Utopia Consti Reviewer PART 2 Version 4

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ATENEO DE MANILA UNIVERSITY SCHOOL OF LAW

Atty. ARIS S. MANGUERA

MANGUERA OUTLINE 2011 CONSTITUTIONAL LAW I PART 2 VERSION 4.0

practice before it or before any of its offices. Such rules, rules, howeve however, r, shall shall not dimini diminish, sh, increa increase, se, or modify substantive rights.

Article IX CONSTITUTIONAL COMMISSIONS

Section Section 7. Each Each Commis Commissio sion n shall shall decide decide by a majority vote of all its Members, any case or matter brought before it within sixty days from the date of its submis submissio sion n for decisi decision on or resolu resolutio tion. n. A case case or matter is deemed submitted for decision or resolution upon upon the the fili filing ng of the the last last plea pleadi ding ng,, brie brief, f, or memo emorand randum um requ requir ired ed by the rule rules s of the Commissi Commission on or by the Commissi Commission on itself. itself. Unless Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

I. COMMON PROVISIONS (Article PROVISIONS (Article IX-A) II. CIVIL SERVICE COMMISSION (Article IX-B) III. COMMISSION ON ELECTIONS (Article IX-C) IV. COMMISSION ON AUDIT (Article (Article IX-D) I. Common Provisions Independent Constitutional Commissions Safeguards Insuring Independence Inhibitions on the Members of the Commissions Rotational Scheme Reappointment Proceedings Enforcement of Decisions

Section Section 8. Each Commission Commission shall perform such other functions as may be provided by law.

A. Independent Constitutional Commissions The independent independent constitutio constitutional nal commission commissions s are the: 1. Civi Civill Ser Servi vice ce Comm Commis issi sion on 2. Comm Commis issi sion on on Elec Electi tion ons s 3. Comm Commis issi sion on on Audi Auditt

Section 1. 1. The Constitutional Commissions, which shall shall be inde indepe pend nden ent, t, are are the the Civi Civill Serv Servic ice e Commissi Commission, on, the Commissio Commission n on Elections, Elections, and the Commission on Audit. Sect Sectio ion n 2. No membe emberr of a Cons Consttitut itutio iona nall Commission shall, during his tenure, hold any other office or employment. Neither shall he engage in the prac practi tice ce of any any prof profes essi sion on or in the the acti active ve management or control of any business which, in any way, may be affected by the functions of his office, nor shall shall he be financ financial ially ly intere intereste sted, d, direct directly ly or indirectly, in any contract with, or in any franchise or privil privilege ege grante granted d by the Govern Governmen ment, t, any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations or their subsidiaries.

Q: Why have have these these commis commissio sions ns been been made made constitutional commissions? A: The CSC, COA and COMELEC perform key functions in the government. In order to protect their integrity, integrity, they have been made constitutional bodies.1 B. Safeguards Safeguards Insuring Insuring the Independ Independence ence of the Commissions2

Section. Section. 3. The salary salary of the Chairm Chairman an and the Commissioners shall be fixed by law and shall not be decreased during their tenure. Section Section 4. The Constituti Constitutional onal Commissi Commissions ons shall appoint their officials and employees in accordance with law. Sectio Section n 5. The The Comm Commis issi sion on shal shalll enjo enjoy y fisc fiscal al autonomy. autonomy. Their approved approved annual annual appropriat appropriations ions shall be automatically and regularly released. Sect Sectio ion n 6. Each Each Comm Commis iss sion ion en banc banc may may promulgate its own rules concerning pleadings and

I sweat, I bleed, I soar… Service, Sacrifice, Excellence

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1.

They are constitutionally created; they may not be abolished by statute. (Art. IX-A, §1)

2.

Each is expressly described as “independent.” (Art. IX-A, §1)

3.

Each is conferred certain powers and functions which cannot be reduced by statute. (Art. IX-B, C and D)

4.

The The Chai Chairm rmen en and and memb member ers s cann cannot ot be removed except by impeachment. (Art. XI, §2)

Bernas Primer at 367 (2006 ed.) Cruz, Philippine Political Law, p. 278 (1995 ed).

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5.

The Chairmen and members are given fairly long term of office of 7 years. (Art. IX-B, C and §1(2))

6.

The The term terms s of offi office ce of the the chai chairm rmen en and and memb member ers s of all all the the comm commis issi sion oner ers s are are stag stagge gere red d in such such a way way as to lessen lessen the the opportunity for appointment of the majority of the body by the same President. (Art. IX-B, C and §1(2))

7.

The The chai chairm rmen en and and memb member ers s may may not not be reap reappo poin inte ted d or appo appoin inte ted d in an acti acting ng capacity.3 (Art. IX-B, IX-B, C and §1(2))

8.

The salaries of the chairman and members are relati relativel vely y high high and may not be decrea decreased sed during continuance in office. (Art. IX-A, §3; Art. XVIII, §17 )

9.

The Commis Commissio sions ns enjoy enjoy fiscal fiscal autonomy autonomy.. (Art. IX-A, §5)


Commis Commissio sion n may promul promulgat gate e its own proc proced edur ural al rule rules, s, prov provid ided ed they they do not not diminish, increase or modify substantive rights. (Art. IX-A, §4) chairmen chairmen and members members are subject subject to cert certai ain n disq disqua uali lifi fica cati tion ons s calc calcul ulat ated ed to strengthen their integrity. (Art. IX-A, §4)

12. The The

Comm Commis issi sion ons s may may appo appoin intt thei theirr own own offici officials als and employ employees ees in accord accordanc ance e with with Civil Service Law. (Art. IX-A, §4)

4.

Shall not be financially interested , directly or indi indire rect ctly ly,, in any any cont contra ract ct with with,, or in any any fran franch chiise or pri privile vilege ge gran grantted by the the Government, any of its subdivisions, agencies or instrument instrumentalit alities, ies, including including government government-owne owned d or cont contro roll lled ed corp corpor orat atio ion n or thei their r subsidiaries.

D. Rotational Scheme of Appointments (1999 Bar Q) (Section 1(2) of Article IX-B, C and D.) The first appointees shall serve 7, 5 and 3 years respectively. Reason for Staggering of Terms: 1. To lesse lessen n the the oppor opportun tunity ity of the the Pres Preside ident nt to appoint a majority of the body during his term; 2. To ensu ensure re cont continu inuanc ance e of the body, body, whic which h always retains 2/3 of its membership.

3.

Shall not, during tenure, tenure, hold any other office or employment;

The system is expected to stabilize the policies policies of the body as maintained maintained by the remaining members.5

Gaminde v. COA, December 13, 2000. It was held that in order to preserve the periodic succession mandated by the Constitution, the rotational plan requires two conditions:

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Shall not engage in the active management or control of any business which in any way may be affected by the functions of his office.

Prohibit Prohibition ion of “active “active management” management” does does not prohibit a Commissioner from owning business but it prohibits him from being the managing officer or a member member of the governin governing g board board of a busine business, ss, “which in any way may be affected by the functions of his office,” a qualifying phrase which does not appl apply y to the the proh prohib ibit itio ion n of a prac practi tice ce of a profession. (I RECORD 552-559)

C. Inhibitions/Disqualifications Inhibitions/Disqualifications (Section 2) Members of constitutional commissions:

In Matibag v. Benipayo, the SC said that when an ad interim appointment (of the Chairman of COMELEC) is not confirmed (as it was by-passed, or that there was no ample time for the Commission on Appoin Appointme tments nts to pass pass upon upon the the same), same), anoth another er ad interi interim m appointment may be extended to the appointee without violating the Constitution.

3.

“Practice “Practice of profession profession” ” for for the the purp purpos ose e of Sectio Section n 3, does does not includ include e teachi teaching. ng. Thus, Thus, a lawyer who teaches law does not thereby, for the purpos purpose e of Sectio Section n 2, violat violate e the prohib prohibiti ition on of practice of a profession. (I RECORD 544-555, 558559)

11. The

1.

Shal Shalll not not enga engage ge in the the pract practice ice of any profession; profession;

Purpose Purpose of Disqualifi Disqualificatio cations. ns. To comp compel el the the chai chairm rmen en and and memb member ers s of the the Cons Consti titu tuti tion onal al Commissions to devote their full attention to the discharge of their duties and, as well, to remove from from them them any tempta temptatio tion n to take take advant advantage age of their official positions for selfish purposes. purposes.4

10. Each Each

Q: There There are indepe independe ndent nt office offices s specif specifica ically lly author authorize ized d by the Consti Constitut tution ion to appoin appointt their their officials. Does this imply that their appointment will not be subject to Civil Service Law and Rules? A: No. if this were the case, these independent bodies would arrogate upon themselves a power that that prop proper erly ly belo belong ngs s to the the Civi Civill Serv Servic ice e Commission. Had the intention of the framers of the Consti Constitut tution ion been been to isolat isolate e and grant grant full full independence to Constitutional Commission in the matter matter of appoin appointm tment ents, s, it would would have have been been so provided. But that is not the case. And since all matters pertaining to appointments are within the realm of expertise of the CSC, all laws, rules and regula regulatio tions ns it issues issues on appoin appointme tments nts must must be complied with. (Ombudsman v. CSC, February 16, 2005)

2.

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Cruz, Philippine Political Law, p. 280 (1995 ed). Cruz, Philippine Political Law, p. 289 (1995 ed).

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1. 2.


within 30 days fro the receipt thereof. (Article IX-A Section 7)

The The term terms s of the the first first comm commis issi sion oner ers s should start on a common date (Feb (Feb 2, 1987); 1987); and Any Any vacan vacancy cy due to to death death,, resig resigna nati tion on or disability before the expiration of the term should should only only be filled filled for the unexpired unexpired balance of the term.

The certiorari refe referr rred ed to is a special special civil action for certiorari under Rule 65. (Dario v. Mison) The certiorari jurisdiction of the Supreme Court is limite limited d to decisi decision on render rendered ed in action actions s or proc procee eedi ding ngs s take taken n cogn cogniz izan ance ce of by the the Com Commiss missiions ons in the exer exerci cise se of the their adjudicatory or quasi-judicial powers. (It does not refer to purely executive powers such as those which relate to the COMELEC’s appointing appointing power. power. Hence, questions arising from the award of a contract for the construction of voting booths can be brought before a trial court. Similarly, actions taken by the COMELEC as prosecutor come under the jurisdiction of the trial court which has acquired jurisdiction over the criminal case.)

E. Proceedings 1. Decision There is no decision until the draft is signed and promul promulgat gated. ed. Hence, Hence, if a commis commissio sioner ner signs signs a deci decisi sion on but but reti retire res s befo before re the the deci decisi sion on is promulgated, his vote does not count even if it was he who penned the decision. (Ambil v. COMELEC, October 25, 2005) 2. Who makes the decision The decisions are made by the body and not by individual individual members. No individual individual member may make a decision for the Commission. Much less may may case cases s be deci decide ded d by subo subord rdin inat ates es of the the Commis Commissio sion. n. Not even even the Commis Commissio sion’s n’s legal legal counsel may make a decision fro the Commission.

Q: How are decisions of the commissions reviewed by the SC? Commission Commission on Audit: Audit: Judgments Judgments or final orders of the Commission on Audit may be brought by an aggrieved party to the Supreme Court on certiorari under Rule 65. Only Only when when COA COA acts acts with withou outt or exce excess ss in jurisdiction, or with grave abuse of discretion amount amounting ing to lack lack or excess excess of jurisd jurisdict iction ion,, may the SC entertain a petition for certiorari under Rule 65.

3. Each Commission shall decide by a majority vote of all all its its Memb Member ers s any any case case or matt matter er brought before it within sixty days from the date of its submission for decision. (Article IX-A Section 7) The provision is clear that what is required is the majority vote of all the members, not only of those who participated in the deliberations and voted voted thereo thereon. n. (Estre (Estrella lla v. COMELE COMELEC, C, May 27, 2004)

Civil Service Service Commission Commission:: In the case of decisions decisions of the CSC, Administrativ Administrative e Circular Circular 1-956 whic which h took took effe effect ct on June June 1, 1995 1995,, provides that final resolutions of the CSC shall be appealable by certiorari to the CA within 15 days from receipt of a copy thereof. From the deci decisi sion on of the the CA, CA, the the part party y adve advers rsel ely y affected thereby shall file a petition for review on certiorari certiorari under Rule 45 of the Rules of Court.

(Article IX-B, Section 2 allows the COMELEC to make ake deci decisi sion ons s in div divisio isions ns)) In the the COMELEC, there is full Commission to form a banc if there are four Commissioners left. Q: Two commissioners who participated in the considerati consideration on of the case retired retired before the promulgati promulgation on of the COMELEC decision but after they cast their vote. Four commissioners were left. Should the votes of the retirees be counted? A: No. Their Their vote vote should should be automa automatic ticall ally y with withdr draw awn. n. Ther There e is no deci decisi sion on unti untill it is promulgated. Q: Is the 3-1 vote of the remaining commissioners a valid decision en banc. A: The vote of 3 is a majority vote of all. (Dumayas v. COMELEC, April 20, 2001) 4. Unless otherwise provided by this Constitution or by law, law , any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party


Q: When certiorari certiorari to the Supreme Supreme Court is chosen, what is required? A: Rule 65, Section 1 says that certiorari may be resorted to when there is no other plain or speedy and adequate remedy. But recons reconside iderat ration ion is a speedy speedy and adequa adequate te remedy. Hence, a case may be brought to the Supreme Court only after reconsideration. (As a consequence, in the case of decisions of the COMELEC, only decision en banc may banc may be brought to the Court by certiorari since Article IX-C, 3 says that motions for reconsideration of decisions shall be decid cided by the Commission en banc. (Reyes v. RTC, 1995) 6

Pursuant to RA 7902.

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proceeding is before a court, the Rules of Court prevail. (Aruelo Jr. v. CA, October 20, 1993)

F. Enforcement of Decisions

Q: May the Supreme Supreme Court disapprove disapprove internal internal rules promulgated by the Commissions? A: The Supreme Court has no power to disapprove Commission rules rules except through the exercise of the powe powerr of “jud “judic icia iall rev review” iew” when when such such Commission rules violate the Constitution. Constitution.8

The final decisions of the Civil Service Commission are enforceable by a writ of execution that the Civil Service Commission may itself issue. (VitalGozon v. CA, 212 SCRA 235) G. Fiscal Autonomy

Q: May Congress assume power to review rules promulgated by the Commission? A: No. No. (By (By vest vestin ing g itse itself lf with with the the powe powers rs to appr approv ove, e, rev review, iew, amen amend, d, and and rev revise ise the Implement Implementing ing Rules for the Overseas Overseas Absentee Absentee Voting Act of 2003, Congress acted beyond the scope scope of its consti constitut tution ional al author authority ity.. Congre Congress ss tram trampl pled ed upon upon the the cons consti titu tuti tion onal al mand mandat ate e of independen independence ce of the COMELEC.) COMELEC.) (Macalinta (Macalintall v. COMELEC, July 10, 2003)

Articl Article e IX-A, IX-A, Sectio Section n 5 gives gives the consti constitut tution ional al comm commis issi sion ons s fisc fiscal al auto autono nomy my,, that that is, is, thei their r appro pprov ved ann annual ual appro ppropr pria iattions ions sha shall be automatically and regularly released and shall not be subject to pre-audit.7 Fiscal Autonomy. In Civil Service Commission v. DBM, July 22, 2005, the SC said that the “no repo report rt,, no rele releas ase” e” poli policy cy may may not not be vali validl dly y enfo enforc rced ed agai agains nstt offi office ces s vest vested ed with with fisc fiscal al autonomy, without violating Section 5 of Article IXA of the Constitution. The “automatic release” of approv approved ed annual annual approp appropria riatio tions ns to petiti petitione oner, r, a cons consti titu tuti tion onal al comm commis issi sion on vest vested ed with with fisca fiscall autonomy should thus be construed to mean that no condition to fund releases to it may be imposed. xxx However, petitioner’s claim that its budget may not be redu reduce ced d by Cong Congre ress ss belo below w the the amou amount nt appropriated for the previous year, as in the case of the Judiciary, must be rejected. The provisions in Section 3, Article VIII, prohibiting the reduction in the appro appropri priati ation on for the Judici Judiciary ary below below the amount appropriated for the previous year does not appe appear ar in Sect Sectio ion n 5, Arti Articl cle e IX-A IX-A.. The The plai plain n implication of this omission is that Congress is not prohib prohibite ited d from from reduci reducing ng the approp appropria riatio tions ns of Consti Constitut tution ional al Commis Commissio sions ns below below the amount amount appropriated for them for the previous year. Note: The Supreme Court said that the Commis Commissio sion n on Human Human Rights Rights,, unlike unlike the three three constituti constitutional onal commission commissions, s, does not enjoy fiscal fiscal autonomy. (CHR Employees Association v. CHR, November 25, 2004).

If the rules promulga promulgated ted by a Commis Commissio sion n are inconsisten inconsistentt with a statute, statute, the statute statute prevails. prevails. (Antonio v. COMELEC, September 22, 1999) II. Civil Service Commission Composition of CSC Functions/ Objective of CSC Nature of the Powers of CSC Qualifications of CSC Commissioners Appointment of CSC Commissioners Scope of Civil Service Classification of Positions Classes of Service Disqualifications Security of Tenure Partisan Political Activity Right to Self-organization Protection to Temporary Employees Standardization of Compensation Double Compensation Section 1. 1. (1) The civil service shall be administered by the Civil Servic Service e Commis Commissio sion n compos composed ed of a Chairm Chairman an and two Commis Commissio sioner ners s who shall shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven proven capacity capacity for public administratio administration, n, and must not have been candidates for any elective position in the elections immediately preceding their appointment. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven year years s with withou outt reap reappo poin intm tmen ent. t. Of thos those e firs firstt appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and another Commissioner for thre e years, wi th tho ut ut reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no

H. Power to Promulgate Rules of Procedure Articl Article e IX-A, IX-A, Sectio Section n 6 gives gives the consti constitut tution ional al commission commissions s authority, authority, sitting en, to promulgate promulgate rules of procedure. Q: In case of conflict between a rule of procedure promulgated by a Commission and a Rule of Court, which prevails? A: In case of conflict between a rule of procedure promulgated by a Commission and a Rule of Court, the rule of the Commission should prevail if the proceeding proceeding is before the Commission; Commission; but if the 7

Bernas Commentary, p 1003(2003 ed).


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Atty. ARIS S. MANGUERA Section 8. 8. No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authorized by law, nor accept without the consent of the Congress, any present, emolument, office, or title of any kind from any foreign government. Pensions Pensions or gratuities gratuities shall not be considere considered d as additional, double, or indirect compensation.

case shall any Member be appointed or designated in a temporary or acting capacity. Sectio Section n 2. (1) (1) The The civi civill serv servic ice e embr embrac aces es all all branch branches, es, subdiv subdivisi isions ons,, instru instrume menta ntalit lities ies,, and agencies of the Government, including governmentowned owned or contro controlle lled d corpor corporati ations ons with with origin original al charters. (2) Appointments in the civil service shall be made only according to merit and fitness to be determined, as far as practicable, and, except to positions which are policy-det policy-determin ermining, ing, primarily primarily confident confidential, ial, or highly technical, by competitive examination. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. (4) No officer or employee in the civil service shall engage, directly or indirectly, in any electioneering or partisan political campaign. (5) The right to self-organization shall not be denied to government employees. (6) Temporary employees of the Government shall be given such protection as may be provided by law.

A. Composition of CSC Civil Service Commission is composed of a Chairman and two Commissioners. (Article IX-B, Section 1(1)) B. Functions of CSC

1. The CSC shall administer the civil service. (Art. IX-B, §1(1)) 2.

personnel agency of The CSC as the personnel the government government shall shall establ establish ish a career career service; 3. It shall adopt measures to promote morale, morale, efficiency, efficiency, integrity, integrity, responsiven responsiveness, ess, progre progressi ssiven veness ess,, and courte courtesy sy in the civil civil service. 4. It shal shalll stren strength gthen en the the meri meritt and and rewar rewards ds system; 5. It shall shall integ integra rate te all human human resou resourc rces es development programs for all levels and ranks; 6. It shal shalll inst instit itut utio iona nali lize ze a mana manage geme ment nt climate conducive to public accountability.

Section Section 3. The Civil Service Service Commission, Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall shall stren strength gthen en the merit merit and reward rewards s syste system, m, inte integr grat ate e all all huma human n reso resour urce ces s deve develo lopm pment ent programs for all levels and ranks, and institutionalize a mana manage geme ment nt clim climat ate e cond conduc uciv ive e to publ public ic accountab accountability ility.. It shall submit submit to the President President and the Congress Congress an annual annual report report on its personne personnell programs.

7. It shall submit to the President and the Congre Congress ss an annual annual report report on its personnel personnel programs. (Article IX-B, IX-B, Section 3)

Section 4. 4. All public officers and employees shall take an oath or affirmation to uphold and defend this Constitution.

Power to Grant Civil Service Eligibility. In the exer exerci cise se of its its powe powers rs to impl implem emen entt RA 6850 6850 (grant (granting ing civil civil servic service e eligib eligibili ility ty toe employ employees ees under provisional provisional or temporary temporary status who have rendered seven years of efficient service), the CSC enjoys wide latitude of discretion and may not be comp compel elle led d by mand mandam amus us to issu issue e elig eligib ibil ilit ity. y. (Torregoza (Torregoza v. CSC) But the CSC cannot validly abol abolis ish h the the Care Career er Exec Execut utiv ive e Serv Servic ice e Boar Board d (CESB); because the CESB was created by law, it can only be abolished by the Legislature (Eugenio v. CSC, 1995)

Sectio Section n 5. The The Cong Congre ress ss shall shall prov provid ide e for for the the stand standard ardiza izatio tion n of compen compensat sation ion of govern governmen mentt offi offici cial als s and and empl employ oyee ees, s, inc includi luding ng thos those e in governmen government-own t-owned ed or controlled controlled corporatio corporations ns with original charters, taking into account the nature of the responsib responsibilitie ilities s pertaining pertaining to, and the qualificati qualifications ons required for, their positions. Section 6. 6. No candidate who has lost in any election shall shall,, with within in one one year year afte afterr such such elec electi tion on,, be appointed to any office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Power to hear and decide administrative cases. Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases cases instit institute uted d before before it direct directly ly or on appeal appeal,, 9 including contested appointments.

Section 7. 7. No elective official shall be eligible for appointme appointment nt or designation designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold hold any any othe otherr offi office ce or empl employ oyme ment nt in the the Gove Govern rnme ment nt or any any subd subdiv ivis isio ion, n, agen agency cy or instrumentality thereof, including Government-owned or controlled corporations or their subsidiaries.

Jurisdiction on Personnel actions. It is the intent of the Civil ivil Serv ervice ice Law, Law, in requ requir irin ing g the the establ establish ishmen mentt of a grieva grievance nce proced procedure ure,, that that decisi decisions ons of lower lower offici officials als (in cases cases involv involving ing 9

Antonio Antonio B. Nachura, Nachura, Outline/ Outline/Revi Reviewer ewer in Political Political Law, 307 (2006)


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person personnel nel action actions) s) be appeal appealed ed to the agency agency head, then to the CSC. The RTC does not have jurisdiction over such personal actions. (Olanda v. Bugayong, 2003) Authority to Recall Appointments. The Omnibus Rule Rules s impl implem emen enti ting ng the the Admi Admini nist stra rati tive ve Code Code provides, provides, among others, that notwithstandin notwithstanding g the initial approval of an appointment, the same may be recalle recalled d for violat violation ion of other other existi existing ng Civil Civil serv servic ice e laws laws,, rule rules s and and regu regula lati tion ons. s. Thus Thus,, in Debulgado v. CSC, it was held that the power of the CSC CSC incl includ udes es the auth author oriity to reca recall ll appoin appointm tment ent initia initially lly approv approved ed in disreg disregard ard of applicable provisions of the Civil Service law and regulations.10 Orig Origin inal al juri jurisd sdic icti tion on to hear hear and and deci decide de a complaint complaint for cheating. cheating. The Commis Commissio sion n has origin original al jurisd jurisdict iction ion and decide decide a compla complaint int for chea cheati ting ng in the the Civi Civill Serv Servic ice e exam examin inat atio ions ns committed by government employees. The fact that the complaint was filed by the CSC itself does not mean that it cannot be an impartial judge. (Cruz v. CSC. 2001) 2001)11


A: It has only automatic automatic review review jurisdictio jurisdiction, n, not original jurisdiction. (GSIS v. CSC, 1991) C. Nature of the Powers of CSC The Commis Commissio sion n is an admini administr strati ative ve agency agency,, nothing more. As such, it can only perform powers proper to an administrative agency. It can perform executive powers, quasi-judicial powers and quasilegislative or rule-making powers. powers.13 D. Qualifications of CSC Commissioners Natura Natural-bo l-born rn citiz citizens ens of of the the Phili Philippi ppines nes;;

2.

At the time of their appointment, at least thirtyfive years of age; With With proven proven capaci capacity ty for for public public admini administr strati ation; on; Must not have been candidates for any elective position in the elections immediately preced preceding ing their their appoin appointme tment. nt. (Artic (Article le IX-B, IX-B, Section 1(1))

3. 4.

E. Appointment of CSC Commissioners The Chairm Chairman an and the Commis Commissio sioner ners s shall shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment.

Q: When there are more than one person qualified for for a posi positi tion on,, may may the the CSC CSC dict dictat ate e to the the appointing appointing authority authority who among those qualified qualified should be appointed? A: No. the power of the CSC is limited to attesting to the eligib eligibili ility ty or inelig ineligibi ibilit lity y of the appoin appointee tee.. (Orbos v. CSC, 1990)12

Of those first appointed, the Chairman shall hold office office for seven seven years, years, a Commis Commissio sioner ner for five five years, and another another Commissione Commissionerr for three years, without reappointment.

Q: May the CSC revoke a certificate of eligibility? A: Yes. Yes. As cent centra rall pers person onne nell agen agency cy of the the government, the CSC may revoke a certificate of eligibility motu motu propio propio.. The The pow power to issu issue e a certificate of eligibility carries with it the power to revoke one that has been given. Whether hearing is required for revocation depends on circumstances of a case. (Thu (Thus, s, wher where e the the case case “sim “simpl ply y invo involv lves es the the rechec recheckin king g of examin examinati ation on papers papers and nothin nothing g more than a re-evaluation of documents already in the records of the CSC according to a standard answer key previously set by it, notice and hearing is not required. Instead, what [would apply in such a case is] the rule of res ipsa loquitor.” (Lazo v. CSC, 1994) Q: What jurisdiction does the CSC have over the personnel cases given by statute to the jurisdiction of the Merit Systems Board?

1.

Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any any Memb Member er be appo appoin inte ted d or desi design gnat ated ed in a temporary or acting capacity. (Article IX-B, Section 1(2)) Reason for Staggering of Terms: 1. To lesse lessen n the oppor opportu tuni nity ty of the Pres Presid iden entt to appoint a majority of the body during his term; 2. To ensur ensure e cont contin inua uanc nce e of the the body body,, whic which h always retains 2/3 of its membership.

3.

The system is expected to stabilize the policies of the body as maintained by the remaining members.14

F. Scope of Civil Service System The civi civill serv serviice embr embrac aces es all all bran branch ches es,, subdivisions, instrumentalities, and agencies of the Govern Governmen ment, t, includ including ing govern governmen ment-o t-owne wned d or

10

Antonio Antonio B. Nachura, Nachura, Outline/ Outline/Revie Reviewer wer in Political Political Law, 307 (2006) 11

Antonio Antonio B. Nachura, Nachura, Outline/ Outline/Revie Reviewer wer in Political Political Law, 307 (2006)

13

12

14

Bernas Primer at 386 (2006 ed.)


Bernas Primer at 372 (2006 ed.) Cruz, Philippine Political Law, p. 289 (1995 ed).

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Atty. ARIS S. MANGUERA confidential position and respondent was a secretary to the mayor. Held: The termination termination of respondent respondent is void. The posit position ion of Assist Assistant ant Secre Secretar tary y to the Mayor Mayor shou should ld be cons consid ider ered ed as belo belongi nging ng to the the competitive service. The position of Secretary of the Mayor and Assistant Secretary are two distinct positions. The latter is of a lower rank and is not primarily confidential. An assistant secretary merely helps in a subordinat subordinate e capacity capacity the person person clothed clothed with the duties of a secretary secretary.. (Samson v. CA, 145 SCRA 654)17

controlled controlled corporation corporations s with original original charters charters.. (Article IX-B, Section 2(1)) Test Test for determ determini ining ng whethe whetherr a govern governmen mentt owned or controlled corporation is subject to the Civil Service Law: The test is the manner of its its crea creati tion on.. Corp Corpor orat atio ions ns creat created ed by spec specia iall charter are subject to the Civil Service, whereas corporatio corporations ns incorporate incorporated d under the Corporatio Corporation n Law are not. (PNOC v. Leogardo, 1989) Corporati Corporations ons with original original charters. charters. They They are those created by special law, like GSIS, SSS, Local Water Districts and PAGCOR. (Corporations which are subsidiaries of these chartered agencies like the the Mani Manila la Hote Hotell and and PAL, PAL, are are not not with within in the the coverage of the Civil Service.15

Facts: Respondent Respondent was appointed appointed as member member of internal security staff of the PAGCOR. He was terminated allegedly for loss of confidence, because he alle allege gedly dly enga engage ged d in prox proxy y bett bettin ing. g. When When respondent respondent sued for reinstate reinstatement ment,, the PAGCOR PAGCOR argued that under PD 1869, all its employees are classified as confidential. Held: The classification in PD 1869 can be no more than an initial determination and is not conclusive. It is the nature of the position which finally determines whet whethe herr a posi positi tion on is prim primar arily ily conf confid iden enti tial. al. Respondent did not enjoy close intimacy with the appo appoin inti ting ng autho authori rity ty whic which h woul would d make make him him a confidenti confidential al employee. employee. As member member of the internal staff, staff, he was tasked with preventing preventing irregulari irregularities ties among the employees employees and customers customers,, reporting reporting unusual incidents and infractions, coordinating with security security departmen departmentt during during chips inventory inventory,, refills, refills, yields and card shuffling, and escorting the delivery of table capital boxes, refills and shoe boxes. (CSC v. Salas, 274 SCRA 414) 414 )18

Note: The moment, that a corporation ceases to be gove govern rnme ment nt cont contro roll lled ed,, for for inst instan ance ce,, if it is privatized, it ceases to fall under the Civil Service. Service .16 Q: Does the Department of Labor have a role over civil service members? A: Yes. Entities under the civil service system are not completely beyond the reach of Department of Labor or labor laws. (When a government entity that is under the Civil Service enters into a contract, e.g., with a security agency or janitorial agency, it becomes an indirect employer of the security guards or the janitors. In such such a situ situat atio ion, n, unde underr the the Labo Laborr Code Code,, the the liabilities for wages are joint and solidary with the contractor. The law on wages on in the Labor Code specifically provides that “employer” includes any person acting directly or indirectly in the interest of an employer in relation to employees. (Philippine Fisheries Fisheries Development Development Authority Authority v. NLRC & Odin Security Agency, 1992)

Classes of Non-Competitive Positions 1. Poli Policy cy Dete Determ rmin inin ing g 2. Prim Primar aril ily y Conf Confid iden enti tial al 3. Hig Highly hly Tec Techn hnic ical al Policy-Determining Position One charged with laying down of principal or fundamental guidelines or rules, such as that of a head of a department. department.19

G. Classification of Positions (under Section 2(2) for purpose of determining the manner of testing merit and fitness) 1. Competitive Po Positions 2. Non-competitive Positions

Primarily Confidential Position One One deno denoti ting ng not not only only conf confid iden ence ce in the the aptitude of the appointee for the duties of the office office but primarily close close intima intimacy cy which which ensu ensure res s free freedo dom m of inte interco rcour urse se with withou outt embarrassment or freedom from misgivings or betray betrayals als of person personal al trust trust on confid confident ential ial matters of state (De los Santos v. Mallare, 87 Phil 289).

Competitive Positions As a genera generall rule, rule, position positions s in all branches branches of government government belong to the competiti competitive ve service. service. (Samson v. CA) Facts: Petiti Petitione oner, r, the the Mayor Mayor of Calooc Caloocan an City, City, terminated the services of respondent, the Assistant Secretary to the Mayor, on the ground of loss of confidenc confidence. e. Respondent Respondent protested protested on the ground ground that his position belonged to the classified service. Petitioner Petitioner argued that under the Civil Service Service Law, the secretari secretaries es of city mayors occupied occupied primarily primarily

Proximity Rule: The occupant of a particular positi position on can be consid considere ered d a confid confident ential ial employee employee if the predominant reason why he was chosen by the appointing authority was the latter’s belief that he can share a close intimate relationsh relationship ip with the occupant occupant which which ensures ensures free freedo dom m of disc discus ussi sion on with withou outt fear ear of 17

15 16

Jacinto Jimenez, Political Law Compendium, 365 (2006 ed.)

Cruz, Philippine Political Law, p.290 (1995 ed).

18



19



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embarr embarrass assme ment nt or misgi misgivin vings gs of possib possible le betray betrayals als of person personal al trust trust and confid confident ential ial matte matters rs of stare. stare. Delos Delos Santos Santos v. Malla Mallare) re) (Where the position occupied is remote from that of the appointing authority, the element of trust between between them is no longer longer predomina predominant, nt, and therefore, cannot be classified as primarily confidential)

and, and, theref therefore ore,, their their occupa occupants nts hold hold tenure tenure coterminous with the officials they serve.21 Q: Who determines whether a position is policydete determ rmin inin ing, g, prim primar aril ily y conf confid iden enti tial al or high highly ly technical? A: It is a judicial question. It is the nature of the position which finally determines whether a position is primar primarily ily confid confident ential ial,, policy policy-de -deter termin mining ing or highly highly technical. technical. The initial initial classificat classification ion may be made by the authority creating the office. Executive pronouncements as to the nature of the office can be no more than initial determination of the nature of the office. 22

The The foll follow owin ing g are are held held to be prim primar aril ily y confidential: 1. Chief le l egal co c ounsel of o f PN P NB. (Besa v. PNB) 2. City le l egal of o fficer (C ( Cadiente v. v. Santos)

3.

Provin Provincia ciall attorn attorney( ey(Gri Grino no v. CSC) CSC) (Howeve However, r, positi positions ons of the the legal legal staff are not confidential) 4. Security gu guards of of a vice-mayor (Borres v. CA) Facts: Upon Upon recomm recommend endati ation on of the vicevicemayor, mayor, the mayor mayor appointed appointed respondents respondents as securi security ty guards guards of the vice mayor mayor . The The mayor and vice mayor lost in the election. As the the new new mayo mayor, r, peti petiti tion oner er term termin inat ated ed the the services of respondents for lack of confidence. Respondent Respondents s sued for reinstatem reinstatement ent on the ground that their removal was illegal. Held: The The posi positi tion ons s of resp respon onde dent nts s [secur [security ity guards guards of the vice vice mayor] mayor] are primarily confidential, confidential , as they involve giving protection to the vice mayor. The relationship betw betwee een n the the vice vice mayo mayorr and and his his secu securi rity ty depend on the highest of trust and confidence. Hence, the tenure of respondents ended upon loss of confidence in them. (Borres v. CA, 153 SCRA 120)20

[The competitive and non-competitive positions roughly corres correspon pond d to the classi classific ficati ation on in the Civil Civil Servic Service e Code Code now embodi embodied ed in the Revise Revised d Admini Administr strati ative ve Code of 1987: (1) Career Service and (2) Non-Career Service.] Service.]23 H. Clas Classe ses s of Servi ervice ce Administrative Code) 1. Career Service 2. Non-Career Service

the the

Revi Revise sed d

1. Career Service (1999 Bar Question) The career service is characterized by: 1. Entran Entrance ce based based on on the the merit merit and fitn fitness ess to be dete determ rmin ined ed as far far as prac practi tica cabl ble e by competitiv competitive e examinatio examinations, ns, or based on highly highly technical qualifications; 2. Oppo Opport rtun unit ity y for for adva advanc ncem emen entt to high higher er career positions;

3.

Highly Technical Position A high highly ly tech techni nica call posi positi tion on requ requir ires es the the appointee thereto to possess technical skill or training in the supreme or superior degree.

Security of Tenure.24

The career service includes:

1.

Open Career positions for appointment to which prior qualification in an appropriate examination is required.

The position of a city engineer may be technical but not highly so because he is not required or suppos supposed ed to posses posses a suprem supreme e or super superior ior degree of technical skill. The duties of a city engi engine neer er are are emin eminen entl tly y admi admini nist stra rati tive ve in character and can be discharged even by nontechnical men. (Delos Santos v. Mallare)

In Montecillo v. CSC, 2001, 2001, the SC said that under Administrative Code of 1987, the CSC is expressly empowe empowered red to declar declare e positi positions ons in the CSC as prim primar aril ily y conf confid iden enti tial al.. This This sign signif ifie ies s that that the the enumer enumerati ation on in the Civil Civil Servic Service e decree decree,, which which defines the non-career service, is not an exclusive list list.. The The Comm Commis issi sion on can can supp supple leme ment nt this this enumeration, as it did when it issued Memorandum Circular 22, s. 1991, specifying positions in the Civil Service which are considered primarily confidential

(under nder

2. Closed Closed Career Career positi positions ons whic which h are are scientific scientific or highly highly technical technical in nature; nature; these include the faculty and academic staff of state colleges colleges and universit universities, ies, and scientific scientific and techni technical cal positi positions ons in scient scientifi ific c or research research institutions which shall establish and maintain their own merit systems; 3. Posi Positi tion ons s in the the Care Career er Exec Execut utiv ive e Service, Service, namely, namely, Undersecreta Undersecretary, ry, Assistant Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Direct Director, or, Chief Chief of Depart Departmen mentt Servic Service e and 21

Antonio Antonio B. Nachura, Nachura, Outline/ Outline/Revie Reviewer wer in Political Political Law, 311 (2006) 22

See Bernas Commentary, p 1016(2003 ed); See also Antonio B. Nachura, Outline/Reviewer in Political Law, 311 (2006) 23 20



24

Bernas Commentary, p 1017(2003 ed). Cruz, Philippine Political Law, p.290 (1995 ed).

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Atty. ARIS S. MANGUERA rank rank which which follow follows s him wherever wherever he is transferred or reassigned. In fact, a CES officer suffers no diminution in salary even if assigned to a CES position with lower sala salary ry grad grade, e, as he is comp compen ensa sate ted d according to his CES rank and not on the basis of the position or office which he occupies. (General v. Roco, 2001)

other other office officers rs of equiva equivalen lentt rank rank as may be iden identi tifi fied ed by the the Chie Chieff Exec Execut utiv ive e Serv Servic ice e Boar Board, d, all all of whom whom are are appo appoin inte ted d by the the President;

4.

Career Career officers officers,, other that those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the DFA.

2. Non-Career Service The non-career service is characterized by: 1. Entran Entrance ce on bases bases other other than than of the the usua usuall tests of merit and fitness utilized for the career service;

5.

Commis Commissio sioned ned office officers rs and enlist enlisted ed men men of the the Arme Armed d Forc Forces es,, whic which h shal shalll maintain a separate merit system;

6.

Person Personnel nel of govern governmen ment-o t-owne wned d or controlled corporations, corporations , whether performing governmental or proprietary functions, who do not fall under the non-career service; and

2.

Tenu Tenure re whic which h is limi limite ted d to a peri period od specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, pleasure, or which is limited to the duration duration of a part partic icul ula ar proj proje ect for whic which h purp purpo ose employment was made.27

7.

Permanent Permanent laborers, laborers, whether whether skilled, skilled, semi-skilled, or unskilled. unskilled.25

Career Service Service Executives Executives (CES). (CES). On May 31, 31, 1994, the CSC issued Memorandum Circular No. 21 identifying the positions covered by the CES. The Memo Memora rand ndum um prov provid ides es that that,, “inc “incum umbe bent nts s of positions which are declared to be CES positions for the first time pursuant to this Resolution who hold permanent appointments thereto shall remain under perman permanent ent statu status s in their their respec respectiv tive e positi positions ons.. However, upon promotion or transfer to other CES posi positi tion ons, s, thes these e incu incumb mben ents ts shal shalll be unde under r temporary status in said other CES positions until they qualify.” 26

The non-career service includes: 1. Elec Electi tive ve offi offici cial als s and and thei theirr pers person onal al or confidential staff; 2. Depa Depart rtme ment nt heads heads and othe otherr offici official als s of Cabi Cabine nett rank rank who who hold hold posi positi tion ons s at the the pleasure of the President and their personal or confidential staff; 3. Chai Chairm rmen en and and membe members rs of comm commis issi sion ons s and boards with fixed terms of office and their personal or confidential staff; 4. Cont Contra ract ctua uall pers person onne nell or thos those e whos whose e employment in the government is in acco accord rdan ance ce with ith a spe special cial cont contra ract ct to undert undertake ake a specif specific ic work work or job, job, requir requiring ing special or technical skills not available in the employing employing agency, to be accomplishe accomplished d within within a spec specif ific ic peri period od,, whic which h in no case case shal shalll exceed one year, and perform or accomplish the the spec specif ific ic work work or job, job, unde underr thei theirr own own responsibility with a minimum of direction and supervision from the hiring agency; and

CES and Security of Tenure. The mere fact that a position belongs to the CES does not automatically confer security of tenure on the applicant. Such right will have to depend on the nature of h is appointment which, in turn, depends on his eligibility or lack of it. A pers person on who who does does not not have have the the requ requis isit ite e qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule rule,, may may be appo appoin inte ted d to it only only in an acti acting ng capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. Such being the case, he could transferred or reassigned without without violating violating the constitut constitutional ional guarantee of security of tenure. (De Leon v. CA, 2001)

5.

Q: Is the classi ssification in the Revised Administrative Code (Career (Career and Non-Career ) and the classification in Section 2(2) (Competitive (Competitive and Non-competitive) Non-competitive) mutually exclusive? A: No. Rather, they overlap and complement each other. other. The classi classific ficati ation on in the Code is for the purposes of determining tenure. The classification in Section 2(2) is for purposes of determining the manner of testing merit and fitness.

Requi Requisi site tes s for for Secu Securi rity ty of Tenur Tenure e of CES CES employee: 1. Care Career er Serv Servic ice e Eli Eligib gibili ility ty 2. Appo Appoin intm tmen entt to the the appr approp opri riat ate e care career er executive service rank. It must be stressed that the security of tenure of employees in the CES (except 1st and 2nd level level employ employees ees in the civil civil service) pertains only to rank and not to the office or to the position to which they may be appointed. (Thus, a CES officer may be transferr transferred ed or reassigne reassigned d form one position to another without losing his 25

Emergency and seasonal personnel.28

I. Significa Significance nce of Distinctio Distinction n between between competitiv competitive e and non-competitive positions


26

Antonio B. Nachura, Outline/Reviewer in Political Law, 307 (2006)


27


28


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Appointment to a competitive positions must be made ade acco accord rdin ing g to meri meritt and fitn itness ess as determined, as far far as practicable, by competitive examination. Meri Meritt and and fitn fitnes ess s in appointments to non-competitive positions are not determined by competitive examinations; but merit and fitness are required. required.29 J. Appointments in the Civil Service Appoin Appointme tments nts in the civil civil servic service e shall shall be made made only acco accord rdin ing g to meri meritt and and fitn fitnes ess s to be determined, as far as practicable, by competitive examination. examination. (Article IX-B, Section 2(2)) Except: To positions which are policy-determining, primarily confidential, or highly technical. 1. Permanent Appointments A perman permanent ent appointm appointment ent shall be issued issued to a person person who meets meets all the requir requireme ements nts for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with with the provis provision ion of laws, laws, rules rules and standa standards rds promulgated in pursuance thereof. (Administrative Code of 1987, Book V-A, Sec. 27) 2. Temporary Appointments In the the abse absenc nce e of appr approp opri riat ate e elig eligib ible les s and and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirement for the position to which he is being appointed except the appropriate civil service eligibility. Temp Tempor orar ary y appo appoin intm tmen ents ts do not not have have a defi defini nite te term term and and may may be with withdr draw awn n or discon discontin tinued ued,, with with or withou withoutt cause, cause, by the appointing power .30 The new Constitution now says: “Temporary employees of the Government shall be given such protection as may be provided by law.” (The provision is not self-executory) Q: A permanent appointment is extended. The Civi Civill Serv Servic ice e Comm Commis issi sion on appr approv oves es it as temporary in the belief that somebody else is better qualified. May the Commission do so? A: No. The sole function of the Commission is to attest to the qualification of the appointee. (Luego v. CSC, 1986) Discretion of Appointing Authority The appointing appointing authority has discretion who to appoin appointt even even in the career career service service of the Civil Civil Serv Servic ice, e, wher where e the the appo appoin inte tee e posse possess sses es the the minimum qualification requirements prescribed by

29 30

Bernas Primer at 375 (2006 ed.) Cruz, Philippine Political Law, p.293 (1995 ed).



law for the position. (Luego v. CSC, 143 SCRA 327) Thus, even if officers and employees in the career serv servic ice e of the the Civi Civill Serv Servic ice e enjo enjoy y the the righ rightt to preference in promotion, it is not mandatory that the vacanc vacancy y be filled filled by promot promotion ion.. The appoin appointin ting g authority should be allowed the choice of men of his confidence, provided they are qualified and eligible. (Central Bank v. CSC 171 SCRA 744)

The discre discretio tion n of the appoin appointin ting g author authority ity is not only only in the the choi choice ce of the the pers person on who who is to be appointed, but also in the nature or character of the appoin appointme tment nt issued issued , i.e i.e., whet whethe herr the appointment is permanent or temporary. (The (The CSC may, however, approve as merely temporary an appointment intended to be permanent where the appointee does not possess the requisite eligibility and the exigency of the service demands that the position be filled up, even in a temporary capacity .) .) Role of CSC (1994 Bar Question) “All the Commission is authorized to do is to check that the appointee possesses the qualifications and appropriate eligibility. If he does, his appointment is approved; if not, it is disapproved.” (Lopez v. CSC) The The CSC CSC is not not a co-m co-man anag ager er,, or surr surrog ogat ate e administrator of government offices and agencies. Its functions and authority are limited to approving or review reviewing ing appoin appointm tment ents s to determ determine ine their their compliance with requirements of the Civil Service Law. On its own the Commission does not have the powe powerr to term termin inat ate e empl employ oyme ment nt or to drop drop members from the rolls. (Torres v. CSC, 2001) Subst Substant antive ive Requir Requireme ement. nt. A subs substa tant ntiv ive e requir requireme ement nt under under Sectio Section n 11 of the Omnib Omnibus us Serv ervice ice Rule Rules s and and Regu Regula lattions ions is that hat an appointment should be submitted to the CSC within 30 days days from from issu issuan ance ce;; othe otherw rwis ise e it shal shalll be ineffective. (See (See OMNC v. Macaraig, 2004) Legal Standing. Both the appointing authority and the appointee appointee are the real party interest, interest, and both have legal standing, in a suit assailing a CSC order disapproving an appointment. (Abella Jr. v. CSC) K. Disqualifications 1. No cand candid idat ate e who who has has lost lost in any elec electi tion on shall, within one year after such election, be appointed to any office in the Government or any any Gov Governm ernmen entt-own -owned ed or cont contro roll lled ed corpor corporati ations ons or in any of their their subsid subsidiar iaries ies.. (§6) 2. No electi ctive official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. (§7) 3. Unle Unless ss othe otherw rwis ise e allo allowe wed d by law law or by the primary functions of his position, no appointive

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off officia iciall shal shalll hold hold any any othe otherr offi office ce or empl employ oyme ment nt in the the Gove Govern rnme ment nt or any any subdivision, agency or instrumentality thereof, includ including ing Govern Governmen ment-o t-owne wned d or contro controlle lled d corporations or their subsidiaries. (§7)

2. “For Cause Provided by Law” This This is a guar guaran ante tee e of both both proc proced edur ural al and and substantive due process. “For Cause” means for reason reasons s which which the law and sound public public policy policy recognize recognize as sufficient sufficient for removal, that is legal cause, and not merely causes which the appointing power power in the exercise exercise of discre discretio tion n may deem sufficient. Moreover, the cause must relate to and effect the administration of the office, and must be restri restricte cted d to someth something ing of a substa substanti ntial al nature nature direct directly ly affect affecting ing the rights rights and intere interests sts of the public. (De los Santos v. Mallare)

Q: What is the purpose of the prohibition of appointment of “lame ducks” in Section 6? A: The extirpation of the “spoils system.” Q: Are there exceptions to the rule against appointment of elective officials? A: Yes. The Vice-President may be appointed member of the Cabinet. A member of Congress is designated to sit in the Judicial and Bar Council.31

3. Coverage of Security of Tenure No officer or employee of the civil service shall be removed removed or suspended suspended except for cause provided provided by law. (§2(3))

Q: Is the rule on appointive officials (§7) applicable to members of Cabinet? A: No. For them, them, the applic applicabl able e rule rule is the stricter stricter prohibition in Article VII, Section 13. 32

Security of Tenure is enjoyed only by those who posses a permanent appointment. appointment.34

Q: Distinguis Distinguish h the rule on appointme appointments nts of members members of Congre Congress ss and rule rule on elect elective ive offici officials als (other (other than than Congressmen). A: The 1st paragr paragraph aph of Sectio Section n 7 governs governs elective elective officials. Unlike the provision for members of Congress in Article VI Section 13, which does not prohibit acceptance of an appointment but merely causes the forfeiture of the congressional seat if the holder accepts an appointment, 1st paragraph of Section 7 prohibits elective officials other other than than member members s of Congre Congress ss from from accept accepting ing appointment during their tenure. tenure. If the elective official accepts an appointment without first resigning his elective position, position, the appointme appointment nt is invalid. invalid. Neither, Neither, however, however, does he thereby forfeit his elective seat. (Flores v. Drilon, 1993)

One does not become a permanent appointee unless qualified for the position, and this, even if the appointment extended is mistakenly designated as permanent. The appointment of one who is not qualified can only be temporary and it is understood from the outset that it is without fixity but enduring only at the pleasure of the appointing authority. •

•

For an appointment to be permanent, it must be • a real appointment by appointment by the appointing authority and not just a designation by one who does not have the appointing authority. (Thus, where the law says that the officer officer is to be appoin appointed ted by the Presiden President, t, designation by the department secretary does not result in a permanent permanent appointment. appointment. (Binamira (Binamira v. Garucho))

Q: May Congress by law authorize the appointment of elective officials? A: No. Unlike Unlike the case of appoin appointi tive ve offic officers ers in 2 nd paragr paragraph aph of Sectio Section n 7, Congre Congress ss may not creat create e exception on elective officials mentioned in 1 st paragraph of Section 7.

•

Even one who has an appointment to a position which is subsequently converted to a career position must yield the position to one who has it if he or she does not possess possess career career eligibili eligibility ty .(Dimayuga .(Dimayuga v. Benedicto II)

L. Security of Tenure (1993, 1999, 2005 Bar Question)

A person lacki acking ng the nece necess ssar ary y • qualifications who is given a temporary appoin appointm tment ent does does not automa automatic ticall ally y become become a permanent permanent appointee appointee when he or she acquires the required qualification. (For a temporary appointee to beco become me perm perman anen ent, t, he must must rece receiv ive e a new new commission, that is, a permanent appointment if he is to be considered permanent.)

No office officerr or employ employee ee of the civil service service shall shall be removed or suspended except for cause provided by law. (§2(3))

1. Significance of Security of Tenure The efficiency of the a civil service system depends largely on the morale of the officers and employees in the the serv servic ice. e. Mora Morale le,, in turn turn,, can can be fata fatall lly y underm undermine ined d when when the security security of office officers rs in the possession of their office is unprotected against the arbitrary action of superior officers. Hence, basic in any civil service is a guarantee of security security of tenure, tenure, a guarantee guarantee against arbitrary impairment, whether total or partial of the right to continue in the position held. held.33 31 32 33

Persons occupying non-competitive positions are also covered by the guarantee of security of tenure. The distinctio distinction n between between competiti competitive ve and non-competi non-competitive tive is significan significantt only for purposes purposes of appointment. The termination of the official relation of offi offici cial als s and and empl employ oyee ees s hold holdin ing g prim primar aril ily y confid confident ential ial positi positions ons on the ground ground of loss loss of confidence can be justified because in that case their cessation from office involves no removal but

Bernas Primer at 387 (2006 ed.) Bernas Primer at 388 (2006 ed.) Bernas Primer at 378 (2006 ed.)


34


11

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expiration of the term of office office.. (Herna (Hernande ndez z v. Villegas, 14 SCRA 544, 1965)35

would would in effect effect circum circumven ventt the provis provision ion which which safeguards the tenure of office of those who are in the Civil Service. (Gloria v. CA, 2000)

Facts: Peti Petiti tion oner er a watc watchm hman an in the the offi office ce of the the provincial treasurer, was dismissed for the convenience of the province. He has no civil service eligibility. He sued for reinstatement. Held: Although petitioner is not a civil service eligible, this is not a ground to dismiss dismiss him anytime anytime without formal formal char charge ge.. The The posi positi tion on of watc watchm hman an fall falls s unde underr the the unclassif unclassified ied service. service. Posit Position ions s in the unclas unclassif sified ied servic service e are also also guaran guarantee teed d securi security ty of tenure tenure.. (Baquidra v. CFI, 80 SCRA 123) 36

5. Abolition of Office While abolition of office does not imply removal of the incumbent officer, this is true only where the abolition of office is done in good faith and not merely merely as a cover cover for a remova removall otherw otherwise ise not allowed by the Constitution. (Briones v. Osmena, 1958) Thus, for abolition of office to escape the taint of unconstitutionality, it must be made: 1. In go good fa faith; 2. Not for person personal al or politi political cal reason reasons; s; and and 3. Not Not in viol violat atiion of the the law. aw. (Roq (Roqu ue v. Ericta)

Q: Do appoin appointee tees s to the foreign foreign servic service e who do not belong to the Career Corps enjoy security of tenure like the Career Corp.? A: No. Political appointees in the foreign service possess “tenure coterminous with that of the appointing authority or subje ubject ct to his his plea pleasu sure re.” .” (Ast (Astra raqu quil illo lo et al v. Manglapus, 1990)

Note: Abol Abolit itio ion n of offi office ce,, even even if aris arisin ing g from from reorganization mandated by law must be justified by good good fait faith h and and publ public ic need need.. (Abr (Abrog ogar ar v. Garrucho, 1991) Moreover, abolition of an office created by law can only be done also by law. (Eugenio v. CSC, 1995)

Q: Binami Binamira ra was “desig “designat nated” ed” by the the Secret Secretary ary of Tourism Tourism as Manager of the Tourism Authority. Authority. The law, however, requires that the Manager be appointed by the President. Did Binamira acquire security of tenure? A: No, because he did no receive a valid appointment. (Binamira v. garucho, 1990) Q: Can one who does not have have qualif qualifica icatio tions ns for a position acquire security of tenure therein? A: No, security of tenure in an office is acquired only by one who has the qualifications for that office. (Dimayuga v. Benedicto , 2002)

6. Reorganization (1988 Bar Question) Abolition by law as a result of reorganization is a recognized cause for termination of a government employee.

Q: Are temporary appointees protected by the guarantee of security of tenure? A: No. they they may be remove removed d anytim anytime. e. (Mendi (Mendiola ola v. Tanc Tancin inco co,, 1973 1973)) The The new new Cons Consti titu tuti tion on now now says says:: “Temporary employees of the Government shall be given such such prot protec ecti tion on as may may be prov provid ided ed by law. law.”” (The (The provision is not self-executory)

Q: Does the President have the authority to reorganize the executive department? A: Yes. And this can include deactivation of offices. As far as bure bureau aus, s, agen agenci cies es or offi office ces s in the the exec execut utiv ive e depart departmen mentt are concer concerned ned,, the Presid President ent’s ’s power power of control control may justify justify him to inactivate inactivate the functions functions of a particular office, or certain laws may grant him the broad authority authority to carry out reorganiza reorganization tion measures. measures. (Buklod ng Kawaning EIIB v. Executive Secretary, 2001) 37

Q: What What is the extent extent of the the Presid President ent’s ’s discip disciplin linary ary authority over presidential appointees who belong to the career service? A: The power power is limite limited. d. Career Career servic service e office officers rs and employees who enjoy security of tenure may be removed only for any of the causes enumerated by law. (Larin .v. Executive Secretary, 280 SCRA 713)

7. Declaration of Office Vacant Q: Section 35 of RA 6715 declared all positions of the Commissioners, Executive Labor Arbiters and Labo Laborr Arbi Arbite ters rs of the the pres presen entt NLRC NLRC vaca vacant nt.. Petitioners question its constitutionality. A: Unconstitutional. While abolition by law as a result of reorganization is a recognized cause for termination of a government employee, it is not the same as a declaration that the office is vacant. RA 6715 6715 has effected effected no expres express s abolit abolition ion of the positi positions ons,, neithe neitherr an implie implied d abolit abolition ion (i.e., (i.e., an irreconcila irreconcilable ble inconsisten inconsistency cy between between the nature, nature, duties duties and functi functions ons of the petiti petitione oner’s r’s office offices s unde underr the the old old rule rules s and and those those of the the new new law) law) (Mayor v. Hon. Macaraig, 1991)

4. Transfers Permanent Transfer. The transfer of a permanent employee employee to another another permanent permanent position without the consent of the employee violates security of tenure. (Gloria. CA, 2000) Temporary Transfer. While a temporary transfer or assignm assignment ent of person personnel nel is permis permissib sible le even even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, removal, or is a scheme to lure him away from his permanent position, position, or designed designed to indirectly indirectly terminate his service, or force his resignation. Such 35 36

Bernas Primer at 379 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 370 (2006 ed.)


8. Preventive Suspension Pending administrative investigation, it is provided that that the employee employee charged charged shall shall be subjec subjectt to 37


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2. Purpose of the Prohibition Against Partisan Political Activity

preventive suspension but the same shall be lifted afte afterr nine ninety ty days days if he is not not a pres presid iden enti tial al appointee unless the delay in the conduct of the probe is imputable to him. (Book V(A), Sec. 46)

1. To prevent the members of the civil serv servic ice e from from usin using g the the reso resour urce ces s of the the government for the benefit of their candidates;

9. Back Wages When an employee is illegally dismissed, and his reinstatement is later ordered by the Court, for all inte intent nts s and and purp purpos oses es he is consi conside dere red d as not not having having left left his office office,, and notwit notwithst hstand anding ing the silence of the decision, he is entitled to payment of back salaries. (Del Castillo v. CSC, 1997)

2.

To insulate them from political retaliation from winning candidates they have opposed or not supported.40 3. Meaning of Partisan Political Activity As interprete interpreted d by the Civil Service Service Commission Commission,, partisan political activity means active support for or affiliation with the cause of a political party or candidate. candidate. This would include, among others, bein being g a cand candid idat ate e for for any any elec electi tive ve offi office ce or delega delegate te to any politi political cal conven conventio tion, n, being being an officer or member of any political committee, party or organization, delivering speeches, canvassing or soliciting votes or political support or contributions for any political party or candidate or, in general, becoming becoming actively identified identified with the success or failure failure of any candidate candidate or candidates candidates for election election to public office.41

But where the reinstatement is ordered by the court not as the result of exoneration but merely as an act of liberality of the Court of Appeals, the claim for backwage backwages s for the period period during which the employee was not allowed to work must be denied. The general general rule rule is that that a public public officia officiall is not entitled to compensation if he has not rendered any service. (Balitaosan v. DECS, 2003) The payment of backwages during the period of suspension of a civil servant who is subsequently reinstated is proper only if he is found innocent of the charges and the suspension is unjustified. (See Brugada v. Sec. of Education, 2005)

4 Admin Code of 1987 “No offi office cerr or empl employ oyee ee in the the Civi Civill Serv Servic ice, e, incl includ udin ing g memb member ers s of the the AFP, AFP, shal shalll enga engage ge directly or indirectly in any partisan political activity or take part in any election except to vote nor shall he use his official authority or influence to coerce the political activity of any other person or body. Nothin Nothing g herein herein provid provided ed shall shall be unders understoo tood d to prevent any officer or employee from expressing his views on current political problems or issues, or from mentioning the names of candidates for public office office whom he supports: supports: Provided, Provided, That public officers and employees holding political offices may take part in political and electoral activities but it shall be unlawful for them to solicit contributions from their subordinates or subject them to any of the acts involving subordinates prohibition in the Election Code.” (Book V(A), Sec. 56)

M. Partisan Political Activity 1. Coverage No office officerr or employ employee ee in the civil service service shall shall engage, directly or indirectly, in any electioneering or partisan political campaign.(§2(4)) The The mili milita tary ry esta establ blis ishm hmen entt is cove covere red d by this this provision. Article XVI, Section 5(3) provides that no member member of the military military shall shall engage engage direct directly ly or indirectly in any partisan political activity except to vote. But this prohibition applies only to those in the active military service, not to reservists. (Cailles v. Bonifacio, 65 Phil 328) Exceptions:

1. 2.

Particularly exempted from the prohibition agai agains nstt part partis isan an poli politi tica call acti activi vity ty are are 38 members of the Cabinet. Cabinet .

N. Right to Self-Organization The right to self-organization shall not be denied to government employees. (§2(5))

Public Public office officers rs and employ employees ees holdin holding g political offices (who are allowed to take part part in politi political cal and electo electoral ral activi activitie ties, s, except to solicit solicit contributi contributions ons from their subordinate subordinates s or commit commit acts prohibited prohibited under the Election Code) (Section 45 of Civil Service Law) 39

Thus, the Congress may provide, for example, that tempor temporary ary employ employees ees who acquir acquire e civil civil servic service e eligibility for the positions occupied by them shall be automatica automatically lly considere considered d permanent permanent appointees appointees thereto, thereto, or that temporary temporary employees employees may not be replaced during a fixed period except for cause, or shall be entitled to the same material benefits, such as leave privileges, during incumbency. incumbency .42 40

38


39

Antonio Antonio B. Nachura, Nachura, Outline/ Outline/Revie Reviewer wer in Political Political Law, 320 (2006)


Cruz, Philippine Political Law, p.298 (1995 ed; Santos v. Yatco, 106 Phil 745) 41 Section 14, Rule XVIII, Civil Service Rules. 42


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1. To inform the people of the exact amount a publ public ic func functi tion onar ary y is rece receiv ivin ing g from from the the government so they can demand commensurate services; 2. To preve prevent nt the publi public c func functi tion onar ary y from from dividi dividing ng his time time among among severa severall positi positions ons conc concur urre rent ntlly hel held by him him and and inep ineptl tly y performing his duties in al of them because he cannot devote to each the proper attention it deserves.

Q: May members of the Civil Service unionize? A: Yes. 1. Arti Articl cle e III, III, Secti Section on 8 guar guaran ante tees es the righ rightt of all “inclu “includin ding g those those employ employed ed in the publ public ic and and priv privat ate e sect sector ors, s, to form form unions…” 2. Arti Articl cle e IX-B, IX-B, Secti Section on 2(5) 2(5) states states that that “the righ rightt to self self-o -org rgan aniz izat atio ion n shal shalll not not be denied to government employees.” 3. Articl Article e XIII, XIII, Sect Section ion 3 guara guarante ntees es “the “the right right of all all work worker ers s to self self-o -org rgan aniz izat atio ion, n, collec collectiv tive e bargai bargainin ning g and negoti negotiati ations ons,, and and peac peacef eful ul conc concer erte ted d acti activi viti ties es,, including including the right to strike in accordance accordance with law.” Their right to strike, however, may be limited by law. law.43

2. What is Prohibited The prohib prohibiti ition on of the Consti Constitut tution ion was agains againstt double compensation or additional compensation, not double appointments. Hence, a second position may be held concurrently with the principal position as long as the two are not incompatible, but the incumbent incumbent cannot collect collect additional additional salaries for services services rendered rendered unless specifically specifically allowed by law. (Quimson v. Ozaeta)

Right to Strike Right Right to organi organize ze does does not include include the right to strike. Hence, the Court ruled that employees of SSS SSS and public public school school teacher teachers s do not have a constitutional right to strike. This does not mean, however, that they may not be given the right to strike by statute.44

Additi Additiona onall Compen Compensat sation ion.. There is additional compensation when for one and the same same office office for which which a compen compensat sation ion has been been fixe fixed d ther there e is adde added d to such such fixe fixed d compensation an extra reward in the form, for instance, of a bonus. This is not allowed in the absence absence of law specifically specifically authorizing authorizing such extra reward. (Thus, where an officer’s pay as provided provided by law was a fixed per fixed per diem, diem, the SC disallowed additional compensation in the form of cost of living allowances as well as incentive and Christmas bonuses. However, the Court was careful to point out that when a per diem or an allowance is given as reimbursement for reimbursement for expe expens nses es inci incide dent nt to the the disch dischar arge ge of an offi office cer’ r’s s duti duties es,, it is not not an addi additi tion onal al compensati compensation on prohibited prohibited by the Constituti Constitution. on. (Peralta v. Mathay, 1967))

O. Protection to Temporary Employees Temporary employees of the Government shall be given such protection as may be provided by law. (§2(6)) P. Standardization of Compensation The Congress shall provide for the standardization of comp compen ensa sati tion on of gove govern rnme ment nt offi offici cial als s and and employees, employees, including including those in government government-owned -owned or controlled controlled corporations corporations with original charters, charters, taking into account the nature of the responsibilities pertaining to, and the qualifications required for, their positions. (Art. IX-B, §5)

Double Compensation. Refers to two sets of compen compensat sation ion for two differ different ent office offices s held held concurrently by one officer. In the instances when holding a second office is allowed, when an office officerr accept accepts s a second second office office,, he can draw the salary attached to the second office only when he is specifically specifically authorized authorized by law to receive double compensation. compensation.45

Q. Double Compensation/ Additional Compensation No elective or appointive public officer or employee shal shalll rece receiv ive e addi additi tion onal al,, doub double le,, or indi indire rect ct compensation, unless specifically authorized by law , nor nor acce accept pt with withou outt the the cons consen entt of the the Congress, any present, emolument, office, or title of any kind from any foreign government.

