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SYLLABUS PART 1: LOCAL GOVERNMENTS; CREATION, MERGER, ABOLITION AND POWERS. Creation of Local Government Units: Patricio Tan et al. v. COMELEC Facts: Prompted by the enactment of BP 885 (Act Creating Province of Negros del Norte), petitioners who are residents of the Province of Negros Occidental filed with this Court a case for Prohibition for the purpose of stopping Comelec from conducting the plebiscite which, pursuant to and in implementation of the law. Petitioners contend that BP 885 is unconstitutional and it is not in complete accord with the LGC as in Article XI, Section 3 of our Constitution regarding the requirements in land area and estimated annual income. Petitioners also contend that a number of voters were excluded since the plebiscite was confined only to the inhabitants of three cities and eight municipalities in Negros del Norte, to the exclusion of the voters of the Province of Negros Occidental.. Comelec contends that the law is not unconstitutional. They claim that BP 885 does not infringe the Constitution because the requisites of the LGC have been complied with. They submit that the case has now become moot and academic with the proclamation of Negros del Norte as during the plebiscite, 164,734 were in favor of the creation of the new province while only 30,400 were against it. Issue: WON the province complied with the plebiscite requirement Held: No Ratio: The more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution. It can be plainly seen that the constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte. We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected. The court reversed the ruling in Paredes vs Executive Secretary (same issue but concerns barangay). Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

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Issue: WON the new Province of Negros del Norte complied with the requirements as to land area Held: No Ratio: The original parliamentary bill no 3644 expressly declared that the new province contained an area of 285,656 ha. More or less. However, when Parliamentary bill was enacted into BP 885, the province now comprised a territory of 4,019.95 square kilometers. The certification of the provincial treasurer also indicates that there the province comprised of a lesser area. Although the certification stated that the land area of the municipality of Don Salvador was not available, it appeared that such is only 80.2 kilometers. This area if added to 2,685.2 square kilometers will result in approximately an area of only 2,765.4 square kilometers. The last sentence of the first paragraph of Section 197 LGC 1 (requirements) is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly, reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent."Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute. Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" ---- the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters, It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature. The sense in which the words are used furnished the rule of construction. The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored. Teehankee, concurring: The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected. " It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule. The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be
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SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income.

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enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials. Torralba v. Mun. of Sibagat (1987) Facts: BP 56, creating the Municipality of Sibagat, Province of Agusan del Sur, is being challenged as violative of Section 3 Article XI of the 1973 Constitution2. Petitioners are residents and taxpayers of Butuan City, with petitioner, Clementino Torralba, being a member of the Sangguniang Panglunsod of the same City. Respondent municipal officers are the local public officials of the new Municipality. According to the petitioners, the Local Government Code must first be enacted to determine the criteria for the creation, division, merger, abolition, or substantial alteration of the boundary of any province, city, municipality, or barrio; and that since no Local Government Code had as yet been enacted as of the date BP 56 was passed, that statute could not have possibly complied with any criteria when respondent Municipality was created, hence, it is null and void. Issue: WON BP 56 is invalid Held: No Ratio: The absence of the Local Government Code at the time of its enactment did not curtail nor was it intended to cripple legislative competence to create municipal corporations. Section 3, Article XI of the 1973 Constitution does not proscribe nor prohibit the modification of territorial and political subdivisions before the enactment of the LGC. It contains no requirement that the LGC a condition sine qua non for the creation of a municipality, in much the same way that the creation of a new municipality does not preclude the enactment of a LGC. What the Constitutional provision means is that once said Code is enacted, the creation, modification or dissolution of local government units should conform with the criteria thus laid down. In the interregnum, before the enactment of such Code, the legislative power remains plenary except that the creation of the new local government unit should be approved by the people concerned in a plebiscite called for the purpose. The creation of the new Municipality of Sibagat conformed to said requisite. A plebiscite was conducted and the people of the unit/units affected endorsed and approved the creation of the new local government unit. The officials of the new Municipality have effectively taken their oaths of office and are performing their functions. A de jure entity has thus been created. It is a long-recognized principle that the power to create a municipal corporation is essentially legislative in nature. In the absence of any constitutional limitations, a legislative body may create any corporation it deems essential for the more efficient administration of government.The creation of the new Municipality of Sibagat was a valid exercise of legislative power then vested by the 1973 Constitution in the Interim Batasang Pambansa. There are significant differences, however, in Tan vs Comelec and in this case: in the Tan case, the LGC already existed at the time that the challenged statute was enacted on 3 December 1985; not so in the case at bar. Secondly, BP 885 in the Tan case confined the plebiscite to the "proposed new province" to the exclusion of the voters in the remaining areas, in contravention of the Constitutional mandate and of the LGC that the plebiscite should be held "in the unit or units affected." In contrast, BP 56 specifically provides for a plebiscite "in the area or areas affected." Thirdly, in the Tan case, even the requisite area for the creation of a new province was not complied with in BP Blg. 885. No such issue in the creation of the new municipality has been raised
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"Sec. 3. No province, city, municipality, or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the Local Government Code, and subject to the approval by a majority of the votes cast in a plebiscite in the unit or units affected."

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here. And lastly, "indecent haste" attended the enactment of BP Blg. 885 and the holding of the plebiscite thereafter in the Tan case; on the other hand, BP 56 creating the Municipality of Sibagat, was enacted in the normal course of legislation, and the plebiscite was held within the period specified in that law. Province of Shariff Kabunsuan Bai Sema v. Comelec (2008) Facts: The Ordinance appended to the 1987 Constitution of the Philippines apportioned 2 legislative districts for Maguindanao. The first consists of Cotabato City and 8 municipalities. Maguindanao forms part of the ARMM, created under its Organic Act, RA 6734, as amended by RA 9054. Cotabato City, as part of Maguindanaos first legislative district, is not part of the ARMM but of Region XII (having voted against its inclusion in November 1989 plebiscite). On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article VI of RA 9054, enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the 8 municipalities in the first district of Maguindanao. Later, 3 new municipalities were carved out of the original 9, constituting Shariff Kabunsuan, resulting to total of 11. Cotabato City is not part of Maguindanao. Maguindanao voters ratified Shariff Kabunsuans creation in 29 October 2006 plebiscite. On 6 February 2007, Cotabato City passed Board Resolution No. 3999, requesting the COMELEC to clarify the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province under MMA Act 201. The COMELEC issued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. Resolution No. 07-0407, adopted the COMELECs Law Department recommendation under a Memorandum dated 27 February 2007. The COMELEC issued on 29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district is composed only of Cotabato City because of the enactment of MMA Act 201. On 10 May 2007, the COMELEC issued Resolution No. 7902 (subject of these cases), amending Resolution No. 07-0407 by renaming the legislative district in question as Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City). Meanwhile, the Shariff Kabunsuan creation plebiscite was supervised and officiated by the COMELEC pursuant to Resolution No. 7727. (Option Votes: In favor for creation 285,372; Against the creation 8,802) The following municipalities seceded from Maguindanao and formed the new province. All of them were from the first legislative district of Maguindanao. (Barira, Buldon, Datu Blah T. Sinsuat, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, Upi) Kabuntalan was chosen as the capital of the new province. The province was the first to be created under Republic Act No. 9054 or the Expanded ARMM law. Sandra Sema questioned COMELEC Resolution 7902 which combined Shariff Kabunsuan and Cotabato City into a single legislative district during the Philippine general election, 2007. Sema lost to incumbent Congress representative of the Shariff Kabunsuan and Cotabato district, Didagen Dilangalen. Issue: Whether the ARMM Regional Assembly Can Create the Province of Shariff Kabunsuan Ratio: The creation of any of the four local government units - province, city, municipality or barangay - must comply with three conditions. First, the creation of a local government unit must follow the criteria fixed in the Local Government Code. Second, such creation must not conflict with any provision of the Constitution. Third, there must be a plebiscite in the political units affected. There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within their jurisdiction, subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section 10, Article X of the Constitution. However, under the Local Government Code, "only x x x an Act of Congress" can create provinces, cities or municipalities.

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Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities, municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies. In the present case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and barangays conflicts with any provision of the Constitution. There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another matter. Section 5 (3), Article VI of the Constitution provides, "Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative" in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution provides, "Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member x x x." Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative district because once the city's population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city inherently involves the power to create a legislative district. Legislative Districts are Created or Reapportioned Only by an Act of Congress Under the present Constitution, as well as in past Constitutions, the power to increase the allowable membership in the House of Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides that Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot change the membership of the superior legislative body. The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative districts for Congress. On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, "The Regional Assembly may exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x." Since the ARMM Regional Assembly has no legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the "next national elections" from the effectivity of the law. Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of Representatives, is a national official. It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office. To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMM's territorial jurisdiction. This violates Section 20, Article X of the

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Constitution which expressly limits the coverage of the Regional Assembly's legislative powers "[w]ithin its territorial jurisdiction x x x." The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress' power to create or reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for "creati[ng] congressional districts without the apportionment provided in the Constitution." The Court answered in the negative. Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province for "each province shall have at least one member" in the House of Representatives; or (b) by direct creation of several representative districts within a province. The requirements concerning the apportionment of representative districts and the territory thereof refer only to the second method of creation of representative districts, and do not apply to those incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an Act of Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment. Second. Sema's theory also undermines the composition and independence of the House of Representatives. Under Section 19,Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum population of 250,000. The following scenarios thus become distinct possibilities: An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a national law provides otherwise); (2) The proportional representation in the House of Representatives based on one representative for at least every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and (3) Representatives from the ARMM provinces can become the majority in the House of Representatives through the ARMM Regional Assembly's continuous creation of provinces or cities within the ARMM. Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy,[37] nor Congress in enacting RA 9054, envisioned or intended these disastrous consequences that certainly would wreck the tri-branch system of government under our Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM Regional Assembly recognizes this. The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the Constitution which states, "[A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least one Member," refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the actual membership of the House of Representatives, an increase that only Congress can decide. Incidentally, in the present 14th Congress, there are 219[38] district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces. The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such

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municipalities and barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an appropriate case. In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the Constitution mandates that every province shall have a legislative district. Moreover, the ARMM Regional Assembly cannot enact a law creating a national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void. Resolution No. 7902 Complies with the Constitution Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 1 of the Ordinance appended to the Constitution. The Prov. Of North Cotabato et al v. Government (2008) Facts: On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations.[1] The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from signing the same. The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998. The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement of the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-going.[2] Early on, however, it was evident that there was not going to be any smooth sailing in the GRPMILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada declared and carried out an "all-out-war" against the MILF. When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP. The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions. Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the

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outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply agreed "that the same be discussed further by the Parties in their next meeting." A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was followed by the Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002 to 2003. Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.[6] In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned, was set to be signed last August 5, 2008. Held: The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution. Ratio: The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for judicial review. As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David v. Macapagal-Arroyo. Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court finds that the present petitions provide an exception to the "moot and academic" principle in view of (a) the grave violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review. The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original. The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents' action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes. The people's right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law. The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement. An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a species of these public rights. At least three pertinent laws animate these constitutional imperatives and justify the exercise of

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the people's right to be consulted on relevant matters relating to the peace agenda. One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace partners and concerned sectors of society. Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined. The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional , for the concept presupposes that the associated entity is a state and implies that the same is on its way to independence. While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally defective. Metro Manila Commission: Gemiliano Lopez, Jr. v. Hon. Comelec (1985) Facts: PD 824 or an act creating the Metropolitan Manila, was enacted to establish and administer program and provide services common to" the cities of Manila, Quezon, Pasay, and Caloocan as well as thirteen municipalities in the surrounding area. This is in response to the sharp growth in the population of Manila and the proliferation of commercial firms and industries, which resulted to the ever-increasing inability of the separate local governments to cope with the ensuing serious problems. Metro Manila shall be administered by the Commission.

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Petitioners assail the constitutionality of PD 824. They rely on this provision: "No province, city, municipality, or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes cast in a plebiscite in the unit or units affected." The Local Government Code was not enacted until 1983. Issue: WON PD 824 is unconstitutional as it was enacted prior to the creation of a local government code Held: No Ratio: The challenge does not suffice to call for a declaration of unconstitutionality. The last vestige of doubt has been removed by the present constitutional provision regarding the Batasang Pambansa. That provision clearly recognizes the existence of the Metropolitan Manila. Justification as to PD 824. In PD 824, reference was made to "the referendum held on February 27, 1975 wherein the residents of the Greater Manila Area authorized the President to restructure the local governments into an integrated unit of the manager or commission form of government. It was then pointed out that "the rapid growth of population and the corresponding increase of social and economic requirements in the contiguous communities has brought into being a large area that calls for development both simultaneous and unified. It "is vital to the survival and growth of the aforementioned Greater Manila Area that a workable and effective system be established for the coordination, integration and unified management of such local government services or functions" therein. There is necessity for "the unified metropolitan services or functions to be planned, administered, and operated [based on] the highest professional technical standards." 15 The foregoing constitutes the justification for and the objective of such Presidential Decree. Application of Paredes vs Executive Secretary. In Paredes vs Executive Secretary, the Court did came to the conclusion that the constitutional provision on the need for a majority of the votes cast in the plebiscite in the unit or units affected would be satisfied even if "those voters who are not from the barangay to be separated were excluded in the plebiscite." It cannot be argued therefore that the plebiscite held in the areas affected to constitute Metropolitan Manila in the referendum on February 27, 1975 was not a sufficient compliance with the constitutional provision. With the voters in such four cities and thirteen municipalities, now composing Metropolitan Manila, having manifested their will, the constitutional provision relied upon by petitioners has been satisfied. It is to be noted likewise that at the time of such plebiscite in February, 1975, there was no Local Government Code. Presidential Authority to Issue the PD. At that time there was no interim Batasang Pambansa. It was the President who was entrusted with such responsibility. The legality of the law making authority by the President during the period of Martial Law was already established in Aquino vs Comelec. Sangguniang Bayan. The point has been raised, however, that unless Presidential Decree No. 824 be construed in such a way that along with the rest of the other cities and municipalities, there should be elections for the Sangguniang Bayan, then there is a denial of the equal protection provision of the Constitution. The point is not well-taken. It is clear that under the equal protection clause, classification is not forbidden. But classification on a reasonable basis, and not made arbitrarily or capriciously is permitted. . . . The classification, however, to be reasonable must be based on substantial distinction which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class." All such elements are present. There is no need to set forth anew the compelling reasons that called for the creation of Metropolitan Manila. It is quite obvious that under the conditions then existing - still present and, with the continued growth of population, attended with more complexity - what was done was a response to a great public need. The government was called upon to act. PD 824 was the result. It is not a condition for the validity of the Sangguniang Bayans provided for in the four cities and thirteen municipalities that the membership be identical with those of other cities or municipalities. There is ample justification for such a distinction Basis in the Constitution. Article VIII, Section 2 of the Constitution expressly recognized the juridical entity known as Metropolitan Manila. Such express constitutional affirmation of its existence in the fundamental law calls for the dismissal of these petitions, there being no legal justification for the declaration of unconstitutionality of Presidential Decree No. 824. Nor was it

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the first time that there has been acknowledgment in law of the creation of Metropolitan Manila. (Election Code of 1978, Presidential Decree No. 1396 creating the Ministry of Human Settlements, Presidential Decree No. 824, creating the Metropolitan Manila Commission, Amendments to the Constitution, Ordinance) Control of the President. It is undeniable that the creation of the Metropolitan Manila Commission is free from any constitutional objection. There is, however, a question that may arise in connection with the powers of the President over the Commission. According to PD 824: "The Commission, the General Manager and any official of the Commission shall be under the direct supervision and control of the President. Notwithstanding any provision in this Decree, the President shall have the power to revoke, amend or modify any ordinance, resolution or act of the Commission, the General and the Commissioners." It may give rise to doubts as to its validity insofar as it confers the power of control on the President. That control he certainly exercises under the present Constitution over the ministries. His power over local governments does not go that far. It extends no further than general supervision. These doubts, however, do not suffice to nullify such a provision. Succinctly put, that construction that would save is to be preferred as against one that will destroy. To show fidelity to this basic principle of construction is to lend substance to the equally basic doctrine that the constitution enters into and forms part of every statute. Accordingly, the presidential power of control over acts of the Metro Manila Commission is limited to those that may be considered national in character. There can be no valid objection to such exercise of authority. That is a clear recognition that some of its attributes are those of a national character. Where, however, the acts of the Metro Manila Commission may be considered as properly appertaining to local government functions, the power of the President is confined to general supervision. As thus construed, Section 13 clearly appears to be free from any constitutional infirmity. Abad Santos, dissenting. 1. The referendum of February 27, 1975, did not satisfy the prohibition contained in Art. XI, Sec. 3 of the 1973 Constitution. For one thing the provision speaks of "the criteria established in the local government code." There was then no local government code so there were no criteria. Also the grant of power to restructure the 4 cities and 13 municipalities in the Greater Manila area "under such terms and conditions as the President may decide" was so broad that it was in fact not an intelligent decision on the part of the people. I submit that a grant of power must be definite to be valid; it must not be nebulous and uncircumscribed so as to amount to a total abdication thereof. Finally, the referendum did not include all of the peoples of Bulacan and Rizal to ascertain if they were willing to give up some of their towns to Metropolitan Manila. The referendum suffers from the same infirmity present in the case of Paredes vs. Executive Secretary, cited in the main opinion, where I dissented. 2. The January 27, 1984, amendment to the Constitution providing for representation in the Batasang Pambansa and which allocates representatives to "districts in Metropolitan Manila" cannot be construed to constitutionally validate P.D. No. 824 for the simple reason that the issue before the people when the amendment was submitted for ratification was not the creation of the Metropolitan Manila Commission. Presumption of constitutionality: Alvarez v. Guingona (1996) Facts: This concerns the validity of RA 7330 converting the municipality of Santiago Isabela into an independent component city to be known as the city of Santiago. The law was challenged mainly because the act did not allegedly originate exclusively in the House of Representatives as mandated by Section 24, Article VI of the 1987 Consitution. Also, petitioner claims that the Municipality of Santiago has not met the minimum average annual income required under Section 450 of the LGC in order to be converted into a component city. Apparently, RA 7330 originated from HB 8817 which was filed on April 18, 1993. After the third reading, the bill was transmitted to the Senate on January 18, 1994. Meanwhile, a counterpart bill SB 1243 was filed on May 19, 1993. On February 23, 1994, HB 8817 was transmitted to the senate. The committee recommended that HB 8817 be approved without amendment, taking into consideration that the house bill was identical to the senate bill. Issue: WON the IRAs are to be included in the computation of the average annual income of a municipality for the purposes of its conversion into an independent component city

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Held: Yes

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Ratio: Petitioners claim that Santiago could not qualify into a component city because its average annual income for the last two (2) consecutive years based on 1991 constant prices falls below the required annual income of P20,000,000 for its conversion into a city. After deducting the IRA, ti appears that the average annual income arrived at would only be P13,109,560.47 based on the 1991 constant prices. Petitioners asseverate that the IRAs are not actually income but transfers and/or budgetary aid from the national government and that they fluctuate, increase or decrease, depending on factors like population, land and equal sharing. Petitioners asseverations are untenable because Internal Revenue Allotments form part of the income of Local Government Units. It is true that for a municipality to be converted into a component city, it must, among others, have an average annual income of at least Twenty Million Pesos for the last two (2) consecutive years based on 1991 constant prices. Such income must be duly certified by the Department of Finance. A Local Government Unit is a political subdivision of the State which is constituted by law and possessed of substantial control over its own affairs. Remaining to be an intra sovereign subdivision of one sovereign nation, but not intended, however, to be an imperium in imperio, the local government unit is autonomous in the sense that it is given more powers, authority, responsibilities and resources. The practical side to development through a decentralized local government system certainly concerns the matter of financial resources. With its broadened powers and increased responsibilities, a local government unit must now operate on a much wider scale. More extensive operations, in turn, entail more expenses. Understandably, the vesting of duty, responsibility and accountability in every local government unit is accompanied with a provision for reasonably adequate resources to discharge its powers and effectively carry out its functions. Availment of such resources is effectuated through the vesting in every local government unit of (1) the right to create and broaden its own source of revenue; (2) the right to be allocated a just share in national taxes, such share being in the form of internal revenue allotments (IRAs); and (3) the right to be given its equitable share in the proceeds of the utilization and development of the national wealth, if any, within its territorial boundaries. For purposes of budget preparation, which budget should reflect the estimates of the income of the local government unit, among others, the IRAs and the share in the national wealth utilization proceeds are considered items of income. This is as it should be, since income is defined in the Local Government Code to be all revenues and receipts collected or received forming the gross accretions of funds of the local government unit. The IRAs are items of income because they form part of the gross accretion of the funds of the local government unit. The IRAs regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit. 11 They thus constitute income which the local government can invariably rely upon as the source of much needed funds. To reiterate, IRAs are a regular, recurring item of income; nil is there a basis, too, to classify the same as a special fund or transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it distinct from special funds or transfers referred to when the Code speaks of "funding support from the national government, its instrumentalities and government-owned-or-controlled corporations". Issue: WON considering that Senate passed SB 1243, its own version of HB 8817, RA 2770 can be sait to have originated in the House of Representatives Held: Yes Ratio: Although a bill of local application like HB No. 8817 should, by constitutional prescription, originate exclusively in the House of Representatives, the claim of petitioners that RA 7720 did not originate exclusively in the House of Representatives because a bill of the same import, SB No. 1243, was passed in the Senate, is untenable because it cannot be denied that HB No. 8817 was filed in the House of Representatives first before SB No. 1243 was filed in the Senate. Petitioners themselves cannot disavow their own admission that HB No. 8817 was filed on April 18, 1993 while SB No. 1243 was filed on May 19, 1993. The filing of HB No. 8817 was thus precursive not only of the said Act in question but also of SB No. 1243. Thus, HB No. 8817, was the bill that initiated the legislative process that culminated in the enactment of Republic Act No. 7720. No violation of

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Section 24, Article VI, of the 1987 Constitution is perceptible under the circumstances attending the instant controversy. Furthermore, petitioners themselves acknowledge that HB No. 8817 was already approved on Third Reading and duly transmitted to the Senate when the Senate Committee on Local Government conducted its public hearing on HB No. 8817. HB No. 8817 was approved on the Third Reading on December 17, 1993 and transmitted to the Senate on January 28, 1994; a little less than a month thereafter, or on February 23, 1994, the Senate Committee on Local Government conducted public hearings on SB No. 1243. Clearly, the Senate held in abeyance any action on SB No. 1243 until it received HB No. 8817, already approved on the Third Reading, from the House of Representatives. The filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, does not contravene the constitutional requirement that a bill of local application should originate in the House of Representatives, for as long as the Senate does not act thereupon until it receives the House bill. Tolentino v. Secretary of Finance: Nor does the Constitution prohibit the filing in the Senate of a substitute bill in anticipation of its receipt of the bill from the House, so long as action by the Senate as a body is withheld pending receipt of the House bill. Every law, including RA No. 7720,has in its favor the presumption of constitutionality It is a wellentrenched jurisprudential rule that on the side of every law lies the presumption of constitutionality. Consequently, for RA No. 7720 to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one; in other words, the grounds for nullity must be clear and beyond reasonable doubt. Those who petition this court to declare a law to be unconstitutional must clearly and fully establish the basis that will justify such a declaration; otherwise, their petition must fail. Taking into consideration the justification of our stand on the immediately preceding ground raised by petitioners to challenge the constitutionality of RA No. 7720, the Court stands on the holding that petitioners have failed to overcome the presumption. The dismissal of this petition is, therefore, inevitable. Governmental powers/ functions: Municipality of San Fernando v. Firme (1991) Facts: Petitioner is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. At about 7 am of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the petitioner and driven by Alfredo Bislig. Several passengers of the jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and 4 others suffered physical injuries. Private respondents instituted an action against Nieveras and Balagot before the CFI. The defendants filed a third party complaint against petitioner and Bislig. The complaint was then amended to implead petitioner and Bislig. Petitioner raised as defense lack of cause of action, non suability of the State, prescription and negligence of the owner and driver of the jeepney. The trial court rendered a decision ordering the petitioner and Bislig to pay the plaintiffs. The owner and driver of the jeepney were absolved from liability. Petitioner filed an MR which was dismissed for having been filed out of time. Issue: WON the court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss. Held: Yes Ratio: In the case at bar, the judge deferred the resolution of the defense of non-suability of the State until trial. However, the judge failed to resolve such defense, proceeded with the trial and then rendered a decision against the municipality and its driver. The judge did not commit GAD when it arbitrarily failed to resolve the issue of non-suability of the State in the guise of the municipality. However, the judge acted in excess of his jurisdiction when in his decision he held the municipality liable for the quasi-delict committed by its regular employee. The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Consti, to wit: "the State may not be sued without its consent." Express consent may be embodied

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in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict. Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. Municipal corporations are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions (Torio vs. Fontanilla). According to City of Kokomo vs Loy(Indiana SC), municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power." It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office.We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation. Proprietary powers/ functions: City of Manila v. Intermediate Appellate Court (1989) Facts: Vivencio Sto. Domingo, Sr. died and was buried in North Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021. The wife paid the full amount of the lease. Apart, however from the receipt, no other document embodied such lease over the lot. Believing that the lease was only for five years, the city certified the lot as ready for exhumation. On the basis of the certification, Joseph Helmuth authorized the exhumation and removal of the remains of Vicencio. His bones were placed in a bag and kept in the bodega of the cemetery. The lot was also leased to another lessee. During the next all souls day, the private respondents were shocked to find out that Vicencios remains were removed. The cemetery told Irene to look for the bones of the husband in the bodega. Aggrieved, the widow and the children brought an action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari, officer-in-charge of the North Cemetery;

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and Joseph Helmuth, the latter's predecessor as officer-in-charge of the said burial grounds owned and operated by the City Government of Manila. The court ordered defendants to give plaintiffs the right to make use of another lot. The CA affirmed and included the award of damages in favor of the private respondents. Issue: WON the operations and functions of a public cemetery are a governmental, or a corporate or proprietary function of the City of Manila. Held: Proprietary Ratio: Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They conclude that since the City is a political subdivision in the performance of its governmental function, it is immune from tort liability which may be caused by its public officers and subordinate employees. Private respondents maintain that the City of Manila entered into a contract of lease which involve the exercise of proprietary functions with Irene Sto. Domingo. The city and its officers therefore can be sued for any-violation of the contract of lease. The City of Manila is a political body corporate and as such endowed with the faculties of municipal corporations to be exercised by and through its city government in conformity with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its powers are twofold in character-public, governmental or political on the one hand, and corporate, private and proprietary on the other. Governmental powers are those exercised in administering the powers of the state and promoting the public welfare and they include the legislative, judicial, public and political. Municipal powers on the one hand are exercised for the special benefit and advantage of the community and include those which are ministerial, private and corporate. In connection with the powers of a municipal corporation, it may acquire property in its public or governmental capacity, and private or proprietary capacity. The New Civil Code divides such properties into property for public use and patrimonial properties (Article 423), and further enumerates the properties for public use as provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provisions, cities or municipalities, all other property is patrimonial without prejudice to the provisions of special laws. Thus in Torio v. Fontanilla, the Court declared that with respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons ex contractu. Under the foregoing considerations and in the absence of a special law, the North Cemetery is a patrimonial property of the City of Manila. The administration and government of the cemetery are under the City Health Officer, the order and police of the cemetery, the opening of graves, niches, or tombs, the exhuming of remains, and the purification of the same are under the charge and responsibility of the superintendent of the cemetery. With the acts of dominion, there is no doubt that the North Cemetery is within the class of property which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence, obligations arising from contracts have the force of law between the contracting parties. Thus a lease contract executed by the lessor and lessee remains as the law between them. Therefore, a breach of contractual provision entitles the other party to damages even if no penalty for such breach is prescribed in the contract. Issue: WON the city is liable for damages Held: Yes Ratio: All things considered, even as the Court commiserates with plaintiffs for the unfortunate happening complained of and untimely desecration of the resting place and remains of their deceased dearly beloved, it finds the reliefs prayed for by them lacking in legal and factual basis. Under the aforementioned facts and circumstances, the most that plaintiffs ran ask for is the replacement of subject lot with another lot of equal size and similar location in the North Cemetery which substitute lot plaintiffs can make use of without paying any rental to the city government for a period of forty-three (43) years, four (4) months and eleven (11) days corresponding to the unexpired portion of the term of the lease sued upon as of January 25, 1978 when the remains of the late Vivencio Sto. Domingo, Sr. were prematurely removed from the disputed lot; and to require the defendants to look in earnest for the bones and skull of the late

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Vivencio Sto. Domingo Sr. and to bury the same in the substitute lot adjudged in favor of plaintiffs hereunder. As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate Appellate Court to the effect that the receipt is in itself a contract of lease. ( Under the doctrine of respondent superior, (Torio v. Fontanilla), petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is not meritorious for the said administrative order covers new leases. When subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and effect.

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SYLLABUS PART CORPORATIONS

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2:

DECENTRALIZATION;

(Guanzon)

LOCAL

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5. Local Government Units vis a vis National Government: Power of general supervision: Drilon v. Lim (1994) Facts: The principal issue in this case is the constitutionality of Section 187 of the Local Government Code3. The Secretary of Justice (on appeal to him of four oil companies and a taxpayer) declared Ordinance No. 7794 (Manila Revenue Code) null and void for non-compliance with the procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. The RTC revoked the Secretarys resolution and sustained the ordinance. It declared Sec 187 of the LGC as unconstitutional because it vests on the Secretary the power of control over LGUs in violation of the policy of local autonomy mandated in the Constitution. The Secretary argues that the annulled Section 187 is constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed. (Petition originally dismissed by the Court due to failure to submit certified true copy of the decision, but reinstated it anyway.) Issue: WON the lower court has jurisdiction to consider the constitutionality of Sec 187 of the LGC Held: Yes Ratio: BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject of the litigation is incapable of pecuniary estimation. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no less than on the doctrine of separation of powers. It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the fundamental law before it was finally approved. To doubt is to sustain. The presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution. Issue: WON Section 187 of the LGC is unconstitutional Held: Yes Ratio: Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be.. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions in accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of
3

Procedure For Approval And Effectivity Of Tax Ordinances And Revenue Measures; Mandatory Public Hearings. The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof; Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

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powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision. An officer in control lays down the rules in the doing of an act. If they are not followed, he may, in his discretion, order the act undone or re-done by his subordinate or he may even decide to do it himself. Supervision does not cover such authority. The supervisor or superintendent merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. Significantly, a rule similar to Section 187 appeared in the Local Autonomy Act. That section allowed the Secretary of Finance to suspend the effectivity of a tax ordinance if, in his opinion, the tax or fee levied was unjust, excessive, oppressive or confiscatory. Determination of these flaws would involve the exercise of judgment or discretion and not merely an examination of whether or not the requirements or limitations of the law had been observed; hence, it would smack of control rather than mere supervision. That power was never questioned before this Court but, at any rate, the Secretary of Justice is not given the same latitude under Section 187. All he is permitted to do is ascertain the constitutionality or legality of the tax measure, without the right to declare that, in his opinion, it is unjust, excessive, oppressive or confiscatory. He has no discretion on this matter. In fact, Secretary Drilon set aside the Manila Revenue Code only on two grounds, to with, the inclusion therein of certain ultra vires provisions and non-compliance with the prescribed procedure in its enactment. These grounds affected the legality, not the wisdom or reasonableness, of the tax measure. The issue of non-compliance with the prescribed procedure in the enactment of the Manila Revenue Code is another matter. (allegations: No written notices of public hearing, no publication of the ordinance, no minutes of public hearing, no posting, no translation into Tagalog) Judge Palattao however found that all the procedural requirements had been observed in the enactment of the Manila Revenue Code and that the City of Manila had not been able to prove such compliance before the Secretary only because he had given it only five days within which to gather and present to him all the evidence (consisting of 25 exhibits) later submitted to the trial court. We agree with the trial court that the procedural requirements have indeed been observed. Notices of the public hearings were sent to interested parties as evidenced. The minutes of the hearings are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C show that the proposed ordinances were published in the Balita and the Manila Standard on April 21 and 25, 1993, respectively, and the approved ordinance was published in the July 3, 4, 5, 1993 issues of the Manila Standard and in the July 6, 1993 issue of Balita. The only exceptions are the posting of the ordinance as approved but this omission does not affect its validity, considering that its publication in three successive issues of a newspaper of general circulation will satisfy due process. It has also not been shown that the text of the ordinance has been translated and disseminated, but this requirement applies to the approval of local development plans and public investment programs of the local government unit and not to tax ordinances. Solicitor General v. Metopolitan Manila Authority (1991) Facts: In Metropolitan Traffic Command, West Traffic District vs. Hon. Arsenio M. Gonong, the Court held that the confiscation of the license plates of motor vehicles for traffic violations was not among the sanctions that could be imposed by the Metro Manila Commission under PD 1605 and was permitted only under the conditions laid dowm by LOI 43 in the case of stalled vehicles obstructing the public streets. It was there also observed that even the confiscation of driver's licenses for traffic violations was not directly prescribed by the decree nor was it allowed by the decree to be imposed by the Commission. However, petitioners alleged that Traffic Enforces continued with the confiscation of drivers licenses and removal of license plates. Dir General Cesar P. Nazareno of the PNP assured the Court that his office had never authorized the removal of the license plates of illegally parked vehicles. Later, the Metropolitan Manila Authority issued Ordinance No. 11, authorizing itself "to detach the license plate/tow and impound attended/ unattended/ abandoned motor vehicles illegally parked or obstructing the flow of traffic in Metro Manila." The Court issued a resolution requiring the Metropolitan Manila Authority and the SolGen to submit separate comments in light of the contradiction between the Ordinance and the SC ruling. The MMA defended the ordinance on the ground that it was adopted pursuant to the power conferred upon it by EO 32 (formulation of policies, promulgation of resolutions). The Sol Gen expressed the view that the ordinance was null and void because it represented an invalid exercise of a delegated legislative power. The flaw in the measure was that it violated existing law, specifically PD 1605, which does not permit, and so impliedly prohibits, the removal of license

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plates and the confiscation of driver's licenses for traffic violations in Metropolitan Manila. He made no mention, however, of the alleged impropriety of examining the said ordinance in the absence of a formal challenge to its validity. Issue: WON Ordinance 11 is justified on the basis of the General Welfare Clause embodied in the LGC Held: No Ratio: The Court holds that there is a valid delegation of legislative power to promulgate such measures, it appearing that the requisites of such delegation are present. These requisites are. 1) the completeness of the statute making the delegation; and 2) the presence of a sufficient standard. The measures in question are enactments of local governments acting only as agents of the national legislature. Necessarily, the acts of these agents must reflect and conform to the will of their principal. To test the validity of such acts in the specific case now before us, we apply the particular requisites of a valid ordinance as laid down by the accepted principles governing municipal corporations. According to Elliot, a municipal ordinance, to be valid: 1) must not contravene the Constitution or any statute; 2) must not be unfair or oppressive; 3) must not be partial or discriminatory; 4) must not prohibit but may regulate trade; 5) must not be unreasonable; and 6) must be general and consistent with public policy. A careful study of the Gonong decision will show that the measures under consideration do not pass the first criterion because they do not conform to existing law. The pertinent law is PD 1605. PD 1605 does not allow either the removal of license plates or the confiscation of driver's licenses for traffic violations committed in Metropolitan Manila. There is nothing in the following provisions of the decree authorizing the Metropolitan Manila Commission to impose such sanctions. In fact, the provisions prohibit the imposition of such sanctions in Metropolitan Manila. The Commission was allowed to "impose fines and otherwise discipline" traffic violators only "in such amounts and under such penalties as are herein prescribed," that is, by the decree itself. Nowhere is the removal of license plates directly imposed by the decree or at least allowed by it to be imposed by the Commission. Notably, Section 5 thereof expressly provides that "in case of traffic violations, the driver's license shall not be confiscated." These restrictions are applicable to the Metropolitan Manila Authority and all other local political subdivisions comprising Metropolitan Manila, including the Municipality of Mandaluyong. `The requirement that the municipal enactment must not violate existing law explains itself. Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national legislature. They are mere agents vested with what is called the power of subordinate legislation. As delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their principal. In the case before us, the enactments in question, which are merely local in origin, cannot prevail against the decree, which has the force and effect of a statute. To sustain the ordinance would be to open the floodgates to other ordinances amending and so violating national laws in the guise of implementing them. Thus, ordinances could be passed imposing additional requirements for the issuance of marriage licenses, to prevent bigamy; the registration of vehicles, to minimize carnapping; the execution of contracts, to forestall fraud; the validation of parts, to deter imposture; the exercise of freedom of speech, to reduce disorder; and so on. The list is endless, but the means, even if the end be valid, would be ultra vires. The measures in question do not merely add to the requirement of PD 1605 but, worse, impose sanctions the decree does not allow and in fact actually prohibits. In so doing, the ordinances disregard and violate and in effect partially repeal the law. We here emphasize the ruling in the Gonong case that PD 1605 applies only to the Metropolitan Manila area. It is an exception to the general authority conferred by R.A. No. 413 on the Commissioner of Land Transportation to punish violations of traffic rules elsewhere in the country with the sanction therein prescribed, including those here questioned. The Court agrees that the challenged ordinances were enacted with the best of motives and shares the concern of the rest of the public for the effective reduction of traffic problems in Metropolitan Manila through the imposition and enforcement of more deterrent penalties upon traffic violators. At the same time, it must also reiterate the public misgivings over the abuses that may attend the enforcement of such sanction in eluding the illicit practices described in detail in the Gonong decision. At any rate, the fact is that there is no statutory authority for and indeed there is a

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statutory prohibition against the imposition of such penalties in the Metropolitan Manila area. Hence, regardless of their merits, they cannot be impose by the challenged enactments by virtue only of the delegated legislative powers. It is for Congress to determine, in the exercise of its own discretion, whether or not to impose such sanctions, either directly through a statute or by simply delegating authority to this effect to the local governments in Metropolitan Manila. Without such action, PD 1605 remains effective and continues prohibit the confiscation of license plates of motor vehicles (except under the conditions prescribed in LOI 43) and of driver licenses as well for traffic violations in Metropolitan Manila. Ganzon v. Court of Appeals (1991) Facts: The petitions of Mayor Ganzon originated from a series of administrative complaints, ten in number, filed against him by various city officials sometime in 1988, on various charges, among them, abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention. Finding probable grounds and reasons, the respondent (Sec of Local Government) issued a preventive suspension order for a period of sixty days. In the other case, respondent ordered petitioner's second preventive suspension for another sixty (60) days. The petitioner was able to obtain a restraining order and a writ of preliminary injunction in the RTC. The second preventive suspension was not enforced. Amidst the two successive suspensions, Mayor Ganzon instituted an action for prohibition against the respondent in the RTC. Presently, he instituted an action for prohibition, in the respondent CA. Meanwhile, the respondent issued another order, preventively suspending Mayor Ganzon for another sixty days, the third time in twenty months, and designating meantime Vice-Mayor Mansueto Malabor as acting mayor. Undaunted, Mayor Ganzon commenced before the CA, a petition for prohibition. The CA rendered judgment dismissing the cases. Issue: WON the Secretary of Local Government, as the President's alter ego, can suspend and or remove local officials. Issue: Yes Ratio: It is the petitioners' argument that the 1987 Constitution no longer allows the President, as the 1935 and 1973 Constitutions did, to exercise the power of suspension and/or removal over local officials. According to both petitioners, the Constitution is meant, first, to strengthen self-rule by local government units and second, by deleting the phrase "as may be provided by law," to strip the President of the power of control over local governments. It is a view, so they contend, that finds support in the debates of the Constitutional Commission. The issue consists of three questions: (1) Did the 1987 Constitution, in deleting the phrase "as may be provided by law" intend to divest the President of the power to investigate, suspend, discipline, and or remove local officials? (2) Has the Constitution repealed Sections 62 and 63 of the Local Government Code? (3) What is the significance of the change in the constitutional language? It is the considered opinion of the Court that notwithstanding the change in the constitutional language, the charter did not intend to divest the legislature of its right - or the President of her prerogative as conferred by existing legislation to provide administrative sanctions against local officials. It is our opinion that the omission (of "as may be provided by law") signifies nothing more than to underscore local governments' autonomy from congress and to break Congress' "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Autonomy does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the USA. Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution - and as the "supervision clause" itself suggest - is to wean local government units from over dependence on the central government. It is noteworthy that under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, a local tax law, income distribution legislation, and a national representation law, and measures designed to realize autonomy at the local level. It is also noteworthy that in spite of autonomy, the Constitution places the local government under the general supervision of the Executive. It is noteworthy finally, that the Charter allows Congress to include in the local government code provisions for removal of local

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officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. The deletion of "as may be provided by law" was meant to stress, sub silencio, the objective of the framers to strengthen local autonomy by severing congressional control of its affairs, as observed by the Court of Appeals, like the power of local legislation. The Constitution did nothing more, however, and insofar as existing legislation authorizes the President (through the Secretary of Local Government) to proceed against local officials administratively, the Constitution contains no prohibition. The petitioners are under the impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. It is a mistaken impression because legally, "supervision" is not incompatible with disciplinary authority The Court does not believe that the petitioners can rightfully point to the debates of the Constitutional Commission to defeat the President's powers. The Court believes that the deliberations are by themselves inconclusive, because although Commissioner Jose Nolledo would exclude the power of removal from the President, Commissioner Blas Ople would not. The Court is consequently reluctant to say that the new Constitution has repealed the Local Government Code, Batas Blg. 337. As we said, "supervision" and "removal" are not incompatible terms and one may stand with the other notwithstanding the stronger expression of local autonomy under the new Charter. We have indeed held that in spite of the approval of the Charter, Batas Blg. 337 is still in force and effect. As the Constitution itself declares, local autonomy means "a more responsive and accountable local government structure instituted through a system of decentralization." The Constitution, as we observed, does nothing more than to break up the monopoly of the national government over the affairs of local governments and as put by political adherents, to "liberate the local governments from the imperialism of Manila." Autonomy, however, is not meant to end the relation of partnership and interdependence between the central administration and local government units, or otherwise, to usher in a regime of federalism. The Charter has not taken such a radical step. Local governments, under the Constitution, are subject to regulation, however limited, and for no other purpose than precisely, albeit paradoxically, to enhance self-government. As we observed in one case, decentralization means devolution of national administration - but not power - to the local levels. Thus: Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous, In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its contituency. Issue: WON the several suspensions imposed upon Mayon Ganzon are proper Held: No Ratio: The successive sixty-day suspensions imposed on Mayor Ganzon is albeit another matter. What bothers the Court, and what indeed looms very large, is the fact that since the Mayor is facing ten administrative charges, the Mayor is in fact facing the possibility of 600 days of suspension, in the event that all ten cases yield prima facie findings. The Court is not of course tolerating misfeasance in public office (assuming that Ganzon is guilty of misfeasance) but it is certainly another question to make him serve 600 days of suspension, which is effectively, to suspend him out of office.

