Public Corp. Midterms

7/31/2019 Public Corp. Midterms

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1 let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author andperfecter of our faith Heb 12:2

LOCAL GOVT LAW (Municipal Corp. Law)

DAY 1

GENERAL PRINCIPLES

What is a corporation?

- an artificial being created by operation of law, havingthe right of succession and the powers, attributes andproperties expressly authorized by law or incident to its

existence.What are the reasons for creating a corporation?

- Limited Liability from the business perspective. Havinga corporation will therefore mean that there is anotherentity separate from the owners. If you talk about aprivate corporation, then you have a separate juridicalentity called that corporation and you also have thepersonality of the owners and stockholders andtherefore, having said that, then we can talk of limitedliability because transactions entered into by thecorporation will only affect the corporation. If thecorporation gets sued because of its inability to pay thenthe other party to the contract cannot go after theincorporators or stockholders because it is basic in the

corporation law that a corporation has a separate anddistinct personality as that of the incorporators orstockholders. That if the president for example, acts onhis own, purchases a property, does not pay, the otherparty, cannot go after the assets of the corporation toanswer the liability of the president because he acted onhis own and not as a representative of the corporation. Ifthe mayor now slaps somebody and that victim sues themayor and gets a monetary award from the court, thatvictim cannot go after the assets of Cebu City to answerfor the judgement, the mayor will be held personallyliable. If the mayor enters into a contract without theauthorization from the sanggunian, and the mayor doesnot pay, the other party cannot go after the city of cebu.

- For convenience, when you have a separate and

juridical entity, then it can perform acts with legal effectsalready because it has personality. It can act rather withlegal effects, it can enter into transactions/contracts suchas contracts that allow a particular construction companyto deliver or to build certain infrastructures.

What are the kinds of corporation in general?

(1) Public: Organized for the government of aportion of the State. One created by theState either by general or special act forpurposes of expediency in administration oflocal government or rendering service in thepublic interest.

(2)Private: Formed primarily for privatepurpose, benefit, aim or end.

PrivateCorporation

PublicCorporation

-those formed forsome privatepurpose, benefit,aim or end.

DEFINITION

-one created by theState either bygeneral or specialact for purposes ofadministration oflocal governmentor renderingservice in thepublic interest.

-created forprivate aim, gain,or benefits of itsmembers

PURPOSEOFCREATION

-established forpurposesconnected with theadministration ofcivil or localgovernments

-created by thewill of theincorporators withthe recognizanceof the State.

CREATORS

-creations of theState either bygeneral or specialact

-through a charter

-throughincorporating itthrough a generallaw (corp. code),the process is yougo to the bankand depositcertain sum ofmoney forcapitalization andthe bank would

make acertification ofsuch deposit andyou go and fill upa form, thearticles ofincorporation, andyou go the SEC toissue a certificateof incorporation.

by congress

-barangays may becreated by law orordinance

-constitute avoluntaryagreement by andamong itsmembers

NATURE

-involuntaryconsequence oflegislation

What are the kinds/classes of public corporation?

Quasi-publicCorporations

MunicipalCorporations/LocalGovernment

-created as agencies ofthe State for narrowand limited purposeswithout the powers andliabilities of self-governing corporations.

-actually a privatecorporation, given afranchise, its function isto deliver basicservices or supply ofpublic want such aswater, electricity, etc.

Ex. PCSO, publicutilities like MCWD

-body politic and corporateconstituted by theincorporation of theinhabitants for purposes oflocal government thereof.

-established by law partly asan agency of the State toassist in the civil governmentof the country, but chiefly toregulate and administer thelocal or internal affairs of thecity, town or district which isincorporated.

-political subdivision of anation or state which isconstituted by law and hassubstantial control of localaffairs

Ex. LGU

LOCAL GOVERNMENT political subdivisions of anation or state which is constituted by law and hassubstantial control of local affairs. Eg. Province (underthe 1987 Constitution, local governments are not onlycalled political subdivisions but territorial subdivisions aswell)

1987 Constitution Art. 10 SECTION 1. The territorial andpolitical subdivisions of the Republic of the Philippinesare the provinces, cities, municipalities, and barangays.There shall be autonomous regions in Muslim Mindanaoand the Cordilleras as hereinafter provided.

CONCEPTS:

1) Municipal corporation abstract; something that has aset of officers, represents stateholders in entering intotransactions, agent of the national government

2) Political subdivision every time the LGU performs agovernmental function then it is functioning as a politicalsubdivision, meaning as an agent of the state

3) Territorial subdivision for purposes of regulation ofactivities, regulation of certain forms of gambling, policepower, expropriation


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An LGU is to be created, it does not exist on itsown. Precisely created by law, an artificial being.

MUNICIPAL CORPORATIONS

ELEMENTS:

(1) Legal creation - This refers to the law creating it;

(2) Corporate name - It is the name by which the publiccorporation is known. The sangguniang panlalawiganmay, in. consultation with the Philippine HistoricalInstitute, change the name of component cities andmunicipalities, upon the recommendation of thesanggunian concerned; provided that the same shall beeffective only upon ratification in a plebiscite conductedfor the purpose in the political unit directly affected [Sec.13, R.A. 7160].

(3) Inhabitants - This refers to the peopleresiding in it or comprising it; and

(4) Territory - This refers to the area whereinwhich the inhabitants are residing includingthe land, water, space and air space.

DUAL NATURE AND FUNCTIONS OF LGU

1. Governmental public; political; administering thepowers of the state and promoting the public welfare

Ex. Regulatory ordinances, Police power, eminentdomain, taxation, delegations

2. Proprietary private; corporate; exercised for thespecial benefit and advantage of the community.

Ex. Maintenance, beautification of public plazas, locality,markets

WHAT IS THE LEGAL RELEVANCE OFCHARACTERIZING A PARTICULAR FUNCTION OF ALOCAL GOVERNMENT UNIT AS EITHERPUBLIC/GOVERMENTAL ORPRIVATE/PROPRIETARY?

If a LGU performs a governmental function, thenit is acting as a political subdivision/agent of the statethen it is part of that state and being so it can enjoy thesovereign privileges of the state. Whereas if it isperforming a proprietary function, a corporate entity as arepresentative of the inhabitants, and the inhabitants are

not immune from suit.The idea of state immunity is not that the state cannot besued but the state cannot be sued without its consent.There are various forms of consent, one is expressconsent, as when the law provides that that particularentity can be sued and if you look at the charter of allLGU, you will there a section that that LGU can sue andbe sued, and that is an express consent, but even if youdont see that in every charter of the LGU, it doesntmatter because Jan. 1, 1992 which is the LGU code of1991, sec. 2 already declares that every LGU has thepower to sue and be sued. We can go to the other areaof concern after suability which is liability in the area offor example negligence, or tortious acts, like for examplethe driver of the city of Cebu under the influence of liquor

then hits and kills the pedestrian, the heirs will have toclaim for redress, the question is who should be the oneto be held liable.

Would you find it relevant to distinguish between acontract that is entered into by the City of Cebu hiring forexample the services of entertainers to appear before aprogram and a contract entered into between acontractor and the city of cebu for the construction ofroad; would you say that in the first situation the city ofcebu should be held liable because it is a privatecontract and in the public contract, Its not liable?

The other concern is satisfaction of an award formonetary claim, you have a plaintiff who file a caseagainst the city of cebu as defendant, gets a favourableaward in the amount of 10M for the payment of justcompensation because the city of cebu took his privateproperty, the sheriff would now proceed to the bank andwondering if the funds in the account are forgovernmental or proprietary.

In Property, the real property of and LGU may be heldgovernmental or proprietary capacity. The LGU forexample has a parcel of land and the nationalgovernment uses it for offices of national governmentagencies. The legal concerns here are for example youare the mayor, there is deprivation of property, thebeneficial use, then just compensation. You should askjust compensation from the national government, but thequestion is would you get it. We try to distinguish it now ifthat property is held in its governmental capacity thenthe LGU as agent of the national government, must havebeen holding the property in trust of the principal, so whywould it receive just compensation. And then if it is aproperty held in its proprietary capacity then it is not partof the state, it is as if it is a private corporation so when itis deprive of property, it should receive justcompensation.

Dual Functions, contdIMPORTANCE OF KNOWING THESE DUALFUNCTIONS OF LGU:

- liability for damages

- garnishment of funds

- liability of LGU

- control of congress over LGU

Section 15.Political and Corporate Nature of LocalGovernment Units. - Every local government unit createdor recognized under this Code is a body politic andcorporate endowed with powers to be exercised by it inconformity with law. As such, it shall exercise powers asa political subdivision of the national government and asa corporate entity representing the inhabitants of itsterritory.

- Even without this principle, it will still apply because thisis the principle since time immemorial.