3. Meaning of “Specifically Authorized By Law” Strict Strict Interpretat Interpretation: ion: “ The The authority required by the Consti Constitut tution ion to receiv receive e double double or additi additiona onall compen compensat sation ion is a specif specific ic author authority ity given given to a particular employee or officer of the government beca because use of pecu peculi liar ar or exce except ptio iona nall reas reason ons s warran warrantin ting g the paymen paymentt of extra extra or additi additiona onall compensation.” (Sadueste v. Surigao, 1941)

Pensions or gratuities shall not be considered as additional, double, or indirect compensation. (Art. IX-B, §8) 1. Reason for Prohibition 43 44

Bernas Primer at 385 (2006 ed.) Bernas Commentary, p 1027(2003 ed).


45


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(The above interpretation seems to be too strict. It seems in effect to require a special law for every instance of additional or double compensation. An obit obiter er dict dictum um in the the late laterr case case of Quim Quimso son n v. Ozaeta Ozaeta,, 1956, 1956, approve approves s of a more more libera liberall and perhaps administratively more rational approach.)46 Liberal Interpretation: “According “According to law, under certain circumstances, the President may authorize double double compen compensat sation ion in some some cases, cases, such such as gove govern rnme ment nt offi offici cial als s acti acting ng as memb member ers s with with compensation in government examining board…, or department department secretaries secretaries acting acting as members members of Board of Directors of government corporations, and in such such case cases s the the proh prohib ibit itio ion n agai agains nstt doub double le compen compensat sation ion is not observ observed. ed. If the Presid President ent approves the double compensation, well and good. The appointee appointee whose appointment appointment may then be regarded as valid from the beginning could receive extra compensation. If it is disapproved, then the appoi ppoint ntm ment ent wil will hav have to be wit withdra hdrawn wn or cancel cancelled led,, unless unless of course course,, the appoin appointee tee was willin willing g to serve serve withou withoutt compen compensat sation ion,, in which which case there would be no valid objection. (Quimson v. Ozaeta, 98 Phil 705, 709-710)) When a law says that money generated by a school may be used for “other programs/ programs/projec projects ts of the universi ty ty or co llllege,” such a law i s not autho authori riza zati tion on for for givin giving g addi additi tion onal al or doub double le compensation. compensation.47 Q: Upon optional retirement from the judiciary on April 1, 1992, Santos Santos was fully paid of his retiremen retirementt gratuity gratuity under RA 910, as amended. For five years thereafter he has been receiving a monthly pension. Thereafter he was appointed Director III of the defunct MMA. (1) Can he continue to receive his pension while receiving salary as director? A: Yes. The second paragraph of Section 8 means that a retire retiree e receiv receiving ing pensio pension n of gratui gratuity ty can contin continue ue to receiv receive e such such pensio pension n or gratui gratuity ty even even if he accept accepts s anot anothe herr gove govern rnm ment ent posi positi tion on to whic which h anot anothe her r compensation is attached. (2) Upon separation separation from MMA, can his separation separation pay under RA 7294 include include years of service in judiciary? judiciary? A: No. That would be double compensation for the same service in the judiciary for which he has already been paid. paid. Sect Sectio ion n 11 of RA 7924 7924 does does not not spec specif ific icall ally y authorize payment of additional compensation for years of govern governmen mentt outsid outside e of the MMA. (Santo (Santos s v. CA, CA, 2000)48

O. Oath of Allegiance All public officers and employees shall take an oath or aff affirm irmati ation to upho upholld and and defe defen nd this this Constitution. (Art. IX-B, §4)

46


47

Benguet State U v. Colting, G.R. No. 169637, June 8, 2007.

48


III. Commission on Elections Composition of COMELEC Qualifications of COMELEC Commissioners Appointment of COMELEC Commissioners Commissioners Independence of COMELEC Nature of COMELEC Powers Constitutional Powers and Objectives Statutory Powers of COMELEC En Banc and Division Cases Judicial Review Open Party System Representation Elections Section Section 1. (1) There There shall shall be a Commis Commissio sion n on Elec Electi tion ons s comp compos osed ed of a Chai Chairm rman an and and six six Commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have been candidates for any elect elective ive positi positions ons in the immedi immediate ately ly preced preceding ing elections. However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (2) The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven year years s with withou outt reap reappo poin intm tmen ent. t. Of thos those e firs firstt appointed, three Members shall hold office for seven years, years, two Member Members s for five years, years, and the last Members Members for three three years, years, without without reappointm reappointment. ent. Appointme Appointment nt to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any any Memb Member er be appo appoin inte ted d or desi design gnat ated ed in a temporary or acting capacity. Sec. 2. 2. The Commission on Elections shall exercise the following powers and functions: (1) Enforce and administe administerr all laws and regulations regulations relati relative ve to the conduc conductt of an electi election, on, plebis plebiscit cite, e, initiative, referendum, and recall. (2) Exercise Exercise exclusive exclusive original original jurisdicti jurisdiction on over all contes contests ts relati relating ng to the electi elections ons,, return returns, s, and qualifications of all elective regional, provincial, and city city offici officials als,, and appell appellate ate jurisd jurisdict iction ion over over all contests involving elective municipal officials decided by trial trial courts courts of general general jurisdicti jurisdiction, on, or involving involving elective barangay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (3) Decide, except those involving the right to vote, all all ques questi tion ons s affe affect ctin ing g elec electi tion ons, s, inc includi luding ng determinat determination ion of the number and location location of polling polling plac places es,, appo appoin intm tmen entt of elec electi tion on offi offici cial als s and and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforceme enforcement nt agencies agencies and instrumen instrumentalit talities ies of the Government, including the Armed Forces of the Philippines Philippines,, for the exclusive exclusive purpose of ensuring ensuring free free,, orde orderl rly, y, hone honest st,, peac peacef eful ul,, and and cred credib ible le elections.



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(5) Register, Register, after after sufficient sufficient publicatio publication, n, political political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the the Com Commiss missio ion n on Elec Electi tion ons. s. Reli Religi giou ous s denominati denominations ons and sects sects shall not be registere registered. d. Those which seek to achieve their goals through through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies agencies to political political parties, parties, organizati organizations, ons, coali coaliti tion ons, s, or cand candid idat ates es rela relate ted d to elec electi tion ons, s, constitute interference in national affairs, and, when accept accepted, ed, shall be an additi additiona onall ground ground for for the cancel ncella lati tion on of thei theirr regis egisttrat ration ion wit with the Commission, in addition to other penalties that may be prescribed by law. (6) File, upon a verifi verified ed compla complaint int,, or on its own initiative, petitions in court for inclusion or exclusion of voters voters;; invest investiga igate te and, and, where where approp appropria riate, te, prosec prosecute ute cases cases of violat violation ions s of electi election on laws, laws, including including acts or omissions omissions constitut constituting ing election election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent prevent and penalize penalize all forms of election frau frauds ds,, offe offens nses es,, malp malpra ract ctic ices es,, and and nuis nuisan ance ce candidacies. (8) Recommend to the President the removal of any offi office cerr or empl employ oyee ee it has has depu deputi tize zed, d, or the the impos impositi ition on of any other other discip disciplin linary ary action action,, for violat violation ion or disreg disregard ard of, or disobe disobedie dience nce to, its directive, order, or decision. (9) Submit Submit to the Preside President nt and the Congre Congress, ss, a comp compre rehe hens nsiv ive e repo report rt on the the cond conduc uctt of each each election, plebiscite, initiative, referendum, or recall.

Atty. ARIS S. MANGUERA rules rules,, and and regu regula lati tion ons s shal shalll be grant granted ed by the the President without the favorable recommendation of the Commission. Section 6. 6. A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Section 7. 7. No votes cast in favor of a political party, organizat organization, ion, or coalition coalition shall be valid, except except for those those regist registere ered d under under the the party party-lis -listt system system as provided in this Constitution. Sectio Section n 8. Politi Political cal parti parties, es, or organi organizat zation ions s or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other other simila similarr bodies bodies.. Howeve However, r, they they shall shall be entitled to appoint poll watchers in accordance with law. Sect Sectio ion n 9. Unle Unles ss othe otherw rwis ise e fixed ixed by the Commissi Commission on in special special cases, cases, the election period shall shall commen commence ce ninety ninety days before before the day of election and shall end thirty days thereafter. Section Section 10. 10. Bona Bona fide fide candid candidate ates s for any public public office shall be free from any form of harassment and discrimination. Section Section 11. 11. Funds certified by the Commission as necessary to defray the expenses for holding regular and and spec specia iall elec electi tion ons, s, pleb plebis isci cite tes, s, init initia iati tive ves, s, refere referenda nda,, and recall recalls, s, shall shall be provid provided ed in the regu regula larr or spec specia iall appr approp opri riat atio ions ns and, and, once once approv approved, ed, shall shall be releas released ed automa automatic tically ally upon upon certification by the Chairman of the Commission.

A. Composition of COMELEC Section 3. 3. The Commission on Elections may sit en banc or in two divisions, divisions, and shall shall promulgat promulgate e its rules of procedure in order to expedite disposition of elec electi tion on case cases, s, incl includ udin ing g prepre- proc procla lama mati tion on controversies. All such election cases shall be heard and decided in division, division, provided provided that motions motions for reconsideration of decisions shall be decided by the Commission en banc. Section 4. 4. The Commission may, during the election period period,, superv supervise ise or regula regulate te the enjoym enjoyment ent or util utiliz izat atio ion n of all all fran franch chis ises es or perm permit its s for for the the operation of transportation and other public utilities, media media of communicat communication ion or informatio information, n, all grants, grants, special special privileges privileges,, or concession concessions s granted granted by the Gove Govern rnme ment nt or any any subd subdiv ivis isio ion, n, agen agency cy,, or instrumen instrumentalit tality y thereof, thereof, including including any government government-owned owned or controlled controlled corporation corporation or its subsidiary. subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public info inform rmat atio ion n camp campai aign gns s and and foru forums ms amon among g candidates in connection with the objective of holding free free,, orde orderl rly, y, hone honest st,, peac peacef eful ul,, and and credi credibl ble e elections. Sect Sectio ion n 5. No pard pardon on,, amne amnest sty, y, paro parole le,, or suspension of sentence for violation of election laws,


Ther There e shal shalll be a Comm Commis issi sion on on Elec Electi tion ons s composed of a Chairman and six Commissioners. Commissioners. (Article IX-C, Section 1(1)) B. Qualifications of Members of COMELEC

1. 2. 3.

Natural-born citizens of the Philippines; At the time of their appointment, at least thirtyfive years of age; Hold Holder ers s of a col colle lege ge deg degre ree; e;

4.

Must Must not not have have been been cand candid idat ates es for for any any elective positions in the immediately preceding elections. A majority thereof, including the Chairman, shall be member members s of the Philippi Philippine ne Bar who have have been been engage engaged d in the practi practice ce of law for at least ten years. (Article IX-C, Section 1(1)) Q: For For purp purpos oses es of this this prov provis isio ion, n, what what does does “engaged in the practice of law ” mean? A: It means to engage in “any activity, in or out of court, court, which requires requires the application application of law, legal procedure, procedure, knowledge, knowledge, training training and experienc experience.” e.” (Cayetano v. Monsod, 1991)

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Atty. ARIS S. MANGUERA capacity. The choice of temporary chairman fall under the discretion of the Commission and cannot be exercised for it by the President. (Brillantes v. Yorac, 1990)

C. Appointment of COMELEC Members The Chairm Chairman an and the Commis Commissio sioner ners s shall shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment.

D. Independence of COMELEC For For viol violat atin ing g the the cons consti titu tuti tion onal al mand mandat ate e of independen independence ce of the COMELEC, Sections Sections 17.19 and 25 of RA 9189 (Overseas (Overseas Absentee Voting Act of 2003) insofar as they relate to the creation of Joint Joint Congre Congressio ssional nal Oversi Oversight ght Commit Committee tee and grant to it the power to review, revise, amend and approve approve the Implement Implementing ing Rules and Regulation Regulations s promul promulgat gated ed by the COMELE COMELEC, C, were were declar declared ed unconstitutional. (Makalintal v. COMELEC, 2003)

Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last last Member Members s for three years, years, withou withoutt reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any any Memb Member er be appo appoin inte ted d or desi design gnat ated ed in a temporary or acting capacity. (Article IX-C, Section 1(2))

E. Nature of powers of the COMELEC Like the CSC, the COMELEC is an administrative agency. As such, therefore, the power it possesses are exec execut utiv ive, e, quas quasii-ju judi dici cial al and and quas quasiilegislative. legislative. By exception, however, it has been given judicial power as judge with exclusive original jurisdiction over “all contest contest relating relating to the election, election, returns, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all cont contes estt invo involv lvin ing g elec electi tive ve muni munici cipa pall offi offici cial als s decide decided d by trial trial courts courts of genera generall jurisd jurisdict iction ion or involving elective barangay officials decided by trial courts of limited jurisdiction. jurisdiction.51

Q: What is the common starting point for appointees to the Commission? A: February 2, 1987, the day the new Constitution took effect. Thus, in reckoning the seven year term, counting must always start from February 2 even if the the appo appoin inte tee e took took offi office ce late later. r. This This way way the the staggering of the terms is p reserved. reserved.49 Facts: Respon Responden dents ts were were appoin appointed ted as ad interim interim Chairman and Commissioners of the COMELEC. As their appointments were not acted upon by the Commission on Appointme Appointments nts (COA), (COA), the President renewed their ad interim interim appointme appointments nts twice. twice. Petitioner Petitioner questioned questioned the validity of appointments on the ground that they violated the the cons consti titu tuti tion onal al proh prohib ibit itio ion n agai agains nstt temp tempor orary ary appointments and reappointments to the COMELEC. Held: An ad inte interi rim m appo appoint intme ment nt is a perm perman anen entt appointment, because it takes effect immediately and can no longer longer be withdr withdrawn awn by the Presiden Presidentt once once the the appointee has qualified into the office. The fact that is subje subject ct to conf confir irma mati tion on by COA COA does does not not alter alter its its permanent character. An ad interim appointment means it is a permanent appointment made by the President in the meantime that Congress is in recess. The prohibition prohibition on reappointme reappointment nt in Section Section 1(20, Article IX-C of the Constitution does not apply to a by-passed ad interim appointment, because there is no final final disapprova disapprovall under Article Article VII, VII, Section Section 16. Ther There e must must be conf confir irma mati tion on by the the COA COA of the the previo previous us appoin appointme tment nt before before the prohib prohibiti ition on on appointmen appointmentt can apply. apply. If an interi interim m appoin appointm tment ent cannot be renewed, the President will h esitate to make ad interim appointments because most of the appointees will effectively disapproved by mere inaction of the COA. This will nullify the constituti constitutional onal power of the President President to make ad interim appointments. (Matibag v. Benipayo,380 SCRA 49) 49)50

F. Constitutional Powers of COMELEC (under Article IX-C) (Read complete text of Section 2 above)

1.

Enforcement of election laws. (Section 2 (1), (4),(6) and (8)).

2. Decidi Deciding ng electi election on contes contests. ts. (Section 2(2)). 3. Decidi Deciding ng (Section 2(3)). 4.

Depu Deputi tiza zati tion on of agencies. (Section 2(4)).

5. Regi Regist stra rati tion on (Section 2(5))

50


LawLaw-en enfo forc rcem emen entt Poli Politi tica call

Part Partie ies. s.

Improvement of elections. (Section 2(7), (8) and (9)).

7. 8.

Power to Promulgate Rules (Section 3)

Supervision or regulation of franchises (Section 4)

9.

Power ower to recom ecomme mend nd exec execu utive tive clemency for violation of election laws and rules. (Section 5)

10. In spec specia iall case cases, s, powe powerr to fix fix the the election period. (Section 9)

Bernas Primer at 391 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 381 (2006 ed.)

of

Questi Questions ons..

6.

Q: In the absence of a Chairman of the COMELEC, the Presid President ent design designate ated d Commis Commissio sioner ner Yorac Yorac Acting Acting Chairman. Valid? A: No. No. Arti Articl cle e IX-C IX-C,, Sect Sectio ion n 1(2) 1(2) proh prohib ibit its s the appo appoin intm tmen entt of Memb Member ers s in a temp tempor orar ary y or acti acting ng 49

Admini Administr strati ative ve

51


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1. Enforcement of Election Laws Section Section 2(1): “The Commissio Commission n on Elections Elections shall xxx [e]nforce and administer all laws and regu regulat latio ions ns rela relati tive ve to the the cond conduc uctt of an election, plebiscite, initiative, referendum, and recall.” (See also Section 2(6) and (8))

Such authority includes:

1.

Promulgate rules and regulations for the implementation of election laws. (Gallardo v. Tabamo, 1993)

2.

Power to Ascertain identity of a political party party and its legiti legitimat mate e office officer. r. (LDP (LDP v. COMELEC)

3.

By virtue of such authority, the COMELEC can require compliance with the rules for the filing filing of certif certifica icates tes of candid candidacy acy,, prevent prevent or prosecute prosecute election election offenses, offenses, supervise supervise the registrati registration on of voters and the holding of the polls, and see to tie that the canvass of the votes and the proclamation of the winners are done in accordance with law.52

4.

5.

Such Such auth author orit ity y incl includ udes es the the powe powerr to annu annull an ille illega gall regi regist stry ry of vote voters rs,, to cancel a proclamation made by the board of canvassers canvassers on the basis of irregular irregular or incomplete canvass, and even to oust the candidate proclaimed notwithstanding that he has alread already y assume assumed d office office.. It may also reject nuisance candidates. candidates.53 Powe Powerr to annu annull an enti entire re muni munici cipa pall electi election on on the ground ground of post-el post-elect ection ion extensive powers terrorism. (COMELEC has extensive under the general general authority authority to “enforce “enforce and administer all laws relative to the conduct of elections.” (Biliwang v. COMELEC, 1982) (Here the COMELEC had found that it was impossible to distinguish the illegal from the valid returns. (Note (Note also that the COMELEC COMELEC annulled the elections after proclamation))

Power to promulgate rules and regulations for the the impl implem emen enta tati tion on of elec electi tion on laws laws.. The Commission may promulgate rules and regulations for the implem implement entati ation on of electi election on laws. laws. Such Such powe powerr is deeme deemed d impl implic icit it in the the powe powerr to implement regulations. (Gallardo v. Tabamo, 1993) Accordingly, where the subject of the action is the the enfo enforc rcem emen entt of the the prov provis isio ions ns of the the Omnibus Election Code, the case is within the exclusive jurisdiction of the COMELEC, not of the regular courts. (Gallardo v. Tabamo, 1993)

52 53

Cruz, Philippine Political Law, p. 308 (1995 ed).


Power to Ascertain identity of a political party and its legitimate officer. The power to enforce and and admi admini nist ster er laws laws rela relati tive ve to the the cond conduc uctt elections, elections, decide decide all questions questions affecting affecting elections, elections, register and regulate political parties, and ensure orderly elections, include the ascertainment of the identity of political party and its legitimate officers. (LDP v. COMELEC, 2004) (In this case the SC held held that that the COMELEC COMELEC erred in resolv resolving ing the controversy by granting official candidate status to the LDP candidates either the “Angara Wing” or the “Aquin “Aquino o Wing”, Wing”, becaus because e clearl clearly, y, it is the Party Party Chairman, who is the Chief Executive Officer of the Party, who has the authority to represent the party in all external affairs and concerns, and to sign documents for and in its behalf.)

The regular courts have no jurisdiction to entertain a petition to enjoin the construction of public works proj projec ects ts with within in 45 days days befo before re an elec electi tion on.. (Gallardo v. Tabamo, 218 SCRA 253) Section Section 2(4): “The Commissio Commission n on Elections Elections shall xxx [d]eputize, with the concurrence of the Presid President ent,, law enforc enforceme ement nt agenci agencies es and instrumentalities of the Government, including the Armed Armed Forces Forces of the Philip Philippin pines, es, for the exclus exclusive ive purpos purpose e of ensuri ensuring ng free, free, orderl orderly, y, honest, peaceful, and credible elections.” Section Section 2(8): “The Commissio Commission n on Elections Elections shall shall xxx xxx [r]eco [r]ecomm mmend end to the Presid President ent the remo remova vall of any any offi office cerr or empl employ oyee ee it has has depu deputi tize zed, d, or the the impos imposit itio ion n of any any othe other r disciplinary action, for violation or disregard of, or disobe disobedie dience nce to, its direct directive ive,, order, order, or decision.”

Article IX-C, Section 2(8); Section 52, Omnibus Election Code: The COMELEC has the power to recommend recommend the impositio imposition n of disciplina disciplinary ry action action upon an employee it has deputized for violation of its order. Since Since the COMELE COMELEC C can recomm recommend end that that disciplinary action be taken against an officer it had had depu deputi tize zed, d, it can can inves nvesti tiga gate te an administrative charge against such an officer to det determ ermine ine whet whethe herr or not not it shou should ld recommend that disciplinary action be taken against him. (Tan v. COMELEC, 237 SCRA 353) Section Section 2(6): “The Commissio Commission n on Elections Elections shall xxx [f]ile, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where appropriate appropriate,, prosecute prosecute cases of violations violations of electi election on laws, laws, includ including ing acts acts or omissi omissions ons consti constitut tuting ing electi election on frauds frauds,, offen offenses ses,, and malpractices.”



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Atty. ARIS S. MANGUERA decisions in election contests. It does not refer to prosecutory function of the Commission) The RTC on the other hand, is given exclusive authority to try and decide decide crimin criminal al cases cases involv involving ing electi elections ons.. When the COMELEC as prosecutor files a case befo before re a tria triall court court,, the the tria triall cour courtt acqu acquir ires es jurisdict jurisdiction ion and all subsequent subsequent dispositions dispositions of the case case must must be subjec subjectt to approv approval al by the court. court. Hence, Hence, the court court may order reinvestig reinvestigation ation and require require submissio submission n of records records of the preliminary preliminary examination to satisfy itself that there is probable cause cause for the issuanc issuance e of a warran warrantt of arrest arrest.. (People v. Hon. Delgado, 1990)

Juri Jurisd sdic icti tion on to inve invest stig igat ate e and and pros prosec ecut ute e cases. The COMELEC has exclusive jurisdiction to investigate and prosecute cases for violations of election laws. (De Jesus v. People, 120 SCRA 760) However, the COMELEC may validly delegate this power to the Provincial Fiscal [Prosecutor]. (People v. Judge Basilla, 179 SCRA 87) Finding of probable cause. It is well-settled that the finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discr iscre etion tion.. The The COM COMELEC LEC exer exerci cise ses s the constituti constitutional onal authority authority to investigat investigate e and where appr approp opri riat ate, e, pros prosec ecut ute e case cases s for for viol violat atio ion n of elec electi tion on laws laws,, incl includ udin ing g acts acts or omis omissi sion ons s cons consti titu tuti ting ng elec electi tion on,, frau fraud, d, offe offens nses es and and malpractices. (Baytan v. COMELEC, 2003)

The power of the Commission under Section 2(6) covers not just criminal cases but also admi admini nist stra rattive ive case cases. s. (Th (Thus, us, wher where e the the Commission has deputized a City Prosecutor as election election canvasser, canvasser, such Prosecutor Prosecutor cannot claim immunity from the power of the Commission on the argu argume ment nt that that he come comes s unde underr the the exec execut utiv ive e depa depart rtme ment nt.. The The Comm Commis issi sion on has has powe powerr all all persons required by law to perform duties relative to the the cond conduct uct of elec electi tion ons. s. Howe Howeve ver, r, unde under r Section Section 2(8), the Commission Commission may merely issue a recomm recommend endati ation on for discip disciplin linary ary action action to the President.)55

No obligation to search for evidence needed. COMELE COMELEC C has no obliga obligatio tion n to search search for the evidence needed. ”The task of the COMELEC as inve invest stig igat ator or and and prose prosecu cuto tor, r, acti acting ng upon upon any any electi election on offens offense e compla complaint int is not search searching ing and gather gathering ing of proof proof in suppor supportt of a compla complaint int for allege alleged d commis commissio sion n of an electi election on offens offense. e. A complainant, who in effect accuses another person of having committed an act constituting an election offense, has the burden, as it is his responsibility to foll follow ow thro throug ugh h his his accu accusa sati tion on and and prov prove e the the complaint.” complaint.”54

2. Deciding Election Contests Section Section 2(2): “The Commissio Commission n on Elections Elections shall shall xxx xxx [e]x [e]xer erci cise se exclusive original jurisdiction over over all contes contests ts relati relating ng to the electi elections ons,, return returns, s, and qualif qualifica icatio tions ns of all elective elective regional, regional, provincial, provincial, and city officials, officials, and appellate jurisdiction over all contests contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving electi elective ve barang barangay ay offici officials als decide decided d by trial trial courts of limited jurisdiction. Deci Decisi sion ons, s, fina finall orde orders rs,, or ruli rulings ngs of the the Commis Commissio sion n on electi election on contes contests ts involv involving ing elective municipal and barangay offices shall be final, executory, and not appealable. “

Subje Subject ct to author authority ity of trial trial judge. judge. When the Commissio Commission n acts as prosecutor, prosecutor, its actions and decisi decision on are subject subject to the authorit authority y of the trial judge. Even after the Commission has decided that an information be filed, a trial judge before whom the information is filed may still order reinvestigation. Author Authority ity to decide decide whethe whetherr to appeal appeal.. This power to investigat investigate e and prosecute election law violations includes the authority to decide whether or not to appeal the dismissal of a criminal case by the trial court. (COMELEC v. Silva, 286 SCRA 177) Q: The COMELEC is given authority to investigate and prosecute violations of the election law and Section 7 says that decisions, orders and rulings of the Commission may be reviewed only by the SC on certiorar certiorari. i. After After the preliminar preliminary y investigat investigation ion conducted conducted by COMELEC COMELEC lawyers and after after the COMELEC COMELEC approves the report report and orders orders the filing of a criminal case, may the trial court order a reinvestigation and require the presentation of the records records of the preliminary preliminary investigat investigation ion made by the COMELEC? A: Yes. The final orders, rulings and decision of the COMELEC reviewable on certiorari by the SC as provided by law are those rendered in actions of procee proceedin dings gs before before the the COMELE COMELEC C and taken taken cognizance of by said body in the exercise of its adjudi adjudicat catory ory or quasiquasi-jud judici icial al powers powers.. (such (such as 54

Kilosbayan v. COMELEC (1997)


Powers under Section 2(2):

1.

Exclusive original original jurisdict jurisdiction ion over over all all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials;

2.

Appellate Appellate jurisdicti jurisdiction on over over all all cont contes ests ts involving elective municipal officials decided by trial courts of general general jurisdicti jurisdiction, on, or involving involving elective elective barangay barangay officials decided by trial courts of limited jurisdiction. (The enumeration enumeration found found in Section Section 2(2) excludes jurisdiction over elections for the Sangguniang Kabataan. Jurisdiction over these is given to the DILG. (Alunan III v. Mirasol, 1997) The COMEL COMELEC EC shall shall exerci exercise… se… exclusive original jurisdiction over all contests relating to

55

Bernas Commentary, p 1055 (2003 ed).

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the the elec electi tion on retu return rns s or cert certif ific icat ate e of canv canvas ass. s. 61 (Pangilinan v. COMELEC, 228 SCRA 36)

the elections, elections, returns, returns, and qualifications qualifications of all elective regional, provincial, and city officials .56

Who decides problems involving “elections “elections,, returns, returns, and qualificat qualifications” ions” of candidates? Congressional Candidate: Once Once a winnin winning g candid candidate ate has been been procla proclaime imed, d, taken taken his oath, and assumed office as a Member of the Hous House e of Repr Repres esen enta tati tive ves, s, COME COMELE LEC’ C’s s jurisdicti jurisdiction on over election contests relating to his election, election, returns and qualifications qualifications ends, and and the the HRET HRET”s ”s own own juri jurisd sdic icti tion on begi begins ns (Aggabao v. COMELEC, 2005) Municipal Offices: In the case of municipal offi office ces; s; even even if the the case case bega began n with with the the COMELE COMELEC C before before procla proclamat mation ion before before the controversy is resolved, it ceases to be a preprocla proclamat mation ion contro controver versy sy and become becomes s a cont contes estt cogn cogniz izab able le by the the Cour Courtt of Firs Firstt Instance.57

In a cong congre ress ssio iona nall elec electi tion on,, the the losi losing ng candidate cannot file a petition for correction of mani manife fest st erro errors rs.. (Vin (Vinzo zons ns-C -Cha hato to v. COMELEC, 520 SCRA 166)62 Q: Does the COMELEC have authority to review contests involving the election of officers of a barangay federation? A: No. the power power of the COMELEC COMELEC is over over popula popular r elections. (Taule v. Secretary Santos, 1991) The COMELEC shall have …a ppellate jurisdiction over all contests involving elective municipal officials decide decided d by trial trial courts courts of genera generall jurisd jurisdict iction ion,, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Appellate Jursidiction. The COMELEC exercises appe appell llat ate e juri jurisd sdic icti tion on over over cont contes ests ts invo involv lvin ing g municipal or barangay officials as originally decided by regi region onal al or muni munici cipa pall tria triall cour courts ts,, and and its its decision decision in these cases shall be final, final, executory executory and not appealable

Q: What is the difference between the jurisdiction of the COMELEC before the proclamation and its jurisdiction after proclamation? A: The The diff differ eren ence ce lies lies in the the due due proc proces ess s implication implications. s. COMELEC’s COMELEC’s jurisdiction jurisdiction over a preproclamation controversy is administrative or quasi judic judicial ial and is govern governed ed by the the less less string stringent ent requ requir irem emen ents ts of admi admini nist stra rati tive ve due due proc proces ess s (altho (although ugh the the SC has insist insisted ed that that questi question on on “qualifications” should be decide only after a fulldress hearing). COMELEC’s jurisdiction over “contests” is judicial and is governed governed by the requirements requirements of judicial judicial process. Hence, even in the case of regional or provincial or city offices, it does make a difference whet whethe herr the the COME COMELE LEC C will will treat treat it as a prepreproclamation controversy or as a contest .58

Q: Sectio Section n 9 of RA 6679 6679 makes makes decisio decisions ns of a munic municipa ipall or metrop metropolit olitan an court court in a barangay election appealable to the regional trial court. Is this valid? A: No. The COMELEC COMELEC has exclusive exclusive appellate appellate jurisdict jurisdiction ion over all contests contests involving involving barangay elective elective officials decided by trial court of limited limited juris jurisdic dictio tion. n. The jurisd jurisdict iction ion of the COMELE COMELEC, C, however, is over questions of fact; questions of law go to the Supreme Court. (Flores v. COMELEC, 1990)

Powe Powerr to iss issue writs rits.. The appell appellate ate jurisdiction includes, by virtue of Section 50 of BP 967, the power to issue writs of certiorari, prohibition and mandamus. mandamus.63

Exclusive Exclusive Jurisdict Jurisdiction ion over pre-procla pre-proclamatio mation n cases. The The COME COMELE LEC C shal shalll have have excl exclus usiv ive e jurisdiction over all pre-proclamation controversies. (BP 881, Section 242) This should be construed as refe referr rrin ing g only only to regi region onal al,, prov provin inci cial al and and city city officials.(Pangilinan v. COMELEC) COMELEC)59

The The COME COMELE LEC C has has the the powe powerr to revi review ew decisi decisions ons of munici municipal pal courts courts on munici municipal pal election election contests. contests. And when when it does so, so, the entire entire case is not opened as what happens happens in appeals on criminal cases.64

RA 7166 Section 15 prohibits pre-proclamation contro controver versie sies s in nation national al office offices s (excep (exceptt on ques questi tion ons s invo involv lvin ing g the the comp compos osit itio ion n and and proceedings of the Board of Canvassers). 60

Period to Appeal from RTC. Appeal to the COMELEC from the RTC must be filed within 5 days from receipt of a copy of the decision. A motion for reconsideration of the RTC decision is a prohibited pleading, and does not interrupt the running of the period for appeal. (Veloria v. COMELEC)65

As regards regards national national offices, offices, No pre-proclam pre-proclamatio ation n case case is allo allowe wed d rega regard rdin ing g the the prep prepar arat atio ion, n, transmissi transmission, on, receipt, receipt, custody custody and appreciati appreciation on of 56

Dean Bautista: Decide questions affecting elections (but not to be voted for).

61

57

Jacinto Jimenez, Election Election Law 37 (2008). Jacinto Jimenez, Election Law 37 (2008).

58

59


62


63


64

60

Antonio B. Nachura, Outline/Reviewer in Political Law 330 (2006 ed.)


Bernas Commentary, p 1048 (2003 ed). Manzala v. Comelec, GR 176211m May 8, 2007.

65


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Under Under COMELE COMELEC C Rules Rules of Proced Procedure ure,, the mere mere fili filing ng of the the Noti Notice ce of Appe Appeal al is not not enough; it should be accompanied by payment of the correct amount of appeal fee, in order that the appeal may be deemed perfected. perfected.66

divests divests COMELEC of jurisdictio jurisdiction n in favor of the proper Electoral Tribunal – unless the proclamation was invalid.70 Plebiscites. The Comele Comelec c has jurisd jurisdict iction ion over over cases cases involv involving ing plebis plebiscit cites. es. Thus Thus where the the questi question on was whethe whetherr the electo electorat rate e of Taguig Taguig voted in favor of, or against the conversion of the municipality of Taguig into a highly urbanized city in the the pleb plebis isci cite te cond conduc ucte ted d for for the the purp purpos ose, e, the the Comele Comelec c correc correctly tly assume assumed d jurisdict jurisdiction ion.. The problem problem was not for for regular regular courts. courts. It was not a case calling for the exercise of judicial power since it did did not not invo involv lve e the the viol violat atio ion n of any any lega legall lly y demandable right and its enforcement. There was no plainti plaintiff ff or defendan defendantt in the case. case. It merely merely invo involv lved ed the the asce ascert rtai ainm nmen entt of the the vote vote of the the electorate of Taguig.71

Execution Pending Appeal. The COMELEC cannot deprive the RTC of its competence to order execution of judgment pending appeal, because the mere filing of appeal does not divest the trial court of its jurisdiction over a case case and the authorit authority y to resolv resolve e pendin pending g incidents. incidents. (Edding v. COMELEC, COMELEC, 246 SCRA 502) 502)67 Rationale. Such Such exce except ptio ion n is allo allowe wed d in election cases “to give as much recognition to the worth of the trial judge’s decision as that which which is initia initially lly ascribe ascribed d by the law to the procla proclama matio tion n of the board board of canvas canvasser sers” s”.. Indeed, to deprive trial courts of their discretion to grant execution pending appeal would “bring back the ghost of the ‘grab-the-proclamation, prol prolon ong g the the prot protes est’ t’ tech techni niqu ques es so ofte often n resorted to by devious politicians in the past in their their effort efforts s to perpet perpetuat uate e their their hold hold on an elective elective public office.” office.” (Santos (Santos v. COMELEC, COMELEC, 2003)68

Q: Does the Commissio Commission n have the power to transfer transfer municipalities form one congressional district to another for the purpose of preserving proportionality? A: No. This is not one of the broad power granted by Sectio Section n 2(2). 2(2). Neithe Neitherr is it what what is referr referred ed to by the the Ordinance Appended to the Constitution (Sections 2 and 3) aut authori horizi zing ng the the Comm Commis issi sion on to make make “ mino minor r adjustmen adjustments”. ts”. The deliberati deliberations ons of the Constituti Constitutional onal Commission on the subject clearly excluded the power to transfer transfer whole municipalit municipalities. ies. (Montejo (Montejo v. COMELEC, COMELEC, 1995)

It was held that RTC may grant a motion for execution pending appeal when there are valid and special reasons to grant the same such as: 1. The pu public in interest or or th the wi will of of the electorate; 2. The sh shortness of the re remaining portion of the term; 3. The length of o f ti t ime that th t he elec electi tion on cont contes estt has has been been pend pendin ing. g. (Navarosa v. COMELEC, 2003)

Power to Punish Contempt. The power to punish contempt can be exercised only in connection with judicial functions and not administrative functions. (Masangcay v. COMELEC, 6 SCRA 27) Deci Decisi sion ons, s, fina finall orde orders rs,, or ruli rulings ngs of the the Commis Commissio sion n on electi election on contes contests ts involv involving ing elective elective municipal municipal and barangay barangay offices offices shall be final, executory, and not appealable. appealable . “

The motion motion for execut execution ion pendin pending g appeal appeal should should be filed filed before before the expir expirati ation on of the period for appeal. (Relampos v. Cumba, 243 SCRA 757)

. (This This rule rule does does not conflict conflict with with the minimu minimum m appellate jurisdiction of the SC under Article VIII, Section 5(2), which covers only the final judgments and orders of courts of justice. The Commission is not a judicial judicial tribunal but only an administra administrative tive body.) It should be noted that, its decisions, orders and rulings rulings may be challe challenge nged d in a petiti petition on for certiorari with certiorari with the SC under Article IX-A, Section 7, on the ground of grave abuse of discretion.72

Q: Does the COMELEC have jurisdiction to issue writs writs of certiorar certiorari, i, mandamus mandamus,, quo warranto warranto or habeas corpus? corpus? A: Yes, Yes, it does, but only in aid of its appella appellate te jurisdicti jurisdiction on over election election protest protest cases involving electi elective ve munici municipal pal offici officials als decide decided d by courts courts of general jurisdiction. (This means that its jurisdiction is concurrent with that of the Supreme Court under Article VIII, Section 5(1). (Carlos v. Judge Angeles, 2000)69

The The non-a non-app ppea eala labl ble e char charac acte terr refe refers rs only only to questions of fact and not of law. Such decisions remain subject to the jurisdiction of the SC through the special civil action of certiorari under Rule 65 in accordance with Article IX-A, Section 7.(Rivera v. COMELEC, 1991)

Congressional Candidate. The general general rule rule is that the proclamation of a congressional candidate 66


3. Deciding Administrative Questions

67

Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006 ed.) 68 Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006 ed.)

Buac and Bautista v. Comelec, G.R. No. 155855, January 26, 2004.

69

72



70

Planas v Comelec, G.R. No. 167594, March 10, 2006.

71


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Q: What is the scope of power of the Commission over deputized officers? A: The power of the Commission over deputized officers under Section 2(6) covers not just criminal cases b ut also administrative cases. Thus, where the Commission has deputized a City Prosecutor as election canvasser, such Prosecutor cannot claim immunity form the power of the Commission on the argument that he comes under the executive department. The Commission has power over all persons required required by law to perform duties relative relative to the conduct of elections. However, under Section 2(8), the Commission may merely issue a recommendation for disciplina disciplinary ry action action to the President. President. (Tan v. COMELEC, COMELEC, 1994)

Section Section 2(3): “The Commissio Commission n on Elections Elections shall xxx [d]ecide, [d]ecide, except those involving involving the right to vote, all questions affecting elections, includ including ing determ determina inatio tion n of the number number and locat locatio ion n of polli polling ng plac places es,, appo appoin intm tmen entt of election officials and i nspectors, and registration of voters.”

Questi Questions ons on Right Right to Vote. Vote. The COMELEC COMELEC cannot decide the right to vote, which refers to the incl inclus usio ion n or excl exclus usio ion n of vote voters rs.. (200 (2001 1 Bar Bar Question) The Constitution prevents the COMELEC, in the exercise of its administrative powers and functions, functions, to decide questions questions involving involving the right to vote. (It may do so, however, in the discharge of its duties concerning registration of voters voters,, except except that its decisi decision on shall shall be subject to judicial review. Such power comes within its quasi-judicial authority and may be validly exercised as incidental to its powers of regulation.) regulation.)73

Q: What What is one one inst instan anc ce that that the the COME COMELE LEC C is subordinated to the President? A: Section 2(8) provides that the COMELEC may merely “recommend to the President the the removal of any officer officer or employee it has deputized, or the imposition of any discip disciplin linary ary action action,, for violat violation ion or disreg disregard ard of, or disobedience to, its decision, order, or directive. ”75

5. Registration of Political Parties Section Section 2(5): “The Commissio Commission n on elections elections shall xxx [r]egister, after sufficient publication, political political parties, parties, organizati organizations, ons, or coalitions coalitions which, in addition to other requirements, must pres presen entt their heir plat platfform orm or prog progra ram m of government; and accredit citizens' arms of the Com Commiss ission ion on Elect ections ions.. Reli eligiou gious s deno denom minat inatio ions ns and and sect ects shal shalll not not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or whic which h are are supp suppor orte ted d by any any forei oreign gn gove govern rnme ment nt shal shalll like likewi wise se be refu refuse sed d registration. Fina Financ ncia iall cont ontribut ibutio ions ns from rom forei oreign gn govern governmen ments ts and their their agenci agencies es to politi political cal parties, organizations, coalitions, or candidates related related to elections, elections, constitute constitute interfere interference nce in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.”

Change in polling places. While changes in the location of polling places may be initiated by the written petition of the majority of the voters, or by agreement of all the political parties, ultimately, it is the COMELEC that determines whether a change is necessary after due notice and hearing. (Cawasa v. COMELEC, 2002) The Supreme Court held that the contempt power conf confer erre red d upon upon the the COME COMELE LEC C by law law was was an inherently judicially prerogative and could not be exercised by it in connection with the discharge of its purely purely routin routinary ary or admini administr strati ative ve duties duties,, as distinguished from quasi-judicial duties. (Guevara v. COMELEC)

4. Deputization of Law Enforcement Agencies Section Section 2(4): “The Commissio Commission n on Elections Elections shall xxx [d]eputize, with the concurrence of the Presid President ent,, law enforc enforceme ement nt agenci agencies es and instrumentalities of the Government, including the Armed Armed Forces Forces of the Philip Philippin pines, es, for the exclus exclusive ive purpos purpose e of ensuri ensuring ng free, free, orderl orderly, y, honest, peaceful, and credible elections.“

Purpose of Registration.

1. 2. 3.

It shou should ld be stre stress ssed ed that that this this powe powerr may may be exercised only with the consent of the President, or negatively stated, may not be exercised without his permission. permission.74 Cruz, Philippine Political Political Law, p. 313 (1995 ed); Nachura: As an incident to its duties concerning registration of voters, it may decide decide a question question involving the right to vote, but its decision Antonio o B. Nachura Nachura,, shal shalll be subj subjec ectt to judic judicial ial revi review ew.. Antoni Outline/Reviewer Outline/Reviewer in Political Law 334 (2006 ed.) Bernas Commentary, p 1052 (2003 ed).


To qualify for accreditation, To be entitl entitled ed to the rights rights of politi political cal parties, a political party must be registered with the COMELEC (Section 60, Omnibus Election Code)

Reas Reason on for for pres presen enta tati tion on of plat platfo form rms s and and programs. It is essenti essential al that that politi political cal partie parties s pres presen entt their heir progr rogram ams s and and plat platfforms orms of governmen governmentt for the informati information on of the electorate whose support they are seeking as otherwise the voters may not properly and intelligently exercise

73

74

To acquire juridical personality

75


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thei theirr suff suffra rage ges. s. This This rule rule will will also also enab enable le the the Commis Commissio sion n to determ determine ine if the party party seekin seeking g registration is not entitled thereto because it is a reli religi giou ous s grou group, p, or is subv subver ersi sive ve in natu nature re or purpose, or does not recognize the Constitution, or being supported by a foreign government.

One candidate per party for each Political Party. The SC annulled the COMELEC resolution dividing the LDP into into “wings “wings”, ”, each each of which which nomina nominate te candid candidate ates s for every every electi elective ve positi position on and be enti entittled led to repr repres esen enttatio ation n in the elec electi tio on committees that the COMELEC create. The Court declared that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members of a political party should not be allowed to create a mock mocker ery y ther thereo eof. f. By acco accord rdin ing g both both wing wings s repres represent entati ation on in the electi election on commit committee tees, s, the COMELEC has eroded the significance of political parties and effectively divided the opposition. (LDP v. COMELEC)

Political Party. Section 80 of the 1965 Election Code and Section 22 of the 1971 Election Code defined defined a political party as “an organized group of person person pursui pursuing ng the same same politi political cal ideals ideals in a gove govern rnme ment nt and and incl includ udes es its its bran branch ches es and and divisions. divisions..” .” the 1978 Election Election Code adopted adopted the aforequoted definition by providing in Section 199 that “any other group of persons pursuing the same political ideals in the government may register with the Commission and be entitled to the same right and privileges.” (Geronimo v. COMELEC, 1981)76

Q: To register for purposes of the electoral p rocess, must an organization be a political party? A: No.77

Groups which cannot be registered as political parties: 1. Religi Religious ous denomi denominat nation ions s or or sect sects; s; 2. Thos Those e who who seek seek to achie achieve ve thei theirr goal goals s through violence or unlawful means; 3. Those Those who who refu refuse se to to uphol uphold d and and adher adhere e to the Constitution; and 4. Thos Those e supp suppor orte ted d by forei foreign gn gover governm nmen ents ts (Article IX-C, Section2(5)) Grounds for Cancellation of Registration. Under RA 7941, COMELEC may motu propio or upon a verified complaint of any interested party, refuse or canc cancel el,, aft after due due noti notice ce and hear hearin ing, g, the the registrati registration on of any national, regional regional or sectoral sectoral part party, y, orga organi niza zati tion on or coal coalit itio ion, n, on any any of the the following grounds: 1. It is is a re religious se sect or or de denomination, organi organizat zation ion or associ associati ation on organi organized zed for religious purposes; 2. Advocates violence or unlawful means to seek its goal; 3. It is a foreign party or organization; 4. It is receiving support from any foreig foreign n govern governmen ment; t; foreig foreign n politi political cal party, party, foundation foundation,, organizatio organization, n, whether whether directly directly or throug through h any of its officers officers or member members, s, or indire indirectl ctly y throug through h third third partie parties, s, for partis partisan an election purposes; 5. It vi violates or or fa fails to to co comply wi with la laws, rules and regulations relating to elections; 6. T de decla clares un untruthful st statements in in itits petition; 7. It ha has ce ceased to to ex exist for at at le least on one year; 8. It fa fails to to pa p articipate in in th the la last tw two preceding elections, or fails to obtain at least 2% of the the vote votes s cast cast unde underr the the part partyy-li list st system in the two preceding elections for the constituency in which it was registered.

Q: Is there there a distincti distinction on between between an accredited accredited political political party and a registered political p arty? A: The concept of accreditation no longer appears in the new Constitution. For purpose of the electoral process, all partie parties, s, organi organizat zation ions s and coalit coalition ions s are consid considere ered d equal. equal.78

6. Improvement of Elections Section Section 2(7): “The Commissio Commission n on Elections Elections shall xxx [r]ecommend to the Congress effective meas measur ures es to mini minimi mize ze elec electi tion on spen spendi ding ng,, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.”

The Omnibus Election Code has expanded the list of proh prohib ibit ited ed elec electi tion on prac practi tice ces, s, chan change ged d the the limita limitatio tions ns on the expenses expenses to be incurr incurred ed by poli politi tica call part partie ies s or cand candid idat ates es,, allo allows ws the the COME COMELE LEC C to refu refuse se to give give due due cour course se to certificat certificates es of nuisance nuisance candidates candidates and assures assures equal equal treatm treatment ent for all candid candidate ates s privil privilege eged d or not. not.79 Section Section 2(9): “The Commissio Commission n on Elections Elections shall shall xxx xxx [s]ub [s]ubmit mit to the the Presi Presiden dentt and the the Congre Congress, ss, a compre comprehen hensiv sive e report report on the conduct conduct of each election, plebiscite, plebiscite, initiative initiative,, referendum, or recall.”

The report mentioned here can be the basis of legislatio legislation n that may improve improve the conduct conduct of future elections.80 7. Power to Promulgate Rules of Procedure 77


78


79 76



80

Cruz, Philippine Political Law, p. 317 (1995 ed). Cruz, Philippine Political Law, p. 317 (1995 ed).

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newspaper newspaper columnists columnists from commenting commenting on the issues involved in the forthcoming plebiscite for the ratification of the organic law establishing the CAR.

Section 3: “The Commission on Elections may sit en banc banc or in two two divi divisi sion ons, s, and and shall shall promulgate promulgate its rules of procedure procedure in order to expedite disposition of election cases, including prepre- procla proclamat mation ion contro controver versie sies. s. All such such election cases shall be heard and decided in di vi vi si sion, p ro rovide d tha t motions for reconsideration of decisions shall be decided by the Commission en banc.”

Q: Does the power to regulate regulate media during during “election “election period period”” also also exten extend d to the period period of a plebis plebiscit cite e or referendum? A: Yes. Of essence to plebiscite and referenda is “fair submission.” Moreover, the formulation of the Constitution is more important in a sense than choice of men who will implement implement that charter. charter. Evidently Evidently,, therefor therefore, e, regulatory regulatory power during the period of plebiscite or referendum, is also intended. (Unido v. COMELEC, 1981)

COMELEC Rules v. Rules of Court. Should there be a conf confli lict ct bet between ween a rule rule of proc proced edur ure e promul promulgat gated ed by the Commissi Commission on and a Rule Rule of Court, if the proceeding is before the Commission , the Commissio Commission n rule rule should should prevai prevail; l; but if the proceeding is in court, the Rules of Court should prevail. ( Aruelo v. CA, 1993)

9. Power to Recommend Executive Clemency… Section Section 5: “No pardon, amnesty, amnesty, parole, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President wi th thout the favorable recommendation of the Commission.”

8. Supervision or Regulation of Franchises Section 4: “The Commission may, during the elec electi tion on peri period od,, supe superv rvis ise e or regu regula late te the the enjoym enjoyment ent or utiliz utilizati ation on of all franc franchis hises es or permits for the operation of transportation and other public utilities, media of communication or informatio information, n, all grants, grants, special special privileges, privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regu regula lati tion on shal shalll aim aim to ensu ensure re equa equall opportunity, and equal rates therefor, for public inform informati ation on campai campaigns gns and forums forums among among candidates in connection with the objective of holdin holding g free, free, orderl orderly, y, honest honest,, peacef peaceful, ul, and credible elections.”

Chavez v. COMELEC, 2004: The SC upheld the vali validi dity ty of Sect Sectio ion n 32, 32, Reso Resolu luti tion on No. No. 6520 6520,, providing providing that all materials showing the picture, picture, image or name of a person, and all advertisements on print, print, in radio radio or on televi televisio sion n showin showing g the image or mentioning the name of a person, who subseq subsequen uentt to the placem placement ent or displa display y thereo thereof f become becomes s a candid candidate ate for public public office office shall shall be immediate immediately ly removed, removed, otherwise the person and the the radi radio o stat statio ion n shal shalll be pres presum umed ed to have have conducted premature campaigning in violation of Section 80 of the Omnibus Election Code.

10. In Specia Speciall Cases, Cases, Power to Fix Election Election Period Sectio Section n 9: Unless Unless otherw otherwise ise fixed fixed by the Commis Commissio sion n in specia speciall cases, cases, the elect election ion period shall commence commence ninety days before the day day of elec electi tion on and and shal shalll end end thir thirty ty days days thereafter.

Election Period v. Campaign Period. Election period refers period refers to the period of time needed for administering an election. It can thus go beyond the date for the casting of ballots. ballots .81 Campaign period refers refers to the period period of active active soli solici cita tati tion on of vote votes. s. This This may may be set set by the the legi legisl slat atur ure e for for a peri period od less less than than the the elec electi tion on period.82 Camp Campai aign gn peri period od cann cannot ot exte extend nd beyond the election day .83 Q: Enumerate some specific recommendatory powers of COMELEC. A: Section 2(7), (8) and (9). (See ( See also Section 5)

E. Statutory Powers

1.

PPI PPI v. COME COMELE LEC, C, 244 244 SCRA SCRA 272: 272: The The SC invali invalidat dated ed the COMELE COMELEC C resolu resolutio tion n requir requiring ing news newspa pape pers rs to give give,, for for free free,, oneone-ha half lf page page newspaper space for use by the COMELEC. This was held to be an invalid exercise of the police power, there being no imperious public necessity for the taking of the newspaper space. SWS v. COMELEC, 181 SCRA 529: The SC held that this power may be exercised only over the media, not over practitioners of media. Thus, in this case the SC invalidated a COMELEC resolution proh prohib ibit itin ing g radi radio o and and TV comm commen enta tato tors rs and and I sweat, I bleed, I soar… Service, Sacrifice, Excellence

2.

3.

81

82 83

The COMELEC shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections. (BP 881, Section 52) Exerci Exercise se direc directt and immed immediat iate e supervi supervisio sion n and contro controll over over nation national al and local local offici officials als or employees. (BP 881, Section 52(a)). The The power power to auth author oriz ize e any memb member ers s of AFP, AFP, PNP, NBI to act as deputies during the period of campai campaign gn and ending ending 30 days days therea thereafte fter r when when in any any are are of the coun countr try y ther there e are are

Bernas Commentary, p 1062 (2003 ed). Bernas Commentary, p 1062 (2003 ed). Cruz, Philippine Political Law, p. 318 (1995 ed).

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4.


persons committing acts of terrorism. (BP 881, Section 52(b)). Promulgate rules and regulations implem implement enting ing provis provision ions s of laws laws which which the Commission is required to enforce. (BP 881 Section 52(c)).

5.

Power Power to summon summon parties parties to a contro controver versy sy pending before it. (BP 881, Section 52(d))

6.

Power to punish contempt. (BP 881, Section 52(d)) Powe Powerr to enforce enforce and and execut execute e its decis decisio ions ns,, directives, directives, orders and instructio instructions. ns. (BP 881, Section 52(f)) Powe Powerr to pres prescr crib ibe e forms forms to be used used in the the election, plebiscite or referendum. Powe Powerr to proc procur ure e any any supp suppli lies es,, equi equipm pmen ent, t, materi materials als or servic services es needed needed for holdin holding g of elections. (BP 881, Section 52(h))

7.

8. 9.

1. The el election in in an any po polling pl place ha has not bee held on the date fixed on account of force force majeur majeure, e, violen violence, ce, terror terrorism ism,, fraud fraud or other analogous causes; 2. The el election in in an any po polling pl place ha had been suspended before the hour fixed by law for the closing of the voting on account of force majeur majeure, e, violen violence ce terror terrorism ism,, fraud fraud or other other analogous cases; or 3. After the voting and during the preparation preparation and transmissi transmission on of the election returns or in the custody or canvass thereof such election results in a failure to elect on account account of force majeure, violence, violence, terrorism, terrorism, fraud fraud or other other analog analogous ous causes. causes. (Sison (Sison v. COMELEC, 1999; Pasandalan v. COMELEC, 2002) Conten Contents ts of Petiti Petition. on. The The SC held held that that for for COME COMELE LEC C to cond conduc uctt a hear hearin ing g on a veri verifi fied ed peti petiti tion on to decl declar are e a fail failur ure e of elec electi tion on,, it is necessary that the petition must show on its face two conditions: 1. That no voting has taken place in the precinct on the date fixed by law or, even if there there was voting voting,, the electi election on nevert neverthel heless ess results in a failure to elect; and

10. Power to prescribe use or adoption of the latest latest techno technolog logica icall Section 52(i))

device devices. s.

(BP (BP

881, 881,

11. Power to prescribe latest technological and electronic devices upon notice to accredited political parties and candidates not less than 30 days before. The COMELEC is authorized to use an AUTOMATED AUTOMATED ELECTION ELECTION SYSTEM for the proces process s of voting voting,, counti counting ng votes, votes, and canvassing of the results. (RA 8436, Section 6) 12. 12. Powe Powerr to carr carry y out out cont contin inui uing ng syste systema mati tic c campaign. (BP 881, Section 52(j)) 13. Power ower to enlis nlistt nonnon-pa part rtis isan an grou group p or organi organizat zation ions s of citize citizens ns (BP 881, 881, Sectio Section n 52(k))

14. Powe Powerr

to issu issue e sear search ch warr warran ants ts during election periods. (BP 881, Section 57(1)) 15. Power ower to stop stop any any elec electi tio on act activit ivity, y, or confiscate tear down, and stop any unlawful, libe libelo lous us,, misl isleadi eading ng or false alse elec electi tio on propaganda, after due notice and hearing. (BP 881, Section 57(2))

2.

The votes not cast would affect the results of the election. (Mitmug v. COMELEC, 230 SCRA 54) Thus, in this case, for failure of the petition to show the existence of the first condition, the COMELEC did not commit grave abuse of discretion when it dismissed the petition even without a hearing. G. Examples of Matters Not Powers/Jurisdiction Powers/Jurisdiction of COMELEC

16. Power

to inquire into the financial records of candidates and any organization or group of persons after due notice and hearing. (BP 881, Section 57(3))

17. Power to declare failure of election and call for special elections (RA 7166, Section 4)

18. Divide a province with only one legislative district into two districts for purposes of the the ele electio ction n of the the memb member ers s of the the Sangguniang Kabataan. (RA ( RA 7166, Section 3(b)) Power to Declare Failure of Elections The SC said that under BP 881, there are only three instances where a failure of elections may been declare, namely:


84

Within

the

1.

COMELEC has no power to decide questions “involving “involving the right to vote.” vote.” (Section (Section 2(3) Section 2(6) places cases involving “inclusion or exclusion of voters” under the jurisdiction of courts. courts.84

2.

The general rule is that the proclamation of a congressional candidate divests COMELEC of juris jurisdic dictio tion n in favor favor of the proper proper Electo Electoral ral Trib Tribun unal al – unle unless ss the the proc procla lama mati tion on was was invalid.85

3.

In the case of municipal offices; even if the case case bega began n with with the the COME COMELE LEC C befo before re proc procla lama mati tion on befo before re the the cont contro rove vers rsy y is resolved, it ceases to be a pre-proclamation con controversy and becomes a contest cognizable by the Court of First Instance. Instance .86


85

Planas v Comelec, G.R. No. 167594, March 10, 2006.

86


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4.

Atty. ARIS S. MANGUERA of the divisi division on agree. agree. (Soria (Soriano no et al v Comelec, GR 164496-505, April 2, 2007). If a case which should go to the Comelec en banc banc is erro errone neou ousl sly y file filed d with with a division, it may automatically be elevated to the the Comel Comelec ec en banc. banc. This This is not provid provided ed for in the Comelec Comelec Rules of Proc Proced edur ure, e, but but such such acti action on is not not prohibited. prohibited. (Mut (Mutil ilan an v Come Comele lec, c, G.R. 1712468, April 2, 2007.)

The The COME COMELE LEC C has has no powe powerr to make make a reap reappo port rtio ionm nmen entt of legi legisl slat ativ ive e dist distri rict cts. s. (Montejo v. COMELEC)

5.

The COMELEC cannot prohibit radio and TV commentators and newspaper columnists from commen commentin ting g on the issues issues involved involved in the forthcoming plebiscite for the ratification of the organi organic c law establ establish ishing ing the CAR. (PPI (PPI v. COMELEC) 6. The The COMEL COMELEC EC cann cannot ot depr depriv ive e the RTC RTC of its its competence competence to order execution execution of judgment pendin pending g appeal appeal,, becaus because e the mere mere filing filing of appeal appeal does not divest divest the trial trial court court of its jurisdiction over a case and the authority to reso resolv lve e pen pending ding inci incide dent nts. s. (Edd (Eddin ing g v. COMELEC, 246 SCRA 502)

2.

The rule that all election cases, including preproclamat proclamation ion cases, cases, should should first be heard and decided by the COMELEC in division applies only only when when the the COME COMELE LEC C exer exerci cis ses its its adjudi adjudicat catory ory or quasiquasi-jud judici icial al funct function ions, s, not when when it exer exerci cise ses s pure purely ly admi admini nist stra rati tive ve functions. functions. (Municipal (Municipal Board Board of Canvasser Canvassers s v. COMELEC, 2003) The conduct of a preliminary investigation before the filing of an information in court does does not not inv involv olve the the exer exerc cise ise of adju adjudi dica cato tory ry func functi tion on.. (Bali (Balind ndon ong g v. COMELEC, 2003) Election cases must first be decided in division. Hence the Comelec en banc may not decide an election election case still still pending pending before before a division. division. (Muñoz (Muñoz v Comelec, Comelec, G.R. G.R. 170678 170678,, July July 17, 2006.)

H. Powers of Chairman Facts: Respon Responden dentt as Chairm Chairman an of the COMELE COMELEC C remove removed d petiti petitione onerr as Direct Director or of the Educat Education ion and Information Department and reassigned her to the Law Department. Petitioner argued that only the COMELEC act acting ing as a coll ollegia egiall body body can aut author horize ize her her reassignment.

Held: Under Section 7(4), chapter 2, Subtitle C, Book V of the Revised Administrati Administrative ve Code, the Chairman COMELEC is vested with power to make make temp tempor orar ary y assi assign gnme ment nts, s, rota rotate te and and transf transfer er person personnel nel in accord accordanc ance e with with the pro provi visi sion on of the the Civi Civill Serv Servic ice e Law Law . In the exer exerci cise se of this this powe power, r, the the Chai Chairm rman an is not not requ requir ired ed by law law to secu secure re the the appr approv oval al of the the COMELEC en banc. (Matibag v. Benipayo) 87 I. En Banc/ Two Divisions The Commission on Elections may sit en banc or in two divisions, divisions, and shall promulgate promulgate its rules of procedure procedure in order to expedite disposition of election cases, including pre- proclamation controversies. All such election cases shall be heard and decided in division , provided that motions for reconsideration of decisions shall be decided by the Commission en banc. (Article IX-C, Section 3)

The last senten sentence ce of Sectio Section n 3 prescr prescribe ibes s two important rules: 1. Motions for reconsideration are decided en banc. But a decision en banc is required only when the subject for reconsideration is a “decision,” that is, a resolution of substantive issues. Thus, reconsideration of a dismissal based based on lack of interest may be heard in division. (Salazar v. COMELEC, 1990) However , while a motion to reconsider an interlocutory order of a division should be resolved by the division which issued the interlocutory order, it may be referred referred to the Comelec Comelec en banc if all the members members 87



Electi Election on case cases s are deci decided ded in divi divisio sion. n.

Cases which must first be heard and decided in division: 1. All elect election ion cases cases,, includi including ng pre-pr pre-procl oclama amatio tion n cont contes ests ts,, orig origin inal ally ly cogn cogniz izab able le by the the Comm Commis issi sion on in the the exer exerci cise se of its its powe powers rs under Section 2(2) of Article IX-C. 2. Peti Petiti tion on to cancel cancel a cert certif ific icat ate e of candi candida dacy cy rests with the COMELEC in division, not he COMELEC en banc. (Bautista v. COMELEC, 2003) 3. Cases Cases appea appealed led from from the the RTC RTC or MTC. MTC. (Abad (Abad v. COMELEC, 1999) 4. Peti Petiti tion on for for certio certiora rari ri from from a deci decisi sion on of the RTC (or MTC).(Soller v. COMELEC, 2000) Cases by En Banc

1.

Motions for reconsideration of “decisions”. (Section 3, Article IX-C) 2. Case Cases s that that invol involve ve the the exerc exercis ise e of purely purely administrative functions. COMELEC en banc may directly • assu assume me juri jurisd sdic icti tion on over over a peti petiti tion on to correct manifest errors in the tabulation or tallying of results (Statement (Statement of Votes) by the the Boar Board d of canv canvas asse sers rs.( .(To Torr rres es v. COMELEC) State Statemen mentt of Votes Votes is merely a tabulation per precinct of the votes votes obtain obtained ed by the candid candidat ates es as reflected in the election returns. What is involved is simple arithmetic. In making the correction in the computation, the Boar Board d of Canv Canvas asse sers rs acts acts in an admi admini nist stra rati tive ve capac capacit ity y unde underr the the o

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cont ontrol rol and super uperv visio ision n of the COMELEC. Pursuant to its cons consti titu tuti tion onal al func functi tion on to deci decide de ques questi tion ons s affe affect ctin ing g elec electi tion ons, s, the the COMELE COMELEC C en banc banc has authorit authority y to reso resolv lve e any any ques questi tion on pert pertai aini ning ng to proceedings of the Board of Canvassers. (Mastura v. COMELEC)

Atty. ARIS S. MANGUERA Section Section 8: Parties…registered under the party-list system…shall system…shall be entitled to appoint poll watchers in accordance with law.