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The plain truth is that this Court has been ill at ease with suspensions, for the above reasons, and so also, because it is out of the ordinary to have a vacancy in local government. The sole objective of a suspension, as we have held, is simply "to prevent the accused from hampering the normal cause of the investigation with his influence and authority over possible witnesses" or to keep him off "the records and other evidence." It is a means, and no more, to assist prosecutors in firming up a case, if any, against an erring local official. Under the Local Government Code, it can not exceed sixty days, which is to say that it need not be exactly sixty days long if a shorter period is otherwise sufficient, and which is also to say that it ought to be lifted if prosecutors have achieved their purpose in a shorter span. Suspension finally is temporary, and as the Local Government Code provides, it may be imposed for no more than sixty days. As we held, a longer suspension is unjust and unreasonable, and nothing less than tyranny. We reiterate that we are not precluding the President, through the Secretary of Interior from exercising a legal power, yet we are of the opinion that the Secretary of Interior is exercising that power oppressively, and needless to say, with a grave abuse of discretion. Ganzon Supplement: Local autonomy, under the Constitution, involves a mere decentralization of administration, not of power, in which local officials remain accountable to the central government in the manner the law may provide; The new Constitution does not prescribe federalism; The change in constitutional language (with respect to the supervision clause) was meant but to deny legislative control over local governments; it did not exempt the latter from legislative regulations provided regulation is consistent with the fundamental premise of autonomy; Since local governments remain accountable to the national authority, the latter may, by law, and in the manner set forth therein, impose disciplinary action against local officials; "Supervision" and "investigation" are not inconsistent terms; "investigation" does not signify "control" (which the President does not have); The petitioner, Mayor Rodolfo Ganzon, may serve the suspension so far ordered, but may no longer be suspended for the offenses he was charged originally; provided: that delays in the investigation of those charges "due to his fault, neglect or request, (the time of the delay) shall not be counted in computing the time of suspension." [Supra, sec. 63(3)] that if during, or after the expiration of, his preventive suspension, the petitioner commits another or other crimes and abuses for which proper charges are fled against him by the aggrieved party or parties, his previous suspension shall not be a bar to his being preventively suspended again, if warranted under subpar. (2), Section 63 of the Local Government Code. MCIAA v. Marcos (1996) Facts: Petitioner was created by virtue of RA6958, mandated to "principally undertake the economical, efficient and effective control, management and supervision of the Mactan International Airport in the Province of Cebu and the Lahug Airport in Cebu City. Under Section 1: The authority shall be exempt from realty taxes imposed by the National Government or any of its political subdivisions, agencies and instrumentalities. However, the Officer of the Treasurer of Cebu City demanded payment for realty taxes on parcels of land belonging to petitioner. Petitioner objected invoking its tax exemption. It also asserted that it is an instrumentality of the government performing governmental functions, citing section 133 of the LGC which puts limitations on the taxing powers of LGUs. The city refused insisting that petitioner is a GOCC performing proprietary functions whose tax exemption was withdrawn by Sections 193 and 234 of the LGC. Petitioner filed a declaratory relief before the RTC. The trial court dismissed the petitioner ruling that the LGC withdrew the tax exemption granted the GOCCs. Issue: WON the City of Cebu has the power to impose taxes on petitioner Held: Yes Ratio: As a general rule, the power to tax is an incident of sovereignty and is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency who are to pay it. Since taxes are what we pay for civilized society, or are the lifeblood of the nation, the law

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frowns against exemptions from taxation and statutes granting tax exemptions are thus construed strictissimi juris against the taxpayers and liberally in favor of the taxing authority. A claim of exemption from tax payment must be clearly shown and based on language in the law too plain to be mistaken. There can be no question that under Section 14 RA 6958 the petitioner is exempt from the payment of realty taxes imposed by the National Government or any of its political subdivisions, agencies, and instrumentalities. Nevertheless, since taxation is the rule and exemption is the exception, the exemption may thus be withdrawn at the pleasure of the taxing authority. The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the exercise by LGUs of their power to tax, the scope thereof or its limitations, and the exemption from taxation. Section 133 of the LGC prescribes the common limitations on the taxing powers of LGUs: (o) Taxes, fees or charges of any kind on the national government, its agencies and instrumentalities and LGUs. Among the "taxes" enumerated in the LGC is real property tax. Section 234 of LGC provides for the exemptions from payment of GOCCs, except as provided therein. On the other hand, the LGC authorizes LGUs to grant tax exemption privileges. Reading together Section 133, 232 and 234 of the LGC, we conclude that as a general rule, as laid down in Secs 133 the taxing powers of LGUs cannot extend to the levy of inter alia, "taxes, fees, and charges of any kind of the National Government, its agencies and instrumentalties, and LGUs"; however, pursuant to Sec 232, provinces, cities, municipalities in the Metropolitan Manila Area may impose the real property tax except on, inter alia, "real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial used thereof has been granted to a taxable person." As to tax exemptions or incentives granted to or presently enjoyed by natural or juridical persons, including government-owned and controlled corporations, Section 193 of the LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC, except upon the effectivity of the LGC, except those granted to local water districts, cooperatives duly registered under R.A. No. 6938, non stock and non-profit hospitals and educational institutions, and unless otherwise provided in the LGC. The latter proviso could refer to Section 234, which enumerates the properties exempt from real property tax. But the last paragraph of Section 234 further qualifies the retention of the exemption in so far as the real property taxes are concerned by limiting the retention only to those enumerated there-in; all others not included in the enumeration lost the privilege upon the effectivity of the LGC. Moreover, even as the real property is owned by the Republic of the Philippines, or any of its political subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is withdrawn if the beneficial use of such property has been granted to taxable person for consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from real property taxes granted to natural or juridical persons, including GOCCs, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner can seek refuge under any of the exceptions provided in Section 234, but not under Section 133, as it now asserts, since, as shown above, the said section is qualified by Section 232 and 234. In short, the petitioner can no longer invoke the general rule in Section 133. It must show that the parcels of land in question, which are real property, are any one of those enumerated in Section 234, either by virtue of ownership, character, or use of the property. Most likely, it could only be the first, but not under any explicit provision of the said section, for one exists. In light of the petitioner's theory that it is an "instrumentality of the Government", it could only be within be first item of the first paragraph of the section by expanding the scope of the terms Republic of the Philippines" to embrace ."instrumentalities" and "agencies." This view does not persuade us. In the first place, the petitioner's claim that it is an instrumentality of the Government is based on Section 133(o), which expressly mentions the word "instrumentalities"; and in the second place it fails to consider the fact that the legislature used the phrase "National Government, its agencies and instrumentalities" "in Section 133(o),but only the phrase "Republic of the Philippines or any of its political subdivision "in Section 234(a). The terms "Republic of the Philippines" and "National Government" are not interchangeable. The former is boarder and synonymous with "Government of the Republic of the Philippines" which the Administrative Code of the 1987 defines as the "corporate governmental entity though which the functions of the government are exercised through at the Philippines, including, saves as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous reason, the provincial, city, municipal or barangay subdivision or other forms of local government." These autonomous regions,

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provincial, city, municipal or barangay subdivisions" are the political subdivision. On the other hand, "National Government" refers "to the entire machinery of the central government, as distinguished from the different forms of local Governments." The National Government then is composed of the three great departments the executive, the legislative and the judicial. An "agency" of the Government refers to "any of the various units of the Government, including a department, bureau, office instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein;" while an "instrumentality" refers to "any agency of the National Government, not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy; usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned and controlled corporations". If Section 234(a) intended to extend the exception therein to the withdrawal of the exemption from payment of real property taxes under the last sentence of the said section to the agencies and instrumentalities of the National Government mentioned in Section 133(o), then it should have restated the wording of the latter. Yet, it did not Moreover, that Congress did not wish to expand the scope of the exemption in Section 234(a) to include real property owned by other instrumentalities or agencies of the government including government-owned and controlled corporations is further borne out by the fact that the source of this exemption is Section 40(a) of P.D. No. 646, otherwise known as the Real Property Tax Code. Note that as a reproduced in Section 234(a), the phrase "and any government-owned or controlled corporation so exempt by its charter" was excluded. The justification for this restricted exemption in Section 234(a) seems obvious: to limit further tax exemption privileges, specially in light of the general provision on withdrawal of exemption from payment of real property taxes in the last paragraph of property taxes in the last paragraph of Section 234. These policy considerations are consistent with the State policy to ensure autonomy to local governments 33 and 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 national goals. 34 The power to tax is the most effective instrument to raise needed revenues to finance and support myriad activities of local government units for the delivery of basic services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people. It may also be relevant to recall that the original reasons for the withdrawal of tax exemption privileges granted to government-owned and controlled corporations and all other units of government were that such privilege resulted in serious tax base erosion and distortions in the tax treatment of similarly situated enterprises, and there was a need for this entities to share in the requirements of the development, fiscal or otherwise, by paying the taxes and other charges due from them. The crucial issues then to be addressed are: (a) whether the parcels of land in question belong to the Republic of the Philippines whose beneficial use has been granted to the petitioner, and (b) whether the petitioner is a "taxable person". It may be reasonable to assume that the term "lands" refer to "lands" in Cebu City then administered by the Lahug Air Port and includes the parcels of land the respondent City of Cebu seeks to levy on for real property taxes. This section involves a "transfer" of the "lands" among other things, to the petitioner and not just the transfer of the beneficial use thereof, with the ownership being retained by the Republic of the Philippines. This "transfer" is actually an absolute conveyance of the ownership thereof because the petitioner's authorized capital stock consists of "the value of such real estate owned and/or administered by the airports." Hence, the petitioner is now the owner of the land in question and the exception in Sec 234(c) of the LGC is inapplicable. Petitioner cannot claim that it was never a "taxable person" under its Charter. It was only exempted from the payment of real property taxes. The grant of the privilege only in respect of this tax is conclusive proof of the legislative intent to make it a taxable person subject to all taxes, except real property tax. Finally, even if the petitioner was originally not a taxable person for purposes of real property tax, in light of the forgoing disquisitions, it had already become even if it be conceded to be an "agency" or "instrumentality" of the Government, a taxable person for such purpose in view of the withdrawal in the last paragraph of Section 234 of exemptions from the payment of real property taxes, which, as earlier adverted to, applies to the petitioner. Accordingly, the position taken by the petitioner is untenable. Reliance on Basco vs. Pagcor is unavailing since it was decided before the effectivity of the LGC. Besides, nothing can prevent Congress from decreeing that even instrumentalities or agencies of the government performing governmental functions may be subject to tax. Where it is done precisely to fulfill a constitutional mandate and national policy, no one can doubt its wisdom.

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Decentralization, local autonomy: Limbona v. Mangelin (1989) Facts: Sultan Alimbusar Limbona was appointed as a member of the Sangguniang Pampook, Regional Autonomous Government, Region XII, representing Lanao del Sur. He was then elected speaker of the regional legislative assembly of central Mindanao, composed of 18 members. Later, Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and the petitioner in his capacity as Speaker of the Assembly, Region XII, in a conference. Petitioner then ordered Acting Secretary Alimbuyao to inform the assemblymen that there will be no session on said date as petitioner and Razul are attending the house committee hearing. The Assembly held session in defiance of petitioner's advice. After declaring the presence of a quorum, the Speaker Pro-Tempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant. The petitioner then went to court praying that judgment be rendered declaring the proceedings held by respondents during the session as null and void and holding the election of petitioner as Speaker of said Legislative Assembly or Batasan Pampook, Region XII held on March 12, 1987 valid and subsisting, and(e) Making the injunction permanent. Issue: WON the expulsion of the petitioner (pending litigation) has made the case moot and academic. Ratio: We do not agree that the case has been rendered moot and academic by reason simply of the expulsion resolution so issued. For, if the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic. On the ground of the immutable principle of due process alone, we hold that the expulsion in question is of no force and effect. In the first place, there is no showing that the Sanggunian had conducted an investigation, and whether or not the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. What appears in the records is an admission by the Assembly that "since November, 1987 up to this writing, the petitioner has not set foot at the Sangguniang Pampook." To be sure, respondents aver that "[t]he Assemblymen, in a conciliatory gesture, wanted him to come to Cotabato City," but that was "so that their differences could be threshed out and settled." Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law. In the second place, the resolution appears strongly to be a bare act of vendetta by the other Assemblymen against the petitioner arising from what the former perceive to be abduracy on the part of the latter. Indeed, it (the resolution) speaks of "a case [having been filed] [by the petitioner] before the Supreme Court . . . on question which should have been resolved within the confines of the Assembly ---- an act which some members claimed unnecessarily and unduly assails their integrity and character as representative of the people," an act that cannot possibly justify expulsion. Access to judicial remedies is guaranteed by the Constitution, and, unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts. We therefore order reinstatement, with the caution that should the past acts of the petitioner indeed warrant his removal, the Assembly is enjoined, should it still be so minded, to commence proper proceedings therefor in line with the most elementary requirements of due process. And while it is within the discretion of the members of the Sanggunian to punish their erring colleagues, their acts are nonetheless subject to the moderating hand of this Court in the event that such discretion is exercised with grave abuse. Issue: What is the extent of self-government given to the two autonomous governments of Region IX and XII? Ratio: The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618. Among other things, the Decree established "internal autonomy" in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the

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Republic of the Philippines and its Constitution," "with legislative and executive machinery to exercise the powers and responsibilities"' specified therein. It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," except to "act on matters which are within the jurisdiction and competence of the National Government," "which include, but are not limited to, the following: 1. National defense and security; 2. Foreign relations; 3. Foreign trade; 4. Currency, monetary affairs, foreign exchange, banking and quasi-banking, and external borrowing, 5. Disposition, exploration, development, exploitation or utilization of all natural resources; 6. Air and sea transport; 7. Postal matters and telecommunications; 8. Customs and quarantine; 9. Immigration and deportation; 10.Citizenship and naturalization; 11.National economic, social and educational planning; and 12.General auditing." In relation to the central government, it provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions. Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments "more responsive and accountable," and "ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress." At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises "general supervision" over them, but only to "ensure that local affairs are administered according to law." He has no control over their acts in the sense that he can substitute their judgments with his own. Decentralization of power, on the other hand, involves an abdication of political power in the favor of local governments units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to "selfimmolation," since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. But the question of whether or not the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves, truly, an effort to decentralize power rather than mere administration is a question foreign to this petition, since what is involved herein is a local government unit constituted prior to the ratification of the present Constitution. Hence, the Court will not resolve that controversy now, in this case, since no controversy in fact exists. We will resolve it at the proper time and in the proper case. Under the 1987 Constitution, local government units enjoy autonomy in these two senses An autonomous government that enjoys autonomy of the latter category is subject alone to the decree of the organic act creating it and accepted principles on the effects and limits of "autonomy." On the other hand, an autonomous government of the former class is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government). If the Sangguniang Pampook (of Region XII), then, is autonomous in the latter sense, its acts are, debatably, beyond the domain of this Court in perhaps the same way that the internal acts, say, of the Congress of the Philippines are beyond our jurisdiction. But if it is autonomous in the former category only, it comes unarguably under our jurisdiction. An examination of the very Presidential Decree creating the autonomous governments of Mindanao persuades us that they were never meant to exercise autonomy in the second sense, that is, in which the central government commits an act of self-immolation. Presidential Decree No. 1618, in the first place, mandates that "[t]he President shall have the power of general supervision and control over Autonomous Regions." 33 the second place, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services. Hence, we assume jurisdiction. And if we can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker.

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San Juan v. Civil Service Commission (1991) Facts: The position of Provincial Budget Officer (PBO) for Rizal Province was left vacated. Petitioner, Gov. Reynaldo San Juan informed Dir. Reynaldo Abella of the DBM that Ms. Dalisay Santos assumed office as Acting PBO and requested Dir Abella to endorse the appointment of Santos. In a memo, however, Dir Abella appointed Cecilia Almajose as PBO of Rizal on the basis of a comparative study of all Municipal Budget Officers. According to Abella, Almajose was most qualified as she was a CPA. DBM Undersecretary Nazario Cabuquit signed the appointment papers of Almajose. In a letter, Petitioner reiterated his request for Santos appointment. DBM Regional Dir Agripino Galvez denied the request as Santos was not qualified. When petitioner learned of Almajoses appointment, he protested on the grounds that Cabuquit as DBM Undersecretary is not legally authorized to appoint the PBO; that Almajose lacks the required three years work experience as provided in Local Budget Circular No. 31; and that under EO 112, it is the Governor, not the Regional Director or a Congressman, who has the power to recommend nominees for the position of PBO. The DBM issued a memo ruling that petitioners protest is not meritorious as the DBM validly exercised its prerogative in filling-up the contested position since none of the petitioner's nominees met the prescribed requirements. The CSC affirmed. Issue: WON petitioner has the right and privilege to recommend the nominees to the position of PBO Held: Yes Ratio: The tug of war between the Secretary of DBM and the Governor of Rizal over a position involves the application of a most important constitutional policy and principle, that of local autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy. The exercise by LGUs of meaningful power has been a national goal since the turn of the century. And yet, inspite of constitutional provisions and legislation mandating greater autonomy for local officials, national officers cannot seem to let go of centralized powers. They deny or water down what little grants of autonomy have so far been given to municipal corporations. President McKinley's Instructions to the Second Philippine Commission ordered the new Government "to devote their attention in the first instance to the establishment of municipal governments in which natives of the Islands, both in the cities and rural communities, shall be afforded the opportunity to manage their own local officers to the fullest extent of which they are capable and subject to the least degree of supervision and control which a careful study of their capacities and observation of the workings of native control show to be consistent with the maintenance of law, order and loyalty." In this initial organic act for the Philippines, the Commission which combined both executive and legislative powers was directed to give top priority to making local autonomy effective. The 1935 Constitution had no specific article on local autonomy. However, the Constitution clearly limited the executive power over local governments to "general supervision as may be provided by law." The President controls the executive departments. He has no such power over local governments. He has only supervision and that is both general and circumscribed by statute. Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was enacted. In 1959, Republic Act No. 2264 (Local Autonomy Act) was enacted. The provisions of the 1973 Constitution moved the country further towards greater autonomy. An entire article on Local Government was incorporated into the Constitution. It called for a local government code defining more responsive and accountable local government structures. Any creation, merger, abolition, or substantial boundary alteration cannot be done except in accordance with the local government code and upon approval by a plebiscite. The power to create sources of revenue and to levy taxes was specifically settled upon local governments. The exercise of greater local autonomy is even more marked in the present Constitution (Art II Sec 25, Art X Sec 2-3). When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of meaningful local autonomy is frustrated and set back.

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Provincial and municipal budgets are prepared at the local level and after completion are forwarded to the national officials for review. They are prepared by the local officials who must work within the constraints of those budgets. They are not formulated in the inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not they are relevant to local needs and resources. It is for this reason that there should be a genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is for this reason that the nomination and appointment process involves a sharing of power between the two levels of government. It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial and Bar Council. DBMs grave abuse of discretion is aggravated by the fact that Dir Galvez required the Governor to submit at least three other names of nominees better qualified than his earlier recommendation. The appointment of Almajose was formalized before the Governor was extended the courtesy of being informed that his nominee had been rejected. The complete disregard of the LGUs prerogative and the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest. In his work, Dean Vicente G. Sinco stated that the value of LGUs as institutions of democracy is measured by the degree of autonomy that they enjoy. He stated that "local assemblies of citizens constitute the strength of free nations. A people may establish a system of free government but without the spirit of municipal institutions, it cannot have the spirit of liberty." Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based. Ganzon v. Court of Appeals (1991), supra. Held: The 1987 Constitution did not divest the President [in this case acting through Sec of LocGov] of the power of supervision over LGUs. The change in the constitutional language merely underscores local governments' autonomy from congress and to break Congress "control" over local government affairs. The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Autonomy does not contemplate making mini-states out of local government units, as in the federal governments of the US. Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest is to wean local LGUs from over-dependence on the central government. Under the Constitution, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, a local tax law, income distribution legislation, and a national representation law, and measures designed to realize autonomy at the local level. Also, despite the autonomy, the Constitution places the local government under the general supervision of the Executive. Finally, the Charter allows Congress to include in the LGC provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing LGC has done, delegate its exercise to the President. The petitioners are under the mistaken impression that the Constitution has left the President mere supervisory powers, which supposedly excludes the power of investigation, and denied her control, which allegedly embraces disciplinary authority. Legally, "supervision" is not incompatible with disciplinary authority. "Control" = the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for test of the latter. "Supervision" = overseeing or the power or authority of an officer to see that subordinate officers perform their duties. As we held, however, "investigating" is not inconsistent with "overseeing", although it is a lesser power than "altering". Cordillera Broad Coalition v. COA (1990) Issue: Constitutionality of EO 220, dated July 15, 1987, which created the Cordillera Administrative Region - assailed on the primary ground that the President pre-empts the enactment of an organic act by Congress and the approval of such act through a plebiscite. Held: EO 220 envisions the consolidation and coordination of the delivery of services of line departments and agencies of the National Government in the areas covered by the administrative region as a step preparatory to the grant of autonomy to the Cordilleras. It does not create the

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autonomous region contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic act and the creation of an autonomous region. In short, it prepares the ground for autonomy. This does not necessarily conflict with the provisions of the Constitution on autonomous regions. The Constitution outlines a complex procedure for the creation of an autonomous region in the Cordilleras which undoubtedly, will take time. The President, in 1987 still exercising legislative powers, as the first Congress had not yet convened, saw it fit to provide for some measures to address the urgent needs of the Cordilleras in the meantime the organic act had not yet been passed. Petitioners incidentally argue that the creation of the CAR contravened the constitutional guarantee of the local autonomy for the provinces composing it. It must be clarified that the constitutional guarantee of local autonomy in the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local government units or, in more technical language, the decentralization of government authority. On the other hand, the creation of autonomous regions in Muslim Mindanao and the Cordilleras, which is peculiar to the 1987 Constitution contemplates the grant of political autonomy, not just administrative, to these regions. As said earlier, the CAR is a mere transitory coordinating agency that would prepare the stage for political autonomy for the Cordilleras. It fills in the resulting gap in the process of transforming a group of adjacent territorial and political subdivisions already enjoying local or administrative autonomy into an autonomous region vested with political autonomy. Magtajas v. Pryce Properties Corp, Inc. (1991) Facts: In 1992, representatives from PPC made representations with the Pagcor on the possibility of setting up a casino in Pryce Plaza Hotel in Cagayan de Oro City. On November 1992, the parties executed a contract of lease involving the ballroom of the hotel which would be converted into a casino. Way back in 1950, the Sangguniang Panglungsod of CDO passed Resolution 2295 prohibiting the establishment of a gambling casino. Resolution 2673, dated October 19, 1992, reiterated this prohibition. On December 7, 1992, Ordinance No. 3353 was enacted prohibiting the issuance of business permits for the operation of a casino. On January 4, 1993, Ordinance 3375-93 was passed prohibiting the operation of casinos. PPC filed a petition for prohibition with preliminary injunction against CDO before the CA. It prayed for the declaration of unconstitutionality of Ordinance 3353. Pagcor intervened claiming that Ordinance 4475 was violative of the non-impairment of contracts and EP clauses. The CA declared the ordinances unconstitutional and void. Issue: WON the Sangguniang Panglungsod has the authority to enact said ordinances Held: No Ratio: Petitioners Contention. CDO, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the LGC. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16. In addition, Section 458 declares that the Sangguniang Panglungsod has the power to approve ordinances and pass resolutions for the efficient and effective city government. The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation of casinos because they involve games of chance, which are detrimental to the people. The adoption of the LGC, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Morality of Gambling Not Justiciable. The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without

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limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of CDO. Test of Validity. The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid, an ordinance must conform to the following substantive requirements: 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable. We begin by observing that under Sec. 458 of the LGC, LGUs are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. We conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented. Contravention of PD 1896. The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to operate a casino in CDO. Petitioner deny that the ordinance changed the PD, rather the LGC itself changed the PD. It seems to us that the petitioners are playing with words. While insisting that the decree has only been "modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary but mandated by Sec 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now no choice but to prevent and suppress gambling, which in the petitioners' view includes both legal and illegal gambling. Under this construction, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a prime source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention. Moreover, the petitioners' suggestion that the Code authorizes them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of the legislature. In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. Rationale for the rule that ordinances should not contravene a statute. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporations owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, and the corporation could not prevent it. We know of no limitation on the right so far as to the corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the legislature.

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Relationship between national legislature and local government. This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. Padilla, concurring: I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869. However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government's own efforts to reestablish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. Davide, concurring: Wrong mode, not prohibition but declaratory relief. The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned. I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. Taule v. Santos (1991) Facts: On June 18,1989, the Federation of Associations of Barangay Councils (FABC) of Catanduanes, composed of eleven (11) members convened with six members in attendance for the purpose of holding the election of its officers. The election proceeded with petitioner Ruperto Taule declared as president. The governor, Leandro Verceles sent a letter to respondent Luis Santos, Secretary of DILG protesting the election of the officers of the FABC on the ground of certain irregularities. Taule, as president of FABC, filed his comment on the protest of Governor denying the alleged irregularities and denouncing the governors acts of meddling and intervening in the election. Secretary Santos nullified the election of the officers of FABC and ordered the conduct of a new one. In the present petitioner for certiorari, petitioner seeks the reversal of the resolutions of the respondent Secretary. Issue: WON the Comelec has jurisdiction over election contests involving the election of officers of the FABC Held: No Ratio: Under Article IX, C, Section 2(2) of the 1987 Consti, the Comelec shall exercise "exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction." The 1987 Constitution expanded the jurisdiction of the COMELEC by granting it appellate jurisdiction over all contests involving

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elective municipal officials decided by trial courts of general jurisdiction or elective barangay officials decided by trial courts of limited jurisdiction. The jurisdiction of the COMELEC over contests involving elective barangay officials is limited to appellate jurisdiction from decisions of the trial courts. The jurisdiction of the COMELEC is over popular elections, the elected officials of which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. Specifically, the term "election," in the context of the Constitution, may refer to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes which do not characterize the election of officers in the Katipunan ng mga barangay. Issue: WON the Secretary has jurisdiction over the elections contests involving the FABC elections Held: No Ratio: The Secretary of Local Government is not vested with jurisdiction to entertain any protest involving the election of officers of the FABC. There is no question that he is vested with the power to promulgate rules and regulations as set forth in Section 222 of the LGC and the Administrative Code. Now the question that arises is whether or not a violation of said circular vests jurisdiction upon the respondent Secretary, as claimed by him, to hear a protest filed in relation thereto and consequently declare an election null and void. It is a well-settled principle of administrative law that unless expressly empowered, administrative agencies are bereft of quasi- judicial powers.The jurisdiction of administrative authorities is dependent entirely upon the provisions of the statutes reposing power in them; they cannot confer it upon themselves. Such jurisdiction is essential to give validity to their determinations. There is neither a statutory nor constitutional provision expressly or even by necessary implication conferring upon the Secretary of Local Government the power to assume jurisdiction over an election protect involving officers of the katipunan ng mga barangay. Presidential power over local governments is limited by the Constitution to the exercise of general supervision "to ensure that local affairs are administered according to law." The general supervision is exercised by the President through the Secretary of Local Government. Supervision vs Control: In administrative law, supervision means overseeing or the power or authority of an officer to see that the subordinate officers perform their duties. If the latter fails or neglects to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. The fundamental law permits the Chief Executive to wield no more authority than that of checking whether said local government or the officers thereof perform their duties as provided by statutory enactments. Hence, the President cannot interfere with local governments so long as the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body. Construing the constitutional limitation on the power of general supervision of the President over local governments, We hold that Secretary has no authority to pass upon the validity or regularity of the election of the officers of the katipunan. To allow the Secretary to do so will give him more power than the law or the Constitution grants. It will in effect give him control over local government officials for it will permit him to interfere in a purely democratic and non-partisan activity aimed at strengthening the barangay as the basic component of local governments so that the ultimate goal of fullest autonomy may be achieved. In fact, his order that the new elections to be conducted be presided by the Regional Director is a clear and direct interference by the Department with the political affairs of the barangays which is not permitted by the limitation of presidential power to general supervision over local governments. Indeed, it is the policy of the state to ensure the autonomy of local governments. To deny the Secretary of Local Government the power to review the regularity of the elections of officers of the katipunan would be to enhance the avowed state policy of promoting the autonomy of local governments. The RTCs have the exclusive original jurisdiction to hear the protest Issue: WON the Governor has the personality to file the protest

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Held: Yes Ratio: The Governor has the personality to file the protest. Under Section 205 of the Local Government Code, the membership of the sangguniang panlalawigan consists of the governor, the vice-governor, elective members of the said sanggunian and the presidents of the katipunang panlalawigan and the kabataang barangay provincial federation. The governor acts as the presiding officer of the sangguniang panlalawigan. As presiding officer of the sagguniang panlalawigan, the respondent governor has an interest in the election of the officers of the FABC since its elected president becomes a member of the assembly. If the president of the FABC assumes his presidency under questionable circumstances and is allowed to sit in the sangguniang panlalawigan the official actions of the sanggunian may be vulnerable to attacks as to their validity or legality. Hence, respondent governor is a proper party to question the regularity of the elections of the officers of the FABC. Issue: WON the election was valid Held: No Ratio: The elections were declared null and void primarily for failure to comply with Section 2.4 of DLG Circular No. 89-09 which provides that "the incumbent FABC President or the Vice-President shall preside over the reorganizational meeting, there being a quorum." The rule specifically provides that it is the incumbent FABC President or Vice-President who shall preside over the meeting. The word "shall" should be taken in its ordinary signification, i.e., it must be imperative or mandatory and not merely permissive, as the rule is explicit and requires no other interpretation. If it had been intended that any other official should preside, the rules would have provided so, as it did in the elections at the town and city levels as well as the regional level. It is admitted that neither the incumbent FABC President nor the Vice-President presided over the meeting and elections but Alberto P. Molina, Jr., the Chairman of the Board of Election Supervisors/Consultants. Thus, there was a clear violation of the aforesaid mandatory provision. On this ground, the elections should be nullified. In case at bar, PGOO Molina, the Chairman of the Board, presided over the elections. There was direct participation by the Chairman of the Board in the elections contrary to what is dictated by the rules. Worse, there was no Board of Election Supervisors to oversee the elections in view of the walk out staged by its two other members, the Provincial COMELEC Supervisor and the Provincial Treasurer. The objective of keeping the election free and honest was therefore compromised. Issue: WON the Presidents appointment given to Augusto Antonio as temporary representative of the FABC was valid Held: No Ratio: In the present controversy involving the sangguniang panlalawigan, the law is likewise explicit. To be appointed by the President of the Philippines to sit in the sangguniang panlalawigan is the president of the katipunang panlalawigan. The appointee must meet the qualifications set by law. The appointing power is bound by law to comply with the requirements as to the basic qualifications of the appointee to the sangguniang panlalawigan. The President of the Philippines or his alter ego, the Secretary of Local Government, has no authority to appoint anyone who does not meet the minimum qualification to be the president of the federation of barangay councils. Augusto Antonio is not the president of the federation. He is a member of the federation but he was not even present during the elections despite notice. The argument that Antonio was appointed as a remedial measure in the exigency of the service cannot be sustained. Since Antonio does not meet the basic qualification of being president of the federation, his appointment to the sangguniang panlalawigan is not justified notwithstanding that such appointment is merely in a temporary capacity. If the intention of the respondent Secretary was to protect the interest of the federation in the sanggunian, he should have appointed the incumbent FABC President in a holdover capacity. For even under the guidelines, the term of office of officers of the katipunan at all levels shall be from the date of their election until their successors shall have been duly elected and qualified, without prejudice to the terms of their appointments as members of the sanggunian to which they may be correspondingly appointed. Since the election is still under protest such that

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no successor of the incumbent has as yet qualified, the respondent Secretary has no choice but to have the incumbent FABC President sit as member of the sanggunian. He could even have appointed petitioner since he was elected the president of the federation but not Antonio. The appointment of Antonio, allegedly the protege of respondent Governor, gives credence to petitioner's charge of political interference by respondent Governor in the organization. This should not be allowed. The barangays should be insulated from any partisan activity or political intervention if only to give true meaning to local autonomy. Binay v. Domingo (1991) Facts: On September 27, 1988, petitioner Municipality, through its Council, approved Resolution No. 60 (A resolution to confirm and/or ratify the ongoing burial assistance program extending P500 to a bereaved family, funds to be taken out of unappropriated available funds existing in the municipal treasury.) Metro Manila Commission approved Resolution No. 60. Thereafter, the municipal secretary certified a disbursement fired of P400,000 for the implementation of the program. However, COA disapproved Resolution 60 and disallowed in audit the disbursement of funds. COA denied the petitioners reconsideration as Resolution 60 has no connection or relation between the objective sought to be attained and the alleged public safety, general welfare, etc of the inhabitant of Makati. Also, the Resolution will only benefit a few individuals. Public funds should only be used for public purposes. Issue: WON Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a valid exercise of police power under the general welfare clause Held: Yes Ratio: The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is inherent in the state but not in municipal corporations). Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the local government unit, and preserve the comfort and convenience of the inhabitants therein." Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is

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not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation. Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power. COA is not attuned to the changing of the times. Public purpose is not unconstitutional merely because it incidentally benefits a limited number of persons. As correctly pointed out by the Office of the Solicitor General, "the drift is towards social welfare legislation geared towards state policies to provide adequate social services, the promotion of the general welfare social justice (Section 10, Ibid) as well as human dignity and respect for human rights. The care for the poor is generally recognized as a public duty. The support for the poor has long been an accepted exercise of police power in the promotion of the common good. There is no violation of the equal protection clause in classifying paupers as subject of legislation. Paupers may be reasonably classified. Different groups may receive varying treatment. Precious to the hearts of our legislators, down to our local councilors, is the welfare of the paupers. Thus, statutes have been passed giving rights and benefits to the disabled, emancipating the tenantfarmer from the bondage of the soil, housing the urban poor, etc. Resolution No. 60, re-enacted under Resolution No. 243, of the Municipality of Makati is a paragon of the continuing program of our government towards social justice. The Burial Assistance Program is a relief of pauperism, though not complete. The loss of a member of a family is a painful experience, and it is more painful for the poor to be financially burdened by such death. Resolution No. 60 vivifies the very words of the late President Ramon Magsaysay 'those who have less in life, should have more in law." This decision, however must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate doleouts for motives political or otherwise. City Government of Quezon City v. Ericta (1983) Facts: Section 9 of Ordinance No 6118 requires that at least 6% of the total area of a memorial park cemetery shall be set aside for charity burial. For several years, the section of the Ordinance was not enforced by city authorities but seven years after the enactment of the ordinance, the Quezon City Council passed the a resolution directing the City Engineer to stop selling memorial park lots where the owners thereof have failed to donate the required 6% space for pauper burial. Respondent reacted by filing with the CFI a petition for declaratory relief, prohibition and mandamus with preliminary injunction seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to the Constitution, the Quezon City Charter, the Local Autonomy Act, and the Revised Administrative Code. The Court declared the Section 9 null and void. Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of police power and that the land is taken for a public use as it is intended for the burial ground of paupers. They further argue that the Quezon City Council is authorized under its charter, in the exercise of local police power. On the other hand, respondent contends that the taking or confiscation of property is obvious because the ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of all beneficial use of his property. Issue: WON Section 9 of the ordinance in question a valid exercise of the police power Held: No Ratio: An examination of the Charter of Quezon City does not reveal any provision that would justify the ordinance in question except the provision granting police power to the City. The power to regulate does not include the power to prohibit (. A fortiori, the power to regulate does not include the power to confiscate. The ordinance in question not only confiscates but also prohibits the operation of a memorial park cemetery. There are three inherent powers of government by which the state interferes with the property rights, namely-. (1) police power, (2) eminent domain, (3) taxation. These are said to exist independently of the Constitution as necessary attributes of sovereignty. Police power is defined by Freund as 'the power of promoting the public welfare by restraining and regulating the use of liberty and property'. It is usually exerted in order to merely regulate the use

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and enjoyment of property of the owner. If he is deprived of his property outright, it is not taken for public use but rather to destroy in order to promote the general welfare. In police power, the owner does not recover from the government for injury sustained in consequence thereof. The police power being the most active power of the government and the due process clause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimes inevitable. It will be seen from the foregoing authorities that police power is usually exercised in the form of mere regulation or restriction in the use of liberty or property for the promotion of the general welfare. It does not involve the taking or confiscation of property with the exception of a few cases where there is a necessity to confiscate private property in order to destroy it for the purpose of protecting the peace and order and of promoting the general welfare as for instance, the confiscation of an illegally possessed article, such as opium and firearms. It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprives a person of his private property without due process of law, nay, even without compensation. There is no reasonable relation between the setting aside of at least six (6) percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or the general welfare of the people. The ordinance is actually a taking without compensation of a certain area from a private cemetery to benefit paupers who are charges of the municipal corporation. Instead of building or maintaining a public cemetery for this purpose, the city passes the burden to private cemeteries. The expropriation without compensation of a portion of private cemeteries is not covered by Section 12(t) of the Revised Charter of Quezon City which empowers the city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds and cemeteries. When the Local Government Code, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in such place and in such manner as prescribed by law or ordinance" it simply authorizes the city to provide its own city owned land or to buy or expropriate private properties to construct public cemeteries. This has been the law and practise in the past. It continues to the present. Expropriation, however, requires payment of just compensation. The questioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and other public facilities from the land they sell to buyers of subdivision lots. The necessities of public safety, health, and convenience are very clear from said requirements which are intended to insure the development of communities with salubrious and wholesome environments. The beneficiaries of the regulation, in turn, are made to pay by the subdivision developer when individual lots are sold to home-owners. As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always received broad and liberal interpretation but we cannot stretch it to cover this particular taking. Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had incorporated. received necessary licenses and permits and commenced operating. The sequestration of six percent of the cemetery cannot even be considered as having been impliedly acknowledged by the private respondent when it accepted the permits to commence operations. Villanueva v. Castaneda (1987) Facts: On November 7, 1961, the municipal council of San Fernando adopted Resolution No. 218 authorizing some 24 members of the Fernandino United Merchants and Traders Association to construct permanent stags and sell in the said place. A protest was filed and the CFI decided that the land occupied by the petitioners, being public in nature, was beyond the commerce of man and therefore could not be the subject of private occupancy. This decision was not enforced for the petitioners were not evicted. In fact, the petitioners paid daily fees to the municipal government. On January 12, 1982, the Association of Concerned Citizens and Consumers of San Fernando filed a petition for the immediate implementation of Resolution No. 29, to restore the subject property "to its original and customary use as a public plaza. Vicente Macalino (officer in charge in the office of the mayor) required the municipal treasurer and engineer to demolish the stalls. Petitioners filed a prohibition with the CFI claiming that the disputed area was leased to them by the municipal government. The CFI denied the petition/ Issue: WON the petitioners have a right to the said land

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Held: No Ratio: There is no question that the place occupied by the petitioners and from which they are sought to be evicted is a public plaza pursuant to the previous case. It does not appear that the decision in this case was appealed or has been reversed. A public plaza is beyond the commerce of man and so cannot be the subject of lease or any other contractual undertaking. This is elementary. Indeed, this point was settled as early as in Municipality of Cavite vs. Rojas, where the Court declared as null and void the lease of a public plaza of the said municipality in favor of a private person. In Muyot vs. de la Fuente, it was held that the City of Manila could not lease a portion of a public sidewalk on Plaza Sta. Cruz, being likewise beyond the commerce of man. We rule that the petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts. They should have realized and accepted this earlier, considering that even before case was decided, the municipal council already adopted Resolution No. 29, declaring the area as the parking place and public plaza of the municipality. It is the decision in Civil Case No. 2040 and the said resolution of the municipal council of San Fernando that respondent Macalino was seeking to enforce when he ordered the demolition of the stags constructed in the disputed area. As officer-in-charge of the office of the mayor, he had the duty to clear the area and restore it to its intended use as a parking place and public plaza of the municipality of San Fernando, conformably to the orders from the court and the council. It is, therefore, not correct to say that he had acted without authority or taken the law into his hands in issuing his order. Neither can it be said that he acted whimsically in exercising his authority for it has been established that he directed the demolition of the stalls only after, upon his instructions, the municipal attorney had conducted an investigation, to look into the complaint filed by the Association of Concerned Citizens and Consumers of San Fernando. There is evidence that the petitioners were notified of this hearing, which they chose to disregard. Photographs of the disputed area, which does look congested and ugly, show that the complaint was valid and that the area really needed to be cleared, as recommended by the municipal attorney. Since the occupation of the place in question, it has deteriorated increasingly to the great prejudice of the community in general. The proliferation of stags therein, most of them makeshift and of flammable materials, has converted it into a veritable fire trap, which, added to the fact that it obstructs access to and from the public market itself, has seriously endangered public safety. The filthy condition of the talipapa, where fish and other wet items are sold, has aggravated health and sanitation problems, besides pervading the place with a foul odor that has spread into the surrounding areas. The entire place is unsightly, to the dismay and embarrassment of the inhabitants, who want it converted into a showcase of the town of which they can all be proud. The vendors in the talipapa have also spilled into the street and obstruct the flow of traffic, thereby impairing the convenience of motorists and pedestrians alike. The regular stallholders in the public market, who pay substantial rentals to the municipality, are deprived of a sizable volume of business from prospective customers who are intercepted by the talipapa vendors before they can reach the market proper. On top of all these, the people are denied the proper use of the place as a public plaza, where they may spend their leisure in a relaxed and even beautiful environment and civic and other communal activities of the town can be held. The problems caused by the usurpation of the place by the petitioners are covered by the police power as delegated to the municipality under the general welfare clause. This authorizes the municipal council "to enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." This authority was validly exercised in this case through the adoption of Resolution No. 29, by the municipal council of San Fernando. Even assuming a valid lease of the property in dispute, the resolution could have effectively terminated the agreement for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract. In fact, every contract affecting the public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the