BARA LIDASAN V COMELEC

*On June 18, 1966, Chief Executive signed into lawHouse Bill (HB) 1247, now known as Republic Act(RA) 4790 An Act Creating the Municipality ofDianaton in the Province of Lanao del SurThe newmunicipality of Dianaton, Lanao del Sur includes:Kapatagan, Bongabong, Aipang, Dagowan, Bakikis,Bungabung, Losain, Matimos, and Magolatung. It alsoincludes: barrios of Togaig and Madalum (both situatedin Buldon, Cotabato) and barrios of Bayanga,Langkong, Sarakan, Kat-bo, Digakapan, Magabo,Tangabao, Tiongko, Colodan, and Kabamawakan (allsituated in Parang, Cotabato) Bara Lidasan, residentand taxpayer of the detached portion of Parang,Cotabato affected by the implementaion of RA 4790,questions the constitutionality of RA 4790.

SC: on 1966, there are still lesser population comparedto now. With 9 barangays, its hard to imagine that it canexist as a self-sufficient political community. Remember,and LGU is not only a political subdivision of the statebecause if it is only a political subdivision of the state, itcan always ask funding from the national government,but it is not. It cannot deliver basic services with only 9barangays.

- Municipal corporations perform twin functions.

Firstly. They serve as an instrumentality of the State incarrying out the functions of government.


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Secondly. They act as an agency of the community inthe administration of local affairs. It is in the lattercharacter that they are a separate entity acting for theirown purposes and not a subdivision of the State.13

SURIGAO ELECTRIC CO., INC V MUNICIPALITY OFSURIGAO

- Theres a law that provides for a requirement that if

they operate for a public utility, you need to get acertificate of public convenience however in the samelaw it provided for certain entities that are exempt fromgetting a certificate of public convenience, and thatpublic service law mentions of instrumentalities of publicgovernment as exempt from getting a certificate publicconvenience if it opts to operate a public utility. SurigaoElectric Co., complained because the municipalityoperated an electric company without a certificate ofpublic convenience. The question now is the idea ofinstrumentality of the national government, does itinclude a local government unit, because it was arguedthe meaning of instrumentality should be those agenciespertaining to the national government and since it islocal, it is not part.

- Because of the first function of the LGU, that is, itserves as an agency of the State, and LGU cantherefore be considered an instrumentality of theNational Government.

- SC said: Government affairs do not lose theirgovernmental character by being delegated to themunicipal governments. Nor does the fact that suchduties are performed by officers of the municipalitywhich, for convenience, the state allows the municipalityto select, change their character.

- Even if the local government caters to the needs of theinhabitants, its a fact that is also a political subdivision, itis also an agent of the national government, so it is botha corporate entity and a political subdivision and being a

political subdivision then it can qualify as aninstrumentality of the national government. The SC ruledthat there was no need for a certificate of publicconvenience.

SOURCES OF POWER:

GENERAL:

1. 1987 Constitution (article X sec. 5, 6, 7 sources ofrevenues)

2. LGC of 1991 (RA 7160) Consolidation of past local

government laws)3. Other statutes or acts not inconsistent with theforegoing

PROBLEM: A community of people in the northern partof Cebu had always wanted to have their own localgovernment unit. Apparently, these people wereconsidered minority in Cebu as their predecessors weremainly from the province of Bohol. Claiming that theyhave unique culture and tradition different from mostCebuanos, they lobbied in Congress for the enactmentof a law for the creation of a new municipality to becalled Buenavista 2. Although lacking in population

requirement, they were able to convince congress topass a law creating the new municipality. Local officialswere then elected and acted as such for forty years.Buenavista 2 had then entered into contracts andtransactions with various persons.

1)What are the areas of concern; What are the legalaspects of this problem?

2)What are the questions that you should be askingabout this problem?

3)Why will you be asking those questions?

DAY 2

ANSWER OF ASSIGNMENT BY ATTY. LARGO:

LEGAL CONCERNS:

- What would happen to the ordinances?

- Contracts, if the LGU was made to pay in that contract,

can the people get the funds back? Because it wasillegally disburse? Because it was disbursed by a non-government entity?

- Taxes, for 40 years, it must have collected real propertytaxes, will you not get the taxes back?

- Suppliers, will they get back the supplies delivered tothe LGU? What if they have not been paid? Can you stillmake the LGU liable?

- Local officials have been elected and acted as such for40 years, what would happen to their salaries? Wherethey entitled, assuming this would be declaredunconstitutional.

- The bottomline is, the buenavista 2 may have beendefectively created and it acted as a lawfully createdmunicipal corporation, and it acted as if it was lawfullycreated and therefore entered into transactions,exercised powers, collected taxes, it passed ordinances,police power, eminent domain, you want to get it backbecause it was expropriated by a non-governmentalentity which should not exercise the power in the firstplace.

- de facto or not? De jure?

QUESTIONS YOU SHOULD BE ASKING:

- Was there a plebiscite, how was it done?

- There are principles of law applicable to those createdbefore and after the 1987 constitution?

- Was the validity of the municipal corporation hereinvolve when questioned to check if it was assailedproperly or improperly?

- When was this created? Because if this was createdbefore 1965 when Pelaez V Auditor General wasdecided by the SC, because that was already settledthere, I want to know if it was assailed, because itsrelevant to know whether that municipal corporation wasquestioned or not, whether a decision has beenrendered declaring it invalidly created or not.

- I want to know if this was enacted before the 1987Constitution, let us say 1942 plus 40, 1982, so before1987 constitution, I remember in one of the cases, it wassaid that if it was illegally created, like those municipalcorporation created by executive order which accordingto SC in Pelaez v Auditor general, invalid because thecreation of municipal corporation is a legislative functionand not an executive function, although there wascolourable compliance, because president Macapagalhad some sort of a basin in creating municipalcorporation in section 16 of the code, so there was atleast some sort of an attempt in good faith to organize it,it was not as if it was created without utterly legal basis. Iwant to know that because in the 1987 constitution wasratified by the people, and ordinance was annexed to the1987 constitution, which happen to list down LGU that

constituted the first set of legislative districts in thatgeneral apportionment of legislative districts. And youwould be asking that question because a de factomunicipal corporation, it can actually be rendered de jurethrough for example ratification recognition by the Stateas when even mentioned by the Constitution, in fact in 1case, through congress, state has ratified, recognized adefective municipal corporation like in the LGC of 1991,in section 442 D, you should have asked that question. Ifit was created before 1987, was it included in the list?Otherwise, the state had ratified, recognized an invalidlycreated, assuming this can be assailed as invalidlycreated. Probably its not even de facto, its de jure. And


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another thing in January 1992, effectivity of the LGC of1991, sec. 442 D of the Local Government Code wasconsidered as curative law, those created in the pastcontinued to exercise governmental powers as long as ithas proof of continued exercise of governmental powerswhile defectively created and continued to exist, weredeemed regular municipal corporations.

KINDS OF MUNICIPAL CORPORATION:

1) DE JURE created with all the elements of amunicipal corporation being present; perfectly created;exists by law; lawfully created

2) DE FACTO where there is colourable compliancewith the requisites of a de jure municipal corporation; if itdoes not exist in law because it has not complied withthe law then it may have only existed in fact

DOCTRINE OF DE FACTO CORPORATION

- where there is authority in law for a municipalcorporation, the organization of the people of a given

territory as such a corporation under a color of delegatedauthority, followed by a user in good faith of thegovernment powers incidental thereto, will be recognizedby the law as a municipal corporation de facto, whereverthrough the failure to comply with the constitutional orstatutory requirements, the corporation cannot be said toexist de jure.

EFFECTS OF A DE FACTO CORPORATION STATUS

- Where at least a de facto municipal corporation, acts ofthat entity will be respected and will be recognized asvalid and binding by the State as if it is a de jure publiccorp. (Fordham)

- Where there is no municipal corporation at all (even ade facto one), the acts of that entity are not recognizedas valid by the State.

- Is there a difference between de jure and de factomunicipal corporation in so far as there effects of theiracts are concerned?

BASIS FOR THE DOCTRINE OF DE FACTOCORPORATION

- The basis for this doctrine is a very strong public policy

supporting the security of units of local government andthe conduct of their businessagainst attack groundedupon collateral inquiry into the legality of theirorganization. (operative fact doctrine)

- It also underlies the theory that local units may exist byprescription. (Fordham).

BUT LONG USE OF CORPORATE POWER DOESNOT SILENCE THE STATE

-The state controls the objects and methods of creationof local units and, to effectuate a policy in that area, itshould be free to challenge local departures from that

policy. Long exercise of corporate powers withoutquestion from any quarter was not enough to silence thestate; it might still attack directly, in quo warranto or otherappropriate proceedings, the legal existence of a localunit either on the ground that there was no authority inlaw for its existence or that were the irregularities in itsorganization, as the case might be. (Fordham)

- First, if its de facto then it can be questioned through adirect proceeding where the nature of the proceedingis in this case to assail the validity of the existence of themunicipal corporation, meaning that is the purpose ornature of the proceeding. If the nature or purpose of the

proceeding is otherwise, or any other purpose, but youbrought up the issue on invalidity of the municipalcorporation, then that becomes a collateral attack.