I. Representation Politi Political cal partie parties, s, or organi organizat zation ions s or coalit coalition ions s registered under the party-list system, shall not be repres represent ented ed in the voters voters'' regist registrat ration ion boards boards,, boar boards ds of elec electi tio on insp inspec ecto tors rs,, boar boards ds of canvassers, or other similar bodies. However, they shal shalll be enti entitl tled ed to appo appoin intt poll poll watc watche hers rs in accordance with law. (Article IX-C, Section 8)

The power of the COMELEC to prosecute prosecute cases of violation violation of election election laws involves the exercise of admi admini nist stra rati tive ve powe powers rs whic which h may may be exercised exercised directly by the COMELEC en banc. (Baytan v. COMELEC, 2003) •

Q: Does the COMELEC COMELEC en banc have jurisdiction jurisdiction to decide election cases? A: No. No. This This powe powerr pert pertai ains ns to the the divi divisi sion ons s of the the Commission. Any decision by the Commission en banc as regard regards s elect election ion cases cases decide decided d by it in the the first first instance is null and void. (Soller v. COMELEC, 2000)

J. Elections 1. Election Period Unle Unless ss othe otherw rwis ise e fixe fixed d by the the Comm Commis issi sion on in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter . (Article IX-C, Section 9)

Q: When is hearing by division required? A: It is only in the exercise of its adjudicatory or quasi judicial powers that the COMELEC is mandated to hear and decide cases first by division and then, upon motion for recons reconside iderat ration ion,, by the COMELE COMELEC C en banc. banc. The conduct of a preliminary investigation before the filing of an information in court does not involve the exercise of adjudicatory function. (Baytan v. COMELEC, 2003)

The The elec electi tion on peri period od is dist distin ingu guis ishe hed d from from the the campaign period in that the latter cannot extend beyond the election day. day.88 2. Equal Protection of Candidates Bona fide candidates for any public office shall be free from any form of harassment and discrimination. (Article IX-C, Section 10)

Q: Must Must a motion motion for reconsid reconsidera eratio tion n of an order order of dismissal for lack of interest due to the failure of petitioner or counse counsell to appear for hearin hearing g be review reviewed ed by the the COME COMELE LEC C en banc banc or may may it be cons consid ider ered ed by a division? A: It may may be cons consid ider ered ed by a divi divisi sion on.. What What the the Constitution says must be heard en banc are motions for recons reconside iderat ration ion of “decis “decision ions, s,”” that that is resolu resolutio tions ns of substantive issues. The described dismissal was not a decision. (Salazar v. COMELEC, 1990)

Q: Does Section 10 give candidates immunity from suit? A: No.89 Q: Give example of discrimination. A: Unequa Unequall treatm treatment ent in the the availm availment ent of media media facilities. facilities.90

Q: Is the rule on preferential disposition of election cases suggested by Article IX-A, Section 7 and the requirement in Section 257 of the Omnibus Election CODE that the COMELEC shall decide all election cases brought before it within ninety days from the date of submission submission a hard and firm rule? A: No. Considering the tribunal’s manpower and logistic limi limita tati tions ons,, it is sens sensib ible le to treat treat the the proc proced edur ural al requir requireme ements nts on deadli deadlines nes realis realistic ticall ally. y. (Alvar (Alvarez ez v. COMELEC, 2001)

3. Funds/ Fiscal Autonomy Funds certified by the Commission as necessary to defray the expenses for holding regular and special elections, elections, plebiscite plebiscites, s, initiativ initiatives, es, referenda, referenda, and recalls, shall be provided in the regular or special appr approp opri riat atio ions ns and, and, once once appr approv oved ed,, shal shalll be released released automatica automatically lly upon certification certification by the Chairman of the Commission. (Article IX-C, Section 11)

H. Party System K. Review of Decisions Section 6: A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article. Section 7. 7. No votes cast in favor of a political party, party, organi organizat zation ion,, or coalit coalition ion shall shall be valid, valid, except except for those those registere registered d under the party-list party-list system as provided in this Constitution. (Relate this to Article VI, Section 5 par.2 providing for 20% of the seats in the House of Representatives Representatives being allocated to party-list representatives)


Articl Article e IX-A, IX-A, Secti Section on 7 . xxx Unless Unless otherw otherwise ise prov provid ided ed by this this Cons Consti titu tuti tion on or by law, law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. 88


89


90


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Supreme Court. Only decisions of the COMELEC en banc may be brought to the SC on certiorari (as a special civil action under Rule 65). What is contemplated by the term final orders, ruli ruling ngs s and and deci decisi sion ons s of COME COMELE LEC C reviewable by certiorari by certiorari by the SC as provided by law law are are thos those e rend render ered ed in acti action ons s or proceedings proceedings before the COMELEC COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers91. (Filipinas Engineering and Machine Shop v. Ferrer, 135 SCRA 25) The certiorari jurisdiction of the SC does not refer to purely executive powers such as those which relate to the COMELEC’s appointing power.92 (Ambil v. COMELEC, 2000) Trial Trial Courts Courts.. Dete Determ rmin inat atio ions ns made made by the the COMELEC COMELEC which are merely merely administra administrative tive (not judic judicial ial)) in charac character ter,, may be challe challenge nged d in an ordinary ordinary civil action before before trial courts. (Filipinas (Filipinas Engineering & Machine Shop v. Ferrer) Thus, Thus, where where what what was assailed assailed in the petition for certiorari was the COMELEC’s choice choice of appoin appointee tee,, which which is a purely purely administrative duty, the case is cognizable by the RTC (or the CSC as the case may be). •

IV. Commission on Audit Composition of COA Qualifications of Commissioners of COA Appointment of Commissioners Powers and Duties of COA Jurisdiction Sect Sectio ion n 1. (1) (1) Ther There e shal shalll be a Comm Commis issi sion on on Audit Audit composed of a Chairman and two Commissioners, who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, Certified Public Accountants with not less than ten years of auditing experience, or members of the Philippine Bar who have been engaged in the practice of law for at least ten years, and must not have been been candid candidate ates s for any electi elective ve positi position on in the elections immediately preceding their appointment. At no time shall shall all Members Members of the Commiss Commission ion belong belong to the same profession.


Commission on Audit is composed of a Chairman and two Commissioners. B. Qualifications of Commissioners

1. 2. 3.

Natural-born citizens of the Philippines; At the time of their appointment, at least thirtyfive years of age; Certified Public Accountants with not less than ten years of auditing experience, experience, or members members of the Philippine Bar who have been engaged in the practice of law for at least ten years;

4.

Must Must not not have have been been cand candid idat ates es for for any any elective position in the elections immediately preceding their appointment. At no time shall all Members of the Commission belong to the same profession.

C. Appointment of Commissioners Section 1(2) The Chairman and the Commissioners shall be appo appoin intted by the the Pres Presid iden entt with with the the cons consen entt of the the Commis Commissio sion n on Appoin Appointm tment ents s for a term term of seven seven years years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and the other Commissioner for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. In no case case shall shall any Member Member be appoin appointe ted d or design designate ated d in a temporary or acting capacity.

D. Powers and Duties of COA Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses uses of funds and proper property, ty, owned owned or held held in trust trust by, or pertaining pertaining to, the Governmen Government, t, or any of its subdivisions, subdivisions, agencies, or instrumentalities, including government-owned or controlled controlled corporation corporations s with original charters, charters, and on a postpostaudit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution; (b) autonomous state colleges and universities; (c) other government-ow government-owned ned or controlled controlled corporations corporations and their subsidiaries; and

A. Composition of COA

91

Thus, a person whose certificate of candidacy is rejected or canceled by the COMELEC on the ground, say, that he does not possess the required qualifications, may elevate the matter on certiorari to the Supreme Court. ( Cruz, Philippine Political Law, p. 319 (1995 ed). 92 Hence, questions arising from the award of a contract for the construction of voting booths can be brought b efore a trial court.


(d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of the audited agencies is inadequate, the the Comm Commis issi sion on may may adop adoptt such such meas measure ures, s, incl includ udin ing g temp tempor orar ary y or spec specia iall prepre-au audi dit, t, as are are nece necess ssar ary y and and appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto.

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(Where the internal control system of audited agencies is inadequate, the Commission may adopt such measures, measures, including temporary temporary or spec specia iall prepre-au audi dit, t, as are are nece necess ssar ary y and and appr approp opri riat ate e to corr correc ectt any any defi defici cien enci cies es.. Moreover, Moreover, even in cases where pre-audit is allo allowe wed d and and prepre-au audi ditt has has alre alread ady y been been performed, performed, the Commission Commission is not estopped from making a post-audit.)

(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regu regula lati tion ons, s, incl includ udin ing g thos those e for for the the prev preven enti tion on and and disa disall llow owanc ance e of irre irregu gula lar, r, unne unnece cess ssar ary, y, exce excess ssiv ive, e, extrav extravaga agant, nt, or uncons unconscio cionab nable le expend expenditu itures res or uses uses of government funds and properties.

1. General Function of COA It is the the func functi tion on of the the COA COA to exam examin ine e the the accu accura racy cy of the the reco record rds s kept kept by acco accoun unta tabl ble e officers officers and to determine determine whether expenditur expenditures es have have been been made made in conf confor ormi mity ty with with law. law. It is therefore through the Commission on Audit that the people can verify whether their money has been properly spent.93

Private Private Auditors. Auditors. Public Public corporation corporations s may empl employ oy priv privat ate e audi audito tors rs.. The The clea clearr and and unmistakable conclusion from a reading of the entire entire Section Section 2 is that the COA's COA's power power to examine examine and audit is non-exclusiv non-exclusive. e. On the other hand, the COA's authority to define the scope of its audit, promulgate auditing rules and regula regulatio tions, ns, and disall disallow ow unnece unnecessa ssary ry expenditures is exclusive. Howeve However, r, as the consti constitut tution ionall ally y mandat mandated ed auditor of all government agencies, the COA's findings findings and conclusions conclusions necessarily prevail over those of private auditors, at least insofar as govern governmen mentt agenci agencies es and offici officials als are concerned.96

2. Classification of COA’s Functions 94 1. To ex e xamine an a nd au a udit al all fo f orms of of government revenues; 2. To ex e xamine an a nd au a udit al all fo f orms of of government expenditures; 3. To settle government accounts; 4. To de define th the sc scope of of te techniques fo for its own auditing procedures; 5. To promulgate accounting and audi auditi ting ng rule rules s “inc “inclu ludi ding ng thos those e for for the the prev preven enti tion on and and disa disall llow owan ance ce of irre irregu gula lar, r, unne unnece cess ssar ary, y, exce excess ssiv ive, e, extr extrav avag agan ant, t, or unconscionable expenditures,”; 6. To decide administrative cases involving expenditures of public funds.

Compromise Agreement. The participation by the the City City in negot negotiat iatio ions ns for for an amic amicab able le sett settle leme ment nt of a pend pendin ing g liti litiga gati tion on and and its its eventual execution of a compromise agreement relati relative ve theret thereto, o, are indubi indubita tably bly within within its authority and capacity as a public corporation, and a compromise of a civil suit in which it is involv involved ed as a party party is a perfec perfectly tly legitimat legitimate e transa transacti ction, on, not only only recogn recognize ized d but even even encour encourage aged d by law. law. Thus, Thus, COA commit committed ted grave grave abuse abuse of discretion discretion when it disallowed disallowed the City’s City’s approp appropria riatio tion n of P30,0 P30,000 00 made made conformably with the compromise agreement. (Osmena v. COA, 238 SCRA 463)

To examine and audit all forms of government expenditures; Post-audit. The provision on post-audit is a recognition of the fact that there are certain gov governm ernmen entt inst instiitut tutions ions whic which h can can be hamp hamper ered ed in thei theirr oper operat atio ion n by prepre-au audi ditt requirements. requirements.95

Salary Voucher. The duty to pass in audit a salary salary voucher voucher is discretion discretionary. ary. (Gonzales (Gonzales v. Provincial Board of Iloilo, 12 SCRA 711)

Post-audit Authority. The Commission Commission has only post-audit authority over: 1. Cons Consti titu tuti tion onal al bodi bodies es,, comm commis issi sion ons s and and offi office ces s that that have have been been gran grante ted d fisca fiscall autonomy under the Constitution; 2. Autonomous state colleges and universities; 3. Other ther gover overnm nme ent-o nt-own wned ed cont contro roll lled ed corporations and their subsidiaries; 4. Such Such non-go non-gover vernme nmenta ntall entiti entities es receiv receiving ing subsid subsidy y or equity equity,, direct directly ly or indire indirectl ctly, y, from from or throug through h the govern governmen ment, t, which which are required required by law or by the granti granting ng instit instituti ution on to submit submit to such such audit audit as a condition of subsidy or equity. 93


94


95



The SC held that the COA has the power to overrule the NPC (National Power Corporation) Genera Generall Counse Counsell on post-a post-audi uditt measur measures es relati relative ve to the determ determina inatio tion n of whethe whetherr an expe expend ndit itur ure e of a gove govern rnme ment nt agen agency cy is irre irregu gula lar, r, unne unnece cess ssar ary, y, extr extrav avag agan antt or unconscionable. Q: May May COA in the the exerci exercise se of its auditing auditing function function,, disallow the payment of backwages to employees illegally dismissed and say that the responsibility belongs to the official who dismissed them in bad faith? A: No. COA cannot say that the responsibility belongs to the official who made the illegal dismissal dismissal when such offi offici cial al has has not not been been hear heard. d. Besi Beside des, s, paym paymen entt of backwages is not an irregular, unnecessary, excessive or extravagant expense. (Uy et. al. v. COA, 2000)

96

DBP v. COA, G.R. No. 88435. 88435. January 16, 2002

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Q: Does the power of the Commission extend to nonaccountable officers? A: Yes. Yes. The Commis Commissio sion n has author authority ity not just just over over accoun accountab table le offic officers ers but also also over over the office officers rs who perf perfor orm m func functi tion ons s rela relate ted d to acco accoun unti ting ng such such as verif verifica icatio tion n of evalua evaluati tions ons and comput computati ation on of fees fees collectible, and the adoption of internal rules of control. (An Evaluator/Computer, for instance is an indispensable part of the process of assessment assessment and collection collection and comes mes withi ithin n the the scop scope e of the Commi ommis ssion sion’s ’s

Decide Money Claims. The COA can decide money claims based on law. But if a money claim is denied by a law, COA has no authority to pass judgment on the constitutionality of the law. law.100 1998 Bar Question (Money Claims) Q: The The Depa Depart rtme ment nt of Nati Nation onal al Defe Defens nse e ente entere red d int into a cont contra ract ct with with Rai Raintre ntree e Corporation for the supply of ponchos to the AFP, stipulating that, in the event of breach, action action may be filed filed in the proper proper courts courts in Mani Manila la.. Supp Suppos ose e the the AFP AFP fail fails s to pay pay for for delivered delivered poncho ponchos, s, where where must must Raintreee Raintreee Corporation file its claim? Why? A: Raintree Corporation must file its claim with the COA. Under Article IX-D, Section 2(1), the COA COA has has the the auth author orit ity y to sett settle le all all the the accounts accounts pertaining pertaining to expenditure expenditure of public public funds. Raintree Corporation cannot file a case in court. The Republic of the Philippines did not not waiv waive e its its immu immuni nity ty from from suit suit when when it ente entere red d into into the the cont contra ract ct with with Rain Raintr tree ee Corporation for the supply of ponchos for the use of AFP. The contract involves the defense of the Philippines and therefore relates to a sovereign function. The provision for venue in the contract does not constitute a waiver of the State immunity from suit because the express waiver of this immunity can only be made by a statute.

jurisdiction.) (Mamaril v. Domingo, 1993) 97 To settle government accounts Power to “settle accounts”. This means the power power to settle settle liquidated accounts, accounts, that is, those accounts which may be adjusted simply by an arithmetical process. It does not include the power to fix the amount of an unfixed or undete undetermi rmined ned debt. debt. (Compa (Compania nia Genera Generall de Tabacos v. French and Unison, 1919) Unliqu Unliquida idated ted claims claims presen presentt a justic justiciab iable le question question which is beyond beyond the powers powers of the COA COA to adju adjudi dica cate te.. Reco Recove very ry base based d on quantum meruit involves a unliquidated claim, because its settlement requires the application of judgme judgment nt and discreti discretion on and cannot cannot be adjusted by simple arithmetical process. (F.F. Manaco Manacop p Constr Construct uction ion Co., Co., Inc. Inc. v. CA, 266 SCRA 235)98

To secu secure re the the rele releas ase e of fund funds s from from the the Treasury, Treasury, a warrant must be drawn by the proper administrative official and countersigned by the Commission on Audit.99 This counter-signature may be compelled if it can be shown that: 1. The The warra warrant nt has has been been legal legally ly draw drawn n by the officer authorized by law to do so; 2. An appr appropr opriat iation ion to whic which h the the warra warrant nt may may be applied exists by virtue of law; 3. An unex unexpe pect cted ed balan balance ce of the amou amount nt approp appropria riated ted is availa available ble.. (Yncau (Yncausti sti v. Wright, 47 Phil. 866) The duty to counte countersi rsign gn the warrant warrant in this this case is merely ministerial.

Authority to define the scope of its audit an examin examinati ation, on, establ establish ish techni technique ques s and methods required therefor. The SC said that the power of the Commission to def define ine the scop scope e of its its audi auditt and to promulgate auditing rules and regulations and the power to disallow unnecessary expenditure expenditures s is exclusive. exclusive. (But (But its power to examine and audit is not exclusive) To promul promulgat gate e accoun accountin ting g and auditi auditing ng rules “including “including those for the prevention prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures.” The SC held that the COA has the power to overrule the NPC (National Power Corporation Corporation)) General General Counsel Counsel on post-audit post-audit measur measures es relati relative ve to the determ determina inatio tion n of whet whethe herr an expe expend ndit itur ure e of a gove govern rnme ment nt agency is irregular, unnecessary, extravagant or unconscionable.

The following have been held to be discretionary: 1. The The duty duty to pass pass audi auditt a salar salary y vouch voucher er.. (Gonzales v. Provincial Auditor of Iloilo, 12 SCRA 711) 2. The The duty duty of the the Commi Commiss ssio ion n on Audi Auditt to issue issue a certif certifica icate te of cleara clearance nce to any accountable officer seeking to leave the Philip Philippin pines. es. (Lamb (Lamb v. Philip Philipps, ps, 22 Phil. Phil. 473)

It was held that COA may stop the payment of the price stipulated stipulated in governmen governmentt contracts contracts when when found found to be irregu irregular lar,, extrav extravaga agant nt or 97

98 99

Bernas Primer at 409 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 394 (2006 ed.) Cruz, Philippine Political Law, p.324


100

Parreño c. COA, G.R. 162224 June 7, 2007

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unco uncons nsci cion onab able le.. (Sam (Sambe beli li Isabela, 210 SCRA 80)


v.

Prov Provin ince ce

of

directors, officials or employees of GOCC receiving additional additional allowances allowances and bonuses are entitled entitled to such benefits under applicable laws. Thus, water districts are subject to the jurisdiction of the COA. (De Jesus v. COA, 2003)

COA Circular No 75-6, prohibiting the use of gove govern rnme ment nt vehi vehicl cles es by offi offici cial als s who who are are provided provided with transporta transportation tion allowance allowance was held to be a valid exercise of its powers under Section 2, Article IX-D of the Constitution; and the the proh prohib ibit itio ion n may may be made made to appl apply y to officials of the NPC.

PAL PAL (Phi (Phil. l. Airl Airlin ines es)) havi having ng ceas ceased ed to be a governmen government-owne t-owned d or –controlled –controlled corporatio corporation, n, is no longer under the audit jurisdiction of the COA. (PAL v. COA, 245 SCRA 39)

Q: The COA reduced the amount that was passed in audit on the ground that the original amount was “ex “exces cessiv sive and and dis disadv advant antageo ageous us to the govern governmen ment. t.”” Does Does the the Commis Commissio sion n have have the authority to do so? A: Yes, on the basis of its authority in Article IX-D, Section Section 2(1). This extends extends to the accounts of all persons respecting funds or properties received or held by tem in an accountable capacity. (Dincong v. Commissioner Guingona, 1988) 1988)101

2001 Bar Question Q: The The PNB was was then then one one of the the leadi eading ng government –owned banks and it was under the audit jurisdiction of the COA. A few years ago, it was privatized. What is the effect if any, of the privatization of PNB on the audit jurisdiction of the COA? A: In accordance with the ruling in Pal v. COA, since PNB is no longer owned by the government the COA no longer has jurisdiction to audit it as an inst instit itut utio ion. n. Unde Underr Arti Articl cle e IX-D IX-D,, Sect Sectio ion n 2(2) 2(2),, GOCCs and their subsidiarie subsidiaries s are subject to audit by the COA. Howeve However, r, in accord accordanc ance e with with Sectio Section n 2(1), 2(1), the COA can audit the PNB with respect to its acc ounts because the government still has equity in it.

Q: May COA in the exercise of its auditing function, disallow disallow the payment of backwages backwages to employees employees illegally illegally dismissed dismissed and say that the responsibility responsibility belongs to the official who dismissed them in bad faith? A: No. COA canno cannott say that that the respon responsib sibilit ility y belongs to the official who made the i llegal dismissal when such official official has not been heard. heard. Besides, Besides, paym paymen entt of back backwa wage ges s is not not an irre irregu gula lar, r, unnecessar unnecessary, y, excessive excessive or extravag extravagant ant expense. expense. (Uy et. al. v. COA, 2000)

Audit of Private Entities Facts: Petitione Petitioners rs were end-users of copra. PD 276 imposed a levy on copra to be collected by the end-users from the sellers of the copra. The fund was to be used to subsidize the purchase of copra to maintain maintain the stabil stability ity of the price. price. The COA audited the petitioners and found that there was a deficiency in their collection of the levy. Petitioners argued that the COA had no authority to audit them as they were not government-ow government-owned ned or controlled controlled corporation. Held: The The argu argume ment nt has has no meri merit. t. Unde Underr the the Constitution, the COA has the power to audit nongovernmen governmental tal entities entities receiving receiving subsidy subsidy from or thro throug ugh h the the gove govern rnme ment nt.. (Blu (Blue e Bar Bar Coco Coconu nutt Philippines v. Tantuico, 163 SCRA 716) 103

Power to veto appropriations. There is now a view to the effect that the critical function of the Commission Commission on Audit under the reworded reworded provision provision of the Constitution Constitution authorizes authorizes it to veto appropriations. This can be done, so it is argued, through the power of the Commission to refuse to “examine, “examine, audit and settle” settle” any account violating its own regulations “for the prev preven enti tion on and and disa disall llow owan ance ce of irre irregu gula lar, r, unne unnece cess ssar ary, y, exce excessi ssive ve,, extr extrav avag agan antt or unco uncons nsci cion onab able le expe expend ndit itur ures es or uses uses of government funds properties.” properties.”102 E. Jurisdiction

In Bagatsing Bagatsing v. Committee Committee on Privatization, the Court interpreting COA Circular No. 89-296 that there is failure of bidding when (a) there is only one offeror, or (b) when all all the the offe offers rs are are nonnon-co comp mply lyin ing g or unac unacce cept ptab able le,, decl declar ared ed that that the the COA COA circ circul ular ar does does not not spea speak k of accepted bids, but of offerors, without distinction as to whether they are disqualified or qualified. Thus, since in the bidding of the 40% block of Petron shares, there were three three offero offerors, rs, namely namely Saudi Saudi Aramc Aramco, o, Petron Petronas as and Westmont Westmont—alt —although hough the latter latter were disqualifi disqualified—t ed—then hen there was no failure of bidding.

Section 3. No law shall be passed exempting any entity of the Government or its subsidiaries in any guise whatever, or any invest investmen mentt of public public funds, funds, from from the jurisd jurisdict iction ion of the Commission on Audit.

Water Districts Districts Subject Subject to the Jurisdict Jurisdiction ion of COA. The Court already ruled in several cases that a wate waterr dist distri rict ct is a gove govern rnme ment nt-o -own wned ed and and controlled corporation with a special charter since it is created pursuant to a special law, PD 198. The COA has the author authority ity to invest investiga igate te whethe whether r 101


102

Cruz, Philippine Political Law, p.329


F. Report

103


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Section 4. The Commission shall submit to the President and the Congress, within the time fixed by law, an annual report cove coveri ring ng the the fina financ ncia iall cond condit itio ion n and and oper operat atio ion n of the the Government, its subdivisions, agencies, and instrumentalities, including government-owned or controlled corporations, and non-governmental entities subject to its audit, and recommend measur measures es necess necessary ary to improv improve e their their effect effective ivenes ness s and effici efficienc ency. y. It shall shall submit submit such other other report reports s as may be required by law.

Purpose of Report. Through the report required by this provision, provision, the President President and the Congress shall shall be inform informed ed of the financia financiall status status of the govern governmen mentt and the manner manner in which which revenu revenues es have been collected, appropriation laws have been implemented, and expenditures or uses of public funds funds and proper propertie ties s undert undertake aken. n. Inform Informati ation on contained in this report and the recommendations made by the Commission on Audit will be useful in enabling enabling the government government to improve improve its financial 104 operations. The authority authority of the Commission Commission to recommend recommend measure to improve the efficiency and effectiveness of the government empowers it “to conduc conductt the so-cal so-called led perfor performan mance ce audit audit which which cons consis istt of the the anal analyt ytic ical al and and crit critic ical al revi review ew,, asse assess ssme ment nt and and eval evalua uati tion on of the the acti activi viti ties es,, mana anagem gement ent and and fisc fisca al oper operat atio ions ns of the the Government in order to reduce operational costs and losses losses and promot promote e greate greaterr econom economy y and administra administrative tive efficiency efficiency in public public expenditure expenditures. s. This This is a modern modern concept concept of auditi auditing ng that that goes goes beyond beyond the mere mere examin examinati ation on of receip receipts ts and expenditures as it extends to the evaluation of the application of funds, to the analysis of expenditures as well as cost benefit studies.”105 H. Review of Commission’s Decisions The review power of the SC over decision of the Comm ommissi issio on is the sam same as that hat over over the the COMELEC- the limited-certiorari power under Rule 65. The jurisdiction of the SC over the Commission is on money matters and not over decisions on personnel movements. Neither is it the task of the SC to revi review ew a Comm Commis issi sion on opin opinio ion n on tax tax liability.106

104


105

Cruz, Philippine Political Law, p.331 quoting Montejo, The New Constitution, Constitution, 208. 106 Bernas Commentary, p 83 (2003 ed).


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Article X LOCAL GOVERNMENT


B. Quotable Governments

1.

I. LOCAL GOVERNMENTS (Sections GOVERNMENTS (Sections 1, 1014) II. LOCAL AUTONOMY (Section AUTONOMY (Section 2) III. LOCAL GOVERNMENT CODE (Section 3) IV. GENERAL POWERS AND ATTRIBUTES (Section 5,6,7) V. MUNICIPAL LIABILITY VI. LOCAL OFFICIALS (Section 8,9) VII. AUTONOMOUS REGIONS VIII.INTER-GOVERNMENTAL RELATIONS IX. LOCAL INITIATIVE AND REFERENDUM

2.

3.

“Ours is still a unitary form of government, Being g so, so, any any form form of not not a fede federa rall stat state e. Bein

Local Govern Governmen mentt Unit Unit is a politi political cal “A Local subdivision of the State which is constituted by

An LGGU LGGU is create created d by law and and all all its its powers and rights are sourced therefrom . It has therefore no power to amend or act beyond the authority given and the limitations imposed on it by law.” (Paran (Paranaqu aque e v. VM Realty Realty Corp., Corp., GR

127820, 07.20.98) C. Enume numera rate te the the Ter Territo ritori rial al Subdivisions in Section 1:

and and

Polit olitiical cal

The territ territori orial al and politi political cal subdiv subdivisi isions ons of the Republic of the Philippines are the: 1. Provinces 2. Cities 3. Muni Munici cipa palliti ities 4. Barangays There There shall shall be autono autonomou mous s region regions s in Muslim Muslim Mind Mindan anao ao and and Cord Cordil ille lera ras s as prov provid ided ed in the the Constitution. (Section1) Signi Signific ficanc ance e of Sectio Section n 1. The constitutio constitutional nal significance of Section 1 is that provinces, cities and municipalities and barangays have been fixed as the standard territorial and political subdivisions of the Philippines. This manner of subdividi subdividing ng the Philip Philippin pines es cannot cannot go out of existe existence nce except by a constitutional amendment. amendment.108

When When the the Draf Drafte ters rs of the the 1987 1987 Cons Consti titu tuti tion on enunciated the policy of ensuring the autonomy of local governments, it was never their intention to create create an imperium in imperio imperio and install install an intraintrasovereign sovereign political political subdivisio subdivision n independent independent of a single sovereign state. (Batangas CATV v. Court of Appeals, GR No. 138810, 2004)

Q: EO 220 dated July 15, 1987 creates the Cordillera Admini Administr strati ative ve Region Region (CAR) (CAR) creati creating ng a tempor temporary ary administrative agency pending the creation of Cordillera Autono Autonomou mous s Region Region.. Does Does EO 222 thereb thereby y create create a territorial and political subdivision? A: No. What is created is not a public corporation but an execut executive ive agency agency under under the contro controll of the nation national al gove govern rnme ment nt.. It is more more simi simila larr to the the regi region onal al developme development nt councils councils which which the President President may create create

Q: What is the present form of local government? A: The present form consists of an executive distinct from the legislative body. 107


Local

118303, 01.31.96)

A local government unit is a political subdivision of the State which which is constitute constituted d by law and posses possessed sed of substa substanti ntial al contro controll over over its own affairs. In a unitary system of government, it is an intr intraa-so sove vere reig ign n subd subdiv ivis isio ion n of one one sove sovere reig ign n nation, not intended to be an imperium in imperio [empire within an empire)]. (Alvarez v. Guingona GR 118303, 1996)


of

law and possessed possessed of substantia substantiall control control over its own affairs. affairs. Remaining Remaining to be an intra intra sovereign sovereign subdi subdivi visi sion on of one one sove sovere reig ign n nati nation on,, but but not not intended, however, to be an imperium in imperio, the local local govern governme ment nt unit unit is autono autonomo mous us in the the sense sense that that it is given given more more powers powers,, author authority ity,, responsibilities and resources. resources. Power which used to to be high highly ly cent centra rali liz zed in Mani Manila la,, is there hereby by deconcent deconcentrated rated,, enabling enabling especially especially the peripheral peripheral local government units to develop not only at their own pace and discreti discretion on but also with with their their own resources and assets.” (Alvarez v. Guingona, GR

A. What is a Local Government Unit?

107

Nature

GR 129093, 08.30.2001)

I. Local Governments

Section Section 1. The territori territorial al and political subdivisions subdivisions of the Repu Republ blic ic of the the Phil Philip ippi pine nes s are are the the prov provin ince ces, s, citi cities es,, municipalit municipalities, ies, and barangays. barangays. There shall be autonomous autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

on

auton autonom omy y grant granted ed to loca locall gove govern rnme ment nts s will will necessarily be limited and confined within the extent allowed by the central authority.” (Lina v. Pano,

GENERAL PROVISIONS

Local Government Unit Quotable Quotes on Nature of Local Governments Territorial and Political Subdivisions The Barangay The Municipality The City The Province Leagues of LGUs/Officials

Quotes

108


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under Article X, Section 14. (Cordillera Board Coalition v. COA, 1990)

D. Municipal Corporations 1. Municipal Corporation A body politic and corporate constituted by the incorporation of the inhabitants for the purpose of local government. government.109

A local government unit may be created, divided, merged, abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city, municipality or any other political subdivision, or by ordinance passed by the sang sanggu guni nian ang g panl panlal alaw awig igan an or sagg saggun unia iang ng panlungsod panlungsod concerned concerned in the case of a barangay barangay located within its territorial jurisdiction, subject to such limitations and requirements prescribed in the Local Government Code (RA 7160, Section 6)

2. Elements of a Municipal Corporation110

1.

Legal creation or incorporat incorporation ion-- the the law law crea creati ting ng or auth author oriz izin ing g the the crea creati tion on or incorporation of a municipal corporation.

2.

Corporate Corporate namename- The The name name by whic which h the the corporation shall be known. The The Sang Sanggu guni nian ang g Panl Panlal alaw awig igan an may, may, in consul consultat tation ion with with the Philip Philippin pine e Histor Historica icall Institute, change the name of the component ci tities and mu ni nicip al alities, u po pon th e recommendation of the sanggunian concerned; provided that the same shall be effective only upon the ratification in a plebiscite conducted for the purpos purpose e in the politica politicall unit unit direct directly ly affected. (RA 7160, Section 13)

3.

InhabitantsInhabitants- The The peop people le resi residi din ng territory of the corporation.

4.

Territory- The land mass where the inhabitant inhabitants s reside, reside, together together with the internal internal and external waters, and the air space above the land waters.

in the

3. Dual Nature and Functions Every local government unit created or organized (under (under the Local Governme Government nt Code) Code) is a body body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the National Government and as a corporate entity representi representing ng the inhabitants inhabitants of its territory. territory. (RA 7160, Section 15) Accordingly it has dual functions namely:

1. 2.

Public Public or government governmentalal- It acts as an agent of the State for the government of the territory and the inhabitants. Private Private or proprietar proprietary y- It acts as an agent of the community in the administration of local affairs. As such, it acts acts as a sepa separa rate te enti entity ty,, for for its its own own purposes, purposes, and not as a subdivision subdivision of the Stat State e (Bar (Bara a Lida Lidasa san n v. Come Comele lec, c, 21 SCRA 496)

E. Creation/ Dissolution of Municipal Corporations 1. Authority to Create

109 110

Antonio Nachura, Outline on Political Law, 553 (2006)

2. Requ Requis isit ites es/L /Lim imit itat atio ions ns on Crea Creati tion on or Conversion Art Artic icle le X, Sect Sectio ion n 10: 10: No prov provin ince ce,, city city,, munici municipal pality ity or any barang barangay ay may be create created, d, divide divided, d, merged merged,, abolis abolished hed,, or is its bounda boundary ry substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a PLEBISCITE in the political units directly affected. RA 7160, 7160, Sectio Section n 10: No creati creation, on, divisi division on or merg merger er,, abol abolit itio ion n or subs substa tant ntia iall alte altera rati tion on of boundaries boundaries of local government government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the poli politi tica call unit unit or unit units s dire direct ctly ly affe affect cted ed.. Said Said plebis plebiscit cite e shall shall be conduc conducted ted by the Comele Comelec c within 120 days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date. It was held held that that a plebis plebiscit cite e for creatin creating g a new provin province ce should should includ include e the partic participa ipatio tion n of the residents of the mother province in order to conform to the constitutional requirement. (Tan v. Comelec, 142 SCRA 727; Padilla v. Comelec, 214 SCRA 735) In other other words, words, all politi political cal units units affect affected ed should should participat participate e in the plebiscite. plebiscite. If what is involved is a barangay, the plebiscite should be municipality or city-w city-wide ide;; if a munici municipal pality ity or compon component ent city, city, province wide. If a portion of province is to be carved out and made into another province, the plebiscite shoul should d incl includ ude e the the moth mother er prov provinc ince. e. (Tan (Tan v. COMELEC, 1986)

RA 7160, Section 7: Based on verifiable indicators of viab viabil ilit ity y and and proj projec ecte ted d capa capaci city ty to prov provid ide e services, to wit:

1.

Income- Income must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size size of popula populatio tion, n, as expect expected ed of the local government government unit concerned. concerned. Average Average annual income income for the last last two consec consecuti utive ve years years based on 1991 constant prices should be at least: Municipality: 2.5 M City: 100M 100M (Yea (Yearr 2000 2000 cons consta tant nt pric prices es,, amended by RA 9009) Highly urbanized city: 50M Province: 20M



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It was was held held that hat the the Inte Intern rnal al Reve Revenu nue e Allotment Allotments s (IRAs) (IRAs) should be included included in the computation of the average annual income of the municipalit municipality y (for purposes of determinin determining g whet whethe herr the the muni munici cipal palit ity y may may be vali validly dly converted into a city), but under RA 9009, it is specif specifica ically lly provid provided ed that that for conver conversio sion n to cities cities,, the munic municipa ipalit lity’s y’s income income should should not includ include e the the IRA. IRA. (Alvar (Alvarez ez v. Guingo Guingona, na, 252 SCRA 695)

2. Population- it shall be determined as the total total number number of inhabi inhabitan tants ts within within the territoria territoriall jurisdicti jurisdiction on of the local government government unit concerned. 3.

Land AreaArea- It must be contiguous, unless it comprises two or more islands or is sepa separa ratted by a local ocal gove govern rnme men nt unit unit independent of the others; properly identified by metes and bounds with technical descriptions and sufficient to provide for such basi basic c serv servic ices es and and faci facili liti ties es to meet meet the the requirements of its populace. Income

Land Area

2.5M

Population 2,000 inhabitants (except in Metro Manila and other metropolitan political subdiv subdivisi isions ons or in highly urbanized urbanized cities cities where the requ requir irem ement ent is 5,000 inhabitants) 25,000

100M 50M

150,000 200,000

100sqkm

20M

250,000

2,000sq hkm

Barangay

Municipalit y City Highly Urbanized City Province

50sqkm

Compliance with the foregoing indicators shall be attested to by the Department of Finance, the NSO and the Lands Management Bureau of the DENR. The SC said that the requirement that the territory of newl newly-c y-cre reat ated ed loca locall gove govern rnme ment nt unit units s be identi identifie fied d by metes metes and bounds bounds is intend intended ed to provide the means by which the area of the local government unit may be reasonably ascertained, i.e., i.e., as a toll toll in the establ establish ishmen mentt of the local local gove govern rnme ment nt unit unit.. As long long as the the terr territ itor oria iall jur juris isdi dict ctio ion n of the the newl newly y crea create ted d city city may may be reasonably reasonably ascertained ascertained—by —by referring referring to common common boundaries boundaries with neighborin neighboring g municipali municipalities— ties—then then the legislative intent has been sufficiently served. (Mariano v. Comelec, 242 SCRA 211) [Note: RA 7854, which converted Makati into a city, did not define the boundaries of the new city by metes and bounds, because of a territorial dispute between Makati and Taguig, which was best left for the courts to decide]


Applying Article X, Section 10 the Supreme Court, in the case of Leag League ue of Cities ties of the the Philip Philippin pines es (LCP), (LCP), et al. vs. Commis Commissio sion n on Electi Elections ons,, et al. (G.R. No. 176951 176951,, G.R. G.R. No. 177499 & G.R. No. 178056; 24 August 2010), 2010) , held that the creation of local of local government units must must follow follow the criter criteria ia establ establish ished ed in the Local Government Code and not in any other law. law. In LCP v. COMELEC , February 15, 2011, April 12, 2011, 2011, the Supreme Court held that the 16 cityhood laws did did not not viol violat ate e Sect Sectio ion n Arti Articl cle e X, Sect Sectio ion n of the the Constitution: “Witho “Without ut doubt, doubt, the LGC is a creati creation on of Congre Congress ss throug through h its law-maki law-making ng powers. powers. Congre Congress ss has the power to alter or modify it as it did when it enacted R.A. No. 9009. 9009. Such Such power of amendm amendment ent of laws laws was again exercised when Congress Congress enacted enacted the Cityhood Laws. When Congress Congress enacted enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creati creation on of local local govern governmen mentt units— units—inc income ome,, population population,, and land area. Congress Congress deemed it fit to modify modify the income income requir requireme ement nt with with respec respectt to the conversion conversion of municipalities municipalities into component component cities cities when it enacted R.A. No. 9009, imposing an amount of P100 million, million, computed computed only from locally-generate locally-generated d source sources. s. Howeve However, r, Congre Congress ss deemed deemed it wiser wiser to exempt respondent municipalities from such a belatedly impose imposed d modifi modified ed income income requir requireme ement nt in order order to uphold its higher calling of putting flesh and blood to the very intent and thrust of the LGC, which is countryside developme development nt and autonomy, autonomy, especially especially accounting accounting for these municipalities as engines for economic growth in their respective provinces. Congress Congress clearly clearly intended intended that the local government government units covered by the Cityhood Laws be exempted from the coverage of R.A. No. 9009. The 16 cities covered by the Cityhood Laws not only had conversion bills pending during the 11th Congress, but have also complied with the requirements of the LGC prescribed prior to its amendment by R.A. No. 9009. Congress undeniably undeniably gave these cities all the considerations that justice and fair play demanded.” Navarro v. Ermita, April 12, 20110, (Dinagat Case): Republic Act No. 9355 (An Act Creating the Province of Dina Dinaga gatt Islan slands ds)) is decl declar ared ed as VALID and CONSTITUTIONAL, CONSTITUTIONAL, and and the the procl roclam amat atiion of the the Provin Province ce of Dinaga Dinagatt Island Islands s and the electi election on of the officials thereof are declared VALID. When the local government unit to be created consists of one (1) or more islands, it is exempt from the land area requirement as expressly provided in Section 442 and Section 450 of the LGC if the local government unit

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to be created is a municipality or a component city, resp respec ecti tive vely ly.. This This exem exempt ptio ion n is abse absent nt in the the enumer enumerati ation on of the requisite requisites s for the creati creation on of a province under Section 461 of the LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.

3. Beginning of Corporate Existence Upon Upon the electi election on and qualif qualifica icatio tion n of its chief chief execut executive ive and a majori majority ty of the members members of its sang sanggu guni nian an,, unle unless ss some some othe otherr time time is fixe fixed d therefor by the law or ordinance creating it. (RA 7160, Section 14) 4. Division and Merger; Abolition of LGUs Division Division and merger merger shall shall comply comply with with same same requirements, provided that such division shall not reduce the income, population or land area of the local government unit or units concerned to less than than the the mini minimu mum m requ requir irem emen ents ts pres prescr crib ibed ed;; provided provided further further that the income income classificat classification ion of the original local government unit or units shall not fall below its current income classification prior to the division. (RA 7160, Section 8) Abolition. A loca locall gove govern rnme ment nt unit unit may may be abolished when its income, population or land area has been been irreve irreversi rsibly bly reduce reduced d to less less than than the minimum minimum standards prescribed for its creation, as certified by the national agencies mentioned. The law or ordinance abolishing a local government unit shall shall specif specify y the provi province nce,, city, city, munici municipal pality ity or barang barangay ay with with which which the local local govern governmen mentt unit unit sought sought to be abolis abolished hed will be incorp incorpora orated ted or merged. (RA 7160, Section 9) 5. De Facto Municipal Corporations Corporations Requisites: 1. Valid law authorizing incor corporation 2. Attempt in good faith to organize under it 3. Colorable co compliance wi with th the la law. 4. Assumption of corporate powers The SC declared as unconstitutional Section 68 of the Revise Revised d Admini Administ strat rative ive Code Code which which author authorize ized d the President President to create create municipalit municipalities ies through through Executiv Executive e Order. Order. With this declaration, declaration, municipalit municipalities ies created created by Executive Order could not claim to be de facto municipal corporations because there was no valid law authorizing incorporation. (Pelaez v. Auditor General, 15 SCRA 569)

6. Attack Against Invalidity of Incorporation No collateral attack shall lie; and inquiry into the lega legall exis existe tenc nce e of a muni munici cipa pall corp corpor orat atio ion n is rese reserv rved ed to the the Stat State e in a proc procee eedi ding ng for for quo quo warranto warranto or other direct proceeding. proceeding. (Malabang (Malabang v. Benito, 27 SCRA 533) But this rule applies only when when the municip municipal al corpor corporati ation on is at least least a de facto municipal corporation. However, where the challenge was made nearly 30 year years s afte afterr the the exec execut utiv ive e orde order; r; crea creati ting ng the the municipality was issued, or where the municipality has been in existence for all of 16 years before the


Atty. ARIS S. MANGUERA ruling in Pelaez v. Auditor General was General was promulgated and various governmental acts throughout the years indicate the State’s recognition and acknowledgment of the existence existence of the municipal municipal corporation, corporation, the municipal municipal corporation corporation should be considered considered as a regular de regular de jure municipality.

2004 Bar Question: Q:MA Q:MADA DAKO KO is a muni munici cipa pali lity ty comp compos osed ed of 80 barangays, 30 west of Madako River and 50 east thereof. The 30 western barangays, feeling left out of econ econom omic ic init initia iati tive ves, s, wish wish to cons consti titu tute te themselves into a new and separate town to be called Masigla. A law is passed creating Masigla and a plebiscite is made in favor of the law. B. Suppo uppose se tha that one one yea year after fter Masi Masigl gla a was constitute constituted d as a municipali municipality, ty, the law creating it is voided because of defects. Would that invalidate the acts acts of the munici municipal pality ity and/or and/or its munici municipal pal officers? Explain briefly. Suggested Suggested Answer Answer : Althou Although gh the munici municipal pality ity cannot be considered as a de facto corporation, because there is no valid law under which it was create created, d, the acts of the municipa municipalit lity y and of its offi office cers rs will will not not be inva invali lida date ted, d, beca becaus use e the the existence of the law creating it is an operative fact before it was declared unconstitutional. Hence, the previous previous acts of the municipali municipality ty and its officers should be given effect as a matter of fairness and justi justice. ce. (Munic (Municipa ipalit lity y ofMala ofMalaban bang g v. Benito Benito,, 27 SCRA 533 [1969] F. The Barangay As the basic political political unit, the barangay barangay serves as the primar primary y planni planning ng and implem implement enting ing unit unit of governmen governmental tal policies, policies, plans, plans, programs, programs, projects projects and activities in the community, as a forum wherein the the coll collec ecti tive ve view views s of the the peop people le may may be expressed , crystallized and considered, and where disput disputes es may be amicab amicably ly settled settled.. (RA 7160, 7160, Section 384) G. The Municipality The municipality, consisting of a group of baranays, serves primarily as a general purpose government for the coordination of and delivery of basic, regular and direct services and effective governance of the inhabitants within its jurisdiction. (RA 7160, Section 440) RA 7160 Sections 440-447 H. The City The The city city,, comp compos osed ed of more more urba urbani nize zed d and and deve develo lope ped d bara barang ngay ays, s, serv serves es as a gene genera rallpurpos purpose e govern governmen mentt for the coordi coordinat nation ion and delivery of basic, regular and direct services and effective governance of the inhabitants within its territorial jurisdiction. (RA 7160, Section 448) RA 7160 Sections 448-258

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Section 12. Cities that are highly urbanized, as determined by law, and component cities whose charters charters prohibit their voters voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within within a province, province, whose charters charters contain contain no such prohibition, shall not be deprived of their right to vote for e lective provincial officials. Q: May a resident of “component cities whose charter prohibit prohibit their voters from voting voting for provincial provincial elective elective officials” run for a provincial elective office? A: No. Section 12 says, these are independent of the province. This independence includes the incapacity of its resi reside dent nts s to run run for for prov provin inci cial al offi office ce.. (Abe (Abell lla a v. COMELEC, 1991)

I. The Province The province composed of a cluster of munici municipal paliti ities es and compon component ent cities cities,, and as a political political and corporate corporate unit of government government,, serves as a dyna dynami mic c mech mechan anis ism m for for deve develo lopm pmen enta tall proc proces esse ses s and and effe effect ctiv ive e gove govern rnan ance ce of loca locall governmen governmentt units units within within its territoria territoriall jurisdicti jurisdiction. on. (RA 7160, Section 459) (See RA 7160 Sections 459-468)


validly enacted by the legislature or those agencies to whom legislative powers have been delegated (the City of Manila in this case) empowering it to confis confiscat cate e suspen suspend d licens licenses es of erring erring driver drivers, s, it may may do perf perfor orm m such such acts acts.. With Withou outt such such law, law, however, the MMDA has no power .111 L. Leagues of LGUs/Officials (See RA 7160 Sections 491-495; 496-498) Section Section 13. 13. Local government units may group themselves, consolidate or coordinate their efforts, services, and resources for purposes commonly beneficial to them in accordance with law.

Q: Does the grouping contemplated in Section 13 create a new juridical entity? A: No. No.112 Q: May local government units create these groupings even without prior enabling law? A: Yes. Liga Liga ng mga mga Bara Barang ngay ay-- Organi Organizat zation ion of all barangay for the primary purpose of determining the representatio representation n of the Liga in the sanggunians, sanggunians, and for ventilatin ventilating, g, articulati articulating ng and crystallizi crystallizing ng issu ssues affecting barangay government administra administration tion and securing, securing, through through proper proper and legal means, solutions thereto.

J. Autonomous regions in Muslim Mindanao and in Cordilleras (This will be discussed under Section 15) ( As of this writing, only one autonomous region, that of the Muslim Mindanao, has been established.)

2003 Bar Question Q: Can Can the the Liga Liga ng mga mga Bara Barang ngay ay exer exerci cise se legislative powers? SUGG SUGGES ESTE TED D ANSW ANSWER ER:: The The Liga Liga ng Mga Mga Barangay Barangay cannot cannot exercise exercise legislativ legislative e powers. powers. As stated in Bito-Onon v. Fernandez. 350 SCRA 732 [2001] [2001],, it is not a local local govern governmen mentt unit unit and its primary primary purpose purpose is to determine determine representati representation on of the mga in the sanggunians; to ventilate, articulate, and and crys crysta tall lliz ize e issu issues es affe affect ctin ing g bara barang ngay ay government administration; and to secure solutions for them through proper and legal means.

K. Special Metropolitan Political Subdivisions Section Section 11. The Congre Congress ss may, may, by law, law, create create specia speciall metropolitan political subdivisions, subject to a plebiscite as set forth forth in Sectio Section n 10 hereof hereof.. The compon component ent cities cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executive and legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be crea create ted d shal shalll be limi limite ted d to basi basic c serv servic ices es requ requir irin ing g coordination.

Pursuant to Article X, Section 11, Congress may, by law, law, crea create te speci special al metr metrop opol olit itan an poli politi tica call subdiv subdivisi isions ons subjec subjectt to a plebis plebiscit cite e set forth forth in Sect ection ion 20, 20, but but the the com compone ponent nt cit cities ies and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legisl legislati ative ve assembl assemblies ies.. The jurisd jurisdict iction ion of the metropolitan authority that will thereby created shall be limited to basic services requiring coordination. NOTE: As earlier decided in the Belair case, the MMDA MMDA is NOT the metrop metropoli olitan tan politi political cal unit unit cont contem empl plat ated ed in Sect Sectio ion n 11. 11. Rath Rather er it is an administra administrative tive agency of the government government and as such such it does not posses possess s police police power. power. It may exrcise only such powers as are given to it by law. Hence, where there is a traffic law or regulation


League League of Municipa Municipalitie lities. s. Orga Organi nize zed d for for the the primar primary y purpos purpose e of ventil ventilati ating, ng, articu articulat lating ing and crystallizing issues affecting municipal government administration, and securing, through proper and legal means, solutions thereto. M. Regional Development Councils Sectio Section n 14. The The Pres Presid iden entt shal shalll prov provid ide e for for regi region onal al developme development nt councils councils or other other similar similar bodies composed composed of local government officials, regional heads of departments and other other govern governme ment nt office offices, s, and repres represent entati atives ves from from nonnongovernmental organizations within the regions for purposes of administrative decentralization to strengthen the autonomy of the units therein and to accelerate the economic and social growth and development of the units in the region. 111

MMDA v. Garin, G.R. No. 130230, April 15, 2005.

112


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and in the manner set forth therein, impose disciplinary action against local officials;

Purpose. The purpose of this provision is to foster administrative decentralization as a complement to political political decentralization decentralization.. This is meant meant to allow bottom-to-top planning rather than the reverse. reverse.113 Power to Create RDCs. It will be noted that the power to form these development councils is given to the President. He does not need authorization from Congress.114

5.

"Supervis "Supervision" ion" and "investiga "investigation tion" " are not inconsiste inconsistent nt terms; terms; "investig "investigation ation" " does not signify signify "control" "control" (which the President President does does not have); have); xxx” (Gan (Ganzo zon n v. CA, CA, GR 93252, 08.05.91)

E. Meaning of Local Autonomy *Loca Locall auto autono nomy my,, unde underr the the Cons Consti titu tuti tion on,, invo involv lves es a mere mere DECENTRAL DECENTRALIZAT IZATION ION OF ADMINISTRATION , not of power .... .... (Ganzon (Ganzon v. CA, 1991)

II. Local Autonomy Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Nachura and Agra Notes: The principle of local autonomy under the 1987 Constitution simply means decentralization. decentralization. (Bas (Basco co v. Pagc Pagcor or,, 197 197 SCRA SCRA 52)116 (Lina v. Pano, 2001)

A. Constitutional Provisions Article II, Section 25: The State shall ensure the autonomy of local governments. Article X, Section 2: The territorial and political subdivisions shall enjoy local autonomy.

Bernas: Local Local autono autonomy my means means more more than than just just decentrali decentralizatio zation. n. But the concept concept of autonomy is relative. Autonomy for local governments in general will be less than for the autonomous regions. regions .117

(See also Sections 4,5,6, 7 and 10 of Article X)

B. Significance of Declaration of Local Autonomy

Howe Howev ver, er, even even as we reco recogn gniize that hat the the Cons Consti titu tuti tion on guar guaran ante tees es auto autono nomy my to loca locall government units, the exercise of local autonomy rema remain ins s subj subjec ectt to the the powe powerr of cont contro roll by Congress, and the power of general supervision by the President. (Judge Dadole v. COA, 2002)

It is meant to free local governments from the wellnigh nigh absolu absolute te contro controll by the legisl legislatu ature re which which characteriz characterized ed local government government under the 1935 Constitut Constitution. ion. Thus, although although a distinctio distinction n is made betw betwee een n loca locall gove govern rnme ment nts s in gene genera rall and and auto autono nomo mous us regi region ons, s, even even thos those e outs outsid ide e the the auto autono nomo mous us regi region ons s are are supp suppos osed ed to enjo enjoy y autonomy. autonomy.115

Q: What is the meaning of local autonomy as it has emerged in recent decisions? A: It means that local governments have certain powers given by the Constitution which may not be curtai curtailed led by the nation national al govern governmen ment, t, but that, that, outside outside of these, these, local government governments s may not pass ordinances contrary to statute. (Magtajas v. Pryce Properties, 234 SCRA 255 (1994)).118

D. Rules on Local Autonomy “In resumé, the Court is laying down the following rules: 1. Loca Locall auton utonom omy, y, unde underr the Cons Consttitut itutiion, on, involves a mere decentralization of admini administr strati ation, on, not of power, power, in which which local local offici officials als remain remain accoun accountab table le to the centra centrall gove govern rnme ment nt in the the mann manner er the the law law may may provide; 2. The The new new Cons Consti titu tuttion ion does does not not pres prescr crib ibe e federalism; 3. The The chan change ge in cons consti titu tuti tion onal al langu languag age e (wit (with h respect to the supervision clause) was meant but but to deny deny legi legisl slat ativ ive e cont contro roll over over loca locall governments; it did not exempt the latter from legislative legislative regulations regulations provided provided regulation regulation is consistent consistent with the fundamental fundamental premise premise of autonomy; 4. Sinc Since e loca locall gove govern rnme ment nts s rema remain in acco accoun unta tabl ble e to the national authority, the latter may, by law,

Q: Do local governments have the power to grant franchise to operate CATV system. A: No. (Batangas CATV v. CA, 2004) Q: The law says says that that the the budget budget officer officer shall be appo appoin inte ted d by the the Depa Depart rtme ment nt head head upon upon the the recommend recommendation ation of the head of local government government subject to civil service rules and regulations. If none of those those recomm recommend ended ed by the local local govern governmen mentt head head meets meets the requir requirem ement ents s of law, law, may the Department head appoint anyone he chooses? A: No, he must return the recommendations of the loca locall gov governm ernmen entt head head expl explai aini ning ng why why the recommendees are not qualified and ask for a new recommendation. In other words, the recommendation of the local government head is a condition sine sine qua qua non non of the Depart Departmen ment’s t’s appoin appointin ting g author authority ity.. This This is the only only way local aut autonom onomy y can can be giv given by reco recogn gnit itio ion n the the 116

113


114


117


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Constituti Constitution on wants it to have. When in doubt, favor autonomy. (San Juan v. CSC, 1991) Q: May COA reduce the allowance given to judges by local governments? A: No. Since the Local Government Code authorizes local governments to give allowance to judges and decide how much this should be, local autonomy prohibits the Commission on Audit from interfering with with the authorit authority y of the local a govern governmen mentt by redu reduci cing ng what what has has been been deci decide ded d by the the local local government. (Dadole v. COA, 2002; Leynes v. COA, 2003)

F. Regional Autonomy Regi Region onal al auto autono nomy my is the the degr degree ee of self self-determination exercised by the local gove overnme rnmen nt unit nit visvis-àà-vi vis s the the cent centra rall government. (Disomangcop v. Secretary of Public Works and Highways, GR 149848, 11.25.2004) “Regional Regional autonomy autonomy refers refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government . The objective of the autonomy system is to permit determined groups, with a common tradition and shared shared social-cult social-cultural ural characterist characteristics, ics, to develop develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business.” (Disomangcop v. Secretary of Public Works and Highways, GR 149848, 11.25.2004) Regional Regional autonomy autonomy is also a means towards towards solv solvin ing g exis existi ting ng seri seriou ous s peac peace e and and orde order r prob proble lems ms and and sece secess ssio ioni nist st move moveme ment nts s. Parenthet Parentheticall ically, y, autonomy, autonomy, decentraliza decentralization tion and regionaliz regionalization ation,, in internatio international nal law, have become poli politi tica call lly y accep accepta tabl ble e answ answer ers s to intr intrac acta tabl ble e problems of nationalism, separatism, ethnic conflict and threat of secession. However, the creation of auton utono omou mous regi region ons s does does not not sign signif ify y the the establishment of a sovereignty distinct from that of the Republic, as it can be installed only "within the framew framework ork of this this Consti Constitut tution ion and the nation national al sovere sovereign ignty ty as well well as territ territori orial al integr integrity ity of the Republ Republic ic of the Philip Philippin pines. es. (Disomangcop (Disomangcop v. Secret Secretary ary of Public Public Works Works and Highwa Highways, ys, GR 149848, 11.25.2004) G. Fiscal Autonomy “Local autonomy includes both administrative and fiscal fiscal autonomy. autonomy. xxx The Court Court declar declared ed therei therein n that that local local fiscal fiscal autono autonomy my includ includes es the power power of the LGUs to, inter alia, allocate allocate their resources in accordance with their own priorities. xxx Further, a basic feature of local fiscal autonomy is the constitutionally mandated automatic release of the shares shares of LGUs LGUs in the national national internal internal revenue.” (Province of Batangas v. Romulo, GR 152774, 05.27.2004) I sweat, I bleed, I soar… Service, Sacrifice, Excellence


“Under “Under existi existing ng law, law, local local govern governmen mentt units, units, in addition to having administrative autonomy in the exercise of their functions, enjoy fiscal autonomy as well well.. Fiscal Fiscal autono autonomy my means means that that local local govern governmen ments ts have have the power power to create create their their own sources sources of revenu revenue e in additi addition on to their their equitable share in the national taxes released by the national national governme government, nt, as well well as the power to allocate their resources in accordance with with thei theirr own own prio priori riti ties es.. It ext extends ends to the preparation of their budgets, and local officials in turnhave to work within the constraints thereof. They are not formulate formulated d at the national national level and imposed on local governments, whether they are relevant to local needs and resources or not. Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national national officials, officials, who in any case are partners in the attainment of national goals. Local fiscal autono autonomy my does does not however however rule rule out any manner manner of national government intervention by way of supervision, in orde orderr to ensu ensure re that that loca locall prog progra rams ms,, fisc fiscal al and and othe otherw rwis ise, e, are are cons consis iste tent nt with with nati nation onal al goal goals. s. Significantly, the President, by constitutional fiat, is the head head of the the econ econom omic ic and and plan planni ning ng agen agency cy of the the governmen government, t, primarily primarily responsibl responsible e for formulati formulating ng and implement implementing ing continuing continuing,, coordinat coordinated ed and integrated integrated social and economic policies, plans and programs for the entire entire country. country. However, However, under the Constituti Constitution, on, the formulation and the implementation of such policies and prog progra rams ms are are subje subject ct to "con "consu sult ltat atio ions ns with with the the appropriate public agencies, various private sectors, and local local govern governmen mentt units units.. The Presid President ent cannot cannot do so unilaterally.” (Pim (Pimen ente tell v. Agui Aguirr rre, e, GR 1329 132988 88,,

07.19.2000) “xxx the limited and restrictive nature of the tax exem exempt ptiion pri privile vileg ges unde underr the the Loca Locall Government Code is consistent with the State policy to ensure autonomy of local governments and and the the obje object ctiv ive e of the the Loca Locall Government Code to grant genuine and meaningful autonomy to enable local government units to attain attain their fullest fullest development development as selfrelian reliantt commun communiti ities es and make make them them effect effective ive partners in the attainment of national goals. The obvious intention of the law is to broaden the tax base of local government units to assure them of substantia substantiall sources sources of revenue.” revenue.” (PHILRECA (PHILRECA v. DILG, GR 143076, 06.10.2003) “With the added burden of devolution, it is even more imperative for government for government entities to share in the requirements requirements of developmen developmentt , fiscal fiscal or otherwise, by paying taxes or other charges due from them.” (NAPOCOR (NAPOCOR v. Cabanatuan Cabanatuan City, GR 149110, 04.09.2003) “ xxx in taxing taxing govern governmen ment-o t-owne wned d or contro controlle lled d State ultima ultimatel tely y suffer suffers s no corporation corporations, s, the State loss.” loss.” (Philippine Ports Authority v. Iloilo City, GR 109791, 07.14.2003)

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“The important legal effect of Section 5 (of Article X of the 1987 1987 Consti Constitut tution ion)) is that that hencef hencefort orth, h, in interpreting statutory provisions on municipal fiscal powers, powers, doubts will have to be resolved in favor of municipal corporations.” (San Pablo City v. Reyes, GR 127708, 03.25.99) ACORD v. Zamora (GR 144256, 06.08.2005) Constitution provides for automatic release of IRA. IRA. The General Appropriation Act of 2000 cannot plac place e a port portio ion n of the the Inte Intern rnal al Reve Revenu nue e Allotment Allotment (P10B) in an Unprogram Unprogrammed med Fund only to be released when a condition is met i.e. the original revenue targets are realized, since this this woul would d viol violat ate e the the auto automa mati tic c rele releas ase e provis provision ion under under Sectio Section n 5, Articl Article e X of the Constitution. As the Constitution lays upon the executive the duty to automatically release the just share of local governments in the national taxes, so it enjoins the legislature not to pass laws laws that that might might preven preventt the execut executive ive from from performing performing this duty. duty. Both the executive executive and legisl legislati ative ve are barred barred from from withho withholdi lding ng the the rele releas ase e of the the IRA. IRA. If the the fram framer ers s of the the Constitution intended to allow the enactment of statutes making the release of IRA conditional instead of automatic, then Article X, Section 6 of the Constitut Constitution ion would have been worded worded differently. Congress has control only over the share which must be just, not over the manner by which which the share share must must be releas released ed which which must must be auto automa mati tic c sinc since e the the phra phrase se “as “as determined by law” qualified the share, not the release thereof. Province Province of Batangas Batangas v. Romulo Romulo (GR 152774, 152774, 05.27.2004) GAA cannot amend LGC. Constitution provides for automatic release of IRA. The General Appropriation Acts of 1999, 2000 and 2001 2001 and resolu resolutio tions ns of the Overs Oversigh ightt Commit Committee tee cannot cannot amend amend the 1991 1991 Local Local Government Code insofar as they provide for the local government governments’ s’ share in the Internal Revenue Allotments as well as the time and manner of distribution of said share. A national budget cannot amend a substantive law, in this case case the Code. The provis provision ions s in the GAA crea creati ting ng the the Loca Locall Gove Govern rnme ment nt Spec Specia iall Equali Equalizat zation ion Fund Fund and author authorizi izing ng the nonnonrelease of the 40% to all local governments are inap inappr prop opri riat ate e prov provis isio ions ns.. Furt Furthe her, r, the the restricti restrictions ons are violative violative of fiscal fiscal autonomy. autonomy. Fiscal autonomy means that local governments have the power to create their own sources of revenue in addition to their equitable share in the nation national al taxes taxes releas released ed by the the nation national al government, as well as the power to allocate their resources resources in accordanc accordance e with their own priorities. It extends to the preparation of their budgets, and local officials in turn have to work within within the constraints constraints thereof. They are not formulated at the national level and imposed on local governments, whether they are relevant to local needs and resources or not. Further, a basic feature feature of local fiscal fiscal autonomy autonomy is the constitutionally mandated automatic release of


Atty. ARIS S. MANGUERA the shares of local governments in the national internal revenue. Civil Civil Servic Service e Commi Commissi ssion on v. Depart Departmen mentt of Budg Budget et and and Mana Manage geme ment nt (GR (GR 1587 158791 91,, 07.22.2005) “No Report, No Release” policy violates fiscal autonomy. A “no report, no release” policy may not be validly validly enforced enforced against offices offices vested vested with fisc fiscal al auto autono nomy my.. Such Such poli policy cy cann cannot ot be enforc enforced ed agains againstt office offices s posses possessin sing g fiscal fiscal autonomy such as Constitutional Commissions and local governments. The automatic release provision found in the Constitution means that these local governments cannot be required to perform perform any act to receive receive the “just share” share” accruing to them from the national coffers. Pimentel v. Aguirre (GR 132988, 07.19.2000) Execut Executive ive withho withholdi lding ng of 10% of the Intern Internal al Revenu Revenue e Allotm Allotment ent withou withoutt comply complying ing with with requi require reme ment nts s set set fort forth h in Sect Sectio ion n 284 284 LGC LGC violated local autonomy and fiscal autonomy of local governments; governments; Withholdi Withholding ng amounted amounted to executive control “Under existing law, local government units, in addition to having administrative autonomy in the exerc exercise ise of their their funct function ions, s, enjoy enjoy fiscal fiscal autonomy autonomy as well” and that “fiscal autonomy autonomy means that local governments have the power to create create their own source sources s of revenu revenue e in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities”. Dadole Dadole v. Commis Commissio sion n on Audit Audit (GR 125350, 125350, 12.03.2002) DBM cannot impose a limitation when the law imposes none. DBM Local Budget Circular No. 55 which provides a limit to allowance that may be given by local governments to judges is null and void since the 1991 Local Government does not prescribe a limit. By virtue of his/ his/ her power of supervision, the President can only interfere in the affairs and activities of a local government unit if it has acted contrary to law. Leynes v. COA (GR 143596, 12.11.2003) DBM cannot nullify a statutory power. A Nation National al Compen Compensat sation ion Circul Circular ar by the Department of Budget and Management cannot nullify nullify the authority authority of municipalit municipalities ies to grant allowances allowances to judges authorized authorized in the 1991 Local Government Code. The Circular prohibits the payment of representation and transportation allowances from more than one source – from national and local governments.