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general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power. Republic v. Gonzalez (1991) Facts: The Republic of the Philippines is the owner of two (2) parcels of land situated in Taong Malabon, Metro Manila. This piece of property was formerly a deep swamp until the occupants thereof, among them appellants Policarpio Gonzales and Augusta Josue, started filling it. On 14 April 1955, then President Ramon Magsaysay issued Proclamation No. 144, entitled "Reserving for Street Widening and Parking Space Purposes Certain Parcels of the Public Domain." Lots 1 and 2 were specifically withdrawn from sale or settlement and reserved for the purposes mentioned in the Proclamation. The Municipality of Malabon passed Resolution authorizing the filing of ejectment cases against appellants. Separate complaints were then filed against them. Appellants disputed the right of the Government to recover the lot as: (a) the already filed sales application with the Bureau of Lands, (b) he had a municipal permit to construct buildings thereon, (c) the lot occupied was not needed to widen the street and that the setting aside of the lots for parking space purposes does not redound to the public benefit. The trial court ordered appellants to reconvey the property to the government. Issue: WON Proclamation 144 is invalid Held: Yes Ratio: Proclamation No. 144 was issued by then President Ramon Magsaysay in response to several resolutions passed by the Municipal Council of Malabon, Rizal, which had become particularly aware of the increasing vehicular traffic and congestion along F. Sevilla Boulevard. The Municipal Council had proposed to widen F. Sevilla Boulevard and at the same time, to reserve an area for parking space to ease up traffic problems, in anticipation of the completion of the then proposed market and slaughterhouse located to the west of F. Sevilla Boulevard. In this day and age, it is hardly open to debate that the public has much to gain from the proposed widening of F. Sevilla Boulevard and from establishment of a municipal parking area. Indiscriminate parking along F. Sevilla Boulevard and other main thoroughfares was prevalent; this, of course, caused the build up of traffic in the surrounding area to the great discomfort and inconvenience of the public who use the streets. Under the Land Transportation and Traffic Code, parking in designated areas along public streets or highways is allowed which clearly indicates that provision for parking spaces serves a useful purpose. Appellants, however, allege that the benefits, if any, that may be derived from the proposed street-widening and parking space will be confined to people who have cars, hence there would be lacking the essential feature of property reserved for public use or benefit. The conception urged by appellants is both flawed and obsolete since the number of users is not the yardstick in determining whether property is properly reserved for public use or public benefit. In the first place, Section 83 above speaks not only of use by a local government but also of "quasi-public uses or purposes." To constitute public use, the public in general should have equal or common rights to use the land or facility involved on the same terms, however limited in number the people who can actually avail themselves of it at a given time. There is nothing in Proclamation No. 144 which excludes non-car-owners from using a widened street or a parking area should they in fact happen to be driving cars; the opportunity to avail of the use thereof remains open for the public in general. Besides, the benefits directly obtained by car-owners do not determine either the validity or invalidity of Proclamation No. 144. What is important are the long-term benefits which the proposed street widening and parking areas make available to the public in the form of enhanced, safe and orderly transportation on land. This is the kind of public benefit envisioned by the Municipal Council of Malabon, Rizal and which was sought to be promoted by the President in issuing Proclamation No. 144. We believe and so hold that Proclamation No. 144 was lawful and valid. Proclamation No. 144 specifically provided that the withdrawal of Lots No. 1 and 2 shall be subject to existing private rights, if any there be. Prior to the issuance of Proclamation No. 144, appellants had applied for miscellaneous sales applications over the lots respectively occupied by them. Insofar as appellant Policarpio Gonzales is concerned, it is not disputed that he had acknowledged

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the ownership of the National Government of the land applied for by him. The miscellaneous sales application, however, of appellant Policarpio Gonzales had not been approved by the Bureau of Lands at the time Proclamation No. 144 was issued; the land therefore retained its character as land of the public domain. Upon the other hand, the miscellaneous sales application of appellant Augusto Josue had already been rejected in an Order of the Director of Lands dated 8 January 1954. Appellants allege having built mixed residential and commercial buildings on Lot 2. The evidence of record discloses that appellants had secured the appropriate municipal permits or licenses therefor, that is, for the construction of said buildings as well as the carrying on of business therein. However, since the lease, sale or any other form of concession or disposition and management of lands of the public domain was directly under the executive control of the Director of Lands, and not of local government officials, the Malabon Municipal Mayor must be held to have exceeded his authority in allowing the use of lands of the public domain to appellants by constructing thereon commercial and residential use buildings, or any other kind of building for that matter. Patalinghug v. CA (1994) Facts: On November 17, 1982, the Sangguniang Panlungsod of Davao City enacted Ordinance No. 363, series of 1982 otherwise known as the "Expanded Zoning Ordinance of Davao City." Petitioner was able to obtain a building permit for the construction of a funeral parlor. Thereafter, petitioner commenced the construction of his funeral parlor. Acting on the complaint of several residents of Barangay Agdao, Davao City that the construction of petitioner's funeral parlor violated Ordinance No. 363, since it was allegedly situated within a 50meter radius from the Iglesia ni Kristo Chapel and several residential structures, the nearest residential structure, owned by Wilfred G. Tepoot is only 8 inches to the south. Private respondents filed a case for the declaration of nullity of the building permit. After conducting an inspection, the court dismissed the complaint holding that (a) the chapel is 55.95 meters away from the funeral parlor and (b) the building owned by Mr. Tepoot is being rented to Mr. Asiaten who devotes said place to his laundry business. On appeal, the CA reversed. It disagreed with the lower court's determination that Tepoot's building was commercial and ruled that although it was used by Mr. Tepoot's lessee for laundry business, it was a residential lot as reflected in the tax declaration, thus paving the way for the application of Ordinance No. 363. Issue: WON petitioner's operation of a funeral home constitutes permissible use within a particular district or zone in Davao City. Held: Yes Ratio: In the case at bar, the testimony of City Councilor Vergara shows that Mr. Tepoot's building was used for a dual purpose both as a dwelling and as a place where a laundry business was conducted. 8 But while its commercial aspect has been established by the presence of machineries and laundry paraphernalia, its use as a residence, other than being declared for taxation purposes as such, was not fully substantiated. The reversal by the CA of the trial court's decision was based on Tepoot's building being declared for taxation purposes as residential. It is our considered view, however, that a tax declaration is not conclusive of the nature of the property for zoning purposes. A property may have been declared by its owner as residential for real estate taxation purposes but it may well be within a commercial zone. A discrepancy may thus exist in the determination of the nature of property for real estate taxation purposes vis-a-vis the determination of a property for zoning purposes. Needless to say, even if we are to examine the evidentiary value of a tax declaration under the Real Property Tax Code, a tax declaration only enables the assessor to identify the same for assessment levels. In fact, a tax declaration does not bind a provincial/city assessor, for under Sec. 22 of the Real Estate Tax Code, appraisal and assessment are based on the actual use irrespective of "any previous assessment or taxpayer's valuation thereon," which is based on a taxpayer's declaration. In fact, a piece of land declared by a taxpayer as residential may be assessed by the provincial or city assessor as commercial because its actual use is commercial. The trial court's determination that Mr. Tepoot's building is commercial and, therefore, Sec. 8 is inapplicable, is strengthened by the fact that the Sanggunian has declared the questioned area as commercial. Consequently, even if Tepoot's building was declared for taxation purposes as

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residential, once a local government has reclassified an area as commercial, that determination for zoning purposes must prevail. While the commercial character of the questioned vicinity has been declared thru the ordinance, private respondents have failed to present convincing arguments to substantiate their claim that Cabaguio Ave, where the funeral parlor was constructed, was still a residential zone. Unquestionably, the operation of a funeral parlor constitutes a "commercial purpose," as gleaned from Ordinance 363. The declaration of the said area as a commercial zone thru a municipal ordinance is an exercise of police power to promote the good order and general welfare of the people in the locality. Corollary thereto, the state, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the state and to this fundamental aim of government, the rights of the individual may be subordinated. The ordinance which regulates the location of funeral homes has been adopted as part of comprehensive zoning plans for the orderly development of the area covered thereunder. Powers of municipal corporations/local governments 8.1 Police Power: Binay v. Domingo ( 1991) supra. Ratio: The police power is a governmental function, an inherent attribute of sovereignty, which was born with civilized government. It is founded largely on the maxims, "Sic utere tuo et ahenum non laedas and "Salus populi est suprema lex Its fundamental purpose is securing the general welfare, comfort and convenience of the people. Police power is inherent in the state but not in municipal corporations). Before a municipal corporation may exercise such power, there must be a valid delegation of such power by the legislature which is the repository of the inherent powers of the State. A valid delegation of police power may arise from express delegation, or be inferred from the mere fact of the creation of the municipal corporation; and as a general rule, municipal corporations may exercise police powers within the fair intent and purpose of their creation which are reasonably proper to give effect to the powers expressly granted, and statutes conferring powers on public corporations have been construed as empowering them to do the things essential to the enjoyment of life and desirable for the safety of the people. Municipal governments exercise this power under the general welfare clause: pursuant thereto they are clothed with authority to "enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein." And under Section 7 of BP 337, "every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary and proper for governance such as to promote health and safety, enhance prosperity, improve morals, and maintain peace and order in the local government unit, and preserve the comfort and convenience of the inhabitants therein." Police power is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. It is the most essential, insistent, and illimitable of powers. In a sense it is the greatest and most powerful attribute of the government. The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the duty to provide for the real needs of the people in their health, safety, comfort, and convenience as consistently as may be with private rights. It extends to all the great public needs, and, in a broad sense includes all legislation and almost every function of the municipal government. It covers a wide scope of subjects, and, while it is especially occupied with whatever affects the peace, security, health, morals, and general welfare of the community, it is not limited thereto, but is broadened to deal with conditions which exists so as to bring out of them the greatest welfare of the people by promoting public convenience or general prosperity, and to everything worthwhile for the preservation of comfort of the inhabitants of the corporation. Thus, it is deemed inadvisable to attempt to frame any definition which shall absolutely indicate the limits of police power.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

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Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

Chua Huat v. CA (1991) Facts: First case is a petition for review on certiorari of the decision of the CA and the second is a petition for prohibition with PI directed against the notices of condemnation and demolition orders issued by the City Engineer upon authority of the City Mayor. In a civil case, the CFI sentenced the petitioners to pay one Uy certain sums of money as well as to vacate the property and surrender to the same Uy. The CA affirmed. Petitioners, except Ong Choan, filed a petition for review on certiorari with the SC contending that the case is actually an unlawful detainer case, and therefore the CFI had no jurisdiction over it. The SC denied the petition. After the decision in the civil case became final and executory, the private respondents filed a motion to execute the same. The court granted this. Petitioner Chua Huat filed with the CFI a complaint for the annulment of judgment on the ground that the CFI has no jurisdiction over the civil case which was one for ejectment and not for recovery of possession. Despite the case, the CFI ordered the execution of the judgment. The petitioners filed a Petition for Certiorari and Prohibition with the CA to set aside the order of execution of judgment and to prohibit the respondents from executing the judgment. The CA denied the petition for lack of merit. The CA invoked finality of judgment and res judicata. On appeal, petitioners contend that there is no res judicata as there is no identity of causes of action (annulment of judgment, recovery of poseession). Issue: WON the present action is barred by res judicata Held: Yes Ratio: The records of the two cases will bear it out that the issue of lack of jurisdiction (which is the cause of action in Civil Case No. 119751) has been squarely ruled upon, not only by the trial court in Civil Case No. 74634 but also by the Court of Appeals and by the Supreme Court. Plaintiff-appellant further contends that since the issue of jurisdiction in Civil Case No. 74634 was raised in their MR before the CA in CA-G.R. No. 51337-R, the CA did not, in its resolution denying said motion, pass on the same and on appeal by petition for review to the Supreme Court in L47603 and L-48649, where the same issue among others was raised, the High Court in its minutes' (sic) did not rule squarely on said issue. We find the same likewise untenable. Issues raised by the parties in their brief and passed upon subsilencio by the appellate court in a decision which has become final and executory are considered closed and can no longer be revived by the parties in a subsequent litigation without doing violence to the principle of res judicata. What more, neither the Supreme Court nor the Appellate Court is duty bound to discuss the pros and cons of appellant's argument. Tatel v. Mun. of Virac (1992) Facts: On the basis of the complaints received from the residents of barrio Sta. Elena against the disturbance caused by the operation of the abaca bailing machine inside petitioners warehouse which emitted obnoxious odor and dust, a committee was appointed by the municipal council of Virac to investigate the matter. The committee noted that the warehouse was near residential houses and that the inflammable materials inside created danger to the lives and properties of the people within the neighborhood. Resolution 29 was passed by the Municipal Council declaring the warehouse as a public nuisance within the purview of Article 694 of the CC. The petitioners MR was denied. Petitioner filed a petition for prohibition with preliminary injunction with the CFI enjoining them from enforcing Resolution 29 of the Council. The municipal officials contend that the warehouse was constructed in violation of Ordinance No. 134, s 1952, prohibiting the construction of warehouses near a block of houses either in the poblacion or barrios without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. Petitioner contends that said ordinance is unconstitutional, contrary to the due process and equal protection clause of the Constitution and null and void for not having been passed in accordance with law. The court ruled in favor of the municipal council and held that the ordinance was a legitimate and valid exercise of police power by the municipal council. Issue: WON the enactment was pursuant to a legitimate exercise of police power
4

AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.

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Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

Held: Yes Ratio: Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with the police powers in order to effectively accomplish and carry out the declared objects of their creation. Its authority emanates from the general welfare clause under the Administrative Code. For an ordinance to be valid, it must not only be within the corporate powers of the municipality to enact but must also be passed according to the procedure prescribed by law, and must be in consonance with certain well established and basic principles of a substantive nature. These principles require that a municipal ordinance (1) must not contravene the Constitution or any statute (2) must not be unfair or oppressive (3) must not be partial or discriminatory (4) must not prohibit but may regulate trade (5) must be general and consistent with public policy, and (6) must not be unreasonable. Ordinance No. 13, s1952, meets these criteria. In spite of its fractured syntax, basically, what is regulated by the ordinance is the construction of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200 meters from a block of houses and not the construction per se of a warehouse. The purpose is to avoid the loss of life and property in case of fire which is one of the primordial obligation of the government. Experience, however, will show that this is not uncommon in law making bodies in small towns where local authorities and in particular the persons charged with the drafting and preparation of municipal resolutions and ordinances lack sufficient education and training and are not well grounded even on the basic and fundamental elements of the English language commonly used throughout the country in such matters. The ambiguity therefore is more apparent than real and springs from simple error in grammar but otherwise, the meaning and intent is clear that what is prohibited is the construction or maintenance of warehouses for the storage of inflammable articles at a distance within 200 meters from a block of houses either in the poblacion or in the barrios. And the purpose of the ordinance is to avoid loss of life and property in case of accidental fire which is one of the primordial and basic obligation of any government. As to the contention, that warehouses similarly situated as that of the petitioner were not prosecuted, the mere fact that the municipal authorities have not proceeded against other warehouses in the municipality allegedly violating Ordinance 13 is no reason to claim that the ordinance is discriminatory. A distinction must be made between the law itself and the manner in which said law is implemented by the agencies in charge with its administration/enforcement. There is no valid reason for the petitioner to complain, in the absence of proof that the other bodegas mentioned by him are operating in violation of the ordinance and that the complaints have been lodged against the bodegas concerned without the municipal authorities doing anything about it. The objections interposed by the petitioner to the validity of the ordinance have not been substantiated. Its purpose is well within the objectives of sound government. No undue restraint is placed upon the petitioner or for anybody to engage in trade but merely a prohibition from storing inflammable products in the warehouse because of the danger of fire to the lives and properties of the people residing in the vicinity. As far as public policy is concerned, there can be no better policy than what has been conceived by the municipal government. Power of Mayor to issue permits for rallies; BP 880 Bayan v. Ermita (2006) Issue: They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. PERMIT IS REQUIRED! LG SHOULD PLACE FREEDOM PARKS! Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the national streets and parks.

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There is no question as to the petitioners rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the peoples exercise of these rights. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to ones destructive urges is to call for condemnation. It is to make a mockery of the high estate Held: In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors office to allow proper coordination and orderly activities. Disposition. Petition GRANTED and respondents are DIRECTED comply with Section 15 of BP No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After 30 days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is VOID. The constitutionality of Batas Pambansa No. 880 is SUSTAINED. 8.2 Power of taxation: local taxes and real property tax Local taxation: Basco v. Phil Amusement and Gaming Corp (1991) Manila, being a mere municipal corporation, has no inherent right to impose taxes. Congress has the power of control over local governments. If Congress can grant Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. LGUs also have no power to tax instrumentalities of the National Government. PAGCOR, being such, should be and actually is exempt from local taxes. Otherwise, mere creatures of the State can defeat national policies thru extermination of what local authorities may perceive to be undesirable activities or enterprise using the power to tax as a tool for regulation. From class notes: LGU no inherent power to tax? Not exactly true, because there is constitutional basis (but cant say that it is inherent) BASCO IS NO LONGER GOOD LAW!!! Phil Petroleum Corp v. Mun. of Pililia (1991) Facts: Petitioner is a business enterprise engaged in the manufacture of lubricated oil basestock which is a petroleum product, with its refinery plant situated at Malaya, Pililla, Rizal. PPC owns and maintains an oil refinery including 49 storage tanks for its petroleum products in Malaya, Pililla, Rizal. Under Section 142 of the NIRC of 1939, manufactured oils and other fuels are subject to specific tax. On June 28, 1973, PD 231 (Local Tax Code) was issued enacted. Sections 19 and 19 (a) provide that the municipality may impose taxes on business, except on those for which fixed taxes are provided

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

45 | L o c a l

on manufacturers, importers or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, repackers, and compounders of liquors, distilled spirits and/or wines in accordance with the schedule listed therein. The Secretary of Finance issued Provincial Circular No. 26-73 (December 27, 1973) directed to all provincial, city and municipal treasurers to refrain from collecting any local tax imposed in old or new tax ordinances in the business of manufacturing, wholesaling, retailing, or dealing in petroleum products subject to the specific tax under the NIRC. Provincial Circular No. 26 A-73 (January 9, 1973)was also issued instructing all City Treasurers to refrain from collecting any local tax imposed in tax ordinances enacted before or after the effectivity of the Local Tax Code, on the businesses of manufacturing, wholesaling, retailing, or dealing in, petroleum products subject to the specific tax under the NIRC. Respondent enacted Municipal Tax Ordinance No. 1, S-1974 otherwise known as "The Pililla Tax Code of 1974" which took effect on July 1, 1974. Sections 9 and 10 of the said ordinance imposed a tax on business, except for those for which fixed taxes are provided in the Local Tax Code on manufacturers, importers, or producers of any article of commerce of whatever kind or nature, including brewers, distillers, rectifiers, repackers, and compounders of liquors, distilled spirits and/or wines in accordance with the schedule found in the Local Tax Code, as well as mayor's permit, sanitary inspection fee and storage permit fee for flammable, combustible or explosive substances, while Section 139 of the disputed ordinance imposed surcharges and interests on unpaid taxes, fees or charges . On April 13, 1974, P.D. 436 was promulgated increasing the specific tax on lubricating oils, gasoline, bunker fuel oil, diesel fuel oil and other similar petroleum products levied under Sections 142, 144 and 145 of the NIRC, and granting provinces, cities and municipalities certain shares in the specific tax on such products in lieu of local taxes imposed on petroleum products. The questioned Municipal Tax Ordinance No. 1 was reviewed and approved by the Provincial Treasurer of Rizal, but was not implemented and/or enforced by the Municipality of Pililla because of its having been suspended up to now in view of Provincial Circular Nos. 26-73 and 26 A-73. On June 3, 1977, P.D. 1158 otherwise known as the National Internal Revenue Code of 1977 was enacted, Section 153 of which specifically imposes specific tax on refined and manufactured mineral oils and motor fuels. Enforcing the provisions of the ordinance, the respondent filed a complaint against PPC for the collection of the business tax from 1979 to 1986; storage permit fees from 1975 to 1986; mayor's permit and sanitary inspection fees from 1975 to 1984. PPC, however, have already paid the lastnamed fees starting 1985. The RTC rendered a decision against petitioner. Issue: WON PPC whose oil products are subject to specific tax under the NIRC, is still liable to pay (a) tax on business and (b) storage fees, considering Provincial Circular No. 6-77; and mayor's permit and sanitary inspection fee unto the respondent Municipality of Pililla, Rizal, based on Municipal Ordinance No. 1 Held: Yes Ratio: PPC contends that: (a) Provincial Circular No. 2673 declared as contrary to national economic policy the imposition of local taxes on the manufacture of petroleum products as they are already subject to specific tax under the National Internal Revenue Code; (b) the above declaration covers not only old tax ordinances but new ones, as well as those which may be enacted in the future; (c) both Provincial Circulars (PC) 26-73 and 26 A-73 are still effective, hence, unless and until revoked, any effort on the part of the respondent to collect the suspended tax on business from the petitioner would be illegal and unauthorized; and (d) Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products. PC No. 26-73 and PC No. 26 A-73 suspended the effectivity of local tax ordinances imposing a tax on business under Section 19 (a) of the Local Tax Code, with regard to manufacturers, retailers, wholesalers or dealers in petroleum products subject to the specific tax under the NIRC, in view of Section 22 (b) of the Code regarding non-imposition by municipalities of taxes on articles, subject to specific tax under the provisions of the NIRC. There is no question that Pililla's Municipal Tax Ordinance No. 1 imposing the assailed taxes, fees and charges is valid especially Section 9 (A) which according to the trial court "was lifted in toto and/or is a literal reproduction of Section 19 (a) of the Local Tax Code as amended by P.D. No. 426." It conforms with the mandate of said law.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

46 | L o c a l

But P.D. No. 426 amending the Local Tax Code is deemed to have repealed Provincial Circular Nos. 26-73 and 26 A-73 issued by the Secretary of Finance when Sections 19 and 19 (a), were carried over into P.D. No. 426 and no exemptions were given to manufacturers, wholesalers, retailers, or dealers in petroleum products. Well-settled is the rule that administrative regulations must be in harmony with the provisions of the law. In case of discrepancy between the basic law and an implementing rule or regulation, the former prevails. Furthermore, while Section 2 of P.D. 436 prohibits the imposition of local taxes on petroleum products, said decree did not amend Sections 19 and 19 (a) of P.D. 231 as amended by P.D. 426, wherein the municipality is granted the right to levy taxes on business of manufacturers, importers, producers of any article of commerce of whatever kind or nature. A tax on business is distinct from a tax on the article itself. Thus, if the imposition of tax on business of manufacturers, etc. in petroleum products contravenes a declared national policy, it should have been expressly stated in P.D. No. 436. The exercise by local governments of the power to tax is ordained by the present Constitution. To allow the continuous effectivity of the prohibition set forth in PC No. 26-73 (1) would be tantamount to restricting their power to tax by mere administrative issuances. Under Section 5, Article X of the 1987 Constitution, only guidelines and limitations that may be established by Congress can define and limit such power of local governments. Provincial Circular No. 6-77 enjoining all city and municipal treasurers to refrain from collecting the so-called storage fee on flammable or combustible materials imposed in the local tax ordinance of their respective locality frees petitioner PPC from the payment of storage permit fee. The storage permit fee being imposed by Pililla's tax ordinance is a fee for the installation and keeping in storage of any flammable, combustible or explosive substances. Inasmuch as said storage makes use of tanks owned not by the municipality of Pililla, but by petitioner PPC, same is obviously not a charge for any service rendered by the municipality as what is envisioned in Section 37 of the same Code. Section 10 (z) (13) of Pililla's Municipal Tax Ordinance No. 1 prescribing a permit fee is a permit fee allowed under Section 36 of the amended Code. As to the authority of the mayor to waive payment of the mayor's permit and sanitary inspection fees, the trial court did not err in holding that "since the power to tax includes the power to exempt thereof which is essentially a legislative prerogative, it follows that a municipal mayor who is an executive officer may not unilaterally withdraw such an expression of a policy thru the enactment of a tax." The waiver partakes of the nature of an exemption. It is an ancient rule that exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority. Tax exemptions are looked upon with disfavor. Thus, in the absence of a clear and express exemption from the payment of said fees, the waiver cannot be recognized. As already stated, it is the law-making body, and not an executive like the mayor, who can make an exemption. Under Section 36 of the Code, a permit fee like the mayor's permit, shall be required before any individual or juridical entity shall engage in any business or occupation under the provisions of the Code. However, since the Local Tax Code does not provide the prescriptive period for collection of local taxes, Article 1143 of the Civil Code applies. Said law provides that an action upon an obligation created by law prescribes within ten (10) years from the time the right of action accrues. The Municipality of Pililla can therefore enforce the collection of the tax on business of petitioner PPC due from 1976 to 1986, and NOT the tax that had accrued prior to 1976. Floro Cement Corporation v. Gorospe (1991) Facts: The municipality of Lugait filed with the SC a verified complaint for collection of taxes against the defendant Floro Cement Corporation. The taxes sought to be collected by the plaintiff refers to "manufacturers" and' exporter's "taxes for the period from January 1, 1974 to September 30, 1975, inclusive, in the total amount of P161,875.00 plus 25% thereof as surcharge. Plaintiff alleged that the imposition and collection of these taxes" is based on its Municipal Ordinance No. 5, otherwise known as the Municipal Revenue Code of 1974, which was passed pursuant to PD 231 and also Municipal Ordinance No. 10 passed pursuant PD 426,amending PD 231. Petitioner set up the defense that it is not liable to pay manufacturer's and exporter's taxes alleging among others that the plaintiffs power to levy and collect taxes, fees, rentals, royalties or charges of any kind whatsoever on defendant has been limited or withdrawn by Section 52 of PD 463. It also contended that the defendant was granted by the Secretary of Agriculture and Natural Resources a Certificate of Qualification for Tax Exemption, entitling defendant to exemption for a period of 5 years from April 30,1969 to April 29, 1974 from payment of all taxes, except income

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

47 | L o c a l

tax, and which Certificate was amended on November 5, 1974 CQTE P.D. 463-22), entitling defendant to exemption from all taxes, duties and fees except income tax, for five (5) years from the first date of actual commercial production of saleable mineral products that is from May 17, 1974 to January 1, 1978; and that RA 3823, as implemented by Mines Administrative Order No. V25, and P.D. No. 463 which are the basis for the exemption granted to defendant are special laws whereas, the municipal ordinance mentioned in the complaint which are based on P.D. No. 231 and P.D No. 426, respectively, are general laws; and that it is axiomatic that a special law can not be amended and/or repealed by a general law unless there is an express intent to repeal or abrogate the provisions of the special law. The trial court rendered a decision ordering defendant to pay the amount of P161,875 as manufacturers and exporters taxes and surcharges. Issue: WON Ordinances Nos. 5 and 10 of Lugait apply to Floro Corporation notwithstanding the limitation on the taxing power of local government as provided for in Sec. 52 of P.D. 231 and Sec. 52 of P.D. 463. Held: Yes Ratio: Floro Cement Corporation holds that since Ordinances Nos. 5 and 10 were enacted pursuant to P.D. No. 231 and P.D. No. 426, respectively, said ordinances do not apply to its business in view of the limitation on the taxing power of local government provided in Sec. 5m of P.D. No. 231 [(m) Taxes on mines, mining operations and mineral products and their by-products when sold domestically by the operator.]. Petitioner likewise contends that cement is a mineral product, relying on the case of Cebu Portland Cement Company vs. CIR. Petitioner further contends that the partial exemption was rendered absolute by Sec. 52 of P.D. No. 463, which expressly prohibits the province, city municipality, barrio and municipal district from levying and collecting taxes, fees, rentals, royalties or charges of any kind whatsoever on mines, mining claims and mineral products, any law to the contrary notwithstanding. On other hand, while respondent municipality admits that petitioner undertakes exploration, development and exploitation of mineral products, the taxes sought to be collected were not imposed on these activities in view of the mentioned prohibition under Sec. 52 of P.D. No. 463. Said taxes were levied on the corporation's business of manufacturing and exporting cement. The business of manufacturing and exporting cement does not fall under exploration, development nor exploitation of mineral resources as defined in Sec. 2 of P.D. No. 463, hence, it is outside the scope of application of Sec. 52 of said decree. On the question of whether or not cement is a mineral product, this Court has held that it is not a mineral product but rather a manufactured product. While cement is composed of 80% minerals, it is not merely an admixture or blending of raw materials, as lime, silica, shale and others. It is the result of a definite process-the crushing of minerals, grinding, mixing, calcining adding of retarder or raw gypsum In short, before cement reaches its saleable form, the minerals had already undergone a chemical change through manufacturing process. It appears that the foregoing cases overruled the case of Cebu Portland Cement Company vs. CIR which was cited by petitioner. On the exemption claimed by petitioner, this Court has laid down the rule that as the power of taxation is a high prerogative of sovereignty, the relinquishment is never presumed and any reduction or diminution thereof with respect to its mode or its rate, must be strictly construed, and the same must be coached in clear and unmistakable terms in order that it may be applied. More specifically stated, the general rule is that any claim for exemption from the tax statute should be strictly construed against the taxpayer. He who claims an exemption must be able to point out some provision of law creating the right; it cannot be allowed to exist upon a mere vague implication or inference. It must be shown indubitably to exist, for every presumption is against it, and a well-founded doubt is fatal to the claim. The petitioner failed to meet this requirement. As held by the lower court, the exemption mentioned in Sec. 52 of P.D. No. 463 refers only to machineries, equipment, tools for production, etc., as provided in Sec. 53 of the same decree. The manufacture and the export of cement does not fall under the said provision for it is not a mineral product. It is not cement that is mined only the mineral products composing the finished product. Furthermore, by the parties' own stipulation of facts submitted before the court a quo, it is admitted that Floro Cement Corporation is engaged in the manufacturing and selling, including exporting of cement. As such, and since the taxes sought to be collected were levied on these activities pursuant to Sec. 19 of P.D. No. 231, Ordinances Nos. 5 and 10, which were enacted pursuant to P.D. No. 231 and P.D. No. 426, respectively, properly apply to petitioner.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

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Government

(Guanzon)

S.Y.

08-09:

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Tuzon and Mapagu v. CA (1992) Facts: On March 14, 1977, Sangguniang Bayan of Camalaniugan, Cagayan, adopted Resolution No. 95 Soon Saturnino Jurado sent his agent to the municipal treasurer's office to pay the license fee of P285 for thresher operators. Mapagu refused to accept the payment and required him to first secure a mayor's permit. For his part, Mayor Domingo Tuzon said that Jurado should first comply with Resolution 9 and sign the agreement before the permit could be issued. Jurado ignored the requirement. Instead, he sent the P285 license fee by postal money order to the office of the treasurer who, returned the said amount. The reason given was the failure of the respondent to comply with Resolution No. 9. Jurado filed with the CFICagayan a special civil action for mandamus with actual and moral damages to compel the issuance of the mayor's permit and license. He also filed a declaratory judgment against the said resolution (and the implementing agreement) for being illegal either as a donation or as a tax measure. The trial court upheld the challenged measure. However, it dismissed the claims for damages of both parties for lack of evidence. The CA affirmed, nevertheless, it found Tuzon and Mapagu to have acted maliciously and in bad faith when they denied Jurado's application for the mayor's permit and license. Consequently, they were held liable to pay damages. On appeal, petitioners stress that they were acting in their official capacity and therefore they should not be liable for damages. Jurado claimed that the refusal to issue the permit and license constituted bad faith on the part of petitioners. Also, he claimed that Resolution 9 contravened the limitations on the taxing powers of LGUs under Section 5 of the Tax Code. Issue: WON the Resolution is valid Held: Yes Ratio: We need not concern ourselves at this time with the validity of Resolution 9 and the implementing agreement because the issue has not been raised in this petition as an assigned error of the respondent court. The measures have been sustained in the challenged decision, from which the respondent has not appealed. The decision is final and binding as to him. We may observe at this time that in sustaining Resolution No. 9, the CA said no more than that: It was passed by the Sangguniang Bayan of Camalaniugan in the lawful exercise of its legislative powers in pursuance to Article XI, Section 5 of the 1973 Constitution which provided that: "Each local government unit shall have the power to create its own source of revenue and to levy taxes, subject to such limitation as may be provided by law." And under Article 4, Section 29 of PD 231 (Enacting a Local Tax Code for Provinces, Cities, Municipalities and Barrios), it is provided that: Section 29. Contributions.In addition to the above specified taxing and other revenue-raising powers, the barrio council may solicit monies, materials, and other contributions from the following sources: (c) Monies from private agencies and individuals." That is an over simplification. The CA has not offered any explanation for its conclusion that the challenged measures are valid nor does it discuss its own concept of the nature of the resolution. While it would appear from the wording of the resolution that the municipal government merely intends to "solicit" the 1% contribution from the threshers, the implementing agreement seems to make the donation obligatory and a condition precedent to the issuance of the mayor's permit. This goes against the nature of a donation, which is an act of liberality and is never obligatory. If, on the other hand, it is to be considered a tax ordinance, then it must be shown in view of the challenge raised by the private respondents to have been enacted in accordance with the requirements of the Local Tax Code. These would include the holding of a public hearing on the measure and its subsequent approval by the Secretary of Finance, in addition to the usual requisites for publication of ordinances in general. Issue: WON petitioners are liable for damages Held: No Ratio: The private respondent anchors his claim for damages on Article 27 CC (Refusal to Render Service). It has been remarked that one purpose of this article is to end the "bribery system, where the public official, for some flimsy excuse, delays or refuses the performance of his duty
5

Find raising scheme to finance the construction of the Sports and Nutrition Center Building by soliciting 1% donation form the thresher operators who will apply for a permit to thresh within the municipality.

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until he gets some kind of pabagsak." Official inaction may also be due to plain indolence or a cynical indifference to the responsibilities of public service. The provision presupposes that the refusal or omission of a public official to perform his official duty is attributable to malice or inexcusable negligence. In any event, the erring public functionary is justly punishable under this article for whatever loss or damage the complainant has sustained. In the present case, it has not even been alleged that the Mayor Tuzon's refusal to act on the private respondent's application was an attempt to compel him to resort to bribery to obtain approval of his application. It cannot be said either that the mayor and the municipal treasurer were motivated by spite or were grossly negligent in refusing to issue the permit and license to Jurado. It is no less significant that no evidence has been offered to show that the petitioners singled out the private respondent for persecution. Neither does it appear that the petitioners stood to gain personally from refusing to issue to Jurado the mayor's permit and license he needed. The petitioners were not Jurado's business competitors nor has it been established that they intended to favor his competitors. On the contrary, the record discloses that the resolution was uniformly applied to all the threshers in the municipality without discrimination or preference. The Court is convinced that the petitioners acted within the scope of their authority and in consonance with their honest interpretation of the resolution in question. We agree that it was not for them to rule on its validity. In the absence of a judicial decision declaring it invalid, its legality would have to be presumed (in fact, both the trial court and the appellate court said there was nothing wrong with it). As executive officials of the municipality, they had the duty to enforce it as long as it had not been repealed by the Sangguniang Bayan or annulled by the courts. The private respondent complains that as a result of the petitioners' acts, he was prevented from operating his business all this time and earning substantial profit therefrom, as he had in previous years. But as the petitioners correctly observed, he could have taken the prudent course of signing the agreement under protest and later challenging it in court to relieve him of the obligation to "donate." Pendente lite, he could have continued to operate his threshing business and thus avoided the lucro cesante that he now says was the consequence of the petitioners' wrongful act. He could have opted for the less obstinate but still dissentient action, without loss of face, or principle, or profit. Franchises PLDT v. City of Davao (2001) PLDT is liable for the local franchise tax. Section 137 does not state that it covers future exemptions. The grant of taxing powers to LGU's in the consti and the LGC does not affect the power of Congress to grant exemptions in the future. The only legal effect of the constitutional grant to local governemnts: in interpreting statutory provisions on municipal taxing powers, doubts should be resolved in favor of municipal corporations. City Government of Q.C. v. Bayantel (2006) Facts: Bayantel is a legislative franchise holder under RA 3259 to establish and operate radio stations for domestic telecommunications, radiophone, broadcasting and telecasting. Of relevance to this controversy is the tax provision of Rep. Act No. 3259, embodied in Section 14 thereof, which reads: SECTION 14. (a) The grantee shall be liable to pay the same taxes on its real estate, buildings and personal property, exclusive of the franchise, as other persons or corporations are now or hereafter may be required by law to pay. (b) The grantee shall further pay to the Treasurer of the Philippines each year, within ten days after the audit and approval of the accounts as prescribed in this Act, one and one-half per centum of all gross receipts from the business transacted under this franchise by the said grantee The LGC took effect and granted the LGUS within Metro Manila the power to levy on real properties. On July 20, 1992, barely few months after the LGC took effect, Congress enacted RA 7633, amending Bayantel's original franchise. The amendatory law contained an in lieu of taxes clause (3%). In 1993, the government of Quezon City, pursuant to the taxing power vested on local government units by Section 5, Article X of the 1987 Constitution, infra, in relation to Section 232 of the LGC, supra, enacted City Ordinance No. SP-91, S-93, otherwise known as the Quezon City Revenue Code (QCRC), 5 imposing, under Section 5 thereof, a real property tax on all real properties in Quezon

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City, and, reiterating in its Section 6, the withdrawal of exemption from real property tax under Section 234 of the LGC, supra. Furthermore, much like the LGC, the QCRC, under its Section 230, withdrew tax exemption privileges in general. Conformably with the City's Revenue Code, new tax declarations for Bayantel's real properties in Quezon City were issued by the City Assessor and were received by Bayantel on August 13, 1998, except one (Tax Declaration No. 124-01013) which was received on July 14, 1999. Meanwhile, on March 16, 1995, Rep. Act No. 7925, otherwise known as the "Public Telecommunications Policy Act of the Philippines," envisaged to level the playing field among telecommunications companies, took effect. Section 23 of the Act provides an equality clause. On January 7, 1999, Bayantel wrote the office of the City Assessor seeking the exclusion of its real properties in the city from the roll of taxable real properties. With its request having been denied, Bayantel interposed an appeal with the LBAA. And, evidently on its firm belief of its exempt status, Bayantel did not pay the real property taxes assessed against it by the Quezon City government. On account thereof, the Quezon City Treasurer sent out notices of delinquency for the total amount of P43,878,208.18, followed by the issuance of several warrants of levy against Bayantel's properties preparatory to their sale at a public auction set on July 30, 2002. Threatened with the imminent loss of its properties, Bayantel immediately withdrew its appeal with the LBAA and instead filed with the RTC of Quezon City a petition for prohibition with an urgent application for a temporary restraining order (TRO) and/or writ of preliminary injunction. The RTC then rendered judgment exempting Bayantel from taxes. Issue: WON Bayantel failed to exhaust administrative remedies Held: No Ratio: With the reality that Bayantel's real properties were already levied upon on account of its nonpayment of real estate taxes thereon, the Court agrees with Bayantel that an appeal to the LBAA is not a speedy and adequate remedy within the context of the aforequoted Section 2 of Rule 65. This is not to mention of the auction sale of said properties already scheduled on July 30, 2002. Moreover, one of the recognized exceptions to the exhaustion-of-administrative remedies rule is when, as here, only legal issues are to be resolved. In fact, the Court, cognizant of the nature of the questions presently involved, gave due course to the instant petition. As the Court has said in Ty v. Trampe: . . . . Although as a rule, administrative remedies must first be exhausted before resort to judicial action can prosper, there is a well-settled exception in cases where the controversy does not involve questions of fact but only of law. . . . . Lest it be overlooked, an appeal to the LBAA, to be properly considered, required prior payment under protest of the amount of P43,878,208.18, a figure which, in the light of the then prevailing Asian financial crisis, may have been difficult to raise up. Given this reality, an appeal to the LBAA may not be considered as a plain, speedy and adequate remedy. It is thus understandable why Bayantel opted to withdraw its earlier appeal with the LBAA and, instead, filed its petition for prohibition with urgent application for injunctive relief in Civil Case No. Q-02-47292. The remedy availed of by Bayantel under Section 2, Rule 65 of the Rules of Court must be upheld. Issue: WON Bayantel's real properties in Quezon City are, under its franchise, exempt from real property tax. Held: No. Ratio: The lower court resolved the issue in the affirmative, basically owing to the phrase "exclusive of this franchise" found in Section 11 of Bayantel's amended franchise, Rep. Act No. 7633. To petitioners, however, the language of Section 11 of Rep. Act No. 7633 is neither clear nor unequivocal. The elaborate and extensive discussion devoted by the trial court on the meaning and import of said phrase, they add, suggests as much. It is petitioners' thesis that Bayantel was in no time given any express exemption from the payment of real property tax under its amendatory franchise. There seems to be no issue as to Bayantel's exemption from real estate taxes by virtue of the term "exclusive of the franchise" qualifying the phrase "same taxes on its real estate, buildings and personal property," found in Section 14, supra, of its franchise, Rep. Act No. 3259, as originally granted.

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The legislative intent expressed in the phrase "exclusive of this franchise" cannot be construed other than distinguishing between two (2) sets of properties, be they real or personal, owned by the franchisee, namely, (a) those actually, directly and exclusively used in its radio or telecommunications business, and (b) those properties which are not so used. It is worthy to note that the properties subject of the present controversy are only those which are admittedly falling under the first category. To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively works to grant or delegate to local governments of Congress' inherent power to tax the franchisee's properties belonging to the second group of properties indicated above, that is, all properties which, "exclusive of this franchise," are not actually and directly used in the pursuit of its franchise. As may be recalled, the taxing power of local governments under both the 1935 and the 1973 Constitutions solely depended upon an enabling law. Absent such enabling law, local government units were without authority to impose and collect taxes on real properties within their respective territorial jurisdictions. While Section 14 of Rep. Act No. 3259 may be validly viewed as an implied delegation of power to tax, the delegation under that provision, as couched, is limited to impositions over properties of the franchisee which are not actually, directly and exclusively used in the pursuit of its franchise. Necessarily, other properties of Bayantel directly used in the pursuit of its business are beyond the pale of the delegated taxing power of local governments. In a very real sense, therefore, real properties of Bayantel, save those exclusive of its franchise, are subject to realty taxes. Ultimately, therefore, the inevitable result was that all realties which are actually, directly and exclusively used in the operation of its franchise are "exempted" from any property tax. Bayantel's franchise being national in character, the "exemption" thus granted under Section 14 of Rep. Act No. 3259 applies to all its real or personal properties found anywhere within the Philippine archipelago. However, with the LGC's taking effect on January 1, 1992, Bayantel's "exemption" from real estate taxes for properties of whatever kind located within the Metro Manila area was, by force of Section 234 of the Code, supra, expressly withdrawn. But, not long thereafter, however, or on July 20, 1992, Congress passed Rep. Act No. 7633 amending Bayantel's original franchise. Worthy of note is that Section 11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision, i.e., Section 14, supra, of Bayantel's original franchise under Rep. Act No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which was deemed impliedly repealed by Section 234 of the LGC was expressly revived under Section 14 of Rep. Act No. 7633. In concrete terms, the realty tax exemption heretofore enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force of Section 234 of the LGC, has been restored by Section 14 of Rep. Act No. 7633. The Court has taken stock of the fact that by virtue of Section 5, Article X of the 1987 Constitution, local governments are empowered to levy taxes. And pursuant to this constitutional empowerment, juxtaposed with Section 232 of the LGC, the Quezon City government enacted in 1993 its local Revenue Code, imposing real property tax on all real properties found within its territorial jurisdiction. And as earlier stated, the City's Revenue Code, just like the LGC, expressly withdrew, under Section 230 thereof, supra, all tax exemption privileges in general. This thus raises the question of whether or not the City's Revenue Code pursuant to which the city treasurer of Quezon City levied real property taxes against Bayantel's real properties located within the City effectively withdrew the tax exemption enjoyed by Bayantel under its franchise, as amended. Bayantel answers the poser in the negative arguing that once again it is only "liable to pay the same taxes, as any other persons or corporations on all its real or personal properties, exclusive of its franchise." Bayantel's posture is well-taken. While the system of local government taxation has changed with the onset of the 1987 Constitution, the power of local government units to tax is still limited. As we explained in Mactan Cebu International Airport Authority: The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred 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. Clearly then, while a new slant on the subject of local taxation now prevails in the sense that the former doctrine of local government units' delegated power to tax had been effectively modified with Article X, Section 5 of the 1987 Constitution now in place, the basic doctrine on local taxation remains essentially the same. For as the Court stressed in Mactan, "the power to tax is (still) primarily vested in the Congress."