NEVERTHELESS, THE STATE MAY RECOGNIZE ADE FACTO CORPORATION AND RENDER IT DEJURE

- Defective incorporation may be obviated and a de facto

unit rendered de jure by subsequent legislativerecognition or validation. (Fordham)

DE FACTO CORPORATION ELEMENTS:

a. valid law authorizing incorporation

b. attempt in good faith to organize it

c. colourable compliance with law

d. assumption of corporate powers

MUNICIPALITY OF JIMENEZ V BAS, JR. (1996)

- The municipality of Sinacaban was created throughE.O. 258 in 1949 and since then had been exercising thepowers of an LGU;

- in 1965, Pelaez V. Auditor General case invalidatedcertain EOs issued by the President creatingmunicipalities because the power to create LGU isessentially legislative, excluding EO 258

- in 1990, Sinacabans existence was questioned.

- SC:

First. The preliminary issue concerns the legal existenceof Sinacaban. If Sinacaban legally exist, then it hasstanding to bring a claim in the ProvincialBoard. Otherwise, it cannot.

The principal basis for the view that Sinacaban was notvalidly created as a municipal corporation is the ruling inPelaez v. Auditor General that the creation of municipalcorporations is essentially a legislative matter andtherefore the President was without power to create byexecutive order the Municipality of Sinacaban. Theruling in this case has been reiterated in a number ofcases[9]later decided. However, we have since held thatwhere a municipality created as such by executive orderis later impliedly recognized and its acts are accorded

legal validity, its creation can no longer bequestioned. In Municipality of San Narciso, Quezon v.Mendez, Sr.,[10]this Court considered the followingfactors as having validated the creation of a municipalcorporation, which, like the Municipallity of Sinacaban,was created by executive order of the President beforethe ruling in Pelaez v. Auditor general: (1) the fact thatfor nearly 30 years the validity of the creation of themunicipality had never been challenged; (2) the fact thatfollowing the ruling in Pelaez no quo warrantosuit wasfiled to question the validity of the executive ordercreating such municipality; and (3) the fact that themunicipality was later classified as a fifth classmunicipality, organized as part of a municipal circuitcourt and considered part of a legislative district in theConstitution apportioning the seats in the House of

Representatives. Above all, it was held that whateverdoubt there might be as to the de jurecharacter of themunicipality must be deemed to have been put to rest bythe local Government Code of 1991 (R.A. no. 7160),442 (d) of which provides that municipal districtsorganized pursuant to presidential issuances orexecutive orders and which have their respective sets ofelective officials holding office at the time of theeffectivity of this Code shall henceforth be considered asregular municipalities.

Here, the same factors are present so as to confer onSinacaban the status of at least a de factomunicipal
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corporation in the sense that its legal existence has beenrecognized and acquiesced publicly andofficially. Sinacaban had been in existence for sixteenyears when Pelaez v. Auditor General was decided onDecember 24, 1965. Yet the validity of E.O. No. 258creating it had never been questioned. Created in 1949,it was only 40 years later that its existence wasquestioned and only because it had laid claim to an areathat apparently is desired for its revenue. This fact mustbe underscored because under Rule 66, 16 of theRules of Court, a quo warrantosuit against a corporationfor forfeiture of its charter must be commenced withinfive (5) years from the time the act complained of wasdone or committed. On the contrary, the State and eventhe municipality of Jimenez itself have recognizedSinacabans corporate existence. Under Administrativeorder no. 33 dated June 13, 1978 of this Court, asreiterated by 31 of the judiciary Reorganization Act of1980 (B.P. Blg. 129), Sinacaban is constituted part ofmunicipal circuit for purposes of the establishment ofMunicipal Circuit Trial Courts in the country. For its part,Jimenez had earlier recognized Sinacaban in 1950 byentering into an agreement with it regarding theircommon boundary. The agreement was embodied inResolution no. 77 of the Provincial Board of MisamisOccidental.

Indeed Sinacaban has attained de jurestatus by virtueof the Ordinance appended to the 1987 Constitution,apportioning legislative districts throughout the country,which considered Sinacaban part of the Second Districtof Misamis Occidental. Moreover following the ruling inMunicipality of san Narciso, Quezon v. Mendez, Sr.,442(d) of the Local Government Code of 1991 must bedeemed to have cured any defect in the creation ofSinacaban. This provision states:

Municipalities existing as of the date of the effectivity ofthis Code shall continue to exist and operate assuch. Existing municipal district organized pursuant topresidential issuances or executive orders and whichhave their respective set of elective municipal officialsholding office at the time of the effectivity of the Code

shall henceforth be considered as regular municipalities.

Second. Jimenez claims, however, that R.A. No. 7160,442(d) is invalid, since it does not conform to theconstitutional and statutory requirements for the holdingof plebiscites in the creation of new municipalities.[11]

This contention will not bear analysis. Since, aspreviously explained, Sinacaban had attained defactostatus at the time the 1987 Constitution took effecton February 2, 1987, it is not subject to the plebisciterequirement. This requirement applies only to newmunicipalities created for the first time under theConstitution. Actually, the requirement of plebiscite wasoriginally contained in Art. XI, 3 of the previousConstitution which took effect on January 17, 1973. Itcannot, therefore, be applied to municipal corporationscreated before, such as the municipality of Sinacaban inthe case at bar. Jimenez properly brought to the RTC forreview the decision of October 11, 1989 and ResolutionNo. 13-90 of the Provincial Board. Its action is inaccordance with the local Government Code of 1983,79 of which provides that I case no settlement ofboundary disputes is made the dispute should beelevated to the RTC of the province.

MUN. OF SAN NARCISO V MENDEZ, SR.

- Municipality of San Andres was created in 1959

through EO 353- It became a fifth class municipality in 1965

- in 1965, Palaez V Auditor General case invalidatedsome EO (excluding EO 353) of the President creatingsome municipalities;

- San Andres existence was questioned in 1989;

- SC: San Andres became de jure by subsequentrecognition because it was included in the ordinance(appendix) to the 1987 constitution apportioning the

seats of the house of representative (as one of the 12municipalities composing the 3rd district of Quezon)

While petitioners would grant that the enactment ofRepublic Act No. 7160 may have convertedtheMunicipality of San Andres into a defactomunicipality, they, however, contend that since thepetition forquo warrantohad been filed prior to thepassage of said law, petitioner municipality had acquireda vested right to seek the nullification of Executive OrderNo. 353, and any attempt to apply Section 442 ofRepublic Act 7160 to the petition would perforce beviolative of due process and the equal protection clauseof the Constitution.

Petitioners' theory might perhaps be a point to considerhad the case been seasonably brought. Executive OrderNo. 353 creating the municipal district of San Andreswas issued on 20 August 1959 but it was only afteralmost thirty (30) years, or on 05 June 1989, thatthe municipality of San Narciso finally decided tochallenge the legality of the executive order. In themeantime, the Municipal District, and laterthe Municipality, of San Andres, began and continued toexercise the powers and authority of a duly created localgovernment unit. In the same manner that the failure of apublic officer to question his ouster or the right of

another to hold a position within one-year period canabrogate an action belatedly filed, 19 so also, if notindeed with greatest imperativeness, must a quowarrantoproceeding assailing the lawful authority of apolitical subdivision be timely raised.20Public interestdemands it.

Granting the Executive Order No. 353 was a completenullity for being the result of an unconstitutionaldelegation of legislative power, the peculiarcircumstances obtaining in this case hardly could offer achoice other than to considerthe Municipality of San Andres to have at least attaineda status uniquely of its own closely approximating, if notin fact attaining, that of a de factomunicipal corporation.Conventional wisdom cannot allow it to be otherwise.

Created in 1959 by virtue of Executive Order No. 353,the Municipality of San Andres had been in existence formore than six years when, on 24 December1965, Pelaez v. Auditor Generalwas promulgated. Theruling could have sounded the call for a similardeclaration of the unconstitutionality of Executive OrderNo. 353 but it was not to be the case. On the contrary,certain governmental acts all pointed to the State'srecognition of the continued existence ofthe Municipality of San Andres. Thus, after more thanfive years as a municipal district,Executive Order No.174 classified the Municipality of San Andres as a fifthclass municipality after having surpassed the incomerequirement laid out in Republic Act No. 1515. Section31 of Batas Pambansa Blg. 129, otherwise known as theJudiciary Reorganization Act of 1980, constituted asmunicipal circuits, in the establishment of MunicipalCircuit Trial Courts in the country, certain municipalitiesthat comprised the municipal circuits organizedunderAdministrative Order No. 33, dated 13 June 1978,issued by this Court pursuant to Presidential Decree No.537. Under this administrative order,the Municipality of San Andres had been covered by the10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon. Cdpr

At the present time, all doubts on the de jurestanding ofthe municipality must be dispelled. Under the Ordinance(adopted on 15 October 1986) apportioning the seats ofthe House of Representatives, appended to the 1987Constitution, the Municipality of San Andres has been

considered to be one of the twelve (12) municipalitiescomposing the Third District of the province of Quezon.Equally significant is Section 442(d) of the LocalGovernment Code to the effect that municipal districts"organized pursuant to presidential issuances orexecutive orders and which have their respective sets ofelective municipal officials holding office at the time ofthe effectivity of (the) Code shall henceforth beconsidered as regular municipalities." No pretension ofunconstitutionality per seof Section 442(d) of the LocalGovernment Code is preferred. It is doubtful whethersuch a pretext, even if made, would succeed. The powerto create political subdivisions is a function of the
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legislature. Congress did just that when it hasincorporated Section 442(d) in the Code.