G. Self-Determination “Self-determination refers to the need for a political structure that will respect the autonomous peoples' uniqueness and grant them sufficient room for self-

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Atty. ARIS S. MANGUERA managing local affairs and enable it to concentrate on national concerns… Decentrali Decentralizati zation on of power on the the othe otherr hand hand,, involves an abdication of political power in favor of local government units declared to be autonomous. In that case the autonomou autonomous s government government is free to chart chart its own destin destiny y and shape its future future with minim minimum um interv intervent ention ion from from centr central al govern governmen mentt authoritie authorities. s. According According to a constitu constitutional tional author, dece decent ntra rali liza zati tion on of powe powerr amou amount nts s to “self “self-immolation, immolation,”” since in that event, the autonomous autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona v. Conte Miguelin, 1989 citing citing Bernas, Bernas, Brewing Brewing the Storm Over Autonomy) 119

expression and self-construction. (Disomangcop v. Secret Secretary ary of Public Public Works Works and Highwa Highways, ys, GR 149848, 11.25.2004) H. Decentralization A nece necess ssar ary y prer prereq equi uisi site te of auto autono nomy my is decentralization. Decentralization is a decision by the central government authorizing its subo subord rdin inat ates es,, whe whether ther geog geogra raph phic ical ally ly or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger larger govern governmen mentt choose chooses s to delega delegate te certai certain n authority authority to more local governmen governments. ts. Federalism Federalism implie implies s some some measure measure of decent decentral raliza izatio tion, n, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the sub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government. Decen centralization com comes in two forms — deconcentration and devolution. Deconcentration is administrat administrative ive in nature; nature; it involves the transfer of functions or the delegation of authority authority and responsibil responsibility ity from the national national office to the regional and local offices. This mode of decentralization is also referred to as administrative decentralization. Devolution, Devolution, on the other hand, connotes political dece decent ntra rali liza zati tion on,, or the the tran transf sfer er of powe powers rs,, responsibilities, and resources for the performance of certain functions from the central government to local government units. This is a more liberal form of decentralization since there is an actual transfer of powers powers and respon responsib sibili ilitie ties. s. It aims aims to grant grant greate greaterr autono autonomy my to local local govern governmen mentt units units in cogniz cognizanc ance e of their their right right to self-g self-gove overnm rnment ent,, to make make them them self self-r -rel elia iant nt,, and and to impr improv ove e thei their r admi admini nist stra rati tive ve and and tech techni nica call capa capabi bili liti ties es.” .” (Disomangcop v. Secretary of Public Works and Highways, GR 149848, 11.25.2004 11.25.2004 )

I. President’s General Supervision Section Section 4. The President President of the Philippines Philippines shall exercise exercise general general supervisio supervision n over local governme governments. nts. Provinces Provinces with respect to component cities and municipalities, and cities and municipalit municipalities ies with respect to component component barangays, barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

1. Power of General Supervision The power of general supervision is the power of a superior officer to see to it that the lower officers perform their functions in accordance with law. It does does not includ include e the power to substi substitut tute e one’s one’s judgment for that of a lower officer in matters where a lower lower office officerr has variou various s legal legal altern alternati atives ves to choose from.120 “Consistent with the doctrine that local government does not mean the creation of imperium in imperio or a state state within within a State, State, the Consti Constitut tution ion has vested the President of the Philippines the power of general general supervision supervision over local government government units. units. Such Such gran grantt of powe powerr incl includ udes es the the powe powerr of discip disciplin line e over over local local offici officials als,, keep keepin ing g them them accountable to the public, and seeing to it that their acts are kept within the bounds of law. Needless to say, this awesome awesome supervisory supervisory power, however, however, must must be exerci exercised sed judici judicious ously ly and with with utmost utmost circumspection so as not to transgress the avowed constitutional policy of local autonomy.” (Malonzo v. Zamora, GR 137718, 07.27.99)

“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.” (Pimentel v. Aguirre, GR 132988, 07.19.2000 07.19.2000 ) Q: Are autonomy and decentralization the same? A: Not really. Autonomy Autonomy is either either decentralization of administration or decentralization or decentralization of power. There is decentralization of administration when the central central government government delegates delegates administr administrative ative powers powers to political political subdivisions subdivisions in order to broaden broaden the base of governmental power an in the process to make make local local govern governmen ments ts more more respon responsiv sive e and accountable and ensure their fullest development as self-r self-reli eliant ant commun communiti ities es and make make them them mote mote effe effect ctiv ive e part partne ners rs in the the purs pursui uitt of nati nation onal al development and social progress. At the same time it relieves the central government of the burden of


“Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring ensuring local autonomy. xxx Para Parado doxi xica call lly, y, loca locall gove govern rnme ment nts s are are stil stilll subject to regulation, however limited, for the purp purpos ose e of enha enhanc ncin ing g self self-g -gov over ernm nmen ent. t.”” (Pimentel v. Aguirre, GR 132988, 07.19.2000) Q: When When Secti Section on 187 of the Local Local Govern Governmen mentt Code authorizes authorizes the Secretary Secretary of Justice Justice to pass judgment judgment on the constitution constitutionality ality or legality legality of tax

119


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ordina ordinance nces s or revenu revenue e measu measures res,, does does he not exercise the power of control? A: No. He does not thereby dictate the law should be but merely merely ensures ensures that the ordina ordinance nce is in accordance with law. (Drilon v. Lim) Q: Petitioner challenges the right of the President, through the Secretary of Interior to suspend him on the ground that the removal of the phrase “As may be provided by law” from unconstitutional provision has stripped the President President and legislatur legislature e of the power over local governments. Corollarily, he argues that that new Const Constitu itutio tion n has effect effective ively ly repeal repealed ed existing laws on the subject. Decide. A: The The powe powerr of gene genera rall supe superv rvis isio ion n of the the Presid President ent includ includes es the power power to invest investiga igate te and remove. remove. Moreover, Moreover, Section Section 3 itself itself of this Article provides provides that the Local Governmen Governmentt Code (LGC) may provide for “removal” thus indicating that laws on the subject are not out of the compass of the legisl legislatu ature. re. Autono Autonomy my does does not transf transform orm local local govern governmen ments ts into into kingdo kingdoms ms unto unto thems themselv elves. es. (Ganzon v. CA, 1991) Q: May the Secretary Secretary of the local Governmen Governmentt annul annul the the electi election on of office officers rs of a feder federati ation on of barangay officials? A: No. Such annulment would amount to control and therefore in excess of executive supervisory powers. (Taule v. Secretary Santos, 1991) 121

the principal of the local government units, which cann cannot ot defy defy its its will will or modi modify fy or viol violat ate e it.” it.” (Mag (Magta taja jas s v. Pryc Pryce e Prop Proper erti ties, es, GR 1110 111097 97,, 07.20.94) III. Local Government Code Principal Guidelines Given to Congress Effectivity of LGC Scope of Application Declaration of Policy Rules of Interpretation Section 3. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government government structur structure e institute instituted d through through a system system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

A. Principal Guidelines Given to Congress The princi principal pal guidel guideline ines s given given to Congre Congress ss for structuring LGUs are:

2. Super upervi viso sory ry Struc tructu ture re in the the Local ocal Government System The Presid President ent has genera generall superv supervisi ision on over over all LGUs. But his direct supervisory supervisory contact is with autonomous regions, provinces, and independent citi cities es.. The The rest rest foll follow ow in hier hierar arch chal al orde orderr as indicated in Section 4.

1.

That That the struct structure ure must must be “respo “responsi nsive ve and accountable” and “instituted though a system of decentralization.”

2.

The structure must be both sensitive to the need needs s of the the loca locali lity ty,, acco accoun unta tabl ble e to the the electorate of the locality, and freed as much as possible from central government interference.122

J. Local Autonomy and Legislative Control “The Constitution did not, not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations , in particular particular,, concerning concerning discipline. discipline. The change in cons consti titu tuti tion onal al lang langua uage ge did did not not exem exempt pt local local governmen governments ts from legislativ legislative e regulation regulation provided provided regula regulatio tion n is consis consisten tentt with with the fundam fundament ental al premise of autonomy.” (Ganzon v. CA, GR 93252, 08.05.91) This This basi basic c rela relati tion onsh ship ip betw betwee een n the the nati nation onal al legislature and the local government units has not been been enfe enfeeb eble led d by the the new new prov provis isio ions ns in the the Cons Consti titu tuti tion on stre streng ngth then enin ing g the the poli policy cy of local local autonomy. autonomy. Without meaning to detract detract from that policy policy,, we here here confir confirm m that that Congress Congress retains retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to cr eate still includes the power to destroy. The power to grant still includes the power to withhold or recall. xxx By and large, however, the national national legislature legislature is still 121

Q: The 1973 Constitution Constitution contained contained a provision provision which said that “No change in the existing form of govern governmen mentt shall shall take take effect effect until until ratifi ratified ed by a majority of the votes cast in a plebiscite called for the purpose.” Why was this not retained? A: The provision was considered too limitive of the power of Congress. Congress .123

B. Effectivity of LGC Janu Januar ary y 1, 1992 1992,, unless unless otherw otherwise ise provi provided ded herein, after its complete publication in at least one newspaper of general circulation (RA 7160, Section 536) C. Scope of LGC’s Application The The Code Code shal shalll appl apply y to all all prov provin ince ces, s, citi cities es,, muni munici cipa pali liti ties es,, bara barang ngays ays and and othe otherr poli politi tica call subdivisions as may be created by law, and , to the extent extent herein herein provid provided, ed, to offici officials als,, office offices s or 122


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agencies agencies of the National Government Government (RA 7160, Section 536) D. Declaration of Policy (Section 2)

1.

The territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make make them them more more effect effective ive partners partners in the attainment of national goals; 2. Ensu Ensure re acco accoun unta tabi bili lity ty of loca locall gove govern rnme ment nt unit units s thro throug ugh h the the inst instit itut utio ion n of effe effect ctiv ive e mech echanis anism ms of reca recalll, init nitiat iative ive and and referendum; and 3. Requ Requir ire e all natio nationa nall agen agenci cies es and offi office ces s to conduct periodic consultations with appropriate local government units, non-governmental and people’s people’s organizati organizations, ons, and other concerned sectors of the community before any project or progra program m is implem implement ented ed in their their respec respectiv tive e jurisdictions. E. Rules of Interpretation 1.

2.

3.

4.

Any prov provisi ision on on a power power of local local gover governme nment nt unit shall be liberally interpreted in its favor, and in case of doubt, doubt, any questi question on thereo thereon n shall shall be resolv resolved ed in favor favor of devolu devolutio tion n of powers and of the local government unit. Any Any tax ordin ordinan ance ce or reven revenue ue meas measur ure e shall shall be cons constr true ued d stri strict ctly ly agai agains nstt the the loca locall govern governmen mentt unit unit enacti enacting ng it and libera liberally lly in favor favor of the taxpay taxpayer. er. Any tax exempt exemption ion,, ince incent ntiv ive e or reli relief ef gran grante ted d by any any loca locall govern governmen mentt unit unit shall shall be constr construed ued strict strictly ly against the person claiming it. The The gener eneral al welf welfa are prov provis isio ions ns shal shalll be libera liberally lly interp interpret reted ed to give give more more powers powers to loca locall gove govern rnme ment nt unit units s in acce accele lera rati ting ng econom economic ic develo developme pment nt and upgrad upgrading ing the quality of life for the people in the community. Righ Rights ts and obli obliga gati tion ons s exis existi ting ng on the date date of effe effect ctiv ivit ity y of this this Code Code and and aris arisin ing g out out of contra contracts cts or any other other source source of presta prestatio tion n involv involving ing a local local govern governmen mentt unit unit shall shall be governed by the original terms and conditions of said contracts or the law in force at the time such rights were vested.

5.

In the resolution of controversies arising under thi this Cod Code wher where e no lega legall provi rovisi sion on or jurisprude jurisprudence nce applies, applies, resort resort may be had to the customs and traditions traditions in the place where the controversies take place.124 (See page 676-697 of Jack’s Compendium(2006)) IV. General Powers and Attributes of LGUs Powers in General 124




Governmental Powers Corporate Powers Section 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees and charges charges subject to such guidelines guidelines and limitation limitations s as the Congress may provide, consistent with the basic policy of local autono autonomy. my. Such Such taxes, taxes, fees, fees, and charge charges s shall shall accrue accrue exclusively to the local governments. Section 6. Local government units shall have a just share, as determ determine ined d by law, law, in the national national taxes taxes which which shall shall be automatically released to them. Section 7. Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner prov provid ided ed by law, law, incl includ udin ing g shar sharin ing g the the same same with with the the inhabitants by way of direct benefits.

A. Powers in General 1. Sources 1. Arti rticle cle II, II, Secti ection on 25: 25: “The “The Sate ate shal shalll ensure the autonomy of local governments.” 2. Arti Articl cle e X, Sect Sectio ions ns 5,6 5,6,, & 7. 7. 3. Stat Statut utes es (e.g (e.g., ., RA 7160 7160)) 4. Char Charte terr (part (partic icul ular arly ly of citi cities es)) 2. Classification

1.

Expres Express s, implie implied, d, inhere inherent nt (power (powers s necess necessary ary and proper proper for govern governanc ance, e, e.g. e.g.,, to prom promot ote e heal health th and and safe safety ty,, enhanc enhance e prospe prosperit rity, y, impro improve ve morals morals of inhabitants)

2.

Public Public or proprietary

3. 4.

Intramural, Intramural, extramural

government governmental; al;

Mandatory, discretionary.

Governmental Powers 1. Gene eneral ral Welf elfare are 2. Basic Services and Facilities 3. Power to Genera Generate te and Apply Apply Resources 4. Eminent Do Doma in in 5. Recla eclas ssif sificat icatiion of Lands 6. Closure and Opening of Roads 7. Local Le gi gislative Power 8. Authority over Police Units

directory;

Private

or

Ministerial,

Corporate Powers 1. To have continuous succe ucces ssion sion in its its corporate name. 2. To su sue an a nd be be sued 3. To have and use a corporate seal 4. To a cq cquire a nd nd convey real or personal property 5. Power to enter into contracts 6. To exercise such other powers as are granted to corporations, subject to the the limi limita tati tion ons s provided in the Code and other laws.

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their property.” property.” (Rur (Rural al Bank Bank of Maka Makati ti v. Makati, GR 150763, 07.02.2004)

3. Execution of Powers 1. Wher Where e statu statute te pres prescri cribe bes s the mann manner er of exercise, the procedure must be followed;

2.

Where here the the stat statu ute is sile silent nt,, local ocal government units have discretion to select reas reason onab able le mean means s and and meth method ods s of exercise. exercise.125

B. Governmental Powers 1. Genera Generall Welfa Welfare re (RA (RA 7160 7160,, Secti Section on 16) 16) 2. Basic Basic Serv Service ices s and Faci Facilit lities ies (RA (RA 7160 7160,, §17) §17) 3. Powe Powerr to Gener Generat ate e and Appl Apply y Resou Resourc rces es (RA 7160 §18; Article X, §§5-7) 4. Emin Eminen entt Doma Domain in (RA (RA 7160 7160,, § 19) 19) 5. Reclas Reclassif sifica icatio tion n of Land Lands s (RA 7160, 7160, § 20) 20) 6. Clos Closur ure e and Open Openin ing g of Roads Roads (RA (RA 7160, 7160, § 21) 7. Local Local Legis Legislat lative ive Powe Powerr (RA 7160, 7160, §§ 48-5 48-59) 9) 8. Auth Author orit ity y over over Polic Police e Unit Units s (See (See Artic Article le XVI, XVI, Section 6; PNP Act) 1. General Welfare RA 7160, Section 16: Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effect effective ive govern governanc ance, e, and those those which which are essent essential ial to the promot promotion ion of genera generall welfar welfare. e. Within their respective territorial jurisdiction, local government units shall ensure and support, among other things, the preservation and enrichment of culture, culture, promote health and safety, safety, enhance enhance the righ rightt of the the peop people le to a bala balanc nced ed ecol ecolog ogy, y, enco encour urag age e and and supp suppor ortt the the deve develo lopm pmen entt of appr approp opri riat ate e and and self self-r -rel elia iant nt scie scient ntif ific ic and and technologi technological cal capabilitie capabilities, s, improve improve public public morals, morals, enhance enhance economic economic prosperity prosperity and social justice, promot promote e full full employ employmen mentt among among its reside residents nts,, main mainta tain in peac peace e and and orde order, r, and and pres preser erve ve the the comfort and convenience of their inhabitants. Police power. The general welfare clause is the statutor statutory y grant grant of police police power power to local local government units. genera rall welf welfar are e clau clause se has has two two “The gene branches. branches. (1) General legislative power , authorizes the munici municipal pal counci councill to enact enact ordina ordinance nces s and make regulations not repugnant to law, as may be necessary to carry into effect and discharge the powers powers and duties duties confer conferred red upon upon the municipal council by law. (2) Police Police power power proper proper , auth author oriz izes es the the municipali municipality ty to enact ordinances ordinances as may be nece necess ssar ary y and and prop proper er for for the the heal health th and and safety, prosperity, morals, peace, good order, comfort, and convenience of the municipality and its inhabitants, and for the protection of 125

“As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests interests of the public public generally, generally, as distin distingui guishe shed d from from those those of a partic particula ular r class, require the interference of the State, and (2) (2) the the mean means s empl employ oyed ed are are reas reason onab ably ly necess necessary ary for the attain attainmen mentt of the object object sought sought to be accompl accomplish ished ed and not unduly oppres oppressiv sive e upon upon indiv individu iduals als.. Otherw Otherwise ise stated, there must be a concurrence of a lawful subject and lawful method .” (Lucena Grand Central v. JAC, GR 148339 02.23.2005) Limitatio Limitations ns on the exercise of powers powers under this clause:

1.

Exercisable only within territorial limits of the local government unit, except for protection of water supply.

2.

Equal protection clause. (The interests of the public public in general, general, as distinguis distinguished hed from those of a particular class, require the exercise of the power.

3.

Due process process clause clause. (The means employed employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals)

4.

Must not be contrary to the Constitution and the laws. laws. Prohib Prohibite ited d activi activitie ties s may not be legalized in the guise of regulation; activities allowe allowed d by law cannot be prohib prohibite ited, d, only only regulated. Magtajas Magtajas v. Pryce Properties: Properties: To be valid , an ordinance: a. Must not contravene the Constitution and any statute; b. Must not be unfair or oppressive; c. Must not be partial or discriminatory; d. Must not prohibit, but ay regulate trade; e. Must not be unreasonable and; f. Must be general in applic applicati ation on and consis consisten tentt with with public public policy.

Cases: Valid Exercise of Police Power Closure of Bank. A local government unit 1. may, may, in the exercise exercise of police police power power under under the general welfare clause, order the closure of a bank for failure to secure the appropriate mayor’s permit and busine business ss licens licenses. es. (Rura (Rurall Bank Bank of Makati Makati v. Municipality of Makati, 2004)

2. Antonio Nachura, Outline on Political Law, 562 (2006)


Ban on Shipment. Shipment. The SC upheld upheld,, as legitimate exercise of the police power, the validity of

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the the Puer Puerto to Prin Prince cesa sa Ordi Ordina nanc nce e “ban “banni ning ng the the shipment of all live fish and lobster outside Puerto Princ rinces esa a from from 1993 1993-1 -199 998 8 as well ell as the Sanggunian Sangguniang g Panlalawiga Panlalawigan n Resolution Resolution “prohibitin “prohibiting g that catching, gathering, possessing, buying, selling and shipment of live marine coral dwelling o f aquatic organi organism sms s for a period period of 5 years, years, coming coming from from Palawan waters.” 3. It wa was he held th that th the po power of of mu municipal corpor corporati ations ons is broad broad and has been been said said to be comm commen ensu surat rate e with with but but to exce exceed ed the the duty duty to provid provide e for the real real needs needs of the the people people in their their health health,, safety safety,, comfor comfortt and conven convenien ience, ce, 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. (Binay v. Domingo, 201 SCRA 508)

4.

Impositio Imposition n of Annual Annual Fee. It was held that where police power is used to discourage nonuseful occupations or enterprises, an annual permit/ license license fee of P100.00 P100.00 although a bit exorbitant, exorbitant, is vali valid. d. (Phy (Physi sica call Ther Therap apy y Orga Organiz nizat atio ion n of the the Philippines v. Municipal Board of Manila) 5. The ordinance requiring owners of commercial cemeteries to reserve 6% of their burial lots for burial grounds of paupers was held invalid; it was not an exerci exercise se of the police police power, power, but of eminent domain. (QC v. Ericta, 122 SCRA 759) 6. The M an anila O rd rdinance p ro rohibiting b ar arber shops from conducting massage business in another room room was was held held vali valid, d, as it was was pass passed ed for for the the protection of public morals. (Velasco v. Villegas, 120 SCRA 568) Zoning Ordinance. A zoning zoning ordinance ordinance 7. reclassify reclassifying ing residentia residentiall into commercia commerciall or light indust industria riall area area is a valid valid exerci exercise se of the police police power. (Ortigas v. Feati Bank, 94 SCRA 533) 8. The ac act of of the Mu Munici pa pal Ma Mayor in in op open in ing Jupiter and Orbit Streets of Bel Air Subdivision, to the public was deemed a valid exercise of police power. (Sangalang v. IAC, 176 SCRA 719) Invalid Ordinances

1.

LGU may not regulate subscriber rate. A loca locall gove govern rnme ment nt unit unit may may not not regu regula late te the the subscribe rates charged by CATV operators within its its terr territ itor oria iall juri jurisd sdic icti tion on.. The The regu regula lati tion on and and superv supervisi ision on of the the CATV CATV indust industry ry shall shall remain remain vested vested “solel “solely” y” in the NTC. NTC. Consid Consideri ering ng that that the CATV CATV indu indust stry ry is so tech techni nica call a fiel field, d, NTC, NTC, a specialized agency, is in a better position than the local government units to regulate it. This does not mean, mean, howeve however, r, that that the LGU cannot cannot prescr prescribe ibe regulations over CATV operators in the exercise of the general welfare clause. (Batangas CATV v. CA, 2004)

2.

Ordina Ordinance nce contra contrary ry to statut statute e held held invalid. The ordinance prohibiting the issuance of a business business permit permit to, and cancelling cancelling any business business permit of any establishment allowing its premises to be used as a casino, casino, and the ordinance ordinance prohibitin prohibiting g the operation of a casino, were declared invalid for being contrary to PD 1869 (Charter of PAGCOR)wh PAGCOR)which ich has the character character and force force of a statute. (Magtajas)


Atty. ARIS S. MANGUERA Where Where power power to grant grant franch franchise ise not 3. granted. What Congress delegated to the City of Manila in RA 409 (Revised Charter of Manila) with respect respect to wagers wagers and betting betting was the power “to licen license se,, perm permit it or regu regulat late, e,”” not not the the powe powerr to franchise. franchise. This means that the license license or permit issued by the City of Manila to operate wager or betting activity, such as jai-lai, would not amount to someth something ing meanin meaningfu gfull unless unless the holder holder of the license or permit was also franchised by the National Gove Govern rnme ment nt to oper operat ate. e. Ther Theref efor ore, e, Mani Manila la Ordinance No. 7065, which purported to grant ADC a frachise to conduct jai-alai operations, is void and ultra vires (Lim v. Pacquing) RA 7160 expressly expressly authorizes authorizes the Mayor Mayor to issue permits and licenses for the holding of activities for any charitable or welfare purpose; thus, thus, the the Mayor Mayor cannot cannot feign total lack of authority to act on requests for such permits. (Olivares v. Sandiganbayan , 1995) But its is the the Lagu Laguna na Lake Lake Deve Develo lopm pmen entt Auth Author orit ity y (LLDA), not the municipal government, which has the exclusive jurisdiction to issue permits for for the the enjoy enjoyme ment nt of fish fisher ery y priv privile ilege ges s in Laguna de Bay, by virtue of RA 4850, PD 813 and EO 927, because although RA 7160 vests in municipalities the authority to grant fishery privileges in municipal waters, RA 7160 did not repeal the charter of LLDA, and the latter is an exercise of the police power. (LLDA v. CA) 4. The ordinance of Bayambang, Pangas Pangasina inan, n, appoin appointin ting g Lacues Lacuesta ta manage managerr of fisheries fisheries for 25 years, years, renewable renewable for another another 25 years, years, was held invalid, invalid, ultra vires, as it effective effectively ly amends a general law.(Terrado, v. CA, 131 SCRA 373) 5. An ordinance imposing P0.30 police inspection fee per sack of cassava flour produced and shipped out of the municipality was held invalid. It is not not a lic license ense fee fee but but a tax, tax, unju unjust st and unre unreas ason onab able le,, sinc since e the the only only serv servic ice e of the the municipality is for the policeman to verify from the drivers of trucks of petitioner the number of sacks actual actually ly loaded loaded.. (Mata (Matalin lin Coconu Coconutt v. Munic Municipa ipall Council of Malabang, 143 SCRA 404) 6. The po power to to is issue pe permits to to op operate cockpits is vested in the Mayor, in line with the policy of loc local aut autono onomy. my. (Phi (Phili lipp ppin ine e Gamef amefow owll Commission v. IAC)

7.

The The Bocau ocaue, e, Bulac ulaca an ordi ordina nanc nce e proh prohib ibit itin ing g the the oper operat atio ion n of night night-c -clu lubs bs,, was was declar declared ed invali invalid, d, becaus because e of his prohib prohibito itory, ry, not merely regulatory, character. (Dela Cruz v. Paras, 123 SCRA 569) 8. It wa was he held th that th the or ordinance pe penalizing person persons s chargi charging ng full full paymen paymentt for admiss admission ion of children (ages 7-12) in moviehouses was an invalid exercise of police power for being unreasonable and oppressive on business of petitioners. (Balacuit v. CFI) 1993 Bar Question Q: Mayor Alfredo Lim closed the funhouses in the Ermita district district suspected suspected of being fronts for prostitut prostitution. ion. To determine the feasibility of putting up a legalized red light district, the city council conducted an inquiry and invited operators of the closed funhouses to get their views. No one honore honored d the the invita invitatio tion. n. The city city counc council il issued issued

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subpoenas to compel the attendance of the operators but which were completely disregarded. The council declared the operators guilty of contempt and issued warrants for their arrest. The operators come to you for legal advice, aski asking ng the the foll follow owin ing g ques questi tion ons: s: (1) (1) Is the the coun counci cill empo empowe were red d to issu issue e subp subpoe oenas nas to comp compel el thei their r attendance? (2) Does the council have the power to cite for contempt? Suggested Suggested Answer: Answer: (1) The The city ity coun counci cill is not empowered to issue subpoenas to compel the attendance of the operators of the fun-houses In the Ermita district. There There is no provis provision ion in the Consti Constitut tution ion,, the Local Local Government Code, or any law expressly granting local legislative bodies the power to subpoena witnesses. As held in Negros Oriental II Electric Cooperative, Inc. vs. Sangguniang Panlungsod of Dumaguete, 155 SCRA 421, such power cannot be implied from the grant of delegated legislated power. Such power is Judicial. To allow local legislative bodies to exercise such power without express statutory basis would violate the doctrine of separation of powers. (2) The city council does not have the power to cite for cont contem empt pt.. Ther There e is lik likewis ewise e no prov provis isio ion n in the Constitution, the Local Government Code, or any other laws granting local legislative bodies the power to cite for contempt. Such power cannot be deemed implied in the delegation of legislative power to local legislative bodies, for for the the exis existe tenc nce e of such such powe powerr pose poses s a pote potent ntia iall derogation of individual rights.

2. Basic Services and Facilities RA 7160, Section 17: Local government units shall endeav endeavor or to be self-r self-reli eliant ant and shall shall contin continue ue exercising the powers and discharging the duties and functions currently currently vested vested upon them. They shall also discharge the functions and responsibil responsibilitie ities s of national national agencies agencies and offices offices devolved to them pursuant to this Code (within 6 months after the effectivity of this Code) They shall likewise exercise such other powers and discharge such other functions as are necessary, appropriate, or incidental incidental to efficient efficient and effective effective provision provision of the basic services and facilities enumerated herein. Note that public works and infrastru infrastructur cture e projects projects and other facilities, programs and services funded by the the nation national al govern governmen mentt under under the Genera Generall Appropriations Act and other laws, are not covered unde underr this this secti ection on,, exce except pt wher where e the the loc local gove govern rnme ment nt unit unit is duly duly design designat ated ed as the the implement implementing ing agency agency for such projects, projects, facilities, facilities, programs and services. services.126 Devolution. Devolution refers to the act by which the national government confers power and authority upon the various local government units to perform specific functions and responsibilities. This includes the transfe transferr to the local govern governme ment nt units units of the records, equipment and other assets and personnel of national agencies and offices. Regional offices of national agencies shall be phased out within one year form the approval of this Code. Career regional direct directors ors who cannot cannot be absorb absorbed ed by the local government unit shall be retained by the national government government,, without without diminution diminution in rank, rank, salary salary or tenure. tenure.127 126 127

Antonio Nachura, Outline on Political Law, 566 (2006) Antonio Nachura, Outline on Political Law, 567 (2006)



3. Power to Generate and Apply Resources RA 7160, Section 18: 18 : Local government units shall have have the power and author authority ity to establ establish ish an orga organi niza zati tion on that that shal shalll be resp respon onsi sibl ble e for for the the effici efficient ent and effect effective ive implem implement entati ation on of their their deve develo lopm pmen entt plan plans, s, prog progra ram m obje object ctiv ives es and and priorities priorities;; to create their own sources of revenue 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 shar share e in the the nati nation onal al taxe taxes s whic which h shal shalll be automatically and directly released to them without need of further action; to have an equitable share in the proc procee eeds ds from rom the uti utiliza lizattion ion and and development of the national wealth and resources within within their their respec respectiv tive e territ territori orial al jurisd jurisdict iction ions s including including develop, develop, lease, lease, encumber, encumber, alienate alienate or otherwise dispose of real or personal property held by them in their proprietary capacity and to apply thei theirr reso resour urce ces s and and asse assets ts for for prod produc ucti tive ve,, developmental or welfare purposes, in the exercise of furtherance of their governmental or proprietary powers powers and functi functions ons and thereb thereby y ensure ensure their their develo developme pment nt into into self-r self-reli eliant ant commun communiti ities es and active active participan participants ts in the attainment attainment of national national goals. Sect Sectio ion n 18 of RA 7160 7160 rest restat ates es and and implements Sections 5,6,7 of Article X . But this power is always subject to the limitations which the the Cong Congre ress ss may may prov provid ide e by law. law. (Bas (Basco co v. PAGCOR, 197 SCRA 52) Thus, it was held that the local local gove govern rnme ment nt unit units s have have no powe powerr to tax tax instrumentalities of the National Government, such as PAGCOR. “The powe powerr to tax tax is prim primar arily ily vest vested ed in the the Congress; however, in our jurisdictions, it may be exercised exercised by local legislative legislative bodies, bodies, no longer longer merely by virtue of a valid delegation as before, but pursua pursuant nt to direct direct authori authority ty confer conferred red by Section 5, Article X of the Constitution . Under the latter the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. autonomy. xxx These policy considerations are consistent with the State policy to ensure ensure autono autonomy my to local local govern governme ments nts and the the objective of the LGC that they enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them effective partners in the attainment of nation national al goals. goals. The power power to tax is the most effective effective instrument instrument to raise needed revenues to fina financ nce e and and supp suppor ortt myri myriad ad acti activi viti ties es of loca locall government government units for the delivery of basic services services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people.” (Mactan Cebu International Airport v. Marcos, GR 110082, 09.11.96)

Q: What are the fund sources of governments? A: They are: 1. Local ta taxes, fees an and ch charges;

local

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Atty. ARIS S. MANGUERA munici municipal pal corpor corporati ation on the power power to tax tax certai certain n matters, it can also provide for exemptions or even take take back back the the powe power. r. xxx xxx The The powe powerr of local local government governments s to impose taxes and fees is always always subject to limitations which Congress may provide by law.xxx Local governments have no power to tax instrumentalities of the National Government and is ther theref efor ore e exem exempt pt from from loca locall taxe taxes. s. (Bas (Basco co v. PAGCOR, 197 SCRA 52)

2. Its share in the national taxes; 3. Its sh s hare in i n th t he pr p roceeds of o f th t he utiliz utilizati ation on of nation national al resour resources ces within within their their respective areas;

4.

Other Other “sourc “sources es of revenu revenues” es” which which they they may legitima legitimatel tely y make make use of either either in thei theirr publ public ic or gove govern rnme ment ntal al capa capaci city ty,, or private or proprietary capacity. capacity.128

3.

LGUs have the power to create their own sources of revenue, levy taxes, etc., but subject to such guidelines guidelines set by Congress. Congress. (Estanislao (Estanislao v. costales, 196 SCRA 853) 4. Section 1 87 87, R A 71 7160 wh w hich a ut uthorizes the Secretary of Ju st sti ce ce to review the constitutionality of 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. (Drilon v. Lim, 1 994)

Q: What is the scope of their power to levy taxes, fees, and charges? A: They They are are subj subjec ectt to such such guid guidel elin ines es and and limitations as Congress may provide. However, such guid guidel elin ines es and and limi limita tati tion ons s to be impos imposed ed by Congress must not be such as to frustrate the “basic policy of local autonomy.” 129 Q: What is the share of the national government in such taxes, fees and charges? A: None. None.130 Q: In what way can local governments share in the fruits of the utilization of local natural resources? A: Local governments can either have shares from revenues accruing through fees and charges or they can receive direct benefits such as lower rates, e.g., for consumption of electricity generated within their locality. locality.131

5.

The City of Cebu as a LGU, the power to collect real property taxes from the Mactan Cebu Internati International onal Airport Airport Auhtority Auhtority (MCIAA (MCIAA v. Marcos, Marcos, 1996) 1996) There There is no questi question on that that under under RA 6958, MCIAA is exempt form the payment of realty taxes imposed by the National Government or any of its political subdivisions; nevertheless, since taxation is the rule, the the exemption exemption may be withdrawn withdrawn at the pleasure of the taxing authority. The only exception to this rule is where the exemption was granted to private parties based on material consideration of a mutual nature, which then becomes contractual and is thus covered by the non-impairment clause of the Constitution.

Fundamental Principle Governing the Exercise of the Taxing and other Revenue-Raising Powers of LGUs (RA 7160, Section 130) 1. Taxati Taxation on shall shall be be unif uniform orm in each each LGU; LGU; 2. Taxes, fees, charges and other impositions shall be equitable and based as far as practicable on the taxpayer’s ability to pay; levied and collected only for public purposes; not not unjus njustt, exce exces ssiv sive, opp oppres ressiv sive or confiscat confiscatory; ory; and not contrary to law, public policy, national economic policy, or in restraint of trade;

While e inde indeed ed loca locall gove govern rnme ment nts s are are 6. Whil authorized to impose business taxes, they can do so only if the entity being subjected to business tax is a business. business. (Thus, (Thus, for Makati Makati to impose a business business tax on a condominium, the city must prove that the condominium is engaged in business.) 132

3.

The collec collectio tion n of local local taxes, taxes, fees and charges and other impositions shall in no case be let to any private person; 4. The revenu revenue e collec collected ted shall shall inure inure solely solely to the benefit of, and be subject to disposition by the local government government unit, unless specifica specifically lly provided herein; and 5. Each ach LGU LGU shall hall as far as pra practic ticable able evolve a progressive system of taxation.

Arti Articl cle e X, Sect Sectio ion n 6: “ Local governmen governmentt units shall have a just share, as determined by law, in the nation national al taxes taxes which which shall shall be automa automatic ticall ally y released to them.” Share in National Taxes. Section 6 mandates that (1) the LGUs shall have a "just share" in the national taxes; (2) the "just share" shall be determined by law; and (3) the "just share" shall be automatically rele releas ased ed to the the LGUs LGUs.. Thus Thus,, wher where e the the loca locall govern governmen mentt share share has been been determ determine ined d by the General General Approprat Appropration ion Act, its relese may not be made subject to te condition that "such amount shall be released to the local government units subject to the implement implementing ing rules and regulations regulations,, including including such mechanisms and guidelines for the equitable allocations and distribution of said fund among local government units subject to the guidelines that may be presc prescrib ribed ed by the the Oversi Oversight ght Commit Committee tee on Devolution." To subject its distribution and release to the the vaga vagari ries es of the the impl implem emen enti ting ng rule rules s and and regu regula lati tion ons, s, incl includ udin ing g the the guid guidel elin ines es and and

Cases:

1.

The exercise by local governments of the power to tax is ordained by the present Constitution; only only guid guidel elin ines es and and limi limita tati tion ons s that that may may be establishe established d by Congress can define define and limit such power of local governments. (Philippine Petroleum Corpor Corporati ation on v. Munici Municipal pality ity of Pililia Pililia,, Rizal, Rizal, 198 SCRA 82)

2. local local

Congress has the power of control over gove govern rnme ment nts; s; if Cong Congre ress ss can can gran grantt a

128


129


130


131



132

Yamane v. BA Lepanto Condominium, G.R. No. 154993, October October 25, 2005.

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mechanisms unilaterally prescribed by the Oversight Committee from time to time, as sanctioned by the assailed provisos in the GAAs of 1999, 2000 and 2001 and the OCD resolutions, makes the release not autom automat atic ic and and a flag flagra rant nt viol violat atio ion n of the the constituti constitutional onal and statutory statutory mandate that the "just share" of the LGUs "shall be automatically released to them." 133 Moreover, neither Congress nor the Executive may impo impos se cond condit itio ions ns on the rele releas ase. e. As the Constituti Constitution on lays upon the executive executive the duty to autom automat atic ical ally ly rele releas ase e the the just just shar share e of loca locall governments in the national taxes, so it enjoins the legislature not to pass laws that might prevent the executive from performing performing this duty. To hold that the execut executive ive branch branch may disreg disregard ard consti constitut tution ional al provisions which define its duties, provided it has the back backin ing g of stat statut ute, e, is virt virtua uall lly y to make make the the Constituti Constitution on amendable amendable by statute statute – a proposition proposition which is patently patently absurd. absurd. Moreover, Moreover, if it were the intent intent of the framers framers to allow allow the enactmen enactmentt of statut statutes es making making the the releas release e of IRA condit condition ional al instead of automatic, then Article X, Section 6 of the Constituti Constitution on would have been worded worded to say “shall be [automatically] released to them as provided by law.” law.”134 Fundamental Fundamental Principle Principle Governing Governing the Financial Financial Affairs, Affairs, Transactio Transactions ns and Operations Operations of LGUs (RA 7160, Section 305) 1. No mone money y shall shall be be paid paid out of the the local local trea treasur sury y exce except pt in purs pursua uanc nce e of an appr approp opri riat atio ion n ordinance of law; 2. Loca Locall gover governm nmen entt funds funds and mon monie ies s shall shall be spent solely for public purposes;

3.

4.

5.

6.

7.

8.

Local revenue revenue is generated only from sources sources expressly authorized by law or ordinance, and coll collec ecti tion on ther thereo eoff shal shalll at all all time times s be acknowledged properly. All moni monies es offic fficia iall lly y rece receiv ived ed by a loc local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; Trus Trustt funds funds in the the local local trea treasu sury ry shal shalll not be paid out except in fulfillment of the purpose for whic which h the the trus trustt was was creat created ed or the the fund funds s received; Ever Every y offi offic cer of the the loca locall gove govern rnme ment nt unit unit whose duties permit or require the possession or custod custody y of local local funds funds shall shall be proper properly ly bonded, and such officer shall be accountable and responsi responsible ble for said said funds funds and for the safeke safekeepi eping ng thereo thereoff in confor conformit mity y with with the provisions of law; Loca Locall gove govern rnme ment nts s shal shalll form formul ulat ate e soun sound d financial plans, and the local budgets shall be based on functions, activities, and projects in terms of expected results; Loca Locall budge budgett plans plans and and goals goals shal shall, l, as far far as practi practicab cable, le, be harmon harmonize ized d with with nation national al develo developme pment nt plans, plans, goals goals and strat strategi egies es in order to optimize optimize the utilization utilization of resources resources and to avoid duplication in the use of fiscal and physical resources.

133

Batangas v. Executive Secretary, Secretary, G.R. No. 152774. May 27, 27, 2004 134 Alternative Center v. Zamora, G.R. No. 144256, June 8, 2005.


Atty. ARIS S. MANGUERA 9. 10.

11. 11.

12.

13.

Loca Locall budg budget ets s shal shalll oper operat atio iona naliz lize e appr approv oved ed local development plans; LGUs shall shall ensure ensure that that their their respective respective budgets budgets inco incorp rpor orat ate e the the requ requir irem emen ents ts of thei their r compon component ent units units and provid provide e for equita equitable ble allo alloc catio ation n of res resourc ources es among ong thes hese component units; Nati Nation onal al plan planni ning ng shal shalll be base based d on loca locall plan planni ning ng to ensu ensure re that that the the need needs s and and aspirations of the people is articulated by the LGUs LGUs in their their respec respectiv tive e local local develo developme pment nt plans plans are consid considere ered d in the formul formulati ation on of budgets of national line agencies or offices; Fiscal Fiscal responsibi responsibility lity shall shall be shared shared by all all those those exercisin exercising g authority authority over the financial financial affairs, affairs, transactions, and operations of the LGUs; and The LGU LGU shall shall endeavo endeavorr to have a balanc balanced ed budget in each fiscal year of operation.

1991 Bar Question Q:The Q:The province of Palawan passes an ordinance requiring requiring all owners/oper owners/operators ators of fishing fishing vessels vessels that that fish fish in waters waters surrou surroundi nding ng the provin province ce to invest ten percent (10%) of their net profits from operat operation ions s therei therein n in any enterp enterpris rise e locate located d in Pala Palawa wan. n. NARC NARCO O Fish Fishin ing g Corp Corp., ., a Fili Filipi pino no corpor corporati ation on with with head head office office in Navota Navotas, s, Metro Metro Manila, challenges the ordinance as unconstitutional. Decide the case. Suggested Answer: The ordinance is invalid. The ordina ordinance nce was appare apparentl ntly y enacte enacted d pursua pursuant nt to Article X, Sec. 7 of the Constitution, which entitles local local govern governmen ments ts to an equita equitable ble share share in the proceeds of the utilization and development of the nation national al wealth wealth within within their their respec respectiv tive e areas. areas. However, this should be made pursuant to law. A law is needed to implement this provision and a local government government cannot cannot constitute constitute itself unto a law. law. In the the abse absenc nce e of a law law the the ordi ordina nanc nce e in question is invalid. 4. Eminent Domain RA 7160, Section 19: A Local Government Unit may, may, thro throug ugh h its its chie chieff exec execut utiv ive e and and acti acting ng pursu pursuan antt to an ordinance, ordinance, exer exerci cise se powe powerr of eminen eminentt domain domain for public public use, or purpos purpose, e, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provis provision ions s of the Consti Constitut tution ion and pertin pertinent ent laws laws:: Prov Provid ided ed,, howe howeve ver, r, That That the the powe powerr of eminen eminentt domain domain may not be exerci exercised sed unless unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, That the LGU may immediately take possession of the property upon the filing of exprop expropria riatio tion n procee proceedin dings gs and upon upon making making a deposit with the proper court of at least 15% of the fair fair market market value of the property property based on the curr curren entt tax tax decl declar arat atio ion n of the the prop proper erty ty to be expropriated: Provided, finally, That the amount to be paid paid for the exprop expropria riated ted proper property ty shall shall be determined by the proper court, based on the fair mark market et valu value e at the the time time of the the taki taking ng of the the property.

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“Local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature. By virtue of RA 7160, 160, Cong Congre res ss conf onferre erred d upon upon loc local govern governmen mentt units units the power power to exprop expropria riate. te. xxx There There are two legal legal provis provision ions s which which limit limit the the exer exerci cise se of this this powe power: r: (1) (1) no pers person on shal shalll be depriv deprived ed of life, life, libert liberty, y, or proper property ty withou withoutt due process of law, nor shall any person be denied the equal protection of the laws; and (2) private property shall shall not not be take taken n for for publ public ic use use with withou outt just just comp compen ensa sati tion on.. Thus Thus,, the the exer exerci cis se by loca locall government units of the power of eminent domain is not absolute. In fact, Section 19 of RA 7160 itself explicitly states that such exercise must comply with the provis provision ions s of the Consti Constitut tution ion and perti pertinen nentt laws.” (Lagcao v. Labra, GR 155746, 10.13. 2004) “Strictly “Strictly speaking, speaking, the power of eminent eminent domain domain delegated to an LGU is in reality not eminent but "inferior" domain, domain, since since it must must confor conform m to the limits imposed by the delegation, and thus partakes only only of a share share in eminen eminentt domain domain.. Indeed Indeed,, "the "the national legislature is still the principal of the local govern governmen mentt units, units, which cannot cannot defy defy its will will or modify or violate it.” (Paranaque v. VM Realty Corp., GR 127820, 07.20.98) “It is true true that that local local govern governmen mentt units units have have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature. It is also also true true that that in dele delega gati ting ng the the powe powerr to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governme governments. nts. While such delegated delegated power power may be a limite limited d author authority ity,, it is comple complete te within within its limits. Moreover, Moreover, the limitations limitations on the exercise exercise of the delegated delegated power must be clearly clearly expressed, either in the law conferring the power or in other legislations. Statutes conferring the power of eminen eminentt domain domain to politi political cal subdiv subdivisi isions ons cann cannot ot be broa broade den ned or con constri strict cted ed by implication.” implication.” (Provi (Province nce of Camari Camarines nes Sur v. CA, 222 SCRA 173)

Limita Limitatio tions ns on the Exerci Exercise se of the Power Power of Eminent Domain by Local Government Units: 1. Exercised only by the local chief exec execut utiive, ve, act acting ing purs pursua uant nt to a valid alid ordinance; 2. For pu public us use or or pu purpose or or we welfare, for the benefit of the poor and the landless; 3. Only af a fter a va v alid an and de d efinite of offer had been made to, and not accepted by, the owner. It was held held that that the the Sanggu Sanggunia niang ng Panla Panlalaw lawiga igan n cannot cannot validl validly y disapp disapprov rove e the resolu resolutio tion n of the municipalit municipality y expropriat expropriating ing a parcel parcel of land for the establishment of a government center. The power of emin eminen entt doma domain in is expl explic icit itly ly gran grantted to the the municipality under the Local Government Code. 2005 Bar Question Q: The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina as site for its municipal sports center. This was


Atty. ARIS S. MANGUERA approv approved ed by the the Mayor. Mayor. Howeve However, r, the Sanggu Sanggunia niang ng Panlalawigan of Ilocos Sur disapproved the Resolution as there there might still be other available available lots in Santa for a sports sports center. center. Nonetheless Nonetheless,, the Municipalit Municipality y of Santa, Santa, through its Mayor, filed a complaint for eminent domain. Christina opposed this on the following grounds: (a) the Municipality of Santa has no power to expropriate; (b) Resolution No. 1 has been voided since the Sangguniang Panlalawigan disapproved it for being arbitrary; and (c) the Municipality of Santa has other and better lots for that purpose. Resolve the case with reasons. Suggested Answer : Under Section 19 of R.A. No. 7160, the power of eminent domain is explicitly granted to the municipality, but must be exercised through an ordinance rat rather her than than thro throug ugh h a reso resolu luti tion on.. (Mun (Munic icip ipal alit ity y ofParanaque v. V.M. Realty Corp., G.R. No. 127820, July 20, 1998) The Sangguniang Panlalawigan of Ilocos Sur was without the authorit authority y to disapp disapprov rove e Resolu Resolutio tion n No. 1 as the the municipality clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgat promulgate e said resolution. resolution. The only ground upon which which a provin provincia ciall board board may may declar declare e any munici municipal pal resolu resolutio tion, n, ordina ordinance nce or order order invali invalid d is when when such such resolu resolutio tion, n, ordina ordinance nce or order order is beyond beyond the powers powers conferred upon the council or president making the same. Such is not the situation in this case. (Moday v. Court of Appeals, G.R. No. 107916, February 20, 1997) The question of whether there is genuine necessity for the the expr expropr opria iati tion on of Chri Christ stin ina' a's s lot lot or whet whethe herr the the municipality has other and better lots for the purpose is a matter that will have to be resolved by the Court upon presentation of evidence by the parties to the case.

5. Reclassification of Lands A city or municipality may, through an ordinance passed passed after after conduc conductin ting g public public hearin hearings gs for the purp purpos ose, e, auth author oriz ize e the the recl reclas assi sifi fica cati tion on of agricultural lands and provide for the manner of their utilization or disposition: 1. When When the the land land ceas ceases es to to be econom economica ically lly feas feasib ible le and and soun sound d for for agri agricu cult ltur ural al purposes as determined by the Department of Agriculture, or 2. Wher Where e the land land shall shall have have substa substant ntia iall lly y greate greaterr econom economic ic value value for reside residenti ntial, al, commer commercia ciall or indust industria riall purpos purposes, es, as determined by the sanggunian; Provi Provided ded that that such such reclas reclassif sifica icatio tion n shall shall be limited to the following percentage of the total agri agricu cult ltur ural al land land area area at the the time time of the the passage of the ordinance: i. For highly urbanized cities and independent component cities: 15%

ii.

For componen componentt cities cities and 1st to 3rd class municipalities: 10%

iii.

For 4th to 6th municipalities: 5%. Provided that agricultural land distributed to land land refo reform rm bene benefi fici ciar arie ies s shal shalll not not be affected by such reclassification.

6. Closure and Opening of Roads RA 7160, Section 21. A local government unit may, purs pursua uant nt to an ordi ordina nanc nce, e, perm perman anen entl tly y or

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tempor temporari arily ly close close or open open any local local road, road, alley, alley, park park or squa square re fall fallin ing g with within in its its juri jurisd sdic icti tion on,, provided that in case of permanent closure, such ordinance must be approved by at least 2/3 of all the the memb member ers s of the the sang sanggu guni nian an,, and and when when necessary, an adequate substitute for the public facility shall be provided. Additi Additiona onall limita limitatio tions ns in case case of perman permanent ent closure: 1. Adeq Adequa uate te prov provis isio ion n for for the the main mainte tena nanc nce e of public safety must be made; 2. The prop propert erty y may may be used used or or conve conveyed yed for for any any purpose for which other real property may be lawful lawfully ly used used or convey conveyed, ed, but no freedo freedom m park park shal shalll be clos closed ed perm perman anen entl tly y with withou outt provision for its transfer or relocation to a new site. Note: Temporary closure may be made during an actual actual emerge emergency ncy,, fiesta fiesta celebr celebrati ations ons,, public public rallies, etc. Cases: 1.

2.

3.

4.

5.

6.

A munic municipa ipalit lity y has the auth authori ority ty to to prepar prepare e and adopt a land land use map, promu promulgate lgate a zoning zoning ordina ordinance nce,, and close close any munici municipal pal road. road. (Pilapil v. CA, 216 SCRA 33) The The clos losure ure of 4 stre street ets s in Bacl aclaran aran,, Paranaque was held invalid for non-compliance with MMA Ordinance No. 2. Further, provincial roads and city streets are property for public use under Article 424, Civil Code, hence under the absolut absolute e contr control ol of Congre Congress. ss. They They are outside the commerce of man, and cannot be dispos disposed ed of to privat private e person persons. s. (Note: (Note: This This case was decided under the aegis of the old Loca Locall Gove Govern rnme ment nt Code Code)) (Mac (Macas asia iano no v. Diokno, 212 SCRA 464) One One whos hose prop proper erty ty is not not loc located ated on the closed section of the street ordered closed by the Provincial Board of Catanduanes has no right to compensation compensation for the closure if he still has reasonable reasonable access access to the general system of streets. (Cabrera v. CA, 195 SCRA 314) The The powe powerr to vaca vacate te is discr discret etio iona nary ry on the Sanggunian.xxx when properties are no longer intended for public use, the same may be used or conveyed for any lawful purpose, and may even even become become patrimo patrimonia niall and thus be the subject of common contract. (Cebu Oxygen & Acetylene Co. v. Berciles, 66 SCRA 481) The City City Coun Council cil has has the the author authority ity to to determ determine ine whether or not a certain street is still necessary for public public use. use. (Favis (Favis v. City City of Baguio Baguio,, 29 SCRA 456)


a. Products of legislative action:

1. OrdinanceOrdinance- prescribes a permanent rule of conduct. 2.

ResolutionResolution- of temporary character, or expresses sentiment.

b. Requisites for validity 1. Must Must not cont contra rave vene ne the Cons Consti titu tuti tion on and any statute; 2. Must Must not not be be unfa unfair ir or opp oppre ress ssiv ive; e; 3. Must Must not not be partia partiall or discri discrimi minat natory ory;; 4. Must Must not not proh prohib ibit it but but may may regu regula late te trade; 5. Must Must not not be be unr unrea easo sona nabl ble; e; 6. Must Must be gener general al in appli applica cati tion on and and consistent with public policy. c. Approval of Ordinances Ordi Ordina nanc nces es pass passed ed by the the sang sanggu guni nian ang g panlal panlalawi awigan gan,, sanggu sanggunia niang ng panlun panlungso gsod, d, or sangguniang bayan shall be approved: 1. If the the local local chief chief exec execut utiv ive e appro approve ves s the same, affixing his signature on each an every page thereof.

2.

If the local chief executive vetoes the same, and the veto is overridden by 2/3 vote of all the members of the sanggu sanggunia nian. n. The local local chief chief execut executive ive may veto the ordinance, only once, on the ground that the ordinance is ultra vires, or that it is prejudicial to the public welfare. He may veto any particular item or items of an appr approp opri riat atiion ordi ordin nance ance,, an ordi ordina nanc nce e or reso resolu luti tion on adop adopti ting ng a development plan and public investment progra program, m, or an ordina ordinance nce direct directing ing the payment of money or creating liability. In such a case, the veto shall not affect the items or items which are not objected to. The veto shall be communicated by the local chief executive to the sanggunian sanggunian within 15 days in case of a province, or 10 days days in case case of a city city or muni munici cipa pali lity ty;; otherwise, the ordinance shall be deemed approved as if he signed it. In Delos Reyes v. Sandiganbayan, 1997, wher where e peti petiti tion oner er was was char charge ged d with with falsif falsifica icatio tion n of a public public docume document nt for for approving approving a resolution resolution which purported purportedly ly appropriate money to pay for the terminal leave of 2 employees employees when actually actually no such resolution was passed, the petitioner argued that his signature on the resolution was merely ministerial. The SC disagreed, saying saying that the grant of the veto power accords the Mayor the discretion whether or not to disapprove the resolution.

The City Mayor of Manila cannot by himself, withdraw Padre Rada as a public market. The establ establish ishmen mentt and maint maintena enance nce of public public markets is among the legislative powers of the City of Manila; hence, the need for joint action by the Sanggunian and the Mayor.

“A sanggunian is a collegial body . Legislation,

7. Local Legislati Legislative ve Power Power (Exercised (Exercised by the local sanggunian)

which is the principal function and duty of the sanggunian, requires the participation of all its members so that they may not only represent


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the interests of their respective constituents but also help in the making of decisions by voting upon every question put upon the body. The acts of only a part of the Sanggunian done outside the the para parame mete ters rs of the the lega legall prov provis isio ions ns afor aforem emen enti tion oned ed are are lega legall lly y infi infirm rm,, high highly ly questionable and are, more importantly, null and void. And all such acts cannot be given binding force and effect for they are considered unofficial acts acts done done during during an unauth unauthori orized zed sessio session.” n.” (Zamora v. Caba Caball ller ero, o, GR 1477 147767 67,,

01.14.2004) [Note Note:: Ordi Ordina nanc nces es enact nacted ed by the the sang sanggu guni nian ang g bara barang ngay ay shal shall, l, upon upon approval by a majority of all its members, be signed by the punong barangay. The latter has no veto power.] d. Review by Sangguniang Panlalawigan Panlalawigan Procedure: Within 3 days after approval, the secret secretary ary of the sangun sangunian iang g panlug panlugsod sod (in compon component ent cities cities)) or sanggu sanggunin ninang ang bayan bayan shall forward to the sangguniang panglalawigan for review copies of approved ordinances and resolutions approving the local develo developme pment nt plans plans and public public invest investmen mentt programs formulated by the local development councils. The sannguniang panlalawigan shall review the same within 30 days; if it finds that the the ordi ordina nanc nce e or resol resolut utio ion n is beyo beyond nd the the powe powerr conf confer erre red d upon upon the the sang sanggu guni nian ang g panlusgsod or sagguniang bayan concerned, it shall shall declar declare e such such ordina ordinance nce or resolu resolutio tion n invalid in whole or in part. If no action is taken within 30 days, the ordinance or resolution is presumed consisted with law, valid. e. Review of Barangay Ordinances Within 10 days from enactment, the sangguniang sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang sangguniang panlungsod or sangguniang bayan for review. If the reviewing sanggunian finds the barangay ordina ordinance nces s incons inconsist istent ent with with law or city city or muni munici cipa pall ordi ordina nanc nces es,, the the sang sanggu guni nian an concerned shall, within 30 days form receipt thereof, return the same with its commentsand reco recomm mmen enda dati tion ons s to the the sang sanggu guni nian ang g bara barang ngay ay for for adju adjust stme ment nt,, amen amendm dmen entt or modification, in which case the effectivity of the ordina ordinance nce is suspen suspended ded until until the revisi revision on called for is effected. If no action is taken by the sangguniang panlungsod or sangguniang baya bayan n with within in 30 days days,, the the ordi ordina nanc nce e is deemed approved. f. Enforcemen Enforcementt of disapprove disapproved d ordinance ordinances/ s/ resolutions Any Any atte attemp mptt to enfo enforc rce e an ordi ordina nanc nce e or resolution resolution approving approving the local developme development nt plan and public investment program, after the



disapproval thereof, shall be sufficient ground for the suspension or dismissal of the official or employee concerned. g. Effectivity. Unless otherwise stated in the ordinance or resolution, the same shall take effect after 10 days from the date a copy thereof is posted in a bull bullet etin in boar board d at the the entr entran ance ce of the the prov provin inci cial al capi capito tol, l, or city city,, muni munici cipa pall or bara barang ngay ay hall hall,, and and in at leas leastt two two othe other r conspicuous conspicuous places in the local government government unit concerned. i. The The gist gist of all all ord ordin inan ance ces s with with pena penall sanction sha shall be published in a newspaper newspaper of general general circulation circulation within the province where the local legislative body concerned belongs. In the absence of a newspa newspaper per of genera generall circul circulati ation on with within in the the prov provin ince ce,, post postin ing g of such such ordinances ces shall be made in all municipalities and cities of the province wher where e the the sang sanggu guni nian an of orig origin in is situated. ii. ii. In the the cas case e of hig highl hly y urba urbani nize zed d and and independent component cities, the main features features of the ordinance or resolution resolution duly enacted shall, in additions to being post posted ed,, be publ publis ishe hed d once once in a loca locall newspaper newspaper of general general circulation circulation within the city; of there is no such newspaper within the city, then publication shall be made made in any any news newspa pape perr of gene genera rall circulation. h. Scope of Local Law Making Authority 1. Sangg anggun uniians ans exer exerci cise se only nly delegated legislative powers conferred on them by Congress. As mere agents, local governments are vested with the power of subordinate subordinate legislatio legislation. n. (Mag (Magta taja jas s v. Pryce, GR 111097, 07.20.94) 2. It is a funda undame men ntal tal prin princi cipl ple e that hat municipal ordinances are inferior in status and subordinate to the laws of the State. An ordinance in conflict with a state law of general character and statewide appl applic icat atio ion n is univ univer ersa sall lly y held held to be inva invali lid. d. The The prin princi cipl ple e is freq freque uent ntly ly expr expres esse sed d in the decl declar arat atiion that hat munici municipal pal author authoriti ities, es, under under a genera generall grant of power, cannot adopt ordinances which infringe upon the spirit of a state law or repugnant to the general policy of the stat state. e. In ever every y powe powerr to pass pass ordinances given to a municipality, there is an implied restriction that the ordinances ordinances shall be consistent with the general law. (Batangas CATV v. Court of Appeals, GR 138810, 09.20.2004)

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3. The The 1991 1991 Loca Locall Gover Governm nmen entt Code Code provides that local legislative power shall be exer exerci cise sed d by the the sang sanggu guni nian an.. The The legislative acts of the sanggunian in the exerci exercise se of its lawmak lawmaking ing author authority ity are deno denomi mina nate ted d ordin ordinan ance ces. s. For For an ordinance to be valid, it must not only be within the corporate powers of the local government concerned to enact but must also be passed sed acco ccording to the procedure prescribed by law. (Lagcao v. Labra, GR 155746, October 13, 2004) 4. A provi proviso so in an ordi ordina nanc nce e dire direct ctin ing g that the real property tax be based on the actual actual amount amount reflecte reflected d in the deed of conveyance conveyance or the prevailing prevailing BIR zonal valu value e is inva invali lid d not not only only beca becaus use e it mandates an exclusive rule in determining the fair market value but more so because it departs from the established procedures stated in the Local Assessme sment Regu Regula lattions ions No. No. 1-92 1-92 and and undu unduly ly interferes with the duties statutorily placed upon upon the local local assesso assessorr by comple completel tely y dispensing with his analysis and discretion whic which h the the Code Code and and the the regu regula lati tion ons s requir require e to be exerci exercised sed.. Furthe Further, r, the charter does not give the local government that authority. An ordinance that contravenes any statute is ultra vires and void. (Allied Banking Corporation v. Quezon City, GR 154126, 10.11.2005) 1999 Bar Question Q: John Johnny ny was was empl employ oyed ed as a driv driver er by the the Municipali Municipality ty of Calumpit, Calumpit, Bulacan. While driving recklessly a municipal dump truck with its load of sand for the repair of municipal streets,Johnny hit a jeepn jeepney. ey. Two passen passenger gers s of the jeepne jeepney y were were kill killed ed.. The The Sang Sanggu guni nian ang g Baya Bayan n pass passed ed an ordinance appropriating P300,000 as compensation for the heirs of the victims. 1) Is the municipality liable for the negligence of Johnny? 2) Is the municipal ordinance valid? Suggested Answer : 2) The ordinance appropriating P300,000.00 for the heirs of the victims of Johnny is void. This amounts to appropriating public funds for a private purpose. Under Section 335 of the Local Government Code, no public money shall be appropriated for private purposes. Altern Alternati ative ve Answer Answer:: Upon Upon the the fore forego goiing considerations, the municipal ordinance is null and void for being ultra vires. The municipality not being liable liable to pay compensa compensatio tion n to the heirs of the victi victims, ms, the ordina ordinance nce is utterl utterly y devoid devoid of legal legal basis. It would in fact constitute an illegal use or expend expenditu iture re of public public funds funds which which is a crimin criminal al offens offense. e. What What is more, more, the ordinance ordinance does does not meet one of the requisites for validity of municipal



ordinances, ie., that it must be in consonance with certain well-established and basic principles of a substantiv substantive e nature, nature, to wit: [it does not contravene contravene the the Cons Consti titu tuti tion on or the the law, law, it is not not unfa unfair ir or oppressive. It is not partial or discriminatory. It is cons consis iste tent nt with with publ public ic poli policy cy,, and and it is not not unreasonable.] 8. Authority Over Over Police Units As may be provided by law. (See Section 6, Article XVI; PNP Act) C. Corporate Powers Local government units shall enjoy full autonomy in the exercise of their proprietary functions and in the management of their economic enterprises, subject to limi limita tati tion ons s prov provid ided ed in the the Code Code and and othe other r applic applicabl able e laws. laws. The corpor corporate ate powers powers of local local government units are: 7. To ha have co continuous su succession in in itits corporate name. 8. To sue and be sued 9. To have and use a corporate seal 10. To acquire and convey real or personal property 11. Power to enter into con contracts 12. 12. To exer exerci cise se such such othe otherr powe powers rs as are are gran grante ted d to corp corpor orat atio ions ns,, subj subjec ectt to the the limita limitatio tions ns provid provided ed in the Code Code and other other laws. 1. To have have cont contin inuo uous us succe success ssio ion n in its corporate name 2. To sue and be sued The rule is that suit is commenced by the local executive, upon the authority of the Sanggunian, except when the City Councilors themselves and as representatives of or on behalf of the City, bring action action to prevent unlawful disbursement disbursement of City funds. (City Council of Cebu v. Cuison, 47 SCRA 325) But the munici municipal pality ity cannot cannot be repres represent ented ed by a private private attorney. attorney. Only the Provincia Provinciall Fiscal Fiscal or the Munici Municipal pal Attor Attorney ney can repres represent ent a provin province ce or munici municipal pality ity in lawsui lawsuits. ts. This is mandat mandatory ory.. The municipality’s authority to employ a private lawyer is limited limited to situations situations where the Provincia Provinciall Fiscal Fiscal is dis disqual qualif ifie ied d to repr repres esen entt it, it, and and the the fact fact of disqualific disqualification ation must appear appear on record. record. The Fiscal’s Fiscal’s refusa refusall to repres represent ent the munici municipal pality ity is not legal legal justifica justification tion for employing employing the services services of private private coun counse sel; l; the the muni munici cipa pali lity ty shou should ld requ reques estt the the Secretary of Justice to appoint an Acting Provincial Fiscal in place of the one declined to handle the case in court. (Municipality of Pililia Rizal v. CA, 233 SCRA 484)

3. To have and use a corporate corporate seal

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LGUs may continue using, modify or change their corporate seal; any change shall be registered with the DILG.135 4. To acquir acquire e and convey convey real real or persona personall property a. The The LGU may acqu acquir ire e tangi tangibl ble e or intang intangib ible le property, in any manner allowed by law, e.g., sale, donation, etc. b. The The local local govern governme ment nt unit unit may alien alienat ate e only patrimonial property, upon proper authority.

c.

d.

e.

f.

g.