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This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the 1986 Constitutional Commission which crafted the 1987 Constitution, thus: What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. They no longer have to wait for a statutory grant of these powers. The power of the legislative authority relative to the fiscal powers of local governments has been reduced to the authority to impose limitations on municipal powers. Moreover, these limitations must be "consistent with the basic policy of local autonomy." The important legal effect of Section 5 is thus to reverse the principle that doubts are resolved against municipal corporations. Henceforth, in interpreting statutory provisions on municipal fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood, however, that taxes imposed by local government must be for a public purpose, uniform within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit to pass. In net effect, the controversy presently before the Court involves, at bottom, a clash between the inherent taxing power of the legislature, which necessarily includes the power to exempt, and the local government's delegated power to tax under the aegis of the 1987 Constitution. Now to go back to the Quezon City Revenue Code which imposed real estate taxes on all real properties within the city's territory and removed exemptions theretofore "previously granted to, or presently enjoyed by all persons, whether natural or juridical . . . .," there can really be no dispute that the power of the Quezon City Government to tax is limited by Section 232 of the LGC which expressly provides that "a province or city or municipality within the Metropolitan Manila Area may levy an annual ad valorem tax on real property such as land, building, machinery, and other improvement not hereinafter specifically exempted." Under this law, the Legislature highlighted its power to thereafter exempt certain realties from the taxing power of local government units. An interpretation denying Congress such power to exempt would reduce the phrase "not hereinafter specifically exempted" as a pure jargon, without meaning whatsoever. Needless to state, such absurd situation is unacceptable. For sure, in PLDT v. City of Davao, this Court has upheld the power of Congress to grant exemptions over the power of local government units to impose taxes. There, the Court wrote: Indeed, the grant of taxing powers to local government units under the Constitution and the LGC does not affect the power of Congress to grant exemptions to certain persons, pursuant to a declared national policy. The legal effect of the constitutional grant to local governments simply means that in interpreting statutory provisions on municipal taxing powers, doubts must be resolved in favor of municipal corporations. As we see it, then, the issue in this case no longer dwells on whether Congress has the power to exempt Bayantel's properties from realty taxes by its enactment of Rep. Act No. 7633 which amended Bayantel's original franchise. The more decisive question turns on whether Congress actually did exempt Bayantel's properties at all by virtue of Section 11 of Rep. Act No. 7633. Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC. Perfectly aware that the LGC has already withdrawn Bayantel's former exemption from realty taxes, Congress opted to pass Rep. Act No. 7633 using, under Section 11 thereof, exactly the same defining phrase "exclusive of this franchise" which was the basis for Bayantel's exemption from realty taxes prior to the LGC. In plain language, Section 11 of Rep. Act No. 7633 states that "the grantee, its successors or assigns shall be liable to pay the same taxes on their real estate, buildings and personal property, exclusive of this franchise, as other persons or corporations are now or hereafter may be required by law to pay." The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGC's delegated taxing power, all of the franchisee's (Bayantel's) properties that are actually, directly and exclusively used in the pursuit of its franchise. FELS Enregy v. Prov. Of Batangas (2007) Facts: On January 18, 1993, NPC entered into a lease contract with Polar Energy, Inc. over 3x30 MW diesel engine power barges moored at Balayan Bay in Calaca, Batangas. The contract, denominated as an Energy Conversion Agreement, was for a period of five years. Article 10 states that NPC shall be responsible for the payment of taxes. (other than (i) taxes imposed or calculated on the basis of the net income of POLAR and Personal Income Taxes of its employees and (ii) construction permit fees, environmental permit fees and other similar fees and charges. Polar Energy then assigned its rights under the Agreement to Fels despite NPCs initial opposition.

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FELS received an assessment of real property taxes on the power barges from Provincial Assessor Lauro C. Andaya of Batangas City. FELS referred the matter to NPC, reminding it of its obligation under the Agreement to pay all real estate taxes. It then gave NPC the full power and authority to represent it in any conference regarding the real property assessment of the Provincial Assessor. NPC filed a petition with the LBAA. The LBAA ordered Fels to pay the real estate taxes. The LBAA ruled that the power plant facilities, while they may be classified as movable or personal property, are nevertheless considered real property for taxation purposes because they are installed at a specific location with a character of permanency. The LBAA also pointed out that the owner of the bargesFELS, a private corporationis the one being taxed, not NPC. A mere agreement making NPC responsible for the payment of all real estate taxes and assessments will not justify the exemption of FELS; such a privilege can only be granted to NPC and cannot be extended to FELS. Finally, the LBAA also ruled that the petition was filed out of time. Fels appealed to the CBAA. The CBAA reversed and ruled that the power barges belong to NPC; since they are actually, directly and exclusively used by it, the power barges are covered by the exemptions under Section 234(c) of R.A. No. 7160. As to the other jurisdictional issue, the CBAA ruled that prescription did not preclude the NPC from pursuing its claim for tax exemption in accordance with Section 206 of R.A. No. 7160. Upon MR, the CBAA reversed itself. Issue: WON the petition is time barred Held: Yes Ratio: Section 226 of R.A. No. 7160, otherwise known as the Local Government Code of 1991, provides: SECTION 226. Local Board of Assessment Appeals. Any owner or person having legal interest in the property who is not satisfied with the action of the provincial, city or municipal assessor in the assessment of his property may, within sixty (60) days from the date of receipt of the written notice of assessment, appeal to the Board of Assessment Appeals of the province or city by filing a petition under oath in the form prescribed for the purpose, together with copies of the tax declarations and such affidavits or documents submitted in support of the appeal. We note that the notice of assessment which the Provincial Assessor sent to FELS on August 7, 1995, contained a reiteration of Section 226. Instead of appealing to the Board of Assessment Appeals (as stated in the notice), NPC opted to file a motion for reconsideration of the Provincial Assessors decision, a remedy not sanctioned by law. The remedy of appeal to the LBAA is available from an adverse ruling or action of the provincial, city or municipal assessor in the assessment of the property. It follows then that the determination made by the respondent Provincial Assessor with regard to the taxability of the subject real properties falls within its power to assess properties for taxation purposes subject to appeal before the LBAA. We fully agree with the rationalization of the CA, citing the case of Callanta v. Office of the Ombudsman, where we ruled that under Section 226 of R.A. No 7160, the last action of the local assessor on a particular assessment shall be the notice of assessment; it is this last action which gives the owner of the property the right to appeal to the LBAA. The procedure likewise does not permit the property owner the remedy of filing a motion for reconsideration before the local assessor. To reiterate, if the taxpayer fails to appeal in due course, the right of the local government to collect the taxes due with respect to the taxpayers property becomes absolute upon the expiration of the period to appeal. [38] It also bears stressing that the taxpayers failure to question the assessment in the LBAA renders the assessment of the local assessor final, executory and demandable, thus, precluding the taxpayer from questioning the correctness of the assessment, or from invoking any defense that would reopen the question of its liability on the merits. In fine, the LBAA acted correctly when it dismissed the petitioners appeal for having been filed out of time; the CBAA and the appellate court were likewise correct in affirming the dismissal. Elementary is the rule that the perfection of an appeal within the period therefor is both mandatory and jurisdictional, and failure in this regard renders the decision final and executory. Issue: WON the action was barred by res judicata Ratio: Res judicata pervades every organized system of jurisprudence and is founded upon two grounds embodied in various maxims of common law, namely: (1) public policy and necessity,

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which makes it to the interest of the State that there should be an end to litigation republicae ut sit litium; and (2) the hardship on the individual of being vexed twice for the same cause nemo debet bis vexari et eadem causa. A conflicting doctrine would subject the public peace and quiet to the will and dereliction of individuals and prefer the regalement of the litigious disposition on the part of suitors to the preservation of the public tranquility and happiness. This is in accordance with the doctrine of res judicata which has the following elements: (1) the former judgment must be final; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) the judgment must be on the merits; and (4) there must be between the first and the second actions, identity of parties, subject matter and causes of action. The application of the doctrine of res judicata does not require absolute identity of parties but merely substantial identity of parties. There is substantial identity of parties when there is community of interest or privity of interest between a party in the first and a party in the second case even if the first case did not implead the latter. To recall, FELS gave NPC the full power and authority to represent it in any proceeding regarding real property assessment. Therefore, when petitioner NPC filed its petition for review docketed as G.R. No. 165113, it did so not only on its behalf but also on behalf of FELS. Moreover, the assailed decision in the earlier petition for review filed in this Court was the decision of the appellate court in CA-G.R. SP No. 67490, in which FELS was the petitioner. Thus, the decision in G.R. No. 165116 is binding on petitioner FELS under the principle of privity of interest. In fine, FELS and NPC are substantially identical parties as to warrant the application of res judicata. FELSs argument that it is not bound by the erroneous petition filed by NPC is thus unavailing. Issue: WON forum shopping exists in this case Ratio: Forum shopping exists when, as a result of an adverse judgment in one forum, a party seeks another and possibly favorable judgment in another forum other than by appeal or special civil action or certiorari. There is also forum shopping when a party institutes two or more actions or proceedings grounded on the same cause, on the gamble that one or the other court would make a favorable disposition. FELS alleges that there is no forum shopping since the elements of res judicata are not present in the cases at bar; however, as already discussed, res judicata may be properly applied herein. Petitioners engaged in forum shopping when they filed G.R. Nos. 168557 and 170628 after the petition for review in G.R. No. 165116. Indeed, petitioners went from one court to another trying to get a favorable decision from one of the tribunals which allowed them to pursue their cases. It must be stressed that an important factor in determining the existence of forum shopping is the vexation caused to the courts and the parties-litigants by the filing of similar cases to claim substantially the same reliefs. The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Thus, there is forum shopping when there exist: (a) identity of parties, or at least such parties as represent the same interests in both actions, (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts, and (c) the identity of the two preceding particulars is such that any judgment rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other. Having found that the elements of res judicata and forum shopping are present in the consolidated cases, a discussion of the other issues is no longer necessary. Nevertheless, for the peace and contentment of petitioners, we shall shed light on the merits of the case. Issue: WON the petitioner may be assessed real property taxes Held: Yes Ratio: The CBAA and LBAA power barges are real property and are thus subject to real property tax. This is also the inevitable conclusion, considering that G.R. No. 165113 was dismissed for failure to sufficiently show any reversible error. Tax assessments by tax examiners are presumed correct and made in good faith, with the taxpayer having the burden of proving otherwise. [48] Besides, factual findings of administrative bodies, which have acquired expertise in their field, are generally binding and conclusive upon the Court; we will not assume to interfere with the sensible

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exercise of the judgment of men especially trained in appraising property. Where the judicial mind is left in doubt, it is a sound policy to leave the assessment undisturbed. We find no reason to depart from this rule in this case. In Consolidated Edison Company of New York, Inc., et al. v. The City of New York, et al., a power company brought an action to review property tax assessment. On the citys motion to dismiss, the Supreme Court of New York held that the barges on which were mounted gas turbine power plants designated to generate electrical power, the fuel oil barges which supplied fuel oil to the power plant barges, and the accessory equipment mounted on the barges were subject to real property taxation. Moreover, Article 415 (9) of the New Civil Code provides that [d]ocks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast are considered immovable property. Thus, power barges are categorized as immovable property by destination, being in the nature of machinery and other implements intended by the owner for an industry or work which may be carried on in a building or on a piece of land and which tend directly to meet the needs of said industry or work. Petitioners maintain nevertheless that the power barges are exempt from real estate tax under Section 234 (c) of R.A. No. 7160 because they are actually, directly and exclusively used by petitioner NPC, a government- owned and controlled corporation engaged in the supply, generation, and transmission of electric power. We affirm the findings of the LBAA and CBAA that the owner of the taxable properties is petitioner FELS, which in fine, is the entity being taxed by the local government. As stipulated under Section 2.11, Article 2 of the Agreement: OWNERSHIP OF POWER BARGES. POLAR shall own the Power Barges and all the fixtures, fittings, machinery and equipment on the Site used in connection with the Power Barges which have been supplied by it at its own cost. POLAR shall operate, manage and maintain the Power Barges for the purpose of converting Fuel of NAPOCOR into electricity. It follows then that FELS cannot escape liability from the payment of realty taxes by invoking its exemption in Section 234 (c) of R.A. No. 7160. Indeed, the law states that the machinery must be actually, directly and exclusively used by the government owned or controlled corporation; nevertheless, petitioner FELS still cannot find solace in this provision because Section 5.5, Article 5 of the Agreement provides: OPERATION. POLAR undertakes that until the end of the Lease Period, subject to the supply of the necessary Fuel pursuant to Article 6 and to the other provisions hereof, it will operate the Power Barges to convert such Fuel into electricity in accordance with Part A of Article 7. It is a basic rule that obligations arising from a contract have the force of law between the parties. Not being contrary to law, morals, good customs, public order or public policy, the parties to the contract are bound by its terms and conditions. Time and again, the Supreme Court has stated that taxation is the rule and exemption is the exception. The law does not look with favor on tax exemptions and the entity that would seek to be thus privileged must justify it by words too plain to be mistaken and too categorical to be misinterpreted. Thus, applying the rule of strict construction of laws granting tax exemptions, and the rule that doubts should be resolved in favor of provincial corporations, we hold that FELS is considered a taxable entity. The mere undertaking of petitioner NPC under Section 10.1 of the Agreement, that it shall be responsible for the payment of all real estate taxes and assessments, does not justify the exemption. The privilege granted to petitioner NPC cannot be extended to FELS. The covenant is between FELS and NPC and does not bind a third person not privy thereto, in this case, the Province of Batangas. It must be pointed out that the protracted and circuitous litigation has seriously resulted in the local governments deprivation of revenues. The power to tax is an incident of sovereignty and is unlimited in its magnitude, acknowledging in its very nature no perimeter so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax on the constituency who are to pay for it. The right of local government units to collect taxes due must always be upheld to avoid severe tax erosion. This consideration is consistent with the State policy to guarantee the autonomy of local governments and the objective of the Local Government Code that they enjoy genuine and meaningful local autonomy to empower them to achieve their fullest development as self-reliant communities and make them effective partners in the attainment of national goals. In conclusion, we reiterate that the power to tax is the most potent instrument to raise the needed revenues to finance and support myriad activities of the local government units for the delivery of

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basic services essential to the promotion of the general welfare and the enhancement of peace, progress, and prosperity of the people. Digitel v. Prov. Of Pangasinan (2007) Facts: The present petition stemmed from a Complaint for Mandamus, Collection of Sum of Money and Damages instituted by the Province of Pangasinan against Digital Telecommunications Philippines, Inc. Section 137 LGC withdrew any exemption from the payment of franchise tax by authorizing the LGUs to impose a franchise tax on businesses at a rate not exceeding 50% of 1% of the gross annual receipts of the business. Section 232 lso authorizes the imposition of an ad valorem tax on real property by the LGUs within the Metropolitan Manila Area wherein the land, building, machinery and other improvement not thereinafter specifically exempted. Digitel was granted, under Provincial Ordinance No. 18-92, a provincial franchise to install, maintain and operate a telecommunications system within Pangasinan. Under the Sec 6 of the provincial franchise, the grantee is required to pay franchise and real property taxes. The Sangguniang Panlalawigan also enacted Provincial Tax Ordinance 1 (Real Property Tax Ordinance of 1992). Section 4, however, expanded the application of Sec. 6 of the provincial franchise of Digitel to include machineries and other improvements, not thereinafter exempted,. Provincial Tax Ordinance No 4 was then enacted. Sections 4, 5 and 6 positively imposed a franchise tax on businesses enjoying a franchise within the province of Pangasinan. Thereafter, Digitel was granted by RA 7678 a legislative franchise. Under its legislative franchise, particularly Sec. 5 thereof, petitioner DIGITEL became liable for the payment of a franchise tax as may be prescribed by law of all gross receipts of the telephone or other telecommunications businesses transacted under it by the grantee, as well as real property tax on its real estate, and buildings exclusive of this franchise. Later, the Province of Pangasinan found that Digitel had a franchise tax deficiency for the years of 1992, 1993 and 1994. In the interregnum, on 16 March 1995, Congress passed RA 7925, otherwise known as The Public Telecommunications Policy Act of the Philippines. Section 23 of this law entitled Equality of Treatment in the Telecommunications Industry, provided for the ipso facto application to any previously granted telecommunications franchises of any advantage, favor, privilege, exemption or immunity granted under existing franchises, or those still to be granted, to be accorded immediately and unconditionally to earlier grantees. Thereafter, Digitel opposed Pangasinans claim on the ground that prior to the approval of its legislative franchise, its operation of a telecommunications system was done under a Facilities Management Agreement it had previously executed with the DOTC. It clarified that since the facilities in Pangasinan are just part of the government owned facilities awarded to DIGITEL, not only did the DOTC retain ownership of said facilities, the latter likewise provided for the budget for) expenses under its allocation from the government; hence, all revenues generated from the operation of the facilities inured to the DOTC; and all the fees received by petitioner DIGITEL were purely for services rendered. Further, it argued that under its legislative franchise, the payment of a franchise tax to the BIR would be in lieu of all taxes on said franchise or the earnings therefrom. The Pronvince of Pangasinan filed a Complaint for Mandamus, Collection of Sum of Money and Damages before Branch 68 of the RTC of Lingayen, Pangasinan. The trial court decided the Province. It ruled that Digitels legislative franchise does not work to exempt the latter from payment of provincial franchise and real property taxes. It ruled that provincial and legislative franchises are separate and distinct from each other. Moreover, it pointed out that LGH already withdrew any exemption granted to anyone. On the other hand, Digitel maintains that its legislative franchise being an earlier enactment, by virtue of Section 23 of Republic Act No. 7925, the ipso facto, immediate and unconditional application to it of the tax exemption found in the franchises of Globe, Smart and Bell. Stated simply, Section 23 of Republic Act No. 7925, in relation to the pertinent provisions of the legislative franchises of Globe, Smart and Bell, the national franchise tax for which Digitel is liable to pay shall be in lieu of any and all taxes of any kind, nature or description levied, established or collected by any authority whatsoever, municipal, provincial, or national, from which the grantee is hereby expressly granted. Issue: WON Digitel is exempt from the payment of provincial franchise tax in view of Section 23 of RA 7925 in relation to the exemptions enjoyed by other telcos. Held: No

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Ratio: Prior to the enactment of its legislative franchise, Digitel did not enjoy and exemption from the payment of franchise and real property taxes. In fact the provincial franchise made Digitel liable for the payment of such taxes. The case at bar is actually not one of first impression. Indeed, as far back as 2001, this Court has had the occasion to rule against the claim for tax exemption under RA 7925. In the case of PLDT v. City of Davao, we already clarified the confusion brought about by the effect of Section 23 of Republic Act No. 7925 that the word exemption as used in the statute refers or pertains merely to an exemption from regulatory or reporting requirements of the DOTC or the NTC and not to the grantees tax liability. In said case, the Court ruled that Congress did not intend Section 23 to operate as a blanket tax exemption to all telcos. Moreover, tax exemptions must be expressed in the statute in clear language that leaves no doubt of the intention of the legislature to grant such exemption. And, even if it is granted, the exemption must be interpreted in strictissimi juris against the taxpayer and liberally in favor of the taxing authority. Moreover, it ruled that PLDTs theory will leave the Government with the burden of having to keep track of all granted telecommunications franchises, lest some companies be treated unequally. It is different if Congress enacts a law specifically granting uniform advantages, favor, privilege, exemption, or immunity to all telecommunications entities. R.A. No. 7925 is thus a legislative enactment designed to set the national policy on telecommunications and provide the structures to implement it to keep up with the technological advances in the industry and the needs of the public. The thrust of the law is to promote gradually the deregulation of the entry, pricing, and operations of all public telecommunications entities and thus promote a level playing field in the telecommunications industry. There is nothing in the language of 23 nor in the proceedings of both the House of Representatives and the Senate in enacting R.A. No. 7925 which shows that it contemplates the grant of tax exemptions to all telecommunications entities, including those whose exemptions had been withdrawn by the LGC. The issue is then settled, the Court has no recourse but to deny Digitels claim for exemption from payment of provincial franchise tax. The foregoing pronouncement notwithstanding, in view of the passage of RA 7716 abolishing the franchise tax imposed on telecommunications companies effective 1 January 1996 and in its place is imposed a 10% VAT, the in-lieu-of-all-taxes clause/provision in the legislative franchises of Globe, Smart and Bell, among others, has now become functus officio, made inoperative for lack of a franchise tax. Therefore, taking into consideration the above, from 1 January 1996, Digitel ceased to be liable for national franchise tax and in its stead is imposed a 10% VAT in accordance with Section 108 of the Tax Code. Issue: WON Digitel is exempt from payment of real estate tax under its legislative franchise. Held: No Ratio: Pertinent Provision: SECTION 5. Tax Provisions. The grantee shall be liable to pay the same taxes on its real estate, buildings, and personal property exclusive of this franchise as other persons or corporations are now or hereafter may be required by law to pay x x x. Owing to the phrase exclusive of this franchise, petitioner DIGITEL stands firm in its position that it is equally exempt from the payment of real property tax. It maintains that said phrase found in Section 5 qualifies or delimits the scope of its liability respecting real property tax that real property tax should only be imposed on its assets that are actually, directly and exclusively used in the conduct of its business pursuant to its franchise. According to the Province, however, the phrase exclusive of this franchise in the legislative franchise of Digitel did not specifically or categorically express that such franchise grant intended to provide privilege to the extent of impliedly repealing RA 7160. Thus, the question is, whether or not petitioner DIGITELs real properties located within the territorial jurisdiction of respondent Province of Pangasinan are exempt from real property taxes by virtue of Section 5 of Republic Act No. 7678. We rule in the affirmative. However, it is with the caveat that such exemption solely applies to those real properties actually, directly and exclusively used by the grantee in its franchise. The present issue actually boils down to a dispute between the inherent taxing power of Congress and the delegated authority to tax of the local government borne by the 1987 Constitution. In the PLDT v. City of Davao, we already sustained the power of Congress to grant exemptions over and above the power of the local governments delegated taxing authority notwithstanding the source of such power.

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Had Congress intended to tax each and every real property of Digitel, regardless of whether or not it is used in the business or operation of its franchise, it would not have incorporated a qualifying phrase, which such manifestation admittedly is. And, to our minds, the issue in this case no longer dwells on whether Congress has the power to exempt Digitels properties from realty taxes by its enactment of RA 7678 which contains the phrase exclusive of this franchise, in the face of the mandate of the Local Government Code. The more pertinent issue to consider is whether or not, by passing Ra7678, Congress intended to exempt Digitels real properties actually, directly and exclusively used by the grantee in its franchise. The fact that Republic Act No. 7678 was a later piece of legislation can be taken to mean that Congress, knowing fully well that the Local Government Code had already withdrawn exemptions from real property taxes, chose to restore such immunity even to a limited degree. In view of the unequivocal intent of Congress to exempt from real property tax those real properties actually, directly and exclusively used by petitioner DIGITEL in the pursuit of its franchise, respondent Province of Pangasinan can only levy real property tax on the remaining real properties of the grantee located within its territorial jurisdiction not part of the above-stated classification. Said exemption, however, merely applies from the time of the effectivity of petitioner DIGITELs legislative franchise and not a moment sooner. In fine, petitioner DIGITEL is found accountable to respondent Province of Pangasinan for the following tax liabilities: 1) as to provincial franchise tax, from 13 November 1992 until actually paid; and 2) as to real property tax, for the period starting from 13 November 1992 until 28 December 1992, it shall be imposed only on the lands and buildings of petitioner DIGITEL located within the subject jurisdiction; for the period commencing from 29 December 1992 until 16 February 1994, in addition to the lands and buildings aforementioned, it shall similarly be imposed on machineries and other improvements; and, by virtue of the National Franchise of petitioner DIGITEL or Republic Act No. 7678, in accordance with the Courts ruling in the abovementioned Bayantel case, from the date of effectivity on 17 February 1994 until the present, it shall be imposed only on real properties NOT actually, directly and exclusively used in the franchise of petitioner DIGITEL. In addition to the foregoing summary, pertinent provisions of law respecting interests, penalties and surcharges shall also be made to apply to herein subject tax liabilities. Real Property Taxation and Special Education Fund Tax Sec of Finance v. Ilarde & Cipriano Cabaluna (2005) Facts: Cipriano P. Cabaluna, Jr., was the Regional Director of Regional Office No. VI of the DOF. He co-owns with his wife certain properties in Jaro, Iloilo City Private respondent failed to pay the land taxes on Lot No. 12 and Lot No. 14 for the years 1986 to 1992. For the years 1991 to 1992, taxes were also unpaid on Lot No. 941-D-2, on the residential house, and on Lot No. 941-D-1. A breakdown of the computation of the delinquent taxes showed that more than 24% of the delinquent taxes were charged and collected from private respondent by way of penalties. Private respondent paid his land taxes and the receipts were issued to him by the City Treasurers Office with the notation paid under protest. Soon, Cabaluna retired. He then filed a formal protest with the City Treasurer of Iloilo wherein he contends that the computation was erroneous since the rate of penalty exceed 24% in contravention of Section 66 of P.D. No. 464, otherwise known as the Real Property Tax Code. The Assistant City Treasurer Rizalina Tulio turned down the protest, citing Sec. 4(c) of Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 of the DOF. Despite his labors to exhaust all administrative remedies, the denial of his protest and his MR compelled private respondent to file a Petition for Declaratory Relief with Damages assailing Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 which, according to him, flouted Section 66 of P.D. No. 464 which fixed the maximum penalty for delinquency in the payment of real estate taxes at 24% of the delinquent tax. The respondent judge declared as null and void the said regulations and ruled that the total penalty must not exceed 24% of the delinquent tax. Issue: WON the Ministry of Finance could legally promulgate regulations prescribing a rate of penalty on delinquent taxes other than that provided for under PD 464, also known as the Real Property Tax Code.

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Ratio: Petitioners standpoint is devoid of basis in law or in logic. The subject Regulations must be struck down for being repugnant to Section 66 of P.D. No. 464 or the Real Property Tax Code, which is the law prevailing at the time material to this case. Note that under Section 66 of P.D. No. 464, the maximum penalty for delinquency in the payment of real property tax shall in no case exceed 24% of the delinquent tax. Upon the other hand, Section 4(c) of the challenged Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 issued by respondent Secretary (formerly Minister) of Finance provides that the penalty of two percent (2%) per month of delinquency or twenty-four percent (24%) per annum as the case may be, shall continue to be imposed on the unpaid tax from the time the delinquency was incurred up to the time that the delinquency is paid for in full. As adeptly observed by the trial court, the penalty imposed under the assailed Regulations has no limit inasmuch as the 24% penalty per annum shall be continuously imposed on the unpaid tax until it is paid for in full unlike that imposed under Section 66 of the Real Property Tax Code where the total penalty is limited only to twenty-four percent of the delinquent tax. That such is the effect of an application of the Regulations under review is not disclaimed by the petitioner anywhere in his pleadings. Petitioner, however, attempts to justify the issued Regulations departure from the Real Property Tax Code. Said Regulations, petitioner says, are sanctioned by EO 73 and its implementing guidelines, Joint Local Assessment/Treasury Regulations No. 2-86. Joint Local Assessment/Treasury Regulations No. 2-86. The Secretary of Finance avers in his petition that the last paragraph of Section 1, Joint Local Assessment/Treasury Regulations No. 2-86, explicitly provides for a 2% per month penalty without any limitation as to the maximum amount thereof, which is entirely consistent with the then existing Regulations, the now challenged Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85. Petitioner further asserts that inasmuch as Joint Local Assessment/Treasury Regulations No. 2-86, which echoes the disputed Regulations, was issued to implement E.O. No. 73, private respondents recourse is to file a case questioning the validity of Joint Local Assessment/Treasury Regulations No. 2-86 in the same way that he has assailed Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85. Petitioners reasoning is, to our mind, but a futile attempt to muddle the facts of the case and the issues involved. Recall that the present controversy cropped up when Cabaluna protested the payment of penalties on his delinquent taxes for being in excess of the 24% cap provided in p.d. No. 464 or the Real Property Tax Code. In response to his letter of protest, the Assistant Treasurer of Iloilo City justified the assessment by citing Sec. 4(c) of Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 issued by petitioner Minister (now Secretary) of Finance. This has lead to the filing of the present case by Cabaluna to question the validity of the said regulations. It is the validity of said regulations, not Joint Local Assessment/Treasury Regulations No. 2-86, that is sought to be resolved herein and petitioner should not depart from the issue on hand. The Court harbors doubts on the veracity of petitioners contention that the Regulations at issue are sanctioned by E.O. No. 73. The underlying principle behind E.O. No. 73, as gleaned from the whereas clauses and Section 1 thereof as quoted above, is to advance the date of effectivity of the application of the Real Property Tax Values of 1984 from 01 January 1988, the original date it was intended by E.O. No. 1019 to take effect for purposes stated therein, to 01 January 1987. E.O. No. 73 did not, in any way, alter the structure of the real property tax assessments as provided for in P.D. No. 464 or the Real Property Tax Code. Neither is this Court easily dissuaded by the submission of the Secretary of Finance that E.O. No. 73, which provides in Section 2 thereof that: The Minister of Finance shall promulgate the necessary rules and regulations to implement this Executive Order, has the effect of according petitioner the blanket authority to tinker with the rates of penalty on delinquency taxes as provided for in P.D. No. 464, the general law on real property taxation. The Court takes notice that E.O. No. 73 did not touch at all on the topic of amendment of rates of delinquent taxes or the amendment of rates of penalty on delinquent taxes. E.O. No. 73, particularly in Section 2 thereof, has merely designated the Minister of Finance to promulgate the rules and regulations towards the implementation of E.O. No. 73, particularly on the application of the Real Property Values as of 31 December 1984, which is the general purpose for enacting said executive order. In our mind, what is patent from Section 3 of E.O. No. 73 is the repeal of E.O. No. 1019, not Section 66 of P.D. No. 464. Neither did E.O. No. 1019 directly or indirectly vest upon the Department of Finance the right to fiddle with the rates of penalty to be assessed on delinquency taxes as contained in the Real Property Tax Code. Even assuming that E.O. No. 1019 had vested the then Ministry of Finance with

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the authority to impose new rates of penalty on delinquency taxes, as petitioner would have us believe, such authority would have been automatically stripped off from it upon the express repeal of E.O. No. 1019 by EO No. 73 on the 25th of November 1986. Despite the promulgation of EO 73, PD 464 in general and Section 66 in particular, remained to be good law. To accept petitioners premise that EO 73 had accorded the Ministry of Finance the authority to alter, increase, or modify the tax structure would be tantamount to saying that EO 73 has repealed or amended PD 464. Repeal of laws should be made clear and expressed. Repeals by implication are not favored as laws are presumed to be passed with deliberation and full knowledge of all laws existing on the subject. Such repeals are not favored for a law cannot be deemed repealed unless it is clearly manifest that the legislature so intended it.[15] The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law, unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. We find, as the trial court has found, no such inconsistency or repugnancy between EO 73 and Section 66 of PD 464. Jurisprudence thrives to the effect that it is only Republic Act No. 7160 or the Local Government Code of 1991, which repealed the Real Property Tax Code or P.D. No. 464. Assuming argumenti that E.O. No. 73 has authorized the petitioner to issue the objected Regulations, such conferment of powers is void for being repugnant to the well-encrusted doctrine in political law that the power of taxation is generally vested with the legislature.[ Yes, President Corazon Aquino, at that time, was exercising both executive and legislative powers. But, the power delegated to the executive branch, in this case the Ministry of Finance, to lay down implementing rules must, nevertheless, be germane to the general law it seeks to apply. The implementing rules cannot add to or detract from the provisions of the law it is designed to implement. Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law they are intended to carry into effect, which in this case is merely to antedate the effectivity of the 1984 Real Property Tax values inasmuch as this is the raison dtre of E.O. No. 73. In a last-ditch effort to salvage the impugned Regulations, petitioner pushes on that Joint Local Assessment/Treasury Regulations No. 2-86, or the so-called implementing rules of E.O. No. 73, is not contrary to Section 66 of P.D. No. 464 inasmuch as the latter applies merely to simple delinquency in the payment of real property taxes while the former covers cases wherein there was failure to promptly pay the real property tax due, including the increase in tax due and demandable for the tax year as a result of the application of the 1984 New or Revised Assessment of the value of the subject property. Such rationalization lacks legal traction. P.D. No. 464 makes no distinction as to whether it is simple delinquency or other forms thereof. The Real Property Tax Code covers the wide ilk of failure to promptly pay the real property taxes due and demandable for a particular period. Ubi lex non distinguit nec nos distinguere debemus. When the law does not distinguish, we must not distinguish. Further, P.D. No. 464 covers all real property titled to individuals who become delinquents in paying real estate tax. P.D. No. 464 is a law of general application. On the second assigned error, the fact that private respondent Cabaluna was responsible for the issuance and implementation of Regional Office Memorandum Circular No. 04-89 which implemented Joint Assessment Regulations No. 1-85 and Local Treasury Regulations No. 2-85 does not put him in estoppel from seeking the nullification of said Regulations at this point. In the case at bar, however, petitioner is suing as a plain taxpayer, he having already retired as Regional Director. His official acts as Regional Director could not have stripped him of his rights as a taxpayer. To be sure, the official acts of petitioner as Regional Director cannot serve as estoppel for him to pursue the present course of action that he has taken as a taxpayer. In any event, a regulation which is in itself invalid for being contrary to law cannot be validated by any act of endorsement of any official, much less, by a subordinate of the official who issued such regulation. Estoppel, certainly, cannot make an invalid regulation valid. At bottom, the law applicable, in the case at bar, for purposes of computation of the real property taxes due from private respondent for the years 1986 to 1991, including the penalties and interests, is still Section 66 of the Real Property Tax Code of 1974 or P.D. No. 464. the penalty that ought to be imposed for delinquency in the payment of real property taxes should, therefore, be that provided for in Section 66 of P.D. No. 464, i.e., two per centum on the amount of the delinquent tax for each month of delinquency or fraction thereof but in no case shall the total penalty exceed twenty-four per centum of the delinquent tax. Accordingly, the penalties imposed by respondents City Treasurer and Assistant City Treasurer of Iloilo City on the property of private respondent are valid only up to 24% of the delinquent taxes.

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The excess penalties paid by the private respondent should, in view of that, be refunded by the latter. However, from 01 January 1992 onwards, the proper basis for the computation of the real property tax payable, including penalties or interests, if applicable, must be Rep. Act No. 7160, known as the Local Government Code, which took effect on the 1st of January 1992[23] inasmuch as Section 534[24] thereof had expressly repealed P.D. No. 464 or the Real Property Tax Code. Section 5(d) of Rep. Act No. 7160 provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such contracts were vested. Benguet Corporation v. COA (1992), supra. Realty taxes are national taxes collected by LGUs. While LGUs are charged with fixing the rate of real property taxes, it does not necessarily follow from that authority the determination of whether or not to impose the tax. In fact, LGUs have no alternative but to collect taxes as mandated in Sec. 38 of the Real Property Tax Code. It is thus clear that it is the national government, expressing itself through the legislative branch, that levies the real property tax. Consequently, when LGUs are required to fix the rates, they are merely constituted as agents of the national government in the enforcement of the Real Property Tax Code. The delegation of taxing power is not even involved here because the national government has already imposed realty tax in Sec. 38 leaving only the enforcement to be done LGUs. National Development Co. v. Cebu City (1992) Facts: National Development Company (NDC) is a GOCC authorized to engage in commercial, industrial, mining, agricultural and other enterprises necessary or contributory to economic development or important to public interest. It also operates subsidiary corporations one of which is National Warehousing Corporation (NWC). On August 10, 1939, the President issued Proclamation No. 430 reserving Block no. 4, Reclamation Area No. 4, of Cebu City for warehousing purposes under the administration of NWC. Subsequently, in 1940, a warehouse with a floor area of 1,940 square meters more or less, was constructed thereon. In 1947, EO 93 dissolved NWC with NDC taking over its assets and functions. In 1948, Cebu City assessed and collected from NDC real estate taxes on the land and the warehouse thereon. By the first quarter of 1970, a total of P100,316.31 was paid by NDC 11 of which only P3,895.06 was under protest. NDC asked for a full refund contending that the land and the warehouse belonged to the Republic and therefore exempt from taxation. The CFI ordered Cebu City to refund to NDC the real estate taxes paid by it. Issue: WON the NDC is exempt from real estate taxes Held: No Ratio: As already adverted to, one of the principal issues before Us is the interpretation of a provision of the Assessment Law, the precursor of the then Real Property Tax Code and the Local Government Code, where "ownership" of the property and not "use" is the test of tax liability. Section, 3 par. (a), of the Assessment Law, on which NDC claims real estate tax exemption, provides Section 3. Property exempt from tax. The exemptions shall be as follows: (a) Property owned by the United States of America, the Commonwealth of the Philippines, any province, city, municipality at municipal district. The same opinion of NDC was passed upon in National Development Co. v. Province of Nueva Ecija where We held that its properties were not comprehended in Sec. 3, par (a), of the Assessment Law. Commonwealth Act No. 182 which created NDC contains no provision exempting it from the payment of real estate tax on properties it may acquire. NDC does not come under classification of municipal or public corporation in the sense that it may sue and be sued in the same manner as any other private corporations, and in this sense, it is an entity different from the government, NPC may be sued without its consent, and is subject to taxation. That plaintiff herein does not exercise sovereign powers and, hence, cannot invoke the exemptions thereof but is an agency for the performance of purely corporate, proprietary or business functions, is apparent from its Organic Act.