MUN. OF CANDIJAY V CA (1995)

- Same Ruling in Jimenez and Narciso cases;

- In addition, as in Narciso Case, the Municipality ofAlicia should benefit from the effects of Section 442 D of

the LGC of 1991 which was declared in Narciso ascurative law aimed at giving validity to acts done thatwould have been invalid under existing laws have beencomplied.

After deliberating on the petition, comment and reply,this Court is not persuaded to grant due course to thepetition.

On the second issue, we noted that petitionercommenced its collateral attack on the juridicalpersonality of respondent municipality on 19 January1984 (or some thirty five years afterrespondent municipality first came into existence in1949) during the proceedings in the court a quo. Itappears that, after presentation of its evidence, herein

petitioner asked the trial court to barrespondent municipality from presenting its evidence onthe ground that it had no juridical personality. Petitionercontended that Exec. Order No. 265 issued by PresidentQuirino on September 16, 1949 creatingrespondent municipality is null and void ab initio,inasmuch as Section 68 of the Revised AdministrativeCode, on which said Executive Order was based,constituted an undue delegation of legislative powers tothe President of the Philippines, and was thereforedeclared unconstitutional, per this Court's rulingin Pelaez vs. Auditor General.3

In this regard, we call to mind the ruling of this Courtin Municipality of San Narciso, Quezon vs. Mendez,Sr.,4which will be found very instructive in the case at

bench. Therein we stated:

"While petitioners would grant that the enactment ofRepublic Act No. 7160 [Local Government Code of1991] may have converted the Municipality of SanAndres into a de factomunicipality, they, however,contend that since the petition forquo warrantohadbeen filed prior to the passage of said law,petitioner municipality had acquired a vested right toseek the nullification of Executive Order No. 353, andany attempt to apply Section 442 of Republic Act 7160 tothe petition would perforce be violative of due processand the equal protection clause of the Constitution.

"Petitioner's theory might perhaps be a point to considerhad the case been seasonably brought. Executive OrderNo. 353 creating the municipal district of San Andreswas issued on 20 August 1959 but it was onlyafteralmost thirty (30) years, or on 05 June 1989, thatthe municipality of San Narciso finally decided tochallenge the legality of the executive order. In themeantime, the Municipal district, and laterthe Municipalityof San Andres, began and continued toexercise the powers and authority of a duly created localgovernment unit. In the same manner that the failure of apublic officer to question his ouster or the right ofanother to hold a position within a one-year period canabrogate an action belatedly file, so also, if not indeedwith greatest imperativeness, must a quowarrantoproceeding assailing the lawful authority of apolitical subdivision be timely raised. Public interest

demands it.

"Granting that Executive Order No. 353 was a completenullity for being the result of an unconstitutionaldelegation of legislative power, the peculiarcircumstances obtaining in this case hardly could offer achoice other than to consider the Municipality of SanAndres to have at least attained a status uniquely of itsown closely approximating, if not in fact attaining, that ofa de factomunicipal corporation. Conventional wisdomcannot allow it to be otherwise. Created in 1959 by virtue

of Executive Order No. 353, the Municipality of SanAndres had been in existence for more than six yearswhen, on 24 December 1965, Pelaez vs. AuditorGeneralwas promulgated. The ruling could havesounded the call for a similar declaration of theunconstitutionality of Executive Order No. 353 but it wasnot to be the case. On the contrary, certaingovernmental acts all pointed to the State's recognitionof the continued existence of the Municipality of SanAndres. Thus, after more than five years as a municipaldistrict, Executive Order No. 174 classifiedthe Municipality of San Andres as a fifthclass municipality after having surpassed the incomerequirement laid out in Republic Act No. 1515. Section31 of Batas Pambansa Blg. 129, otherwise known as theJudiciary Reorganization Act of 1980, constituted asmunicipal circuits, in the establishment of MunicipalCircuit Trial Courts in the country, certain municipalitiesthat comprised the municipal circuits organized underAdministrative Order No. 33, dated 13 June 1978, issuedby this court pursuant to Presidential Decree No. 537.Under this administrative order, the Municipalityof SanAndres had been covered by the 10th Municipal CircuitCourt of San Francisco-San Andres for the province ofQuezon.

"At the present time, all doubts on the de jurestanding of

the municipality must be dispelled. Under the Ordinance(adopted on 15 October 1986) apportioning the seats ofthe House of Representatives, appended to the 1987Constitution, the Municipality of San Andres has beenconsidered to be one of the twelve (12) municipalitiescomposing the Third District of the province of Quezon.Equally significant is Section 442(d) of the LocalGovernment Code to the effect that municipal districts"organized pursuant to presidential issuances orexecutive orders and which have their respective sets ofelective municipal officials holding office at the time ofthe effectivity of (the) Code shall henceforth beconsidered as regular municipalities." No pretension ofunconstitutionality per seof Section 442(d) of the LocalGovernment Code is proffered. It is doubtful whethersuch a pretext, even if made, would succeed. The power

to create political subdivisions is a function of thelegislature. Congress did just that when it hasincorporated Section 442(d) in the Code. Curativelaws,which in essence are retrospective, and aimed at giving"validity to acts done that would have been compliedwith," are validly accepted in this jurisdiction, subject tothe usual qualification against impairment of vestedrights.

"All considered, the de jurestatus of the Municipality ofSan Andres in the province of Quezon must now beconceded."

Respondent municipality's situation in the instant case isstrikingly similar to that of the municipality of SanAndres. Respondent municipality of Alicia was createdby virtue of Executive Order No. 265 in 1949, or tenyears ahead of the municipality of San Andres, andtherefore had been in existence for all of sixteen yearswhen Pelaez vs. Auditor Generalwas promulgated. Andvarious governmental acts throughout the years allindicate the State's recognition and acknowledgment ofthe existence thereof. For instance, under AdministrativeOrder No. 33 above-mentioned, the Municipality of Aliciawas covered by the 7th Municipal Circuit Court of Alicia-Mabini for the province of Bohol. Likewise, under theOrdinance appended to the 1987 Constitution,the Municipality of Alicia is one of twenty municipalitiescomprising the Third District of Bohol.

Inasmuch as respondent municipality of Alicia is similarly

situated as the municipality of San Andres, it shouldlikewise benefit from the effects of Section 442(d) of theLocal Government Code, and should henceforth beconsidered as a regular, de juremunicipality.

SECTION 442 (D), LGC:

Municipalities existing as of the date of the effectivity ofthis Code shall continue to exist and operate as such.Existing municipal districts organized pursuant topresidential issuances or executive orders and which
http://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnoteshttp://www.cdasiaonline.com/search/show_article/15252?search=%28%28Municipality+of+Candijay+V+CA%29%29+OR+%28%28Municipality+of+Candijay+vs+%22Court+of+Appeals%22%29%29#footnotes


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have their respective set of elective municipal officialsholding office at the time of the effectivity of this Codeshall henceforth be considered as regular municipalities.

SULTAN OSOP CAMID V OFFICE OF THEPRESIDENT

- SC:

1. Section 442(d) of the LGC does not sanction therecognition ofjust anymunicipality.

2. Only those that can prove continued exercise ofcorporate powers can be covered; Andong does nothave the certification from DILG as such

3. Incidentally, the SC being not a trier of facts

Section 442(d) of the Local Government Code requiresthat in order that the municipality created by executiveorder may receive recognition, they must have theirrespective set of elective municipal officials holding officeat the time of the effectivity of the Local GovernmentCode. Petitioner admits that Andong has never electedits municipal officers at all.

DOCTRINE OF OPERATIVE FACT APPLICABLE ININVALIDLY CREATED LGU

2004 BAR EXAM

VII.

B. Suppose that one year after Masigla was constitutedas a municipality, the law creating it is voided because ofdefects. Will that invalidate the acts of the municipalityand officers?