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 municipality and thus, is govern governmen mental tal or public public proper property. ty. (Salas (Salas v. Jarencio, 48 SCRA 734) Town Town plazas plazas are are proper propertie ties s of public public domin dominion ion;; they may be occupied temporarily, but only for the the dura durati tion on of an emer emerge genc ncy y (Espi (Espiri ritu tu v. Pangasinan, 102 Phil 866) A public public plaza is beyond beyond the commer commerce ce of man, and cannot be the subject of the lease or other other contra contractu ctual al undert undertaki aking. ng. And, And, even even assuming the existence of a valid lease of the public public plaza plaza or part part thereo thereof, f, the munici municipal pal reso resolu luttion ion effe effect ctiv ivel ely y term termin inat ated ed the agreem agreement ent,, for it is settle settled d that that the police police power power cannot cannot be surren surrender dered ed or bargai bargained ned away away thro throug ugh h the the medi medium um of a cont contra ract ct.. (Villanueva v. Castaneda, 154 SCRA 142) Public Public street streets s or thor thoroug oughfa hfares res are prop propert erty y for for public use, outside the commerce of man, and may may not not be the the subj subjec ectt of leas lease e or othe other r contracts. (Dacanay v. Asistio, 208 SCRA 404) Procure Procuremen mentt of suppli supplies es is made made throug through h competitiv competitive e public public bidding bidding [PD 526], except when the amount is minimal minimal (as prescribed prescribed in PD 526) where a personal canvass of at least three three respon responsib sible le mercha merchants nts in the locali locality ty may be made by the Committee on Awards, or in case case of emer emerge genc ncy y purc purcha hase ses s allo allowe wed d under PD 526. 526.136

5. Power to Enter into Contracts Contracts Requisites of valid municipal contract:

1. 2.

135

136

The The loca locall gove govern rnme ment nt unit units s has has the the expres express, s, implie implied d or inhere inherent nt power power to enter into the particular contract. The contra contract ct is is enter entered ed in in to by the the prop proper er department department,, board, committee, committee, officer officer or agent. Unless otherwise provided by the Code, no contract may be entered into by the local chief executive on behalf of the loca locall gove govern rnme ment nt unit unit with withou outt prio prior r

Antonio Nachura, Outline on Political Law, 576 (2006) Antonio Nachura, Outline on Political Law, 576 (2006)



3.

4.

authorization by the san sanggunian concerned. The The cont contra ract ct must must comp comply ly with with cert certai ain n subs substa tant ntiv ive e requ requir irem emen ents ts,, i.e. i.e.,, when when expenditure of public fund is to be made, there must be an actual appropriation and a certificate of availability of funds. The contra contract ct must must comply comply with with the formal formal requirements of written contracts, e.g. the Statute of Frauds.

Ultra Vires Contracts. When a contract is entered into into withou withoutt the complian compliance ce with with the 1st and 3rd requisites (above), the same is ultra vires and is null and void. Such contract cannot be ratified or valida validated ted.. Ratifi Ratificat cation ion of defect defective ive munici municipal pal cont contra ract cts s is poss possib ible le only only when when ther there e is nonnoncompli complianc ance e with with the second second and/or and/or the fourth fourth requir requireme ements nts above. above. Ratifi Ratificat cation ion may either either be express or implied. In Quezon City v. Lexber, 2001, it was held that PD 1445 1445 does does not not prov provid ide e that that the the abs absence ence of appropriation ordinance ipso fact makes a contract entere entered d into into by a local local govern governmen mentt unit unit null null and void void.. Publ Public ic fund funds s may may be disbu disburs rsed ed not not only only purs pursua uant nt to an appr approp opri riat atio ion n law, law, but but also also in pursuance pursuance of other specific statutory statutory authority authority.. (In this case, BP 337, the law which was then in force, empowered the Mayor to represent the city in its business transactions and sign all warrants drawn on the city treasury and all bonds, contracts and obligations of the city. While the Mayor has power to appropriate funds to support the contracts, neither does does BP 337 337 proh prohib ibit it him him from from ente enteri ring ng into into contracts contracts unless and until funds are appropriat appropriated ed therefor. By entering into the two contracts, Mayor Simon Simon did not usurp usurp the city counci council’s l’s power to provide for the proper disposal of garbage and to appr approp opri riat ate e fund funds s ther theref efor or.. The The exec execut utio ion n of contracts to address such a need is his statutory duty, just as it is the city council’s duty to provide for such service. There is no provision in the law that prohibits the city mayor form entering into contracts for the public welfare unless and until there is a prior authority form the city council.)

Other Cases:

1.

A contract of lease granting fishing privileges is a valid valid and binding binding contra contract ct and cannot cannot be impaired impaired by a subsequen subsequentt resolutio resolution n setting setting it aside aside and gratin grating g the privil privilege ege to anoth another. er. (Unless the subsequent resolution is a police measure, because the exercise of police power prevai prevails ls over over the the non-im non-impai pairme rment nt clause clause.) .) (Manantan v. La Union, 82 Phil 844)

2.

A munic municipa ipall zoning zoning ordina ordinance nce,, as a police police measure, measure, prevails prevails over the non-impair non-impairment ment clause. (Ortigas v. Feati Bank, 94 SCRA 533)

3.

Breach of contractual obligations by the City of Manila renders the City liable in damages. The principle of respondeat of respondeat superior applies. superior applies.

Authority to negotiate and secure grants. (RA 7160, Section 23) the local chief executive may, upon authority authority of the sanggunian, sanggunian, negotiate negotiate and

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secure secure financ financial ial grants grants or donati donations ons in kind, kind, in supp suppor ortt of the the basi basic c serv servic ices es and and faci facili liti ties es enumerated in Section 17, from local and foreign assistance agencies without necessity of securing clea cleara ranc nce e or appr approv oval al form form and and depa depart rtme ment nt agency agency,, or office office of the nation national al govern governmen mentt or from any higher local government unit; Provided, that projects financed by such grants or assistance with with nati nation onal al secu securi rity ty impl implic icat atio ions ns shal shalll be approved by the national agency concerned. 6. To exer exerci cise se such such other other powers powers as are gran ranted ted to corp orpora oratio tions subj subjec ectt to the the limitations provided in the Code and other laws.


persons or damage to property, it is still unclear whet whethe herr liab liabil ilit ity y will will accr accrue ue when when the the loca locall gove govern rnme ment nt unit unit is enga engage ged d in gove govern rnme ment ntal al functions. functions. Supreme Supreme Court decisions, decisions, interpreti interpreting ng legal provisions existing prior to the effectivity of the Local Government Code, have come up with the following rules on municipal liability for tort: 1. If the LGU is engaged in governmental functions, it is not liable; 2. If engag engaged ed in propr proprie ieta tary ry func functi tion ons; s; LGU LGU is liable. 1. If the LGU is enga engage ged d in gove govern rnme ment ntal al functions, it is not liable.

i.

The prosecution of crimes is a governmental function, and thus, the local government unit may not be held liable theref therefor. or. (Palaf (Palafox ox v. Provin Province ce of Ilocos Ilocos Norte, 102 Phil 1186)

ii.

In Municipality of San Fernando v. Firme, 195 SCRA 692, the municipality was not held liable for torts committed by a regular employee, even if the dump truck used belong belong to the municipali municipality, ty, inasmuch as the employee was discharging governmental (public works) functions.

iii.

Deli Delive very ry of sand sand and and grav gravel el for for the the constructio construction n of municipal municipal bridge in the exercise of the governmental capacity of local governments. The municipality is not liab liable le for injur njurie ies s that hat aris arise e in the the performanc performance e of government governmental al functions. functions. (La Union v. Firme,195 SCRA 692)

V. Municipal Liability RULE: LGUs LGUs and their their offici officials als are not exempt exempt from from liab liabil ilit ity y for for deat death h or inju injury ry to pers person ons s or damage to property (RA 7160, Section 24) A. Specific Provisions of Law Making LGUs Liable

1.

Article 2189, Civil Code: The Local Gove Govern rnme ment nt Unit Unit is liab liable le in dama damage ges s or injuri injuries es suffer suffered ed by reason reason of the defect defective ive condit condition ion of roads, roads, street streets, s, bridge bridges, s, public public buildings and other public works. City of Manila v. Teotico, 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. Jimene Jimenez z v. City City of Manil Manila a , 150 150 SCRA SCRA 510: 510: Despite Despite a management management and operating operating contract with Asiatic Integrated Corporation over the Sta. Ana Public Market, the City of Manila (because of Mayor Bagatsing’s admission that the City still has control control and supervisio supervision) n) is solidarily solidarily liable for injuries sustained by an individual who stepped on a rusted nail while the market was flooded. Guilatco v. City of Dagupan, Dagupan, 171 SCRA 382: Liability of the City for injuries due to defective roads attaches even if the road does not belong to the local governme government nt unit, unit, as long long as the the City City exercises control or supervision over said road.

2.

Articl Article e 2180 2180 (6th par.) par.) Civil Civil Code: The State is responsible when it acts through a special agent.

3.

Articl Article e 34, Civil Civil Code: Code: The local local gove govern rnme ment nt unit unit is subs subsid idia iari rily ly liab liable le for for damages suffered by a person by reason of the failure or refusal of a member of the police force to render aid and protection in case of danger to life and property. B. Liability for Tort Despite the clear language of Section 24, RA 7160, that local government units and their officials are not exempt exempt form form liabil liability ity for death death or injury injury to


Note: For liability to arise under Article 2189 of the Civi Civill Code Code,, owne owners rshi hip p of the the road roads, s, stre street ets, s, bridges, public buildings and other public works is not a controlling controlling factor, factor, it being sufficient sufficient that a prov provin ince ce,, city city or muni munici cipa pali lity ty has has cont contro roll or supe superv rviision sion ther thereo eof. f. On the othe otherr hand hand,, a munici municipal pality ity’s ’s liabil liability ity under under Sectio Section n 149 of the 1983 Local Government Code for injuries caused by its failure to regulate the drilling and excavation of the ground for the laying of gas, water, sewer, and other pipes, pipes, attaches attaches regardless of whether whether the drilling or excavation is made on a national or municipal road, for as long as the same is within its territorial jurisdiction. (Municipality of San Juan v. CA, GR 121920, 08.09.2005) 2. If engaged in proprietary functions, functions, LGU is is liable

i.

Oper Operat atio ion n of a ferr ferry y serv servic ice e is a proprietary proprietary function. The municipali municipality ty is negl neglig igen entt and and thus thus liab liable le for for havi having ng awarde awarded d the franch franchise ise to operat operate e ferry ferry servic service e to anothe anotherr notwit notwithst hstand anding ing the prev previo ious us gran grantt of the the fran franchi chise se to the the plaint plaintiff iff.. (Mendo (Mendoza za v. De Leon, Leon, 33 Phil Phil 508)

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ii.

Holding Holding of town fiesta is a proprietary proprietary function. function. The Municipali Municipality ty of Malasigue, Malasigue, Pangasinan was held liable for the death of a member of the zarzuela group when the stage collapsed, under the principle the principle of respondeat superior. [Note: The Municipal Council Council managed managed the town fiesta. fiesta. While the the muni munici cipa pali lity ty was was held held liab liable le,, the the councilors councilors themselves themselves are not liable liable for the the negl neglig igen ence ce of thei theirr empl employ oyee ees s or agents agents.] .] (Torio (Torio v. Fontan Fontanill illa, a, 85 SCRA SCRA 599)

iii.

The operatio operation n of a public public cemetery cemetery is a proprietary proprietary function function of the City of Manila. Manila. The City is liable for the tortuous acts of its its empl employ oyee ees, s, unde underr the the principle principle of respondeat superior.

iv.

Mainte Maintenan nance ce of cemete cemeterie ries s is in the exercise exercise of the proprietary proprietary nature of local governments. The City is liable for breach of agreement. (City of Manila v. IAC, 179 SCRA 428)

v.

Liab Liabil ilit ity y for for ille illega gall dism dismis issa sall of an employee. employee. It was held that inasmuch as there is no finding that malice or bad faith attended attended the illegal dismissal dismissal and refusal refusal to reinstate respondent Gentallan by her superior officers, the latter cannot be held pers person onal ally ly acco accoun unta tabl ble e for for her her back back sala salari ries es.. The The muni munici cipa pall gove govern rnme ment nt ther theref efor ore, e, shou should ld disb disbur urse se fund funds s to answer for her claims (back salaries and other monetary benefits form the time of her illegal dismissal up to her reinstatement) resulting from dismissal.

injure injure individual individuals s rather than discharge discharge a public duty, they are personally liable. Correa Correa v. CFI Bulacan, Bulacan, 92 SCRA SCRA 312, 312, the Mayo Mayorr who, who, with withou outt just just caus cause, e, ille illega gall lly y dismis dismissed sed an emplo employee yee,, acted acted with with grave grave abuse of authority, and he not the Municipality of Norzagara Norzagaray, y, Bulacan, Bulacan, is personally personally liable. This This liabil liability ity attache attaches s even even if, at the time of execution, he is no longer the Mayor. Salcedo v. CA, 81 SCRA 408, the Mayor, for his persistent defiance of the order of the CSC to reinstate the employee, was held personally liable for the payment of back salaries. Pilar Pilar v. Sangg Sangguni uniang ang Bayan Bayan of Dasol, Dasol, 128 SCRA SCRA 173, 173, the the Mayo Mayorr was was held held liabl liable e for for exemplary and corrective damages for vetoing, with withou outt just just caus cause, e, the the reso resolu luti tion on of the the Sangguniang Bayan appropriating the salary of petitioner. Nemenz Nemenzo o v. Sabill Sabillano ano,, 25 SCRA SCRA 1, Mayor Sabillano Sabillano was adjudged adjudged personally personally liable for payment of back salaries of a policeman who was illegally dismissed. The Mayor cannot hide behind the mantle of his official capacity and pass the liability to the Muncipality of which he is Mayor. San Luis v. CA, 1989, Laguna Governor San Luis Luis was was held held pers person onal ally ly liab liable le for for mora morall damage damages s for refusi refusing ng to reinst reinstate ate Berro Berroya, ya, quarry superintendent, despite the ruling of the CSC as affirmed by the Office of the President.

C. Liability for Violation of Law

1.

Where the Municipality closed a part of a municipal street without indemnifying the person prejudiced prejudiced thereby, thereby, the Municipali Municipality ty can be held held liable liable for damage damages. s. (Abell (Abella a v, Municipality of Naga, 90 Phil 385)

2.

Lack of funds does not excuse the Muni Munici cipa pali lity ty from from payi paying ng the the stat statut utor ory y mini minim mum wage wage of P120 120 a mont month h to its its employ employees ees.. The paymen paymentt of the minimu minimum m wage is a mandatory statutory obligation of the Municipality. (Racho v. Municipality of Ilagan, Isabela) 3. The Municipality of Bunawan, Agusan san del del Sur, Sur, thro throug ugh h the the Mayo Mayorr was was held held in contempt and fined P1,000.00 with a warning, because of the refusal of the Mayor to abide by a TRO issued by the Court.

In City of Cebu v. Judge Piccio, 110 Phil 558, it was held held that hat a muni munic cipal ipal corporation, whether or not included in the complaint complaint for recovery recovery of back salaries due to wrongful wrongful removal from office, is liable.

vi.

Loca Locall offi offici cial als s may may personally liable .

also also

be held held

City of Angeles v. CA, 261 SCRA 90, where the city officials ordered the construction of a drug rehabilitation center on the open space donate by the subdivis subdivision ion owner in violat violation ion of PD 1216, the cost of the demolition of the drug rehabilitation center should be borne by the cit officials who ordered the construction because they they acte acted d beyo beyond nd the the scop scope e of thei their r auth author orit ity y and and with with evid eviden entt bad bad fait faith. h. (How (Howev ever er,, sinc since e the the city city mayo mayorr and and the the sanggunian members were sued in their official capacity, they cannot be held personally liable without giving them their day in court.) Rama Rama v. CA, 148 SCRA 496, the Provincial Provincial governor governor and the members of the Provincial Provincial Board where held liable in damages in their personal capacity arising form the illegal act of dismissin dismissing g employees employees in bad faith. faith. Where they they act malici malicious ously ly and wanton wantonly ly and


D. Liability for Contracts

1.

2.

Rule: A municipal corporation, like an ordinary person, is liable on a contract it enters into, provided that the contract is intra vires (If the cont contra ract ct is ultr ultra a vire vires s, the municipal corporation is not liable.) A private individual who deals with a municipal municipal corporatio corporation n is imputed imputed constructiv constructive e know knowle ledg dge e of the the exte extent nt of the the powe powerr or authority of the municipal corporation to enter into contracts.

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3.

Ordinarily, therefore, the doctrine of estoppel does not lie against the municipal corporation.

4.

The doctrine of implied municipal liability: A municipality may become obligated upon an implied contact to pay the reasonable value of the benefits benefits accepted accepted or appropriat appropriated ed by it as to which it has the general power to contract. (Province of Cebu v. IAC, 147 SCRA 447) The doctrine applies to all cases where money or other other proper property ty of a party party is receiv received ed under under such such circ circum umst stan ance ces s that that the the gene genera rall law, law, independent of an express contract, implies an obliga obligatio tion n to do justic justice e with with respec respectt to the same.


cann cannot ot be repr repres esen ente ted d by a priv privat ate e attorney. Only the Provincial Fiscal or the Muncipal Attorney can represent a province of municipality in lawsuits. This is mand mandat ator ory. y. The The muni munici cipa pali lity ty’s ’s authority to employ a private lawyer is limited to situations where the Provincial Fiscal is disqualified to represent it, and the fact of disqualifi disqualification cation must appear appear on reco record rd.. The The Fisc Fiscal al’s ’s refu refusa sall to represent the municipality is not a legal justificat justification ion for employing employing the services services of privat private e counse counsel; l; the munici municipal pality ity should request the Secretary of Justice to appoint an Acting Provincial Fiscals in plac place e of the the one one who who decl declin ines es to handle the case in court. v. But But if the the suit suit is file filed d again against st a loca locall official official which could result in personal personal liabil liability ity of the said said public public offici official, al, the latt latter er may may enga engage ge the the serv servic ices es of privat private e counse counsel. l. (Mance (Mancenid nido o v. CA, 2000)

i.

It was held that the Province of Cebu cannot set up the plea that the contract was ultra vires and still retain benefits thereu thereunde nder.x r.xxx xx having having regard regarded ed the contract as valid for purposes of reaping bene benefi fits ts,, the the Prov Provin ince ce of Cebu Cebu is estopped to question its validity for the purp purpos ose e of deny denyin ing g answ answer erab abil ilit ity. y. (Province of Cebu v. IAC, 147 SCRA 447)

VI. Local Officials

ii.

Q: Does Province of Cebu v. IAC, reverse De Guia Guia v. Audi Audito torr Gene Genera ral l where the Supreme Court held that the engagement of the services of Atty. De Guia Guia by the the Muni Munici cipa pall Coun Counci cill of Mondragon, Mondragon, Northern Samar was ulra vire vires, s, beca becaus use e a muni munici cipa pali lity ty can can engage the services of a private lawyer only if the Prov rovincial Fiscal is disqualified from appearing as counsel for the municipality? A: Apparently not, because in Province of Cebu v. IAC, the Province could not possibly possibly engage the legal legal services services of of the Provincial Fiscal, the latter having taken a position adverse to the interest of the the Prov Provin ince ce for for havi having ng prio priorl rly y rendered an opinion that the donation was valid.

iii.

Estoppel cannot be applied against a muni munici cipa pall corp corpor orat atio ion n in orde orderr to validate a contract which the municipal corporation has no power to make or whic which h it is auth author oriz ized ed to make make only only unde underr pres prescr crib ibed ed limi limita tati tion ons s or in a prescr prescribe ibed d mode mode or manner manner—ev —even en if the municipal corporation has accepted benefits benefits therunder. therunder. In San San Dieg Diego o v. Municipality of Naujan, the SC rejected the doctrine of estoppels, estoppels, because to apply apply the princi principle ple would would enable enable the muni munici cipa pali lity ty to do indi indire rect ctly ly what what it cannot do directly.

iv.

In Muncipality of Pililia Rizal v. CA, where the SC said that the municipality


A. Nature of Office (Agra Notes)

1.

A loca locall chie chieff exec execut utiv ive e is cons consid ider ered ed an accountable accountable public officer as defined defined under the Revi Revise sed d Pena Penall Code Code sinc since e he/ he/ she, she, in the the discha discharge rge of his/ his/ her office office,, receiv receives es money money or property of the government which he/ she is duty bound to account for. Thus, a local chief executive is guilty of malversation upon finding that he/ she rece receiv ived ed pub public lic fund funds s and and was was unab unablle to satisfactor satisfactorily ily account account for the same. (Tanggote v. Sandiganbayan, GR 103584, 09.02.94)

2.

A local chief executive is mandated to abide by Arti Articl cle e I of Sect Sectio ion n 444( 444(b) b)(x) (x) of 1991 1991 Loca Locall Government Code which directs executive officials and employ employees ees of the munici municipal pality ity to faithf faithfull ully y discharge their duties and functions as provided by law. (Velasco v. Sandiganbayan, GR 160991, 02.28.2005)

3.

The The 1987 1987 Cons Consti titu tuti tion on prov provid ides es that that no elective official shall be eligible for appointment or designation in any capacity to any other public office or position during his/ her tenure in order that that they they may serve serve full-t full-time ime with with dedica dedicatio tion. n. Thus, a local chief executive cannot be appointed as chairp chairpers erson on of the Subic Subic Bay Metrop Metropoli olitan tan Authority since such office is not an ex officio post or atta attach ched ed to the the offi office ce of the the loca locall chie chief f executive. (Flores v. Drilon, GR 104732, 06.22.93)

4.

The munici municipal pal mayor, mayor, being being the appoin appointin ting g authority, authority, is the real party in interest to challenge

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the Civil Service Commission's disapproval of the appoin appointme tment nt of his/ his/ her appoin appointee tee.. The CSC's CSC's disapproval of an appointment is a challenge to the the exer exerci cise se of the the appo appoin inti ting ng auth author orit ity' y's s discretion. The appointing authority must have the right right to contes contestt the disapp disapprov roval. al. (Dagad (Dagadag ag v. Tongnawa, GR 161166-67, 02.03.2005)

3. Purchase an a ny re r eal es e state or or ot o ther prop proper erty ty forf forfei eite ted d in favo favorr of the the loca locall government unit for unpaid taxes or assessment, assessment, or by virtue virtue of a legal process at the instance of the local government unit; 4. Be a surety of of an any pe person co contracting or doing business with the local government unit for which a surety is required; and 5. Possess or or us use an any pu public pr property of of the local government unit for private purposes. 6. The prohibitions and inhibitions prescribed in RA 6713 also apply.

5.

The munici municipal pal mayor, mayor, not the munici municipal pality ity alone must be impleaded in a petition assailing the the dism dismis issa sall of an empl employ oyee ee whom whom he/s he/she he appo appoin inte ted d even even if the the mayo mayorr acte acted d in his/ his/he her r offi offici cial al capa capaci citty when when he dism dismis isse sed d the respondent. If not impleaded, he/she cannot be comp compel elle led d to abid abide e by and and comp comply ly with with its its decision, as the same would not be binding on him/her. (Civil Service Commission v. Sebastian, GR 161733, 10.11.2005)

6.

A procla proclaime imed d candid candidate ate who was later later on disqualified has no legal personality to institute an action action seeking seeking to nullif nullify y a decisi decision on of the Civil Service Commission concerning the dismissal of municipal municipal employees employees since he/ she is not a real party in interest. (Miranda v. Carreon, GR 143540, 04.11.2003)

7.

The city city treasu treasurer rer is the proper proper discip disciplin lining ing authority in the case of a local revenue officer, the form former er bein being g the the head head of agen agency cy.. (Garci (Garcia a v. Pajaro, GR 141199, 07.05.2002)

8.

A puno punong ng bara barang ngay ay cann cannot ot term termin inat ate e the the services services of the barangay treasurer and secretary secretary without the concurrence of sangguniang barangay since this is explicitly required under Section 389 of the 1991 Local Government Code. (Alquizola v. Ocol, GR 132413, 08.27.99)

Practice of Profession (Section 90, RA 7160) 1. All All gove govern rnor ors, s, city city and munici municipa pall mayors mayors are prohibited form practicing their profession or engagi engaging ng in any occupa occupatio tion n other other than than the exer exerci cise se of thei theirr func functi tion on as loca locall chie chief f executives. 2. Sang Sanggu guni nia an membe embers rs may prac practi tice ce their heir profession, engage in any occupation, or teach in scho school ols s exce except pt duri during ng sess sessio ion n hour hours, s, Provided, that those who are also members of the Bar shall not (i) appear as counsel before any court in any civil case wherein the local gove govern rnme ment nt unit unit or any any offi office ce,, agen agency cy or inst instru rume ment ntal alit ity y of the the gove govern rnme ment nt is the the adverse party; (ii) appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offe offens nse e comm commit itte ted d in rela relati tion on to his his office; (iii) collect any fee for their appearance in admini administr strati ative ve procee proceedin dings gs involv involving ing the LGU of which he is an official; and (iv) use proper property ty and person personnel nel of the govern governmen mentt exce except pt when when the the san sanggun ggunia ian n memb ember concer concerned ned is defend defending ing the intere interest st of the government. It was held that by appearing as counsel for dismissed employees, City Councilor Javellana violat violated ed the prohib prohibiti ition on agains againstt engagi engaging ng in privat private e practi practice ce if such such practi practice ce repres represent ents s interests adverse to the government. (Javellana v. DILG, 212 SCRA 475)

B. Provisions Applicable to Elective and Appointive Local Officials Prohibited Business and Pecuniary Interest (RA Interest (RA 7160, Section 89): It shall be unlawful for any local gove govern rnme ment nt offi offici cial al or empl employ oyee ee,, dire direct ctly ly or indirectly to: 1. Engage i n an any b us usiness tr t ransaction with the local government unit in which he is an official or employee or over which he has the power of supervision, or with any of its auth author oriz ized ed boar boards ds,, offi offici cial als, s, agen agents ts or attorneys, whereby money is to be paid, or property or any other thing of value is to be transf transferr erred, ed, direct directly ly or indire indirectl ctly, y, out of the resources of the local government unit to such person or firm; 2. Hold su such in interests in in an any co cockpit or or other games licensed by the local government unit;


3.

Doctors of medicine may practice their profession even during official hours of work only on occasion of emergency, provided they do not not deri derive ve mone moneta tary ry comp compen ensa sati tion on therefrom. It was held that that DILG Memorand Memorandum um Circular Circular No. No. 90-8 90-81 1 does does not not disc discri rimi mina nate te agai agains nstt lawyers and doctors; it applies to all provincial and municipal officials. (Javellana v. DILG, 212 SCRA 475)

Prohibit Prohibition ion Against Against Appointmen Appointmentt (RA (RA 7160 7160,, Section 94) 1. No electi elective ve or appo appoint intive ive loca locall offici official al shall shall be eligible for appointment or designation in any capacity to any public office or position during his tenure. Unless otherwise allowed by law or by the primary primary functions functions of his office, office, no local off officia iciall shal shalll hold old any any othe otherr offi office ce or

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2.

Atty. ARIS S. MANGUERA citizensh citizenship ip is required to ensure ensure that no alien shall govern our people. An official beg in ins to govern only upon his procla proclama matio tion n and on the day that that his term begins. Since Frivaldo took his oath of alle allegia gianc nce e the the day day that that his term term begins. Since Frivaldo took his oath of allegiance on June 30, 1995, when his applicatio application n for repatriat repatriation ion was granted granted by the Sepcial Committee on Naturalization created under PD 825, he was therefore qualified to be proclaimed. Besides, Section 30 of the LGC speaks of qualifications of elective officials, not of candidates. Furthermore, repatriation retroacts to the date of the filing of his application on August 17, 1994. (Frivaldo v. COMELEC, 257 SCRA 727)

empl employ oyme ment nt in the the gove govern rnme ment nt or any any subdivision, agency or instrumentality thereof, including GOCCs or their subsidiaries. (Relate this to Section 7, Article IX-B) Excep xceptt for for losi osing cand candid ida ates tes in bara barang nga ay election, no candidate who lost in any election shall, within one year after such election, be appointed to any office in the government of GOCC GOCC or their their subsid subsidiar iaries ies.. (Relat (Relate e this this to Section 6, Article IX-B)

C. Elective Local Officials Qualifications Disqualifications Manner of Election Date of Election Term of Office Rules of Succession Compensation Recall Resignation Grievance Procedure Discipline Cases on Offenses (Agra Notes) Cases on Procedure (Agra Notes) Complaints Preventive Suspension Penalty (Agra Notes) Administrative Appeal Execution Pending Appeal Jurisdiction of Sandiganbayan (Agra Notes) Effect of Re-election

ii.

In Alt Altaj ajer eros os v. COME COMELE LEC, C, 2004, the the petiti petitione onerr took took his oath oath of allegiance allegiance on December December 17, 1997, but his his Cert Certif ific icat ate e of Repa Repatr tria iati tion on was was regis registe tere red d with with the the Civi Civill Regi Regist stry ry of Makati Makati City only after after 6 years, years, or on February 18, 2004, and with the Bureau of Immigration on March 1, 2004, thus comp comple leti ting ng the the requ requir irem emen ents ts for for repa repattriat riatio ion n only only afte afterr he file filed d his his certifica certificate te of candidacy, candidacy, but before before the election. On the issue of whether he was qualified to run for Mayor of San Jacinto, Masabate, the Court applied the ruling in Frivaldo, Frivaldo, that repatriation retroacts to the date date of fili filing ng of the the appl applic icat atio ion n for for repatriati repatriation. on. Petitioner Petitioner was, therefor therefore, e, qualified to run for Mayor. iii. Petitioner who was over 21 years of age on the day of the election was ordered disqualified by the SC when the latter rejected the contention of the petitioner that she was qualified because she was less than 22 years years old. old. The phrase “not more than 21 years old” is not equivalent to “less than 22 years old.” (Garvida v. Sales, 271 SCRA 767)

1. Qualifications (RA 7160, Section 39) 1. Citi Citize zen n of the the Phi Phili lipp ppin ines es;; 2. Registered Voter in the barangay, munici municipal pality ity,, city city or provin province, ce, or in the case case of a member member of the sangguni sangguniang ang panlalawig panlalawigan, an, panlungsod panlungsod or bayan, the district where he intends to be elected; 3. A resi reside dent nt ther therei ein n for at leas leastt 1 year year immediately preceding the election’ 4. Able Able to read read and write write Fili Filipin pino o or any any other other local language or dialect; 5. On the the elec electi tion on day, day, mus mustt be at lea least st 23 years of age [for governor, vice-governor, member of the sangguniang panl panlal alaw awig igan an,, mayo mayor, r, vice vice mayo mayor, r, or member of the ssangguniang panlungsd of highly urbanized cities]; 21 years of age [for mayor or vice mayor of independent compon component ent cities cities,, compon component ent cities cities,, or munc muncip ipla lait itie ies] s];; 18 year years s of age age [for [for member of the sangguniang panlungsod or sagguniang bayan, or punong barangay or member of the sangguniang barang barangay] ay],, or at least 15 but not more than 21 years of age [candidates for the sangguniang kabataan] i.

The LG LGC do does no not sp specify an any particular date when the candidate must posses posses Filipino Filipino citizenshi citizenship. p. Philippine Philippine


2. Disqualifications (RA 7160, Section 40) The following are disqualified from running for any elective local position: 1. Those Those sente sentence nced d by fina finall judgm judgment ent for an offense involving moral turpitude or for an offense punishable by one year or more of impr impris ison onme ment nt,, with within in two two years years afte after r serving sentence; 2. Thos Those e remov removed ed from from offi office ce as a resu result lt of an administrative case; 3. Thos Those e conv convic icte ted d by final final judgm judgmen entt for for violat violating ing the oath oath of allegi allegianc ance e to the Republic.

4. 5. 6. 137

Those with dual citizenship137; Fugi Fugiti tive ves s from just justic ice e in crim crimin inal al or nonnonpolitical cases here or abroad; Perm Perman anen entt reside resident nts s in a foreig foreign n countr country y or those who have acquired the right to

Interpreted in the case of Mercado v. Manzano, 307 SCRA 630).

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7.

reside abroad and continue to avail of the same right after the effectivity of the Code; The The insa insane ne or or feeb feeble le-m -min inde ded. d. i.

ii.

iii.

iv.

Viol Violat atio ion n of the the Ant Antii-Fe Fenc ncin ing g Law Law invo involv lves es moral turpitude, and the only legal effect of probation is to suspend the implementation of the sentence. Thus, the disqualification still subsists. (De la Torre v. COMELEC, 258 SCRA 483) Likewise, violat violation ion of BP 22 is a crime crime involvin involving g moral moral turpit turpitude ude,, becaus because e the accuse accused d knows at the time of the issuance of the check check that that he does does not have have suffic sufficien ientt funds in , or credit with, the drawee bank for for paym payment ent of the the chec check k in full full upon upon presen presentm tment ent.. (Vill (Villabe aberr v. COMELE COMELEC, C, 2001) Article 73 of the Rules Implementing RA 7160, 7160, to the extent extent that that it confin confines es the term “fugitive “fugitive from justice” justice ” to refer only to a person “who has been convicted by final judgment” judgment” is an inordinate inordinate an undue circ circum umsc scri ript ptio ion n of the the law. law. The The term term includ includes es not only those those who flee after after conv convic icti tion on to avoid avoid puni punish shme ment nt,, but but likewise those who, after being charged, flee to avoid prosecution”. In Rodriguez Rodriguez v. COMELEC, COMELEC, 259 SCRA 296, it was held that Rodriuez cannot be cons consid ider ered ed a “fug “fugit itiv ive e from from just justic ice” e”,, because his arrival in the Philippines form the US preceded by at least five months the filing of the felony complaint in the Los Angele Angeles s Court Court and the issuan issuance ce of the warrant for his arrest by the same foreign court. Section 40, RA 7160, cannot apply retroa retroact ctive ively. ly. Thus, Thus, an elect elective ive local local official who was removed from office as a result result of an administrativ administrative e case prior to January 1, 1992 (date of LGC’s effectivity) is not disqualified form running for elective local office (Grego v. COMELEC In Reyes v. COMELEC, 254 SCRA 514, the the SC rule ruled d that that the the peti petiti tion oner er,, a Municipal Municipal Mayor who had been ordered ordered removed removed from office office by the Sanggunian Sanggunian Panlalawig Panlalawigan, an, was disqualifie disqualified, d, even as he alleged that the decision was not yet final because he had not yet received a copy copy of the the deci decisi sion on.. It was was show shown, n, however, that he merely refuse to accept delivery of the copy of the decision. In Mercado v. Manzano, 307 SCRA 630, the SC clarif clarified ied the “dual “dual citize citizensh nship” ip” disqualification, and reconciled the same wi th th Section 5, Article IV of the COns COnsit itut utio ion n on “dua “duall alle allegi gian ance ce”. ”. Recognizi Recognizing ng situation situation in which a Filipino Filipino citizen citizen may, without performing performing any act and as an involuntary consequence of the conflicting laws of different countries, be also a citizen citizen of another State, the Court expla explaine ined d that that “dual “dual citize citizensh nship” ip”,, as a disqualification, must refer to citizens with “dual allegiance”. Consequently, persons


Atty. ARIS S. MANGUERA with with mere mere dual dual citize citizensh nship ip do not fall under the disqualification.

3. Manner of of Election Election (RA 7160, Section 41)

1.

The The gove govern rnor or,, vice vice-g -gov over erno nor, r, city city or municipal municipal mayor, city or municipal municipal vicemayo mayorr and and puno punong ng bara barang ngay ay shal shalll be elected at large in their respective units. The sanggu sanggunia niang ng kabata kabataan an chairm chairman an shall be elected by the registered voters of the katipunan ng kabataan.

2.

The regular members of the sangguniang panlal panlalawi awigan gan,, panlun panlungso gsod d and bayan bayan shal shalll be elec electe ted d by dist distri rict ct as may may be provid provided ed by law. law. The president presidents s of the leag league ues s of sang sanggu guni nian an memb member ers s of component component cities cities and municipali municipalities ties shall serve serve as ex offici officio o memb member ers s of the the sanffuniang panlalawigan concerned. The presidents of the liga ng mga barangay and the pederasyon ng mga sangguniang kaba kabata taan an elec electe ted d by thei theirr resp respec ecti tive ve chapters, shall serve ex officio members of the sang sanggu guni nia ang pan panlala lalaw wigan igan,, panlungsod or bayan. Article X, Section 9. Legislative bodies of local governments shall have sectoral representation as may be prescribed by law.

3.

In addit additio ion, n, there there shall shall be one one sect sector oral al representative from the women, one from the the work worker ers, s, and and one one from from any any of the the following sectors: urban poor, indigenous cultural communities, disabled persons, or any other sector as may be determined by sanggu sanggunia nian n concer concerned ned within within 90 days days prio priorr to the the hold holdin ing g of the the next next loca locall elections as may be provided by law. The Comelec shall promulgate the rules and regulation regulations s to effective effectively ly provide provide for the election of such sectoral representatives.

4. Date of Election Every three years on the second Monday of May, unless otherwise provided by law. 5. Term of Office Three years, starting starting from noon of June 30, 1992, or such date as may be provided by law, except that of elective barangay officials. No local elective official shall serve for more than three consecutive terms in the same position. The term of office of baran rangay officials and members of the sangguniang kabataan shall be for five (5) years, which which shall shall begin begin after after the regula regularr electi election on of barangay officials on the second Monday of May, 1997. (RA 8524) Article X, Section 8. The term of office of elective local offici officials als,, except except barang barangay ay offici officials als,, which which shall shall be determined determined by law, shall be three years years and no such official shall serve for more than three consecutive terms.

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Atty. ARIS S. MANGUERA 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? A: Yes, because he was not elected to the office of the mayor in the first terms but simply found himself thrust into it by operation of law. Neither had he served the full full term term becaus because e he only only contin continued ued the servic service, e, interrupted by the death, of the deceased mayor.

Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Q: Due to incumbent incumbent mayor’s death, the vice-mayor vice-mayor succeeds to the office of mayor by operation of law and serv serves es the the rema remain inde derr of the the mayo mayor’ r’s s term term.. Is he considered to have served a term in that office for the purpose of the three-term limit? A: No. Section of Article X embodies two policies, viz.: (1)to prevent political dynasties and (2) to enhance the freedom of choice of the people. The term limit of elective elective officials officials must be taken to refer to the right to be elected elected as well as the right to serve in the same elective position . Consequently, it is not enough that an individual served three served three consecutive terms in an elective elective local office, office, he must also been elected to the same position for the same number of times before the disqualification can apply. apply.138

Current Rules on Term Limits: 1. Lonzanida was was elected Mayor to to a third term. term. His election was challenged, however, and he lost and had to abandon abandon his office. office. He could still still run in the next electi election on year year becaus because e he did not serve serve three three full full terms. 139 2. Talaga Talaga lost lost when when he he ran for for a third third term term.. The winner, however, lost to him in a recall election and he served the rest of the former former winner’s term. At the end of this term he could run again because he had not served three full terms. terms .140 3. Hagedorn served served as Mayor for for three full terms. terms. In the first year after the end of his third term, he ran in a recall election. election. Qualified? Yes, because between the end of his third term and the recall election there was an interruption thus breaking the successiveness. 141 4. During the third third term of a Mayor of a municipality, the municipalit municipality y was converted converted to a city. city. The Mayor was allowed allowed to finish the the third term. term. Could he run as Mayor of the city in the next election? election? No. There has been no change in territory nor in constituency. constituency. Thus the three term limit applies. 142 5. When a municipal municipal councilor assumed assumed the office of Vice-Mayor respondent’s assumption of office as vicemayor in January 2004 by operation of law, it was an involuntar involuntary y severance severance from his office office as municipal municipal councilor resulting in an interruption in the service of his 2001-2004 2001-2004 term. He did not serve the full 20012004 term.143 6. After After serving serving a full three three year term, term, Alegre Alegre was declared to have been invalidly invalidly elected. elected. Should that that term be counted for purposes of the three term limit? Yes. The decision decision declaring declaring him not elected elected is of no prac practi tica call cons conseq eque uenc nce e beca becaus use e he has has alre alread ady y served.144

Q: When will the three-limit three-limit of local local elective elective officialsofficialsexcept barangay officials- apply? A: Only when these two conditions concur:

1.

The local official official concerned concerned has been elected three consecutive times; and

2.

He has fully served three consecutive terms. (Borja v. COMELEC, 1998)

SC devi evised sed scen scena ario rios to expl explain ain the the application of Article X, Section 8 in Borja v. COMELEC: Q: Suppose A is a vice-mayor who becomes mayor by reason reason of the death of the incumben incumbent. t. Six months months before before the next next electi election, on, he resign resigns s and is twice twice elected thereafter. Can he run again for mayor in the next election? A: Yes, because although he has already first served as mayor mayor by successio succession n and subsequent subsequently ly resigned resigned from office before the full term expired, he has not actually served there full terms in all for the purpose of applyi applying ng the term limit. limit. Under Art. X, Sectio Section n 8, voluntary renunciation of office is not considered as an interruption in the continuity of his service for the full term only if the term is one “for which he was elected.” Since A is only completing the service of the term for which the deceased and not he was elected, A cannot be consid considere ered d to have have comple completed ted one term. term. His resignation constitutes an interruption of the full term. (Borja v. COMELEC, 1998) Q: Suppose B is elected mayor and, during his term, he is twice suspended for misconduct for a total of 1 year. If he is twice re-elected after that, can he run for one more term in the next election? A: Yes, because because he has served served only two-full two-full terms terms successively. (Borja v. COMELEC, 1998) Bernas: It is submitted that this is not correct. Suspension does not interrupt his term nor in fact his tenure because the offi office ce stil stilll belo belong ngs s to him him duri during ng susp suspen ensi sion. on. Moreover, the Court’s solution rewards wrong doing.

Q: RA 7160, Section 43-c limits the term of office of barangay barangay official to three three years. years. Petitione Petitioners rs argue that Sectio Section n 8, Articl Article e X “by except excepting ing barang barangay ay offici officials als whose ‘terms shall be determined law’ from the general provision fixing the term of ‘elective local officials’ at three years,” impliedly prohibits Congress form legislating a three-year term for such officers. Thus, Section 43-C of RA 7160 is unconstitutional. Decide. A: The Constitution did not expressly prohibit Congress from fixing any term of office of barangay officials. (David v. COMELEC, 1997) Q: How long then is the term of barangay officials?

139

Lonzanida v Comelec, G.R. No. 135150. July 28, 1999.

140

Adormeo v Comelec, G.R. No. 147927. 147927. February 4, 2002. 2002.

141

Q: The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Article X, Section

Socrates v Comelec, G.R. No. 154512. 154512. November 12, 2002. 2002.

142

Latasa v. Comelec. G.R. No. 154829. 154829. December 10, 2003.

143

Montebon v COMELEC, G.R. No. 180444, April 8, 2008.

144

Ong v. Alegre, G.R. No. 163295, January 23, 2006; Rivera III v. Morales, GR 167591, May 9, 2007.

138

Borja v. COMELEC, 1998


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A: As may may be deter determi mine ned d by law. law. And And the the Loca Locall Government Code, Section 43-c limits their term to three years.

2006 Bar Question. Question. Law fixing fixing the terms of local elective officials. Q:Stat Q:State e whether whether or not the law is constitutio constitutional. nal. Explain briefly. “A law fixing the terms of local elective officials, other than barangay officials, to 6 years.” Suggested Suggested Answer Answer : The The law law is inva invali lid. d. Unde Under r Article X, Section 8 of the 1987 Constitution, "the term term of office office of electi elective ve local local offici officials als,, except except barangay officials, which shall be determined by law, shall be three years and no such official official shall serve for more than three consecutive terms." The law clearly goes against the aforesaid c onstitutional requirement of three year terms for local officials except for barangay officials. 6. Rules of Succession Succession (RA 7160, Sections 44446) Permanent Permanent VacanciesVacancies- A perman permanent ent vacanc vacancy y arises when an elective local officials fills higher vacant vacant office office,, refuse refuses s to assume assume office office,, fails fails to qualify, qualify, dies, is removed removed from office, voluntarily voluntarily resi resign gns, s, or is perm perman anen entl tly y inca incapa paci cita tate ted d to discharge the functions of his office. If a permanent vacancy occurs in the office of: 1. Governor or mayor yor, the vice-governo rnor or vice-mayo vice-mayorr concerned concerned shall become become the the governor or mayor.

2.

ViceVice-go gove vern rnor or or vice vice-m -may ayor or,, the the highes highestt rankin ranking g sanggu sanggunia nian n member member or, in case case of perm perman anen entt inab inabil ilit ity, y, the the secon second d highes highestt rankin ranking g sanggu sanggunia nian n member member,, and subs subseq eque uent nt vacan acanci cies es shal shalll be fille illed d auto automa mati tica call lly y by the the othe otherr sang sanggu guni nian an members according to their ranking. Ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of regi regist ster ered ed vote voters rs in each each dist distri rict ct in the the immediately preceding election.

a)

In Victoria Victoria v. Comelec, Comelec, 229 SXRA 269, the the SC reje reject cted ed the the cont conten enti tion on that that this this prov provis isio ion n be inte interp rpre rete ted d by fact factor orin ing g the the number number of the voters voters who actual actually ly voted, voted, because the law is clear and must be applied— and and the the cour courts ts may may not not spec specul ulat ate e as the the probable intent of the legislature apart form the words used in the law.

b)

In Menzon Menzon v. Petilla, Petilla, 197 SCRA 251, it was held that that this this mode mode of succes successio sion n for permanent vacancies may also be observed in the case of temporary vacancies in the same office.

3. Punong barangay, the highestranking sanggunian barangay member, or in case case of his perman permanent ent inabil inability ity,, the second second highest ranking barangay member. [Note: A tie betw betwee een n or amon among g the the high highes estt rank rankin ing g



sanggu sanggunia nian n member members s shall shall be resolv resolved ed by drawing of lots.]

4.

Sangg anggun unia iang ng membe ember, r, wher where e automatic succession provided above do not apply: filled by appointmen appointmentt by the President, President, through the Executive Secretary in the case of the Sanggunian Panlalawigan or sanggunian panlun panlungso gsod d of highly highly urbani urbanized zed cities cities and inde indepe pend nden entt comp compon onen entt citi cities es;; by the the Gove Govern rnor or in the the case case of the the sang sanggu guni nian ang g panl panlun ungs gsod od of com compone ponent nt cit cities ies and and sang sanggu guni nian ang g baya bayan; n; and and by the the city city or municipality mayor in the case of sangguniang bara barang ngay ay upon upon reco recomm mmen enda dati tion on of the the sangguniang barangay concerned. Howe Howev ver, er, excep xceptt for for the the sang sanggu guni nian ang g barang barangay, ay, only only the nomine nominee e of the politi political cal party party under under which which the sanggu sanggunia nian n member member conc concer erne ned d had had been been elec electe ted d and and whos whose e elevation to the position next higher in rank create created d the last last vacanc vacancy y in the sanggu sanggunia nian n shall be appointed. A nomination and a certificate of membership of the appointee from the highest official of the political political party concerned concerned are conditions sine qua non, and any appointment without such nomina nominatio tion n and certif certifica icate te shall shall be null null and void and shall be a ground for administrative action against the official concerned. In case the permanent vacancy is caused by a sangguniang member who does not belong to any political political party, the local chief executive shal shalll upon upon the the reco recomm mmen enda dati tion on of the the sanggu sanggunia nian n concern concerned, ed, appoin appointt a qualif qualified ied person to fill the vacancy.

a)

The reason reason behind the right given given to a political party to nominate a replacement when a permanent vacancy occurs in the Sanggunian is to maintain the party representation as willed by the people in the election. (In this case, with the elevat elevation ion of Tamayo Tamayo,, who belong belonged ed to Reforma-LM to the position of Vice Mayor, a vacanc vacancy y occur occurred red in the Sangg Sangguni uninan nan that that should be filled up with someone who belongs to the political party of Tamayo. Tamayo. Otherwise, Otherwise, Reforma-LM’s represen ta tati on on in the Sanggunian Sanggunian would be diminishe diminished. d. To argue that the vacancy created was that formerlyheld by the 8th Sanggunian Sanggunian member, a LakasNUCD-Kampi member member,, would would result result in the increase increase in that party’s representat representation ion in the Sanggunian at the expense of Reforma-LM. (Navarro v. CA, 2001) b) The The appoin appointm tment ent to to any vaca vacanc ncy y cause caused d by the cessation from office of a member of the sangguniang barangay must be made by the mayo mayorr upon upon the the reco recomm mmen endat datio ion n of the the sanggu sanggunia nian. n. The recomm recommend endati ation on by the sanggunian takes the place of nomination by the the poli politi tica call part party y (sin (since ce memb member ers s of the the sangguniang barangay are prohibited to have part party y affi affilia liati tions ons)) and and is cons consid ider ered ed as a condition sine qua non for the validity of the appointment.

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In Farina Farinas s v. Barba Barba,, 256 SCRA SCRA 396, 396, where vacancy to be filled was that of a member of the Sangguniang Bayan who did not belong to any political party, the SC held that neither the peti petiti tion oner er nor nor the the resp respon onde dent nt was was vali validly dly appointed. Not the petitioner, because although he was appointed by the Governor, he was not recomm recommend ended ed by the the Sanggu Sanggunia nian n Bayan. Bayan. Neither the respondent, because although he was recommended by the Sanggunian Bayan, he was not appointed by the Governor.

5. Vacancy in in th the re representation of of th the youth youth and the barang barangay ay in the sanggu sanggunia nian: n: filled automatically by the official next in rank of the organization concerned. In Garvida v. Sales, Sales, 271 SCRA 767, the SC pointed out that under the LGC, the member of the Sangguniang Kabataan who obtained the next highest number of votes shall succeed the Chairman if the latter refuses to assume office, fails to qualify, is convicted of a crime, voluntary resigns, dies is permanently incapacitated, is remo remove ved d from from offi office ce,, or has has been been abse absent nt without leave for for more than three three consecutive mont months hs.. Inel Inelig igib ibili ility ty is not one one of caus causes es enumerate enumerated d in the Local Government Government Code. Thus Thus,, to avoi avoid d hiat hiatus us in the the offi office ce of the the Chairman, the vacancy should be filled by the memb member ers s of the the Sang Sanggu guni nian ang g Kaba Kabata taan an chosen chosen by the incumben incumbentt SK member members s by simple majority from among themselves.

Other Cases on “Succession”

1.

Vice-g Vice-gove overno rnorr acting acting as govern governor or cannot continue to preside over sangguniang panlalawigan sessions while acting as such. (Gamboa v. Aguirre, GR 134213, 07.20.99)

2.

Under Section 444(b)(1)(xiv) 444(b)(1)(xiv) of the 1991 Local Government Code, applications for leave leave of munici municipal pal offici officials als and employ employees ees appointed by the Mayor shall be acted upon by him/her, him/her, not by the Acting Vice-Mayor. Vice-Mayor. (Civil Serv Servic ice e Comm Commis issi sion on v. Seba Sebast stia ian, n, GR 161733, 10.11.2005)

3.

In case of vacancy in the Sangguniang Bayan, the nominee of the party unde underr whic which h the the memb member er conc concer erne ned d was was electe elected d and whose whose elevat elevation ion to the higher higher posi positi tion on crea create ted d the the last last vaca vacanc ncy y will will be appoin appointed ted.. The last last vacanc vacancy y refers refers to that that created by the elevation of the councilor as vice-mayor. The reason behind the rule is to maintain maintain party representat representation. ion. (Navar (Navarro ro v. Court of Appeals, GR 141307, 03.28.2001) The The rank rankin ing g in the the sang sanggu guni nian an shal shalll be determined on basis of the proportion of the votes obtained by each winning candidate to the total number of registered voters. The law does not provide that the number of votes who actually voted must be factored in the ranking. (Victoria v. Comelec, GR 109005, 01.10.94)

4. The prohibition appoin appointme tments nts only only applie applies s

on midnight to presid president ential ial


appointments. There is no law that prohibits local elective officials from making appointments during the last days of his/ her tenure. (De Rama v. Court of Appeals, 353 SCRA 94) In accordance with Section 44 of the 1991 Local Government Code, the highest ranking sang sanggu guni nian ang g bara barang ngay ay memb member er,, not not the the seco second nd plac placer er,, who who shou should ld beco become me the the pun punon ong g bara barang ngay ay in case case the the winni inning ng candidate candidate is ineligible ineligible.. (Bautista v. Comelec, GR 154796 154796,, 10.23. 10.23.200 2003; 3; Tora Torall Kare Kare v. Comelec, GR 157526/ 157527, 04.28.2004) 04.28.2004) Temporary Vacancies

1.

When the governor, city or municipal mayor, mayor, or punong punong barang barangay ay is tempor temporari arily ly incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leav leave e of absen bsence ce,, trave ravell abro abroad ad and and suspension form office, the vice governor, city or municipal vice mayor, or the highest ranking san sanggunian baran rangay member shall automatically exercise the powers and perform the duties duties and function functions s of the local chief execut executive ive concern concerned, ed, except except the power power to appoint, suspend, or dismiss employees which can can be exer exerci cise sed d onl only if the the peri period od of temporary temporary incapacity incapacity exceeds exceeds thirty thirty working working days days.. (Sai (Said d temp tempor orar ary y inca incapa paci city ty shal shalll terminate upon submission to the appropriate sanggunian of a written declaration that he has reported back to office. In case the temporary incapa incapacit city y is due to legal legal causes causes,, the local chief executive executive concerned concerned shall also submit necessary documents showing that the legal causes no longer exists.) 2. When the local chief executive is travelling travelling within the country country but outside this territorial jurisdiction for a period not exceeding three consecutive days, he may designate in writing writing the officer-in-char officer-in-charge ge of the said office. office. Such authorization authorization shall specify specify the powers and and func functi tion ons s that that the the loca locall offi offici cial al shal shalll exer exerci cise se in the the abse absenc nce e of the the loca locall chie chief f execut executive ive,, except except the power power to appoin appoint, t, suspend suspend or dismiss employees. employees. (If the local chief executive fails or refuses to issue such auth author oriz izat atio ion, n, the the vice vice-g -gov over erno nor, r, city city or municipal vice-mayor, or the highest ranking sanggunian sanggunian barangay member, as the case may be , shall have the right to assume the powers, duties and functions of the said office on the fourth day of absence of the local chief exec execut utiv ive, e, exce except pt the the powe powerr to appo appoin int. t.,, suspend or dismiss employees.) 7. Compensation (RA 7160, Section 81) The compensation compensation of local officials officials and personnel personnel shall be determined by the sanggunian concerned, subject to the provisions of RA 6758

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[Compensat [Compensation ion and Position Position Classificat Classification ion Act of 1989). 1989). The electi elective ve barang barangay ay offici officials als shall shall be entitled to receive honoraria, allowances and other emol emolum umen ents ts as may may be prov provid ided ed by law law or barangay, barangay, municipal municipal or city ordinance, ordinance, but in no case less than 1,000 per month for the punong bara barang ngay ay and and P600 P600.0 .00 0 for for the the sang sanggu guni nian an members. Elective officials shall be entitled to the same leave privil privilege eges s as those those enjoye enjoyed d by appoin appointiv tive e local local officials, including the cumulation and commutation thereof.

8. Recall Recall 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 electorate.

1.

Initiating the process of recall through the the conv conven enin ing g of the the Prep Prepar arat ator ory y Reca Recall ll Asse Assemb mbly ly (PRA (PRA)) is cons consti titu tuti tion onal al.. The The Constitution empowers Congress to provide effective means of recall. The adoption of the PRA resolution is not the recall itself. (Garcia v. Comelec, GR 111511, 10.05.93)

2.

Loss of confidence confidence as a ground for reca recall ll is a poli politi tica call ques questi tion on.. (Garci (Garcia a v. Comelec, GR 111511, 10.05.93)

3.

Another resolution by the Preparatory Recall Assembly must be adopted to initiate the recall recall of a vice-m vice-mayo ayorr who, who, before before the recall election, became the mayor. (Afiado v. Comelec, GR 141787, 09.18.2000)

4.

The Preparatory Recall Assembly is distinct from liga ng mga barangay. Barangay officials who participated in recall did so not as members of the liga but as PRA members. (Malonzo v. Comelec, GR 127066, 03.11.97)

5.

Noti Notice ce to all all memb member ers s of the the Preparatory Recall Assembly is a mandatory requirement. (Ga (Garci rcia v. Com Comele elec, GR 111511, 10.05.93)

6. Notice may be served by president of the the liga liga ng mga bara barang ngay ay who who is also also a member of the Preparatory Recall Assembly. (Malonzo v. Comelec, GR 127066, 03.11.97) 7.

Servic Service e of notice notice may be effect effected ed unde underr any any of the the modes odes of serv servic ice e of pleadi pleadings ngs – person personal, al, by regist registere ered d mail. mail. (Malonzo v. Comelec, GR 127066, 03.11.97)

8.

The 1-year ban (from assumption and next next electi election) on) refers to the holding holding of the recall election, not the convening of the PRA. (Cla (Claud udio io v. Come Comele lec, c, GR 1405 140560 60// 714, 714, 05.04.2000)

9.

The ‘regular recall election’ mentioned in the 1-year proscription refers to an election where the office held by the local elective official sought to be recalled will be contested and filled by the electorate. (Paras



v. Comelec, GR 123169, 11.04.96; Jariol v. Comelec, GR 127456, 03.20.97)

10.

A party aggrieved by the issuance issuance of Comele Comelec c en banc banc resolut resolution ion (calen (calendar dar of activities for recall election) when he/ she had suff suffic icie ient nt time time,, must must file file a moti motion on for for recon reconsi side dera rati tion on with with Come Comele lec c en banc banc.. (Jariol v. Comelec, GR 127456, 03.20.97)

9. Resignation (RA 7160, Section 82) Resign Resignati ation on of electi elective ve local local offici officials als shall shall be deemed deemed effect effective ive only only upon upon accept acceptanc ance e by the following authorities: a) The Pr President, in in ca case of of go governors, vice-governors, and mayors and vice-mayors of highly highly urbani urbanized zed cities cities and indepe independe ndent nt component cities. b) The governor, in the case of muni munici cipa pall mayo mayors rs and and vice vice-m -may ayor ors, s, city city mayors and vice-mayors of component cities. c) The sa sanggunian co concerned, in in ca case of sanggunian members. d) The ci city or or mu municipal ma mayor, in in th the case of barangay officials. [Note: The resignation shall be deemed accepted if not acted upon by the authority concerned within 15 working days from receipt thereof. Irrevocable resign resignati ations ons by sanggu sanggunia nian n member members s shall shall be deemed deemed accept accepted ed upon upon presen presentat tation ion before before an open open session session of the sanggu sanggunia nian n concer concerned ned and duly duly ente entere red d in its its reco record rds, s, exce except pt wher where e the the sanggunian members are subject to recall elections or to case cases s wher where e exis existi ting ng laws laws pres prescr crib ibe e the the manner of acting upon such resignations.] 10. Grievance Procedure (RA 7160, Section 83) The The loca locall chie chieff exec execut utiv ive e shal shalll esta establ blis ish h a proced procedure ure to inquir inquire e into, into, act upon, upon, resolv resolve e or settle settle compla complaint ints s and grieva grievance nces s presen presented ted by local government employees. 11. Discipline (RA 7160, Sections 60-68) Grounds for Disciplinary Action: An elec electi tive ve loca locall offi offici cial al may may be disc discip ipli line ned, d, suspended, or removed from office on any of the following grounds:

1.

Disl Disloy oyal alty ty to the the repu republ blic ic of the the Philippines.

2.

Culpable violation of the Constitution. 3. Dishonesty, o pp ppression, misconduct in office, office, gross negligence, negligence, or derelictio dereliction n of duty. It was held that acts of lasciviousness cannot be considered misconduct in office, and may not be the basis of an order of suspension. To constitute constitute a ground ground for disciplinary disciplinary action, action, the mayo mayorr char charge ged d with with the the offe offens nse e must must be convicted in the criminal action.

4. Commission of of an any of offense in involving moral turpitude or an offense punishable by at least prision mayor.

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5.

Abuse of authority. In fail failin ing g to shar share e with with the the muni munici cipa palit litie ies s concerned concerned the amount amount paid by the Naitonal Naitonal Power Power Corporati Corporation on for the redemption redemption of the properties acquired by the Province of Albay at a public auction held for delinquent realty taxes, the Provin Provincia ciall Offici Officials als were were held held guilty guilty of abuse of authority. (Salalima v. Guingona, 257 SCRA 55)

6. Unauthorized absence for 15 consecutive working days, except in the case of members of the sangguniang palalawigan, panlungsod, bayan and barangay.

7.

Appl Applic icat atio ion n for, for, or acqu acquis isit itio ion n of, of, foreign citizenship or residence or the status of an immigrant of another country. 8. Such other grounds as may be provided in this Code and other laws. [An [An electi elective ve local local offici official al may be remove removed d from from office on the grounds enumerated above by order of the proper court.] Cases on Discipliinary Action (Agra Notes)

1. The The powe powerr of the the Pres Presid iden entt over over admini administr strati ative ve discip disciplin linary ary cases cases agains againstt elective local officials is derived from his/ her power power of genera generall superv supervisi ision on over over local local governments. The power to discipline and ensure that the laws be faithfully executed must ust be cons consttrued rued to auth author oriize the the President to order an investigation of the act or conduct of local officials when in his/ her opinion the good of the public service so requ requir ires es.. Thus Thus:: “Ind “Indep epen ende dent ntly ly of any any statutory provision authorizing the President to conduc conductt an invest investiga igatio tion n of the nature nature involved in this proceeding, and in view of the nature and character of the executive author authority ity with with which which the Presid President ent of the Philippin Philippines es is invested, invested, the constituti constitutional onal grant to him/ her power to exercise general supervision over all local governments and to take take care care that that the the laws laws be fait faithf hful ully ly executed executed must be construed construed to authorize authorize him/ her to order an investigation of the act or conduc conductt of the local offici official. al.(Jo (Joson son v. Torres, GR 131255, 05.20.98) 2.