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We find no compelling reason why the foregoing ruling, although referring to lands which would eventually be transferred to private individuals, should not apply equally to this case. NDC cites Board of Assessment Appeals, Province of Laguna v. CTA and National Waterworks and Sewerage Authority (NWSA). In that case, the properties of NWSA, a GOCC, were exempt from real estate tax because Sec. 3, par (c), of R.A. 470 did not distinguish between those possessed by the government in sovereign/governmental/political capacity and those in private proprietary patrimonial character. The conflict between NDC v. Nueva Ecija, supra, and BAA v. CTA and NWSA, , is more superficial than real. The NDC decision speaks of properties owned by NDC, while the BAA ruling concerns properties belonging to the Republic In the case at bar, no similar statement appears in the stipulation of facts, hence, ownership of subject properties should first be established. For, while it may be stated that the Republic owns NDC, it does not necessary follow that properties owned by NDC, are also owned by Republic in the same way that stockholders are not ipso facto owners of the properties of their corporation. The Republic may form a corporation with personality and existence distinct from its own. The separate personality allows a GOCC to hold and possess properties in its own name and, thus, permit greater independence and flexibility in its operations. It may, therefore, be stated that tax exemption of property owned by the Republic of the Philippines "refers to properties owned by the Government and by its agencies which do not have separate and distinct personalities (unincorporated entities). The foregoing discussion does not mean that because NDC, like most GOCC's engages in commercial enterprises all properties of the government and its unincorporated agencies possessed in propriety character are taxable. Similarly, in the case at bar, NDC proceeded on the premise that the BAA ruling declared all properties owed by GOCC's as properties in the name of the Republic, hence, exempt under Sec. 3 of the Assessment Law. Issue: WON the property is exempt from payment of real estate taxes Held: Yes Ratio: To come within the ambit of the exemption provided in Art. 3, par. (a), of the Assessment Law, it is important to establish that the property is owned by the government or its unincorporated agency, and once government ownership is determined, the nature of the use of the property, whether for proprietary or sovereign purposes, becomes immaterial. What appears to have been ceded to NWC (later transferred to NDC), in the case before Us, is merely the administration of the property while the government retains ownership of what has been declared reserved for warehousing purposes under Proclamation No. 430. A reserved land is defined as a "[p]ublic land that has been withheld or kept back from sale or disposition." The land remains "absolute property of the government." The government "does not part with its title by reserving them (lands), but simply gives notice to all the world that it desires them for a certain purpose." Absolute disposition of land is not implied from reservation; it merely means "a withdrawal of a specified portion of the public domain from disposal under the land laws and the appropriation thereof, for the time being, to some particular use or purpose of the general government." As its title remains with the Republic, the reserved land is clearly recovered by the tax exemption provision. CEBU nevertheless contends that the reservation of the property in favor of NWC or NDC is a form of disposition of public land which, subjects the recipient (NDC ) to real estate taxation under Sec. 115 of the Public Land Act. The essential question then is whether lands reserved pursuant to Sec. 83 are comprehended in Sec. 115 and, therefore, taxable. Section 115 of the Public Land Act should be treated as an exception to Art. 3, par. (a), of the Assessment Law. While ordinary public lands are tax exempt because title thereto belongs to the Republic, Sec. 115 subjects them to real estate tax even before ownership thereto is transferred in the name of the beneficiaries. Sec. 115 comprehends three (3) modes of disposition of Lands under the Public Land Act, to wit: homestead, concession, and contract. Liability to real property taxes under Sec. 115 is predicated on (a) filing of homestead application, (b) approval of concession and, (c) signing of contract. Significantly, without these words, the date of the accrual of the real estate tax would be indeterminate. Since NDC is not a homesteader and no "contract" (bilateral agreement) was signed, it would appear, then, that reservation under Sec. 83, being a unilateral act of the President, falls under "concession". "Concession" as a technical term under the Public Land Act is synonymous with "alienation" and "disposition", and is defined in

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Sec. 10 as "any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of the public domain other than timber or mineral lands." Logically, where Sec. 115 contemplates authorized methods for acquisition, lease, use, or benefit under the Act, the taxability of the land would depend on whether reservation under Sec. 83 is one such method of acquisition, etc. Tersely put, is reservation synonymous with alienation? Or, are the two terms antithetical and mutually exclusive? Indeed, reservation connotes retention, while concession (alienation) signifies cession. Section 8 and 88 of the Public Land Act provide that reserved lands are excluded from that may be subject of disposition. As We view it, the effect of reservation under Sec. 83 is to segregate a piece of public land and transform it into non-alienable or non-disposable under the Public Land Act. Section 115, on the other hand, applies to disposable public lands. Clearly, therefore, Sec. 115 does not apply to lands reserved under Sec. 83. Consequently, the subject reserved public land remains tax exempt. However, as regards the warehouse constructed on a public reservation, a different rule should apply because "[t]he exemption of public property from taxation does not extend to improvements on the public lands made by pre-emptioners, homesteaders and other claimants, or occupants, at their own expense, and these are taxable by the state . . ." Consequently, the warehouse constructed on the reserved land by NWC (now under administration by NDC), indeed, should properly be assessed real estate tax as such improvement does not appear to belong to the Republic. Since the reservation is exempt from realty tax, the erroneous tax payments collected by CEBU should be refunded to NDC. This is in consonance with Sec. 40, par. (a) of the former Real Property Tax Code which exempted from taxation real property owned by the Republic of the Philippines or any of its political subdivisions, as well as any GOCC so exempt by its charter. As regards the requirement of paying under protest before judicial recourse, CEBU argues that in any case NDC is not entitled to refund because Sec. 75 of R.A. 3857, the Revised Charter of the City of Cebu, requires payment under protest before resorting to judicial action for tax refund; that it could not have acted on the first demand letter of NDC of 20 May 1970 because it was sent to the City Assessor and not to the City Treasurer; that, consequently, there having been no appropriate prior demand, resort to judicial remedy is premature; and, that even on the premise that there was proper demand, NDC has yet to exhaust administrative remedies by way of appeal to the Department of Finance and/or Auditor General before taking judicial action. NDC does not agree. It disputes the applicability of the payment-under-protest requirement is Sec. 75 of the Revised Cebu City Charter because the issue is not the validity of tax assessment but recovery of erroneous payments under Arts. 2154 and 2155 of the Civil Code. It cites the case of East Asiaticvs City of Davao which held that where the tax is unauthorized, "it is not a tax assessed under the charter of the City of Davao and for that reason no protest is necessary for a claim or demand for its refund." In the case at bar, petitioner, therefore, cannot be said to have waived his right. He had no knowledge of the fact that it was exempted from payment of the realty tax under Commonwealth Act No. 470. Payment was made through error or mistake, in the honest belief that petitioner was liable, and therefore could not have been made under protest, but with complete voluntariness. In any case, a taxpayer should not be held to suffer loss by his good intention to comply with what he believes is his legal obligation, where such obligation does not really exist . . . The fact that petitioner paid thru error or mistake, and the government accepted the payment, gave rise to the application of the principle of solutio indebiti under Article 2154 of the New Civil Code, which provides that "if something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises." There is, therefore, created a tie or juridical relation in the nature of solutio indebiti, expressly classified as quasi-contract under Section 2, Chapter I of Title XVII CC. The quasi-contract of solutio indebiti is one of the concrete manifestations of the ancient principle that no one shall enrich himself unjustly at the expense of another . . . Hence, it would seem unedifying for the government, that knowing it has no right at all to collect or to receive money for alleged taxes paid by mistake, it would be reluctant to return the same . . . Petitioner is not unsatisfied in the assessment of its property. Assessment having been made, it paid the real estate taxes without knowing that it is Prov. of Tarlac v. Judge Alcantara (1992) Facts: Tarlac Enterprises Inc is the owner of a parcel of land in Mabini, Tarlac, an ice drop factory in said land, machinery shed and other machinery. These properties were declared for purposes of

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Taxation in the Provincial Assessors Office. The Provincial Treasurer found that real estate taxes for the years 1974 until 1992 in the amount of P532,435.55 including penalties were not yet paid. Therefore, the Provincial Treasurer Jose Meru filed a complaint praying that the company pay the said sum as well as damages. The company filed a motion to dismiss. But the lower court denied the motion. Thereafter, petitioner set the auction sale of the private respondent's properties to satisfy the real estate taxes due. This prompted the private respondent to file a motion praying that petitioner be directed to desist from proceeding with the public auction sale. The lower court issued an order granting said motion to prevent mootness of the case considering that the properties to be sold were the, subjects of the complaint. The company then filed an answer saying that under Section 40(g) of PD46 in relation to PD 551, it was exempt from paying said tax. The court rendered the decision dismissing the complaint. It ruled that P.D. No. 551 expressly exempts private respondent from paying the real property taxes demanded, it being a grantee of a franchise to generate, distribute and sell electric current for light. The court held that in lieu of said taxes, private respondent had been required to pay 2% franchise tax in line with the intent of the law to give assistance to operators such as the private respondent to enable the consumers to enjoy cheaper rates. Issue: WON Tarlac Enterprises, Inc. is exempt from the payment of real property tax under Sec. 40 (g) of P.D. No. 464 in relation to P.D. No. 551, as amended. Held: No Ratio: Sec. 40(g) of P.D. No. 464, the Real Property Tax Code, provides: SEC. 40. Exemptions from Real Property Tax. - The exemption shall be as follows: (g) Real property exempt under other laws. Private respondent contends that the "other laws" referred to in this Section is P.D. No. 551 (Lowering the Cost to Consumers of Electricity by Reducing the Franchise Tax Payable by Electric Franchise Holders and the Tariff on Fuel Oils for the Generation of Electric Power by Public Utilities). Its pertinent provisions state: SECTION 1. Any provision of law or local ordinance to the contrary notwithstanding, the franchise tax payable by all grantees of franchises to generate, distribute and sell electric current for light, heat and power shall be two (2%) of their gross receipts received from the sale of electric current and from transactions incident to the generation, distribution We do not agree with the lower court that the phrase "in lieu of all taxes and assessments of whatever nature" in the second paragraph of Sec. 1 of P.D. No. 551 expressly exempts private respondent from paying real property taxes. As correctly observed by the petitioner, said proviso is modified and delimited by the phrase "on earnings, receipts. income and privilege of generation, distribution and sale" which specifies the kinds of taxes and assessments which shall not be collected in view of the imposition of the franchise tax. Said enumerated items upon which taxes shall not be imposed, have no relation at all to, and are entirely different from. real properties subject to tax. If the intention of the law is to exempt electric franchise grantees from paying real property tax and to make the 2% franchise tax the only imposable tax, then said enumerated items would not have been added when PD 852 was enacted to amend P.D. No. 551. The legislative authority would have simply stopped after the phrase "national or local authority" by putting therein a period. On the contrary, it went on to enumerate what should not be subject to tax thereby delimiting the extent of the exemption. We likewise do not find merit in private respondent's contention that the real properties being taxed, viz., the machinery for the generation and distribution of electric power, the building housing said machinery, and the land on which said building is constructed, are necessary for the operation of its business of generation, distribution and sale of electric current and, therefore, they should be exempted from taxation. Private respondent apparently does not quite comprehend the distinction among the subject matters or objects of the taxes involved. It bears emphasis that P.D. No. 551 as amended by P.D. No. 852 deals with franchise tax and tariff on fuel oils and the "earnings, receipts, income and privilege of generation, distribution and sale of electric current" are the items exempted from taxation by the imposition of said tax or tariff duty. On the other hand, the collection complaint filed by petitioner specified only taxes due on real properties. While P.D. No. 551 was intended to give "assistance to the franchise holders by reducing some of their tax and tariff obligations," to construe said decree as having granted such franchise holders

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exemption from payment of real property tax would unduly extend the ambit of exemptions beyond the purview of the law. The annexes attached to private respondent's comment on the petition to prove by contemporaneous interpretation its claimed tax exemption are not of much help to it. Department Order No. 35-74 dated September 16, 1974 11 regulating the implementation of P.D. No. 551 merely reiterates the "in lieu of all taxes" proviso. Local Tax Regulations No. 3-75 12 issued by then Secretary of Finance Cesar Virata and addressed to all Provincial and City Treasurers enjoins strict compliance with the directive that "the franchise tax imposed under Local Tax Ordinances pursuant to Section 19 of the Local Tax Code, as amended, shall be collected from business holding franchises but not from establishments whose franchise contains the in lieu of all taxes' proviso," thereby clearly indicating that said proviso exempts taxpayers like private respondent from paying the franchise tax collected by the provinces under the Local Tax Code. Lastly, the letter 13 of the then Bureau of Internal Revenue Acting Commissioner addressed to the Matic Law Office granting exemption to the latter's client from paying the "privilege (fixed) tax which is an excise tax on the privilege of engaging in business" clearly excludes realty tax from such exemption. We also find misplaced the lower court's and the private respondent's reliance on Butuan Sawmill. Inc. v. City of Butuan. In that case, the questioned tax is a tax on the gross sales or receipts of said sawmill while the tax involved herein is a real property tax. The City of Butuan is categorically prohibited therein by Sec. 2(j) of the Local Autonomy Act from imposing "taxes of any kind . . . on person paying franchise tax." On the other hand, P.D. No. 551 is not as all-encompassing as said provision of the Local Autonomy Act for it enumerates the items which are not taxable by virtue of the payment of franchise tax. It has always been the rule that "exemptions from taxation are construed in strictissimi juris against the taxpayer and liberally in favor of the taxing authority" primarily because "taxes are the lifeblood of government and their prompt and certain availability is an imperious need." Thus, to be exempted from payment of taxes, it is the taxpayer's duty to justify the exemption "by words too plain to be mistaken and too categorical to be misinterpreted.; Private respondent has utterly failed to discharge this duty. 8.3 Shares of LGUS in national taxes Pimentel v. Aguirre (2000) Facts: On December, 1997, the President issued AO 372 (Adoption of Economy Measures in Government for FY 1998). On December, 1998, President Estrada issued AO 43, amending Section 4 of AO 372, by reducing to five percent (5%) the amount of internal revenue allotment (IRA) to be withheld from the LGUs. Petitioner contends that by issuing AO 372, the President exercised the power of control over LGUs. Moreover, withholding 10% of the IRA is in contravention of Sec 286 LGC and of Sec 6 Article X of the Constitution, providing for the automatic release to each of these units its share in the national internal revenue. The Sol Gen claims that AO 372 was issued merely as an exercise of the Presidents power of supervision over LGUs. Section 4 of Article X of the Consti confines the President's power over local governments to general supervision. This provision has been interpreted to exclude the power of control. In Mondano v. Silvosa, the SC contrasted supervision and control, thus: "supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer ha[s] done in the performance of his duties and to substitute the judgment of the former for that of the latter." In Drilon v. Lim, the difference between control and supervision was further delineated. Officers in control lay down the rules in the performance or accomplishment of an act. If these rules are not followed, they may, in their discretion, order the act undone or redone by their subordinates or even decide to do it themselves. On the other hand, supervision does not cover such authority. Supervising officials merely see to it that the rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to such rules. They may not prescribe their own manner of execution of the act. Thus, members of the cabined and other executive officials are merely alter egos of the President. As such, they are subject to the power of control of the President, at whose will and behest they can be removed from office; or their actions and decisions changed, suspended or reversed. In contrast, the heads of political

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subdivisions are elected by the people. By constitutional fiat, they are subject to the Presidents supervision only, not control, so long as their acts are exercised within the sphere of their legitimate powers. Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring local autonomy. In Ganzon v. Court of Appeals, we said that local autonomy signified "a more responsive and accountable local government structure instituted through a system of decentralization." The grant of autonomy is intended to "break up the monopoly of the national government over the affairs of local governments, x x x not x x x to end the relation of partnership and interdependence between the central administration and local government units x x x." Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government. 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. The difference between decentralization of administration and that of power was explained in detail in Limbona v. Mangelin as follows: "Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the process to make local governments 'more responsive and accountable,' and 'ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress.' At the same time, it relieves the central government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises 'general supervision' over them, but only to 'ensure that local affairs are administered according to law.' He has no control over their acts in the sense that he can substitute their judgments with his own. Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. As we stated in Magtajas v. Pryce Properties Corp., Inc., municipal governments are still agents of the national government. Issue: WON Section 1 of AO 372, insofar as it "directs" LGUs to reduce their expenditures by 25% is valid Held: Yes Ratio: Under existing law, LGU, in addition to having administrative autonomy, enjoy fiscal autonomy as well. Fiscal autonomy means that local governments have the power to create their own sources of revenue 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. It extends to the preparation of their budgets, and local officials in turn have to work within the 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. Hence, the necessity of a balancing of viewpoints and the harmonization of proposals from both local and national officials, who in any case are partners in the attainment of national goals. Local fiscal autonomy does not however rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. Significantly, the President, by constitutional fiat, is the head of the economic and planning agency of the government, primarily responsible for formulating and implementing continuing, coordinated and integrated social and economic policies, plans and programs for the entire country. However, under the Constitution, the formulation and the implementation of such policies and programs are subject to "consultations with the appropriate public agencies, various private sectors, and local government units." The President cannot do so unilaterally. There are therefore several requisites before the President may interfere in local fiscal matters: (1) an unmanaged public sector deficit of the national government; (2) consultations with the

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presiding officers of the Senate and the House of Representatives and the presidents of the various local leagues; and (3) the corresponding recommendation of the secretaries of the Department of Finance, Interior and Local Government, and Budget and Management. Furthermore, any adjustment in the allotment shall in no case be less than thirty percent (30%) of the collection of national internal revenue taxes of the third fiscal year preceding the current one. While the wordings of Section 1 of AO 372 have a rather commanding tone, and while we agree with petitioner that the requirements of Section 284 of the LGC have not been satisfied, we are prepared to accept the solicitor general's assurance that the directive to "identify and implement measures x x x that will reduce total expenditures x x x by at least 25% of authorized regular appropriation" is merely advisory in character, and does not constitute a mandatory or binding order that interferes with local autonomy. The language used, while authoritative, does not amount to a command that emanates from a boss to a subaltern. Rather, the provision is merely an advisory to prevail upon local executives to recognize the need for fiscal restraint in a period of economic difficulty. Indeed, all concerned would do well to heed the President's call to unity, solidarity and teamwork to help alleviate the crisis. It is understood, however, that no legal sanction may be imposed upon LGUs and their officials who do not follow such advice. It is in this light that we sustain the solicitor general's contention in regard to Section 1. Issue: WON withholding a part of LGUs IRA is valid Held: No Ratio: Section 4 of AO 372 cannot, however, be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. This is mandated by no less than the Constitution. The LGC specifies further that the release shall be made directly to the LGU concerned within 5 days after every quarter of the year and "shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose." As a rule, the term "shall" is a word of command that must be given a compulsory meaning. The provision is, therefore, imperative. Section 4 of AO 372, however, orders the withholding, effective January 1, 1998, of 10 percent of the LGUs' IRA "pending the assessment and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation" in the country. Such withholding clearly contravenes the Constitution and the law. Although temporary, it is equivalent to a holdback, which means "something held back or withheld, often temporarily." Hence, the "temporary" nature of the retention by the national government does not matter. Any retention is prohibited. In sum, while Section 1 of AO 372 may be upheld as an advisory effected in times of national crisis, Section 4 thereof has no color of validity at all. The latter provision effectively encroaches on the fiscal autonomy of local governments. Concededly, the President was well-intentioned in issuing his Order to withhold the LGUs IRA, but the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods. 4 Abatement of Nuisance Estate of Gregoria Francisco v. CA Facts: A quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco. It stands on a lot owned by the PPA and faces the municipal wharf. By virtue of Proclamation No. 83 issued by President Elpidio Quirino, said land was declared for the exclusive use of port facilities. The PPA issued to Tan Gin San, spouse of Gregoria Francisco, a permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the quonset for the storage of copra. On May 1989, the Mayor notified Tan Gin San to remove or relocate its Quonset building citing Ordinance No. 147, noting its antiquated and dilapidated structure; and stressing the "clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." Since the notifications remained unheeded, the Mayor ordered the demolition on 24 May 1989. Petitioner sought a Writ of Prohibition with Injunction and Damages before the RTC of Basilan. The RTC denied the writ and upheld the power of the Mayor to order the demolition without judicial authority pursuant to Ordinance 147. On 6 September 1989, petitioner's quonset building was completely demolished. In its place sprang shanties and nipa huts.

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The CA reversed the RTC and ruled that the mayor was not vested with power to order summarily without any judicial proceeding to demolish the Quonset building which was not a nuisance per se. However, upon reconsideration, the CA reversed itself and ruled that the deficiency was remedied when petitioner filed a petition for prohibition and injunction and was heard on oral argument. Issue: WON the Mayor could summarily, without judicial process, order the demolition of petitioner's quonset building. Held: No Ratio: Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive Zoning Regulations for the Municipality of Isabela." It is not disputed that the quonset building, which is being used for the storage of copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated. And in the event that an immediate relocation of the building can not be accomplished, Sec 16 of the Ordinance provides: A certificate of nonconformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within 12mo from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's expense. Even granting that petitioner failed to apply for a Certificate of Non-conformance, the provision should not be interpreted as authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being in contravention of the requirements of due process, as originally held by the CA. Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator . It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the provisions of the Ordinance. And any person aggrieved by the decision of the Zoning Administrator regarding the enforcement of the Ordinance may appeal to the Board of Zoning Appeals. That a summary remedy can not be resorted to is further evident from the penal provisions. Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances". Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity. The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 (ee) ), it can not declare a particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination. Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the PPA when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no compelling necessity for precipitate action. It follows then that the public officials of Isabela, Basilan, transcended their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the CA, the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue. Technology Developers, Inc v. CA (1991) Facts: Petitioner received a letter from private respondent acting mayor Pablo N. Cruz, ordering the full cessation of the operation of the petitioner's plant located at Guyong, Sta. Maria, Bulacan. The letter requested Plant Manager Armando Manese to bring with him to the office of the mayor on February 20, 1989 the following: a) Building permit; b) Mayor's permit; c) Region IIIPollution of Environment and Natural Resources Anti-Pollution Permit; and of other document.

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At the requested conference, petitioner undertook to comply with respondent's request for the production of the required documents. Petitioner commenced to secure "Region III-DENR AntiPollution Permit," although among the permits previously secured prior to the operation of petitioner's plant was a "Temporary Permit to Operate Air Pollution Installation" issued by the then National Pollution Control Commission and is now at a stage where the Environmental Management Bureau is trying to determine the correct kind of anti-pollution devise to be installed as part of petitioner's request for the renewal of its permit. Petitioner's attention having been called to its lack of mayor's permit, it sent its representatives to the office of the mayor to secure the same but were not entertained. On April 6, 1989, without previous and reasonable notice upon petitioner, respondent ordered the Municipality's station commander to padlock the premises of petitioner's plant, thus effectively causing the stoppage of its operation. Petitioner instituted an action for certiorari, prohibition, mandamus with preliminary injunction against private respondent. The judge found that petitioner is entitled to the issuance of a writ of preliminary injunction upon posting of a bond worth P50,000. During the MR, the Provincial Prosecutor presented his evidence prepared by Marivic Guina, Due to the manufacturing process and nature of raw materials used, the fumes coming from the factory may contain particulate matters which are hazardous to the health of the people. As such, the company should cease operating until such a time that the proper air pollution device is installed and operational." The lower court then set aside the order which granted a writ of preliminary mandatory injunction and dissolved the writ issued. Issue: WON the writ of preliminary injunction should be granted Held: No Ratio: The matter of issuance of a writ of preliminary injunction is addressed to the sound judicial discretion of the trial court and its action shall not be disturbed on appeal unless it is demonstrated that it acted without jurisdiction or in excess of jurisdiction or otherwise, in grave abuse of its discretion. By the same token the court that issued such a preliminary relief may recall or dissolve the writ as the circumstances may warrant. The following circumstances militate against the maintenance of the writ of preliminary injunction sought by petitioner: 1. No mayor's permit had been secured. While it is true that the matter of determining whether there is a pollution of the environment that requires control if not prohibition of the operation of a business is addressed to the National Pollution Control Commission of the Ministry of Human Settlements, now the Environmental Management Bureau, it must be recognized that the mayor of a town has as much responsibility to protect its inhabitants from pollution, and by virtue of his police power, he may deny the application for a permit to operate a business or otherwise close the same unless appropriate measures are taken to control and/or avoid injury to the health of the residents of the community from the emissions in the operation of the business. 2. The Acting Mayor called the attention of petitioner to the pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the locality but also affect the health of the residents in the area," so that petitioner was ordered to stop its operation until further orders and it was required to bring the following: (1) Building permit; (2) Mayor's permit; and (3) Region IIIDENR Anti-Pollution permit. 3. This action of the Acting Mayor was in response to the complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through channels. The NBI finding that some of the signatures in the 4-page petition were written by one person, appears to be true in some instances, (particularly as among members of the same family), but on the whole the many signatures appear to be written by different persons. The certification of the barrio captain of said barrio that he has not received any complaint on the matter must be because the complaint was sent directly to the Governor through the Acting Mayor. 4. The closure order of the Acting Mayor was issued only after an investigation was made by Marivic Guina who in her report observed that the fumes emitted by the plant goes directly to the surrounding houses and that no proper air pollution device has been installed. 5. Petitioner failed to produce a building permit from the municipality of Sta. Maria, but instead presented a building permit issued by an official of Makati on March 6, 1987. 6. While petitioner was able to present a temporary permit to operate by the then National Pollution Control Commission on December 15, 1987, the permit was good only up to May 25, 1988.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

70 | L o c a l

Petitioner had not exerted any effort to extend or validate its permit much less to install any device to control the pollution and prevent any hazard to the health of the residents of the community. All these factors justify the dissolution of the writ of preliminary injunction by the trial court and the appellate court correctly upheld the action of the lower court. Petitioner takes note of the plea of petitioner focusing on its huge investment in this dollar-earning industry. It must be stressed however, that concomitant with the need to promote investment and contribute to the growth of the economy is the equally essential imperative of protecting the health, nay the very lives of the people, from the deleterious effect of the pollution of the environment. Laguna Lake Development Authority v. CA (1995) Facts: RA 4850 was enacted creating the "Laguna Lake Development Authority." This agency was supposed to accelerate the development and balanced growth of the Laguna Lake area and the surrounding provinces, cities and towns, in the act, within the context of the national and regional plans and policies for social and economic development. PD 813 amended certain sections RA 4850 because of the concern for the rapid expansion of Metropolitan Manila, the suburbs and the lakeshore towns of Laguna de Bay, combined with current and prospective uses of the lake for municipal-industrial water supply, irrigation, fisheries, and the like. To effectively perform the role of the Authority under RA 4850, the Chief Executive issued EO 927 further defined and enlarged the functions and powers of the Authority and named and enumerated the towns, cities and provinces encompassed by the term "Laguna de Bay Region". Also, pertinent to the issues in this case are the following provisions of EO 927 which include in particular the sharing of fees: Sec 2: xxx the Authority shall have exclusive jurisdiction to issue permit for the use of all surface water for any projects or activities in or affecting the said region including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. SEC. 3. Collection of Fees. The Authority is hereby empowered to collect fees for the use of the lake water and its tributaries for all beneficial purposes including but not limited to fisheries, recreation, municipal, industrial, agricultural, navigation, irrigation, and waste disposal purpose; Provided, that the rates of the fees to be collected, and the sharing with other government agencies and political subdivisions, if necessary, shall be subject to the approval of the President of the Philippines upon recommendation of the Authority's Board, except fishpen fee, which will be shared in the following manner: 20 percent of the fee shall go to the lakeshore local governments, 5 percent shall go to the Project Development Fund which shall be administered by a Council and the remaining 75 percent shall constitute the share of LLDA. However, after the implementation within the three-year period of the Laguna Lake Fishery Zoning and Management Plan the sharing will be modified as follows: 35 percent of the fishpen fee goes to the lakeshore local governments, 5 percent goes to the Project Development Fund and the remaining 60 percent shall be retained by LLDA; Provided, however, that the share of LLDA shall form part of its corporate funds and shall not be remitted to the National Treasury as an exception to the provisions of Presidential Decree No. 1234. Then came Republic Act No. 7160. The municipalities in the Laguna Lake Region interpreted the provisions of this law to mean that the newly passed law gave municipal governments the exclusive jurisdiction to issue fishing privileges within their municipal waters because R.A. 7160 provides: "Sec. 149. Fishery Rentals; Fees and Charges (a) Municipalities shall have the exclusive authority to grant fishery privileges in the municipal waters and impose rental fees or charges therefor in accordance with the provisions of this Section. Municipal governments thereupon assumed the authority to issue fishing privileges and fishpen permits. Big fishpen operators took advantage of the occasion to establish fishpens and fishcages to the consternation of the Authority. Unregulated fishpens and fishcages occupied almost one-third the entire lake water surface area, increasing the occupation drastically from 7,000 ha in 1990 to almost 21,000 ha in 1995. The Mayor's permit to construct fishpens and fishcages were all undertaken in violation of the policies adopted by the Authority on fishpen zoning and the Laguna Lake carrying capacity. In view of the foregoing circumstances, the Authority served notice to the general public that: 1. All fishpens, fishcages and other aqua-culture structures in the Laguna de Bay Region, which were not registered or to which no application for registration and/or permit has been filed with Laguna Lake Development Authority as of March 31, 1993 are hereby declared outrightly as illegal.

Government

(Guanzon)

S.Y.

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2. All fishpens; fishcages and other aqua-culture structures so declared as illegal shall be subject to demolition which shall be undertaken by the Presidential Task Force for illegal Fishpen and Illegal Fishing. 3. Owners of fishpens, fishcages and other aqua-culture structures declared as illegal shall, without prejudice to demolition of their structures be criminally charged in accordance with Section 39-A of Republic Act 4850 as amended by P.D. 813 for violation of the same laws. Violations of these laws carries a penalty of imprisonment of not exceeding 3 years or a fine not exceeding Five Thousand Pesos or both at the discretion of the court. All operators of fishpens, fishcages and other aqua-culture structures declared as illegal in accordance with the foregoing Notice shall have one (1) month on or before 27 October 1993 to show cause before the LLDA why their said fishpens, fishcages and other aqua-culture structures should not be demolished/dismantled." One month, thereafter, the Authority sent notices to the concerned owners of the illegally constructed fishpens, fishcages and other aqua-culture structures advising them to dismantle their respective structures within 10 days from receipt thereof, otherwise, demolition shall be effected. The fishpen owners filed injunction cases against the LLDA. The LLDA filed motions to dismiss the cases against it on jurisdictional grounds. The motions to dismiss were denied. Meanwhile, TRO/writs of preliminary mandatory injunction were issued enjoining the LLDA from demolishing the fishpens and similar structures in question. Hence, the present petition for certiorari, prohibition and injunction. The CA dismissed the LLDAs consolidated petitions. It ruled that (A) LLDA is not among those quasi-judicial agencies of government appealable only to the Court of Appeals; (B) the LLDA charter does vest LLDA with quasi-judicial functions insofar as fishpens are concerned; (C) the provisions of the LLDA charter insofar as fishing privileges in Laguna de Bay are concerned had been repealed by the Local Government Code of 1991; (D) in view of the aforesaid repeal, the power to grant permits devolved to respective local government units concerned. Issue: Which agency of the Government - the LLDA or the towns and municipalities comprising the region - should exercise jurisdiction over the Laguna Lake and its environs insofar as the issuance of permits for fishery privileges is concerned? Held: LLDA Ratio: Section 4 (k) of RA 4850, the provisions of PD 813, and Section 2 of EO 927, specifically provide that the LLDA shall have exclusive jurisdiction to issue permits for the use or all surface water for any projects or activities in or affecting the said region, including navigation, construction, and operation of fishpens, fish enclosures, fish corrals and the like. On the other hand, RA 7160 has granted to the municipalities the exclusive authority to grant fishery privileges in municipal waters. The Sangguniang Bayan may grant fishery privileges to erect fish corrals, oyster, mussels or other aquatic beds or bangus fry area within a definite zone of the municipal waters. The provisions of RA7160 do not necessarily repeal the laws creating the LLDA and granting the latter water rights authority over Laguna de Bay and the lake region. The Local Government Code of 1991 does not contain any express provision which categorically expressly repeal the charter of the Authority. It has to be conceded that there was no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws should be made clear and expressed. It has to be conceded that the charter of the LLDA constitutes a special law. RA 7160 is a general law. It is basic is basic in statutory construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well-settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law." Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more clearly that the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

72 | L o c a l

Considering the reasons behind the establishment of the Authority, which are enviromental protection, navigational safety, and sustainable development, there is every indication that the legislative intent is for the Authority to proceed with its mission. We are on all fours with the manifestation of LLDA that "Laguna de Bay, like any other single body of water has its own unique natural ecosystem. The 900 km lake surface water, the 8 major river tributaries and several other smaller rivers that drain into the lake, the 2,920 km2 basin or watershed transcending the boundaries of Laguna and Rizal provinces, constitute one integrated delicate natural ecosystem that needs to be protected with uniform set of policies; if we are to be serious in our aims of attaining sustainable development. This is an exhaustible natural resource-a very limited one-which requires judicious management and optimal utilization to ensure renewability and preserve its ecological integrity and balance. Managing the lake resources would mean the implementation of a national policy geared towards the protection, conservation, balanced growth and sustainable development of the region with due regard to the intergenerational use of its resources by the inhabitants in this part of the earth. The authors of Republic Act 4850 have foreseen this need when they passed this LLDA law-the special law designed to govern the management of our Laguna de Bay lake resources. Laguna de Bay therefore cannot be subjected to fragmented concepts of management policies where lakeshore local government units exercise exclusive dominion over specific portions of the lake water. The implementation of a cohesive and integrated lake water resource management policy, therefore, is necessary to conserve, protect and sustainably develop Laguna de Bay." The power of the LGUs to issue fishing privileges was clearly granted for revenue purposes. This is evident from the fact that Section 149 of the New Local Government Code empowering local governments to issue fishing permits is embodied in Chapter 2, Book II, of Republic Act No. 7160 under the heading, "Specific Provisions On The Taxing And Other Revenue Raising Power of LGUs. On the other hand, the power of the Authority to grant permits for fishpens, fishcages and other aqua-culture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region and for lake quality control and management. 6 It does partake of the nature of police power which is the most pervasive, the least limitable and the most demanding of all State powers including the power of taxation. Accordingly the charter of the Authority which embodies a valid exercise of police power should prevail over the Local Government Code of 1991 on matters affecting Laguna de Bay. There should be no quarrel over permit fees for fishpens, fishcages and other aqua-culture structures in the Laguna de Bay area. Section 3 of Executive Order No. 927 provides for the proper sharing of fees collected. In respect to the question as to whether the Authority is a quasi-judicial agency or not, it is our holding that, considering the provisions of Section 4 of Republic Act No. 4850 and Section 4 of Executive Order No. 927, series of 1983, and the ruling of this Court in Laguna Lake Development Authority vs. Court of Appeals, there is no question that the Authority has express powers as a regulatory a quasi-judicial body in respect to pollution cases with authority to issue a "cease a desist order" and on matters affecting the construction of illegal fishpens, fishcages and other aqua-culture structures in Laguna de Bay. The Authority's pretense, however, that it is co-equal to the Regional Trial Courts such that all actions against it may only be instituted before the Court of Appeals cannot be sustained. On actions necessitating the resolution of legal questions affecting the powers of the Authority as provided for in its charter, the Regional Trial Courts have jurisdiction. In view of the foregoing, this Court holds that Section 149 of RA 7160, otherwise known as the Local Government Code of 1991, has not repealed the provisions of the charter of the LLDA, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it. 8.5 Power of Eminent Domain: Moday et al v. Court of Appeals (1997) Facts: The Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No. 43-89, "Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports Facilities." The Resolution was approved by Mayor Anuncio Bustillo and was transmitted to the Sangguniang Panlalawigan for its approval.

Government

(Guanzon)

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The Sangguniang Panlalawigan disapproved said Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in Bunawan for the establishment of the government center." The municipality filed a petition for eminent domain against Percival Moday before the RTC. The municipality then filed a motion to take or enter upon the possession of the land upon deposit with the municipal treasurer of the required amount. The RTC granted the motion. It ruled that the Sangguniang Panlalawigan's failure to declare the resolution invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old Local Government Code and that the exercise of eminent domain is not one of the acts enumerated in Section 19 requiring the approval of the Sangguniang Panlalawigan. Petitioners elevated the case in a petition for certiorari before the CA. The CA held that the public purpose for the expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed. Meanwhile, the Municipality had erected three buildings on the subject property: the Association of Barangay Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which is made of concrete. In the instant petition for review, petitioner seeks the reversal of the decision and resolution of the CA and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null and void. Issue: WON a municipality may expropriate private property by virtue of a municipal resolution which was disapproved by the Sangguniang Panlalawigan. Held: Yes Ratio: Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation. The Municipality's power to exercise the right of eminent domain is not disputed as it is expressly provided for BP 337, the local Government Code in force at the time expropriation proceedings were initiated. What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang Panlalawigan disapproved Resolution No. 43-89. The Sangguniang Panlalawigan's disapproval of Resolution No. 43-89 is an infirm action which does not render said resolution null and void. The law, Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. Velazco v. Blas: The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is "beyond the powers conferred upon the council or president making the same." Absolutely no other ground is recognized by the law. A strictly legal question is before the provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board passes these limits, it usurps the legislative function of the municipal council or president. Such has been the consistent course of executive authority. Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the Municipality of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. As regards the accusation of political oppression, it is alleged that Moday incurred the ire of then Mayor Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent Mayor Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant sevenhectare property adjacent to petitioners' land, evidenced by a sketch plan.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

74 | L o c a l

The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process of law must be observed. The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, has ruled that the necessity of exercising eminent domain must be genuine and of a public character. Government may not capriciously choose what private property should be taken. Prov. Of Camarines Sur v. Court of Appeals (1993) Facts: The Sangguniang Panlalawigan of Camarines Sur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. Pursuant to the Resolution, the Province through Governor Luis R.Villafuerte, filed two cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an order, the trial court denied the motion to dismiss and authorized the Province to take possession of the property upon the deposit of P5,714.00. The trial court issued a writ of possession. The San Joaquins filed a motion for relief from the order and a motion to admit an amended motion to dismiss. Both motions were denied. In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution No. 129, Series of 1988 be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i) denying the motion to dismiss and (ii) allowing the Province to take possession of the property subject of the expropriation and the order dated February 26, 1990, denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction. The Province claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code and that the expropriations are for a public purpose. The Solicitor General stated that under Section 9 of the Local Government Code, there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. The CA set aside the order of the court and ordered the trial court to suspend the expropriation proceedings until the province shall have submitted the requisite approval of the DAR. Issue: WON the expropriation was proper Ratio: The CA did not rule on the validity of the questioned resolution; neither did it dismiss the complaints. However, when the CA ordered the suspension of the proceedings until the Province shall have obtained the authority of the DAR to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. Public Purpose. Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project. The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the Province of Camarines Sur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare."

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

75 | L o c a l

Eminent Domain vs CARL. It is the submission of the Province of Camarines Sur that its exercise of the power of eminent domain cannot be restricted by the provisions of the CARL, particularly Section 65, which requires the approval of the DAR before a parcel of land can be reclassified from an agricultural to a non-agricultural land. The CA, following the recommendation of the Solicitor General, held that the Province of Camarines Sur must comply with the provision of Section 65 of the CARK and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. In Heirs of Juancho Ardana v. Reyes, while the Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 sq m formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur by stressing the fact that LGUs exercise such power only by delegation. It is true that local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature. It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments. While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform. The closest provision of law that the CA could cite to justify the intervention of the DAR in expropriation matters is Section 65 of the CARL. The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the DAR to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication. To sustain the Court of Appeals would mean that the LGUs can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with the DAR, because all of these projects would naturally involve a change in the land use. In effect, it would then be the DAR to scrutinize whether the expropriation is for a public purpose or public use. Ordinarily, it is the legislative branch of the local government unit that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use. There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto. The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property, are unfounded. This Court has declared as unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases to be the value given to the condemned property either by the owners or the assessor, whichever was lower. As held in Municipality of Talisay v. Ramirez, the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property.

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

76 | L o c a l

Government

(Guanzon)

S.Y.

08-09:

2nd

Sem.

Barangay San Roque v. Heirs of Pastor (2000) Facts: Petitioner filed before the MTC of Talisay, Cebu a Complaint to expropriate a property of the respondents. In an Order, the MTC dismissed the Complaint on the ground of lack of jurisdiction. It reasoned that "[e) minent domain is an exercise of the power to take private property for public use after payment of just compensation. In an action for eminent domain, therefore, the principal cause of action is the exercise of such power or right. The fact that the action also involves real property is merely incidental. An action for eminent domain is therefore within the exclusive original jurisdiction of the Regional Trial Court and not with this Court." On appeal, the RTC dismissed the complaint, holding that an action for eminent domain affected title to real property; hence, the value of the property to be expropriated would determine whether the case should be filed before the MTC or the RTC. The RTC concluded that the action should have been filed before the MTC since the value of the subject property was less than P20,000. Aggrieved, petitioner appealed directly to this Court, raising a pure question of law. Respondents contend that the Complaint for Eminent Domain affects the title to or possession of real property. Thus, they argue that the case should have been brought before the MTC, pursuant to BP 129 as amended by Section 3 (3) of RA 7691. This law provides that MTCs shall have exclusive original jurisdiction over all civil actions that involve title to or possession of real property, the assessed value of which does not exceed twenty thousand pesos or, in civil actions in Metro Manila, fifty thousand pesos exclusive of interest, damages of whatever kind, attorneys fees, litigation expenses and costs. Issue: WON an expropriation suit is one incapable of pecuniary estimation and is therefore within the jurisdiction of the RTC Held: Yes Ratio: "A review of the jurisprudence of this Court indicates that in determining whether an action is one the subject matter of which is not capable of pecuniary estimation, this Court has adopted the criterion of first ascertaining the nature of the principal action or remedy sought. If it is primarily for the recovery of a sum of money, the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the municipal courts or in the courts of first instance would depend on the amount of the claim. However, where the basic issue is something other than the right to recover a sum of money, or where the money claim is purely incidental to, or a consequence of, the principal relief sought, like in suits to have the defendant perform his part of the contract (specific performance) and in actions for support, or for annulment of a judgment or to foreclose a mortgage, this Court has considered such actions as cases where the subject of the litigation may not be estimated in terms of money, and are cognizable exclusively by courts of first instance. The rationale of the rule is plainly that the second class cases, besides the determination of damages, demand an inquiry into other factors which the law has deemed to be more within the competence of courts of first instance, which were the lowest courts of record at the time that the first organic laws of the Judiciary were enacted allocating jurisdiction. In the present case, an expropriation suit does not involve the recovery of a sum of money. Rather, it deals with the exercise by the government of its authority and right to take private property for public use. In National Power Corporation v. Jocson, the Court ruled that expropriation proceedings have two phases: "The first is concerned with the determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It ends with an order, if not of dismissal of the action, of condemnation declaring that the plaintiff has a lawful right to take the property sought to be condemned, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the filing of the complaint. An order of dismissal, if this be ordained, would be a final one, of course, since it finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too, would an order of condemnation be a final one, for thereafter as the Rules expressly state, in the proceedings before the Trial Court, no objection to the exercise of the right of condemnation (or the propriety thereof) shall be filed or heard. "The second phase of the eminent domain action is concerned with the determination by the court of the just compensation for the property sought to be taken. This is done by the Court with the assistance of not more than three (3) commissioners. The order fixing the just compensation on the basis of the evidence before, and findings of, the commissioners would be final, too. It would

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finally dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the issue. " It should be stressed that the primary consideration in an expropriation suit is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the observance of due process. In the main, the subject of an expropriation suit is the governments exercise of eminent domain, a matter that is incapable of pecuniary estimation. True, the value of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit. Indeed, that amount is determined only after the court is satisfied with the propriety of the expropriation. Verily, the Court held in Republic of the Philippines v. Zurbano that "condemnation proceedings are within the jurisdiction of Courts of First Instance," the forerunners of the regional trial courts. The said case was decided during the effectivity of the Judiciary Act of 1948 which, like BP 129 in respect to RTCs, provided that courts of first instance had original jurisdiction over "all civil actions in which the subject of the litigation is not capable of pecuniary estimation." The 1997 amendments to the Rules of Court were not intended to change these jurisprudential precedents. We are not persuaded by respondents argument that the present action involves the title to or possession of a parcel of land. They cite the observation of retired Justice Jose Y. Feria, an eminent authority in remedial law, that condemnation or expropriation proceedings are examples of real actions that affect the title to or possession of a parcel of land. Their reliance is misplaced. Justice Feria sought merely to distinguish between real and personal actions. His discussion on this point pertained to the nature of actions, not to the jurisdiction of courts. In fact, in his pre-bar lectures, he emphasizes that jurisdiction over eminent domain cases is still within the RTCs under the 1997 Rules. To emphasize, the question in the present suit is whether the government may expropriate private property under the given set of circumstances. The government does not dispute respondents title to or possession of the same. Indeed, it is not a question of who has a better title or right, for the government does not even claim that it has a title to the property. It merely asserts its inherent sovereign power to "appropriate and control individual property for the public benefit, as the public necessity, convenience or welfare may demand." Mun. of Paranaque v. V.M. Realty Corp (1998) Facts: Pursuant to Sangguniang Bayan Resolution No. 93-95, Series of 1993, the Municipality of Paraaque filed a Complaint for expropriation against V.M. Realty Corporation, over two parcels of land. Allegedly, the complaint was filed "for the purpose of alleviating the living conditions of the underprivileged by providing homes for the homeless through a socialized housing project." Petitioner, pursuant to its Sangguniang Bayan Resolution No. 577, Series of 1991, previously made an offer to enter into a negotiated sale of the property with private respondent, which the latter did not accept. The RTC authorized petition to take possession of the subject property upon its deposit with the clerk of court of an amount equivalent to 15% of its fair market value. Private Respondent filed an answer alleging that (a) the complaint failed to state a cause of action because it was filed pursuant to a resolution and not to an ordinance as required by RA 7160; and (b) the cause of action, if any, was barred by a prior judgment or res judicata. On private respondent's motion, its Answer was treated as a motion to dismiss. The trial court dismissed the complaint. Issue: WON the resolution is different from the ordinance Held: Yes Ratio: Petitioner contends that a resolution approved by the municipal council for the purpose of initiating an expropriation case "substantially complies with the requirements of the law" because the terms "ordinance" and "resolution" are synonymous for "the purpose of bestowing authority [on] the local government unit through its chief executive to initiate the expropriation proceedings in court in the exercise of the power of eminent domain." Petitioner seeks to bolster this contention by citing Article 36, Rule VI of the IRR of the Local Government Code, which provides: "If the LGU fails to acquire a private property for public use, purpose, or welfare through purchase, the LGU

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may expropriate said property through a resolution of the Sanggunian authorizing its chief executive to initiate expropriation proceedings." The Court disagrees. The power of eminent domain is lodged in the legislative branch of government, which may delegate the exercise thereof to LGUs, other public entities and public utilities. An LGU may therefore exercise the power to expropriate private property only when authorized by Congress and subject to the latter's control and restraints imposed "through the law conferring the power or in other legislations." In this case, Section 19 of RA 7160, which delegates to LGUs the power of eminent domain, also lays down the parameters for its exercise. Thus, the following essential requisites must concur before an LGU can exercise the power of eminent domain: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the LGU, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. In the case at bar, the local chief executive sought to exercise the power of eminent domain pursuant to a resolution of the municipal council. Thus, there was no compliance with the first requisite that the mayor be authorized through an ordinance. Petitioner cites Camarines Sur vs. CA to show that a resolution may suffice to support the exercise of eminent domain by an LGU. This case, however, is not in point because the applicable law at that time was BP 337, 30 the previous Local Government Code, which had provided that a mere resolution would enable an LGU to exercise eminent domain. In contrast, RA 7160 explicitly required an ordinance for this purpose. We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently - a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. If Congress intended to allow LGUs to exercise eminent domain through a mere resolution, it would have simply adopted the language of the previous Local Government Code. But Congress did not. In a clear divergence from the previous Local Government Code, Section 19 of RA 7160 categorically requires that the local chief executive act pursuant to an ordinance. Indeed, "[l]egislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." 34 In the instant case, there is no reason to depart from this rule, since the law requiring an ordinance is not at all impossible, absurd, or unjust. Moreover, the power of eminent domain necessarily involves a derogation of a fundamental or private right of the people. 35 Accordingly, the manifest change in the legislative language - from "resolution" under the BP 337 to "ordinance" under RA 7160 - demands a strict construction. "No species of property is held by individuals with greater tenacity, and is guarded by the Constitution and laws more sedulously, than the right to the freehold of inhabitants. When the legislature interferes with that right and, for greater public purposes, appropriates the land of an individual without his consent, the plain meaning of the law should not be enlarged by doubtful interpretation." Petitioner relies on Article 36, Rule VI of the Implementing Rules, which requires only a resolution to authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section 19 of RA 7160, the law itself, surely prevails over said rule which merely seeks to implement it. It is axiomatic that the clear letter of the law is controlling and cannot be amended by a mere administrative rule issued for its implementation. Besides, what the discrepancy seems to indicate is a mere oversight in the wording of the implementing rules, since Article 32, Rule VI thereof, also requires that, in exercising the power of eminent domain, the chief executive of the LGU must act pursuant to an ordinance.