ASS: Even during the 1973 consti, local governmentshad already been given local autonomy. In theappointment of a provincial accountant, the secretary ofthe department of Budget and Management appointsfrom among the list of nominess the Governor wouldsubmit to the DBM. This was the case before the LocalGovt code of 1991 took effect. When a Governersubmitted a list of nominees, namely X,Y and Z for theposition of Provincial Accountant, none of the nominesswas a CPA, which was one of the qualifications for aprovincial accountant. The Secretary of DBM appointedinstead W, a CPA. What are the legal aspects of thecase?

DAY 3

OVERVIEW OF THE PHIL. LOCAL GOVERNMENTSYSTEM

- Vertical Classification of Phil. Local System: Unitary (asdistinguished from Federal)

- Lina V Pano Ours is still a unitary form ofgovernment, not a federal state. Being so, any form ofautonomy granted to local governments will necessarilybe limited and confined within the extent allowed by thecentral authority. Besides, the principle of localautonomy under the 1987 Constitution simply means

decentralization. It does not make local governmentssovereign within the state or an imperium in imperio.

FEDERAL - is a political entity characterized bya union of partially self-governing states or regionsunited by a central (federal) government. In a federation,the self-governing status of the component states, aswell as the division of power between them and thecentral government, are typically constitutionallyentrenched and may not be altered by a unilateraldecision of the latter. In a federation the component

states are in some sense sovereign, insofar as certainpowers are reserved to them that may not be exercisedby the central government. However, a federation ismore than a mere loose alliance of independent states.

A federal system of government is one that divides thepowers of government between the national (federal)government and state and local governments. TheConstitution of the United States established the federalsystem, also known as federalism. Under federalism,each level of government has sovereignty in some areasand shares powers in other areas. For example: both thefederal and state governments have the power to tax.Only the federal government can declare war.

UNITARY unitary state is a state governed as onesingle unit in which the central government is supremeand any administrative divisions (subnational units)exercise only powers that theircentral government chooses to delegate. The greatmajority of states in the world have a unitary system ofgovernment.

Unitary states are contrasted with federalstates (federations): In a unitary state, subnational unitsare created and abolished and their powers may be

broadened and narrowed, by the central government.Although political powerin unitary states may bedelegated throughdevolution to localgovernment by statute, the central government remainssupreme; it may abrogate the acts of devolvedgovernments or curtail their powers.

A unitary state is sometimes one with only a single,centralised, national tier of government. However,unitary states often also include one or more self-governing regions. The difference between a federationand this kind of unitary state is that in a unitary state theautonomous status of self-governing regions exists bythe sufferance of the central government, and may beunilaterally revoked. While it is common for a federationto be brought into being by agreement between a

number of formally independent states, in a unitary stateself-governing regions are often created through aprocess ofdevolution, where a formerly centralised stateagrees to grant autonomy to a region that was previouslyentirely subordinate. Thus federations are oftenestablished voluntarily from 'below' whereas devolutiongrants self-government from 'above'.

It is often part of the philosophy of a unitary state that,regardless of the actual status of any of its parts, itsentire territory constitutes a single sovereign entityornation-state[citation needed], and that by virtue of this thecentral government exercises sovereignty over the wholeterritory as of right. In a federation, on the other hand,sovereignty is often regarded as residing notionally inthe component states, or as being shared between thesestates and the central government.

CONFEDERATION - in modern political terms is apermanent union of political units for common action inrelation to other units.[1]Usually created by treaty butoften later adopting a common constitution,confederations tend to be established for dealing withcritical issues (such as defense, foreign affairs, or acommon currency), with the central government beingrequired to provide support for all members.

The nature of the relationship among the statesconstituting a confederation varies considerably.Likewise, the relationship between the member states,the central government, and the distribution of powers

among them is highly variable. Some looserconfederations are similar to intergovernmentalorganizations, while tighter confederations mayresemble federations.

In a non-political context, confederation is used todescribe a type of organization which consolidatesauthority from other autonomous (or semi-autonomous)bodies. Examples include sports confederations orconfederations of pan-European trades unions.

In Canada, the word confederationhas an additional,unrelated meaning.[2]"Confederation" refers to the
http://en.wikipedia.org/wiki/Political_unionhttp://en.wikipedia.org/wiki/Federated_statehttp://en.wikipedia.org/wiki/State_(polity)http://en.wikipedia.org/wiki/Central_governmenthttp://en.wikipedia.org/wiki/Administrative_divisionhttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Form_of_governmenthttp://en.wikipedia.org/wiki/Form_of_governmenthttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Political_powerhttp://en.wikipedia.org/wiki/Devolutionhttp://en.wikipedia.org/wiki/Local_governmenthttp://en.wikipedia.org/wiki/Local_governmenthttp://en.wikipedia.org/wiki/Statutehttp://en.wikipedia.org/wiki/Unitary_statehttp://en.wikipedia.org/wiki/Devolutionhttp://en.wikipedia.org/wiki/Nation_statehttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Confederation#cite_note-0http://en.wikipedia.org/wiki/Confederation#cite_note-0http://en.wikipedia.org/wiki/Confederation#cite_note-0http://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Defense_(military)http://en.wikipedia.org/wiki/Foreign_affairshttp://en.wikipedia.org/wiki/Currencyhttp://en.wikipedia.org/wiki/Central_governmenthttp://en.wikipedia.org/wiki/Intergovernmental_organizationhttp://en.wikipedia.org/wiki/Intergovernmental_organizationhttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Europehttp://en.wikipedia.org/wiki/Trades_unionhttp://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Confederation#cite_note-ref_-1http://en.wikipedia.org/wiki/Confederation#cite_note-ref_-1http://en.wikipedia.org/wiki/Confederation#cite_note-ref_-1http://en.wikipedia.org/wiki/Confederation#cite_note-ref_-1http://en.wikipedia.org/wiki/Canadahttp://en.wikipedia.org/wiki/Trades_unionhttp://en.wikipedia.org/wiki/Europehttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Intergovernmental_organizationhttp://en.wikipedia.org/wiki/Intergovernmental_organizationhttp://en.wikipedia.org/wiki/Central_governmenthttp://en.wikipedia.org/wiki/Currencyhttp://en.wikipedia.org/wiki/Foreign_affairshttp://en.wikipedia.org/wiki/Defense_(military)http://en.wikipedia.org/wiki/Constitutionhttp://en.wikipedia.org/wiki/Treatyhttp://en.wikipedia.org/wiki/Confederation#cite_note-0http://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Nation_statehttp://en.wikipedia.org/wiki/Devolutionhttp://en.wikipedia.org/wiki/Unitary_statehttp://en.wikipedia.org/wiki/Statutehttp://en.wikipedia.org/wiki/Local_governmenthttp://en.wikipedia.org/wiki/Local_governmenthttp://en.wikipedia.org/wiki/Devolutionhttp://en.wikipedia.org/wiki/Political_powerhttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Federationhttp://en.wikipedia.org/wiki/Form_of_governmenthttp://en.wikipedia.org/wiki/Form_of_governmenthttp://en.wikipedia.org/wiki/Governmenthttp://en.wikipedia.org/wiki/Administrative_divisionhttp://en.wikipedia.org/wiki/Central_governmenthttp://en.wikipedia.org/wiki/State_(polity)http://en.wikipedia.org/wiki/Federated_statehttp://en.wikipedia.org/wiki/Political_union


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process of (or the event of) establishing or joining theCanadian federal state.

ZOOMZAT, INC. V PEOPLE

- Executive Order No. 205 provides that only the NTCcould grant certificates of authority to cable televisionooperators.

- There is no law specifically authorizing the LGUs togrant franchises to operated CATV system. Whateverauthority the LGUs had before, the same had beenwithdrawn when President Marcos issued PD 1512.

- It is clear that in the absence of constitutional orlegislative authorization, municipalities have no power togrant franchises.

Notes: First you should look at the constitution, has thispower been granted. Next you look at the charter, hasthis power been granted to the LGU concerned and ofcourse the Local Government Code, has this powerbeen granted to the Local Government Units andfourthly, has there been a law that granted that power tothe Local government entities. If none, then the LGU

cannot exercise that power.

LOCAL AUTONOMY, DECENTRALIZATION,DEVOLUTION, AND DECONCENTRATION

- Art. 2 sec 25 (Consti) The State shall ensure theautonomy of local governments.

- Art. 10, sec. 2 (Consti) The territorial and politicalsubdivisions shall enjoy local autonomy.

- Sec. 2, LGC (a) It is hereby declared the policy of theState that the territorial and political subdivisions of theState shall enjoy genuine and meaningful localautonomy to enable them to attain their fullestdevelopment as self-reliant communities and make themmore effective partners in the attainment of nationalgoals. Toward this end, the State shall provide for amore responsive and accountable local governmentstructure instituted through a system of decentralizationwhereby local government units shall be given morepowers, authority, responsibilities, and resources. Theprocess of decentralization shall proceed from thenational government to the local government units.

