO: taking the law into one’s hands. Proper legal remedy if non-payment of tax: ejectment and by judicial action
-
-
Province of Cebu: Paid by basis of equity o
-
fees,
not
raised
LAGANAPAN: A police (chief of municipality) dismissed by the mayor on the ground of change of city status (from municipality to city) and appointed another individual to be city police chief. RULE: it is valid. Said positions are different in character.
Wife of Mayor to establish a business during the husband/mayor’s incumbency. INVALID. Mayor would be indirectly benefitted. Would amount to double compensation. The p rohibition extends up to the fourth civil degree
HEIRARCHY OF COURTS 1. Supreme Court – Court of last resort
Gonong Decision This case pronounced that confiscation of car plates for traffic violations are invalid. What should have been done was to tow the truck. Such activity would be within the ambit of police power of the state. Question left unanswered. Should Miscegenation be prohibited? (interracial marriages)
2. Court of Appeals – Appellate court a.
Court of Tax Sandiganbayan
Appeals
and
3. Regional Trial Courts – General and exclusive jurisdiction a. Appellate jurisdiction b. Land registration court
c.
Probate Court
-
RA 9164 – Period for local baranggay official
d. Family Court
o
e. Admiralty Court
o
f.
Law fixes term of office by local official
Brgy Chairman’s term not co-terminous with mayor; can serve longer
Corporate Court -
g. Heinous Crimes Court
Disqualification: Lonzanida: being disqualified, he did not finish term. As such, would prior term served be counted to be disqualified on the next election? o
h. Circuit Criminal Court i.
Estate/Intestate Court
4. Municipal/Metropolitan Trial Court – First level court
o
SC: he can still run, the said prohibition
shall no longer apply a. Shariah Court o
-
3 years; 3 consecutive terms
3 Term Bar Rule
QUALIFICATIONS FOR LGU ELECTIVE POSTS
SOCRATES: if there is a gap, no matter how short the period is, the 3 term bar rule will not apply
Drug Testing – Requirement for Public Officers
o
o
-
Court said it is unconstitutional
-
Minimum minimum
-
NOTE: what is stipulated by the law as a formal requisite should not be in any form altered unless by express provision of the same law effecting the said requirement. Otherwise, it would be a violation of constitutional right.
residency
requirement
only
and
If erroneously proclaimed, it will still be
considered. Not also entitled to seek reimbursement of allowances and wages; previous officer considered a DE FACTO officer FARINAS: Member of council resigned. Who can fill the vacancy? SC: Council must make recommendation o
RECALL ELECTIONS o
-
-
MERCADO: Edu Manzano has dual citizenship, is it a disqualification. Not ground for disqualification. What is barred is dual allegiance Recent Law: candidates for local office must be a Filipino citizen
Mode of removal of a local official on the
ground of loss of trust and confidence All official may be subject of such recall elections o
o
Modes of Recall Thru Preparatory Assembly’s (PRA) Resolution
-
If a mayor is disqualified: 2 nd highest will not succeed. Ratio: he lost; he is not the popular choice of the people. Instead, the Vice Mayor shall assume the position.
Recall
Direct petition of 25% of all
voters o
PRA to be composed of: Baranggay Chairmen/women – Mayor of a city or municipality
All mayors cities/municipalities Governor
o
of –
component Provincial
Majority vote of the PRA required
Choose only 1 mode of recall; cannot be filed simultaneously, but such application of one mode is not a bar for using the other in case of failure. o
SUSPENSION AND REMOVAL Suspension and removal: 6 grounds provided by the LGC o
Most important according to Ulep: Conviction of a crime involving moral turpitude. o
o
Limitations in Recall
1 year after elections
1 year immediately before the elections
Reason: to give local government official his worth; and recall elections are EXPENSIVE
PARAS: SK election not a regular election, since it is composed of minors o
Recall against the Vice Mayor, but was promoted to mayor due to vacancy in position. The recall becomes moot and academic. Recall is against the person acting in such office, but not on the person himself o
On-going resignation? o
recall,
can
official
The crimes of Murder, Rape, Seduction,
Perjury, Bribery, Libel, Violation of Price Tag Law, Smuggling, Anti-Fencing Law, Illegal Possession of Firearms, BP22, Anti-Hazing Law, Sexual Harassment, Fraudulent presentation of proof of claims, Duelling, Intentional destruction of money, Repeated acts of dishonesty, Dangerous drugs act, violation of election offenses, intriguing against honor, barratry, illicit relationship in workplace, gross immorality, misconduct of a lawyer, all crimes that are mala in se, falsification, estafa, large scale illegal recruitment ABSOLUTE GROUND FOR REMOVAL or SUSPENSION o
file
No. It will entail the p rocess
INITIATIVES and REFERENDUMS o
o
Local initiative: conducted once a year
only Is there a national initiative? No. No law for the conduct of national initiative has yet been created.