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Issue: WON the complaint states a cause of action Held: No

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Ratio: In the first place, petitioner merely alleged the existence of such an ordinance, but it did not present any certified true copy thereof. In the second place, petitioner did not raise this point before this Court. In fact, it was mentioned by private respondent, and only in passing. In any event, this allegation does not cure the inherent defect of petitioner's Complaint for expropriation filed on September 23, 1993. The fact that there is no cause of action is evident from the face of the Complaint for expropriation which was based on a mere resolution. The absence of an ordinance authorizing the same is equivalent to lack of cause of action. Consequently, the Court of Appeals committed no reversible error in affirming the trial court's Decision which dismissed the expropriation suit. Issue: WON the action is bared by res juridicata Held: No Ratio: All the requisites for the application of res judicata are present in this case. There is a previous final judgment on the merits in a prior expropriation case involving identical interests, subject matter and cause of action, which has been rendered by a court having jurisdiction over it. Be that as it may, the Court holds that the principle of res judicata, which finds application in generally all cases and proceedings, cannot bar the right of the State or its agent to expropriate private property. The very nature of eminent domain, as an inherent power of the State, dictates that the right to exercise the power be absolute and unfettered even by a prior judgment or res judicata. The scope of eminent domain is plenary and, like police power, can "reach every form of property which the State might need for public use." "All separate interests of individuals in property are held of the government under this tacit agreement or implied reservation. Notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the government, or in the aggregate body of the people in their sovereign capacity; and they have the right to resume the possession of the property whenever the public interest requires it." Thus, the State or its authorized agent cannot be forever barred from exercising said right by reason alone of previous non-compliance with any legal requirement. While the principle of res judicata does not denigrate the right of the State to exercise eminent domain, it does apply to specific issues decided in a previous case. For example, a final judgment dismissing an expropriation suit on the ground that there was no prior offer precludes another suit raising the same issue; it cannot, however, bar the State or its agent from thereafter complying with this requirement, as prescribed by law, and subsequently exercising its power of eminent domain over the same property. By the same token, our ruling that petitioner cannot exercise its delegated power of eminent domain through a mere resolution will not bar it from reinstituting similar proceedings, once the said legal requirement and, for that matter, all others are properly complied with. Parenthetically and by parity of reasoning, the same is also true of the principle of "law of the case." In Republic vs De Knecht, the Court ruled that the power of the State or its agent to exercise eminent domain is not diminished by the mere fact that a prior final judgment over the property to be expropriated has become the law of the case as to the parties. The State or its authorized agent may still subsequently exercise its right to expropriate the same property, once all legal requirements are complied with. To rule otherwise will not only improperly diminish the power of eminent domain, but also clearly defeat social justice. City of Cebu v. CA (1996) Facts: Merlita Cardeno is the owner of a parcel of land in Sitio Sto. Nino, Alaska-Mambaling. The City of Cebu, filed a complaint for eminent domain against Cardeno with the RTC seeking to expropriate the said parcel of land. The complaint was initiated pursuant to Resolution No. 404 and Ordinance No. 1418, dated February 17, 1992, of the Sangguniang Panlungsod of Cebu City authorizing the City Mayor to expropriate the said parcel of land for the purpose of providing a socialized housing project for the landless and low-income city residents. Cardeno filed a motion to dismiss on the ground of lack of cause of action as there has been negotiations for the purchase of the property without resorting to expropriation, but said negotiations failed. Also, there was no compliance with the conditions to the exercise of the power of eminent domain (valid and definite offer made to the owner and non acceptance). The RTC dismissed the complaint. The CA affirmed

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the of the RTC. According to the CA, an allegation of repeated negotiations made with the private respondent for the purchase of her property by the petitioner, "cannot by any stretch of imagination, be equated or likened to the clear and specific requirement that the petitioner should have previously made a valid and definite offer to purchase." It further added that the term "negotiation" which necessarily implies uncertainty, it consisting of acts the purpose of which is to arrive at a conclusion, may not be perceived to mean the valid and definite offer contemplated by law. Issue: WON expropriation may be granted Ratio: An offshoot of the foregoing is the instant petition for review on certiorari which has essentially become a battle of semantics being waged before this Court. While petitioner reiterates that paragraph VII of the complaint sufficiently states compliance with the requirement of "a valid and definite offer", private respondent insists that the term "negotiations" is too broad to be equated with the said requirement. Elaborating, private respondent posited that by definition, "negotiations run the whole range of acts preparatory to concluding an agreement, from the preliminary correspondence; the fixing of the terms of the agreement; the price; the mode of payment; obligations of (sic) the parties may conceive as necessary to their agreement." Thus, "negotiations" by itself may pertain to any of the foregoing and does not automatically mean the making of "a valid and definite offer." At the outset, it must be said that without necessarily delving into the parties' semantical arguments, this Court finds that the complaint does in fact state a cause of action. What may perhaps be conceded is only the relative ambiguity of the allegations in paragraph VII of the complaint. However, as We have previously held, a complaint should not be dismissed upon a mere ambiguity, indefiniteness or uncertainty of the cause of action stated thereinfor these are not grounds for a motion to dismiss but rather for a bill of particulars. In other words, a complaint should not be dismissed for insufficiency unless it appears clearly from the face of the complaint that the plaintiff is not entitled to any relief under any state of facts which could be proved within the facts alleged therein. The error of both the RTC and respondent Court of Appeals in holding that the complaint failed to state a cause of action stems from their inflexible application of the rule that: when the motion to dismiss is based on the ground that the complaint states no cause of action, no evidence may be allowed and the issue should only be determined in the light of the allegations of the complaint. However, this rule is not without exceptions. In the case of Tan v. Director of Forestry, this Court departed from the aforementioned rule and held that, ". . . although the evidence of the parties were on the question of granting or denying the petitioner-appellant's application for a writ of preliminary injunction, the trial court correctly applied said evidence in the resolution of the motion to dismiss." Likewise, in Marcopper Mining Corporation v. Garcia, we sanctioned the act of the trial court in considering, in addition to the complaint, other pleadings submitted by the parties in deciding whether or not the complaint should be dismissed for lack of cause of action. This Court deemed such course of action but logical where the trial court had the opportunity to examine the merits of the complaint, the answer with counterclaim, the petitioner's answer to the counterclaim and its answer to the request for admission. The same liberality should be applied in the instant case. Furthermore, even on the face of the complaint alone, there is extant a cause of action. All documents attached to a complaint, the due execution and genuineness of which are not detained under oath by the defendant, must be considered as part of the complaint without need of introducing evidence thereon. Additionally, the general rule is that a motion to dismiss hypothetically admits the truth of the facts alleged in the complaint. Thus, Ordinance No. 1418 is not only incorporated into the complaint for eminent domain filed by petitioner, but is also deemed admitted by private respondent. A perusal of the copy of said ordinance which has been annexed to the complaint shows that the fact of petitioner's having made a previous valid and definite offer to private respondent is categorically stated therein. Thus, the second whereas clause of the said ordinance provides as follows: WHEREAS, the city government has made a valid and definite offer to purchase subject lot(s) for the public use aforementioned but the registered owner Mrs. Merlita Cardeno has rejected such offer. The foregoing should now put to rest the long drawn argument over the alleged failure of the complaint to state a cause of action. There is no longer any room for doubt that as alleged in the complaint, and as admitted by private respondent, the petitioner had in fact complied with the condition precedent of "a valid and definite offer" set forth in Sec. 19 of R.A. 7160. The rules of

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procedure are not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure substantial justice. If a technical and rigid enforcement of the rules is made their aim would be defeated. Where the rules are merely secondary in importance are made to override the ends of justice; the technical rules had been misapplied to the prejudice of the substantial right of a party, said rigid application cannot be countenanced. The doctrine finds compelling application in the case at bench. For as correctly averred by petitioner, nothing else was accomplished by the dismissal of the complaint for eminent domain but a considerable delay in the proceedings. The dismissal of the complaint did not bar petitioner from filing another eminent domain case and from correcting its alleged error by the mere expedient of changing paragraph VII thereof. Indeed, precious time has been wasted while the salutary objectives of Ordinance No. 1418 of the City of Cebu have been put on hold by a quarrel over technical matters. Francia v. Mun. of Meycauyan (2008) Facts: On February 6, 2003, the respondent filed a complaint for expropriation against petitioners. Respondent needed petitioners' 16,256 sq. m. idle property at the junction of the North Expressway, Malhacan-Iba-Camalig main road artery and the MacArthur Highway. It planned to use it to establish a common public terminal for all types of public utility vehicles with a weighing scale for heavy trucks. In their answer, petitioners denied that the property sought to be expropriated was raw land. It was in fact developed and there were plans for further development. For this reason, respondent's offer price of P2,333,500 (or P111.99 per square meter) was too low. After trial, the RTC ruled that the expropriation was for a public purpose as the terminal would improve the flow of traffic during rush hours. Moreover, the property as the best site for the proposed terminal because of its accessibility. Aggrieved, petitioners filed a petition for certiorari in the CA. They claimed that the trial court issued the orders without conducting a hearing to determine the existence of a public purpose. The partially granted the petition. Finding that petitioners were deprived of an opportunity to controvert respondent's allegations, the appellate court nullified the order of expropriation except with regard to the writ of possession. According to the CA, a hearing was not necessary because once the expropriator deposited the required amount (with the Court), the issuance of a writ of possession became ministerial. Issue: WON the CA erred in upholding the RTC's orders that, in expropriation cases, prior determination of the existence of a public purpose was not necessary for the issuance of a writ of possession. Held: No Ratio: Section 19 of Republic Act 7160[9] provides: Section 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws; Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and that such offer was not accepted; Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated; Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. Before a local government unit may enter into the possession of the property sought to be expropriated, it must (1) file a complaint for expropriation sufficient in form and substance in the proper court and (2) deposit with the said court at least 15% of the property's fair market value based on its current tax declaration. The law does not make the determination of a public purpose a condition precedent to the issuance of a writ of possession. Heirs of Ardona v. Reyes (1983)

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Facts: The Philippine Tourism Authority filed 4 complaints with the CFI of Cebu City for the expropriation of 282 ha of rolling land situated in barangays Malubog and Babag, Cebu City for the development into integrated resort complexes of selected and well-defined geographic areas with potential tourism value. The PTA will construct a sports complex, club house, golf course, playground and picnic area on said land. An electric power grid will also be established by NPC as well as deep well and drainage system. Complimentary support facilities (malls, coffee shops, etc) will also be created. The defendants alleged that the taking is allegedly not impressed with public use under the Constitution. Also, assuming that PTA has such power, the intended use cannot be paramount to the determination of the land as a land reform area; that limiting the amount of compensation by legislative fiat is constitutionally repugnant; and that since the land is under the land reform program, it is the Court of Agrarian Relations and not the Court of First Instance, that has jurisdiction over the expropriation cases. The Philippine Tourism Authority having deposited with the PNB, an amount equivalent to 10% of the value of the properties pursuant to PD1533, the lower court issued separate orders authorizing PTA to take immediate possession of the premises and directing the issuance of writs of possession. Issue: WON the public use requirement has been complied with Held: Yes Ratio: There are three provisions of the Constitution which directly provide for the exercise of the power of eminent domain. Sec 2, Article IV states that private property shall not be taken for public use without just compensation. Section 6, Article XIV allows the State, in the interest of national welfare or defense and upon payment of just compensation to transfer to public ownership, utilities and other private enterprises to be operated by the government. Section 13, Article XIV states that the Batasang Pambansa may authorize upon payment of just compensation the expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens. While not directly mentioning the expropriation of private properties upon payment of just compensation, the provisions on social justice and agrarian reforms which allow the exercise of police power together with the power of eminent domain in the implementation of constitutional objectives are even more far reaching insofar as taxing of private property is concerned. We cite all the above provisions on the power to expropriate because of the petitioners' insistence on a restrictive view of the eminent domain provision. The thrust of all constitutional provisions on expropriation is in the opposite direction. As early as 1919, this Court in Visayan Refining Co. v. Samus categorized the restrictive view as wholly erroneous and based on a misconception of fundamentals. The petitioners look for the word "tourism" in the Constitution. Understandably the search would be in vain. To freeze specific programs like tourism into express constitutional provisions would make the Constitution more prolix than a bulky code and require of the framers a prescience beyond Delphic proportions. In said case, this Court emphasized that the power of eminent domain is inseparable from sovereignty being essential to the existence of the State and inherent in government even in its most primitive forms. The only purpose of the provision in the Bill of Rights is to provide some form of restraint on the sovereign power. It is not a grant of authority . The petitioners ask us to adopt a strict construction and declare that "public use" means literally use by the public and that "public use" is not synonymous with "public interest", "public benefit", or "public welfare" and much less "public convenience." The petitioners face two major obstacles. First, their contention which is rather sweeping in its call for a retreat from the public welfare orientation is unduly restrictive and outmoded. Second, no less than the lawmaker has made a policy determination that the power of eminent domain may be exercised in the promotion and development of Philippine tourism. The restrictive view of public use may be appropriate for a nation which circumscribes the scope of government activities and public concerns and which possesses big and correctly located public lands that obviate the need to take private property for public purposes. Neither circumstance applies to the Philippines. We have never been a laissez faire State. And the necessities which impel the exertion of sovereign power are all too often found in areas of scarce public land or limited government resources. There can be no doubt that expropriation for such traditional purposes as the construction of roads, bridges, ports, waterworks, schools, electric and telecommunications systems, hydroelectric power plants, markets and slaughterhouses, parks, hospitals, government office buildings, and

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flood control systems is valid. However, the concept of public use is not limited to traditional purposes. Here as elsewhere the idea that "public use" is strictly limited to clear cases of "use by the public" has been discarded. In the Philippines, Chief Justice Enrique M. Fernando has aptly summarized the statutory and judicial trend as follows: "The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not any more. As long as the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is in the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use." The petitioners' contention that the promotion of tourism is not "public use" because private concessioners would be allowed to maintain various facilities such as restaurants, hotels, stores, etc. inside the tourist complex is impressed with even less merit. Private bus firms, taxicab fleets, roadside restaurants, and other private businesses using public streets and highways do not diminish in the least bit the public character of expropriations for roads and streets. The lease of store spaces in underpasses of streets built on expropriated land does not make the taking for a private purpose. Airports and piers catering exclusively to private airlines and shipping companies are still for public use. The expropriation of private land for slum clearance and urban development is for a public purpose even if the developed area is later sold to private homeowners, commercial firms, entertainment and service companies, and other private concerns. The petitioners have also failed to overcome the deference that is appropriately accorded to formulations of national policy expressed in legislation. The rule in Berman v. Parker (supra) of deference to legislative policy even if such policy might mean taking from one private person and conferring on another private person applies as well as in the Philippines. An examination of the language in the 1919 cases of City of Manila v. Chinese Community of Manila and Visayan Refining Co. v. Camus, earlier cited, shows that from the very start of constitutional government in our country judicial deference to legislative policy has been clear and manifest in eminent domain proceedings. The expressions of national policy are found in the revised charter of the Philippine Tourism Authority, PD 564. (Disregard of Land Reform Nature) According to them, assuming that PTA has the right to expropriate, the properties subject of expropriation may not be taken for the purposes intended since they are within the coverage of "operation land transfer" under the land reform program; that the agrarian reform program occupies a higher level in the order of priorities than other State policies like those relating to the health and physical well-being of the people; and that property already taken for public use may not be taken for another public use. The petitioners, however, have failed to show that the area being developed is indeed a land reform area and that the affected persons have emancipation patents and certificates of land transfer. The records show that the area being developed into a tourism complex consists of more than 808 hectares, almost all of which is not affected by the land reform program. The portion being expropriated is 282 hectares of hilly and unproductive land where even subsistence farming of crops other than rice and corn can hardly survive. And of the 282 disputed hectares, only 8,970 square meters - less than one hectare - is affected by Operation Land Transfer. Of the 40 defendants, only two have emancipation patents for the less than one hectare of land affected. (Non Impairment Clause) The non-impairment clause has never been a barrier to the exercise of police power and likewise eminent domain. As stated in Manigault v. Springs "parties by entering into contracts may not estop the legislature from enacting laws intended for the public good." The applicable doctrine is expressed in Arce v. Genato which involved the expropriation of land for a public plaza. The issue of prematurity is also raised by the petitioners. They claim that since the necessity for the taking has not been previously established, the issuance of the orders authorizing the PTA to take immediate possession of the premises, as well as the corresponding writs of possession was premature. Under Presidential Decree No. 42, as amended by Presidential Decree No. 1533, the government, its agency or instrumentality, as plaintiff in an expropriation proceedings is authorized to take immediate possession, control and disposition of the property and the improvements, with power of demolition, notwithstanding the pendency of the issues before the court, upon deposit with the

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Philippine National Bank of an amount equivalent to 10% of the value of the property expropriated. The issue of immediate possession has been settled in Arce v. Genato. In answer to the issue: ". . . condemnation or expropriation proceedings is in the nature of one that is quasi-in-rem, wherein the fact that the owner of the property is made a party is not essentially indispensable insofar at least as it concerns the immediate taking of possession of the property and the preliminary determination of its value, including the amount to be deposited." Makasiar: It appearing that the petitioners are not tenants of the parcels of land in question and therefore do not fall within the purview of the Land Reform Code, the petition should be dismissed on that score alone. There is no need to decide whether the power of the PTA to expropriate the land in question predicated on the police power of the State shall take precedence over the social justice guarantee in favor of tenants and the landless. The welfare of the landless and small land owners should prevail over the right of the PTA to expropriate the lands just to develop tourism industry, which benefit the wealthy only. Such a position would increase the disenchanted citizens and drive them to dissidence. The government is instituted primarily for the welfare of the governed and there are more poor people in this country than the rich. The tourism industry is not essential to the existence of the government, but the citizens are, and their right to live in dignity should take precedence over the development of the tourism industry. Filstream International Inc. v. CA (1998) Facts: Petitioner is the registered owner of the properties subject of this dispute consisting of adjacent parcels of land situated in Antonio Rivera Street, Tondo II, Manila. Petitioner filed an ejectment suit before the MTC against the occupants of the parcels of land (private respondents) on the grounds of termination of the lease contract and non-payment of rentals. Judgment was rendered by the MTC ordering private respondents to vacate the premises and pay back rentals to petitioner. The RTC and CA affirmed. However, it appeared that during the pendency of the ejectment proceedings private respondents, a complaint for Annulment of Deed of Exchange against petitioner which was filed before the RTC. The City of Manila then approved Ordinance No. 7813, authorizing Mayor Lim to initiate the acquisition by negotiation, expropriation, purchase, or other legal means certain parcels of land which formed part of the properties of petitioner then occupied by private respondents. The City approved Ordinance No. 7855 declaring the expropriation of certain parcels of land situated along Antonio Rivera and Fernando Ma. Guerero streets in Tondo, Manila which were owned by Mr. Enrique Quijano Gutierez, petitioners predecessor-in-interest. The said properties were to be sold and distributed to qualified tenants of the area pursuant to the Land Use Development Program of the City of Manila. The City of Manila filed a complaint for eminent domain. The trial court issued a Writ of Possession in favor of the city which ordered the transfer of possession over the disputed premises to the City of Manila. Petitioner filed a motion to dismiss but the court denied th emotion. Concerning the first case, the trial court issued an order commanding the demolition of the structure erected on the disputed premises. To avert the demolition, private respondents filed before the RTC of Manila, Branch 14, a Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction. The TRO was granted which was later lifted. The court the dismissed the case on the ground of forum shopping. On appeal, the CA found merit in private respondents allegations in support of their application of the issuance of the writ and granted the same. The issue raised in G.R. No. 125218 is purely procedural and technical matter. Petitioner takes exception to the resolutions of the CA which ordered the dismissal of its Petition for Certiorari for non-compliance with Sec. 2(a) of Rule 6 of the Revised Internal Rules of the Court of Appeals by failing to attach to its petition other pertinent documents and papers and for attaching copies of pleadings which are blurred and unreadable. Petitioner argues that respondent appellate court seriously erred in giving more premium to form rather than the substance. We agree with the petitioner. A strict adherence to the technical and procedural rules in this case would defeat rather than meet the ends of justice as it would result in the violation of the substantial rights of petitioner. At stake in the appeal filed by petitioner before the CA is the exercise of their property rights over the disputed premises which have been expropriated and have in fact been ordered condemned in favor of the City of Manila. In effect, the dismissal of their appeal in the expropriation proceedings based on the aforementioned grounds is tantamount to a deprivation of property without due process of law as it would automatically validate the expropriation proceedings based on the aforementioned grounds is tantamount to a deprivation of

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property without due process of law as it would automatically validate the expropriation proceedings which the petitioner is still disputing. It must be emphasized that where substantial rights are affected, as in this case, the stringent application of procedural rules may be relaxed if only to meet the ends of substantial justice. With regard to the other petition, G.R. No. 128077, petitioner Filstream objects to the issuance by respondent CA of the restraining order and the preliminary injunction enjoining the execution of the writ of demolition issued in the ejectment suit as an incident to private respondents pending petition assailing the dismissal by the RTC of Manila, Branch 33, of the consolidated petitions for certiorari filed by private respondents and the City of Manila on the ground of forum shopping. The propriety of the issuance of the restraining order and the writ of preliminary injunction is but a mere incient to the actual controversy which is rooted in the assertion of the conflicting rights of the parties in this case over the disputed premises. In order to determine whether private respondents are entitled to the injunctive reliefs granted by respondent CA, we deemed it proper to extract the source of discord. Petitioner anchors its claim by virtue of its ownership over the properties and the existence of a final and executory judgment against private respondents ordering the latters ejectment from the premises. Private respondents claim on the other hand hinges on an alleged supervening event which has rendered the enforcement of petitioners rights moot, that is, the expropriation proceedings undertaken by the City of Manila over the disputed premises for the benefit of herein private respondents. For its part, the City is merely exercising its power of eminent domain within its jurisdiction by expropriating petitioners properties for public use. There is no dispute as to the existence of a final and executory judgment in favor of petitioner ordering the ejectment of private respondents from the properties subject of this dispute. The judgment in the ejectment suit became final after private respondents failed to interpose any appeal from the adverse decision of CA. Petitioner has every right to assert the execution of this decision as it had already became final and executory. However, it must also be conceded that the City of Manila has an undeniable right to exercise its power of eminent domain within its jurisdiction. The right to expropriate private property for public use is expressly granted to it under Section 19 of the 1991 Local Government Code. More specifically, the City of Manila has the power to expropriate private property in the pursuit of its urban land reform and housing program as explicitly laid out in the Revised Charter of the City of Manila (R.A. No. 409). In fact, the City of Manilas right to exercise these prerogatives notwithstanding the existence of a final and executory judgment over the property to be expropriated has been upheld by this Court in the case of Philippine Columbian Association vs. Panis. Corollary to the expanded notion of public use, expropriation is not anymore confined to vast tracts of land and landed estate. It is therefore of no moment that the land sought to be expropriated in this case is less than the half a hectare only. Through the years, the public use requirement in eminent domain has evolved into a flexible concept, influenced by changing conditions. Public use now includes the broader notion of indirect public benefit or advantage, including a particular, urban land reform and housing. We take judicial notice of the fact that urban land reform has become a paramount task in view of the acute shortage of decent housing in urban areas. Nevertheless, despite the existence of a serious dilemma, local government units are not given an unbridled authority when exercising their power of eminent domain in pursuit of solutions to these problems. The basic rules still have to be followed, which are as follows: no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws; private property shall not be taken for public use without just compensation. Thus the exercise by local government units of the power of eminent domain is not without limitations. Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands. Very clear from the provisions are the limitations with respect to the order of priority in acquiring private lands and in resorting to expropriation proceedings as means to acquire the same. Private lands rank last in the order of priority for purposes of socialized housing. In the same vein, expropriation proceedings are to be resorted to only when the other modes of acquisition have been exhausted. Compliance with these conditions must be deemed mandatory because these are the only safeguards in securing the right of owners of private property to due process when their property is expropriated for public use.

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Proceeding from the parameters laid out in the above disquisitions, we now pose the crucial question: Did the city of Manila comply with the abovementioned conditions when it expropriated petitioners properties? We have carefully scrutinized the records of this case and found nothing that would indicate the respondent City of Manila complied with Sec. 9 and Sec. 10 of R.A. 7279. Petitioners properties were expropriated and ordered condemned in favor of the City of Manila sans any showing that resort to the acquisition of other lands listed under Sec. 9 of RA 7279 have proved futile. Evidently, there was a violation of petitioner Filstreams right to due process which must accordingly be rectified. Indeed, it must be emphasized that the State has a paramount interest in exercising its power of eminent domain for the general good considering that the right of the State to expropriate private property as long as it is for public use always takes precedence over the interest of private property owners. However we must not lose sight of the fact that the individual rights affected by the exercise of such right are also entitled to protection, bearing in mind that the exercise of this superior right cannot override the guarantee of due process extended by the law to owners of the property to be expropriated. In this regard, vigilance over compliance with the due process requirements is in order. Hagonoy Market Vendors Assn. v. Mun. of Hagonoy (2002) Facts: On October 1, 1996, the Sangguniang Bayan of Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28, which increased the stall rentals of the market vendors in Hagonoy. Article 3 provided that it shall take effect upon approval. The subject ordinance was posted from November 4-25, 1996. In the last week of November, 1997, the petitioners members were personally given copies of the approved Ordinance and were informed that it shall be enforced in January, 1998. On December 8, 1997, the petitioners President filed an appeal with the Secretary of Justice assailing the constitutionality of the tax ordinance. Petitioner claimed it was unaware of the posting of the ordinance. Respondent opposed the appeal. It contended that the ordinance took effect on October 6, 1996 and that the ordinance, as approved, was posted as required by law. Hence, it was pointed out that petitioners appeal, made over a year later, was already time-barred. The Secretary of Justice dismissed the appeal on the ground that it was filed out of time, i.e., beyond thirty (30) days from the effectivity of the Ordinance on October 1, 1996, as prescribed under Section 187 of the 1991 Local Government Code Issue: WON the CA erred in dismissing the appeal Held: Yes Ratio: We find that the Court of Appeals erred in dismissing petitioners appeal on the ground that it was formally deficient. It is clear from the records that the petitioner exerted due diligence to get the copies of its appealed Resolutions certified by the Department of Justice, but failed to do so on account of typhoon Loleng. Under the circumstances, respondent appellate court should have tempered its strict application of procedural rules in view of the fortuitous event considering that litigation is not a game of technicalities. Issue: WON the petitioner should be dismissed Held: Yes Ratio: The petition should be dismissed as the appeal of the petitioner with the Secretary of Justice is already time-barred. The applicable law is Section 187 of the 1991 Local Government Code. The law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In the case at bar, Municipal Ordinance No. 28 took effect in October 1996. Petitioner filed its appeal only in December 1997, more than a year after the effectivity of the ordinance in 1996. Clearly, the Secretary of Justice correctly dismissed it for being time-barred. At this point, it is apropos to state that the timeframe fixed by law for parties to avail of their legal remedies before competent courts is not a mere technicality that can be easily brushed aside. The periods stated in Section 187 of the Local Government Code are mandatory.[10] Ordinance No. 28 is a revenue measure

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adopted by the municipality of Hagonoy to fix and collect public market stall rentals. Being its lifeblood, collection of revenues by the government is of paramount importance. The funds for the operation of its agencies and provision of basic services to its inhabitants are largely derived from its revenues and collections. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time. Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances. In a last ditch effort to justify its failure to file a timely appeal with the Secretary of Justice, the petitioner contends that its period to appeal should be counted not from the time the ordinance took effect in 1996 but from the time its members were personally given copies of the approved ordinance in November 1997. It insists that it was unaware of the approval and effectivity of the subject ordinance in 1996 on two (2) grounds: first, no public hearing was conducted prior to the passage of the ordinance and, second, the approved ordinance was not posted. We do not agree. Petitioners bold assertion that there was no public hearing conducted prior to the passage of Kautusan Blg. 28 is belied by its own evidence. In petitioners two (2) communications with the Secretary of Justice,[12] it enumerated the various objections raised by its members before the passage of the ordinance in several meetings called by the Sanggunian for the purpose. These show beyond doubt that petitioner was aware of the proposed increase and in fact participated in the public hearings therefor. The respondent municipality likewise submitted the Minutes and Report of the public hearings conducted by the Sangguniang Bayans Committee on Appropriations and Market on February 6, July 15 and August 19, all in 1996, for the proposed increase in the stall rentals. Petitioner cannot gripe that there was practically no public hearing conducted as its objections to the proposed measure were not considered by the Sangguniang Bayan. To be sure, public hearings are conducted by legislative bodies to allow interested parties to ventilate their views on a proposed law or ordinance. These views, however, are not binding on the legislative body and it is not compelled by law to adopt the same. Sanggunian members are elected by the people to make laws that will promote the general interest of their constituents. They are mandated to use their discretion and best judgment in serving the people. Parties who participate in public hearings to give their opinions on a proposed ordinance should not expect that their views would be patronized by their lawmakers. On the issue of publication or posting, (Section 188 of the Local Government Code), the records is bereft of any evidence to prove petitioners negative allegation that the subject ordinance was not posted as required by law. In contrast, the respondent Sangguniang Bayan of the Municipality of Hagonoy, Bulacan, presented evidence which clearly shows that the procedure for the enactment of the assailed ordinance was complied with. Municipal Ordinance No. 28 was enacted by the Sangguniang Bayan of Hagonoy on October 1, 1996. Then Acting Municipal Mayor Maria Garcia Santos approved the Ordinance on October 7, 1996. After its approval, copies of the Ordinance were given to the Municipal Treasurer on the same day. On November 9, 1996, the Ordinance was approved by the Sangguniang Panlalawigan. The Ordinance was posted during the period from November 4 - 25, 1996 in three (3) public places, viz: in front of the municipal building, at the bulletin board of the Sta. Ana Parish Church and on the front door of the Office of the Market Master in the public market.[14] Posting was validly made in lieu of publication as there was no newspaper of local circulation in the municipality of Hagonoy. This fact was known to and admitted by petitioner. Thus, petitioners ambiguous and unsupported claim that it was only sometime in November 1997 that the Provincial Board approved Municipal Ordinance No. 28 and so the posting could not have been made in November 1996 was sufficiently disproved by the positive evidence of respondent municipality. Given the foregoing circumstances, petitioner cannot validly claim lack of knowledge of the approved ordinance. The filing of its appeal a year after the effectivity of the subject ordinance is fatal to its cause. Finally, even on the substantive points raised, the petition must fail. Section 6c.04 of the 1993 Municipal Revenue Code and Section 191 of the Local Government Code limiting the percentage of increase that can be imposed apply to tax rates, not rentals. Neither can it be said that the rates were not uniformly imposed or that the public markets included in the Ordinance were unreasonably determined or classified. To be sure, the Ordinance covered the three (3) concrete public markets: the two-storey Bagong Palengke, the burnt but reconstructed Lumang Palengke and the more recent Lumang Palengke with wet market. However, the Palengkeng Bagong Munisipyo or Gabaldon was excluded from the increase in rentals as it is only a makeshift, dilapidated place, with no doors or protection for security, intended for transient peddlers who used to sell their goods along the sidewalk.

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Republic of the Philippines v. Court of Appeals (2002) Facts: Petitioner instituted expropriation proceedingscovering a total of 544,980 square meters of contiguous land situated along MacArthur Highway, Malolos, Bulacan, to be utilized for the continued broadcast operation and use of radio transmitter facilities for the Voice of the Philippines project. Petitioner took over the premises after the previous lessee, the Voice of America, had ceased its operations thereat. Petitioner made a deposit of P517,558.80, the sum provisionally fixed as being the reasonable value of the property. On 26 February 1979, or more than nine years after the institution of the expropriation proceedings, the trial court issued this order condemning the property and ordering the plaintiff to pay the defendants the just compensation for the property. The bone of contention is the 76,589-square meter property previously owned by Luis Santos, predecessor-in-interest of respondents, which forms part of the expropriated area. It appears that the national government failed to pay to respondents the compensation pursuant to the foregoing decision, such that a little over five years later, or on 09 May 1984, respondents filed a manifestation with a motion seeking payment for the expropriated property. In the meantime, President Estrada issued Proclamation No. 22, transferring 20 hectares of the expropriated property to the Bulacan State University for the expansion of its facilities and another 5 hectares to be used exclusively for the propagation of the Philippine carabao. The remaining portion was retained by the PIA. This fact notwithstanding, and despite the 1984 court order, the Santos heirs remained unpaid, and no action was taken on their case until 16 September 1999 when petitioner filed its manifestation and motion to permit the deposit in court of the amount of P4,664,000.00 by way of just compensation for the expropriated property of the late Luis Santos subject to such final computation as might be approved by the court. This time, the Santos heirs, opposing the manifestation and motion, submitted a counter-motion to adjust the compensation from P6.00 per square meter previously fixed in the 1979 decision to its current zonal valuation pegged at P5,000.00 per square meter or, in the alternative, to cause the return to them of the expropriated property. On 01 March 2000, the Bulacan RTC ruled in favor of respondents and issued the assailed order, vacating its decision of 26 February 1979 and declaring it to be unenforceable on the ground of prescription. The CA denied the appeal (failure to file during the reglementary period). The right of eminent domain is usually understood to be an ultimate right of the sovereign power to appropriate any property within its territorial sovereignty for a public purpose. Fundamental to the independent existence of a State, it requires no recognition by the Constitution, whose provisions are taken as being merely confirmatory of its presence and as being regulatory, at most, in the due exercise of the power. In the hands of the legislature, the power is inherent, its scope matching that of taxation, even that of police power itself, in many respects. It reaches to every form of property the State needs for public use and, as an old case so puts it, all separate interests of individuals in property are held under a tacit agreement or implied reservation vesting upon the sovereign the right to resume the possession of the property whenever the public interest so requires it The ubiquitous character of eminent domain is manifest in the nature of the expropriation proceedings. Expropriation proceedings are not adversarial in the conventional sense, for the condemning authority is not required to assert any conflicting interest in the property. Thus, by filing the action, the condemnor in effect merely serves notice that it is taking title and possession of the property, and the defendant asserts title or interest in the property, not to prove a right to possession, but to prove a right to compensation for the taking. Obviously, however, the power is not without its limits: first, the taking must be for public use, and second, that just compensation must be given to the private owner of the property. These twin proscriptions have their origin in the recognition of the necessity for achieving balance between the State interests, on the one hand, and private rights, upon the other hand, by effectively restraining the former and affording protection to the latter. In determining public use, two approaches are utilized - the first is public employment or the actual use by the public, and the second is public advantage or benefit. It is also useful to view the matter as being subject to constant growth, which is to say that as society advances, its demands upon the individual so increases, and each demand is a new use to which the resources of the individual may be devoted. The expropriated property has been shown to be for the continued utilization by the PIA, a significant portion thereof being ceded for the expansion of the facilities of the Bulacan State University and for the propagation of the Philippine carabao, themselves in line with the

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requirements of public purpose. Respondents question the public nature of the utilization by petitioner of the condemned property, pointing out that its present use differs from the purpose originally contemplated in the 1969 expropriation proceedings. The argument is of no moment. The property has assumed a public character upon its expropriation. Surely, petitioner, as the condemnor and as the owner of the property, is well within its rights to alter and decide the use of that property, the only limitation being that it be for public use, which, decidedly, it is. In insisting on the return of the expropriated property, respondents would exhort on the pronouncement in Provincial Government of Sorsogon vs. Vda. de Villaroya where the unpaid landowners were allowed the alternative remedy of recovery of the property there in question. It might be borne in mind that the case involved the municipal government of Sorsogon, to which the power of eminent domain is not inherent, but merely delegated and of limited application. The grant of the power of eminent domain to local governments under RA 7160 cannot be understood as being the pervasive and all-encompassing power vested in the legislative branch of government. For local governments to be able to wield the power, it must, by enabling law, be delegated to it by the national legislature, but even then, this delegated power of eminent domain is not, strictly speaking, a power of eminent, but only of inferior, domain or only as broad or confined as the real authority would want it to be. Thus, in Valdehueza vs. Republic[17] where the private landowners had remained unpaid ten years after the termination of the expropriation proceedings, this Court ruled - The points in dispute are whether such payment can still be made and, if so, in what amount. Said lots have been the subject of expropriation proceedings. By final and executory judgment in said proceedings, they were condemned for public use, as part of an airport, and ordered sold to the government. x x x It follows that both by virtue of the judgment, long final, in the expropriation suit, as well as the annotations upon their title certificates, plaintiffs are not entitled to recover possession of their expropriated lots - which are still devoted to the public use for which they were expropriated - but only to demand the fair market value of the same. The judgment rendered by the Bulacan RTC in 1979 on the expropriation proceedings provides not only for the payment of just compensation to herein respondents but likewise adjudges the property condemned in favor of petitioner over which parties, as well as their privies, are bound. Petitioner has occupied, utilized and, for all intents and purposes, exercised dominion over the property pursuant to the judgment. The exercise of such rights vested to it as the condemnee indeed has amounted to at least a partial compliance or satisfaction of the 1979 judgment, thereby preempting any claim of bar by prescription on grounds of non-execution. In arguing for the return of their property on the basis of non-payment, respondents ignore the fact that the right of the expropriatory authority is far from that of an unpaid seller in ordinary sales, to which the remedy of rescission might perhaps apply. An in rem proceeding, condemnation acts upon the property. After condemnation, the paramount title is in the public under a new and independent title; thus, by giving notice to all claimants to a disputed title, condemnation proceedings provide a judicial process for securing better title against all the world than may be obtained by voluntary conveyance. Respondents, in arguing laches against petitioner did not take into account that the same argument could likewise apply against them. Respondents first instituted proceedings for payment against petitioner on 09 May 1984, or five years after the 1979 judgment had become final. The unusually long delay in bringing the action to compel payment against herein petitioner would militate against them. Consistently with the rule that one should take good care of his own concern, respondents should have commenced the proper action upon the finality of the judgment which, indeed, resulted in a permanent deprivation of their ownership and possession of the property. The constitutional limitation of just compensation is considered to be the sum equivalent to the market value of the property, broadly described to be the price fixed by the seller in open market in the usual and ordinary course of legal action and competition or the fair value of the property as between one who receives, and one who desires to sell, it fixed at the time of the actual taking by the government. Thus, if property is taken for public use before compensation is deposited with the court having jurisdiction over the case, the final compensation must include interests on its just value to be computed from the time the property is taken to the time when compensation is actually paid or deposited with the court. In fine, between the taking of the property and the actual payment, legal interests accrue in order to place the owner in a position as good as (but not better than) the position he was in before the taking occurred. The Bulacan trial court, in its 1979 decision, was correct in imposing interests on the zonal value of the property to be computed from the time petitioner instituted condemnation proceedings and took the property in September 1969. This allowance of interest on the amount found to be the

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value of the property as of the time of the taking computed, being an effective forbearance, at 12% per annum[28] should help eliminate the issue of the constant fluctuation and inflation of the value of the currency over time.[29] Article 1250 of the Civil Code, providing that, in case of extraordinary inflation or deflation, the value of the currency at the time of the establishment of the obligation shall be the basis for the payment when no agreement to the contrary is stipulated, has strict application only to contractual obligations.[30] In other words, a contractual agreement is needed for the effects of extraordinary inflation to be taken into account to alter the value of the currency.[31] All given, the trial court of Bulacan in issuing its order, dated 01 March 2000, vacating its decision of 26 February 1979 has acted beyond its lawful cognizance, the only authority left to it being to order its execution. Verily, private respondents, although not entitled to the return of the expropriated property, deserve to be paid promptly on the yet unpaid award of just compensation already fixed by final judgment of the Bulacan RTC on 26 February 1979 at P6.00 per square meter, with legal interest thereon at 12% per annum computed from the date of "taking" of the property, i.e., 19 September 1969, until the due amount shall have been fully paid. 8.6 Reclassification of lands: Fortich v. Corona (1999) Facts: Concerns the MR of the courts resolution dated November 17, 1998 and motion to refer the case to the Court en banc. In previous case, the Court voted two-two on the separate motions for reconsideration, as a result of which the decision was affirmed. The Court noted in a resolution dated January 27, 1999 that the movants have no legal personality to seek redress before the Court as their motion to intervene was already denied and that the motion to refer the case to the Court en banc is akin to a second MR which is prohibited. In this motion, both respondents and intervenors prayed that the case be referred to the case in banc inasmuch as their earlier MR was resolved by a vote of two-two, the required number to carry a decision under the Constitution (3 votes) was not met. Issue: WON failure to meet the three votes justifies the referral of the case to the court en banc Held: No Ratio: A careful reading of the constitutional provision reveals the intention of the framers to draw a distinction between cases, on the one hand, and matters, on the other hand, such that cases are decided while matters, which include motions, are resolved. Otherwise put, the word decided must refer to cases; while the word resolved must refer to matters, applying the rule of reddendo singula singulis. With this interpretation, it is clear that only cases are referred to the Court en banc for decision whenever the required number of votes is not obtained. Conversely, the rule does not apply where, as in this case, the required three votes is not obtained in the resolution of a MR. Hence, the second sentence of the provision speaks only of case and not matter. The reason is simple. Article VIII, Section 4(3) pertains to the disposition of cases by a division. If there is a tie in the voting, there is no decision. The only way to dispose of the case then is to refer it to the Court en banc. On the other hand, if a case has already been decided by the division and the losing party files a MR, the failure of the division to resolve the motion because of a tie in the voting does not leave the case undecided. There is still the decision which must stand in view of the failure of the members of the division to muster the necessary vote for its reconsideration. Quite plainly, if the voting results in a tie, the motion for reconsideration is lost. The assailed decision is not reconsidered and must therefore be deemed affirmed. Such was the ruling of this Court in the Resolution of November 17, 1998. Issue: WON the referral to the court en banc is justified on the ground that the issues are of first impression Held: No Ratio: The issues presented before us by the movants are matters of no extraordinary import to merit the attention of the Court en banc. The issue of whether or not the power of the local government units to reclassify lands is subject to the approval of the DAR is no longer novel, this