LIMBONA CASE

- Decentralization of power, on the other hand, involvesan abdication of political power in favor of localgovernments units declared to be autonomous. In thatcase, the autonomous government is free to chart itsown destiny and shape its future with minimumintervention from central authorities. According to aconstitutional author, decentralization of power amountsto a constitutional author, decentralization of poweramounts to self-immolation, since in that even, theautonomous government becomes accountable not tothe central authorities but to its constituency.

LOCAL AUTONOMY

Limbona V Mangelin: Now, autonomy is eitherdecentralization of administration or decentralization ofpower.

DECENTRALIZATION OF ADMINISTRATION itinvolves the delegation of administrative powers topolitical subdivisions in order to broaden the base ofgovernment power and in the process, make localgovernments more responsive and accountable andensure their fullest development as self-reliantcommunities and make them more effective partners inthe pursuit of national development and social progress.

DECENTRALIZATION OF POWER - involves theabdication of political power in favor of local governmentunits declared to be autonomous. In that case, theautonomous government is free to chart its own destinyand shape its future with minimum intervention fromcentral authorities. Decentralization accounts for self-immolation since in that event, the autonomousgovernment becomes accountable not to the centralauthorities but to its constituency.

Autonomous Region

ART. X. SECTION 15 (CONSTI). There shall be createdautonomous regions in Muslim Mindanao and in theCordilleras consisting of provinces, cities, municipalities,and geographical areas sharing common and distinctivehistorical and cultural heritage, economic and socialstructures, and other relevant characteristics within theframework of this Constitution and the nationalsovereignty as well as territorial integrity of the Republicof the Philippines.

SECTION 16. The President shall exercise generalsupervision over autonomous regions to ensure that thelaws are faithfully executed.

SECTION 20. Within its territorial jurisdiction and subjectto the provisions of this Constitution and national laws,the organic act of autonomous regions shall provide forlegislative 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 culturalheritage; and

(9) Such other matters as may be authorized by law forthe promotion of the general welfare of the people of theregion.

ADMINISTRATIVE POWERS OR POLITICALPOWERS?

What is the kind of decentralization adopted or practicedin the Phils?

Pimentel V. Aguirre

Under the Philippine concept of local autonomy, thenational government has not completely relinquished allits powers over local government units includingautonomous regions. Only administrative powers overlocal affairs are delegated to political subdivisions andstill policy set in with president and congress.

DECENTRALIZATION

- A system whereby local government units shall begiven more powers, authority, responsibilities andresources. (Sec. 2 LGC)

- The process of decentralization shall proceed from theNational government to the local government units.

DEVOLUTION


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- the act by which the National government conferspower and authority upon various local governmentsunits to perform specific functions and responsibilities[sec. 17 (4)(e)]

- it shall include the transfer to local government unitsthe records, equipment, and other assets and personnelof national agencies and offices corresponding to thedevolved powers, functions, and responsibilities.

- Notes: 1992 EO 543 issued by President Aquino

providing for the infrastructure for devolution. There isinfrastructure protection, security of tenure, etc. Atpresent, we have local colleges, city colleges, local daycare centers. Local chief executive directly appoints thelocal accountant and other positions. But of course sincethere is devolution, it includes the funds, instead of thenational government giving salary, now, it is the LocalGovernment. In return, we are given fiscal autonomyalso to be able to respond to the devolution process.Although the Dept. of Finance stil l makes theappointment to the local treasurer yet all other positionsis directly appointed by the local chief executive.

DECONCENTRATION

- the process of transferring authority and power to theappropriate regional offices or field offices of nationalagencies of offices whose major functionsare notdevolved to local government units. (sec. 528 LGC)

Local Autonomy degree of self-determinationexercised by LGU vis--vis the central government.

- to attain local autonomy, we establish the system calleddecentralization, which is actualized through the processcalled devolution.

TENSION

- The affirmation that the Philippines is still a Unitarygovernment and the guarantee that LGUs shall enjoylocal autonomy create a tension

MAGTAJAS CASE:

- The rationale of the requirement that the ordinancesshould not contravene a statue is obvious. Municipalgovernments are only agents of the nationalgovernment. Local councils exercise only delegated

legislative powers conferred on them by Congress as thenational law making body. The delegate cannot besuperior to the principal or exercise powers higher thanthose of the latter.

- this basic relationship between the national legislatureand the local government units has not been enfeebledby the new provisions in the Constitution strengtheningthe policy of local autonomy. Without meaning to detractfrom that policy, Congress retains control of the localgovernment units although in significantly reduceddegree now than under our previous Constitutions. Thepower to create still includes the, power to destroy. Thepower to grant still includes the power to withhold orrecall. True, there are some notable innovations in theConstitution, like the direct conferment on the local

government units of the power to tax (Sec. 5, Art. X),which cannot now be withdrawn by mere statute. By andlarge, however, the national legislature is, still theprincipal of local government units, which cannot defy itswill or modify or violate it. Ours is stilla unitary form ofgovernment, not a federal state. Being so, any form ofautonomy granted to local governments will necessarilybe limited and confined within the extent allowed by thecentral authority.

SAN JUAN CASE

- We have to obey the clear mandate on local autonomy.Where a law is capable of two interpretations, one infavor of centralized power in Malacanang and the otherbeneficial to local autonomy, the scales must beweighed in favor of autonomy.

- When the CSC interpreted the recommending power ofthe Provincial Governor as purely directory, it wentagainst the letter and spirit of the constitutionalprovisions on local autonomy.

Syllabus:STATUTORY CONSTRUCTION ANDINTERPRETATION; WHERE THE LAW IS CAPABLEOF TWO INTERPRETATIONS, ONE IN FAVOR OFCENTRALIZED POWER IN MALACAANG AND THEOTHER BENEFICIAL TO LOCAL AUTONOMY, THELATTER PREVAILS. Where a law is capable of twointerpretations, one in favor of centralized power inMalacaang and the other beneficial to local autonomy,the scales must be weighed in favor of autonomy.

CONSTITUTIONAL LAW; LOCAL AUTONOMY;PRESIDENTIAL CONTROL DISTINGUISHED FROMSUPERVISION. The 1935 Constitution had nospecific article on local autonomy. However, in

distinguishing between presidential control andsupervision "The President shall have control of all theexecutive departments, bureaus, or offices, exercisegeneral supervision over all local governments as maybe provided by law, and take care that the laws befaithfully executed." (Sec. 11, Article VII, 1935Constitution) the Constitution clearly limited theexecutive power over local governments to "generalsupervision . . . as may be provided by law." ThePresident controlsthe executive departments. He has nosuch power over local governments. He hasonly supervisionand that supervision is both generalandcircumscribed by statute. In Mondano v. Silvosa, (97Phil. 143 [1955]),supervision goes no further thanoverseeing or the power or authority of an officer to seethat subordinate officers perform their duties. If the latter

fail or neglect to fulfill them the former may take suchaction or step as prescribed by law to make themperform their duties. (Ibid, pp. 147-148) Control, on theother hand, 'means the power of an officer to alter ormodify or nullify or set aside what a subordinate haddone in the performance of their duties and to substitutethe judgment of the former for that of the latter.' It wouldfollow then, according to the present Chief Justice, to goback to the Hebron opinion, that the President had toabide by the then provisions of the RevisedAdministrative Code on suspension and removal ofmunicipal officials, there being no power of control thathe could rightfully exercise, the law clearly specifying theprocedure by which such disciplinary action would betaken.

RIGHT RESERVING TO THE DEPARTMENT OFBUDGET AND MANAGEMENT TO FILL UPVACANCIES;ULTRA VIRES. The right given by LocalBudget Circular No. 31 which states: "Sec. 6.0 TheDBM reserves the right to fill up any existing vacancywhere none of the nominees of the local chief executivemeet the prescribed requirements" is ultra viresand is,accordingly, set aside. The DBM may appoint only fromthe list of qualified recommendees nominated by theGovernor. If none is qualified, he must return the list ofnominees to the Governor explaining why no one meetsthe legal requirements and ask for new recommendeeswho have the necessary eligibilities and qualifications.

LAGUNA LAKE DEVT AUTHORITY

- The power of the Authority to grant permits forfishpens, fishcages and other aqua culture structures isfor the purpose of effectively regulating and monitoringactivities in the Laguna de Bay region. It does partake ofthe nature of police power which is the most pervasive,the lease limitable and the most demanding of all Statepowers including the power of taxation. Accordingly, thecharter of the Authority which embodies a valid exerciseof police power should prevail over the Local


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Government Code of 1991 on matters affecting Lagunade Bay.