Juri Jurisd sdic icti tion on over over admi admini nist stra rati tive ve disciplina disciplinary ry actions actions against against elective elective local offici officials als is lodged lodged in two author authoriti ities: es: the Disciplini Disciplining ng Authority Authority and the Investigat Investigating ing Authority Authority.. The Disciplinar Disciplinary y Authority Authority may constitute a Special Investigating Committee in lieu of the Secretary of the Interior and Loca Locall Gove Govern rnme ment nt.. With With resp respec ectt to a provincial governor, the disciplining Authority is the President of the Philippines, whether acting acting by himsel himself/ f/ hersel herselff or throug through h the Executive Executive Secretary. Secretary. The Secretary of the Inte Interi rior or and and Loca Locall Gove Govern rnme ment nt is the the Investigating Authority, who may act himself/



herse herself lf or cons consti titu tute te and and Inve Invest stig igat atin ing g Committee. The Secretary of the Department, however, is not the exclusive Inve Invest stig igat atin ing g Auth Author orit ity. y. In lieu lieu of the the Depart Departmen mentt Secret Secretary ary,, the Discip Disciplin lining ing Autho uthori ritty may desi design gnat ate e a Speci pecial al Investigating Committee. The power of the President President over administra administrative tive disciplina disciplinary ry case cases s agai agains nstt elec electi tive ve loca locall offi offici cial als s is deri derive ved d from from his/ his/ her her powe powerr of gene genera rall superv supervisi ision on over over local local govern governmen ments. ts. The power power of the Depart Departmen mentt to invest investiga igate te administra administrative tive complaints complaints is based on the alter-ego principle or the doctrine of qualified politi political cal agency. agency. (Joso Joson n v. Torr Torres es,, GR 131255,05.20.98)

3.

An ‘admin ‘administ istrat rative ive offens offense’ e’ means means ever every y act act or cond conduc uctt or omis omissi sion on whic which h amou amount nts s to, to, or cons consti titu tute tes, s, any any of the the grounds for disciplinary action. (Salalima (Salalima v. Guingona, GR 117589-92,05.22.96)

4.

The 1991 Local Government Code is the applic applicabl able e law insofa insofarr as discip disciplin linary ary action action agains againstt an electi elective ve local local offici official al is conc concer erne ned. d. The The Code Code prev prevai ails ls over over the the Admini Administr strati ative ve Code Code since since the latter latter is of gene genera rall appl applic icat atio ion n and and the the form former er was was enacted much later than the latter. (Calingin v. Court of Appeals, GR 154616, 07.12.2004)

5.

When When a mayo mayorr is adju adjudg dged ed to be disq disqua uali lifi fied ed,, a perm perman anen entt vaca vacanc ncy y was was created for failure of the elected mayor to qualify for the office. In such eventuality, the duly duly electe elected d vice vice mayor mayor shall shall succee succeed d as provided by law. The second placer cannot be decl declar ared ed as mayo mayor. r. (Tor (Toral al Kare Kare v. Comelec, GR 157526/ 157527, 04.28.2004)

6.

Any vote cast in favor of a candidate, whose whose disqua disqualif lifica icatio tion n has alread already y been been declared final regardless of the ground, shall be considered considered stray. The applicatio application n of this rule is not only limited to disqualification by conviction in a final judgment. Section 40 of the 1991 Local Governm rnment Code enumerates other grounds. The disqualification of a candidate is not only by conviction in a final judgment. (Toral Kare v. Comelec, GR 157526/ 157527, 04.28.2004)

7.

A reelected local official official may not be held held admi admini nist stra rati tive vely ly acco accoun unta tabl ble e for for misconduct committed during his/ her prior term term of office office.. The re-electi re-election on of a public public official extinguishes only the administrative, but not the criminal, liability incurred during the previo previous us term term of office office.. (Valencia (Valencia v. Sandiganbayan, GR 141336, 06.29.2004) A local local offici official al who was re-ele re-electe cted d can no long longer er be charg charged ed admi admini nist stra rati tive vely ly for for misconduct during previous term. (Garcia v.

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Mojic ojica, a, GR 1390 139043 43,, 09. 09.10. 10.99) 99) An administrative case has become moot and academ academic ic as a result result of the expirati expiration on of term term of office office of an electi elective ve local local offici official al during during which which the act compla complaine ined d of was allegedly allegedly committed committed.. Proceedings Proceedings against against respondent respondent are therefore therefore barred by his/ her re-election. (Malinao v. Reyes, GR 117618, 03.29.96; Reyes v. Comelec, GR 120905, 03.07.96)

8. Under Under the 1991 1991 Local Local Govern Governmen mentt Code, Code, the disqua disqualif lifica icatio tion n to run for any elective elective local position is for two years after service of sentence, not 5 years under the Omnibus Election Code since the LGC is the later enactment. (Magno v. Comelec, GR 147904, 10.04.2002) 12. Cases on Offenses (Agra Notes)

1.

There are no unlawful disbursements of publ public ic fund funds s when when disb disbur urse seme ment nts s are are made pursuant to a reenacted budget. Money can be paid out of the local treasury since there there is a valid valid approp appropria riatio tion. n. There There is no undue undue injury injury since since there there was non unlawf unlawful ul expe expend ndit itur ure. e. Howe Howeve ver, r, only only the the annu annual al appr approp opri riat atio ions ns for for sala salari ries es and and wage wages, s, statut statutory ory and contra contractu ctual al obliga obligatio tions, ns, and essenti essential al operat operating ing expens expenses es are deemed deemed reenacted. There is criminal liability in delay in subm submis issi sion on of the the budg budget et prop propos osal al provided the requirements under Section 318 of the Code are not met. The mayor must first receive receive the necessary necessary financial financial documents from other city officials in order to be able to prepare the budget. (Villanueva v. Ople, GR 165125, 11.18.2005)

2.

A mayor mayor who contin continues ues to perfor perform m the functions of the office despite the fact that he/ he/ she she is unde underr prev preven enti tive ve susp suspen ensi sion on usurps the authority of the Office of the Mayor and is liable for violation of Section 13 of the Anti-Graft and Corrupt Practices Act. Section 13 of R.A. R.A. No. No. 3019 3019 cove covers rs two two type types s of offenses: (1) any offense involving fraud on the government; and (2) any offense involving publ public ic fund funds s or prop proper erty ty.. The The firs firstt type type involves any fraud whether public funds are involv involved ed or not. not. “Fraud “Fraud upon upon govern governmen ment” t” means means “any “any instan instance ce or act of tricker trickery y or deceit against the government.” It cannot be read read restri restricti ctivel vely y so as to be equiva equivalen lentt to malversation of funds. Honest belief that he is no long longer er unde underr prev preven enti tive ve susp suspen ensi sion on cannot serve as defense when he refused to leave his position despite having received the memorandum from the Department of Interior and Local Government and only vacating the office after being forced out by the Philippine



National Police. (Miranda v. Sandiganbayan, GR 154098, 07.27.2005)

3.

By allowi allowing ng a dismis dismissed sed employ employee ee whose whose dismis dismissal sal was affirm affirmed ed by the Civil Civil Service Commission to continue working and receive his/ her salary, the mayor accorded unwarrante unwarranted d benefits benefits to a party. Therefore Therefore he/ she is liable for violating Section 3(e) of the Anti-Graft and Corrupt Practices Act. At the time of the commission of the crime, the municipal mayor, he/ she was mandated to abide by Article I of Section 444(b)(x) of 1991 Loca Locall Gove Govern rnme ment nt Code Code whic which h dire direct cts s execut executive ive offici officials als and employ employees ees of the municipality to faithfully discharge their duties and functions as provided by law. Consid Consideri ering ng such duty, the mayor mayor had to enforce enforce decisions decisions or final resolutions, resolutions, orders or rulings of the Civil Service Commission. (Velasco v. Sandig Sandiganb anbaya ayan, n, GR1609 GR160991, 91, 02.28.2005)

4.

Under Section 3(h) of R.A. 3019, the person liable is any public officer who directly or indirectly has financial or pecuniary interest in any busine business, ss, contra contract ct or transa transacti ction on in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from from havi having ng any any inte intere rest st.. The The esse essent ntia iall elements of the violation of said provision are as follows: 1) The accused is a public officer; 2) he has has a dire direct ct or indi indire rect ct fina financ ncia iall or pecuniary interest in any business, contract or transaction; 3) he either: a) intervenes or takes part in his official capacity in connection with with such such intere interest, st, or b) is prohib prohibite ited d from from having such interest by the Constitution or by law. In other words, there are two modes by which a public officer who has a direct or indirect indirect financial or pecuniary pecuniary interest in any business, contract, or transaction may violate Section 3(h) of R.A. 3019. The first mode is when the public public officer officer intervenes intervenes or takes part in his official capacity in connection with his financ financial ial or pecuni pecuniary ary intere interest st in any business, contract or transaction. The second mode is when he is prohibited from having such an interest by the Constitution or by law. [ Thus, Thus, a mayor mayor viola violated ted the afores aforestat tated ed provis provision ion via via the first mode mode when when he/she he/she inte interv rven ened ed in his/ his/he herr offi offici cial al capa capaci city ty in connection with his/her financial or pecuniary inte intere rest st in the the tran transa sact ctio ion n rega regard rdin ing g the the supply and delivery of mixed gravel and sand to the the cons consti titu tuen entt bara barang ngay ays. s. It was was the the mayor’s company that supplied the materials. (Domin (Domingo go v. Sandig Sandiganb anbaya ayan, n, GR 149175 149175,, 10.25.2005)

5. Ther There e are are two two mode modes s by whic which h a public public officer officer who has a direct direct or indire indirect ct

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fina financ ncia iall or pecu pecuni niar ary y inte intere rest st in any any business, contract, or transaction may violate Sectio Section n 3(h) 3(h) of the Anti-G Anti-Graf raftt and Corrup Corruptt Prac Practtices ices Act. ct. The firs firstt mode ode is if in connection with his/ her pecuniary interest in any busine business, ss, contra contract ct or transa transacti ction, on, the public officer intervenes or takes part in his/ her offici official al capaci capacity. ty. The second second mode mode is when he/ she is prohibited from having such intere interest st by the Constitu Constitutio tion n or any law. A mayor relative to the issuance of a license to operate a cockpit which he/ she owns cannot be held liable under the first mode since he/ she could not have intervened or taken part in his/ her official capacity in the issuance of a cock cockpi pitt lice licens nse e beca becaus use e he was was not not a member of the Sangguniang Bayan. Under the 1991 Local Government Code, the grant of a lice licens nse e is a legi legisl slat ativ ive e act act of the the sanggunian. sanggunian. However, However, the mayor could be liab liable le unde underr the the seco second nd mode mode.. Furt Furthe her, r, Sectio Section n 89 of the 1991 Local Local Govern Governmen mentt Code proscribes such pecuniary interest. The penalty must be that one provided under the Code, not under the Anti-Graft Law since the Code Code spec specif ific ical ally ly refe refers rs to inte intere rest sts s in cockpits while the latter refers in general to pecuniary interest. (Teves v. Sandiganbayan, GR 154182, 12.17.2004)

6.

An illega illegally lly dismis dismissed sed govern governmen mentt employee who is later ordered reinstated is entitl entitled ed to backwa backwages ges and other other moneta monetary ry bene benefi fits ts from from the the time time of his/ his/ her her ille illega gall dismissal up to his/ his/ her reinstatement. reinstatement. This is only fair and just because an employee who is rein reinst stat ated ed afte afterr havi having ng been been ille illega gall lly y dismissed is considered as not having left his/ her office and should be given the correspondin corresponding g compensati compensation on at the time of his/ his/ her reinst reinstate atemen ment. t. When When there there is no malice or bad faith that attended the illegal dismissal and refusal to reinstate on the part of the municipal officials, they cannot be held personally accountable for the back salaries. The municipal municipal government government should disburse disburse funds to answer for the claims resulting from dismissal. (Civ (Civil il Serv Servic ice e Comm Commis issi sion on v. Gentallan, GR 152833, 05.09.2005)

7.

‘Moral Turpitude’ is an act of baseness, vileness, or depravity in the private duties which a person owes his/ her fellow men men (and (and wome women) n) or to the the soci societ ety y in gene genera ral, l, cont contra rary ry to the the acce accept pted ed and and customary rule of right and duty between man and woman woman or conduc conductt contra contrary ry to justic justice, e, honesty, modesty, or good morals. One such act is the crime of fencing. (Dela Torre v. Comelec GR 121592, 121592, 07.05.96) 07.05.96)

8.

A local local chief chief execut executive ive is not dutybound to approve and sign a voucher when



there there is no approp appropria riatio tions ns ordina ordinance nce and when there is no certification of availability of fund funds s for for the the inte intend nded ed purp purpos ose. e. For For not not signin signing g the voucher, voucher, bad faith faith cannot cannot be impu impute ted d agai agains nstt him/ him/ her. her. (Llorente v. Sandiganbayan, GR122166, 03.11.98)

9.

When When the the vali validi dity ty of subs subseq eque uent nt appointments to the position of Assistant City Assessor has not been challenged, the city mayor who appointed a person to serve in said said positi position on had every right to assume assume in good faith that the one who held the position prior to the appointments no longer held the same. Thus, the city mayor is not liable for violation of Sections 3(a) and 3(e) of the AntiGraft and Corrupt Practices Act. Section 3(a) requires a deliberate intent on the part of the public official concerned to violate those rules and and regu regula lati tion ons s duly duly prom promul ulga gate ted d by competent authority, or to commit an offense in connection with official duties. On the other hand, hand, Sectio Section n 3(e) 3(e) poses poses the standard standard of manifest partiality, evident bad faith, or gross inexcusable negligence before liability can be had on that paragraph. Manifest partiality has been characterized as a clear, notorious or plain inclination or predilection to favor one side rather than the other. Evident bad faith connotes connotes a manifest manifest deliberate deliberate intent intent on the part of the accused to do wrong or cause damage. Gross inexcusable negligence has been defined as negligence characterized by the the want want of even even slig slight ht care care,, acti acting ng or omitting to act in a situation where there is a duty to act, not inadvertently but wilfully and intention intentionally ally with a conscious conscious indifferen indifference ce to consequences in so far as other persons may be affected. (Reyes v. Atienza, GR 152243, 09.23.2005)

10. The approval by the Commission on Audit Audit (COA) (COA) of disbursements disbursements of local funds by a local cal executive rel relates to the admini administr strati ative ve aspect aspect of the matter matter of the officials accountability. It does not foreclose the Ombuds Ombudsman man’s ’s author authority ity to invest investiga igate te and determine whether there is a crime to be prosecuted for which he/ she is accountable. Compliance with COA rules and regulations does not necessarily mean that no misa misapp ppro ropr pria iati tion on of publ public ic fund funds s was was committed. Evidence in this regard must still be adduced. ( Aguinaldo Aguinaldo v. Sandiganba Sandiganbayan, yan, GR 124471, 11.28.96) 11.

Public Public offici officials als,, more more especi especiall ally y an electe elected d one, one, should should not be onion-s onion-skin kinned ned.. Thus, a vice-mayor who beat up a motorist despite the provocation by the latter, is guilty of misconduct. The period where an official was placed placed under under preven preventiv tive e suspen suspensio sion n cannot be credited to the penalty imposed on

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him/ her. (Yabut (Yabut v. Office of the Ombudsman, GR 111304, 07.17.94)

12.

A city city mayor mayor cannot cannot be held held liable liable unde underr Sect Sectio ion n 3(g) 3(g) of the the Anti Anti-G -Gra raft ft and and Corr Corrup uptt Prac Practi tice ces s Act Act for for ente enteri ring ng into into a cont contra ract ct whic which h is gros grossl sly y and and mani manife fest stly ly disadvantageous to the government when the contract which is subject of the complaint has been been resc rescin inde ded d befo before re the the repo report rt of the the Commission on Audit came out and before the complaint was filed with the Ombudsman. (Dutert Duterte e v. Sandig Sandiganb anbaya ayan, n, GR 130191 130191,, 04.27.98)

13.

Partial restitution of cash shortage is an implied admission of misappropriation of missing funds by the municipal treasurer in case where he/ she offers no competent and credible evidence to prove that the missing fund funds s were were actu actual ally ly cash cash adva advanc nces es of employ employees ees in the munici municipal pality ity.. (Doldo (Doldoll v. Peop People le of the the Phil Philip ippi pine nes, s, GR 1644 164481 81,, 09.20.2005) 13. Cases on Procedure (Agra Notes)

1.

An erring elective local officials has rights rights akin to the constitutional constitutional rights of an accu accused sed.. Thes These e are are esse essent ntia iall lly y part part of procedural procedural due process. process. The local elective elective official has the (1) right to appear and defend himself/ herself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him/ her; and (3) the right to compulsory attendance of witness and the production production of documentar documentary y evidence. evidence. Thus, the official’s official’s right to a formal formal investigat investigation ion was not satisfied when the complaint against him/ him/ her decided decided on the basis of positi position on papers papers.. The provis provision ions s for admini administr strati ative ve disciplinary actions elective local officials are markedly markedly different different from appointiv appointive e officials. officials. The rules on the removal and suspension of elective local officials are more stringent. The procedure of requiring position papers in lieu of a hear hearin ing g in admi admini nist stra rati tive ve case cases s is expressly allowed with respect to appointive officials but not to those elected. An elective official, official, elected by popular popular vote, is directly directly respons responsibl ible e to the commun community ity that that electe elected d him/ her. The official has a definite term of office office fixed by law which is relatively relatively of short duration. Suspension and removal from office definitely definitely affects affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the service services s of the offici official al they they had electe elected. d. (Joson v. Torres, GR 131255, 05.20.98)

2.

The esse essenc nce e of proc proced edur ural al due due process is embodied in the basic requirement of notice and a real opportunity to be heard. In administrative proceedings, procedural due



process process simply simply means means the opport opportuni unity ty to explain explain one’s side or the opportunity opportunity to seek a reco recons nsid ider erat atio ion n of the the acti action on or ruli ruling ng complained of. Procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a resp respo onden ndentt’s lega legall righ rights ts;; (2) (2) a real real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in one’s favor, and to defend one’ one’s s righ rights ts;; (3) (3) a trib tribun unal al vest vested ed with with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported supported by substantia substantiall evidence evidence subm submit itte ted d for for cons consid ider erat atio ion n duri during ng the the hearing or contained in the records or made known to the parties affected. Kinship alone does not establish establish bias and partiality. partiality. Bias and and part partia iali lity ty cann cannot ot be pres presum umed ed.. In admini administr strati ative ve procee proceedin dings, gs, no less less than than substantial proof is required. Mere allegation is not equivalent to proof. Mere suspicion of partia partialit lity y is not enough. enough. There There should should be hard evidence to prove it, as well as manifest showing of bias and partiality stemming from an extrajudicial source or some other basis. (Casimiro v. Tandog, GR 146137, 06.08.2005)

3.

An administra administrative tive complaint complaint against against an erring elective official must be verified and filed filed with with the proper proper govern governmen mentt office. office. A complaint against an elective provincial or city must be filed with the Office of the President. A compla complaint int agains againstt an electi elective ve munici municipal pal official official must be filed with the Sanggunian Sangguniang g Panlalawigan while that of a barangay official must must be file filed d befo before re the the Sang Sanggu guni nian ang g Panl anlungs ungsod od or Sangg anggun unia iang ng Bayan ayan.. (Mendoza v. Laxina, GR 146875, 07.14.2003)

4.

The lack of verifi verificat cation ion in a letter letter-complaint may be waived, the defect being not not fata fatal. l. Veri Verifi fica cati tion on is a form formal al,, not not jurisdictional requites. (Joson v. Torres GR 131255, 05.20.98)

5.

Deci Decisi sion ons s of the the Offic ffice e of the the President are final and executory. No motion for reconsideration is allowed by law but the parties may appeal the decision to the Court of Appeals. The appeal, however, does not stay stay the the execu executi tion on of the the deci decisi sion on.. The The Secretary of the Interior and Local Gove Govern rnme ment nt may may vali validl dly y move move for for its its immediate execution. (Calin (Calingin gin v. Court Court of Appeals, GR 154616, 07.12.2004)

6. Direct recourse to the courts without exhausting exhausting administrat administrative ive remedies remedies is not 67

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permitted. Thus, a mayor who claims that the imposition imposition of preventiv preventive e suspension suspension by the gove govern rnor or was was unju unjust stif ifie ied d and and poli politi tica call lly y motivated, motivated, should seek relief relief first from the Secretary of the Interior and Local Government, not from the courts. (Espiritu v. Melgar, GR 100874, 02.13.92)

7.

The 1991 1991 Local Local Govern Governmen mentt Code Code does not preclude the filing of an appeal of a deci decisi sion on of a sang sanggu guni nian ang g panl panlun ungs gsod od invo involv lvin ing g an elec electi tive ve bara barang ngay ay offi offici cial al.. Section 68 of the Code specifically allows a party to appeal to the Office of the President. The decision is immediately executory but the respond respondent ent may nevert neverthel heless ess appeal appeal the adv adverse erse deci decisi sion on to the the Offic ffice e of the President or to the Sangguniang Panlalawigan, as the case may be. (Mendoza v. Laxina, GR 146875, 07.14.2003)

8. Under Section 61 of the 1991 Local Government Government Code, a complaint complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President. When appeal to the Office of the Pres Presid iden entt is avai availa labl ble, e, reso resort rt to fili filing ng a peti petiti tion on for for cert certio iora rari ri,, proh prohib ibit itio ion n and and mandamus with the Court of Appeals under Rule 65, 14 was inapt. The availability of the right right of appeal appeal precludes precludes recour recourse se to the special civil action for certiorari. (Balindong v. Dacalos, GR 158874, 11.10. 2004) 9.

No noti notice ce of the the sessi session on wher where e a decision of the sanggunian is to be promul promulgat gated ed on the admini administr strati ative ve case is requir required ed to be given given to the petitio petitioner ner.. The deliberation of the sanggunian is an internal matt matter er.. In orde orderr to rend render er a deci decisi sion on in administra administrative tive cases involving involving elective elective local officials, the decision of the sanggunian must be writing writing stating clearly and distinctly distinctly the facts and the reasons for the decision. Thus, the voting voting follow following ing the delibe deliberat ration ion of the members of the sanggunian did not constitute the decision unless this was embodied in an opin opiniion prep prepa ared red by one one of them them and and concurred in by the others. Until the members have signed the opinion and the decision is promulgate promulgated, d, they are free to change their votes. (Mal (Malin inao ao v. Reye Reyes, s, GR 1176 117618 18,, 03.29.96)

10. The filing of motion for reconsiderat reconsideration ion before before the supervising supervising local government government concerning concerning a disciplinary disciplinary case involving an elective official of the supervised unit prevents the decision of the former from beco becomi ming ng final final.. Thus Thus,, there there is thus thus no decision finding the official guilty to speak of which would disqualify said official. (Lingating v. Comelec, GR 153475, 11.13.2002) I sweat, I bleed, I soar… Service, Sacrifice, Excellence


11.

Under Under the 1991 1991 Local Local Govern Governmen mentt Code, an elective local official must be citizen of the Philippi Philippines nes.. One who claims claims that a local official official is not has the burden of proving proving his/ her claim. claim. In administrativ administrative e cases and petitions for disqualification, the quantum of proo prooff requ requir ired ed is subs substa tant ntia iall evid eviden ence ce.. (Matugas v. Comelec, GR 151944, 01.20.2004)

12.

The Offic ffice e of the the Pres Presiident dent is authorized to stay the execution of a decision agains againstt a munici municipal pal mayor mayor issued issued by the Sanggunian Sangguniang g Panalawig Panalawigan an pending pending appeal. appeal. Reviewing officials are not deprived of their auth author orit ity y to orde orderr a stay stay an appe appeal aled ed decision. Supervising officials are given such discretion. (Berces (Berces v. Guingona, 241 SCRA 539) 539) 14. Complaints

1.

A verified complaint against provincial, highly urbanized city or independent component city elective official, shall be filed before the Office of the President.

a)

It may be noted noted that that the Constitu Constituti tion on places local governments under the supervision of the Executive Executive.. Likewise, Likewise, the Constitut Constitution ion allo allows ws Cong Congre ress ss to incl includ ude e in the the Loca Locall Governmen Governmentt Code provisions provisions for removal removal of local officials, officials, which suggest that Congress Congress may exercise removal powers. So, the Local Government Code has done and delegated its exercise to the President. Note also that legally, supervision is not incompatible with disciplinary authority. (Ganzon v. CA, 200 SCRA 271)

b)

Under Under Administ Administrativ rative e Order No. 23, the Pres Presid iden entt has has dele delega gate ted d the powe powerr to invest investiga igate te compl complain aints ts to the Secret Secretary ary of Interior Interior and Local Government. Government. This is valid delegation because what is delegated is only the power to invest investiga igate, te, not the power to discipline. Besides, the power of the Secretary of Interior and Local Government to investigare is based on the alter ego principle. (Joson v. Torres, 290 SCRA 279)

c)

The respondent respondent has the right to formal formal investigation under Administrative Order No. 23 which includes includes the right to appear appear and defend himself in person or by counsel, the right right to confront the witnesses against him and the right to compulsory process for the attendance of witnesses and the production of documents. Thus, in this case, where the Secretary denied the petitioners motion for a formal investigation and decided the case on the basis of position papers, the right f the petitioner was violated (Joson v. Torres) In Salalima v. Guingona, 257 SCRA 55, the SC said that the administrativ administrative e invest investiga igatio tion n can procee proceed d even even during during the pendency pendency of an appeal of audit findings findings to the Commission on Audit.

2. A verified complaint against elective munici municipal pal offici officials als,, shall shall be filed filed before before the 68

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sanggu sangguini inian an panlal panlalawi awigan gan,, whose whose decisi decision on may be appe appeal aled ed to the Offi Office ce of the President.

a)

Admi Admini nist stra rati tive ve Orde Orderr No. No. 18 date dated d Februa February ry 12, 1987, 1987, which which provid provides es that that on appeal from the decision of the Sangguniang Panl Panlal alaw awig igan an,, the the Pres Presid iden entt may may stay stay exec execut utio ion n of the the appe appeal aled ed deci decisi sion, on, was was deemed not to have been repealed by RA 7160 did not expres expressly sly repeal repeal the admini administr strati ative ve order, and implied repeals are frowned upon. (Berces (Berces v. Executive Executive Secretary, Secretary, 241 SCRA 539)

b)

The deci si sion of the sa ng ngguni an an panlalawigan in administrative cases involving electi elective ve offici officials als may be in writin writing g statin stating g clearly and distinctly the facts and the reasons for the decision, and must be signed by the requisite majority of the sanggunian. (Malinao v. Reyes, 256 SCRA 616)

3. A valid valid compla complaint int agains againstt electi elective ve barang barangay ay offici officials als,, shall shall be filed filed before before the sanggu sanggunia niang ng panglu panglungs ngsod od os saggun saggunian iang g bayan bayan concer concerned ned,, whose whose decisi decision on shall shall be final and executor. 15. Preventive Suspension (Agra Notes)

1.

Nature. Preven Preventiv tive e suspen suspensio sion n is merely a preventive measure, a preliminary step in an administrative investigation. Purpose. The purpos purpose e of the suspen suspensio sion n order is to prevent the accused from using his position and the powers and prerogatives of his office to influence potential witnesses or tamper with records which may be vital in the prosecution of the case against him. If after such investigation, investigation, the charge is establishe established d and the person investigated is found guilty of acts warranting his suspension or removal, then he is suspended, removed or dismissed. This is the penalty. Not being a penalty, the period within which one is under preventive susp suspen ensi sion on is not not cons consid ider ered ed part part of the the actual penalty of suspension. Thus, service of the preventive suspension cannot be credited as service of penalty. (Quimbo v. Gervacio, GR 155620,08.09.2005)

2.

Pre-requisites. A preventive susp suspe ension may be imposed by the Disciplinary Authority at any time (a) after the issues are joined i.e. respondent has filed an answer answer;; (b) when the evidenc evidence e of guilt guilt is stro strong ng;; and and (c) (c) give given n the the grav gravit ity y of the the offenses, offenses, there is great probability probability that the respond respondent ent,, who contin continues ues to hold hold office office,, could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. These are the pre-requisites. However, the failure of respondent to file his/ her answer answer despit despite e severa severall opport opportuni unitie ties s given him/ her is construed as a waiver of his/



her her righ rightt to pres presen entt evid eviden ence ce in his/ his/ her her beha behalf lf.. In this this situ situat atio ion, n, a prev preven enti tive ve susp suspen ensi sion on may may be impo impose sed d even even if an answer has not been filed. (Joson (Joson v. Torres, Torres, GR 131255, 05.20.98)

3.

Section 63 of the Local Government Code which provides for a 60 day maximum period for preventive suspension for a single office does not govern preventive suspensions suspensions imposed by the Ombudsman, Ombudsman, which is a constitutionally created office and indepe independe ndent nt from from the Execut Executive ive branch branch of govern governmen ment. t. The Ombud Ombudsma sman’s n’s power power of prev preven enti tive ve susp suspen ensi sion on is gove govern rned ed by Republic Act No. 6770 otherwise known as “The “The Ombuds Ombudsman man Act of 1989”. 1989”. Under Under the Act, the preventive suspension shall continue until the case is terminated by the Office of the the Ombu Ombuds dsma man n but but not not more more than than six six months. (Miran (Miranda da v. Sandig Sandiganb anbaya ayan, n, GR 154098, 07.27.2005)

4.

Under Under the 1991 1991 Local Local Govern Governmen mentt Code, a single preventive suspension of local electi elective ve offici officials als should should not go beyond beyond 60 days. days. Thus Thus,, the the Sand Sandig igan anba baya yan n cann cannot ot preventively suspend a mayor for 90 days. (Rios Rios v. Sand Sandig igan anba baya yan, n, GR 1299 129913 13,, 09.26.97)

5. A muni munici cipa pall offi offici cial al plac placed ed unde under r preven preventiv tive e suspen suspensio sion n by a sanggu sanggunia niang ng panlalawigan must file a motion for reconsidera reconsideration tion before before the said sanggunian sanggunian before filing a petition for certiorari with the Court of Appeals. Such motion is a condition sine sine qua qua non non befo before re fili filing ng a peti petiti tion on for for certiorari under certiorari under Rule 65 of the 1997 Rules of Civil Civil Proced Procedure ure,, as amende amended. d. (Flore (Flores s v. Sanggunian Sangguniang g Panlalawi Panlalawigan gan of Pampanga, Pampanga, GR 159022, 02.23.2005) 6.

There is nothing improper in placing an officer officer in preventiv preventive e suspension suspension before char charge ges s agai agains nstt him/ him/ her her are are hear heard d and and before he/she is given an opportunity to prove his/he his/herr innoce innocence nce.. This This is allowe allowed d so that that such such offi office cerr may may not not hamp hamper er the the norm normal al course of the investigation through the use of his/ her influence and authority. (Espiritu (Espiritu v. Melgar, GR 100874, 02.13.92)

7.

The Ombudsman pursuant to Republic Act No. 6770 and the President are both both author authorize ized d to place place under under preven preventiv tive e suspen suspensio sion n erring erring local local offici officials als of highly highly-urbani urbanized zed cities cities,, indepe independe ndent nt cities cities and provinces. provinces. The Ombudsman Ombudsman may impose impose a longer period of preventive suspension than the Presiden Presidentt may. may. In order order to justif justify y the preven preventiv tive e suspen suspensio sion n of a public public offici official al under Section 24 of Republic Act No. 6770,

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the evidence of guilt should be strong, and (a) the charge against the officer officer or employee employee should should involv involve e dishon dishonest esty, y, oppress oppression ion or grave misco sconduct or neglect in the performance of duty; (b) the charges should warrant removal from the service; or (c) the respondent’s continued stay in office would prejudice the case filed against him/her. The Ombu Ombuds dsma man n can can impo impose se the the 6-mo 6-mont nth h preventive suspension on all public officials, whether elective or appointive, who are under investigation. On the other hand, in imposing the the shor shorte terr peri period od of sixt sixty y (60) (60) days days of preventive suspension under the 1991 Local Government Code on an elective local official (at any time after the issues are joined), it would be enough that (a) there is reasonable ground ground to believ believe e that that the respon responden dentt has committed that act or acts complained of, (b) the evidence of culpability is strong, (c) the gravity of the offense so warrants, or (d) the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. (Hagad (Hagad v. Gozo-dadole, GR 108072, 12.12.95) Who Who may may impo impose se prev preven enti tive ve susp suspen ensi sion on.. Preven Preventiv tive e suspen suspensio sion n may be impose imposed d by the President, the governor, or the mayor [as the case may be] at any tome 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 witnesses or pose a threat to the safe safety ty and and inte integr grit ity y of the the reco record rds s and and othe other r eviden evidence; ce; provid provided ed that that any single single preven preventiv tive e suspension shall not extend beyond 60 days, and in the event several administrat administrative ive cases are filed against the respondent, he cannot be suspended for more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension. 1. The authority to to preventively susp suspe end is exercised concurrently by the Ombudsman, pursuant to RA 6770; the same law authorizes a preventive suspension of six months. (Hagad v. Gozo-Dadole, 1995) The preventive suspension of an elective local off officia iciall (in (in thi this case case the Mayor ayor of San Fernando, Fernando, Romblon) Romblon) by the Sandignaba Sandignabayan yan on a charge charge of violat violation ion of RA 3019, shall likewise be only for a period of 60 days, not 90 days, days, consis consisten tentt with with Sectio Section n 63, RA 7160, 7160, which which provid provides es that that “any “any single single preven preventiv tive e suspension of local elective officials shall not extend beyond 60 days.” (Rios v. Sandiganbayan, 1997) 2. Upon expiration of the preventive suspension, the respondent shall be deemed reinst reinstate ated d in office office withou withoutt prejud prejudice ice to the



continuation of the proceedings against him, which shall be terminated within 120 days from the time he was formally notified of the case against him. 3. Any ab a buse of o f th t he ex e xercise of o f th t he powe powerr of prev preven enti tive ve susp suspen ensi sion on shal shalll be penalized as abuse of authority. 16. Penalty (Agra Notes)

1.

Under Section 60 of the 1991 Local Governmen Governmentt Code, the penalty penalty of dismissal dismissal from service upon an erring local official may be declar declared ed only only by a court court of law. law. Thus, Thus, Articl Article e 124(b) 124(b),, Rule Rule XIX of the Rules and Regul egulat atio ions ns Impl Implem eme enti nting the Loca Locall Gover overnm nmen entt Code Code,, whic which h grant rants s the discip disciplin linary ary author authority ity the power power to remove remove elective local officials, is a nullity. (Pablico v. Villapando, GR 147870, 07.31.2002)

2.

A sang sanggu guni nian an panl panlal alaw awig igan an may may cause the removal of a municipal mayor who did not appeal to the Office of the President President within the reglemantary period the decision remo remova vall him/ him/ her her from from offi office. ce. If a publ public ic official is not removed before his/ her term of offi office ce expi expire res, s, he/ he/ she she can can no long longer er be removed removed if he/she he/she thereafte thereafterr re-elected re-elected for another term. Therefore, a decision removing an elective local official, which has become fina finall befo before re the the elec electi tion on,, cons consti titu tute tes s a disqualification. (Rey (Reyes es v. Come Comele lec, c, GR 120905, 03.07.96)

3. The President may suspend an erring provin provincia ciall electe elected d offici official al who commit committed ted seve severa rall admi admini nist stra rati tive ve offe offens nses es for for an aggr aggreg egat ate e peri period od exce exceed edin ing g 6 mont months hs provided that each administrative offense, the period period of suspension suspension does not exceed the 6month month limit. limit. (Sal (Salal alim ima a v. Guin Guingo gona na,, GR 117589-92, 05.22.96) 4. Dishonesty, oppression, misconduct in office office,, gross gross neglig negligenc ence, e, or an offens offense e punishable by at least prison least prison mayor constitute mayor constitute grounds for removal upon order of the proper court. court. (Castillo-C Castillo-Co o v. Barbers Barbers GR 129952, 129952, 06.16.98) The The pena penalt lty y of susp suspen ensi sion on impo impose sed d upon upon the the respondent shall not exceed his unexpired term, or a peri period od of 6 mont months hs for for ever every y admi admini nist stra rati tive ve offens offense, e, nor shall shall said penalty penalty be a bar to the candidacy of the respondent as long as he meets the qualifications required for the office.

1.

In Pablico v. Villapando, 2002, it was held that by virtue of Section 60 of the LGC, which provides that “an elective local official may may be remo remove ved d from from offi office ce on grou ground nds s enum enumer erat ated ed abov above e by orde orderr of the the prop proper er cour court, t,”” the the pena penalt lty y of dism dismis issa sall form form the the service may be imposed upon an erring local

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elective official only by a court of law. The prov provis isio ion n of the the Impl Implem emen enti ting ng Rule Rules s and and Regulations granting the disciplining authority the power to remove an elective local official administratively are invalid. 2. Note th t hat un u nder Se Section 40 4 0 of o f th the Loca Locall Gove Govern rnme ment nt Code Code,, the the pena penalt lty y of rem removal oval form orm off office ice as a resu result lt of an admi admini nist stra rati tive ve case case shal shalll be a bar bar to the the candidacy of the respondent for any elective local office.

3.

In Salalima v. Guingona, 257 SCRA 55, the the SC uphe upheld ld the the impo imposi siti tion on of the the admini administr strati ative ve penalt penalty y of suspen suspensio sion n of not more than 6 months for each offense, provided that that the success successive ive serves serves of the senten sentence ce should not exceed the unexpired portion of the term of the petitioners. The suspension did not amount to removal from office. 17. Administrative Appeal Decision may, within 30 days from receipt thereof, be appealed to: 1. The sangguniang panlalawigan, in the the case case of deci decisi sion on of comp compon onen entt citi cities es’’ sanggu sanggunia niang ng panlun panlungso gsod d and sanggu sanggunia niang ng bayan;

2.

The Office Office of the Presiden President, t, in the case case of deci decisi sion on of the the sang sangg gunia uniang ng panlalawigan and the sangguniang panglu panglungs ngsod od of highly highly urbani urbanized zed cities cities and independent component cities. Decision of the Offi Office ce of the the Pres Presid iden entt shal shalll be fina finall and and executory.

a)

In Malinao v. Reyes, 255 SCRA 616, the SC ruled ruled that that certio certiorar rarii will will not lie becaus because e there is still adequate remedy available in the ordina ordinary ry course course of law, law, i.e., i.e., appeal appeal of the decision decision of the Sanggunian Sangguniang g Panlalawig Panlalawigan an to the Office of the President.

b)

That there is appeal to the Office of the President is reiterated in Mendoza v. Laxina, 2003, although in this case, because the issue raise raised d was purely legal, legal, resort resort to court court was upheld. The phrases, “final and executory” and “final or executory” in Sections 67 and 68 of the Local Local Govern Governme ment nt Code, Code, simply simply mean mean that that admini administr strati ative ve appeal appeal will will not preven preventt the enfo enforc rcem emen entt of the the deci decisi sion on.. Whil While e the the admi admini nist stra rati tive ve deci decisi sion on is imme immedi diat atel ely y exec execut utor ory, y, the the loca locall elec electi tive ve offi offici cial al may may neverthel nevertheless ess appeal appeal the adverse decision decision to the Office of the President or the Sanggunian Panlalawigan, as the case may be. After all, if exonerated on appeal, he will be paid his salary an such other emoluments denied him during the pendency of the appeal.

18. Execution Pending Appeal An appeal shall not prevent prevent a decision decision from being executed; the respondent shall be considered as having been placed under preventive suspension



during during the pendency pendency of the appeal. appeal. But in Berces v. Executive Secretary, Secretary, 241 SCRA 530, the SC poin pointe ted d out out the the Admi Admini nist stra rati tive ve Orde Orderr No. No. 18 authorizes the Office of the President to stay the exec execut utio ion n of a decis ecisio ion n pend pendin ing g appe appeal al.. Administrative Order No. 18 was not repealed by the Local government Code. 19. Jurisdiction of Sandiganbayan Sandiganbayan 1. For an offense to fall under the excl xclusiv usive e orig origin ina al juris urisdi dict ctio ion n of the the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) (b) R.A. R.A. 1379 1379 (the (the law law on illill-go gott tten en wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14 and 14A, issued in 1986 (sequestration cases), or (e) other other offens offenses es or feloni felonies es whethe whether r simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or empl employ oyee ee hold holdin ing g any any of the the posi positi tion ons s enumerated in paragraph A of Section 4; and (3) the offense committed is in relation to the office. Thus Thus,, for for the the Sand Sandig igan anba baya yan n to have have exclusive jurisdiction, it is essential that the facts showing the intimate relation between the office of the offender, a mayor who holds a salary grade level 27, and the discharge of official duties be alleged in the information. The jurisdiction of a court is determined by the allegations in the complaint or info inform rmat atio ion, n, and and not not by the the evid eviden ence ce presented by the parties at the trial. It does not not thus thus suff suffic ice e to mere merely ly alle allege ge in the the info inform rmat atio ion n that that the the crim crime e char charge ged d was was committed by the offender in relation to his offi office ce or that that he took took adva advant ntag age e of his his position as these are conclusions of law. The specific factual allegations in the information that that woul would d indi indica cate te the the clos close e inti intima macy cy betw betwee een n the the disch dischar arge ge of the the offe offend nder er’s ’s offici official al duties duties and the commis commissio sion n of the offense charged, in order to qualify the crime as having been committed in relation to public offic ffice e are are cont contro roll lliing. ng. (Adaza v. Sandiganbayan, GR 154886, 07.28.2005)

2.

For purp purpos oses es of acqu acquis isit itio ion n of jur juris isdi dict ctio ion n by the the Sand Sandig igan anba baya yan, n, the the requir requireme ement nt impose imposed d by Republ Republic ic Act No. 8249 8249 that that the the offe offens nse e be “com “commi mitt tted ed in relati relation” on” to the offend offender’ er’s s office office is entire entirely ly distinct from the concept of “taking advantage of one’s position” as provided under Articles

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171 (Falsification by public officer, employee or notary notary or ecclesiasti ecclesiastic c minister) minister) and 172 (Falsification by private individuals and use of falsified falsified documents) documents) of the Revise Revised d Penal Penal Code. The offender under Article 172 must be a private individual or maybe a public officer, employee or notary public who does not “take advant advantage age of his offici official al positi position. on.””. Under Article 171, an essential element of the crime is that that the the act act of fals falsif ific icat atio ion n must must be committed by a public officer, employee or notary who “takes advantage of his official official position.” position.” The offender offender “takes advantage advantage of his official position” in falsifying a document when: (1) he has the duty to make or to prepare or otherwise otherwise intervene in the preparation preparation of the document; or (2) (2) he has has the the offi offici cial al cust custod ody y of the the docu docume ment nt whic which h he fals falsif ifie ies. s. (Ada (Adaza za v. Sandiganbayan, GR 154886, 07.28.2005)

3.

For purposes purposes of vesting vesting jurisdicti jurisdiction on with the Sandiganba Sandiganbayan, yan, the local elective elective offi offici cial al who who hold holds s a posi positi tion on of Grad Grade e 27 under the Local Government Code of 1991 must have committed the offense charged in relation to the office. For an offense to be committed in relation to the office, the relation between the crime and the office must be direct and not accidental, in that in the legal sense, the offense can not exist without the office. As an exception to this rule, the Court held held that that althou although gh public public office office is not an element of an offense charged, as long as the offe offens nse e char charge ged d in the the info inform rmat atio ion n is intima intimatel tely y connec connected ted with with the office office and is alleged to have been perpetrated while the accused accused was in the perfor performan mance, ce, though though impr improp oper er or irre irregu gula lar, r, of his/ his/ her her offi offici cial al functions, functions, there being no personal personal motive motive to commit the crime and had the accused would not have committed it had he not held the aforesaid office, the accused is held to have been indicted for “an offense offense committed committed in relation” to his office. However, even if public offi office ce is not not an esse essent ntia iall elem elemen entt of the the offense of obstruction of justice under Section 1(b) 1(b) of P.D. P.D. 1829 1829 but but coul could d have have been been committed had said mayor not held the office of the mayor, said official is subject to the jurisdiction of the Sandiganbayan. The mayor in the course of his/ her duty as Mayor, who is tasked to exercise general and operational control and supervision over the local police forces, used his/ her influence, authority and office to call and command members of the municipal police. (Rodriguez v. Sandiganbayan, GR 141710, 03.03.2004)

4.

The The Sand Sandig igan anba baya yan n has has orig origin inal al jurisdiction over a member of the Sangguniang Panlungsod, who was charged



with violation of Section 3(e) of the Anti-Graft and and Corr Corrup uptt Prac Practi tice ces s Act. Act. Viol Violat atio ion n of Republic Act No. 3019 committed by officials in the executive branch with Salary Grade 27 or high higher er,, and and the the offi offici cial als s spec specif ific ical ally ly enumerated in (a) to (g) of Section 4 a.(1) of P.D. No. 1606, as amended by Section 2 of Rep. Act No. 7975, regardless of their salary grades, such as provincial and city elective offi offici cial als, s, like likewi wise se fall fall with within in the the orig origin inal al jurisdiction of the Sandiganbayan. (Inding v. Sandiganbayan, GR 143047, 07.14.2004) 20. Effect of Re-election The The re-e re-ele lect ctio ion n of a loca locall offi offici cial al bars bars the the continuation of the administrative case against him, inas inasmu much ch as the the re-e re-ele lect ctio ion n of the the offi offici cial al is tant tantam amou ount nt to cond condon onat atio ion n by the the peop people le of whatever past misdeeds he may have committed. (Malinao v. Reyes, 255 SCRA 616) In Lingat Lingating ing v. Comele Comelec, c, 2002, 2002, the respondent respondent Mayor, having b ee een found guilty of the administr administrative ative charges charges and ordered ordered removed removed from off office, ice, had had seas easonab onably ly filed iled a motio otion n for reconsideration with the Sanggunian Panlalawigan, and no action on his motion was taken, then the decision decision of the Sanggunia Sanggunian n Panlalawig Panlalawigan an never became final. After the respondent was re-elected, he may no longer be removed from office for the administrative offense.

D. Appointive Local Officials 1. Respon Responsib sibili ility ty for human human resourc resources es and development The local chief executive shall be responsible for human resources and development in his unit and shall take all personnel actions in accordance with the Consti Constitut tution ion,, pertin pertinent ent laws, laws, includ including ing such such polici policies, es, guidel guideline ines s and standa standards rds as the Civil Civil Service Commission may establish; Provided that the local chief executive may employ emergency or casual employees employees or laborer laborer paid on a daily wage or piecework basis and hired through job orders for loca locall proj projec ects ts auth author oriz ized ed by the the sang sanggu guni nian an concerned, without need of approval or attestation by the Civil Service Commission, as long as the said employment shall not exceed 6 months.

a)

In De Rama v. CA, 2001, it was held that the constitutional prohibition on so-called midnight appointme appointments nts specifica specifically lly those those made within within two two mont months hs imme immedi diat atel ely y prio priorr to the the next next presid president ential ial electi elections ons,, applie applies s only only to the President or to Acting President. There is no law that prohibits prohibits local elective elective officials officials from making appointments during the last days of their tenure absent fraud on their part, when suc such appo appoin intm tmen ents ts are are not not tain tainte ted d by irregularities or anomalies which breach laws and regulations governing appointments.

b)

The Provincial Governor is without authority to designate the petitioner as Assistant Provincial Treasurers from a list of recommendees of the

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Provincial Governor. (Dimaandal v. COA, 291 SCRA 322)

being being an offic officer er under under him, him, the former former may may validly investigate the said Revenue Officer and plac place e him him unde underr prev preven enti tive ve susp suspen ensi sion on.. (Garcia v. Pajaro, 2002)

2. Officials common to all Municipalities, Municipalities, Cities and Provinces (RA 7160, Section 469-490) 1. Secr Secret etar ary y to to the the Sang Sanggu guni nian an 2. Treasurer 3. Assessor 4. Accountant 5. Budget Of Officer 6. Planni Planning ng and Develo Developme pment nt Coordi Coordinat nator or 7. Engineer 8. Heal th th Of Offi ce cer 9. Civ Civil Regis egisttrar 10. Admi Adminis nistr trat ator or 11. Lega Legall Offi Office cer r 12. Agri Agricu cult ltur uris istt 13. Social Social Welfare Welfare and and Developm Development ent Office Officer r 14. Environmen Environmentt and Natura Naturall Resources Resources Officer Officer 15. 15. Arch Archit itec ectt 16. Inform Informati ation on Office Officer r 17. Cooper Cooperati atives ves Office Officer r 18. Popula Populatio tion n Office Officer r 19. Vete Veteri rina nari rian an 20. Genera Generall Servic Services es Offic Officer er [Note: [Note: In the barangay, barangay, the mandated mandated appointed appointed offi offici cials als are are the the Bara Barang ngay ay Secr Secret etar ary y and and the the Barangay Treasurer, although other officials of the bara barang ngay ay may may be appo appoin inte ted d by the the puno punong ng barangay.]

3. Administrative Discipline Investiga Investigation tion and adjudicati adjudication on of administra administrative tive complaints complaints against appointive appointive local officials officials and empl employ oyee ees s as well well as thei theirr susp suspen ensi sion on and and remo remova vall shal shalll be in acco accord rdan ance ce with with the the civi civill service law and rules and other pertinent laws.

VII. Autonomous Regions

NOTE: As of this writing, writing, only one autonomous autonomous regi region on,, that that of Musli uslim m Mind Mindan anao ao,, has has been been established. (The Organic Act for the autonomous autonomous regi region on of the the Cord Cordill iller eras as fail failed ed to obta obtain in the the necess necessary ary number number of votes votes becaus because e only only one province approved the Organic Act. An autonomous regi region on must must have have at leas leastt two two prov provin ince ces. s. It is however, however, still possible possible for an Organic Organic Act for the Cordilleras to be approved at some future date.)

Article X Section 15. 15 . There shall be created created autonomous autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, provinces, cities, municipalit municipalities, ies, and geographic geographical al areas sharing common and distinctive historical and cultural heritage, econ econom omic ic and and soci social al stru struct ctur ures es,, and and othe otherr rele releva vant nt characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

A. Reasons Reasons Behind Behind the Creation of Autonomous Autonomous Regions

a)

Prev Preven enti tive ve Susp Suspen ensi sion on.. The The loca locall chief executive may preventively suspend for a period not exceeding 60 days any subordinate offi offici cial al or empl employ oyee ee unde underr his his auth author orit ity y pendin pending g invest investiga igatio tion n if the charge charge agains againstt such official or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty, or if there is reason to believ believe e that that the responde respondent nt is guilty guilty of the charges which would warrant his removal from the service.

b)

Disciplina Disciplinary ry Jurisdictio Jurisdiction. n. Except Except as otherw otherwise ise provid provided ed by law, law, the local local chief chief executive executive may impose impose the penalty of removal removal from service, demotion in rank, suspension for not more than 1 year without pay, fine in an amount amount not exceed exceeding ing 6 months months’’ salary salary,, or repr reprim iman and. d. If the pena penallty impo impose sed d is suspension without pay for not more than 30 days, his decision shall be final; final; if the penalty impo impose sed d is heav heavie ier, r, the the deci decisi sion on shal shalll be appealable to the CSC which shall decide the appeal within 30 days from receipt thereof. However, it is not the City Mayor, but the City Treasurer who exercises disciplinary authority over a City Revenue Officer. As head of the Office of the Treasurer, and Revenue Officer


1.

The The crea creati tion on of a situ situat atio ion n whic which h will will allow allow each each cultur culture e to flouri flourish sh unhamp unhampere ered d by the domina dominance nce of other other cultur cultures es and thereb thereby y to cont contri ribu bute te more more effe effect ctiv ivel ely y to nati nation onal al progress.

2.

To furnis furnish h possib possible le soluti solution on to the region regional al conflicts that have arisen partly from cultural diversity.145

Q: Is an autonomous region an independent nation within the nation? A: No, an autonomous region is organized “within the framework of this Constitution and the national sovereignty.” sovereignty.”146

145


146


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B. President’s General Supervision

provinces, provinces, cities, and geographic geographic areas voting voting favorably favorably in such plebiscite shall be included in the autonomous region.

Section 16. 16. The President shall exercise general supervision over autonomous autonomous regions to ensure ensure that laws are faithfully faithfully executed.

Section 19. 19. The first Congress elected under this Constitution shall, within eighteen months from the time of organization of both both Houses Houses,, pass pass the the organi organic c acts acts for the the autono autonomou mous s regions in Muslim Mindanao and the Cordilleras.

C. Powers Not Given t o Autonomous Regions 1. Enactment of Organic Acts

Section Section 17. 17. All powers, powers, functions, functions, and responsibilitie responsibilities s not grante granted d by this this Consti Constitut tution ion or by law to the autono autonomou mous s regions shall be vested in the National Government.

As preliminary step towards the establishment of the autonomous regions, Congress is commanded to formulate formulate an Organic Organic Act for each of the two. two. The Constitution commands the Congress to enact an Organic Act which will be the fundamental law of the regions.

Some of the powers which are NOT given to autonomous regions: 1. 2. 3. 4.

5. 6. 7. 8. 9.

Juri Jurisd sdic icti tion on over over nati nation onal al defe defens nse e and and security; Foreig Foreign n relat relation ions s and and fore foreign ign trade; trade; Cust Custom oms s and tar tarif iff, f, quar quaran anti tine ne Currency, monetary affairs, foreign exchan exchange, ge, bankin banking g and quasi-b quasi-bank anking ing,, external borrowing; Post Posts s and and comm commun unic icat atio ions ns;; Air Air and and sea sea tra trans nspo port rt Immi Immigr grat atio ion n and depo deport rtat atio ion; n; Citize Citizensh nship ip and natura naturaliz lizati ation; on; Gene Genera rall audi auditi ting ng..

D. Enac Enactm tmen entt of Orga Organi nic c Autonomous Region

Acts Acts;;

Crea Creati tion on

of

Section 18. 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisector sectoral al bodies bodies.. The organi organic c act shall shall define define the basic basic struct structure ure of govern governme ment nt for the region region consis consistin ting g of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws. The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebis plebiscit cite e called called for the purpos purpose, e, provid provided ed that that only only


Q: What law will be the charter of the autonomous regions? A: Their charter will be the Organic Act which will be pass passed ed by Cong Congre ress ss in the mann manner er and and according to the substantive specifications contained in Section 18.

Q: If the first Congress fails to pass the Organic Act within 18 months, will it no longer be able to pass such Act later? A: Yes. The failure of Congress to act cannot be allowed to frustrate the clear intent of the electorate. The relatively short period is prescribed in order to emphas emphasize ize the urgenc urgency y of creat creating ing autono autonomou mous s regions.

Q: The legality legality of RA 6734, the Organi Organic c Act Act of Mindanao, is challenged and the plebiscite called in 13 provinces provinces of Mindanao for the ratification ratification of the Organic Act is challenged for being illegal in that aspec aspects ts of the the Orga Organi nic c Act Act viol violat ate e the the Trip Tripol olii Agreement which is a valid international agreement. Decide. A: Even Even if the the Trip Tripol olii Agre Agreem emen entt were were an international agreement, the fact would not affect the validity of the Organic Act. International agreements as inte intern rnal al law law are are on the the same same lega legall leve levell as stat statut utes es and and whic whichev hever er as betw betwee een n the the two, two, intern internati ationa onall agreem agreement ent or statu statute, te, comes comes later later supersedes the other. (Abbas v. Comelec, 1989)

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Nature of Organic Act. The Organic Organic Act itself itself in legal category is a statute. However, it is more than an ordinary statute because it enjoys affirmation by a pleb plebis isci cite te.. Henc Hence, e, its its prov provis isio ion n cann cannot ot be amended by ordinary statute. (Pandi v. CA, 2002)

2. Creation of Autonomous Region The enactment of the Organic Act does not yet create the autonomous region. region. The creation of the autonomou autonomous s regions regions takes place only when the Organic Act is ratified “by a majority of the votes cast by the constituent units in a plebiscite called for the purpose.”

Q:For Q:For the effective creation of the automous region is it required that the total votes cast in all the units where the plebiscite is called must yield a majority of affirmative votes? A: No. No. It is enou enough gh for for the the crea creati tion on of the the autonomous region that some “provinces, cities, and geographic areas” vote favorably. In other words, as an examination of the constitutional text shows, for effective ratification it is not necessary to achieve a “double majority.” (Abbas v. Comelec, 1989)

What What areas areas become become part part of the Autono Autonomou mous s Region? Only those areas which vote in favor of the Organic Act. And since the Constitution speaks of “pro “provi vinc nces, es,”” an auto autono nomo mous us regi region on has has to consist of more than one province.

Q: What happens to the political subdivisions which do not vote favorably? A: They remain in the administrative region to which they belong. (Abbas v. Comelec, 1989)

Q: Can constituent units which vote negatively in the first first plebis plebiscit cite e under under this this Const Constitu itutio tion n join join the autonomous region at some future time? A: It is subm submit itte ted d that that they they may may thro throug ugh h a subsequent plebiscite. plebiscite.147 147




Q: May the Province of Ifugao, which was the only province which voted for a Cordillera Autonomous Region Region,, consti constitut tute e the the Cordil Cordiller lera a Autono Autonomou mous s Region? A: No, the Constitution says that an autonomous regi region on shall shall cons consis ists ts of prov provin ince ces, s, citi cities es and and municipalities, and therefore, not just on province. (Ordillo v. Comelec, 1990)

Q: Can a tribal tribal court court of the the Cordil Cordiller lera a Bodon Bodong g Administration render a valid executor decision in a land dispute? A: No. In the January January 30, 1990 plebis plebiscit cite, e, the creation creation of the Cordillera Cordillera Autonomous Autonomous Region was rejected by all the provinces and city of Cordillera region except Ifugao province, hence the Cordillera Autonomous Region did not come to be. Hence, no auton autonom omou ous s regi region on was was crea create ted. d. As a logi logica call cons conseq eque uenc nce e of that that,, the the Cord Cordil ille lera ra Bodo Bodong ng Administration created under EO 220 as well as the indigenous indigenous and special special courts courts for the indigenous indigenous cultural communities of the Cordillera region do not exis exist. t. “Suc “Such h trib tribal al cour courts ts are are not not a part part of the the Philip Philippin pine e Judici Judicial al system system.. They They do not posses posses judic judicial ial power. power. Like Like the pangkats or conciliati conciliation on panels created by PD 1508 in the barangays, they are advisory and conciliatory bodies whose principal objective is to bring together parties to a dispute and pers persua uade de them them to make make peac peace, e, sett settle le,, and and compromise” (Spouses Badua v. Cordillera Bodong Administration, 1991)

D. Enumerated Powers of Autonomous Region

Section 20. 20. Within its territorial jurisdiction and subject to the provisions provisions of this Constitution Constitution and national national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations; (5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Q: Legislation passed by the autonomous regions can come into into conflict with the Constitut Constitution. ion. How are such conflicts to be resolved?

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A: The Constitution should always prevail. (For instance, the full gamut of religious freedom must be recognized even in an area where a principal basis for the autonomy is religious homogeneity.)


VIII. Inter-Governmental Relations 148 A. National Government

Q: Legislation passed by the autonomous regions can come come into into confli conflict ct with with nation national al laws. laws. How are such such conflicts to be resolved? A: There There is no easy answer as to which would would prevail. prevail. The matter matter necess necessit itate ates s the seriou serious s weighi weighing ng of the the values. It may even involve adjustment of national laws in order to accommodate the constitutional desire for local autonomy in its various aspects. (And indeed conflict will almost naturally have to be expected because national laws laws are are gene genera rally lly a refl reflec ecti tion on of the the nati nation onal ally ly predominant culture. But, although Section 20 says that local legislative power should be subject to national laws, national laws themselves are subject to the Constitution one of those state policies is to ensure the autonomy of local g overnments.) overnments.) Conflicts can also arise in the application of local laws. This can be particularly crucial in the case of personal and property laws for those belonging belonging to autonomous autonomous regions but acting outside the autonomous territory and also for those who do not belong to autonomous regions but are acting within autonomous territory. Thus, conflict of law principles could develop could develop within our one national municipal law.

1. Power of General Supervision Supervision The President shall exercise exercise general general supervision supervision over local government government units to ensure ensure that their acts are within the scope of their prescribed powers and and func functi tion ons. s. The The Pres Presid iden entt shal shalll exer exerci cise se supervisory authority directly over provinces, highly urbanized cities and independent component cities; through through the province province with respect respect to component component cities cities and municipalitie municipalities; s; and through the city and municipality with respect to the barangays. 2. Enactment of Organic Acts Nati Nation onal al agen agenci cies es and and offi office ces s with with proj projec ectt implementation functions shall coordinate with one anot anothe herr and and with with the the loca locall gove govern rnme ment nt unit units s concer concerned ned in the discha discharge rge of these these functi functions ons.. They They shal shalll ensu ensure re the the part partic icip ipat atio ion n of loca locall govern governmen mentt units units both both in the planni planning ng and the implementation of said national projects. 3. Enactment of Organic Acts No projec projectt or progra program m shall shall be implem implement ented ed by governmen governmentt authoritie authorities s unless unless the consultatio consultations ns mentioned in Sections 2(c) and 26 are complied with with,, and and prio priorr appr approv oval al of the the sang sanggu guni nian an concerned is obtained; Provided, that occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided.

Q: Is the enumeration in Section 20 exhaustive of what the Organic Act may give to the autonomous regions? A: No. See Section 17. The enumeration in Section 20 is intended as a political signal that indeed the Constitution takes the matter of regional autonomy seriously.

E. Peace and Order, Defense and National Security Section 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions regions shall shall be the the respon responsib sibili ility ty of the Nation National al Government.

Sect Sectio ion n 21 make makes s a dist distin inct ctio ion n betw betwee een n the the prob proble lem m of inte intern rnal al peac peace e and and orde orderr and and the the proble problem m of nation national al defens defense e and securi security. ty. The former former,, unders understoo tood d as the proble problem m of ordina ordinary ry criminality which should normally be the concern of police authorities, is the responsibility of the local police agencies.

B. Philippine National Police The extent of operational supervision and c ontrol of local local chief chief execut executive ives s over over the police police force, force, fire fire protec protectio tion n unit unit and jail jail manage managemen mentt person personnel nel assigned in their respective jurisdictions shall be governed by the provisions of RA 6975, otherwise known as the “DILG Act of 1990.” C. Inter-governmental Relations 1.

Howeve However, r, the organi organizat zation ion,, mainte maintenan nance, ce, and superv supervisi ision on of police police agenci agencies es may in certai certain n circumstances be beyond the capabilities of local governments. In such instances, the President, as Commander-in-Chief may order the armed forces into the autonomous region to perform whatever may be necessary.

Exce Except pt as othe otherw rwis ise e prov provid ided ed unde underr the the Constitution and special statutes, the governor shall review all executive executive orders promulgat promulgated ed by the compon component ent city city or munici municipal pal mayor mayor within within his jurisdiction. jurisdiction. The city or municipal municipal mayo mayorr shal shalll revi review ew all all exec execut utiv ive e orde orders rs promulgated by the punong barangay within his

As to national defense and security, that is, as to dealing with threats to the stability, integrity, and survival survival of the nation, this clearly is the primary primary responsibility of the national government. 148


The The prov provin ince ce,, thro throug ugh h the the gove govern rnor or,, shal shalll ensu ensure re that that ever every y comp compon onen entt city city and and municipality within its territorial jurisdiction acts within the scope of its prescribed powers and func functi tion ons. s. High Highly ly urba urbani nize zed d citi cities es and and inde indepe pend nden entt comp compon onen entt citi cities es shal shalll be independent of the province.


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jur juris isdi dict ctio ion. n. If the the gove govern rnor or or the the city city or municipal municipal mayor fails to act on said executive executive orders orders within within 30 days from submission submission,, the same shall be deemed consistent with law and therefore valid.

2.

3.

4.