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having been decided by this Court in the case of Province of Camarines Sur, et al. vs. Court of Appeals wherein we held that local government units need not obtain the approval of the DAR to convert or reclassify lands from agricultural to non-agricultural use. Moreover, the Decision sought to be reconsidered was arrived at by a unanimous vote of all five (5) members of the Second Division of this Court. Stated otherwise, this Second Division is of the opinion that the matters raised by movants are nothing new and do not deserve the consideration of the Court en banc. Thus, the participation of the full Court in the resolution of movants motions for reconsideration would be inappropriate. Issue: WON the referral to the court en banc partakes of the nature of a second MR Held: Yes Ratio: The contention, therefore, that our Resolution of November 17, 1998 did not dispose of the earlier MR of the Decision dated April 24, 1998 is flawed. Consequently, the present MR necessarily partakes of the nature of a second motion for reconsideration which, according to the clear and unambiguous language of Rule 56, Section 4, in relation to Rule 52, Section 2, of the 1997 Rules of Civil Procedure, is prohibited. True, there are exceptional cases when this Court may entertain a second motion for reconsideration, such as where there are extraordinarily persuasive reasons. Even then, we have ruled that such second MRs must be filed with express leave of court first obtained. In this case, not only did movants fail to ask for prior leave of court, but more importantly, they have been unable to show that there are exceptional reasons for us to give due course to their second motions for reconsideration. Stripped of the arguments for referral of this incident to the Court en banc, the motions subject of this resolution are nothing more but rehashes of the motions for reconsideration which have been denied in the Resolution of November 17, 1998. To be sure, the allegations contained therein have already been raised before and passed upon by this Court in the said Resolution. Issue: WON the Win-Win Resolution was valid Held: No Ratio: This refers to the resolution by authority of the President modifying the Decision dated 29 March 1996 of the OP through Executive Secretary Ruben Torres. NQSRMDCs (Norberto Quisumbing) Application for Conversion is approved only with respect to 44 hectares as recommended by the DA. The remaining 100 hectares found to be suitable for agriculture shall be distributed to qualified farmer beneficiaries (FBs) in accordance with RA 6657 The resolution is void and of no legal effect considering that the March 29, 1996 decision of the Office of the President had already become final and executory even prior to the filing of the MR which became the basis of the said Win-Win Resolution. While it may be true that on its face the nullification of the Win-Win Resolution was grounded on a procedural rule pertaining to the reglementary period to appeal or move for reconsideration, the underlying consideration therefor was the protection of the substantive rights of petitioners. Just as a losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his/her case. In other words, the finality of the March 29, 1996 OP Decision accordingly vested appurtenant rights to the land in dispute on petitioners as well as on the people of Bukidnon and other parts of the country who stand to be benefited by the development of the property. Before finally disposing of these pending matters, we feel it necessary to rule once and for all on the legal standing of intervenors in this case. In their present motions, intervenors insist that they are real parties in interest inasmuch as they have already been issued certificates of land ownership award, or CLOAs, and that while they are seasonal farmworkers at the plantation, they have been identified by the DAR as qualified beneficiaries of the property. These arguments are, however, nothing new as in fact they have already been raised in intervenors earlier motion for reconsideration of our April 24, 1998 Decision. Again as expressed in the opinion of Mr. Justice Martinez, intervenors, who are admittedly not regular but seasonal farmworkers, have no legal or actual and substantive interest over the subject land inasmuch as they have no right to own the land. Rather, their right is limited only to a just share of the fruits of the land. Moreover, the Win-Win Resolution itself states that the qualified beneficiaries have yet to be carefully and

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meticulously determined by the Department of Agrarian Reform. Absent any definitive finding of the DAR, intervenors cannot as yet be deemed vested with sufficient interest in the controversy as to be qualified to intervene in this case. Likewise, the issuance of the CLOA's to them does not grant them the requisite standing in view of the nullity of the Win-Win Resolution. No legal rights can emanate from a resolution that is null and void. Melo: By mandate of the Constitution, cases heard by a division when the required majority of at least 3 votes in the division is not obtained are to be heard and decided by the Court En Banc. The deliberations of the 1986 Constitutional Commission disclose that if the case is not decided in a division by a majority vote, it goes to the Court En Banc and not to a larger division. In a situation where a division of 5 has only 4 members, the 5th member having inhibited himself or is otherwise not in a position to participate, or has retired, a minimum of 3 votes would still be required before there can be any valid decision or resolution by that division. There may, then, be instances when a deadlock may occur, i.e., the votes tied at 2-2. It is my humble view that under the clear and unequivocal provisions of the 1986 Constitution, if the required majority is not reached in a division, the case should automatically go to Court En Banc. I submit that the requirement of 3 votes equally applies to motions for reconsideration because the provision contemplates cases or matters (which for me has no material distinction insofar as divisions are concerned) heard by a division, and a motion for reconsideration cannot be divorced from the decision in a case that it seeks to be reconsidered. Consequently, if the required minimum majority of 3 votes is not met, the matter of the motion for reconsideration has to be heard by the Court En Banc, as mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To say that the motion is lost in the division on a 2-2 vote, is to construe something which cannot be sustained by a reading of the Constitution. To argue that a motion for reconsideration is not a case but only a matter which does not concern a case, so that, even though the vote thereon in the division is 2-2, the matter or issue is not required to elevated to the Court En Banc, is to engage in a lot of unfounded hairsplitting. Roxas & Co., Inc. v. Court of Appeals (1999) Facts: This case involves 3 haciendas in Nasugbu, Batangas owned by petitioner and the validity of the acquisition of these haciendas by the government under RA 6657 (CARL). Petitioner is a domestic corporation and is the registered owner of three haciendas, namely, Haciendas Palico, Banilad and Caylaway, all located in the Municipality of Nasugbu, Batangas. President Aquino signed in on July 1987, Proclamation 131 instituting a CARP and EO 229 providing the mechanism to implement the program. Pursuant to this, Congress passed RA 6657, the CARL. Before the effectivity of the law, petitioner filed with DAR a voluntary offer to sell Hacienda Caylaway pursuant to the provisions of EO 229. Haciendas Palico and Banilad were later placed under compulsory acquisition by DAR in accordance with the CARL. Hacienda Palico. DAR, through Municipal Agrarian Reform Officer (MARO) of Nasugbu, Batangas, sent a notice entitled Invitation to Parties to petitioner to discuss the results of the DAR investigation of Hacienda Palico, which was scheduled for compulsory acquisition this year under the CARP.Summary Investigation Reports were submitted by the MARO, representatives of the Barangay Agrarian Reform Committee (BARC), Land Bank (LBP) and the Provincial Agrarian Reform Officer (PARO) recommending that 270 ha and 75.3 ha of the property be placed under compulsory acquisition at a compensation of P8,109,739.00 and P2,188,195.47, respectively. DAR through Secretary Miriam Santiago sent a Notice of Acquisition to petitioner. Petitioner was informed that 1,023.999 ha of its land in Hacienda Palico were subject to immediate acquisition and distribution by the government under the CARL; and the government was offering compensation of P3.4 million for 333.0800 hectares. Almost two years later, the DAR Regional Director sent to the LBP Land Valuation Manager three (3) separate Memoranda entitled Request to Open Trust Account. Each Memoranda requested that a trust account representing the valuation of three portions of Hacienda Palico be opened in favor of the petitioner in view of the latters rejection of its offered value. Meanwhile, petitioner applied with the DAR for conversion of Haciendas Palico and Banilad from agricultural to non-agricultural lands under the provisions of the CARL. Despite petitioners application for conversion, DAR proceeded with the acquisition of the two Haciendas. The LBP trust accounts as compensation for Hacienda Palico were replaced by respondent DAR with cash and LBP bonds. On October 22, 1993, from the mother title of TCT No. 985 of the Hacienda, DAR registered Certificate of Land Ownership Award (CLOA) No. 6654. On October 30, 1993, CLOAs were distributed to farmer beneficiaries.

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Hacienda Banilad. DAR through the MARO of Nasugbu Batangas sent a notice of acquisition to petitioner. Later, the MARO sent an Invitation to Parties again to Pimentel inviting the latter to attend a conference to discuss the results of the MAROs investigation over Hacienda Banilad. The Reports were discussed the conference. Present in the conference were representatives of the prospective farmer beneficiaries, the BARC, the LBP, and Jaime Pimentel on behalf of the landowner. After the meeting, it was recommended that 737.2590 ha under Tax Declaration Nos. 0236 and 0237 be likewise placed under compulsory acquisition for distribution. DAR, through the Department Secretary, sent to petitioner two (2) separate Notices of Acquisition over Hacienda Banilad. These Notices were sent on the same day as the Notice of Acquisition over Hacienda Palico. Unlike the Notice over Hacienda Palico, however, the Notices over Hacienda Banilad were addressed to Roxas y Cia. Limited in Makati. The DAR Regional Director sent to the LBP Land Valuation Manager a Request to Open Trust Account in petitioners name as compensation for 234.6493 hectares of Hacienda Banilad. A second Request to Open Trust Account was sent on November 18, 1991 over 723.4130 hectares of said Hacienda. On May 4, 1993, petitioner applied for conversion of both Haciendas Palico and Banilad. Hacienda Caylawa. Hacienda Caylaway was voluntarily offered for sale to the government on May 6, 1988 before the effectivity of the CARL. DAR, through the Regional Director for Region IV, sent to petitioner two (2) separate Resolutions accepting petitioners voluntary offer to sell Hacienda Caylaway, particularly TCT Nos. T-44664 and T-44663. Nevertheless, on August 6, 1992, petitioner, through its President, Eduardo J. Roxas, sent a letter to the Secretary of DAR withdrawing its VOS of Hacienda Caylaway. The Sangguniang Bayan of Nasugbu, Batangas allegedly authorized the reclassification of Hacienda Caylaway from agricultural to non-agricultural. As a result, petitioner informed DAR that it was applying for conversion of Hacienda Caylaway from agricultural to other uses. DAR Secretary informed petitioner that a reclassification of the land would not exempt it from agrarian reform. The Secretary also denied petitioners withdrawal of the VOS on the ground that withdrawal could only be based on specific grounds such as unsuitability of the soil for agriculture, or if the slope of the land is over 18 degrees and that the land is undeveloped. Despite the denial of the VOS withdrawal of Hacienda Caylaway, on May 11, 1993, petitioner filed its application for conversion of both Haciendas Palico and Banilad. On August 24, 1993, petitioner instituted Case No. N-0017-96-46 (BA) with the DARAB praying for the cancellation of the CLOAs issued by DAR in the name of several persons. Petitioner alleged that the Municipality of Nasugbu, where the haciendas are located, had been declared a tourist zone, that the land is not suitable for agricultural production, and that the Sangguniang Bayan of Nasugbu had reclassified the land to non-agricultural. DARAB submitted the case to the Office of the Secretary of Agrarian Reform for determination. The CA filed a petition for before the CA questioning the expropriation of its properties under the CARL. Meanwhile, the petition for conversion of the three haciendas was denied by the MARO. The CA then dismissed the petition. Issue: WON the Court can take cognizance of this petition despite petitioners failure to exhaust administrative remedies Held: Yes Ratio: Petitioner rightly sought immediate redress in the courts. There was a violation of its rights and to require it to exhaust administrative remedies before the DAR itself was not a plain, speedy and adequate remedy. DAR issued CLOAs to farmer beneficiaries over portions of petitioners land without just compensation to petitioner. A CLOA is evidence of ownership of land by a beneficiary under R.A. 6657. Before this may be awarded to a farmer beneficiary, the land must first be acquired by the State from the landowner and ownership transferred to the former. The transfer of possession and ownership of the land to the government are conditioned upon the receipt by the landowner of the payment or deposit by the DAR of the compensation with an accessible bank. Until then, title remains with the landowner. There was no receipt by petitioner of any compensation for any of the lands acquired by the government. The kind of compensation to be paid the landowner is also specific. The law provides that the deposit must be made only in cash or LBP bonds. DARs opening of trust account deposits in petitioners name with the Land Bank does not constitute payment under the law. Trust account deposits are not cash or LBP bonds. The replacement of the trust account with cash or LBP bonds

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did not ipso facto cure the lack of compensation; for essentially, the determination of this compensation was marred by lack of due process. In fact, in the entire acquisition proceedings, respondent DAR disregarded the basic requirements of administrative due process. Under these circumstances, the issuance of the CLOAs to farmer beneficiaries necessitated immediate judicial action on the part of the petitioner. Issue: WON the acquisition proceedings over the three haciendas were valid and in accordance with law Held: No Ratio: Mode of Acquisition of Land Under RA 6657. Two (2) modes of acquisition of private land: compulsory and voluntary. In the compulsory acquisition of private lands, the landholding, the landowners and the farmer beneficiaries must first be identified. After identification, the DAR shall send a Notice of Acquisition to the landowner, by personal delivery or registered mail, and post it in a conspicuous place in the municipal building and barangay hall of the place where the property is located. Within thirty days from receipt of the Notice of Acquisition, the landowner, his administrator or representative shall inform the DAR of his acceptance or rejection of the offer. If the landowner accepts, he executes and delivers a deed of transfer in favor of the government and surrenders the certificate of title. Within 30 days from the execution of the deed of transfer, the LBP pays the owner the purchase price. If the landowner rejects the DARs offer or fails to make a reply, the DAR conducts summary administrative proceedings to determine just compensation for the land. The landowner, the LBP representative and other interested parties may submit evidence on just compensation within fifteen days from notice. Within 30 days from submission, the DAR shall decide the case and inform the owner of its decision and the amount of just compensation. Upon receipt by the owner of the corresponding payment, or, in case of rejection or lack of response from the latter, the DAR shall deposit the compensation in cash or in LBP bonds with an accessible bank. The DAR shall immediately take possession of the land and cause the issuance of a transfer certificate of title in the name of the Republic of the Philippines. The land shall then be redistributed to the farmer beneficiaries. Any party may question the decision of the DAR in the regular courts for final determination of just compensation. For a valid implementation of the CAR Program, two notices are required: (1) the Notice of Coverage and letter of invitation to a preliminary conference sent to the landowner, the representatives of the BARC, LBP, farmer beneficiaries and other interested parties pursuant to DAR A. O. No. 12, Series of 1989; and (2) the Notice of Acquisition sent to the landowner under Section 16 of the CARL. The importance of the first notice, i.e., the Notice of Coverage and the letter of invitation to the conference, and its actual conduct cannot be understated. They are steps designed to comply with the requirements of administrative due process. The implementation of the CARL is an exercise of the States police power and the power of eminent domain. To the extent that the CARL prescribes retention limits to the landowners, there is an exercise of police power for the regulation of private property in accordance with the Constitution. But where, to carry out such regulation, the owners are deprived of lands they own in excess of the maximum area allowed, there is also a taking under the power of eminent domain. The taking contemplated is not a mere limitation of the use of the land. What is required is the surrender of the title to and physical possession of the said excess and all beneficial rights accruing to the owner in favor of the farmer beneficiary. The Bill of Rights provides that [n]o person shall be deprived of life, liberty or property without due process of law. The CARL was not intended to take away property without due process of law. The exercise of the power of eminent domain requires that due process be observed in the taking of private property. The notice requirements under the CARL are not confined to the Notice of Acquisition set forth in Section 16 of the law. They also include the Notice of Coverage first laid down in DAR A. O. No. 12, Series of 1989 and subsequently amended in DAR A. O. No. 9, Series of 1990 and DAR A. O. No. 1, Series of 1993. This Notice of Coverage does not merely notify the landowner that his property shall be placed under CARP and that he is entitled to exercise his retention right; it also notifies him, pursuant to DAR A. O. No. 9, Series of 1990, that a public hearing shall be conducted where he and representatives of the concerned sectors of society may attend to discuss the results of the field investigation, the land valuation and other pertinent matters. Under DAR A. O. No. 1, Series

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of 1993, the Notice of Coverage also informs the landowner that a field investigation of his landholding shall be conducted where he and the other representatives may be present Compulsory Acquisition of Hacienda Palico and Banilad. In the case at bar, DAR claims that it, through MARO Leopoldo C. Lejano, sent a letter of invitation entitled Invitation to Parties dated September 29, 1989 to petitioner, through Jaime Pimentel, the administrator of Hacienda Palico. The invitation was received on the same day it was sent as indicated by a signature and the date received at the bottom left corner of said invitation. With regard to Hacienda Banilad, DAR claims that Pimentel, administrator also of Hacienda Banilad, was notified and sent an invitation to the conference. Pimentel actually attended the conference on September 21, 1989 and signed the Minutes of the meeting on behalf of petitioner. The Minutes was also signed by the representatives of the BARC, the LBP and farmer beneficiaries. No letter of invitation was sent or conference meeting held with respect to Hacienda Caylaway because it was subject to a Voluntary Offer to Sell to DAR. When DAR, through the MARO, sent to the various parties the Notice of Coverage and invitation to the conference, DAR A. O. No. 12, Series of 1989 was already in effect more than a month earlier. The Operating Procedure in DAR Administrative Order No. 12 does not specify how notices or letters of invitation shall be sent to the landowner, the representatives of the BARC, the LBP, the farmer beneficiaries and other interested parties. The procedure in the sending of these notices is important to comply with the requisites of due process especially when the owner, as in this case, is a juridical entity. Petitioner is a domestic corporation, and therefore, has a personality separate and distinct from its shareholders, officers and employees. Jaime Pimentel is not the president, manager, secretary, cashier or director of petitioner corporation. Is he, as administrator of the two Haciendas, considered an agent of the corporation? The purpose of all rules for service of process on a corporation is to make it reasonably certain that the corporation will receive prompt and proper notice in an action against it. Service must be made on a representative so integrated with the corporation as to make it a priori supposable that he will realize his responsibilities and know what he should do with any legal papers served on him, and bring home to the corporation notice of the filing of the action. Petitioners evidence does not show the official duties of Pimentel as administrator of petitioners haciendas. The evidence does not indicate whether Pimentels duties is so integrated with the corporation that he would immediately realize his responsibilities and know what he should do with any legal papers served on him. At the time the notices were sent and the preliminary conference conducted, petitioners principal place of business was listed in DARs records as Soriano Bldg., Plaza Cervantes, Manila, and 7th Flr. Cacho-Gonzales Bldg., 101 Aguirre St., Makati, Metro Manila. Pimentel did not hold office at the principal place of business of petitioner. Neither did he exercise his functions in Plaza Cervantes, Manila nor in Cacho-Gonzales Bldg., Makati, Metro Manila. He performed his official functions and actually resided in the haciendas in Nasugbu, Batangas, a place over two hundred kilometers away from Metro Manila. Curiously, DAR had information of the address of petitioners principal place of business. The Notices of Acquisition over Haciendas Palico and Banilad were addressed to petitioner at its offices in Manila and Makati. These Notices were sent barely three to four months after Pimentel was notified of the preliminary conference. Why DAR chose to notify Pimentel instead of the officers of the corporation was not explained by the said respondent. Nevertheless, assuming that Pimentel was an agent of petitioner corporation, and the notices and letters of invitation were validly served on petitioner through him, there is no showing that Pimentel himself was duly authorized to attend the conference meeting with the MARO, BARC and LBP representatives and farmer beneficiaries for purposes of compulsory acquisition of petitioners landholdings. Even DARs evidence does not indicate this authority. On the contrary, petitioner claims that it had no knowledge of the letter-invitation, hence, could not have given Pimentel the authority to bind it to whatever matters were discussed or agreed upon by the parties at the preliminary conference or public hearing. Notably, one year after Pimentel was informed of the preliminary conference, DAR A.O. No. 9, Series of 1990 was issued and this required that the Notice of Coverage must be sent to the landowner concerned or his duly authorized representative. Assuming further that petitioner was duly notified of the CARP coverage of its haciendas, the areas found actually subject to CARP were not properly identified before they were taken over by DAR. The acquisition of the landholdings did not cover the entire expanse of the two haciendas, but only portions thereof. Hacienda Palico has an area of 1,024 hectares and only 688.7576 hectares were targetted for acquisition. Hacienda Banilad has an area of 1,050 hectares but only 964.0688 hectares were subject to CARP. The haciendas are not entirely agricultural lands. In fact, the

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various tax declarations over the haciendas describe the landholdings as sugarland, and forest, sugarland, pasture land, horticulture and woodland. Upon receipt of this notice, therefore, petitioner corporation had no idea which portions of its estate were subject to compulsory acquisition, which portions it could rightfully retain, whether these retained portions were compact or contiguous, and which portions were excluded from CARP coverage. Even respondent DARs evidence does not show that petitioner, through its duly authorized representative, was notified of any ocular inspection and investigation that was to be conducted by respondent DAR. Neither is there proof that petitioner was given the opportunity to at least choose and identify its retention area in those portions to be acquired compulsorily. The right of retention and how this right is exercised, is guaranteed in Section 6 of the CARL Voluntary Acquisition of Hacienda Caylaway. First of all, the same E.O. 229, like Section 16 of the CARL, requires that the land, landowner and beneficiaries of the land subject to agrarian reform be identified before the notice of acquisition should be issued. Hacienda Caylaway was voluntarily offered for sale in 1989. The Hacienda has a total area of 867.4571 hectares and is covered by four (4) titles. In two separate Resolutions both dated January 12, 1989, DAR, through the Regional Director, formally accepted the VOS over two of these four titles. The land covered by the two titles has an area of 855.5257 hectares, but only 648.8544 hectares thereof fell within the coverage of R.A. 6657. Petitioner claims it does not know where these portions are located. DAR, on the other hand, avers that surveys on the land covered by the four titles were conducted in 1989, and that petitioner, as landowner, was not denied participation therein. The results of the survey and the land valuation summary report, however, do not indicate whether notices to attend the same were actually sent to and received by petitioner or its duly authorized representative. To reiterate, EO 229 does not lay down the operating procedure, much less the notice requirements, before the VOS is accepted by DAR. Notice to the landowner, however, cannot be dispensed with. It is part of administrative due process and is an essential requisite to enable the landowner himself to exercise, at the very least, his right of retention guaranteed under the CARL. Issue: Assuming the haciendas may be reclassified from agricultural to non-agricultural, WON this court has the power to rule on this issue Held: No Ratio: It is petitioners claim that the three haciendas are not subject to agrarian reform because they have been declared for tourism, not agricultural purposes. In 1975, then President Marcos issued Proclamation No. 1520 declaring the municipality of Nasugbu, Batangas a tourist zone. Lands in Nasugbu, including the subject haciendas, were allegedly reclassified as non-agricultural 13 years before the effectivity of RA 6657. In 1993, the Regional Director for Region IV of the DA certified that the haciendas are not feasible and sound for agricultural development. On March 20, 1992, pursuant to Proclamation No. 1520, the Sangguniang Bayan of Nasugbu, Batangas adopted Resolution No. 19 reclassifying certain areas of Nasugbu as non-agricultural. This Resolution approved Municipal Ordinance No. 19, Series of 1992, the Revised Zoning Ordinance of Nasugbu which zoning ordinance was based on a Land Use Plan for Planning Areas for New Development allegedly prepared by the University of the Philippines. Resolution No. 19 of the Sangguniang Bayan was approved by the Sangguniang Panlalawigan of Batangas on March 8, 1993. Petitioner claims that Proclamation No. 1520 was also upheld by DAR in 1991 when it approved conversion of 1,827 hectares in Nasugbu into a tourist area known as the Batulao Resort Complex, and 13.52 hectares in Barangay Caylaway as within the potential tourist belt. Petitioner presents evidence before us that these areas are adjacent to the haciendas subject of this petition, hence, the haciendas should likewise be converted. Petitioner urges this Court to take cognizance of the conversion proceedings and rule accordingly. We do not agree. DARs failure to observe due process in the acquisition of petitioners landholdings does not ipso facto give this Court the power to adjudicate over petitioners application for conversion of its haciendas from agricultural to non-agricultural. The agency charged with the mandate of approving or disapproving applications for conversion is the DAR. At the time petitioner filed its application for conversion, the Rules of Procedure governing the processing and approval of applications for land use conversion was the DAR A. O. No. 2, Series of 1990. Under this A. O., the application for conversion is filed with the MARO where the property is located. The MARO reviews the application and its supporting documents and conducts field

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investigation and ocular inspection of the property. The findings of the MARO are subject to review and evaluation by the Provincial Agrarian Reform Officer (PARO). The PARO may conduct further field investigation and submit a supplemental report together with his recommendation to the Regional Agrarian Reform Officer (RARO) who shall review the same. For lands less than five hectares, the RARO shall approve or disapprove applications for conversion. For lands exceeding five hectares, the RARO shall evaluate the PARO Report and forward the records and his report to the Undersecretary for Legal Affairs. Applications over areas exceeding fifty hectares are approved or disapproved by the Secretary of Agrarian Reform. Indeed, the doctrine of primary jurisdiction does not warrant a court to arrogate unto itself authority to resolve a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. DAR is in a better position to resolve petitioners application for conversion, being primarily the agency possessing the necessary expertise on the matter. The power to determine whether Haciendas Palico, Banilad and Caylaway are nonagricultural, hence, exempt from the coverage of the CARL lies with the DAR, not with this Court. Finally, we stress that the failure of DAR to comply with the requisites of due process in the acquisition proceedings does not give this Court the power to nullify the CLOAs already issued to the farmer beneficiaries. To assume the power is to short-circuit the administrative process, which has yet to run its regular course. DAR must be given the chance to correct its procedural lapses in the acquisition proceedings. In Hacienda Palico alone, CLOA's were issued to 177 farmer beneficiaries in 1993. Since then until the present, these farmers have been cultivating their lands. It goes against the basic precepts of justice, fairness and equity to deprive these people, through no fault of their own, of the land they till. Anyhow, the farmer beneficiaries hold the property in trust for the rightful owner of the land. 8.7 Closure and Opening of Roads: Cabrera v. CA (1991) Facts: The Provincial Board of Catanduanes adopted Resolution No. 158 (Closing the old road leading to the new Capitol Building and giving owners of properties traversed by the new road an area form the old raod). Pursuant thereto, Deeds of Exchange were executed under which the Province conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, Angeles S. Vargas, and Juan S. Reyes portions of the closed road in exchange for their own respective properties, on which was subsequently laid a new concrete road leading to the Capitol Building. Learning about Resolution 158, the petitioner filed a complaint with the CFI of Catanduanes for "Restoration of Public Road and/or Abatement of Nuisance, Annulment of Resolutions and Documents with Damages." He alleged that the land fronting his house was a public road owned by the Province in its governmental capacity and therefore beyond the commerce of man. He contended that Resolution No. 158 and the deeds of exchange were invalid, as so too was the closure of the road. The judge sustained the authority of the provincial board to enact said Resolution. The CA affirmed and found that the road was not a public road but just a trail. Also, pursuant to RA 5185, municipal authorities, subject to the approval of the Provincial Board, can close thoroughfares pursusant to Sec 2246 of the Revised Administrative Code. Petitioner insists that Sec. 2246 is not applicable because Resolution No. 158 is not an order for the closure of the road in question but an authority to barter or exchange it with private properties. He maintains that the public road was owned by the province in its governmental capacity and, without a prior order of closure, could not be the subject of a barter. Control over public roads, he insists, is with Congress and not with the provincial board. Issue: WON the Provincial Board can validly enact said resolution Held: Yes Ratio: Resolution 158 clearly says that it is "hereby resolved to close the old road." The closure is as plain as day except that the petitioner, with the blindness of those who will not see, refuses to acknowledge it. The Court has little patience with such puerile arguments. They border dangerously on a trifling with the administration of justice and can only prejudice the pleader's cause.

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The authority of the provincial board to close that road and use or convey it for other purposes is derived from the following provisions of Republic Act No. 5185 in relation to Section 2246 of the Revised Administrative Code: It sustained the subsequent sale of the land as being in accordance not only with the charter but also with Article 422 of the Civil Code, which provides: "Property of public dominion, when no longer intended for public use or for public service, shall form part of the patrimonial property of the State." In the case of Favis v. City of Baguio, the power of the City Council of Baguio City to close city streets and withdraw them from public use was also assailed. This Court said: 5. So it is, that appellant may not challenge the city council's act of withdrawing a strip of LapuLapu Street at its dead end from public use and converting the remainder thereof into an alley. These are acts well within the ambit of the power to close a city street. The city council, it would seem to us, is the authority competent to determine whether or not a certain property is still necessary for public use. Such power to vacate a street or alley is discretionary. And the discretion will not ordinarily be controlled or interfered with by the courts, absent a plain case of abuse or fraud or collusion. Faithfulness to the public trust will be presumed. So the fact that some private interests may be served incidentally will not invalidate the vacation ordinance. While it is true that the cases dealt with city councils and not the provincial board, there is no reason for not applying the doctrine announced therein to the provincial board in connection with the closure of provincial roads. The provincial board has, after all, the duty of maintaining such roads for the comfort and convenience of the inhabitants of the province. Moreover, this authority is inferable from the grant by the national legislature of the funds to the Province for the construction of provincial roads. The lower court found the petitioner's allegation of injury and prejudice to be without basis because he had "easy access anyway to the national road, for in fact the vehicles used by the Court and the parties during the ocular inspection easily passed and used it, reaching beyond plaintiff's house." However, the CA ruled that the he "was prejudiced by the closure of the road which formerly fronted his house. He and his family were undoubtedly inconvenienced by the loss of access to their place of residence for which we believe they should be compensated." On this issue, the governing principle was laid down in Favis thus: . . . The general rule is that one whose property does not abut on the closed section of a street has no right to compensation for the closing or vacation of the street, if he still has reasonable access to the general system of streets. The circumstances in some cases may be such as to give a right to damages to a property owner, even though his property does not abut on the closed section. But to warrant recovery in any such case the property owner must show that the situation is such that he has sustained special damages differing in kind, and not merely in degree, from those sustained by the public generally. Petitioner is not entitled to damages because the injury he has incurred, such as it is, is the price he and others like him must pay for the welfare of the entire community. This is not a case where his property has been expropriated and he is entitled to just compensation. The construction of the new road was undertaken under the general welfare clause. As the trial judge acutely observed, whatever inconvenience the petitioner has suffered "pales in significance compared to the greater convenience the new road, which is wide and concrete, straight to the veterans fountain and down to the pier, has been giving to the public, plus the fact that the new road adds beauty and color not only to the town of Virac but also to the whole province of Catanduanes." For the enjoyment of those benefits, every individual in the province, including the petitioner, must be prepared to give his share. MMDA v. Bel Air Village Assn. Inc. (2000) Facts: MMDA is a government agency tasked with the delivery of basic services in Metro Manila. Bel-Air Village Association, Inc. is a non-stock, non-profit corporation whose members are homeowners in Bel-Air Village, a private subdivision in Makati City. BAVA is the registered owner of Neptune Street, a road inside Bel-Air Village. On December 30, 1995, respondent received from petitioner, through its Chairman, a notice dated December 22, 1995 requesting respondent to open Neptune Street to public vehicular traffic starting January 2, 1996. BAVA was apprised that the perimeter wall separating the subdivision from the adjacent Kalayaan Avenue would be demolished. On January 2, 1996, BAVA instituted against petitioner before the RTC a civil case for injunction. Respondent prayed for the issuance of a TRO and preliminary injunction enjoining the opening of Neptune Street and prohibiting the demolition of the perimeter wall. The trial court issued a

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temporary restraining order the following day. After due hearing, the trial court denied the issuance of preliminary injunction. On appeal, the CA rendered a Decision on the merits of the case finding that the MMDA has no authority to order the opening of Neptune Street, a private subdivision road and cause the demolition of its perimeter walls. It held that the authority is lodged in the City Council of Makati by ordinance. Issue: WON the MMDA has authority to open Neptune Road to the public Held: No Ratio: MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. IAC. From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public. Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare. It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised by any group or body of individuals not possessing legislative power. The National Legislature, however, may delegate this power to the President and administrative boards as well as the lawmaking bodies of municipal corporations or local government units. Once delegated, the agents can exercise only such legislative powers as are conferred on them by the national lawmaking body. Metropolitan or Metro Manila is a body composed of several local government units - i.e., twelve (12) cities and five (5) municipalities, namely, the cities of Caloocan, Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon, Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela, and the municipalities of Malabon, , Navotas, , Pateros, San Juan and Taguig. With the passage of RA 7924 in 1995, Metropolitan Manila was declared as a "special development and administrative region" and the Administration of "metro-wide" basic services affecting the region placed under "a development authority" referred to as the MMDA. The implementation of the MMDAs plans, programs and projects is undertaken by the local government units, national government agencies, accredited peoples organizations, nongovernmental organizations, and the private sector as well as by the MMDA itself. For this purpose, the MMDA has the power to enter into contracts, memoranda of agreement and other cooperative arrangements with these bodies for the delivery of the required services within Metro Manila. Clearly, the scope of the MMDAs function is limited to the delivery of the seven (7) basic services. One of these is transport and traffic management which includes the formulation and monitoring of policies, standards and projects to rationalize the existing transport operations, infrastructure requirements, the use of thoroughfares and promotion of the safe movement of persons and goods. It also covers the mass transport system and the institution of a system of road regulation, the administration of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metro Manila for traffic violations. Under this service, the MMDA is expressly authorized "to set the policies concerning traffic" and "coordinate and regulate the implementation of all traffic management programs." In addition, the MMDA may "install and administer a single ticketing system," fix, impose and collect fines and penalties for all traffic violations. It will be noted that the powers of the MMDA are limited to the following acts: formulation, coordination, regulation, implementation, preparation, management, monitoring, setting of policies, installation of a system and administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general welfare" of the inhabitants

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of Metro Manila. The MMDA is, as termed in the charter itself, a "development authority." It is an agency created for the purpose of laying down policies and coordinating with the various national government agencies, peoples organizations, non-governmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in nature and these are actually summed up in the charter itself Petitioner cannot seek refuge in the cases of Sangalang v. Intermediate Appellate Court where we upheld a zoning ordinance issued by the Metro Manila Commission (MMC), the predecessor of the MMDA, as an exercise of police power. The first Sangalang decision was on the merits of the petition, while the second decision denied reconsideration of the first case and in addition discussed the case of Yabut v. Court of Appeals. Contrary to petitioners claim, the two Sangalang cases do not apply to the case at bar. Firstly, both involved zoning ordinances passed by the municipal council of Makati and the MMC. In the instant case, the basis for the proposed opening of Neptune Street is contained in the notice of December 22, 1995 sent by petitioner to respondent BAVA, through its president. The notice does not cite any ordinance or law, either by the Sangguniang Panlungsod of Makati City or by the MMDA, as the legal basis for the proposed opening of Neptune Street. Petitioner MMDA simply relied on its authority under its charter "to rationalize the use of roads and/or thoroughfares for the safe and convenient movement of persons." Rationalizing the use of roads and thoroughfares is one of the acts that fall within the scope of transport and traffic management. By no stretch of the imagination, however, can this be interpreted as an express or implied grant of ordinance-making power, much less police power. Misjuris Secondly, the MMDA is not the same entity as the MMC in Sangalang. Although the MMC is the forerunner of the present MMDA, an examination of Presidential Decree (P. D.) No. 824, the charter of the MMC, shows that the latter possessed greater powers which were not bestowed on the present MMDA. Jjlex In 1990, President Aquino issued Executive Order (E. O.) No. 392 and constituted the Metropolitan Manila Authority (MMA). The powers and functions of the MMC were devolved to the MMA. It ought to be stressed, however, that not all powers and functions of the MMC were passed to the MMA. The MMAs power was limited to the "delivery of basic urban services requiring coordination in Metropolitan Manila." The MMAs governing body, the Metropolitan Manila Council, although composed of the mayors of the component cities and municipalities, was merely given the power of: (1) formulation of policies on the delivery of basic services requiring coordination and consolidation; and (2) promulgation of resolutions and other issuances, approval of a code of basic services and the exercise of its rule-making power. Under the 1987 Constitution, the local government units became primarily responsible for the governance of their respective political subdivisions. The MMAs jurisdiction was limited to addressing common problems involving basic services that transcended local boundaries. It did not have legislative power. Its power was merely to provide the local government units technical assistance in the preparation of local development plans. Any semblance of legislative power it had was confined to a "review [of] legislation proposed by the local legislative assemblies to ensure consistency among local governments and with the comprehensive development plan of Metro Manila," and to "advise the local governments accordingly." When R.A. No. 7924 took effect, Metropolitan Manila became a "special development and administrative region" and the MMDA a "special development authority" whose functions were "without prejudice to the autonomy of the affected local government units." The character of the MMDA was clearly defined in the legislative debates enacting its charter. It is thus beyond doubt that the MMDA is not a local government unit or a public corporation endowed with legislative power. It is not even a "special metropolitan political subdivision" as contemplated in Section 11, Article X of the Constitution. The creation of a "special metropolitan political subdivision" requires the approval by a majority of the votes cast in a plebiscite in the political units directly affected. R. A. No. 7924 was not submitted to the inhabitants of Metro Manila in a plebiscite. The Chairman of the MMDA is not an official elected by the people, but appointed by the President with the rank and privileges of a cabinet member. In fact, part of his function is to perform such other duties as may be assigned to him by the President, whereas in local government units, the President merely exercises supervisory authority. This emphasizes the administrative character of the MMDA. Clearly then, the MMC under P. D. No. 824 is not the same entity as the MMDA under R. A. No. 7924. Unlike the MMC, the MMDA has no power to enact ordinances for the welfare of the community. It is the local government units, acting through their respective legislative councils, that possess legislative power and police power. In the case at bar, the Sangguniang Panlungsod of

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Makati City did not pass any ordinance or resolution ordering the opening of Neptune Street, hence, its proposed opening by petitioner MMDA is illegal and the respondent Court of Appeals did not err in so ruling. We desist from ruling on the other issues as they are unnecessary. Esmso We stress that this decision does not make light of the MMDAs noble efforts to solve the chaotic traffic condition in Metro Manila. Everyday, traffic jams and traffic bottlenecks plague the metropolis. Even our once sprawling boulevards and avenues are now crammed with cars while city streets are clogged with motorists and pedestrians. Traffic has become a social malaise affecting our peoples productivity and the efficient delivery of goods and services in the country. The MMDA was created to put some order in the metropolitan transportation system but unfortunately the powers granted by its charter are limited. Its good intentions cannot justify the opening for public use of a private street in a private subdivision without any legal warrant. The promotion of the general welfare is not antithetical to the preservation of the rule of law. Sangalang v. IAC (1988) MMDA claims that it has the authority to open Neptune Street to public traffic because it is an agent of the state endowed with police power in the delivery of basic services in Metro Manila. One of these basic services is traffic management which involves the regulation of the use of thoroughfares to insure the safety, convenience and welfare of the general public. It is alleged that the police power of MMDA was affirmed by this Court in the consolidated cases of Sangalang v. IAC. From the premise that it has police power, it is now urged that there is no need for the City of Makati to enact an ordinance opening Neptune street to the public. Macasiano v. Diokno (1992) Facts: On 13 June 1990, the Municipality of Paranaque passed Ordinance 86, s. 1990 which authorized the closure of J. Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Paraaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the municipal council pursuant to MCC Ordinance 2, s. 1979, authorizing and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market and/or vending areas, under certain terms and conditions. On 20 July 1990, the Metropolitan Manila Authority approved Ordinance 86, s. 1990 of the municipal council subject to conditions. On 20 June 1990, the municipal council issued a resolution authorizing the Paraaque Mayor to enter into contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas. On 8 August 1990, the municipality and Palanyag, a service cooperative, entered into an agreement whereby the latter shall operate, maintain and manage the flea market with the obligation to remit dues to the treasury of the municipal government of Paraaque. Consequently, market stalls were put up by Palanyag on the said streets. On 13 September 1990 Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction and confiscation of stalls along G.G. Cruz and J. Gabrielle St. in Baclaran. These stalls were later returned to Palanyag. On 16 October 1990, Macasiano wrote a letter to Palanyag giving the latter 10 days to discontinue the flea market; otherwise, the market stalls shall be dismantled. On 23 October 1990, the municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus with damages and prayer for preliminary injunction. On 17 December 1990, the trial court issued an order upholding the validity of Ordinance 86 s. 1990 of the Municipality of Paraaque and enjoining Macasiano from enforcing his letter-order against Palanyag. Hence, a petition for certiorari under Rule 65 was filed by Macasiano thru the OSG. The Supreme Court granted the petition, and reversed and set aside the 17 December 1990 decision of the RTC which granted the writ of preliminary injunction enjoining the PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of market stalls along J. Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets. Ratio: Property of provinces, cities and municipalities; Property for public use. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to property for public use, Article 424 of Civil Code provides that "property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities or municipalities. All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the provisions of special

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laws." In the present case, thus, J. Gabrielle G.G. Cruz, Bayanihan, Lt. Gacia Extension and Opena streets are local roads used for public service and are therefore considered public properties of the municipality. Properties for public service deemed public and under absolute control of Congress. Properties of the local government which are devoted to public service are deemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, 22 SCRA 1334 [1968]). Local governments have no authority to regulate use of public properties unless authority is vested upon by Congress; e.g. Closure of roads. Local governments have no authority whatsoever to control or regulate the use of public properties unless specific authority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the power to close roads as provided in Section 10, Chapter II of the Local Government Code (BP 337), which states A local government unit may likewise, through its head acting pursuant to a resolution of its sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park or square. No such way or place or any part thereof shall be closed without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed." Legal provision should be read and interpreted in accordance with basic principles already established by law; LGU has no power to lease a road available to public and ordinarily used for vehicular traffic. The legal provision (Chapter II, Section 10 of the LGC) which gives authority to local government units to close roads and other similar public places should be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such authority of the province, city or municipality to close a public street or thoroughfare. Article 424 NCC lays down the basic principle that properties of public dominion devoted to public use and made available to the public in general are outside the commerce of man and cannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other public property from public use when circumstances show that such property is no longer intended or necessary for public use or public service. When it is already withdrawn from public use, the property then becomes patrimonial property of the local government unit (LGU) (Article 422 NCC; Cebu Oxygen v. Bercilles, 66 SCRA 481 [1975]). It is only then that the LGU can "use or convey them for any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed." However, those roads and streets which are available to the public in general and ordinarily used for vehicular traffic are still considered public property devoted to public use. In such case, the LGU has no power to use it for another purpose or to dispose of or lease it to private persons. Related case, Cebu Oxygen v. Bercilles. In Cebu Oxygen v. Bercilles, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passed another resolution authorizing the sale of the said abandoned road through public bidding. The Court held that the City of Cebu is empowered to close a city street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be the object of an ordinary contract Related case, Dacanay v. Asistio. In Dacanay v. Asistio, the disputed areas from which the market stalls are sought to be evicted are public streets. A public street is property for public use hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the subject of lease or other contract (Villanueva, et al. v. Castaeda and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot v. De la Fuente, 48 O.G. 4860). The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect. The leases or licenses granted by the City Government to stallholders are null and void for being contrary to law. The Executive Order issued by the acting Mayor authorizing the use of Heroes del '96 Street as a vending area for stallholders contravenes the general law that reserves city streets and roads for public use. The Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

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In gratia argumenti, ordinance cannot be validly implemented as municipality has not complied with conditions imposed by the MMA for the approval of the ordinance. Even assuming, in gratia argumenti, that the municipality has the authority to pass the disputed ordinance, the same cannot be validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by the municipality of the conditions imposed by the former for the approval of the ordinance. The allegations of the municipality that the closed streets were not used for vehicular traffic and that the majority of the residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show that the first condition has been met. Likewise, the designation by the Municipality of a time schedule during which the flea market shall operate is absent (fourth condition). Baclaran area congested; establishment of flea market on municipality streets does not help solve problem of congestion It is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion but rather leads to inconvenience to children as the normal transportation flow is disrupted, to pollution and deterioration of health of residents due to the garbage left by the vendors on the streets. Further, ambulances and fire engines are not able to use the roads for a more direct access to the fire area and thus lose valuable time that should have been spent in saving properties and lives. And further, the ambulances and people rushing patients to St. Rita Hospital located along GG Cruz Street are delayed as they are unable to pass through said street due to the stalls and vendors. Powers of local government unit not absolute. The powers of a local government unit are not absolute. They are subject to limitations laid down by the Constitution and the laws such as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health, safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare. General public has legal right to demand the restoration of city streets to their specific public purpose. As in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in public roads and streets and the officials of municipality have the corresponding duty arising from public office to clear the city streets and restore them to their specific public purpose. Applicability of the Dacanay case; Contracts by Local Government governed by the original terms and conditions, and the law in force at time the rights were vested. As in the Dacanay case, both cases involve an ordinance which is void and illegal for lack of basis and authority in laws applicable during its time. However, BP 337 (Local Government Code), has already been repealed by RA7160 (Local Government Code of 1991) which took effect on 1 January 1992. Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of the said contracts or the law in force at the time such rights were vested.