STATUTORY CONSTRUCTION; CONFLICT BETWEENA GENERAL LAW AND A SPECIAL LAW; RULE;APPLICATION IN CASE AT BAR. It has to beconceded that the charter ofthe Laguna Lake Development Authority constitutes aspecial law. Republic Act No. 7160, the LocalGovernment Code of 1991, is a general law. It is basic instatutory construction that the enactment of a laterlegislation which is a general law cannot be construed tohave repealed a special law. It is a well settled rule inthis jurisdiction that "a special statute, provided for aparticular case or class of cases, is not repealed by asubsequent statute, general in its terms, provisions andapplication, unless the intent to repeal or alter ismanifest, although the terms of the general law arebroad enough to include the cases embraced in thespecial law. Where there is a conflict between a generallaw and a special statute, the special statute shouldprevail since it evinces the legislative intent more clearlythan the general statute. The special law is to be takenas an exception to the general law in the absence ofspecial circumstances forcing a contrary conclusion. Thisis because implied repeals are not favored and as muchas possible, effect must be given to all enactments of the

legislature. A special law cannot be repealed, amendedor altered by a subsequent general law by mereimplication. Thus, it has to be concluded that the charterof the Authority should prevail over the LocalGovernment Code of 1991.

BAR EXAM:

A law was passed calling for the abolition of barangays.Is the law unconstitutional? Why or why not?

TERRITORIAL AND POLITICAL SUBDIVISIONS:

Regular LGU: Provinces, cities, municipalities,barangays

Autonomous Regions: Muslim Mindanao, Cordilleras

- Art. X, sec. 1 (Constitution) The territorial and politicalsubdivisions of the Republic of the Philippines are theprovinces, cities, municipalities, and barangays. Thereshall be autonomous regions in Muslim Mindanao andthe Cordilleras as hereinafter provided.

Special LGU: Special Metropolitan Political Subdivision

Art. X, Sec. 11 (Consti) The Congress may, by law,create special metropolitan political subdivisions, subjectto a plebiscite as set forth in Section 10 hereof. Thecomponent cities and municipalities shall retain theirbasic autonomy and shall be entitled to their own localexecutives and legislative assemblies. The jurisdiction ofthe metropolitan authority that will hereby be createdshall be limited to basic services requiring coordination.

Section 1 does not create local government units. It onlyconstitutionally ensures the existence of these territorialand political units in our structure (Bernas). Hence, a lawcannot, for example, abolish barangays.

TAGALOG TERMS:

CITY Sangguniang Panglungsod

MUNICIPALITY Sangguniang Bayan

PROVINCE Sangguniang Panlalawigan

QUESTIONS:

You are asked about the extent of the powers of aprovince over a city which is geographically situated inthe same province. How will you respond?

In particular, may the province set aside an ordinance ofa city that is geographically situated in the province?

What about the EO of the mayor of that city, may they beset aside by the Governor?

May the resident of that city run for governer?

ART. X,SECTION 12 (CONSTI). Cities that are highlyurbanized, as determined by law, and component citieswhose charters prohibit their voters from voting forprovincial elective officials, shall be independent of theprovince. The voters of component cities within aprovince, whose charters contain no such prohibition,shall not be deprived of their right to vote for electiveprovincial officials.

KINDS OF CITIES

Component City - inhabitants can vote for provincialcandidates and can run for provincial elective posts =

under the supervisory power of the province. Ordinancesinactive is reviewed by the Province.

Independent Component City independent in thesense that the charter prohibits the voters from voting forprovincial elective posts = outside the supervisory powerof province (Abella v Comelec); income does not matter;something to do with the charter in relation to whether ornot the voters can vote for provincial candidates; even ifthe charter of Ormoc city mentions of prohibitions tovote, it shall include the idea of prohibition to run also forprovincial elective posts.

Highly urbanized City independent from province byreason of status = outside the supervisory power of theprovince; income matters (P50M for the last 2 years); ifthe city becomes highly urbanized, it only involves theprocess of conversion which means it does not requirecongressional act, entails application on the part of thecity and submit that to the office of the president ordersthe conversion.

ABELLA V COMELEC

- "the phrase 'shall not be qualified and entitled to vote inthe election of the provincial governor and the membersof the provincial board of the Province of Leyte' connotestwo prohibitions one, from running for and the second,from voting for any provincial elective official."

QUERY:

A highly urbanized city is independent of the provincewhere it is geographically located. Consequently, itsresidents cannot run for provincial posts and cannot aswell vote for provincial candidates. Mandaue City ofCebu is a highly urbanized City, but its residents can stillrun for provincial post and can vote for provincialcandidate? How was this possible?

CAN THERE BE A HIGHLY URBANIZED CITY THAT

STILL VOTES FOR PROVINCIAL OFFICIALS?

SEC. 452 - HIGLY URBANIZED CITY

a) Cities with a minimum population of two hundredthousand (200,000) inhabitants as certified by theNational Statistics Office, and within the latest annualincome of at least Fifty Million Pesos (P50,000,000.00)based on 1991 constant prices, as certified by the citytreasurer, shall be classified as highly urbanized cities.

(b) Cities which do not meet above requirements shall beconsidered component cities of the province in which


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they are geographically located. If a component city islocated within the boundaries of two (2) or moreprovinces, such city shall be considered a component ofthe province of which it used to be a municipality.

(c) Qualified voters of highly urbanized cities shallremain excluded from voting for elective provincialofficials.

Unless otherwise provided in the Constitution or thisCode, qualified voters of independent component cities

shall be governed by their respective charters, asamended, on the participation of voters in provincialelections.

Qualified voters of cities who acquired the right to votefor elective provincial officials prior to the classification ofsaid cities as highly-urbanized after the ratification of theConstitution and before the effectivity of this Code, shallcontinue to exercise such right. (Vested Right theory)

SPECIAL METROPOLITAN POLITICAL SUBDIVISIONS

- created by congress and requires plebiscite

- the component cities and municipalities shall retaintheir basic autonomy and shall be entitled to their ownlocal executives and legislative assemblies

- jurisdiction is limited to basic services requiringcoordination.

MMDA V BEL-AIR

- MMDA is not a local government unit. It is not even aspecial metropolitan political subdivision because aplebiscite is needed and it is still to be created bycongress as found in Sec. 11 art. X of Constitution.

- The Court held that the MMDA does not have thecapacity to exercise police power. Police power isprimarily lodged in the National Legislature. However,police power may be delegated to government units.Petitioner herein is a development authority and not apolitical government unit. Therefore, the MMDA cannotexercise police power because it cannot be delegated tothem. It is not a legislative unit of the government.Republic Act No. 7924 does not empower the MMDA toenact ordinances, approve resolutions and appropriatefunds for the general welfare of the inhabitants of Manila.There is no syllable in the said act that grants MMDApolice power.

It is an agency created for the purpose of laying down

policies and coordinating with various nationalgovernment agencies, peoples organizations, non-governmental organizations and the private sector forthe efficient and expeditious delivery of basic services inthe vast metropolitan area.

DAY 4

LOOSE FEDERATION

SEC. 13, ART. X, CONSTITUTION LGU may groupthemselves their efforts, services, and resources forpurposes commonly beneficial to them in accordancewith law.

HOW?

1. Through Ordinances

- 3 readings

2. Upon approval by the Sanggunian concerned, afterlawful hearing, contribute funds and assets through MOA(Sec. 33, LGC)

LGC Section 33.Cooperative Undertakings AmongLocal Government Units. - Local government units may,

through appropriate ordinances, group themselves,consolidate, or coordinate their efforts, services, andresources for purposes commonly beneficial to them. Insupport of such undertakings, the local government unitsinvolved may, upon approval by the sanggunianconcerned after a public hearing conducted for thepurpose, contribute funds, real estate, equipment, andother kinds of property and appoint or assign personnelunder such terms and conditions as may be agreedupon by the participating local units through Memorandaof Agreement.

- The resultant consolidation would not be a newcorporate body, and therefore, it does not have apersonality. It cannot act as if it is a person who can actwith juridical effects.

- What are consolidated are not corporate personalitiesbut only efforts, services and resource for purposescommonly beneficial to them in accordance with the law.

REGIONAL DEVELOPMENT COUNCILS

- To be established by the President and does not needauthorization from congress

- composed of local government officials, regional headsof departments and other government offices andrepresentatives of NGOs within the region.

- We need that for purposes of coordinating, assessing,evaluating and identifying and later on implementingregional developments in the locality usually sponsoredby the national government.

- Identifies possible projects in the region to be fundedby the national government.

THE LGC OF 1991

- Constitutionally mandated (Art. X, Sec. 3, Consti)

CONSTI ART. X, Section 3. The Congress shall enact alocal government code which shall provide for a moreresponsive and accountable local government structureinstituted through a system of decentralization witheffective mechanisms of recall, initiative, andreferendum, allocate among the different localgovernment units their powers, responsibilities, andresources, and provide for the qualifications, election,appointment and removal, term, salaries, powers andfunctions and duties of local officials, and all othermatters relating to the organization and operation of thelocal units.