In the absence of the legal officer, the municipal government may secure the opinion of the the prov provin inci cial al lega legall offi office cer, r, and and in the the absenc absence e of the latter, latter, that that of the provin provincia ciall prosecutor on any legal question affecting the municipality. The The city city or muni munici cipa pali lity ty,, thro throug ugh h the the city city or muni munici cipa pall mayo mayor, r, shal shalll exer exerci cise se gene genera rall superv supervisi ision on over over compon component ent barang barangays ays to ensure ensure that that said said barang barangays ays acts acts within within the sco scope of thei theirr pres prescr crib ibed ed powe powers rs and and functions. Local government units may, through approp appropria riate te ordina ordinance nces, s, group group themse themselve lves, s, consolidate or coordinate their efforts, services and and reso resour urce ces s for for purp purpos oses es comm common only ly bene benefficia iciall to the them. In supp suppor ortt of such such undertakings, the local government units may, upon upon appr approv oval al by the the sang sanggu guni nian an afte afterr a public public hearin hearing g conduc conducted ted for the purpos purpose, e, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by th participating local units.

Atty. ARIS S. MANGUERA deserv deserving ing stude students nts was omitte omitted d in Sectio Sections ns 100(c) and 272 of the Local Government. (COA of Cebu v. Province of Cebu, 2001)

2. 3. 4.

F. Settlement of Boundary Disputes 1.

2.

3.

Loca Locall gove govern rnme ment nt unit units s shal shalll prom promot ote e the the establishment and operation or people’s and non-governm non-governmental ental organizati organizations ons to become become acti active ve part partne ners rs in the purs pursui uitt of loca locall autonomy. Loca Locall govern governme ment nt units units may ente enterr into into joint joint ventu enture res s and and such such oth other coo coopera perati tiv ve arra arrang ngem emen entts wit with peopl eople’ e’s s and and nonnongovernmental organizations to engage in the delivery o certain basic services, etc. A local local gover governme nment nt unit unit may, may, throu through gh its its local local chief executive executive and with the concurrence of the sanggunian concerned, prov rovide assist assistanc ance, e, financ financial ial or otherw otherwise ise,, to such people’s and non-governmental organizations for economic, socially-oriented, environmental or cultural projects to be implemented within its territorial jurisdiction.

E. Mandated Local Agencies 1.

The Local Local Scho School ol Boar Board d (Sect (Section ions s 98-101 98-101)) The SC held held that that the Special Special Educa Educatio tion n Fund Fund (SEF) may be used for the payment of salaries and personnel personnel-relat -related ed benefits benefits of the teachers teachers appointed by the province in connection with the establ establish ishme ment nt and mainte maintenan nance ce of extens extension ion classes and operation and maintenance of public schools. However, the fund may not be used to defray defray expenses expenses for college college scholarsh scholarship ip grants. grants. The grant of government scholarship to poor but


Boun Bounda dary ry dispu dispute tes s betw betwee een n and among among local local government units shall, as much as possible, be settled amicably. The rules on settlement of disputes are:

a)

Involving two or more barangays in the same city or municipality: referred to the sangguniang panlungsod or sagguniang bayan. b) Invo Involv lvin ing g two two or more more muni munici cipa pali liti ties es in the the same same prov provin ince ce:: refe referre rred d to the the sanggunian panlalawigan. The SC declared that the RTC was correct when when it orde ordere red d a relo reloca cati tion on surv survey ey to determine to which municipality the barangay belo belong nged. ed. The The agre agreem emen entt betw betwee een n the the municipalit municipalities ies of Jimenez Jimenez and Sinacaban Sinacaban which which was approv approved ed by the Sanggu Sanggunia nian n Panlalawigan is invalid as it would effectively amend EO 258 (creating the municipality of Sinacaban). The power of the Sangguniang Panlalawigan to settle boundary disputes is limited to implementing the law creating the muni munic cipal ipalit ity y; and and any any alt alterat eratio ion n of boundaries not in accordance with the law would exceed this authority.

D. People’s and Non-Governmental Organizations 1.

The Local Local Healt Health h Board Board (Secti (Section on 102102-105 105)) The The Loca Locall Deve Develo lopm pmen entt Coun Counci cill (Sec (Secti tion ons s 106-115) The The Local Local Peace Peace and and Order Order Counc Council il (Sect (Sectio ion n 116)

c)

Involving municipalities or component cities in different provinces: jointly referred to the the sang sanggu guni nian ans s of the the prov provin ince ces s concerned. d) Involving a component city or munici municipal pality ity on one hand and a highly highly urbanized city on the other, or two or more highly urbanized cities: jointly referred to the respective sanggunians of the parties.

2.

3.

In the event the sanggunian fails to effect a settlement within 60 days from the date the disp disput ute e was was refe referre rred d to it, it, it shal shalll issu issue e a certificati certification on to this effect. The dispute dispute shall then then be form formal ally ly trie tried d by the the sang sanggu guni nian an concerned which shall decide the issue within 60 days from the date of certification. Within Within the the time time and and manner manner pres prescri cribed bed by by the Rules Rules of Court, Court, any party party may elevate elevate the decision of the sanggunian concerned to the proper RTC having jurisdiction over the area in dispute which shall decide the appeal within 1 year form the filing thereof. Inas nasmuch uch as Sec Section ion 118 of the Local ocal Government Code does not provide for the office or the agency vested with the jurisdiction over the settle settlemen mentt of bounda boundary ry disput disputes es betwee between n a municipality and an independent component city in the same province, under BP 129, as amended

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by RA 7691, it should be the RTC in the province that can adjudicate the controversy. After all, RTC has has gene genera rall juri jurisd sdic icti tion on to adju adjudi dica cate te all all controversies, except only those withheld from its plenar plenary y powers powers.. (Munic (Municipa ipalit lity y of Kanang Kananga a v. Madrona, 2003)

4.

The The impo import rtan ance ce of draw drawin ing g with with prec precis ise e strokes the territorial boundaries of a local unit of govern governmen mentt cannot cannot be overem overempha phasiz sized. ed. The boundaries must be clear for they define the limits of the territorial territorial jurisdiction jurisdiction of the local local govern governmen mentt unit. unit. It can legiti legitimat mately ely exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits limits,, its acts acts are ultra vires. vires. Needle Needless ss to state, state, any uncert uncertain ainty ty in the bounda boundarie ries s of local government units will sow costly conflicts in the exerci exercise se of govern governmen mentt power power which which ultimately will prejudice the people’s welfare. (Mariano v. Comelec)

BAR BAR QUES QUESTI TION ON (200 (2005) 5):: Bounda Boundary ry Disput Dispute e Resolution; LGU; RTC’s Jurisdiction – Q:There Q:There was a boundary dispute between Duenas, a muni munici cipa pali lity ty,, and and Pass Passi, i, an inde indepe pend nden entt component city, both of the same province. State how the two local government units should settle their boundary dispute. (5%) Suggested Answer : Boundary disputes between loca locall gove govern rnme ment nt unit units s shou should ld,, as much much as possib possible, le, be settle settled d amicab amicably. ly. After After effort efforts s at settlement fail, then the dispute may be brought to the appropriate appropriate Regional Trial Court in the said provin province. ce. Since Since the Local Local Govern Governmen mentt Code Code is silent silent as to what body has exclusive exclusive jurisdiction jurisdiction over the settlement of boundary disputes between a municipality and an independent component city of the same province, province, the Regional Regional Trial Courts have have genera generall jurisd jurisdict iction ion to adjudi adjudicat cate e the said said controversy. (Mun. of Kananga v. Madrona, G.R. No. 141375, April 30, 2003)

IX. Local Initiative and Referendum A. Local Initiative 1. Definition of Local Initiative It is the legal legal proces process s whereb whereby y the registere registered d voters voters of a local local govern governmen mentt unit unit may direct directly ly propose, enact or amend any ordinance. It may be exercised exercised by all registered registered votes votes or the provinces, provinces, cities, municipalities and barangays. 2. Procedure a) Not le less th than 2, 2,000 re registered vo voters in the region: 1,000 registered voters in case of provinces and cities; 100 voters in case of municipalities, and 50 in case of barangays, may may file file a peti petiti tion on with with the the sang sanggu guni nian an concerned proposing the adoption, enactment, I sweat, I bleed, I soar… Service, Sacrifice, Excellence


repeal or amendment of an ordinance. 9RA 6735, Section 13) b) If no no fa favorable ac action is is ta taken by by th the sanggu sanggunia nian n concer concerned ned within within 30 days days form form presen presentat tation ion,, the propon proponent ents, s, throug through h their their duty authorized and registered repres represent entati atives ves,, may invoke invoke their their power power of init initia iattive, ive, giv giving ing not notice ice there hereof of to the the sanggunian concerned. c) The p rp rposition shall b e nu numbered serially, starting from numeral I. Two or more propositions may be submitted in an initiative. The Comelec or its designated representative shall extend assistance in the formulation of the proposition. d) Proponents s ha hall ha h ave 90 9 0 da d ays [ in in case of provinces and cities], 60 days [in case of munici municipal paliti ities] es],, and 30 days days [in case of barang barangays ays]] from from notice notice mentio mentioned ned in (b) to collect the required number of signatures. e) The pe petition sh s hall be be si signed be before the the elec electi tion on regi regist stra rarr or his his desi design gnat ated ed repres represent entati ative, ve, and and in the presenc presence e of a repr repres esen enta tati tive ve of the the prop propon onen entt and and a representative of the sanggunian concerned in a public placein the local government unit. f) Upon th t he la l apse of o f th t he pe p eriod, th t he Comelec shall certify as to whether or not the requ requir ired ed numb number er of sign signat atur ures es has has been been obta obtain ined ed.. Fail Failur ure e to obta obtain in the the requ requir ired ed number of signatures defeats the proposition. g) If th the re r equired n um umber is i s ob o btained, the Comelec shall set a date for the initiative during which the proposition proposition is submitted submitted to the registered voters in the local government unit for their approval within 60 days [in case of provinces], 45 days [in case of muni munici cipa pali liti ties es], ], and and 30 days days [in [in case case of barangays] from the date of certification by the Comelec. The initiative shall be held on the date set, after which the results thereof shall be certified and proclaimed by the Comelec. h) If th t he pr p roposition is i s ap a pproved by by a majority of the votes cast, it shall take effect 15 days after certification by the Comelec as if affirmative action had been taken thereon by the sanggu sanggunin ninan an and local local chief chief execut executive ive concerned. 3. Limitations On Local Initiative: i. The The pow power er of of loc local al init initia iati tive ve shal shalll not not be exercised more than once a year.

ii.

Initiative shall extend only to subjects or matt matter ers s whic which h are are with within in the the lega legall powers of the sanggunian to enact. iii. iii. If at any any tim time e befo before re the the ini inittiat iative ive is held, the sanggunian concerned adopts in toto toto the propos propositi ition on presen presented ted and the local chief executive approves the same, the initiative shall be cancelled. However,

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those against such action may, if they so desire, apply for initiative in the manner herein provided. On the Sanggunian Any proposition or ordinance approved through an init initia iati tive ve and and refe refere rend ndum um shal shalll not not be repe repeal aled ed,, modif odifie ied d or amen amende ded d by the the sanggu sanggunia nian n within within 6 months months from the date of appr approv oval al ther thereo eof, f, and and may may be amen amende ded, d, modified or repealed within 3 years thereafter by a vote vote of ¾ of all its its memb member ers. s. In case case of barangays, the period shall be 18 months after the approval thereof. B. Local Referendum

1.

2.

Definition Definition of Local Referendum Referendum.. The legal process whereby the registered voters of the local government units may approve, amend or reje reject ct any any ordi ordina nanc nce e enac enacte ted d by the the sanggunian. The The local local refer referen endu dum m shall shall be held held unde underr the control and direction of the Comelec within 60 days [in case of provinces], 45 days [in case of muni munici cipa pali liti ties es]] and and 30 days days [in [in case case of barang barangays ays]. ]. The Comele Comelec c shall shall certify certify and proclaim the results of the said referendum.

C. Authority of Courts Nothing in the foregoing shall preclude the proper courts from declaring null and void any proposition appr approv oved ed purs pursua uant nt here hereto to for for viol violat atio ion n of the the Constitution or want of capacity of the sanggunian concerned to enact said measure. (Read Case Digests in Pages 452-502 of Jack’s Compendium (2006))


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Article XI ACCOUNTABILITY OF PUBLIC OFFICERS I. STATEMENT OF POLICY (Section 1) II. IMPEACHMENT (Sections IMPEACHMENT (Sections 2 & 3) III. SANDIGANBAYAN (Section SANDIGANBAYAN (Section 4) IV. OMBUDSMAN (Section OMBUDSMAN (Section 5,6,8-14) V. SPECIAL PROSECUTOR (Section 7) VI. ILL-GOTTEN WEALTH (Section 15) VII. RESTRICTION ON LOANS (Section LOANS (Section 16) VIII.TRANSPARENCY RULE (Section 17) IX. ALLEGIANCE TO THE STATE AND THE CONSTITUTION (Section 18)


A. Public Office 1. Definition The right, authority or duty, created and conferred by law, by which for a given period, either fixed by law or enduri enduring ng at the pleasure pleasure of the creating creating powe power, r, an indi indivi vidu dual al is inve invest sted ed with with some some sovereign power of government to be exercised by him for the benefit of the public. (Fernandez v. Sto. Tomas, 1995) 2. Elements 1. Create Created d by law or by by autho authorit rity y of law; law; 2. Poss Posses ess s a delega delegati tion on of a port portio ion n of the the sovereign sovereign powers of government government,, to be exercised for the benefit of the public; 3. Powe Powers rs conf confer erre red d and and duti duties es impo impose sed d must be defined, directly or impliedly, by the legislature or by legislative authority; 4. Duti Duties es must must be perfo perform rmed ed indep indepen ende dent ntly ly and and with withou outt the the contr control ol of a super superio ior r power other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature, and by it placed under the general control of a superior office or body; and

5.

Must have permanence of continuity. continuity.149

3. Creation Public officers are created: a. By the the Con Const stit itut utio ion n 149



By vali valid d statut statutory ory enac enactme tments nts (e.g (e.g.. Offic Office e of the Insurance Commissioner)

c.

By authority of law 150

B. Public Officer A person who holds a public office.151 C. Public Office as Public Trust Q: What is meant by “public office is a public trust”? A: The basic idea of government in the Philippines is that of a representative representative government the officers being being mere agents and not rulers of the people… where every officer accepts office pursuant to the provisions of law and holds the office as a trust for the people whom he represents. (Just (Justice ice Malcom Malcom in Cornej Cornejo o v. Gabrie Gabriel, l, 41 Phil Phil 188, 188, 1920)152 Q: What does the command to lead modest lives entail? A: Even if the public officer is independently wealthy, he should not live in a manner that flaunts wealth. 153

I. Statement of Policy Section 1. 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve serve them with utmost utmost responsibil responsibility, ity, integrity, integrity, loyalty, loyalty, and efficiency efficiency;; act with patriotis patriotism m and justice, and lead modest lives.

b.

II. Impeachment Section 2. 2. The President, the Vice-President, the Members of the Suprem Supreme e Court, Court, the Member Members s of the the Consti Constitut tution ional al Commissio Commissions, ns, and the Ombudsman Ombudsman may be removed removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment. (2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution resolution or endorseme endorsement nt by any Member thereof, thereof, which shall be included in the Order of Business within ten session session days, and referred referred to the proper Committe Committee e within within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, Members, shall submit its report report to the House within within sixty sixty sessio session n days days from from such such referr referral, al, togeth together er with with the corres correspon pondin ding g resolu resolutio tion. n. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof. (3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contra contrary ry resolu resolutio tion. n. The vote vote of each each Member Member shall shall be recorded. (4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, 150


151


152


153


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the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

Note: The list of officers subject to impeachment in Section 2 as worded is exclusive.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

Members of the Supreme Court The Supreme Court said that the Special Special Prosecuto Prosecutor r cannot conduct an investigation into alleged misconduct of a Supreme Court justice, with the end view of filing a criminal information against him with the Sandiganbayan. A Supreme Court Justice cannot be charged in a criminal case or a disbarment proceeding, because the ultimate effect of either is to remove him from office, and thus circumven circumventt the provision provision on removal removal by impeachme impeachment nt thus thus viol violat atin ing g his his secu securi rity ty of tenu tenure re (In (In Re: Re: Firs Firstt Indorsement from Hon. Raul Gonzalez, A.M. No. 88-45433)

(6) The Senate shall have the sole power to try and decide all cases of impeachme impeachment. nt. When sitting sitting for that purpose, purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, preside, but shall not vote. vote. No person person shall be convicted convicted without the concurrenc concurrence e of two-thirds two-thirds of all the Members of the Senate. (7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless nevertheless be liable liable and subject to prosecuti prosecution, on, trial, trial, and punishment, according to law.

An impeachable officer who is a member of the Philippine bar cannot be disbarred first without being impeached. (Jarque v. Desierto, 250 SCRA 11 )156

D. Grounds 1. Culpable Culpable Violation Violation of the Constitutio Constitution n 2. Treason, Treason, Bribery Bribery and and Graft and Corrupti Corruption on 3. Other Other High High Crimes Crimes or 4. Betray Betrayal al of Publ Public ic Trust Trust Note: The enumeration is exclusive.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

A. Definition of Impeachment A national inquest into the conduct of public men. men .154

Culpable Violation of the Constitution Culpable violation of the Constitution is wrongful, intent intention ional al or willfu willfull disreg disregard ard or flouti flouting ng of the fundam fundament ental al law. Obviou Obviously sly,, the act must must be deliberate and motivated by bad faith to constitute a ground for impeachment. Mere mistakes in the proper construction of the Constitution, on which studen students ts of law may sincer sincerely ely differ differ,, cannot cannot be considered a valid ground for impeachment.157

To “impeach” simply means to formally charge with a violation of public trust. NATURE: NATURE: Impeachme Impeachment nt is a political political process. process. Thus, the decision to impeach lies exclusively on Congre Congress. ss. (J. Carpio Carpio in Gutier Gutierrez rez v. HR-CAJ HR-CAJ)) Within the limitations set forth in the Constitution, impe impeac achm hmen entt is inar inargu guab ably ly a politi political cal act exer exerci cised sed by the the Legi Legisl slat atur ure, e, a poli politi tica call body body elected elected by and directly accountable accountable to the people. (J. Sereno in Gutierrez v. HR-CAJ) Impeachment proceedings proceedings are political political processes processes that that the the Constitution places within the exclusive domain of the legislature. (J. Brion in Gutierrez v. HR-CAJ)

Treason Treason is committed by any person who, owing allegiance to the Government of the Philippines, levies war against it or adheres to its enemies, giving them aid and comfort. (RPC, Article 114) Bribery Bribery is committed by any public officer who shall agree to perform an ac, whether or not constituting crime, or refrain from doing an act which he is offici officiall ally y requir required ed to do in connec connectio tion n with with the performance of his official duties, in consideration for any offer, promise, gift or present received by him personally or through the mediation of another, or who shall accept gifts offered to him by reason of his office. 9RPC, Arts. 210-211)

B. Purpose of Impeachment The purpose of impeachment is not to punish but only to remove an officer who does not deserve to hold office.155 C. Impeachable Officers 1. 2. 3. 4. 5.

154 155

President Viceice-Pr Pres esiident dent Chie Chieff Just Justic ice e and and Asso Associ ciat ate e Just Justic ice e of the Supreme Court Chai Chairm rmen en and membe members rs of the the Const Constit itut utio iona nall Commissions Ombudsman

Antonio Nachura, Outline on Political Law, 345 (2006) Bernas Primer at 442 (2006 ed.)


Other High Crimes According to the special committee of the House of Representatives that investigated the impeachment charges against President Quirino, are supposed to refer to those offenses “which, like treason and 156

157

Antonio Nachura, Outline on Political Law, 345 (2006) Cruz, Philippine Political Law, p.335

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bribery, are of so serious and enormous a nature as to strike at the very life or the orderly workings of the the gove govern rnme ment nt.” .” This This rath rather er ambi ambigu guou ous s definition, assuming it is correct, would probably exclude exclude such offenses offenses as rape and murder which, although as serious as treason and bribery, will not necessarily strike at the orderly workings, let alone life of the government. government.158

togeth together er with with the corresp correspond onding ing resolut resolution ion.. The The reso resolu luti tion on shal shalll be cale calend ndar ared ed for for consideration by the House within ten session days from receipt thereof.

Graft and Corruption Graft and corruption is to be understood in the light of the prohibited acts enumerated in the Anti-Grant and Corrupt Practices Act, which was in force at the time of the adoption of the Constitution. Constitution .159 Betrayal of Public Trust The 1987 1987 Consti Constitut tution ion has added added “betra “betrayal yal of public public trust,” trust,” which means any form of violation violation of the oath of office even if such violation may not be criminally punishable offense. offense.160 This is a catch-all to cover all manner of offenses unbec nbecom omin ing g a publ public ic func functtiona ionary ry but but not not punis unisha habl ble e by the crim crimin inal al stat statut utes es,, like ike “inexcusable negligence of duty, tyrannical abuse of authority, breach of official duty by malfeasance or misfeasance, cronyism, favoritism, obstruction of justice. justice.161

Filing of the Verified Complaint . A verified complaint for impeachment is filed by either: (a) a Member of the House of Repres Represent entati atives ves;; or (b) any citize citizen n upon upon a resolu resolutio tion n of endors endorseme ement nt by any Member Member thereof.162

2.

Inclus Inclusion ion in the Order Order of Busine Business ss.. After After filing, the complaint shall be included in the Order of Business within ten session days.

3.

4.

158

Referral to the Committee. During the House Session when the complaint is calendared to be taken up, the Speaker of the House shall refer refer the compla complaint int for impeac impeachme hment nt to the proper committee within three session days. Committee Committee Report Report. The The Comm Commit itte tee, e, afte after r hear hearin ing, g, and and by a majo majori rity ty vote vote of all all its its Members shall submit its report to the House within sixty (60) session days from the referral,


159


160


161


162

The verified complaint is filed with the Office of the Secretary General of the House of Representatives. (15 th Congress Rules of Procedure in Impeachment Proceedings, Rule II, Section 3)


House Plenary Vote. Vote . A vote of a least onethird of all the Members of the House shall be nece necess ssar ary y eith either er to affi affirm rm a favo favora rabl ble e resolution with the Articles of Impeachment of the the Comm Commit itte tee, e, or over overri ride de its its cont contra rary ry resolution.

6.

Transmittal of Articles of Impeachment. Impeachment . In case the verifi verified ed compla complaint int or resolu resolutio tion n of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute constitute the Articles Articles of Impeachme Impeachment, nt, and trial by the Senate shall forthwith proceed.

Congress sha shall promulgate its rules on impeachme impeachment nt to effective effectively ly carry out the purpose. purpose. (Section 3(8)) (See (See 15th Cong Congre ress ss Rule Rules s of Proc Proced edur ure e in Impeachment Proceedings) The The dete determ rmin inat atio ion n of suff suffic icie ienc ncy y of form form and and substa substance nce of an impeac impeachme hment nt compla complaint int is an exponent of the express constitutional grant of rulemaking powers of the House of Representatives which committed committed such determinat determinative ive function function to public respondent. In the discharge of that power and in the exercise of its discretion, the House has formulate formulated d determinabl determinable e standards standards as to the form and substa substance nce of an impeac impeachme hment nt compla complaint int.. Prudential Prudential considerations considerations behoove the Court to respect the compliance by the House of its duty to effective effectively ly carry out the constituti constitutional onal purpose, purpose, abse absent nt any any cont contra rave vent ntio ion n of the the mini minimu mum m constitutional guidelines. (Gutierrez v. HR-COJ)

E. Procedure

1.

5.

F. Impeac Impeachme hment nt PROCEE PROCEEDIN DING G v. Impeac Impeachme hment nt CASE Impeachment PROCEEDING163 Comlexus of acts

Impeachment CASE Impeachment case refers to the legal controversy that controversy that is to be decided by the

163

J. Abad Abad in Gutier Gutierrez rez v. HR-COJ HR-COJ:: The initiatio initiation n of the impeachment proceeding in the House is intended to be a preliminary step for the determination of the sufficiency of the allegations against the impeachable impeachable public official. official. It is akin to a preliminary investigation in a criminal case where probable cause is determined against the the accused. If there is probable cause to indict the impeachable public official, then the Articles of Impeachment Impeachment is transmitte transmitted d to the Senate. Senate. In a criminal criminal case, a criminal complaint or information is then filed in court against the accused.

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Senate. Init Initia iate ted d by fili filing ng of the Art Artic iclles of Impeachment A veri verifi fied ed comp compla laint int for for May be initiated impeachment may be filed excl exclus usiv ivel ely y by the the by any any Memb Member er of the House of House House of Representa Representative tives s Representatives

Initiated by a filing of a verified complaint

or by any citize citizen n upon upon a resolution or endorsement by any Member thereof

Initiated in the House of Initiated in the Senate Representatives

G. One-Year Bar Rule 1. The One-Year Bar Rule

“No “No impe impeac achm hmen entt proc procee eedi dings ngs shal shalll be initiated against the same official more than once within a period of one year.” 2. Purposes (1) to prevent undue or too frequent harassment; (2) to allow the legislature to do its principal task of legislation.” 3. Meaning of “Initiated” The procee proceedin ding g is initia initiated ted or begins begins,, when when a veri verifi fied ed comp compla lain intt (wit (with h acco accomp mpan anyi ying ng reso resolu luti tion on or indo indors rsem emen ent) t) is FILE FILED D and and REFERRED to the Committ Committee ee on Justic Justice e for action. action. This is the initiating step which triggers the series of steps that follow. (Fransisco v. HR, 2003) In Fransico Fransico v. House of Represent Representative atives, s, the SC said that considerin considering g that the first impeachment impeachment complaint complaint was filed by former former President President Estrada agains againstt Chief Chief Justic Justice e Davide Davide along along with with seven seven associate justices on June 02, 2003 and referred to the House House Commit Committee tee on Justic Justice e on August August 05, 2003, the second second impeachme impeachment nt complaint complaint filed by some Rep. Teodoro et. al., against the Chief Justice on Octobe Octoberr 23, 2003, 2003, violat violates es the consti constitut tution ional al prohibitio prohibition n against against the initiation initiation of impeachme impeachment nt proceedings against the same impeachable officer within a one-year period.

4. Reckoning Point of One-Year Bar Gutierrez v. HR Committee on Justice G.R. No. 193459 February 15, 2011 March 8, 2011 FACTS: FACTS: (1) (1) On July July 22, 22, 2010 2010 a veri verifi fied ed impe impeac achm hmen entt compla complaint int (First (First Compla Complaint int)) agains againstt petiti petitione oner r Ombud Ombudsma sman n Ma. Merced Mercedita itas s N. Gutier Gutierrez rez for betrayal of public trust and culpable violation of the Consti Constitut tution ion was filed. filed. On August August 3, 2010, 2010,



another verified impeachment complaint (Second Complaint) against Ombudsman Gutierrez also for betrayal of public trust and culpable violation of the Constitution was filed. (2) On August 10, 2010, upon the instruction of House House Majo Majori rity ty Lead Leader er Nept Neptal alii Gonz Gonzal ales es II, II, Chairperson of the Committee on Rules, the two impeac impeachme hment nt compla complaint ints s were were includ included ed in the Order of Business for the following day, August 11, 2010. (3) On August 11, 2010, during its plenary session, the House House of Repres Represent entati atives ves simult simultane aneous ously ly referred both complaints to House Committee on Justice. (4) On September 1, 2010 the the House Committee Committee on Justice found the first and second complaints sufficient in form. ISSUE: ISSUE: Petitioner reckons the start of the one-year bar bar from from the the fili filing ng of the the firs firstt impe impeac achm hmen entt complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. Congress. She posits that that within one year from July 22, 2010, no second impeachment complaint may may be acce accept pted ed and and refe referr rred ed to the the Hous House e Committee on Justice. HELD: J. Carpio-Morales (Ponente). The filing and the referral of the impeachment impeachment complaint complaint to the proper proper commit committee tee “initi “initiate ated” d” the impeac impeachme hment nt procee proceedin dings gs and trigge triggered red the operat operation ion of the one-year bar rule. J. Brion, Dissenting Opinion: The initiation phase ends when the Justice Committee determines and the the Hous House e of Repr Repres esen enta tati tive ves s appr approv oves es the the sufficiency of the impeachment complaint in form and substance. The finding of the validity of the impeac impeachme hment nt compla complaint int in form form and substa substance nce completes the initiation phase of the impeachment proc procee eedi ding ngs s and and bars bars the the fili filing ng of anot anothe her r impeachment complaint for a period of one year therefrom. The appropriate point that serves both the the “und “undue ue hara harass ssme ment nt”” and and “int “inter erfe fere renc nce e in lawmaking” lawmaking” purposes of Section Section 3(5), Article Article XI of when the impeac impeachme hment nt the the Cons Consti titu tuti tion on is when complaint is determined to be valid. valid.

Issue: Petitioner argues that heaping two or more char charge ges s in one one comp compla lain intt will will conf confus use e her her in prepar preparing ing her defens defense; e; expose expose her to the grave dang danger ers s of the the high highly ly poli politi tica call natu nature re of the the impeac impeachme hment nt proces process; s; consti constitut tute e a whimsi whimsical cal disregard disregard of certain certain rules; impair her performance performance of official functions as well as that of the House;

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and prevent public respondent from completing its report within the deadline. III. Sandiganbayan Held: The “one “one offens offense, e, one compla complaint int”” rule rule in ordinary rules of criminal procedure cannot work to bar mult ultipl iple com compla plaint ints in impe impeac achm hmen entt proceedings, as the Constitution allows indictment for multiple impeachment offenses. H. Trial The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that that purpos purpose, e, the Senator Senators s shall shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall shall presid preside, e, but shall not vote. vote. A decisi decision on of conviction must be concurred in by at least twothirds of all the members of the the Senate.

Sectio Section n 4. The The pres present ent anti anti-g -gra raft ft cour courtt know known n as the the Sandiganba Sandiganbayan yan shall continue continue to function function and exercise its jurisdiction as now or hereafter may be provided by law.

A. Composition of Sandiganbayan Under Under PD 1606, 1606, it is compos composed ed of a Presid Presiding ing Justice and Eight Associate Justices, with the rank of Justice of the Court of Appeals. It sits in three [3] divisions of three members of each. B. Nature of Sandiganbayan Sandiganbayan is NOT a constitutional court. It is a statutory court; court; that is, it is created not only by the Constitution but by statute, although its creation is mandated by the Constitution. Constitution.166

I. Penalty The penalty penalty which which may be impose imposed d “shall “shall not exte extend nd furt furthe herr than than remo remova vall from from offi office ce and and disq disqua uali lifi fica cati tion on to hold hold any any offi office ce unde underr the the Republic.”164

C. Jurisdiction of Sandiganbayan Original Jurisdiction Viol Violat atio ions ns of RA 3019 3019 (AGC (AGCPA PA)) as • amended; amended; RA 1379; and Chapter II, Section 2, Titile VII, Book II of the RPV where one or more of the accused are officials officials occupying occupying the follow following ing positi positions ons in the govern governmen ment, t, whethe whetherr in a perman permanent ent,, acting acting or interi interim m capacity at the time of the commission of the offense: a. Offici Officials als of the the Exec Executi utive ve bran branch ch with with the position of Regional Director or higher, or with with Sala Salary ry Grad Grade e Leve Levell 27 (G27 (G27)) according to RA 6758. b. Memb Member ers s of Congr Congres ess s and and offi offici cial als s thereof with G27 an up; c. Membe embers rs of the the Judi Judici ciar ary y wit without hout prejudice to the Constitution; d. Chairmen and members of the Cons Consti titu tuti tion onal al Comm Commis issi sion ons s with withou outt prejudice to the Constitutions; and e. All All other other natio nationa nall and loca locall offic officia ials ls with G27 or higher.

This penalty is beyond the reach of the President’s power of executive clemency, but does not place the officer beyond liability liability to criminal criminal prosecution prosecution.. (When (When crimin criminall ally y prosec prosecute uted, d, theref therefore ore,, for the offe offens nse e whic which h warr warran ante ted d his his conv convic icti tion on on impeachment, the officer cannot plead the defense of double jeopardy.)165 J. Effect of Conviction Removal Removal from office office and disqualificatio disqualification n to hold any office under the Republic of the Philippines. But the party convicted convicted shall be liable liable and subject to prosecution, trial and punishment according to law. K. Judicial Review The Court cannot cannot review review the sufficie sufficiency ncy of the substance substance of the impeachmen impeachmentt complaints complaints.. The suffic sufficien iency cy of the substance substance will will delve delve into into the merits merits of the impeachmen impeachmentt complaints complaints over which this Court has no jurisdiction. The Court can only rule on whether there is a gross violation of the Constitution in filing the impeachment complaint, in partic particula ular, r, whethe whetherr the compla complaint int was filed filed in violation violation of the one-year ban. The Court cannot review the decision of the Committee on Justice to impeach. (J. Carpio in Gutierrez v. HR-COJ) 164


165



Other offenses or felonies whether simple or complexed complexed with other crimes committed committed by the public officials and employees mentioned in Subsection a in relation to their office; Civil and criminal cases filed pursuant to and in connection with EO nos. 1, 2, 14, and 14-A issued in 1986. •

•

Exclusive Original Jurisdiction over petitions for the issu ssuance of the writ rits of mandamus, 166


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prohibitio prohibitions, ns, certiorari, certiorari, habeas corpus, corpus, injunction injunction and other ancillary writs and processes in aid of its appellate appellate jurisdictio jurisdiction; n; Provided, Provided, that jurisdicti jurisdiction on over these petitions shall not be exclusive of the Supreme Court; Exclusive Exclusive Appellate Appellate Jurisdicti Jurisdiction on over over fina finall judgment judgments, s, resolution resolutions s or orders of regional regional trial courts whether in the exercise of their own original jurisdict jurisdiction ion or of their appellate appellate jurisdicti jurisdiction. on. (RA 8249) The following requisites must concur in order that a case may fall under the exclusive jurisdiction of the Sandiganbayan:

1.

2.

3.

The offense offense commit committed ted is a violat violation ion of RA 1379, Chapter II, Section , Title VII, Book II of the Revise Revised d Penal Penal Code, Code, Execut Executive ive Orders Orders Nos. 1, 2 14 and 14-A, issued in 1986, or other offe offens nses es or felo feloni nies es whet whethe herr simp simple le or complexed with other crimes; The offen offender der commit committin ting g the offens offenses es (viola (violatin ting g RA 3019, RA 1379, the RPC provisions, and other offenses, is a public official or employee holdin holding g any of the positi positions ons enumer enumerate ated d in par. A, Section 4, RA 8249; and The The offe offens nse e comm commit itte ted d is in rela relati tion on to the the office. (Lacson v. Executive Secretary, 1999)

Private Private individu individuals. als. “ In case private private individual individuals s are are char charge ged d as co-p co-pri rinc ncip ipal als, s, acco accomp mpli lice ces s or accessories with the public officers or employees, they shall be tried jointly with said public officers and employees. (Section 4, PD 1606)” “Private Private persons may be charged together together with public officers to avoid repeated and unnecessary presen presentat tation ion of witnes witnesses ses and exhibi exhibits ts agains againstt conspirators in different venues, especially of the issues involved are the same. It follows therefore that if a private person may be tried jointly with public public officers, officers, he may also be convicted jointly jointly with ith them hem, as in the case case of the pres presen entt peti petiti tion oner ers. s.”” (Bal (Balma madr drid id v. The The Hono Honora rabl ble e Sandiganbayan, 1991) Macalino Macalino v. Sandigan Sandiganbaya, baya, 2002: It was held that because the Philippine National Construction Company (PNCC0 has no illegal charter, petitioner, an officer of PNCC, is not a public officer. That being so, the Sandiganbayan has no jurisdiction over him. The only instance when the Sandiganba Sandiganbayan yan may exercise exercise jurisdicti jurisdiction on over a private private individual individual is when the complaint complaint charges him him eith either er as a co-p co-pri rinc ncip ipal al,, acco accomp mpli lice ce or accessory of a public officer who has been charged within the jurisdiction of the Sandiganbayan. Determination of Jurisdiction. Whether or not the Sandiganbayan or the RTC has jurisdiction over the case shall be determined determined by the allegations allegations in the information specifically on whether or not the



acts complained of were committed in relation to the official functions of the accused. It is required that the charge be set forth with particularity as will reasonably indicate that the exact offense which the accused is alleged to have committed is one in relation to his office. Thus, the mere allegation in the information that the offense was committed by the accused public officer “in relation to his office” is a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused’s official duties. (Lacson v. Executive Secretary) Binay Binay v. Sandigan Sandiganbayan bayan,, 1999: The Supreme Supreme Court discussed the ramifications of Section 7, RA 8249, as follows: 1. If tria triall of the cases cases pendi pending ng befo before re whate whateve ver r court has already begun as of the approval approval of RA 8249, the law does not apply; 2. If tria triall of case cases s pendin pending g before before what whateve everr court court has not begun as of the approval of RA 8249, then the law applies, and the rules are: i. If the the San Sandi diga ganb nbay ayan an has has jur juris isdi dict ctio ion n over a case pending pending before it, then it retains jurisdiction; ii. If the Sandiganbayan has no juris jurisdic dictio tion n over over a cased cased pendin pending g before it, the case shall be referred to the regular courts; iii. iii. If the the San Sandi diga ganb nbay ayan an has has jur juris isdi dict ctio ion n over a case pending before a regular court, the latter loses jurisdiction and the the same same shal shalll be refe referr rred ed to the the Sandiganbayan; iv. iv. If a regu regula larr cour courtt has has juri jurisd sdic icti tion on ove over r a case pending before it, then said court retains jurisdiction. D. Decisions/Review The unanimous vote of all the three members shall be required for the pronouncement of judgment by a division. Decisions of the Sandiganbayan shall be reviewable reviewable by the Supreme Court on a petition petition for certiorari. a. It is is now sett settled led that that Sectio Section n 13, RA RA 3019, 3019, makes it mandatory for the Snadig Snadiganb anbaya ayan n to suspend suspend any public public officer against whom a valid information char chargi ging ng viol violat atio ion n of that that law, law, or any any offense involving fraud upon the government or public funds or property is filed. filed. (Bolas (Bolastig tig v. Sandig Sandiganb anbaya ayan, n, 235 SCRA 103) b. The appe appella llate te juris jurisdic dictio tion n of the the Supre Supreme me Court over decisions and final orders of the Sandiganbayan is limited to questions of law. (Republic v. Sandiganbayan, 2002) IV. Ombudsman

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Section 5. 5. There is hereby created the independent Office of the Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Section 6. 6. The officials and employees of the Office of the Ombudsman, other than the Deputies, shall be appointed by the Ombudsman, according to the Civil Service Law.

Section 8. 8. The Ombudsman and his Deputies shall be naturalborn born citize citizens ns of the Philippi Philippines nes,, and at the time of their their appointment, at least forty years old, of recognized probity and independence, and members of the Philippine Bar, and must not have been been candid candidate ates s for any electi elective ve office office in the immediately preceding election. The Ombudsman must have, for ten years or more, been a judge or engaged in the practice of law in the Philippines. Duri During ng their their tenu tenure re,, they they shall shall be subj subjec ectt to the the same same disqualifications and prohibitions as provided for in Section 2 of Article 1X-A of this Constitution.

Sectio Section n 9. The Ombuds Ombudsman man and his Deputies Deputies shall shall be appointed by the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of thre three e nomi nomine nees es for for ever every y vaca vacanc ncy y ther therea eaft fter er.. Such Such appointments shall require no confirmation. All vacancies shall be filled within three months after they occur.

Section 10. 10. The Ombudsman and his Deputies shall have the rank rank of Chai Chairm rman an and and Memb Member ers, s, resp respec ecti tive vely ly,, of the the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during their term of office. Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment. They shall not be qualified to run for any office in the election immediately succeeding their cessation from o ffice.

Atty. ARIS S. MANGUERA Section 13. 13. The Office Office of the Ombudsm Ombudsman an shall shall have have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employ employee, ee, office office or agency agency,, when when such such act or omission appears to be illegal, unjust, improper, or inefficient. (2) Direct, upon complaint or at i ts own instance, any public official official or employee of the Government, Government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporatio corporation n with original charter, charter, to perform perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine fine,, cens censur ure, e, or pros prosec ecut utio ion, n, and and ensu ensure re compliance therewith. (4) Direct the officer concerned, in any appropriate case, case, and subject subject to such such limita limitatio tions ns as may be prov provid ided ed by law, law, to furn furnis ish h it with with copi copies es of docume documents nts relati relating ng to contra contracts cts or transa transacti ctions ons entered into by his office involving the disbursement or use of public funds or properties, and report any irre irregu gula lari rity ty to the the Comm Commis issi sion on on Audit udit for for appropriate action. (5) Request any government agency for assistance and information information necessary necessary in the discharge discharge of its respon responsib sibili ilitie ties, s, and to examin examine, e, if necess necessary ary,, pertinent records and documents. (6) Publicize Publicize matters covered by its investigat investigation ion when when circ circum umst stan ance ces s so warr warran antt and and with with due due prudence. (7) Determine the causes of inefficiency, red tape, mism misman anag agem ement ent,, frau fraud, d, and and corr corrup upti tion on in the the Government Government and make make recommen recommendatio dations ns for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such such other other powers powers or perfo perform rm such such funct function ions s or duties as may be provided by law. Section 14. 14. The Office of the Ombudsman Ombudsman shall enjoy fiscal fiscal autono autonomy. my. Its Its approv approved ed annual annual approp appropria riatio tions ns shall shall be automatically and regularly released.

A. Composition •

• •

•

Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Governmen Government, t, or any subdivisio subdivision, n, agency agency or instrument instrumentality ality ther thereo eof, f, incl includ udin ing g gove govern rnme ment nt-o -own wned ed or cont contro roll lled ed corpor corporati ations ons,, and shall, shall, in approp appropria riate te cases, cases, notify notify the complainants of the action taken and the result thereof.

An Ombu Ombuds dsma man n to be know known n as the the Tanodbayan. One over-all Deputy At leas leastt one one Depu Deputy ty each each for for Luzo Luzon, n, Visayas and Mindanao A sepa separa rate te Depu Deputy ty for for the the mili milita tary ry establishment may likewise be appointed

[Read Uy. v. Sandiganbayan, Sandiganbayan, G.R. No. 105965-70, 354 SCRA 651] B. Qualifications The Ombudsman and his Deputies must be: 1. Natura Naturall Born Born Citiz Citizens ens of the the Phil Philipp ippine ines s 2. At leas leastt 40 40 yea years rs of age age


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3. 4. 5.

Of reco recogni gnized zed probit probity y and and indep independ endenc ence e Memb Member ers s of the the Phi Phili lipp ppin ine e Bar Bar Must not have been candidates for any elective elective office office in the immediately immediately preceding preceding election. The The Ombu Ombuds dsma man n must must have have been been a judg judge e or engaged in the practice of law for ten years or more.

implementation of the policies as set forth by law. Laurel v. Desierto, 2002 ) Q: Charged with murder, the Governor challenges the authority of the office of the Ombudsman to conduc conductt the invest investiga igatio tion. n. He argues argues that that the authority of the Ombudsman is limited to “crimes related to or connected with an official’s discharge of his public functions.” Decide. A: The Ombudsman has authority. Section 12 says that he may “investigate… any act or omission of any public official… when such act or omission appe appear ars s to be ille illega gal, l, unju unjust st,, impr improp oper er or inefficient. inefficient. Murd Murder er is ille illega gal. l. And And sinc since e it was was allegedly committed by a public official it comes within the jurisdiction of the Ombudsman. (Deloso v. Domingo, 1990)

C. Appointment By the President from a list of at least six nominees prepared by the Judicial and Bar Council, and from a list of at least three nominees for every vacancy ther therea eaft fter er.. All All vaca vacanc ncie ies s to be fill filled ed in thre three e months.

a.

Term Term of Offi Office ce: Seen Seen year years s reappointment

with withou outt

b.

Rank and Salary : The Ombudsman and his his Depu Deputi ties es shal shalll have have the the rank rank of Chairman and Members, respectively, of the Constitutional Commissions, and they shall receive the same salary which shall not be decreased during his term of office.

c.

Fisc Fiscal al Auto Autono nomy my: The The Offi Office ce of the the Ombudsman shall enjoy fiscal autonomy.

F. Powers and Duties (See Section 12 and 13 of Article XI) Over Over the the year years s the the scop scope e of the the powe powers rs of the Ombudsman Ombudsman under Section Section 12 has been clarified clarified thus settling various disputed issues: 1. The ombudsman can investigate only officers of gove govern rnme ment nt owne owned d corp corpor orat atio ions ns with with orig origin inal al char charte ter. r. PAL, PAL, even even when stil stilll owned owned by the the government, did not have original charter .167

D. Disqualifications/Inhibitions Disqualifications/Inhibitions 2. The The juri jurisd sdic icti tion on of the the Ombu Ombuds dsma man n over over disciplinary cases involving public school teachers has has been been modi modifi fied ed by Sect Sectio ion n 9 of R.A. R.A. 4670 4670,, otherw otherwise ise known known as the Magna Carta for Public Public School Teachers, which says that such cases must first go to a committee appointed by the Secretary of Education.168 It is erroneous, thus, for respondents to contend that R.A. R.A. No. 4670 4670 confer confers s an exclus exclusive ive discip disciplin linary ary authority on the DECS over public school teachers and pres prescr crib ibes es an excl exclus usiv ive e proc proced edur ure e in administra administrative tive investigat investigations ions involving involving them. them. R.A. No. 4670 was approved on June 18, 1966. On the other hand, the 1987 Constitution was ratified by the people in a plebiscite in 1987 while R.A. No. 6770 was enacted on November 17, 1989. It is basic that the 1987 Constitution should not be restricted in its meaning by a law of earlier enactment. The 1987 Constitution and R.A. No. 6770 were quite explicit in conferring authority on the Ombudsman to act on compla complaint ints s agains againstt all publ public ic offi offici cial als s and and employees, with the exception of officials who may be removed only by impeachment or over members of Congress and the Judiciary.

During their tenure: • •

•

•

Shall not hold other office or employment Shall not engage in the practice of any profession or in the active management of control of any business which in any way may be affected by the functions of his office; Shall not be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the Government, or any of its subdivisions, etc,; Shall not be qualified to run for any office in the election election immediate immediately ly succeeding succeeding their cessation from office.

E. Jurisdiction How is the jurisdiction of the Ombudsman over a pers person on dete determ rmin ined ed? ? For purposes of determ determini ining ng the scope scope of the jurisd jurisdict iction ion of the Ombudsman, a public officer is one to whom some of the sovereign functions of the government has been delegated. (The National National Centennial Centennial Commission Commission performs performs executive power which which “is generally defined as the power power to enforc enforce e and administ administer er laws. laws. It is the power of carrying carrying the laws into practical practical operation and and enfo enforc rcin ing g thei theirr due due obse observ rvan ance ce.” .” The The exec execut utiv ive e func functi tion on,, ther theref efor ore, e, conc concer erns ns the the


3. The The Ombu Ombuds dsm man Act aut authori horize zes s the the Ombudsman to impose penalties in administrative cases.169 Sect Sectio ion n 21 of RA 6770 6770 vest vests s in the the Ombu Ombuds dsma man n “disc discip ipli lina nary ry auth author orit ity y over over all all 167

Khan, Jr v Ombudsman, Ombudsman, G.R. No. 125296, July 20. 2006.

168

Ombudsman v. Estandarte, GR 168670, April 13, 2007.

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elec electi tive ve and and appo appoin inti tive ve offi offici cial als s of the the Government, Government,”” exce except pt impe impeac acha habl ble e offi office cers rs,, members members of Congress, Congress, and and the Judiciary Judiciary.. And under Section 25 of RA 6770, the Ombudsman may impose in administrative proceedings the “penalty “penalty ranging ranging from suspensio suspension n without pay for one year to dismissal with forfeiture of benefits or a fine ranging ranging from five thousand pesos (P5,000.00) (P5,000.00) to twice the amount amount malversed malversed,, illegally illegally taken or lost, or both at the discretion of the Ombudsman x x x.” Clearly, under RA 6770 the Ombudsman Ombudsman has the power to impose directly administrative penalty on public officials or employees.170 Note Note,, howe howeve ver, r, that that acco accord rdin ing g to the the Loca Locall Gove Govern rnme ment nt Code Code,, elec electi tive ve offi offici cial als s may may be dismis dismissed sed only only by the proper proper court. court. “Where “Where the discip disciplin lining ing author authority ity is given given only only the power power to suspend and not the power to remove, it should not be permitted permitted to manipulate manipulate the law by usurping usurping the power to remove.” remove.”171

petiti petitione oners rs seem to think. think. Indeed Indeed,, it would be constitutionally proscribed if the suspension were to be of an indefinite duration or for an unreasonable length length of time. The Court Court has thus laid laid down the rule that preventive suspension may not exceed the maximum period of ninety (90) days, in consonance with Presidential Decree No. 807, now Section 52 of the Administrative Code of 1987. 176 Q: RA 6770 6770 empo empowe wers rs the the Offi Office ce of the the Ombudsman to conduct preliminary investigations and to directly directly undertake undertake criminal prosecutions. prosecutions. What is the constitutional basis for this power? A: Arti Articl cle e XI, XI, Sect Sectio ion n 13(8 13(8)) mean means s that that the the Ombu Ombuds dsma man n may may be vali validl dly y empo empowe were red d with with prosecutori prosecutorial al functions functions by the legislature, legislature, and this the latter did when it passed RA 6770. (Camanag v. Guerrero, 1997) Q: RA 6770 770 empo empowe wers rs the Off Office ice of the the Ombudsman to conduct preliminary investigations and to directly directly undertake undertake criminal prosecutions. prosecutions. Does it not violate violate the principle principle of separation of powers powers since since the power power to conduc conductt prelim prelimina inary ry investigation is exclusive to the executive branch? A: If it is authorized by the Constitution it cannot be logically argued that such power or the exercise ther thereo eoff is unco uncons nsti titu tuti tion onal al or viol violat ativ ive e of the the principle of the separation of powers. (Camanag v. Guerrero, 1997)

4. The The Spec Specia iall Pros Prosec ecut utor or may may not not file file an information without authority from the Ombudsman. Republ Republic ic Act No. 6770, 6770, by confer conferrin ring g upon upon the Ombudsman the power to prosecute, likewise grants to the Ombudsman the power to authorize the filing of informations. informations. A delegated authority to to prosecute prosecute was also given to the Deputy Ombudsman, but no such delegation delegation exists to the Special Prosecutor Prosecutor.. Nor is there there an implie implied d delega delegatio tion. n. The Specia Speciall Prosecutor prosecutes only when authorized by the Ombudsman.172

Q: RA 6770 770 empo empowe wers rs the Off Office ice of the the Ombudsman to conduct preliminary investigations and to directly directly undertake undertake criminal prosecutions. prosecutions. Does it not directly contravene Article XI, Section 7 by diminishing the authority and power lodged in the Office of the Special Prosecutor? A: In Acop In Acop v. Office of the Ombudsman, 1995, the Court upheld not only the power of Congress to so place the Office of the Special Prosecutor under the Ombudsman, but also the power of Congress to remove some of the powers granted to the Office of Special Special Prosecutor. Prosecutor. . (Camanag (Camanag v. Guerrero, 1997)

5. The Ombuds Ombudsman man has been been confer conferred red rule rule making power to govern procedures under it.173 One who is answering an administrative complaint filed befo before re the the Ombu Ombuds dsma man n may may not not appe appeal al to the the procedural rules under the Civil Servi rvice Commission.174 6. The power to investigate or conduct a preliminary invest investiga igatio tion n on any Ombuds Ombudsman man case case may be exercised exercised by an investigator investigator or prosecutor prosecutor of the Office of the Ombudsman, or by any Provincial or City Prosecutor or their assistance, either in their regula regularr capaci capacitie ties s or as deputi deputized zed Ombud Ombudsma sman n prosecutors. prosecutors.175

Q: Are the powers of Ombudsman delegable? A: The The powe powerr to inve invest stig igat ate e or cond conduc uctt a preliminary investigation on any Ombudsman case may be exercised by an investigator or prosecutor of the the Offi Office ce of the the Ombu Ombuds dsma man, n, or by any any Provincia Provinciall or City Prosecutor Prosecutor or their assistance, assistance, either in their regular capacities or as deputized Ombudsman Ombudsman prosecutors. prosecutors. (Honasan II v. Panel of Investigators of the DOJ, 2004)

7. A preventive suspension will only last ninety (90) days, not the entire duration of the criminal case like 169

Ombudsman v. CA, November 22, 2006; Ombudsman v. Lucero, November 24, 2006. 170 Ombudsman v. CA, G.R. No. 168079, July 17, 2007. 171

Sangguniang Barangay v. Punong Barangay, G.R. No. 170626, March 3, 2008.

“In any form or manner” It was held that the fact that the Ombudsman may start an investigation on the basis of any anonymous letter does not violate the the equa equall prot protec ecti tion on clau clause se.. For For purp purpos oses es of

172

Perez v. Sandigabayan, Sandigabayan, G.R. No. 166062, September 26, 2006.

173

Buencamino v. CA, GR 175895,April 4, 2007.

174

Medina v. COA, G.R. No. 176478, February 4, 2008.

175

Honasan II v. Panel of Investigators of the DOJ, G.R. No. 159747, April 13, 2004.


176

Villasenor v Sandiganbayan G.R. No. 180700, March 4, 2008

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initiating preliminary investigation before the Office of the Ombudsman, a complaint “in any form or manner” is sufficient. (Garcia v. Miro, 2003)177


F. Power to Investigate The power power to invest investiga igate, te, includ including ing prelim prelimina inary ry investigation, belongs to the Ombudsman and not to the Special Prosecutor. (Acop v. Ombudsman, 1995)

Power Power of Contempt. Contempt. The Ombuds Ombudsman man is also also granted by law the power to cite for contempt, contempt, and this power may be exercised by the Ombudsman while conducting preliminary investigation because preliminary investigation is an exercise of quasi judic judicial ial functi functions ons.. (Lasti (Lastimos mosa a v. Vasque Vasquez, z, 243 178 SCRA 497)

Uy v. Sandiganb Sandiganbayan, ayan, 2001: It was held held that that unde underr Sect ections ions 11 and and 15, 15, RA 6670 6670,, the Ombudsman s clothed with the authority to conduct prelim prelimina inary ry invest investiga igatio tion n and to prosec prosecute ute all crim crimin inal al case cases s invo involv lvin ing g publ public ic offi office cers rs and and employees, not only those within the jurisdiction of the Sandi andiga ganb nbay ayan an,, but but thos those e wit within hin the the jurisdiction of regular courts as well. The clause “any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee.

Can Can the the Cour Courtt be comp compel elle led d to revi review ew the the exerci exercise se of discer discernme nment nt in prosec prosecuti uting ng or dismissing a case before the Ombudsman? It has been consistently held that it is not for the Court Court to review review the Ombud Ombudsma sman’s n’s paramo paramount unt discretion in prosecuting or dismissing a complaint filed before his office. The rule is based not only upon upon the the resp respec ectt for for the the inve invest stig igat ator ory y and and prosecutor powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. (Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard regard to compla complaint ints s filed filed before before it. (Olair (Olairez ez v. Sandiganbayan, 2003) There is, however, one important exception to this rule, and that is, when grave abuse of discretion on the part of the Ombudsman in either prosecuting or dismissing a case before it is evident. In this event, the the act act of the the Ombu Ombuds dsma man n can just justif ifia iabl bly y be 179 assailed. Ombu Ombuds dsma man n has has no auth author orit ity y to dire direct ctly ly dism dismis iss s a publ public ic offi office cerr from from gove govern rnme ment nt service. Under Under Sectio Section n 13(3) 13(3) of Articl Article e XI, the Ombudsman Ombudsman can only recommend recommend to the officer officer conc concer erne ned d the the remo remova vall of a publ public ic offi office cerr or employ employee ee found found to be admini administr strati ativel vely y liable liable.. (Taplador v. Office of the Ombudsman, 2002) Be that as it may, the refusal, without just cause, of any officer to comply with such an order of the Ombudsman to penalize erring officer or employee is a ground for disciplinary action. Thus, there is a stro strong ng indi indica cattion ion tha that the the Ombuds budsm man’s an’s recommendation is not merely advisory in nature but actually mandatory within the bounds of law. This, should not be interpreted as usurpation of the Ombudsman of the authority of the head of office or any officer concerned. It has long been settled that the power of the Ombudsman to investigate and prosecute any illegal act or omission of any public official is not an exclusive authority, but a shared shared or concur concurren rentt author authority ity in respec respectt of the offense charged. (Ledesma v. CA, 2005) 177


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Ombu Ombuds dsma man’ n’s s Powe Powerr to Inve Invest stig igat ate, e, Not Not Exclusive. Whil While e the the Ombu Ombuds dsma man’ n’s s powe powerr to investigate is primary, it is not exclusive and, under the Ombudsman Act of 1989, he may delegate it to others and take it back any time he wants to. (Acop v. Ombudsman, 1995) This This powe powerr of inve invest stig igat atio ion n gran grante ted d to the the Ombuds Ombudsman man by the 1987 1987 Consti Constitut tution ion and The Ombudsman Act is not exclusive but is shared with with other other simila similarly rly author authorize ized d govern governmen mentt agencies such such as the the PCGG PCGG and and judg judges es of munici municipal pal trial trial courts courts and munici municipal pal circui circuitt trial trial cour courts ts.. The The powe powerr to condu conduct ct prel prelim imin inar ary y investigation on charges against public employees and officials is likewise likewise concurrentl concurrently y shared with the Department of Justice. Despite the passage of the Loca Locall Gov Governm ernmen entt Cod Code in 1991 1991,, the Ombudsman retains concurrent jurisdiction with the Office of the President and the local Sanggunians to invest investiga igate te compla complaint ints s agains againstt local local electi elective ve officials. officials. [Emphasis [Emphasis supplied]. supplied].180 (Ombudsman (Ombudsman v. Galicia G.R. No. 167711, October 10, 2008, 568 180

J. Corona, Corona, (Separat (Separate e Opinio Opinion n in Biraog Biraogo o v. PTC [2010])The [2010])The Constitution has granted to the Ombudsman the power to investigate other public officials and employees, such power is not absolute and exclusive. exclusive. Congress has the power power to further define the powers of the Ombudsman and, impliedly, to authorize other offices to conduct such investigation over their respective officials and personnel. The Constitution has vested in Congress alone the power to grant to any office concurrent jurisdiction with the Ombudsman to conduct conduct preliminar preliminary y investigat investigation ion of cases of graft graft and corruption. In a myriad of cases, the SC has recognized the concurrent juris jurisdic dictio tion n of other other bodies bodies vis-àvis-à-vis vis the the Ombuds Ombudsman man to conduct conduct preliminary preliminary investigatio investigation n of complaints complaints of graft and other corruption corruption as authorize authorized d by law, meaning, for any other pers on on or agen cy cy to be able to con du duct such investigations, there must be a law authorizing him or it to do so. so.

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SCRA 327 cited by Ponente J. Mendoza in Biraogo v. PTC, Dec. 7, 2010)

The Ombuds Ombudsman man can also also invest investiga igate te crimin criminal al offenses committed by public officers which have no relation to their office. (Vasquez v. Alino, 271 SCRA 67)

In Ombudsman Ombudsman v. Estandart Estandarte e , the Court recogn recognized ized the concurrent jurisdiction of the Division School Superintendent vis-à-vis the Ombudsman to conduct preliminary investigation of complaints complaints of graft graft and corruption corruption committe committed d by public school teachers. Such concurrent jurisdiction jurisdiction of the Division School School Superinte Superintendent ndent was granted granted by law, specifically specifically RA 4670 or the Magna Carta for Public School Teachers. Likewise, in Ombudsman v. Medrano the Court held that by virtue of RA 4670 the Department of Education Investigating Committee has concurrent jurisdiction with the Ombudsman to conduct conduct a preliminar preliminary y investiga investigation tion of complaints complaints against public school teachers. Even the Sangguniang Panlungsod has Panlungsod has concurrent jurisdiction with with the Ombuds Ombudsman man to look look into into compla complaint ints s agains againstt the the punong barangay . Such concurrent authority is found in RA 7160 or the Local Government Code The Department of Justice is another agency with jurisdiction concur concurren rentt with with the Ombud Ombudsm sman an to conduc conductt prelim prelimina inary ry investigation of public officials and employees. employees. Its concurrent jurisdiction is based on the 1987 Administrative Code. Certai Certainly nly,, there there is a law, law, the Admini Administr strati ative ve Code, Code, which which authorized the Office of the President to exercise jurisdiction concur concurren rentt with with the Ombud Ombudsm sman an to conduc conductt prelim prelimina inary ry investigat investigation ion of graft and corruption corruption cases. However, However, the scope and focus of its preliminary investigation are restricted. Under the principle that the power to appoint appoint includes the power to remove, each President has had his or her own version of a presidential committee to investigate graft and corruption, the last being President Gloria Macapagal Arroyo’s Presidenti Presidential al Anti-Graf Anti-Graftt Commissio Commission n (PAGC) (PAGC) under E.O. No. 268. The PAGC exercised exercised concurrent concurrent authority authority with the Ombudsman to investigate complaints of graft and corruption against against presidenti presidential al appointees appointees who are not impeachabl impeachable e officers and non-presidential appointees in conspiracy with the latter. It is in this light that DOH v. Camposano, should be understoo understood. d. At that time, the PCAGC (now defunct) defunct) had no investigatory power over non-presidential appointees; hence the President created an a d-hoc committee to investigate both the principal respondent who was a presidential appointee and her co-conspi co-conspirato rators rs who were non-presi non-presidenti dential al appointees appointees.. The PAGC (now also defunct), however, was authorized to investigate both presidential appointees and non-presidential appointees who were in conspiracy with each other. Howeve However, r, althou although gh pursua pursuant nt to his power power of contro controll the President may supplant and directly exercise the investigatory functions functions of departmen departments ts and agencies agencies within within the executive executive department, his power of control under the the Constitution and the Administrativ Administrative e Code is confined confined only to the executive executive department.