o
Moral Turpitude and future lawyers: if a
controversy was not disclosed during the bar exams/application, he shall not be admitted to the roll of the attorneys. If it would be disclosed, the oath-taking shall be suspended until the controversy has been resolved. o
o
o
Initiative a specie of right to suffrage
o
AGUINALDO: Docrtine of Forgiveness
and Condonation: for offenses of a public officer – applies only on administrative controversies If there’s a pending case, and re-elected
o
Referendum: system of consultation of
a pending national issue of transcendental importance Only consultative, it does not bind the officials
People can condone the act by voting in favour of such person
Can executive clemency be granted in an administrative case? YES! The President o
can exercise clemency in administrative cases o
Drafted by Chief Justice Castro
Highlights:
ESPIRITU: Preventive suspension order People residing in the same baranggay must resolve thru the LUPONG TAGAPAMAYAPA (Lupon) •
o
o
Order of Suspension
President thru DILG Sec.> Gov;
Gov > Mayor;
Mayor > Any Councilor
Cases cognizable: all civil and criminal cases with exception. •
•
Can ombudsman issue a preventive
suspension without preliminary investigation? YES. It is provided in the Charter (Take note of Binay’s Makati and Trinidad’s Pasay suspension cases) o
1. persons already under detention 2. penalty exceeds 6 months and fine more than 5000
Max Period of Preventive Suspension?
60 days period for local officials
90 days if multiple charges
Not considered:
3. real actions not susceptible of pecuniary estimation
4. Special proceeding cases, like habeas corpus annulment of marriage
90 days if committed by police officer Ratio: they have guns and can exert power and influence pending their investiation
cases,
Carried to LGC; nature of proceedings •
o o
The suspension order pertains to the:
Summary
The proceedings in the Lupon are
SUMMARY IN NATURE
number of days for the conduct of investigation
and after its lapse, suspended officer automatically reinstated
-
Difference in Procedure o
COURT
1.
Complaint
2.
Answer
No pay/salary provided for official under preventive suspension o
Is there indefinite preventive suspension? NO. Such would amount to constructive dismissal o
o
Pending appeal and investigation
Rights accused o
of
respondent
=
3. Pre-trial Conference 4. Trial on Merits 5. Formal offer or exhibition of evidences 6. Submission of Memorandum
same
as
7.
Decision
o
LUPON
Question: Will a suspension order be considered as a gap for the application of the 3 term bar rule?
PD 1508 – Katarungang Pambaranggay Law
dockets
Purpose:
to
declog
court
1.
Complaint
2.
Answer
3.
Conciliation a. Settlement: a compromise agreement by both parties. The decision between the 2 contending parties to be given effect In case of violation thereof, a writ of execution may be filed in court b. If parties cannot agree on settlement, Lupon grants a certification to file an action in court
4.
o
Court proceedings take over.
Effect in case of non-compliance with
Lupon procedure: Case will be dismissed; Grounds: Lack of Cause of Action or premature action, o
Cases cognizable by Lupon should be
tried by it first before resorting to court action. Otherwise, there would be more expenses made for Filing Fees, and causes mere delay on the disposition of cases. o
Right to counsel cannot be invoked Lawyers very adversarial, and it would create a bad atmosphere for conciliation •
They may appear only as an ordinary person, but not as a defense for a party. •
o
Can a corporation file a case directly?
NO. o
Does not apply to artificial persons. The law only contemplates as to natural persons only
o
Features: If something happens in the
workplace? IT CAN BE filed in the baranggay where the workplace is situated If case filed directly in court and did not undergo such LUPON PROCEDURE, it will be dismissed for lack of cause of action o