- Mandatory contents of the Code:

o Responsive and accountable structureo System of decentralizationo Mechanisms of recall, initiative and referendumo Allocation of powers, responsibilities and

functions of LGUso Qualifications, elections, etc. of elective officials

SOURCES OF THE CODE

- the LGC of 1983 (BP 337)

- Local tax code (PD 201)

- The Real Property Tax Code (PD 464)

- Barangay Justice Law (PD 1508)

SCOPE OF APPLICATION OF THE CODE

- The code shall apply to: provinces, cities,municipalities, barangays, and other politicalsubdivisions created by law


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- It shall also apply to officials and offices of the nationalgovernment as provided by the Code.

What about provinces, cities, municipalities andbarangays in the Autonomous Regions (ARs)?

- LGC applies until AR has its own code.

obviously, it will apply to provinces, cities, municipalities,

barangays and other political subdivisions; and it canalso apply to officials and offices in the nationalgovernment in so far as they are mentioned in the Code.What about those LGUs supposedly belonging to anautonomous region? Yes this will apply until theautonomous region has its own organic act.

RULES OF INTERPRETATION

- Liberal interpretation in favor of LGU, Devolution ofpowers, and General Welfare ordinances.

- In case of doubt as to existence of power, resolved infavor of LGU. (vs. residual power doctrine)

- But, tax ordinances are construed strictly against theLGU and liberally in favor of taxpayer. (tax exemption interpreted against the one claiming for tax exemptionand liberally in favor of the government)

- Where no law or jurisprudence applies, customs ortraditions in the locality may be applied to resolvecontroversies.

EFFECTIVITY OF LGC

- January 1, 1992

- Effects of Effectivity:

(1) All tax ordinances of revenue measures of LGUsenacted before the LGC of 1991 shall continue to be inforce and effect after the effectivity of the LGC, unlessamended by the Sanggunian or inconsistent with orinconsistent with, or in violation of, the provisions of thisCode. sec. 529 LGC

- All general and special laws, acts, city charters,decrees, Eos, proclamations, and admin regulations (orparts thereof) that are inconsistent with any of theprovisions of the Code are repealed or modifiedaccordingly sec. 534 (f) LGC

- Note: Implied Repeal is not favoured (LLDA case)STATUTORY CONSTRUCTION; CONFLICT BETWEENA GENERAL LAW AND A SPECIAL LAW; RULE;APPLICATION IN CASE AT BAR. It has to beconceded that the charter ofthe Laguna Lake Development Authority constitutes aspecial law. Republic Act No. 7160, the LocalGovernment Code of 1991, is a general law. It is basic instatutory construction that the enactment of a laterlegislation which is a general law cannot be construed tohave repealed a special law. It is a well settled rule inthis jurisdiction that "a special statute, provided for aparticular case or class of cases, is not repealed by asubsequent statute, general in its terms, provisions andapplication, unless the intent to repeal or alter is

manifest, although the terms of the general law arebroad enough to include the cases embraced in thespecial law. Where there is a conflict between a generallaw and a special statute, the special statute shouldprevail since it evinces the legislative intent more clearlythan the general statute. The special law is to be takenas an exception to the general law in the absence ofspecial circumstances forcing a contrary conclusion. Thisis because implied repeals are not favored and as muchas possible, effect must be given to all enactments of thelegislature. A special law cannot be repealed, amendedor altered by a subsequent general law by mereimplication. Thus, it has to be concluded that the charter

of the Authority should prevail over the LocalGovernment Code of 1991.

POLITICAL LAW; LOCAL GOVERNMENT; REPUBLICACT NO. 7160; DOES NOT CONTAIN ANY EXPRESSPROVISION CATEGORICALLY REPEALING THECHARTER OFTHE LAGUNA LAKE DEVELOPMENT AUTHORITY. We hold that the provisions of Republic Act No. 7160 donot necessarily repeal the aforementioned laws creatingthe LagunaLake Development Authority and granting thelatter water rights authority over Laguna de Bay andthe lake region. The Local Government Code of 1991does not contain any express provision whichcategorically expressly repeal the charter ofthe Authority. It has to be conceded that there was nointent on the part of the legislature to repeal Republic ActNo. 4850 and its amendments. The repeal of lawsshould be made clear and expressed.

LLDA HAS EXCLUSIVE JURISDICTION TO ISSUEPERMITS FOR THE ENJOYMENT OF FISHERYPRIVILEGES IN LAGUNA DE BAY TO THEEXCLUSION OF MUNICIPALITIES SITUATEDTHEREIN AND THE AUTHORITY TO EXERCISE SUCHPOWERS AS ARE BY ITS CHARTER VESTED ON IT. This Court holds that Section 149 of Republic Act No.

7160, otherwise known as the Local Government Codeof 1991, has not repealed the provisions of the charter ofthe Laguna Lake Development Authority, Republic ActNo. 4850, as amended. Thus, the Authority has theexclusive jurisdiction to issue permits for the enjoymentof fishery privileges in Laguna de Bay to the exclusion ofmunicipalities situated therein and the authority toexercise such powers as are by its charter vested on it.Removal from the Authorityof the aforesaidlicensing authority will render nugatory its avowedpurpose of protecting and developingthe LagunaLake Region. Otherwise stated, theabrogation of this power would render useless its reasonfor being and will in effect denigrate, if not abolish,the Laguna Lake Development Authority. This, the LocalGovernment Code of 1991 had never intended to do.

CREATION, CONVERSION, DIVISION, MERGER,ABOLITION, SUBSTANTIAL CHANGE OF BOUNDARY

A. Regular Political Subdivisions

B. Autonomous Region

C. Special Metropolitan Political Subdivisions

D. Beginning of Corporate Existence

GENERAL REQUIREMENTS

- law

- Plebiscite

- Compliance with criteria on income, Land and/orPopulation

Income is constant in the creation of cities,municipalities and provinces but not in the case ofbarangays. In the case of Navarro vs. ExecutiveSecretary Ermita (2010), which involved the DinagatIsland, they argue that they have complied with thepopulation requirement because when the Province of

Surigao conducted a survey of the population, theyinvited some officers of the NSO to join them in thatstudy. However, the result of the study was not certifiedby the office itself, the NSO. And so, when it reached theSC. It was not honored because the requirementaccording to the Code is the population must have beencertified by the NSO. It is not sufficient that the NSOofficials participated in the determination of thepopulation compliance.

LEAGUE OF CITIES CASES,


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Facts:

- 11th Congress (1998-2001) 57 bills pendingconversion from municipalities to cities; approved 33 billsonly

- 12th Congress (2001-2004) RA 9009 (2001)increased income requirement from P20M to P100Mannually.

- 13th Congress (2004-2007) 16 of the 24 bills were

approved and became laws, with exception provision.Legal issues:

- Are the 16 Cityhood laws unconstitutional in the light ofthe ff. provision in the constitution? Sec. 10, Art. X. Noprovince, city, municipality, or barangay shall be created,divided, merged, abolished or its boundary substantiallyaltered, except in accordance with the criteriaestablished in the local government code, and subject toapproval by a majority of the votes cast in a plebiscite inthe political units directly affected. (emphasis added)

LEAGUE OF CITIES V COMELEC 2008

- SEC. 10, ART. X of the 1987 constitution

- the constitution is clear. The creation of localgovernment units must follow the criteria established inthe Local Government Code and not in any other law.

- No other law, not even the charter of the city, cangovern such creation. The clear intent of the Constitutionis to insure that the creation of cities and other politicalunits must follow the same uniform, non-discriminatory criteria found solely in the LocalGovernment Code. Any derogation or deviation fromthe criteria prescribed in the Local Government Codeviolates Section 10, Article X of the Constitution.

2008 LEAGE OF CITIES CASE REVERSED ON DEC.21, 2009

- These criteria need not be embodied in the LocalGovernment Code, albeit this code is the ideal repositoryto ensure, as much as possible, the element ofuniformity. Congress can even, after making acodification, enact an amendatory law, adding to theexisting layers of indicators earlier codified, just asefficaciously as it may reduce the same.

- The amendatory RA 9009 upped the already codifiedincome requirement from P20M to P100M. At the end of

the day, the passage of amendatory laws is no differentfrom the enactment of laws,i.e., the cityhood lawsspecifically exempting a particular political subdivisionfrom the criteria earlier mentioned. Congress, in enactingthe exempting law/s, effectively decreased the alreadycodified indicators.

- Petitioners theory that Congress must provide thecriteria solely in the LGC and not in any other law strikesthe Court as illogical.

- it is startling however that petitioners do not questionthe constitutionality of RA 9009, as they in fact use saidlaw as an argument for the alleged unconstitutionality ofthe cityhood law.

LEAGUE OF CITIES (AUG. 24, 2010)

- Granted the motion of League of Cities of thePhilippines and reinstated its November 18, 2008decision declaring the 16 cityhood as unconstitutional.

LEAGUE OF CITIES (FEB. 15, 2011; APRIL 12, 2011)

- G

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