Q: May the milita military ry deputy deputy invest investiga igate te civili civilian an police? A: Because the power of the Ombudsman is broad and because the Deputy Ombudsman acts under the direction of the Ombudsman, the power of the Milita Military ry Deputy Deputy to invest investiga igate te member members s of the civili civilian an police police has also also been been affirm affirmed. ed. (Acop (Acop v. Ombudsman, 1995) Bar Question (2003) Ombudsman; Power to Investigate A group of losing litigants in a case decided by the Supr Suprem eme e Cour Courtt file filed d a comp compla lain intt befo before re the the Ombudsman charging the Justices with knowingly and deliberately deliberately rendering an unjust unjust decision decision in utter violation of the penal laws of the land. Can the Ombudsman validly take cognizance of the case? Explain. SUGGESTE SUGGESTED D ANSWER ANSWER : No, No, the the Ombu Ombuds dsma man n cannot cannot entertain entertain the complaint. complaint. As stated stated in the case case of In re: Laureta. Laureta. 148 SCRA SCRA 382 [1987], [1987], pursuant to the principle of separation of powers, the correctness of the decisions of the Supreme Court as final arbiter of all justiciable disputes is conc conclu lusi sive ve upon upon all all othe otherr depa depart rtme ment nts s of the the govern governmen ment; t; the Ombuds Ombudsman man has no power power to review review the decisions decisions of the Suprem Supreme e Court Court by entertaining a complaint against the Justices of the Supreme Court for knowingly rendering an unjust decision. SECOND SECOND ALTERNATI ALTERNATIVE VE ANSWER ANSWER:: Arti Articl cle e XI, XI, Section 1 of the 1987 Constitution provides that public officers must at all times be accountable to the people. people. Sectio Section n 22 of the Ombudsma Ombudsman n Act provides that the Office of the Ombudsman has the powe powerr to inve invest stig igat ate e any any seri seriou ous s misco miscond nduc uctt allege allegedly dly commit committed ted by offici officials als remova removable ble by impeachment for the purpose of filing a verified compla complaint int for impeac impeachme hment nt if warran warranted ted.. The Ombudsman can entertain the complaint for this purpose. Q: May the Ombudsman act on a complaint filed by disgru disgruntl ntled ed party party litiga litigants nts agains againstt the Suprem Supreme e Court alleging certain named members of the Court as having committed acts that appear to be illegal, unjust, improper or inefficient? Would it violate the prin princi cipl ple e of separ separat atio ion n of powe powers rs if he take takes s cognizance? Sugge Suggeste sted d Answer Answer by Abelar Abelardo do Domond Domondon: on: Yes, it is the duty of the Ombudsman to investigate “on complaint by any person, any act or omission of any public official, employee, office or agency when such act or omission appears to be illegal, unjust, improper or inefficient.” (Article XI, Section 13(1)) G. Power to Suspend

(Read also the Dissenting Opinion of J. Carpio in Biraogo v. PTC, Dec. 7, 2010)


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Preventive Suspension. The power to investigate also also includ includes es the power power to impose impose preven preventiv tive e suspension. (Buenaseda v. Flavier, 1993) Suspension under the Ombudsman Act vis-àvis the Local Government Code: In order to justify the preventive suspension of a public official under Section 24 of RA 6770, the evidence of guilt should be strong, and: a. The charge against the officer or empl employ oyee ee shou should ld invol nvolv ve dish dishon ones esty ty,, oppression or grave misconduct or neglect in the performance of duty; b. That the charges should warrant removal form the service; or c. The re r espondent’s c on ontinued s ta tay in in office would prejudice the case filed against him. The Ombuds Ombudsman man can impose impose the 6-mont 6-month h preventiv preventive e suspension suspension to all public public officials, officials, whether elective or appointive, who are under investigation. On the other hand, in imposing the shorter period of sixt sixty y (60) (60) days days of prev preven enti tive ve susp suspen ensi sion on prescribed in the Local Government Code of 1991 on an elective local official (at any time after issues are joined), it would be enough that: a. There is reasonable ground to believe that the respondent has committed the act or acts complained or; b. The evidence of of culpability is st strong; c. The gravity of the offense so warrants; or d. The continuance in office of the respondent respondent could influence influence the witnesses witnesses or pose a threat to the safety and integrity of the records records and other evidence. (Jose Miranda v. Sandiganbayan, 2005) Bar Question (2004) Ombuds Ombudsman man:: Power Power to Suspen Suspend; d; Preven Preventiv tive e Suspension Director WOW failed the lifestyle check conducted by the Ombudsman's Office because WOWs assets were were grossl grossly y dispro dispropor portio tionat nate e to his salary salary and allo allowa wanc nces es.. More Moreov over er,, some some asse assets ts were were not not included in his Statement of Assets and Liabilities. He was charged of graft and corrupt practices and pending pending the completion completion of investigat investigations, ions, he was suspended from office for six months. Q: Aggrieved, WOW petitioned the Court of Appeals to annul annul the preventi preventive ve suspens suspension ion order order on the ground that the Ombudsman could only recommend but not impose the suspension. Moreover, according to WOW, the suspension suspension was imposed imposed without any notice or hearing, in violation of due process. Is the petitioner's contention meritorious? Discuss briefly. (5%)



SUGGESTED ANSWER: ANSWER : The contention of Director WOW is not meritorious. The suspension meted out to him is preventive and not punitive. Section 24 of Republic Act No. 6770 grants the Ombudsman the power to impose preventive suspension up to six months months.. Preven Preventiv tive e suspen suspensio sion n maybe maybe impose imposed d with withou outt any any noti notice ce or hear hearin ing. g. It is mere merely ly a preliminar preliminary y step in an administra administrative tive investiga investigation tion and is not the final determination of the guilt of the officer concerned. (Garcia v. Mojica, 314 SCRA 207 [1999]). Q: For his part, the Ombudsman Ombudsman moved to dismiss dismiss WOWs petition. According to the Ombudsman the evidence of guilt of WOW is strong, and petitioner failed failed to exhaust exhaust administra administrative tive remedies. WOW admitted he filed no motion for reconsideration, but only only beca becaus use e the the orde orderr susp suspen endi ding ng him him was was immediately executory. Should the motion to dismiss be granted or not? Discuss briefly. (5%) SUGGESTED ANSWER: The motion motion to dismis dismiss s should be denied. Since the suspension of Director WOW was immediately executory, he would have suffered irreparable injury had he tried to exhaust administra administrative tive remedies before filing filing a petition petition in court (University of the Philippines Board of Regents v. Rasu Rasul, l, 200 200 SCRA SCRA 685 685 [199 [19910 10Be Besi side des, s, the the ques questi tion on invo involv lved ed is pure purely ly lega legal. l. (Aza (Azarco rcon n v. Bunagan, 399 SCRA 365 [2003]). Bar Question (1996) Ombudsman Ombudsman;; Power Power to Suspend; Suspend; Preventive Preventive Suspension An administrative complaint for violation of the AntiGraft and Corrupt Practices Act against X was filed with with the Ombuds Ombudsman man.. Immedi Immediate ately ly after after taking taking cognizance of the case and the affidavits submitted to him, the Ombudsman Ombudsman ordered ordered the preventive preventive suspension of X pending preliminary investigation. X questi questione oned d the suspen suspensio sion n order, order, conten contendin ding g that the Ombudsma sman can can only suspend preven preventiv tively ely subord subordina inate te employ employees ees in his own office. Is X correct? Explain. SUGGESTED ANSWER: No, X is not correct. As held held in Buenas Buenaseda eda vs. Flavier, Flavier, 226 SCRA SCRA 645. 645. under Section 24 of Republic Act No. 6770, the Ombud mbudsm sma an can can plac place e und under prev preven enti tiv ve susp suspen ensi sion on any any offi office cerr unde underr his his disc discip ipli lina nary ry authority pending an investigation. The moment a comp compla lain intt is file filed d with with the the Ombu Ombuds dsma man, n, the the resp respon onde dent nt is unde underr his his auth author orit ity. y. Cong Congre ress ss intended to empower the Ombudsman to suspend all officers officers,, even even if they they are employed employed in other other offices in the Government. The words "subordinate" and "in his bureau" do not appear in the grant of such power to the Ombudsman. H. Power of Ombudsman Over His Office Unde Underr the Con Constit stitut utio ion, n, the Offi Office ce of the the Ombu Ombuds dsma man n is an inde indepe pend nden entt body body.. As a

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guaranty guaranty of this independence, independence, the Ombudsman Ombudsman has the the power ower to appoi ppoint nt all all offic fficia ials ls and and employees of the Office of the Ombudsman, except his deputies. This power necessarily includes the power of setting, prescribing and administering the standa standards rds for the official officials s and person personnel nel of the Office. To furt furthe herr ensu ensure re its inde indepe pend nden ence ce,, the Ombudsman has been vested with the power of administrative control and supervision of the Office. This This incl includ udes es the the auth author orit ity y to orga organi nize ze such such directorates for administration and allied services as may be necessary for the effective discharge of the functions of the Office, as well as to prescribe and approv approve e its positi position on struct structure ure and staffi staffing ng pattern. Necessarily, it also includes the authority to determ determine ine and establ establish ish the qualif qualifica icatio tions, ns, duties, functions and responsibilities of the various directorat directorates es and allied services services of the Office. This must be so if the constitutional intent to establish an indepe independe ndent nt Office Office of the Ombuds Ombudsman man is to remain remain meanin meaningfu gfull and signific significant ant.. The Civil Civil Service Commission has no power over this.181


(President (Presidential ial Ad-hoc Ad-hoc Fact Finding Committe Committee e on Behest Loans v. Deseirto, 1999) VI. Ill-gotten Wealth

Section Section 15. 15. The right of the State State to recover recover proper propertie ties s unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, laches, or estoppel.

This This provis provision ion applie applies s only only to civil civil action actions s for recove recovery ry of ill-go ill-gotte tten n wealth wealth and not to crimin criminal al cases. Thus, prosecution of offenses arising from, relating, or incident to, or involving ill-gotten wealth in the said provision may be barred by prescription. (President (Presidential ial Ad-hoc Ad-hoc Fact Finding Committe Committee e on Behest Loans v. Desierto, 1999) Q: Does Section 15 prevent the prescription of the crime? A: No. No. The The righ rightt to pros prosec ecut ute e crim crimin inal ally ly can can prescribe.185

I. Claim of Confidentiality

Bar Question (2002) Graft and Corruption; Prescription of Crime Suppose a public officer has committed a violation of Section 3 (b) and (c) of the AntiGraft and Corrupt Practi Practices ces Act {RA No, 3019), as amende amended, d, by receiving monetary and other material considerations for contracts entered into by him in behalf of the government and in connection with other other transa transacti ctions ons,, as a result result of which which he has amassed amassed illegally illegally acquired wealth. (a) Does the crimin criminal al offens offense e commit committed ted prescri prescribe? be? (2%) (2%) (b) Does the right of the government to recover the illegally acquired wealth prescribe? (3%)

Even the claim of confidentiality will not prevent the Ombud Ombudsma sman n from from demand demanding ing the produc productio tion n of documents needed for the investigation.182 In Almonte v. Vasquez, 1995, the Court said that where the claim of confidentiality does not rest on the need need to protec protectt milita military, ry, diplom diplomati atic c or other other nation national al securit security y secret secrets s but on genera generall public public interest in preserving confidentiality, the courts have declin declined ed to find find in the Consti Constitut tution ion an absolu absolute te privilege even for the President. 183 Moreover, even in cases where matters are really confidential, inspection can be done in camera. camera.184

SUGGESTED ANSWER: a) A violation of Section 3(b) and (c) of the AntiGraft and Corrupt Practices Act prescribes. As held in Presidential Ad-Hoc Fact-Finding Committee on Behest Loans v. Desierto, 317 SCRA 272 (1999), Article XI, Section 15 of the Constitution does not apply apply to crimin criminal al cases cases for violatio violation n of the AntiGraft and Corrupt Practices Act (b) (b) Arti Articl cle e XI, XI, Sect Sectio ion n 15 of the the Cons Consti titu tuti tion on provi provides des that that the right of the State State to recove recover r properties unlawfully acquired by public officials or employees, or from them or from their nominees or transferees, shall not be bared by prescription.

V. Special Prosecutor

Section 7. 7. The existing Tanodbayan shall hereafter be known as the Office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, except those conferred on the Office of the Ombudsman created under this Constitution.

This This provi provisio sion n applie applies s only only to civil civil action actions s for recove recovery ry of ill-go ill-gotte tten n wealth wealth and not to crimin criminal al cases. Thus, prosecution of offenses arising from, relating, or incident to, or involving ill-gotten wealth in the said provision may be barred by prescription. 181

Ombudsman v. CSC, G.R. No. 162215, July 30, 2007.

182


183


184



VII. Restriction on Financial Accomodations

Section Section 16. 16. No loan, loan, guaran guaranty ty,, or other other form form of finan financia ciall accommodat accommodation ion for any business business purpose may be granted, granted, directly or indirectly, by any government-owned or controlled bank bank or financ financial ial instit instituti ution on to the Presi Presiden dent, t, the ViceVice185


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President, President, the Members Members of the Cabinet, the Congress, Congress, the Supreme Supreme Court, Court, and the Constitut Constitutional ional Commissio Commissions, ns, the Ombuds Ombudsma man, n, or to any firm or entity entity in which which they they have have controlling interest, during their tenure.

VIII. Transparency Rule


2. An administrative officer given by statute statute the rank of Justice is not a member member of the Judiciary, but of the Executive Department. He may may ther theref efor ore e be inve invest stig igat ated ed by the the Ombudsman. Ombudsman. The Supreme Supreme Court does not have have jurisd jurisdict iction ion to invest investiga igate te becaus because e it would be violative of the concept of separation of powers. (Noblejas v. Tehankee, 1968)

Sectio Section n 17. 17. A publ public ic offi office cerr or empl employ oyee ee shal shall, l, upon upon assump assumptio tion n of office office and as often often there thereaft after er as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the VicePresident, President, the Members Members of the Cabinet, the Congress, Congress, the Supreme Supreme Court, Court, the Constitut Constitutional ional Commissio Commissions ns and other other constituti constitutional onal offices, and officers officers of the armed forces forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.

IX. Allegiance to the State and the Constitution Section 18. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

Q: Miguel is a holder of a “green card” entitling him to be a resident of the United States permanently. In his applic applicati ation on for the card he put down his intention to reside in the United States “perma “permanen nently tly”. ”. He actual actually ly immig immigrat rated ed to the Unit United ed Stat States es in 1984 1984 and and ther thereb eby y assu assume med d alle allegi gian ance ce to the the Unit United ed Stat States es.. He howe howeve ver r returned to the Philippines in 1987 to run for mayor of a muni munici cipa pali lity ty.. Is Arti Articl cle e XI, XI, Sect Sectio ion n 18 applicable to him? Does he have the necessary residence requirement? A: Article XI, Section 18 is not applicable because it has reference to “incumbents.” What is applicable is Section 68 of the Omnibus Election Code which bars “a permanent resident of or an immigrant to a foreign country” unless he waives his status as a perman permanent ent reside resident nt of the foreig foreign n countr country. y. The mere filing of a certificate of candidacy is not the required waiver. It must be by a special act done before filing a certificate of candidacy. (Caasi v. CA, 1990) X. Notes and Comments by Domondon on Article XI

1. Croniyism which which involv involves es unduly unduly favori favoring ng a crony crony to the prejudic prejudice e of public public interest is a form of violation of the oath of office which constitute betrayal of the public trust. I sweat, I bleed, I soar… Service, Sacrifice, Excellence

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Article XII NATIONAL ECONOMY AND PATRIMONY I. GOALS OF NATIONAL ECONOMY (Section 1) II. NATURAL RESOURCES/REGALIAN DOCTRINE (Sections DOCTRINE (Sections 2) III. LANDS OF PUBLIC DOMAIN (Section 3) IV. CITIZENSHIP REQUIREMENT V. FOREST LANDS AND PARKS (Section 4) VI. ANCESTRAL LANDS AND ANCESTRAL DOMAIN (Section DOMAIN (Section 5) VII. STEWARDSHIP CONCEPT; TRANSFER OF LANDS (Section (Section 6,7, and 8) VIII.INDEPENDENT ECONOMIC AND PLANNING AGENCY (Section AGENCY (Section 17) IX. FILIPINIZATION OF AREAS OF INVESTEMENTS (Section 18) X. PUBLIC UTILITIES (Section UTILITIES (Section 11) XI. PREFERNTIAL USE OF FILIPINO LABOR (Section 12) XII. TRADE POLICY (Section POLICY (Section 13) XIII. SUSTAINED DEVELOPMENT OF HUMAN RESOURCE; PRACTICE OF PROFESSION (Section PROFESSION (Section 14) XIV. COOPERATIVES (Section COOPERATIVES (Section 15) XV. GOCCS (Section GOCCS (Section 16) XVI. TEMPORARY STATE TAKE-OVER (Section 17) XVII. NATIONALIZATION OF INDUSTRIES (Section 18) XVIII. MONOPOLIES (Section MONOPOLIES (Section 19) XIX. CENTRAL MONETARY AUTHORITY (Section 20) XX. FOREIGN LOANS (Section LOANS (Section 21) XXI. PENAL SANCTIONS (Section SANCTIONS (Section 22)


In the pursuit of these goals, all sectors of the economy and all regions regions of the country shall be given optimum optimum opportuni opportunity ty to deve develo lop. p. Priv Privat ate e ente enterp rpri rise ses, s, incl includ udin ing g corp corpor orat atio ions ns,, cooperativ cooperatives, es, and similar similar collective collective organizati organizations, ons, shall shall be

encouraged to broaden the base of their ownership. A. Threefold goal of the national economy

1. More More equitab equitable le distr distribu ibutio tion n of wealt wealth; h; 2. Increa Increase se of weal wealth th for for the the benef benefit it of the people; 3. Incr Increa ease sed d prod produc ucti tivi vity ty.. B. Nati Nation onal al Poli Policy cy on Agricultural Development

C. Mean Meanin ing g of the the Phra Phrase se “UNF “UNFAI AIR R FORE FOREIG IGN N COMPETITION AND TRADE PRACTICES” The phrase is not to be understood in a limited lega legall and and tech techni nica call sense sense but but in the the sens sense e of anything that is harmful to Philippine enterprises. At the same time, time, howeve however, r, the intentio intention n is not to protect protect local inefficiency. inefficiency. Nor is the intention intention to protect local industries from foreign competition at the expense of the consuming public. public.187 D. De-classification of forests reserves The The law law on fore forest st rese reserv rves es was was amen amende ded d by Prsidential Decree No. 643 dated 17 May 1974. Whereas under previous law the concurrence of the National Assembly Assembly was needed to withdraw withdraw forest reserves found to be more valuable for their mineral contents than for the purpose for which the reservation was made and convert the same into non-forest reserves, legislative concurrence is no longe ongerr need needed ed.. All that that is requ requir ired ed is a reco recomm mmen enda dati tion on from from the the DENR DENR Secr Secret etar ary y indica indicatin ting g which which forest forest reserv reservati ations ons are to be withdrawn.188 An unclassified forested area may not be acquired by continuous possession since it is inalienable. inalienable.189

Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustai sustained ned increa increase se in the amount amount of goods goods and servic services es produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the under-privileged.


and and

What is envisioned is not necessarily agriculturally related industrialization but rather industrialization that is a result of releasing through agrarian reform capital locked up in land. Therefore, this does not mean ean a hard hard-b -bou ound nd rul rule that hat agri agricu culltura turall development must have priority over industrial industrializati ization. on. What is envisioned envisioned is a flexible flexible and and rati ration onal al rela relati tion onsh ship ip betw betwee een n the the two two as dictated by the common good. good.186

I. Goals of National Economy

The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, resources, and which are competiti competitive ve in both domestic and foreign markets. However, the State shall protect Filipino Filipino enterpris enterprises es against against unfair unfair foreign foreign competit competition ion and trade practices.

Indu Indust stri rial aliz izat atio ion n

186


187


188

Apex Mining v. Soutneast Mindanao Gold,G.R. Gold, G.R. No. 152613 & No. 152628, June 23, 2006. 189

Republic v. Naguiat, G.R. No. 134209. January 24, 2006.

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II. Natural Resources/Regalian Doctrine

public domain domain, waters, Section Section 2. All lands of the public waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With With the except exception ion of agricu agricultu ltural ral lands, lands, all other other natural natural resources resources shall not be alienated. alienated. The exploratio exploration, n, developme development, nt, and utilizatio utilization n of natural natural resources resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into coproduction production,, joint venture, venture, or productio production-sha n-sharing ring agreement agreements s with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twentyfive years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.


B. Consequence of the Regalian Doctrine in Section 2 Any person claiming ownership of a portion of the public domain must be able to show title from the state according to any of the recognized modes of acquis acquisiti ition on of title. title. (Lee Hong Hong Kok v. David, David, 48 SCRA 372) Q: When the regalia doctrine was introduced into the Philippines Philippines by colonizers, colonizers, did the colonizers colonizers strip the natives of their ownership of lands? A: No. “When as far back as testimony or memory goes, the land has been held by individual individuals s under a claim of private ownership, it will be presumed that that to have have been held in the the same same way way from from before the Spanish conquest, and never to have been public land.” land.” (Carino (Carino v. Insular Insular Government Government,, 1909) C. Imperium and Dominium

The State State shall shall prote protect ct the the nation nation's 's marine marine wealth wealth in its archipelag archipelagic ic waters, waters, territoria territoriall sea, and exclusive exclusive economic economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

In public law, there exists the well-known distinction between government authority possessed by the State ate whic which h is appr approp opri riat atel ely y embr embrac aced ed in sovere sovereign ignty, ty, and its capaci capacity ty to own or acquir acquire e property. The former comes under the heading of imperium, imperium, and the latter of dominium. dominium. The use of the term dominium is appropriate with reference to lands held by the State in its proprietary character. In such capacity, it may provide for the exploitation and use of lands lands and other natura naturall resource resources, s, including their disposition, except as limited by the Constitution.191

The Congress may, by law, allow small-scale small-scale utilization utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scal large-scale e explorati exploration, on, developme development, nt, and utilizatio utilization n of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contribut contributions ions to the economic growth and general general welfare welfare of the country. In such agreements, the State shall promote the deve develo lopm pmen entt and and use use of loca locall scie scient ntif ific ic and and tech technic nical al resources.

D. Limits Imposed by Section 2 on the Jura Regalia of the State.

The President President shall notify notify the Congress of every every contract contract entered entered into in accordance accordance with this provision, provision, within within thirty thirty days from its execution.

1.

Only Only agricul agricultur tural al lands lands of of the publ public ic domain domain may may be alienated.

2.

The exploration, development, and utilization of all natural natural resour resources ces shall be under under the full control and supervision of the State either by dire direct ctly ly und underta ertaki kin ng such such explo xplora rattion, ion, develo developme pment, nt, and utiliz utilizati ation on or throug through h coproduction, joint venture, or production-sharing agre agreem emen entts wit with qual qualiified fied pers person ons s or corporations. All agre agreeme ements nts with with the the qualifi qualified ed privat private e sector sector may be for only a period not exceeding twentyfive years, renewable renewable for another another twenty-fiv twenty-five e year years. s. (The (The twen twenty ty-f -fiv ive e year year limi limitt is not not applicable to “water rights for irrigation, water supply, fisheries, or industrial uses other than the develo developme pment nt of water water power, power,”” for which which “beneficial use may be the measure and the limit of the grant.”)

A. Regalian Doctrine [Jura Regalia] “The universal feudal theory that all lands were held eld fro from the the Cro Crown” wn” (Cari Carino no v. Insu Insula lar r Government, 1909)

3.

(Re (Recogn cogniz ized ed in the 193 1935, 197 1973 and and 1987 1987 Constitut Constitutions; ions; As adopted adopted in a republican republican system, the mediev medieval al concep conceptt of of jura regalia regalia has been been stripped of regalia overtones: ownership is vested in the State, not in the head of the State. (Lee Hong Kok v. David, 48 SCRA 372) 190 191 190




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4.

5.

The use and and enjoy enjoymen mentt of mari marine ne wealt wealth h of the the arch archip ipel elag agic ic wate waters rs,, terr territ itor oria iall sea, sea, and and exclusive exclusive economic zone shall be reserved reserved for Filipino citizens. (It would seem therefore that corporations are excluded or at least must be fully owned by Filipinos.) Utilizatio Utilization n of natural natural resources resources in rivers, rivers, lakes, bays, and lagoons may be allowed allowed on a “small scale” scale” Filipi Filipino no citize citizens ns or cooper cooperati atives ves-- with with prio priori rity ty for subs subsis isttence ence fishe isherm rmen en and and fishworkers. (The bias here is for the protection of the little people.) 192

E. Cases on Regalian Doctrine Sunbeam Convenience Food v. CA, 181 SCRA 443: “We adhere to the Regalian Doctrine where all all agri agricu cult ltur ural al,, timb timber er and and mine minera rall land lands s are are subject to the dominion of the State.” Thus, before any land may be classified from the forest group and converted into alienable or disposable land for agricu agricultu ltural ral or other other purpos purposes, es, there must must be a positive act from the Government. The mere fact that a title was issued by the Director of Lands does does not not conf confer er owne ownersh rship ip over over the the prop proper erty ty covered by such title where the property is part of the public forest. Republic v. Sayo, 191 SCRA 71: It was held that in the absence of proof that property is privately owned, the presumption is that it belongs to the State. Thus, where there is no showing that the land had been classified classified as alienable alienable before the title was issued issued,, any posses possessio sion n thereo thereof, f, no matter matter how lengthy, cannot ripen into ownership. And all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. (Seville v. National Development Company, 2001) United Paracale v. de la Rosa, 221 SCRA 108: The The Cour Courtt said said that that cons conson onan antt with with Rega Regali lian an Doctrine, all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. It is also on the basis of this doctrine that the State has the power to control mining claims, as provided in PD 1214. Republic v. Register of Deeds of Quezon, 244 SCRA 537: Under the Regalian Doctrine, all lands not otherw otherwise ise clearl clearly y appear appearing ing to be privat privately ely owned are presumed to belong to the State. In our jurisdiction, the task of administering and disposing lands of the public domain belongs to the Director of Land Lands s and, and, ulti ultima mate tely ly,, the the Secr Secret etar ary y of Envi Enviro ronm nmen entt and and Natu Natura rall Reso Resour urce ces. s. The The classificat classification ion of public public lands is, thus, an exclusive exclusive prerogativ prerogative e of the Executive Executive Department Department through the the Offi Office ce of the the Pres Presid iden ent. t. Cour Courts ts have have no 192




auth author orit ity y to do so. so. In the the abse absenc nce e of such such classification, the land remains unclassified public land under released therefrom and rendered open to disposition. Ituralde v. Falcasantos, 1999: Forest land is nt capable of private appropriation and occupation in the absence of a positive act of the government declassifying it into alienable or disposable land for agricultural purposes. Accordingly, where there is yet no award or grant to petitioner of the land in question by free patent or other ways of acquisition of public public land, land, petiti petitione onerr cannot cannot lawful lawfully ly claim claim ownership of the land. Possession of forest lands, however long, cannot ripen into private ownership. F. Reclaimed lands Q: What is the nature of reclaimed foreshore and submerged lands? A: They are lands of public domain and, unless classified as alienable, may not be disposed of. Q: For reclaimed land to be registered as private property what is required? A: (1) There must be a proof that the land had been classified as alienable; (2) The person person seekin seeking g regist registrat ration ion must must show show proof proof of having having acquired acquired the proper property ty (e.g., (e.g., by prescription). (Republic v. Enciso, 2005) Q: Could the Public Estates Authority dispose of reclaimed lands? A: In order for PEA to sell its reclaimed foreshore and and subm submer erge ged d alie aliena nabl ble e land lands s of the the publ public ic doma domain in,, ther there e must must be legi legisl slat ativ ive e auth author orit ity y empowering PEA to sell these lands. Without such legislativ legislative e authority, authority, PEA could not sell but only lease lease its reclai reclaimed med foresh foreshore ore and submer submerged ged alienable lands of the public domain. Nevertheless, any legislative authority granted to PEA to sell its reclaimed alienable lands of the public domain would be subject to the consti constitut tution ional al ban on privat private e corpora corporatio tions ns from from acquir acquiring ing aliena alienable ble lands lands of the public public domain domain.. Hence, such legislative authority could only benefit private private individual individuals. s. (Chavez (Chavez v. PEA and AMARI, July 9, 2002) “Reclaimed lands of the public domain if sold or transferred to a public or municipal corporation for a moneta monetary ry consid considera eratio tion n become become patrim patrimoni onial al property… [and] may be sold… to private parties, whether Filipino citizens of qualified corporations.” (May 6, 2003 Resolution) Q: What is the nature of the Roponggi property in Japan? A: It is of public dominion (unless it is convincingly shown that the property has become patrimonial). As property of public dominion, the Roponggi lot is outside the commerce of man.

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or alie aliena nate te land lands s of publ public ic doma domain in.. More More importantly, it cannot attain its avowed purposes and goals goals since since it can only only transf transfer er patrim patrimoni onial al lands to qualified qualified beneficiaries beneficiaries and prospective prospective buyers to raise funds for the SMDRP.

Chavez v. NHA, G.R. No. 164527, August 15,

2007. Reclaimed Reclaimed land land is public land. land. Before Before it can be registed as private property is must be classified as alienable.193 Once classified it becomes alienable. A pres presid iden enti tial al proc procla lama mati tion on is a suff suffic icie ient nt instrument instrument for for classifying classifying reclaim reclaimed ed land. Thus when President Aquino issued MO 415 conveying the the land land cove covere red d by the the Smok Smokey ey Moun Mounta tain in Dumpsite to the National Housing Authority as well as the the area area to be recl reclai aime med d acro across ss R-10 R-10,, the the coneyance implicitly carried with it the declaration that that said said lands lands are aliena alienable ble and dispos disposabl able. e. Otherwise, the NHA could not effectively use them in its housing and resettlement project. President Ramos made similar conveyances to the NHA.

From the foregoing considerations, we find that the 79-hec 79-hectar tare e reclai reclaimed med land land has been been declar declared ed alienable and disposable land of the public domain; and in the hands of NHA, it has been reclassified as patrimonial property.194 G. Explor Explorati ation, on, Develo Developme pment nt and Utiliz Utilizati ation on of Inalienable Resources. “The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State State.. The State State may direct directly ly undert undertake ake such such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens…”

RA 6957 as amended by RA 7718 provides ample authority authority for the classification classification of reclaimed reclaimed land. The fact that RA 6957 as modified by RA 7718 declared that t reclaimed lands that shall serve as payment to the project proponent already implies that that the the land land has has been been classi classifi fied ed.. This This conclusion conclusion is necessary necessary for how else can the land be used as the enabling component for the Project if such classification is not deemed made.

Q: Sect Sectio ion n 2 spea speaks ks of “co“co-pr prod oduc ucti tion on,, join jointt ventur venture, e, or produc productio tion n sharin sharing g agreem agreement ents” s” as modes of exploration, development, and utilization of inalienable lands. Does this effectively exclude the lease system? A: Yes, with respect to mineral and forest lands. (Agricultural lands may be subject of lease)195

We ruled in PEA that “alienable “alienable lands of public domain domain must must be transf transferr erred ed to qualif qualified ied privat private e partie parties, s, or to govern governmen mentt entiti entities es not tasked tasked to dispos dispose e of public public lands, lands, before before these these lands lands can become become privat private e or patrim patrimoni onial al lands lands (empha (emphasis sis supplied).” To lands reclaimed by PEA or through a contra contract ct with with a privat private e person person or entity entity,, such such reclai reclaimed med lands lands still still remain remain aliena alienable ble lands lands of public public domain domain which can be transf transferr erred ed only only to Filipino citizens but not to a private corporation. This is because PEA under PD 1084 and EO 525 is tasked to hold and dispose of alienable lands of public domain and it is only when it is transferred to Fili Filipi pino no citi citize zens ns that that it beco become mes s patr patrim imon onia iall property. On the the othe otherr hand hand,, the the NHA NHA is a gove govern rnme ment nt agency not tasked to dispose of public lands under its charter—The charter—The Revised Administr Administrativ ative e Code of 1987 1987.. The The NHA NHA is an “end “end-u -use serr agen agency cy”” author authorize ized d by law to admini administe sterr and dispos dispose e of reclaimed lands. The moment titles titles over reclaimed lands based on the special patents are transferred to the NHA by the Register of Deeds, they are automatically converted to patrimonial properties of the State which can be sold to Filipino citizens and private corporations, 60% of which are owned by Filipinos. The reason is obvious: obvious: if the reclaimed land land is not conver converted ted to patrimo patrimonia niall land once transferred to NHA, then it would be useless to transfer it to the NHA since it cannot legally transfer 193

Republic v. Enciso , G.R. 160145, November 11, 2005.


Q: Who are qualified to take part in the exploration, development and utilization of natural resources? A: Filipino citizens and corporations or associations at least sixty percent of whose capital is owned by Filipino Filipino citizens. (Note however, that as to marine marine wealth, only Filipino citizens are qualified. This is also true of natural resources in rivers, bays, lakes and lagoons, but with allowance for cooperatives.)196 Q: If natural natural resources, resources, except agricultural agricultural land, cannot be alienated, how may they be explored, developed, or utilized? A: (1) Direct undertaking undertaking of activities activities by the State State or (2) Co-pro Co-produc ductio tion, n, joint joint ventur venture, e, or produc productio tionnsharing agreements with the State and all “under the full control and supervision of the State.” Q: May the State enter into service contracts with foreign owned corporations? A: Yes, but subject to the strict limitations in the last two paragraphs of Section 2. Financial and e tech techni nica call agre agreem emen ents ts are are a form form of serv servic ice e contract. contract. Such service service contacts contacts may be entered into only with respect to minerals, petroleum, and othe otherr mine minera rall oils oils.. The The gran grantt of such such serv servic ice e contracts contracts is subject subject to several several safeguards, safeguards, among 194

Chavez v. NHA, G.R. No. 164527, August 15, 2007.

195


196


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them: (1) that the service contract be crafted in accordance accordance with a general general law setting standard of uniform terms, conditions and requirements; (2) the President be the signatory for the government; and (3) the President report the executed agreement to Congress within thirty days. (La Bugal B’laan Tribal Assoc., 2004, Reconsideration, 2005)


F. Financial and Technical Agreements The 1987 Constitution did not completely do away with with servic service e contra contracts cts;; but now their their scope scope has been been limite limited d and are now called called financ financial ial and technical agreements and hey may be entered into with foreign corporations. The grant of such s ervice contracts contracts is subject subject to several several safeguards, safeguards, among them: (1) that the service contract be crafted in accordance accordance with a general general law setting setting standard or uniform terms, conditions and requirements; (2) the President be the signatory for the government; and (3) the President report the executed agreement to Congress within thirty days.197 Foreign contractors may provide not just capital, techon techonolo ology gy and techni technical cal know-h know-how ow but also also managerial managerial expertise expertise to the extent needed for the crea creattion ion and and opera perati tion on of the larg largee-sc scal ale e mining/extractive enterprise. But the the government, government, through its agencies (DENR, MGB) must actively exerci exercises ses full full contro controll and superv supervisi ision on over over the 198 entire enterprise. enterprise.

Q: When When tech techni nica call and and fina financ ncia iall assi assist stan ance ce agreement is entered into under Section 2, can it includ include e some some manage managemen mentt role role for the foreig foreign n corporation? A: Yes. Yes. While While the Consti Constitut tution ion mentio mentions ns only only financial and technical assistance they necessarily include include the managerial managerial expertise expertise needed in the crea creattion ion and oper operat atio ion n of the larg large e-sca -scalle mining/ex mining/extract tractive ive enterprise, enterprise, but the government government through through its agencies agencies (DENR/MGB (DENR/MGB)) must actively exerci exercises ses full full contro controll and superv supervisi ision on over over the entire enterprise. (La Bugal B’laan Tribal Assoc., 2004, Reconsideration, 2005)

III. Lands of Public Domain

H. Marine Wealth Article XII, Section 2: “…The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and rese reserv rve e its its use use and and enjo enjoym ymen entt excl exclus usiv ivel ely y to Filipino citizens. xxx”

Article XII, Section 2: “The Congress may, by law, allow small-scale utilization of natural resources by Fili Filipi pino no citi citize zens ns,, as well well as coop cooper erat ativ ive e fish fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. “

Section Section 3. Lands Lands of the public domain domain are classi classifie fied d into into agricultural, forest or timber, mineral lands and national parks. Agricu Agricultu ltural ral lands lands of the public public domain domain may be furthe further r classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand thousand hectares in area. Citizens Citizens of the Philippines Philippines may lease not more than five hundred hundred hectares, hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant. Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

Marginal Marginal Fisherman Fisherman:: A margin marginal al fisher fisherman man is define defined d as an indivi individua duall engage engaged d in fishin fishing g by existing price levels, is barely sufficient to yield a profit or cover the cost of gathering the fish while a “subsistence” fisherman is one whose catch yields but the irreducible minimum to his livelihood. Section 131 of the Local Government Code defines a “marginal farmer or fisherman” as one engaged in subsistence farming or fishing, which shall be limit imited ed to the sal sale, bart barter er or exch exchan ange ge of agricultural or marine products produced by himself and his immediate immediate family. family. The preferential preferential right granted to them is not absolute. (Tano v. Socrates, 1997)


Classification of Public Lands. The classification of public lands is a function of the executive branch of government, specifically the Director of Lands, now the Director of the Land Management Bureau. The decision of the Director, when approved by the Secretary of the Department of Environment and Natura Naturall Resour Resources, ces, as to questi questions ons of fact, fact, is conclusive upon the courts. (Republic v. Imperial, 1999) The prerogative of classifying public lands pertains to admi admini nist stra rati tive ve agen agenci cies es whic which h have have been been specially tasked by statutes to do so and the courts 197

La Bugal B’laan Tribal Assoc. DENR, DENR, G.R. No. 127882, December 1, 2004. (On Reconsideration) and February 1, 2005. 198 Id.

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will not interfere on matters which are addressed to the sound discretion of government and/or quasi judicial agencies entrusted with the regulation of activi activitie ties s coming coming under under their their specia speciall techni technical cal 199 knowledge and training. training. Q: Who may change the classification classification of public public lands, e.g., from inalienable to alienable, and how is the classification done? A: The classification of public lands is the exclusive prerogative of the President upon recommendation of the pertinent department head. (CA No. 141) Q: Does Does the the clas classi sifi fica cati tion on of land land chan change ge auto automa mati tica call lly y when when the the natu nature re of the the land land changes? A: No. A positive act of the executive is needed. Anyone who claims that the classification has been changed must be able to show the positive act of the Presid President ent indica indicatin ting g such such positi positive ve act. act. The classification is descriptive of its legal nature and not of what the land actually looks like. Hence, for instance, that a former forest has been denuded does not by the fact meant that it has ceased to be forest forest land. (Director (Director of Lands v. Judge Aquino, Aquino, 1990) Q: Can a land have a mixed classification, e.g., partly mineral, partly agricultural? A: No. “The Court feels that the rights over the land are indivisible and that the land itself cannot be half agricultural and half mineral.(Republic v. CA) Alienable lands of the public domain shall be limited to agricultural lands. It was determined that the lands subject of the decree of the Court of First Instance were not alienable lands of the public domain, being part of the reservation for provincial park purposes and thus part of the forest zone. Forest land cannot be owned by private persons; its is not registrable, and possession thereof, no matter how lengthy, cannot convert it into private land, unless the land is reclassified and considered disposable and alienable. Foreshore land is that part of the land which is between the high and low water, and left dry by the flux and reflux of the tides. It is part of the alienable land of the public domain and may be dispos disposed ed of only only by lease and not otherwise. (Republic v. Imperial, 1999) Private Private corporati corporations ons or associatio associations ns may not hold such alienable lands of the public domain except by lease. In Director of Lands v. IAC and Acme Plywood &Veneer Co., 146 SCRA 509, the Supreme Court declared that the 1973 Constitution cannot impair vested rights. Where the land was acquired in 1962 when corporation were allowed to acquire acquire lands not exceeding exceeding 1,024 hectares, hectares, the same same may may be regi regist ster ered ed in 1982 1982,, desp despit ite e the the 199

Republic v. Mendoza, GR 153727. March 28, 2007.



consti constitut tution ional al prohib prohibiti ition on agains againstt corpor corporati ations ons acquiring lands of the public domain. This is the controlling doctrine today. The The 1987 1987 Cons Consti titu tuti tion on proh prohib ibit its s priv privat ate e corporations from acquiring alienable lands of the public public domain domain.. Amari being being a privat private e corporation corporation,, is barred from such acquisition. acquisition. The Public Estates Authority (PEA) is not an end user agency with respect to the reclaimed land lands s unde underr the the amen amende ded d Join Jointt Vent Ventur ure e Agreement, Agreement, and PEA may simply turn around around and transfer several hundreds of hectares to a single private corporation in one transaction. (Chavez v. PEA, 2003) Q: When does land of the public domain become private land? A: When it is acquired from the government either by purchase purchase of by grant. grant. (As held in Oh Cho v. Director of Lands, Lands, 75 Phil 980, “all lands that were not not acqu acquir ired ed from from the the Gove Govern rnme ment nt,, eith either er by purchase or by grant, belong to the public domain. An exception to the rule would be any land that should have been in the possession of an occupant and of his predec predecess essors ors-in -in-in -inter terest est since since time time immemoria immemorial, l, for such possession possession would justify justify the presumption that the land had never been part of the the publ public ic doma domain in or that that it had had been been priv privat ate e property even before the Spanish conquest.”) Q: Can prescripti prescription on transform transform public land into private land? A: Yes, if it is alienable alienable land. land. (“Open, (“Open, exclusive exclusive and undisputed undisputed possession possession of alienable alienable public land for the period prescribed by law creates the legal fiction whereby the land, upon completion of the requisite period ipso jure and without need of judicial or other sanction, ceases to be public land and becomes private property. Such open, continuous continuous,, exclusive exclusive and notorious notorious occupation occupation of the disp disput uted ed prop proper erti ties es for for more more than than 30 year years s must must,, however, be conclusively established. This quantum of proof proof is necess necessary ary to avoid avoid errone erroneous ous valida validati tion on of actually fictitious claims or possession over the property in dispute. (San Miguel Corporation v. CA, 1990) Q: In computing computing the thirty-ye thirty-year ar period period for acquisitiv acquisitive e prescription under Section 49(9) of the Public Land Law, can the period period before before the the land land (e.g. (e.g. forest forest land) is converted into alienable public land be included? A: NO. The thirty-year period only begins to toll only from the the time time the the land land is conv conver erte ted d into into alie aliena nabl ble e land land.. (Almeda v. CA, 1991) Q: Do mining claims acquired, registered, perfected, and patentable under the Old Mining Law mature to private ownership that would entitle the claimant to the ownership thereof? A: “Mere “Mere location location does not mean absolute absolute ownership ownership over over the affecte affected d land land or the the mining mining claim. claim. It merel merely y segreg segregate ates s the the locate located d land land or area area form form the public domain by barring other would-be locators from locating the same and appropriating for themselves the minerals found therein. To rule otherwise would imply that location is all that is needed to acquire and maintain rights over a

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loca locate ted d mini mining ng clai claim. m. This This,, we cann cannot ot appr approv ove e or sanction sanction because it is contrary contrary to the intention intention of the lawm lawmak aker er that that the the loca locato torr shoul hould d fait faithf hful ully ly and and consistently comply with the requirements for annual work and improvements in the located mining claims.” (Director of Lands v. Kalahi Investments, 1989)

Q: May aliens lease land of the public domain? A: No, because that would enjoy enjoyment of the natural resources of the public domain. Q: May an alien lease a private land? A: Yes. A lease to an alien for a reasonable period is valid. So is an option giving an alien the right to buy the real property on condition he is granted Philippine citizenship. IV. Citizenship Requirement Co-produc Co-production, tion, joint venture venture or production sha riring agreement agreements s [for exploratio exploration, n, development and utilization of natural resources]

Use Use and and enjo enjoym yment ent of the the nation’s marine wealth in its archipelagic waters, territorial sea and exclusive exclusive economic zone {PD 1599]; UN Convention on the Law of the Sea (ratified by RP in August, 1983)] Alienable lands of the public dom domain ain [whic which h shal shalll be limited to agricultural lands]:

Certain Certain areas of investmen investmentt [as Congre Congress ss shall shall provid provide e when the national interest so dictates]

See Annex 1:”Sixth 1:”Sixth Regular Regular Foreign Investment Negative List,” Lists A and B) Franchise, Franchise, certificate certificate or any other form of authorization for the the oper operat atio ion n of a publ public ic utility.

Filipino citizens or Corporations or associations at least 60% of whose capital is Filipi Filipino no owned. owned. (Art. (Art. XII, XII, Section 2) Note:A Note:Agre greeme ements nts shall shall not exceed a period of 25 years, rene renewa wabl ble e for for anth anther er 25 years. Exclus clusiv ive ely for Fili Filipi pino no Citizens (Art. XII, Section 2)

Only for Filipino Filipino citizens citizens may acqu acquir ire e not more more than than 12 hect ectares res by pur purchas chase, e, homestead or grant; or lease not more than 500 hectares. Priv Privat ate e corp corpor orat atio ions ns may may lease lease not more than than 1,000 1,000 hectare s for 25 years, rene renewa wabl ble e for for anot anothe herr 25 years. Reserved for Filipino citizens or corporations 60% of whose capi capita tall is Filipi Filipino no owne owned, d, alth althou ough gh Cong Congre ress ss may prescribe a higher percentage of Filipino ownership (Art. XII, Section 10)

Only to citizens of the Philippines or corporations at least 60% of whose capital is Fili Filipin pino o owne owned. d. (Art (Art.. XII, XII, Section 11)

V. Forest Lands and Parks


Sectio Section n 4. The The Cong Congre ress ss shal shall, l, as soon soon as poss possibl ible, e, determ determine ine,, by law, law, the speci specific fic limits limits of forest forest lands lands and national parks, marking clearly their boundaries on the ground. Therea Thereafte fter, r, such such forest forest lands lands and nation national al parks parks shall shall be conserved and may not be increased nor diminished, except by law. The Congress shall provide for such period as it may determine, measures to prohibit logging in endangered forests and watershed areas.

VI. Ancestral Lands and Ancestral Domain

Sectio Section n 5. The State, State, subjec subjectt to the provisio provisions ns of this this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral ancestral lands to ensure ensure their economic, economic, social, and cultural well-being. The Congress may provide for the applicability of customary laws governing property rights or relations in determining the ownership and extent of ancestral domain.

VII. Stewardship Concept; Transfer of Lands

Section 6. 6. The use of property bears a social function, and all econom economic ic agents agents shall shall contr contribu ibute te to the commo common n good. good. Indivi Individua duals ls and privat private e groups groups,, includ including ing corpor corporati ations ons,, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.

Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

Section 8. Notwithstanding the provisions of Section 7 of this Article, Article, a natural-bo natural-born rn citizen citizen of the Philippines Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law.

A. Stewardship Concept See Section 6. B. Private Lands 1. Rule and Exceptions RULE: No privat private e lands lands shall shall be transf transferr erred ed or conveyed conveyed except to individual individuals, s, corporation corporations, s, or

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associations qualified to acquire or hold lands of the public domain. EXCEPTIONS: 1.

2.

Heredi Hereditar tary y Succes Successio sion n (This (This does does not not apply apply to testamentary dispositions, Ramirez v. Vda. De Ramirez, 111 SCRA 740) A natur natural al born born citiz citizen en of the the Phili Philipp ppin ines es who has lost his Philippine citizenship may be a transferee of private lands (Section 8, Article XII) 3. Americans ho hold va valid ti title to to pr private lands as against private persons

No priv privat ate e land lands s shal shalll be tran transf sfer erre red d or conveyed conveyed except except to individua individuals, ls, corporatio corporations, ns, or associ associati ations ons qualif qualified ied to acquir acquire e or hold hold lands of the public domain. Any sale or transfer in violation of the prohibition is null and void. In Ong Ching Po v. CA, 239 SCRA 341, it was held that even if the petitioner petitioner proves that the Deed of Sale in his favor is in existence and duly executed, executed, nonetheless, nonetheless, being an alien, alien, petitioner is disqualified from acquiring and owning real property. Frenzel Frenzel v. Catito, Catito, 2003: The Supreme Court said that inasmuch as the petitioner is an alien, he is disqualified form acquiring and owning lands lands in the Philippi Philippines nes.. The sale of three three parcels of lands was null and void. Neither can the petitioner recover the money he had spent for the purchase thereof. Equity, as a rule will follow the law, and will not permit to be done indirectly that which, because of public policy, cannot be done directly. An action to recover recover the property property sold filed by the former owner will lie. (The pari delicto rule has been abandoned as early as PBC v. Lui She, 21 SCRA 52, where the Supreme Court declared that a lease for 99 years, with a 50-year oprtion oprtion to purcha purchase se the property property if and when Wong Wong Heng Heng would be naturalized, is a virtual surrender of all rights incident to ownership, and therefore, invlaid.) Land sold to an alien which was later transferred to a Filipino citizen—or where the alien later becomes a Filipino citizen—can no longer be recovered by the vendor, because there is no longer any public policy policy involved. involved. (Republic v. IAC, 175 SCRA 398; Halili v. CA, 1997; Lee v. Director of Lands, 2001) A natural born citizen of the Philippines who has lost lost his Philippi Philippine ne citize citizensh nship ip may be a tran transf sfer ere ee of priv privat ate e lan lands, ds, subj subjec ectt to limitations provided by law.



Thus, Thus, even even if privat private e respon responden dents ts were were alread already y Canadians when they applied for registration of the proper propertie ties s in questi question, on, there there could could be no legal legal impediment for the registration thereof, considering that it is undisputed that they were formerly naturalborn citizens. (Republic v. CA, 235 SCRA 657) RA 8179 provides that natural-born Filipino citizen may acquire to a maximum maximum area of private private land to 5,000 square meters for urban land and 3 hectares for rural land. Furthermore, such land may now be used for business and for other purposes. Americans hold valid title to private lands as against private persons. A previous owner may no longer recover the land from from an Amer Americ ican an buye buyerr who who succ succee eede ded d in obtaining title over the land. Only the State has the superior right to the land, through the institution of escheat escheat proceedings proceedings [as a conseq consequen uence ce of the violation of the Constitution], or through an action for reversion reversion [as expressly authorized authorized under the Publ Public ic Land Land Act Act with with resp respec ectt to land lands s whic which h formerly formed part of the public domain]. 2. Remedi Remedies es to Recove Recoverr Privat Private e Land Land from from Disqualified Alien 1. Esch Eschea eatt Pro Proce ceed edin ings gs 2. Action Action for for Rever Reversio sion n under under the the Publi Public c Land Land Act Act

3.

An acti action on for for reco recove very ry file filed d by the the form former er Filipino owner (unless the land is sold to an American American citizen prior to July 3, 1974 and the American citizen obtained title thereto.

Action for reversion under the Public Land Act. The Director of Lands has the authority and the specific duty to conduct investigations of alleged fraud in obtaining free patents and the corresponding titles to alienable public lands, and , if facts disclosed in the investigation warrant, to file the corresponding court action for reversion of the land to the State. (Republic v. CA, 172 SCRA 1) The action of the State for reversion to the public domain domain of land land fraudu fraudulen lently tly grante granted d to privat private e individuals is imprescriptible. (Baguio v. Republic, 1999) But But it is the the Stat State e alon alone e whic which h may may inst instit itut ute e reve revers rsio ion n proc procee eedi ding ngs s agai agains nstt publ public ic land lands s allegedly acquired through fraud and misrepresentation pursuant to Section 101 of the Public Land Act. Private parties are without legal stan standi ding ng at all all to ques questi tion on the the vali validi dity ty of the the respondent’s title (Urquiga v. CA, 1999) Thus, in Tankiko v. Cezar, 1999, 1999, it was held that where the property in dispute is still part of the publ public ic doma domain in,, only only the the Stat State e can can file file suit suit for for reconveyance of such public land. Respondents, who are merely applicants for sales patent thereon, are are not not prop proper er part partie ies s to file file an acti action on for for reconveyance.

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The The Stat State e can can be put put in esto estopp ppel els s by the the mistak mistakes es or errors errors of its official officials s or agents agents.. Estoppel against the State is not favored; it may may be invo invoke ked d only only in rare rare and and unus unusua uall circumstances as it would operate to defeat the effective operation of a policy adopted to protect the public. However, the State may not be allowed to deal dishonorably or capriciously with its citizens. In Republic v. CA, 1999 because for nearly 20 years starting from the issuance of the titles I n1996 to the filing of the complaint in 1985, the State failed to correct and recover the alleged increase in the land area of the titles issued, the the prol prolon onge ged d inac inacti tion on stro strong ngly ly mili milita tate tes s against its cause, tantamount to laches, which means eans the “fai “faillure ure or negl neglec ectt, for an unreasonabl unreasonable e and unexpected length of time, time, to do that which by exercising due diligence could or should have been done earlier.” It is negligence or omission to assert a right within a reasonable time, warranting a presumption that that the the part party y enti entitl tled ed to asser assertt it eith either er abandoned it or declined to assert it. Fore Foreig ign n corp corpor orat atio ions ns and and land land.. A fore foreig ign n corporation may buy shares in excess of 40% of the shares of the corporation. But the effect would be that the corporation it buys into would lose its status as a Filipino corporation and its capacity to hold private land.200 It should be noted, however, that the prohibition in the Constitution on aliens applies only to ownership of land. It does not extend to all immovable or real property as defined under Article 415 of the Civil Code Code,, that that is, is, thos those e whic which h are are cons consid ider ered ed immovabl immovable e for being attached attached to land, including including buildings and construction of all kind attached to the soil. soil.201 Violation Violation by aliens. aliens. An attempt attempt by an alien to circumvent circumvent to prohibitio prohibition n on alien acquisition acquisition of land can have dire consequences for such alien. Thus Thus an alie alien n may may not not be reim reimbu burs rsed ed for for the the money he gave to his wife to purchase land and buil build d a hous house. e... Upon Upon the the diss dissol olut utio ion n of the the community of property the alien reimbursement in equity on the theory that Maria merely held the property in trust. To claim equity he must come with clean hands. Klaus knew he was violating the law when he purchased the land.202

VIII. Independent Economic and Planning Agency

200

J.G. Summit v. C.A., G.R. No. 124293. 124293. January 31, 2005

Atty. ARIS S. MANGUERA Sectio Section n 9. The Congre Congress ss may may establ establish ish an indepe independe ndent nt economic economic and planning planning agency headed headed by the President, President, which shall, after consultat consultations ions with the appropriat appropriate e public public agencies, various private sectors, and local government units, recommend to Congress, and implement continuing i ntegrated and and coor coordi dina nate ted d prog progra rams ms and and polic policie ies s for for nati nation onal al development. Until the Congress provides otherwise, the National Economic and Development Authority shall function as the independent planning agency of the government.

IX. Filipinization of Areas of Investments

Section 10. The Congress shall, upon recommendation of the economic economic and planning planning agency, agency, when the national national interest dicta dictate tes, s, rese reserv rve e to citi citize zens ns of the the Phil Philip ippi pine nes s or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congre Congress ss shall shall enact enact measu measures res that that will will encour encourage age the formation and operation of enterprises whose capital is wholly owned by Filipinos. In the grant of rights, privileges, and concessions covering the nati nation onal al econ econom omy y and and patr patrim imon ony, y, the the Stat State e shal shalll give give preference to qualified Filipinos. The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

Manila Prince Hotel v. GSIS, 277 SCRA 408: The Suprem Supreme e Court Court said said that that the term term “patri “patrimon mony” y” pertains to heritage—and for over eight decades, the Manila Hotel has been mute witness to the triumphs and failures, loves and frustrations of the Filipi Filipino; no; its existe existence nce is impres impressed sed with with public public intere interest; st; its own histor historici icity ty associa associate te with with our stru strugg ggle le for for sove sovere reig ignt nty, y, inde indepe pend nden ence ce and and nationhood. Verily, the Manila Hotel has become part of our national economy and patrimony, and 51 % of its equity comes within the purview of the constitutional shelter, for it comprises the majority and controllin controlling g stock. Consequently, Consequently, the Filipino Filipino First policy provisions is applicable. Furthermore, the Supreme Court said that this provision is a positive command which is complete in itself and needs no further further guidelines guidelines or implementi implementing ng rules or laws for its operation. It is per is per se enforceable. It means precisely that Filipinos should be preferred and when when the Constitut Constitution ion declar declares es that that a right right exists in certain specified circumstances, an action may be maintained to enforce such right. X. Public Utilities

201

J.G. Summit v. C.A., G.R. No. 124293. 124293. January 31, 2005

202

Muller v. Muller, G.R. No. 149615, August 29, 2006.


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Section Section 11. No franchise franchise,, certifica certificate, te, or any other form of author authoriza izatio tion n for the operat operation ion of a public public utilit utility y shall shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty sixty per centum centum of whose capital is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition condition that it shall be subject subject to amendment amendment,, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

rolling rolling stocks like coaches, coaches, rail stations, terminals terminals and power plant, not public utility. What constitute a public utility is not their ownership but their use to the public. Bagatsing Bagatsing v. Committee Committee on Privatizat Privatization: ion: The Court held that Petron is not a public utility; hence there is no merit to petitioner’s contention that the sale sale of the block block of shares to Aramco Aramco violate violated d Article XII, Section 11 of the Constitution. A public utility is one organized “for hire or compensation” to serve the public, which is given the right to demand its service. Petron is not engaged in oil refining for hire or compensation to process the oil of other parties.

A franchise, certificate or authorization shall not be exclusive nor for a period more than 50 years, and shall be subject to amendment, alteration or repeal by Congress. Congress. All executive executive and managing managing officers must must Fili Filipi pino no citi citize zens ns.. In Pilipino Pilipino Telephone Telephone Corpor Corporati ation on v. NRC, NRC, 2003, 2003, it was was held held that that a fran franch chis ise e to oper operat ate e a publ public ic util utilit ity y is not not an exclusive exclusive private property of the franchisee. franchisee. No franchisee can demand or acquire exclusivitly in the operation of a public utility. Thus, a franchisee cannot cannot complain complain of seizure seizure or taking taking of property because of the issuance of another franchise to a competitor.

JG Summit Holdings v. CA, 2003: A public utility is a busi busine ness ss or servi service ce enga engage ged d in regu regula larl rly y supp supply lyin ing g the the publ public ic with with some some comm commod odit ity y or service of public consequence, such as electricity, gas, water, water, transportat transportation, ion, telephone telephone or telegraph telegraph service. service. To constitute constitute a public public utility, utility, the facility facility must be necessary for the maintenance of life and occupation of the residents. As the name indicates, “public utility” implies public use and service to the public. A shipyard is not a public utility. Its nature dictates that it serves but a limited clientele whom it may choose to serve at its discretion. It has no legal obligation to render the services sought by each and every client.

See Albano v. Reyes, 175 SCRA 264, where the Supreme Supreme Court said that Congress does not have the exclusive power to issue such authorization. Administrative bodies, e.g. LTFRB, ERB, etc., may be empowered to do so. In Philippin Philippine e Airlines Airlines v. Civil Aeronautics Aeronautics Board, Board, 1997 where it was held that Section 10, RA 776, reveals the clear intent of Congress to delegate the authority to regulate the issuance of a license to operate domestic air transport services. In United United Broadc Broadcast asting ing Networ Networks ks v. Nation National al Teleco Telecomm mmuni unicat cation ions s Commis Commissio sion, n, 2003: 2003: the Supreme Court acknowledged that there is a trend towa toward rds s dele delega gati ting ng the the legi legisl slat ativ ive e powe powerr to authorize the operation of certain public utilities to administra administrative tive agencies and dispensing dispensing with the requ requir irem emen entt of a cong congre ress ssio iona nall fran franch chis ise. e. However, in this case, it was held that in view of the clear requiremen requirementt for a legislativ legislative e franchise franchise under PD 576-A, the authorization of a certificate of public convenience by the NTC for the petitioner to operate television Channel 25 does not dispense with the need for a franchise. Tatad v. Garcia: The Constitution, in no uncertain terms, terms, requir requires es a franch franchise ise for the operat operation ion of public public utilit utilities ies.. Howeve However, r, it does does not require require a franchise before one can own the facilities needed to operate a public utility so long as it does not operat operate e them them to serve serve the public public.. What What privat private e respon responden dent, t, in this this case, case, owns owns are rail rail tracks tracks,,


TELE TELEBA BAP P v. COME COMELE LEC, C, 289 289 SCRA SCRA 337: 337: All broa broadc dcas asti ting ng,, whet whethe herr by radi radio o or tele televi visi sion on stations, is licensed by the Government. Radio and television companies do not own the airwaves and freque frequenci ncies; es; they they are merely merely given given tempor temporary ary privilege of using them. A franchise is a privilege subject to amendment, and the provision of BP 881 gran granti ting ng free free airt airtim ime e to the the COME COMELE LEC C is an amendment of the franchise of radio and television stations. JG Summit Holdings v. CA, 2003: A joint venture falls within the purview of an “association” pursuant to Section 11 of Article XII; thus a joint venture which would engage in the business of operating a public utility, such as a shipyard must comply with the the 60%60%-40 40% % Fili Filipi pino no-f -for orei eign gn capi capita tali liza zati tion on requirement.

XI. Preferential Use of Filipino Labor

Section Section 12. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures that help make them competitive.

XII. Trade Policy

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Section 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.

Atty. ARIS S. MANGUERA under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

Takeover of Public Utilities. The power given to the President to take over the operation of public utilities does not stand alone. It is activated activated only if Cong Congre ress ss gran grants ts emer emerge genc ncy y powe powers rs to the the President under Article VI, Section 23.203

XIII. Sustained Development of Human Resource; Practice of Profession

Section Section 14. The sustai sustained ned develo developme pment nt of a reserv reservoir oir of national talents consisting of Filipino scientists, entrepreneurs, professionals, managers, high-level technical manpower and skilled workers and craftsmen in all fields shall be promoted by the State. The State shall encourage appropriate technology and regulate its transfer for the national benefit. The practi practice ce of all profes professio sions ns in the Philippi Philippines nes shall shall be limited to Filipino citizens, save in cases prescribed by law.

XVII. Nationalization of Industries

Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment payment of just compensation, compensation, transfer transfer to public ownership ownership utilities and other private enterprises to be operated by the Government.

XVIII. Nationalization of Industries XIV. Cooperatives

Section 15. The Congress shall create an agency to promote the viability and growth growth of cooperativ cooperatives es as instrume instruments nts for social justice and economic development.

Section 19. The State shall regulate or prohibit monopolies when when the the public public intere interest st so requir requires. es. No combin combinati ations ons in restraint of trade or unfair competition shall be allowed.

Monopoly. A monopoly is “a privilege or peculiar adva advant ntag age e vest vested ed in one one more more pers person ons s or compan companies ies,, consis consistin ting g in the exclus exclusive ive right right (or power) to carry on a particular business or trade, manufacture a particular article, or control the sale of a particular commodity.” Clearly, monopolies are not per se prohibited by the Constitution but may be permit permitted ted to exist exist to aid the govern governmen mentt in carr carryi ying ng on an ent enterpr erpris ise e or to aid aid in the the performance of various services and functions in the the inte intere rest st of the the publ public ic.. Howe Howeve ver, r, beca becaus use e monopolies are subject to abuses that can inflict severe prejudice to the public, they are subjected to a higher higher of State State regulati regulation on than than an ordina ordinary ry business undertaking (Agan Jr. v. PIATCO) The Consti Constitut tution ion does does not absolu absolutel tely y prohib prohibit it mono monopo poli lies es.. Thus Thus for for exam exampl ple, e, an awar award d for for steved stevedori oring ng and arrast arrastre re servic services es to only only one corp corpor orat atio ion n is vali valid. d. (Phi (Phili lipp ppin ine e Auth Author orit ity y v. Mendoza)

In Cooperative Cooperative Developmen Developmentt Authority Authority v. Dolefil Dolefil Agrarian Reforms Beneficiaries Cooperative, 2002, the Supreme Court said that, after ascertaining the clear legislative intent of RA 6939, it now rules that the Cooperative Development Authority (CDA) is devoid of any quasi-judicial authority to adjudicate intra-coop intra-cooperati erative ve disputes disputes and, more particularl particularly, y, disput disputes es relate related d to the election election of office officers rs and directors of cooperatives. It may however, conduct hear hearin ings gs and and inqu inquir irie ies s in the the exer exerci cise se of its its administrative functions. XV. GOCCs

Section 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporati corporations. ons. Government Government-owne -owned d or controlled controlled corporati corporations ons may be create created d or establ establish ished ed by specia speciall charte charters rs in the intere interest st of the common common good and subjec subjectt to the test of economic viability.

Be that as it may, in Tatad Tatad v. Sec., Sec., 1997, 1997, the Supreme Court declared that Article XII, Section 19 is anti anti-t -tru rust st in hist histor ory y and and spir spirit it;; it espo espous uses es competition. The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for the prohibition in unmitigated

XVI. Temporary State Take-Over

Section 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and


203

Obiter in Obiter in David David v. Ermita, G.R. No. 171409, May 3, 2006.

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monopo monopolie lies. s. A market market contro controlle lled d by one player player (monopoly) or dominated by a handful of players (oligopoly) is hardly the marker where honest-togoodness competition will prevail. In this case, it cannot be denied that our downstream oil industry is operat operated ed and contro controlle lled d by oligop oligopoly oly,, foreig foreign n oligopoly at that. So, of only to help the may who are are poor poor from from furt furthe herr suff suffer erin ing g as a resu result lt of unmitigated increase in the prices of oil products due to deregulation, it is a must that RA 8180 be repealed completely. In Tanada v. Angara, 272 SCRA 18, the Supreme Court said that the WTO does not violate Article II Section 19, nor Sections 19 and 12 of Article XII, beca becaus use e thes these e sect sectio ions ns shou should ld be read read and and unders understoo tood d in relati relation on to Sections Sections 1 and 13 of Article XII, which require the pursuit of trade policy that that “serve “serves s the genera generall welfar welfare e and utiliz utilizes es all forms and arrangements of exchange on the basis of equality and reciprocity.” In Association In Association of Philippine Coconut Desiccators v. Philippine Coconut Authority, 1998, the Supreme Court Court declar declared ed that that althou although gh the Consti Constitut tution ion enshr shrines free enterprise as a policy, it nevert neverthel heless ess reserv reserves es to the Govern Governmen mentt the power power to interv intervene ene whenev whenever er necessa necessary ry for the promotion of the general welfare, as reflected in Sections 6 ad 19 of Article XII.


XX. Foreign Loans

Section 21. 21. Foreign loans may only be incurred in accordance with with law law and and the the regu regulat latio ion n of the the mone moneta tary ry auth author orit ity. y. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.

XXI. Penal Sanctions Section Section 22. Acts Acts which which circum circumven ventt or negate negate any of the provisions of this Article shall be considered inimical to the national interest and subject to criminal and civil sanctions, as may be provided by law.

Mono Monopo poli lies es in rest restra rain intt of trad trade. e. Contracts requiring requiring exclusivit exclusivity y are not per per se void. Each cont contra ract ct must must be view viewed ed vis-à-vis all all the circum circumsta stance nces s surrou surroundi nding ng such such agreem agreement ent in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. competition.204 XIX. Central Monetary Authority

Section Section 20. The Congress Congress shall establish establish an independent independent central monetary authority, the members of whose governing board must be natural-born Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall also be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the areas of money, bankin banking, g, and credit credit.. It shall shall have have superv supervisi ision on over over the operations of banks and exercise such regulatory powers as may be provid provided ed by law over the operatio operations ns of financ finance e companies and other institutions performing similar functions. Until the Congress otherwise provides, the Central Bank of the Philippines operating under existing laws, shall function as the central monetary authority.

204

December 20, Avon v. Luna, G. R. No. 153674, December 2006. I sweat, I bleed, I soar… Service, Sacrifice, Excellence

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