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SYLLABUS PART 3: ELECTIVE OFFICIALS, VACANCIES, SUCESSION, DISCIPLINARY ACTIONS Qualifications Abella v. COMELEC 201 SCRA 253 Facts: Initially, Silvestre dela Cruz (Benjamin Abella was allowed to intervene) filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor of Kananga, Leyte. The petitioner, however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else." In this regard she states that ... "her subsequent physical transfer of residence to Ormoc City thereafter, did not necessarily erased (sic) or removed her Kananga residence, for as long as she had the ANIMUS REVERTENDI evidenced by her continuous and regular acts of returning there in the course of the years, although she had physically resided at Ormoc City." Issue: Whether or not the candidate who got the second highest vote may be proclaimed as governor when the candidate for such position was disqualified. Held: The Supreme Court held that while it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. As regards the principle of ANIMUS REVERTENDI (Faypon v. Quirino:[M) ere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss.) In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. The fact that she occasionally visits Kananga, Leyte through the years does not signify an intention to continue her residence therein. It is common among us Filipinos to often visit places where we formerly resided specially so when we have left friends and relatives although for intents and purposes we have already transferred our residence to other places. Whether or not the petitioner is a registered voter of Kananga, Leyte (the petitioner insists that she is such a registered voter based on the following antecedents: 1 She cancelled her registration in Ormoc City on Nov 25, 1987, and 2 she then transferred her registration to Kananga, Leyte on November 25, 1987 by registering thereat and 3) she later voted on election day (Feb 1, 1988) in Kananga, Leyte. ) We find the version pressed by respondent unworthy of belief. The story is marked by so many bizarre cirumtances not consistent with the ordinary course of events or the natural behavior of persons. Among these are:

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The application for cancellation of registration by respondent Adelina Y. Larrazabal happened to be misplaced by a clerk in the Election Registrar's Office for Ormoc City so it was not sent to the Board of Election Inspectors in a sealed envelope; The 'inadverterment' (sic) misplacement was discovered only on January 9,1988; The voter's affidavit was delivered by itself without any endorsement or covering letter from the Election Registrar or anybody else; The election clerk delivered the application for cancellation only towards the last hour of the revision day, allegedly at 4:30 P.M., January 9, 1988; All the members of the BEI had already signed the Minutes indicating that no revision of the voter's list was made as of 5:00 PM The poll clerk and the third member prepared another minutes stating that the election clerk had delivered the application for cancellation at 4:30 P.M. without any reference to the minutes they had previously signed; Emeterio Larrazabal, who was supposed to have registered in Precinct 17, Mahawan, Kananga, was supposed to have filled up an application for cancellation of his registration in Precinct No. 15, Ormoc City at Precinct 17 concurrent with his registration. His application for cancellation was never submitted in evidence. The serial number of the voter's affidavits of the spouses Larrazabal in Precinct No. 17 are far removed from the serial numbers of the other new registrants in November 28, 1987 in the same precinct. The most telling evidence is the list of voters, that the Chairman and the poll clerk had written in Part II of the same, closed by the signatures of both officials showing that there were only 9 additional registered voters in Precinct 17, petitioner was not there. It was only on February 15, 1988, or two weeks after the election day that the same Registrar certified for the first time that there were two voters lists, the first without the names of the Larrazabals and the second, which appeared only after February 1, submitted by the Chairman of the Board for Precinct 17 which contained the spouses Larrazabals' names. Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides: Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. The argument is untenable. Section 12, Article X of the Constitution is explicit in that aside from highly-urbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices. The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated December 10, 1987 applies to this case. While the cited case involves Olongapo City which is classified as a highly urbanized city, the same principle is applicable. Moreover, Section 89 of Republic Act 179, independent of the constitutional provision, prohibits registered voters of Ormoc City from voting and being voted for elective offices in the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official." The petitioner takes exception to this interpretation. She opines that such interpretation is "wrong English" since nowhere in the provision is there any reference to a prohibition against running for provincial elective office. She states that if the prohibition to run was indeed intended, the provision should have been phrased "Shall not be qualified TO RUN in the election FOR provincial

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governor." A comma should have been used after the word qualified and after the word "vote" to clearly indicate that the phrase "in the election of the provincial governor" is modified separately and distinctly by the words "not qualified" and the words "not entitled to vote." The Court finds the petitioner's interpretation fallacious. In the case of Mapa v. Arroyo, the conjunction and between the phrase shall not be qualified and entitled to vote refer to two prohibitions as ruled by the COMELEC in relation to the demonstrative phrase "in the election of the provincial governor and the members of the provincial board of the Province of Leyte." Finally, the petitioner contends that the February 14, 1991 decision of the COMELEC's second division is null and void on the ground that on that date, the term of Commissioner Andres Flores, one of the signatories of the majority opinion (vote was 2-1) had already expired on February 2, 1991. Commissioner Flores was appointed for a three-year term from February 15, 1988 to February 15, 1991. In these three years he exercised his duties and functions as Commissioner. Granting in the absence of a statute expressly stating when the terms of the COMELEC Chairman and members commence and expire, that his term expired on February 2, 1991 to enable a faithful compliance with the constitutional provision that the terms of office in the COMELEC are on a staggered basis commencing and ending at fixed intervals, his continuance in office until February 15, 1991 has a color of validity. Therefore, all his official acts from February 3, 1991 to February 15, 1991, are considered valid. Issue: WON Abella can assume position of governor by virtue of Section 6 RA 6646 Ratio: Abella claims that the Frivaldo and Labo cases were misapplied by the COMELEC. According to him these cases are fundamentally different from SPC No. 88-546 in that the Frivaldo and Labo cases were petitions for a quo warranto filed under section 253 of the Omnibus Code, contesting the eligibility of the respondents after they had been proclaimed duly elected to the Office from which they were sought to be unseated while SPC No. 88-546 which was filed before proclamation under section 78 of the Omnibus Election Code sought to deny due course to Larrazabal's certificate of candidacy for material misrepresentations and was seasonably filed on election day. He, therefore, avers that since under section 6 of Republic Act 6646 it is provided therein that: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes case for him shall not be counted. The votes cast in favor of Larrazabal who obtained the highest number of votes are not considered counted making her a non-candidate, he, who obtained the second highest number of votes should be installed as regular Governor of Leyte in accordance with the Court's ruling in G.R. No. 88004. While it is true that SPC No. 88-546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona-fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate. In the Frivaldo and Labo cases, this is precisely the reason why the candidates who obtained the second highest number of votes were not allowed to assume the positions vacated by Frivaldo the governorship of Sorsogon, and Labo, the position of mayor in Baguio City. The nature of the proceedings therefore, is not that compelling. What matters is that in the event a candidate for an elected position who is voted for and who obtains the highest number of votes is disqualified for not possessing the eligibility requirements at the time of the election as provided by law, the candidate who obtains the second highest number of votes for the same position can not assume the vacated position. It should be stressed that in G.R. No. 88004, the Court set aside the dismissal of SPC No. 88-546, and directed the COMELEC to conduct hearings to determine whether or not Larrazabal was qualified to be a candidate for the position of governor in the province of Leyte. This is the import of the decision in G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr. v. Commission on Elections: Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio City. The latest ruling of the Court on this issue is Santos v. Commission on Elections, decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregard as

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stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then, with three dissenting and another two reserving their vote. One was on official leave. ... it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or plurality of the legal votes cast in the election. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid the vote the winner into office or maintain him there. However the absence of a statute which clearly asserts a contrary politics and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless. In sum, the Court does not find any reason to reverse and set aside the questioned decision and resolution of the COMELEC. The COMELEC has not acted without or in excess of jurisdiction or in grave abuse of discretion. Labo v. COMELEC (1989) FACTS: Ramon Labo, Jr. married an Australian citizen in the Philippines. He was granted Australian citizenship in 1976. In 1980, the marriage was declared void for being bigamous. Labo returned to the Philippines in 1980, using an Australian passport, and obtained an Alien Certificate of Registration (ACR). He later applied for a change in status from immigrant to returning Filipino citizen. However, the Commission on Immigration and Deportation denied his application for the cancellation of his ACR since he has not applied for reacquisition of his Filipino citizenship. According to the records of the Australian Embassy (as certified by the Australian Consul), Labo was still an Australian citizen as of April 12, 1984. Although no direct evidence was presented to prove that he took an oath of allegiance as a naturalized Australian citizen, the laws of Australia at the time required any person over the age of 16 years who is granted Australian citizenship to take an oath of allegiance. The wording/text of this oath includes a renunciation of all other allegiance. Labo ran and won as Mayor of Baguio City in the local elections held on January 18, 1988. The second-placer, Luis Lardizabal, filed a petition for quo warranto, alleging that Labo is disqualified from holding public office on the grounds of alienage, and asking that the latter's proclamation as Mayor be annulled. ISSUES: *The original issue raised before the Supreme Court concerned only the COMELEC's jurisdiction over Lardizabal's petition. Labo contended that the petition for quo warranto was not filed on time, hence the COMELEC lacks the jurisdiction to conduct an inquiry regarding his citizenship. However, the SC decided to rule on the merits of the case, given that the issue is also of considerable importance (a foreign citizen holding public office in the Philippines), and in the interest of the speedy administration of justice. Does the COMELEC have the jurisdiction to inquire into Labo's citizenship? Is Ramon Labo, Jr. a Filipino citizen? Is he qualified to hold public office in the Philippines? If Labo is not eligible to serve as Mayor, can Lardizabal, as the runner-up in the elections, replace him? HELD/RATIO: Yes. Contrary to Labo's claim, the petition for quo warranto was filed on time. Lardizabal did not immediately pay the filing fee because the COMELEC had at first considered the petition as a preproclamation proceeding, which does not require the payment of such a fee. When the COMELEC reclassified the petition, Lardizabal immediately paid the filing fee -- thus, he still complied with

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the prescribed 10-day period. Furthermore, the Court held that such technicalities should not hinder judicial decisions on significant issues, such as the one being decided in this case. Labo is not a Filipino citizen. He had lost his Philippine citizenship by all 3 modes specified in the Constitution: (1) naturalization in a foreign country, (2) express renunciation of citizenship, and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. He has not reacquired Philippine citizenship by any of the 3 methods prescribed in the Constitution: (1) direct act of Congress, (2) naturalization, and (3) repatriation. Contrary to Labo's claim, his naturalization in Australia did not confer him with dual citizenship. The Constitution explicitly states that dual citizenship is inimical to national interest. The contention that his marriage to an Australian national did not automatically divest him of Filipino citizenship is irrelevant. There was no claim that Labo had automatically ceased to be a Filipino because of that marriage. Also, his Filipino citizenship has not been automatically restored upon the annulment of his Australian citizenship, when his marriage was declared void on the grounds of bigamy. The Commission on Immigration and Deportation held in in 1988 that Labo was not a Filipino citizen. The earlier contrary decision by the COMELEC in 1982 is totally baseless, and is even alleged to have been politically motivated. The latter can be reversed because the doctrine of res judicata does not apply to questions of citizenship. Labo is not eligible to hold public office in the Philippines. He was not even a qualified voter when he was elected. Despite getting the second highest number of votes, Lardizabal cannot assume the position of Mayor because he has not been duly elected by the people of Baguio City. Labo's disqualification alone does not entitle him to take office. Instead, the elected Vice Mayor shall replace Labo. *Separate concurring opinion (Gutierrez Jr., J.): Although no decision has been rendered by the COMELEC and elevated to the SC for review, it is undeniable that a foreigner cannot be allowed to hold public office in the Philippines. It is regrettable, however, that Labo should be disqualified on the basis of his citizenship because he has already achieved a lot while serving as Mayor during the pendency of the case. Frivaldo v. COMELEC (1996) Facts: Petitioner Juan G. Frivaldo was proclaimed governor-elect and assume office in due time. The League of Municipalities filed with the COMELEC a petition for annulment of Frivaldos election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the United States. Frivaldo admitted the allegation but pleaded the special and affirmative defenses that his naturalization was merely forced upon himself as a means of survival against the unrelenting prosecution by the Martial Law Dictators agent abroad. Issue: Whether or not Frivaldo was a citizen of the Philippines at the time of his election. Held: No. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the Constitution. Even if he did lose his naturalized American citizenship, such forfeiture did not and could not have the effect of automatically restoring his citizenship in the Philippines that he had earlier renounced. Qualifications for public office are continuing requirements and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire tenure. Frivaldo declared not a citizen of the Philippines and therefore disqualified from serving as a Governor of the Province of Sorsogon. In the certificate of candidacy he filed, Frivaldo described himself as a "natural-born" citizen of the Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California, U.S.A.

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This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless, as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the Marcos government through his agents in the United States. The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing American citizenship. His feeble suggestion that his naturalization was not the result of his own free and voluntary choice is totally unacceptable and must be rejected outright. There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime. The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality which is clearly not applicable to the case at bar. That case is not relevant to the petition before us because it dealt with a conflict between the nationality laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even the United States is not actively claiming Frivaldo as its national. The sole question presented to us is whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the said Convention providing that "it is for each State to determine under its law who are its nationals." It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the present case Frivaldo is rejecting his naturalization in the United States. If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial proceedings. Gutierrez Jr, Concurring: I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State are involved, the public good should supersede any procedural infinities which may affect a petition filed with the Commission on Elections. I fail to see how the Court could allow a person who by his own admissions is indubitably an alien to continue holding the office of Governor of any province. It is an established rule of long standing that the period fixed by law for the filing of a protest whether quo warranto or election contest is mandatory and jurisdictional. As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should have been filed with ten days after the proclamation of election results. The purpose of the law in not allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within which petitions against the results of an election should be filed and to provide summary proceedings for the settlement of such disputes. The Rules of Court allow the Republic of the Philippines to file quo warranto proceedings against any public officer who performs an act which works a forfeiture of his office. However, where the Solicitor General or the President feel that there are no good reasons to commence quo warranto proceedings, the Court should allow a person like Estuye or his league to bring the action. I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. Where the disqualification is based on age, residence, or any of the many grounds for ineligibility, I believe that the ten-day period should be applied strictly. The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the procedure pro hac vice.

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Mercado v. Manzano (1999) FACTS: This is a petition for certiorari seeking to set aside the resolution of the COMELEC en banc and to declare Manzano disqualified to hold the office of vice-mayor of Makati City. Important details on Edu Manzano: born September 4, 1955 in San Francisco, California, USA to Filipino parents. On the May 11, 1998 elections for vice-mayoralty of Makati City, 3 candidates competed for the post: Eduardo B. Manzano, Ernesto S. Mercado, and Gabriel V. Daza III. Manzano won the elections but his proclamation was suspended due to a pending petition for disqualification filed by a certain Ernesto Mamaril alleging that Manzano was an American citizen. On May 7, 1998, the Second Division of the COMELEC cancelled the certificate of candidacy of Manzano on the grounds of his dual-citizenship, which disqualifies him according to Sec.40(d) of the Local Government Code. Manzano filed a motion for reconsideration. Mercado sought to intervene in the case for disqualification. Manzano opposed the motion to intervene. The motion was unresolved. But on August 31, 1998, the COMELEC en banc (with 1 commissioner abstaining) reversed the Second Divisions ruling on the cancellation of the certificate of candidacy and directing the proclamation of Manzano as winner, saying: Manzano, being born in the USA, obtained US citizenship by operation of the US constitution and laws under principle of jus soli (basis is place of birth). Yet, by being born to Filipino parents, Manzano natural born Filipino citizen, by operation of the 1935 Philippine Constitution and laws under principle jus sanguinis (the right of blood). Although he is registered as an alien with the Philippine Bureau of Immigration and holds and American passport, he has not lost his Filipino citizenship since he has not renounced it and has not taken an oath of allegiance to the USA. Manzano, after the age of majority, registered himself as a voter and voted in the 1992, 1995, and 1998 Philippine elections which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had US citizenship. Private respondent Manzano was then proclaimed as vice-mayor of Makati City. ISSUES: WON petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was his motion for leave to intervene granted. Yes. WON respondent Manzano is a dual citizen and if so, WON he is disqualified from being a candidate for vice-mayor in Makati City. No. REASONS: Manzano argues that Mercado has neither legal interest in the matter of litigation nor an interest to protect because he is a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment. This assumes that at the time intervention was sought, there had already been a proclamation of the election results for the vice-mayoralty elections when in fact, there has not been such a proclamation. Certainly, the petitioner had, and still has an interest in ousting private respondent from the race when he sought to intervene. The rule in Labo v. COMELEC only applies when the election of the respondent is contested, and the question is WON the second placer may be declared winner. If Mamaril was competent to bring action, so was Mercado, being a rival candidate. Petitioner has right to intervene even if he filed the motion on May 20, 1998, when it was shown that the private respondent had the most votes. Electoral Reforms Law of 1987 provides that intervention may be allowed in proceedings for disqualification even after election if there has been no final judgment rendered. Failure of COMELEC en banc to resolve petitioners motion for intervention was tantamount to denial of the motion, justifying this petition for certiorari. Invoking the maxim dura lex sed lex, petitioner contends that through Sec.40(d) of the Local Government Code (which declares as disqualified from running for elective local position Those with dual-citizenship), Congress has command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold elective office.

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Dual citizenship is different from dual allegiance. Dual citizenship is involuntary; it arises out of circumstances of birth or marriage, where a person is recognized to be a national by two or more states. Dual allegiance is a result of a persons volition; it is a situation wherein a person simultaneously owes, by some positive act, loyalty to two or more states. Dual citizenship is an issue because a person who has this raises a question of which states law must apply to him/her, therefore posting a threat to a countrys sovereignty. In Sec.5 Article IV of the Constitution on Citizenship, the concern was not with dual citizenship per se, but with naturalized citizens who maintain allegiance to their countries of origin even after naturalization. Hence, dual citizenship in the aforementioned disqualification clause must mean dual allegiance. Therefore, persons with mere dual citizenship do not fall under this disqualification. It should suffice that upon filing of certificates for candidacy, such persons with dual citizenships have elected their Philippine citizenship to terminate their dual citizenship. In private respondents certificate of candidacy, he made these statements under oath on March 27, 1998: I am a Filipino citizenNatural-born. I am not a permanent resident of , or immigrant to , a foreign country. I am eligible for the office I seek to be elected. I will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual-citizen. In Frivaldo v. COMELEC, it was held that By laws of the United States Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government. Therefore, petitioner Mercados contention that the oath of allegiance contained in private respondents certificate of candidacy is insufficient to constitute his renunciation of his American citizenship. Also, equally without merit is his contention that, to be effective, such renunciation should have been made upon reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Plus, the fact that Manzano admitted that he was registered as an American citizen with the Philippine Bureau of Immigration and Deportation and that he holds an American passport which he used for his last travel to the US dated April 22, 1997should not be such a big deal. At the time of said travel, the use of an American passport was simply an assertion of his American nationality before the termination of his American citizenship. Admitting that he was a registered alien does not mean that he is not still a Filipino (Aznar v. COMELEC). Manzanos oath of allegiance, together with the fact he has spent his life here, received his education here, and practiced his profession here, and has taken part in past Philippine elections, leaves no doubt of his election of Philippine citizenship. WHEREFORE, petition for certiorari, DISMISSED. *Ineligibility refers to lack of qualifications prescribed. Coquilla v. COMELEC (2002) Nature: Petition for certiorari to set aside the resolution, dated July 19, 2001, of the Second Division of the COMELEC, ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the COMELEC en banc denying petitioners motion for reconsideration.Special Civil Action in the SC. Certiorari Facts: February 17, 1938 Coquilla was born of Filipino parents in Oras, Eastern Samar. He grew up and resided there until 1965, when he joined the US Navy. He was subsequently naturalized as a U.S. citizen. 1970-1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy. Otherwise, even after his retirement from the U.S. Navy in 1985, he remained in the U.S. October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued making several trips to the U.S. the last of which took place on July 6, 2000 and lasted until August 5, 2000. Subsequently, petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on Naturalization which was approved Nov. 7, 2000 Nov. 10, 2000 oath-taking as Filipino citizen; issued Certificate of Repatriation No. 000737 and Bureau of Immigration Identification Certificate No. 115123 three days after November 21, 2000 - applied for registration as a voter of Butnga, Oras, Eastern Samar. Approved by Election Registration Board on January 12, 2001.

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February 27, 2001 filed certificate of candidacy stating therein that he had been a resident of Oras, Eastern Samar for "two (2) years." March 5, 2001, Neil M. Alvarezrespondent, incumbent mayor of Oras and reelectionistsought cancellation of petitioners certificate of candidacy on the ground that the latter had made a material misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the Philippines. COMELEC unable to render judgment on the case before the elections on May 14, 2001 where petitioner won over private respondents by 379 votes. May 17, 2001 - petitioner proclaimed mayor of Oras by the Municipal Board of Canvassers and subsequently took his oath of office. July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the cancellation of petitioners certificate of candidacy on the basis the respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001 to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the Philippines. The 1-yr residency requirement of Sec 39(a) of the Local Government Code of 1991 in relation to Secs 65 and 68 of the Omnibus Election Code contemplates of the actual residence of a Filipino citizen in the constituency where he seeks to be elected. Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002. Hence this petition. Issues: WON the 30-day period for appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner. Private respondent contention: petition should be dismissed cause his motion for reconsideration was denied for being pro forma and did not suspend the running of the 30-day period for filing this petition, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, so and since the resolution was received on July 28, 2001 and the petition in this case was filed on February 11, 2002, the same should be considered as having been filed late and should be dismissed. Petitioners MFR and petition for certiorari were filed within the prescribed periods. 5-day period for filing MFR under Rule 19, 2 should be counted from receipt of decision, resolution, order, or ruling of COMELEC. In this case, petitioner received a copy of COMELECs Second Division July 19, 01 resolution on July 28, 2001. 5 days later, on Aug. 2, 01, he filed his MFR. On Feb. 6, 02, he received a copy of the order, dated Jan. 30, 02, of the COMELEC en banc denying his MFR. 5 days later, on Feb 11, 02, he filed this petition for certiorari. Contention that petitioners MFR did not suspend the running of the period for filing this petition because the motion was pro forma and, thus, petition shouldve been filed on or before Aug 27, 01 is not correct. It was actually filed, however, only on February 11, 2002. The MFR was not pro forma and its filing did suspend the period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy would not be a reconsideration of the decision but a new trial or some other remedy. In the cases where MFR was held to be pro forma, the motion was so held because it was a second motion for reconsideration, or it did not comply with the rule that the motion must specify the findings and conclusions alleged to be contrary to law or not supported by the evidence,or it failed to substantiate the alleged errors, or it merely alleged that the decision in question was contrary to law, or the adverse party was not given notice thereof. Petitioners MFR suffers from none of these defects, and COMELEC erred in ruling that petitioners MFR was pro forma because the allegations raised therein are a mere "rehash" of his earlier pleadings or did not raise "new matters." Hence, the filing of the motion suspended the running of the 30-day period to file the petition in this case, which, as earlier shown, was done within the reglementary period provided by law. WON COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner.

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R.A. No. 6646, Sec 6 & 7: Candidates who are disqualified by final judgment before the election shall not be voted for and the votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v. COMELEC and Salcedo II v. COMELEC the SC, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates proclamation but on the merits. WON petitioner had been a resident of Oras, Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he represented in his certificate of candidacy. No. First, 39(a) of the Local Government Code (R.A No. 7160) provides: An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least 1 year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. Residence" is to be understood as referring to "domicile" or legal residencethe place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until Nov. 10, 00, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. If immigration to the United States by virtue of a "greencard," which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines (Caasi v. CA), much more does naturalization in a foreign country result in an abandonment of domicile in the Philippines, as was the case with the petitioner. Petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the US, but under R.A. No. 8171, which provides for the repatriation of, among others, natural-born Filipinos who lost their citizenship on account of political or economic necessity. In any event, the fact is that, by having been naturalized abroad, he lost his Philippine citizenship and with it his residence in the Philippines and had not reacquired it until November 10, 00 Second, petitioner did not reestablished residence in this country in 1998 when he came back to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by "constantly declaring" to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections. The status of being an alien and a non-resident can be waived either separately, when one acquires the status of a resident alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an individual may obtain an immigrant visa under 13 of the Philippine Immigration Act of 1948 and an Immigrant Certificate of Residence (ICR) and thus waive his status as a non-resident. On the other hand, he may acquire Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may reacquire Philippine citizenship by repatriation or by an act of Congress, in which case he waives not only his status as an alien but also his status as a non-resident alien. In the case at bar, the only evidence of petitioners status when he entered the country on Oct and Dec 98, Oct 99, and June 00 is the statement "Philippine Immigration () Balikbayan" in his 19982008 U.S. passport. As for his entry on Aug 5, 00, the stamp bore the added inscription "good for one year stay." Under 2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who had been naturalized in a foreign country and

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comes or returns to the Philippines and, if so, he is entitled, among others, to a "visa-free entry to the Philippines for a period of one (1) year" (3(c)). It would appear then that when petitioner entered the country on the dates in question, he did so as a visa-free balikbayan visitor whose stay as such was valid for 1-yr only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on Nov 10, 00 upon taking his oath as a citizen of the Philippines under R.A. No. 8171. He lacked the requisite residency to qualify him for the mayorship of Oras Petitioner cannot invoke the ruling in the cases Frivaldo v. Commission on Elections and Bengson as residency was not an issue in these. Third, petitioners contends that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six months immediately preceding the election. But, registration as a voter does not bar the filing of a subsequent case questioning a candidates lack of residency (Nuval v. Guray). Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this petition, which, contrary to petitioners claim, are complete and intact in the records. WON COMELEC was justified in ordering the cancellation of his certificate of candidacy since the statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for "two years" at the time he filed such certificate is not true. Yes. Petitioner made a false representation of a material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. Sec 78 of the Omnibus Election Code provides that a verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. In the case at bar, what is involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy. The cancellation of petitioners certificate of candidacy in this case is thus fully justified. Judgment: WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections, dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED. Disqualifications Caasi v. CA (1990) Facts: Private respondent Merito Miguel was elected as municipal mayor of Bolinao, Pangasinan during the local elections of January 18, 1988. His disqualification, however, was sought by herein petitioner, Mateo Caasi, on the ground that under Section 68 of the Omnibus Election Code private respondent was not qualified because he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao. Issues: 1. Whether or not a green card is proof that the holder is a permanent resident of the United States. 2. Whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988. Held: The Supreme Court held that Miguels application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card

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to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local election on January 18, 1988, the Courts conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. Section 18, Article XI of the 1987 Constitution provides: Sec. 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. In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines provides: SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay ," Miguel's answer was, "Permanently." On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed: Person identified by this card is entitled to reside permanently and work in the United States." Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently. Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it. As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides. This is in return for the protection given to him during the period of his residence therein. Section 18, Article XI of the 1987 Constitution which provides that "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" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan. Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States? To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office. The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least 1 year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, LGC). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only 3 months (not one year) after his return to the Philippines in Nov 1987 and before he ran for mayor of that municipality on Jan 18, 1988. In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective public office those Philippine citizens who possess dual

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loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof. Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak. Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void. Marquez v. COMELEC (1995) Facts: It is averred that at the time respondent Rodriguez filed his certificate of candidacy, a criminal charge against him for ten counts of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles, USA. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent on account of his alleged flight from that country. Before the May 1992 elections, a petition for cancellation of respondents certificate of candidacy on the ground of the candidates disqualification was filed by petitioner, but COMELEC dismissed the petition. Private respondent was proclaimed Governor-elect of Quezon. Petitioner instituted quo warranto proceedings against private respondent before the COMELEC but the latter dismissed the petition. Issue: Whether private respondent, who at the time of the filing of his certificate of candidacy is said to be facing a criminal charge before a foreign court and evading a warrant of arrest comes within the term fugitive from justice. Held: The Supreme Court ruled that Article 73 of the Rules and Regulations implementing the Local Government Code of 1991 provides: Article 73. Disqualifications The following persons shall be disqualified from running for any elective local position: (a) xxxx (e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. It is clear from this provision that fugitives from justice refer only to persons who has been convicted by final judgment. However, COMELEC did not make any definite finding on whether or not private respondent is a fugitive from justice when it outrightly denied the petition for quo warranto. The Court opted to remand the case to COMELEC to resolve and proceed with the case. The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of RA 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the House of Representatives, made this reservation: . . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a. The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It provided: Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local position:

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(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment. Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and considerable weight . The Court certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some personal reservations of the ponente, that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the law. Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this unresolved factual matter. Davide, Concurring. The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree. But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the disqualification in the 1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear language of the law leaves no room for a re-examination of the meaning of the term. I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the presumption of innocence clause of the Bill of Rights. There are certain fundamental considerations which do not support the applications of the presumption Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public office. Secondly, a public office is a public trust. Thirdly, the disqualification in question does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt. Rodriguez v. COMELEC (1996) Facts: The petitioner Eduardo T. Rodriguez was a candidate for Governor in the Province of Quezon in the May 8, 1995 elections. His rival candidate for the said position was Bienvenido O. Marquez, Jr., herein private respondent. Private respondent filed a petition for disqualification before the COMELEC based principally on the allegation that Rodriguez is a fugitive from justice. Private respondent revealed that a charge for fraudulent insurance claims, grand theft and attempted grand theft of personal property is pending against the petitioner before the Los Angeles Municipal Court. Rodriguez is therefore a fugitive from justice which is a ground for his disqualification/ ineligibility under Section 40 (e) of the Local Government Code according to Marquez.

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Rodriguez, however, submitted a certification from the Commission of Immigration showing that Rodriguez left the US on June 25, 1985- roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles Court. The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines long before the criminal charge was instituted in the Los Angeles Court. But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". Issue: Whether or not Rodriguez is a fugitive from justice. Held: No. The Supreme Court reiterated that a fugitive from justice includes not only those who flee after conviction to avoid punishment but likewise who, being charged, flee to avoid prosecution. The definition thus indicates that the intent to evade is the compelling factor that animates ones flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment or of a promulgated judgement of conviction. The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigrations dated April 27 3 and June 26 of 1995, preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant much less conviction to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez. The circumstantial fact that it was 17 days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in the Philippine history. And being a figure in these developments, Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed reelection in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office. Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation.

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When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice. However, Marquez and the COMELEC seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authoritie scited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded redefinition of "fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila. To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. Torres, Jr: Petitioner returned to the Philippines from the United States on June 25, 1985 while the criminal complaint against him for fraudulent insurance claims, grand theft and attempted grand theft of personal property was filed almost 5 months later, or on November 12, 1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United States, there was yet no case or prosecution to avoid. That petitioner did not know of the imminent filing of charges against him and that he did not flee to avoid prosecution are bolstered by the facts that: 1.) he returned to the United States twice: on August 14 and October 7 of the same year but arrived in the Philippines on October 26 likewise in the same year; 2.) he left his wife in the United States; and 3.) his wife was later on arrested for the same charges. Had petitioner been aware of the imminent filing of charges against him, he would never have returned to the United States and he would not have left his wife in there. Petitioner is a citizen of this country. Why should he not come home? Coming home to the Philippines was the most natural act of the petitioner, who happens to maintain his residence in the country. The fact that he remains here even after he was formally accused cannot be construed as an indication of an intent to flee, there being no compelling reason for him to go to the United States and face his accusers. On the contrary, it is his official duty, as an incumbent Governor of Quezon, to remain in the country and perform his duties as the duly elected public official. "Fugitive from justice" must be given a meaning in the instant case having regard to "the circumstances and the time it is used." Philosophers and jurists have tried unsuccessfully at an exact definition of such an abstruse term as justice. Unfortunately, whether in the metaphysical sense or otherwise, the question of justice is still unanswered as it ever was albeit characterized by secular skepticism. If the question is asked: What standard of justice should we enforce? The American sense of justice or the Philippine sense of justice? Undoubtedly, the forum in which it is raised should be controlling. By way only of hypothesis, if an American flees to escape from Philippine Laws to the United States, may we enforce in the United States our standard of justice based on Philippine Laws? I am tempted to ask these questions considering our zealousness to solve legal problems in the light of laws obtaining in the United States. At any rate, an accused charged with a crime in the Philippines cannot be a candidate and at the same time flee from prosecution. Once he goes campaigning his opponent would have him arrested. For this and the reasons above discussed, the provision on disqualification of fugitive from justice, being unnecessary and serving only to undermine one's constitutional right to equal access to opportunities for public service, should even be scantily considered. Finally, petitioner appears to have garnered 285,202 votes. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. As it is, to

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disqualify petitioner on the shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate in whom sovereignty resides. De la Torre v. COMELEC (1996) Facts: Rolando P. Dela Torre filed an instant petition for certiorari seeks the nullification of resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in a case for disqualification filed against him before the COMELEC. The first assailed resolution dated 6 May 1995 declared dela Torre disqualified from running for the position of Mayor of Cavinti, Laguna in the 8 May 1995 elections, citing as the ground therefor, Section 40(a) of RA 7160 (i.e. Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by 1 year or more of imprisonment within 2 years after serving sentence); the other is the denial of the motion for reconsideration. Issue: Whether the crime of fencing involves moral turpitude Held: A crime involving moral turpitude is one which is an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. The elements of the crime of fencing (as gleaned from the definition of fencing in Section 2 of PD 1612, Anti-fencing Law) are: (1) A crime of robbery or theft has been committed; (2) The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been deprived from the proceeds of the said crime; (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) There is, on the part of the accused, intent to gain for himself or for another. Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. Thus, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that good morals. The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on Human Relations and Solutio Indebiti. Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the fence and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gain - thus deliberately reneging in the process private duties they owe their fellowmen or society in a manner contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing- a presumption that is, according to the Court, reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft. All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioners conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely

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under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioners theory has no merit. Magno v. COMELEC (2002) Facts: This is a petition for the disqualification of Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground that petitioner was previously convicted by the Sandiganbayan of four counts of direct bribery. Thereafter, petitioner applied for probation and was discharged on March 5, 1998 upon order of the Regional Trial Court of Gapan, Nueva Ecija. The Comelec ruled that petitioner was disqualified from running for the position of mayor by virtue of Section 12 of BP 881 (Omnibus Election Code) (crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon, or granted amnesty.) According to the COMELEC, inasmuch as petitioner was considered to have completed the service of his sentence on March 5, 1998, his five-year disqualification will end only on March 5, 2003. The MR was denied the by Comelec. Issue: WON direct bribery is a crime involving moral turpitude Held: Yes Ratio: Petitioner argues that direct bribery is not a crime involving moral turpitude. Likewise, he cites Section 40 of RA 7160, which he claims is the law applicable to the case at bar, not BP 881 or the Omnibus Election Code as claimed by the COMELEC. Said provision reads: Section 40. Disqualifications. - The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence. Petitioner insists that he had already served his sentence as of March 5, 1998 when he was discharged from probation. Such being the case, the two-year disqualification period imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, petitioner was qualified to run in the 2001 elections. Moral turpitude is an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals. Not every criminal act, however, involves moral turpitude. It frequently depends on the circumstances surrounding the violation of the law. In this case, we need not review the facts and circumstances relating to the commission of the crime considering that petitioner did not assail his conviction. By applying for probation, petitioner in effect admitted all the elements of the crime of direct bribery: the offender is a public officer; the offender accepts an offer or promise or receives a gift or present by himself or through another; such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do; and the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. Moral turpitude can be inferred from the third element. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is a betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is a crime involving moral turpitude. Issue: What law should apply in this case

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Held: Local Government Code

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Ratio: It is the second sub-issue which is problematical. There appears to be a glaring incompatibility between the five-year disqualification period provided in Section 12 of the Omnibus Election Code and the two-year disqualification period in Section 40 of the Local Government Code. It should be noted that the Omnibus Election Code (BP 881) was approved on December 3, 1985 while the Local Government Code (RA 7160) took effect on January 1, 1992. It is basic in statutory construction that in case of irreconcilable conflict between two laws, the later enactment must prevail, being the more recent expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting the later law, the legislature is presumed to have knowledge of the older law and intended to change it. Furthermore, the repealing clause of Section 534 of RA 7160 or the Local Government Code states that: (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any provisions of this Code are hereby repealed or modified accordingly. In accordance therewith, Section 40 of RA 7160 is deemed to have repealed Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by subsequent ones, and not the other way around. When a subsequent law entirely encompasses the subject matter of the former enactment, the latter is deemed repealed. The intent of the legislature to reduce the disqualification period of candidates for local positions from five to two years is evident. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. The reduction of the disqualification period from five to two years is the manifest intent. Therefore, although his crime of direct bribery involved moral turpitude, petitioner nonetheless could not be disqualified from running in the 2001 elections. Article 12 of the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government Code (RA 7160). Petitioners disqualification ceased as of March 5, 2000 and he was therefore under no such disqualification anymore when he ran for mayor of San Isidro, Nueva Ecija in the May 14, 2001 elections. Unfortunately, however, neither this Court nor this case is the proper forum to rule on (1) the validity of Sonia Lorenzos proclamation and (2) the declaration of petitioner as the rightful winner. Inasmuch as Sonia Lorenzo had already been proclaimed as the winning candidate, the legal remedy of petitioner would have been a timely election protest. Lingating v. COMELEC (2002) Facts: Petitioner filed a petition for the disqualification of Sulong, pursuant to 40(b) of RA 7160 which disqualifies from running for any elective local position those removed from office as a result of an administrative case. It appears that Sulong had previously won as mayor of Lapuyan on January 18, 1988. In the May 11, 1992, and again in the May 8, 1995 elections, he was reelected. In a petition for disqualification, petitioner alleged that in 1991, during his first term as mayor of Lapuyan, Sulong, along with a municipal councilor of Lapuyan and several other individuals, was administratively charged with various offenses, and that, on February 4, 1992, the Sangguniang Panlalawigan of Zamboanga del Sur found him guilty of the charges and ordered his removal from office. Petitioner claimed that this decision had become final and executory, and consequently the then vice-mayor of Lapuyan, Vicente Imbing, took his oath as mayor. The comelec was unable to render judgment before the elections, Rulong was voted for in the elections and he won as mayor. The comelec then rendered a decision declaring Sulong disqualified as he was guilty of violating the Anti Graft and Corrupt Practices Act. Sulong filed an MR contending that the decision has not become final and executor as the final disposition thereof was overtaken by the local elections of May 1992. The comelec en banc, however, reversed. It ruled that while it is true that one of the disqualifications from running in an elective position is removal from office as a result of an administrative case, said provision no longer applies if the candidate whose qualification is questioned got re-elected to another term. The re-election of Sulong in the 1992 and 1995 elections would be tantamount to a condonation of the Sangguniang Panlalawigan decision which found him guilty of dishonesty, malversation of public funds etc[.], granting said decision has become final and executory. Moreover, the people of LAPUYAN have already expressed their will when they cast their votes in the recent elections as evidenced by the results which found respondent Sulong to have won convincingly.

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Issue: WON Sulong was entitled to occupy the office thus vacated Held: Yes

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Ratio: We stated in Reyes: Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officers previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected [for] another term. This is the rationale for the ruling in the two Aguinaldo cases. The case at bar is the very opposite of those cases. Here, the decision in the administrative case, was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the Local Government Code, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. However, Reyes cannot be applied to this case because it appears that the 1992 decision of the Sangguniang Panlalawigan, finding respondent Sulong guilty of dishonesty, falsification and malversation of public funds, has not until now become final. The records of this case show that the Sangguniang Panlalawigan of Zamboanga del Sur rendered judgment in AC No. 12-91 on February 4, 1992, a copy of which was received by respondent Sulong on February 17, 1992; that on February 18, 1992, he filed a motion for reconsideration and/or notice of appeal; that on February 27, 1992, the Sangguniang Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91, to comment; and that the complainant in AC No. 12-91 has not filed a comment nor has the Sangguniang Panlalawigan resolved respondents motion. The filing of his motion for reconsideration prevented the decision of Sangguniang Panlalawigan from becoming final. While R.A. No. 7160 on disciplinary actions is silent on the filing of a motion for reconsideration, the same cannot be interpreted as a prohibition against the filing of a motion for reconsideration. Thus, it was held that a party in a disbarment proceeding under Rule 139-B, 12(c) can move for a reconsideration of a resolution of the Integrated Bar of the Philippines although Rule 139-B does not so provide: Although Rule 139-B, 12(c) makes no mention of a motion for reconsideration, nothing in its text or history suggests that such motion is prohibited. It may therefore be filed . . . . Indeed, the filing of such motion should be encouraged before [an appeal is] resort[ed] to . . . as a matter of exhaustion of administrative remedies, to afford the agency rendering the judgment [an] opportunity to correct any error it may have committed through a misapprehension of facts or misappreciation of evidence. There is thus no decision finding respondent guilty to speak of. As Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca attested, the Sangguniang Panlalawigan simply considered the matter as having become moot and academic because it was overtaken by the local elections of May [11,]1992. Neither can the succession of the then vice-mayor of Lapuyan, Vicente Imbing, and the highest ranking municipal councilor of Lapuyan, Romeo Tan, to the offices of mayor and vice-mayor, respectively, be considered proof that the decision in AC No. 12-91 had become final because it appears to have been made pursuant to 68 of the Local Government Code, which makes decisions in administrative cases immediately executory. Indeed, considering the failure of the Sangguniang Panlalawigan to resolve respondents motion, it is unfair to the electorate to be told after they have voted for respondent Sulong that after all he is disqualified, especially since, at the time of the elections on May 14, 2001, the decision of the Sangguniang Panlalawigan had been rendered nearly ten years ago. Flores v. Drilon (1998) Facts: The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction

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and temporary restraining order. Under said provision, for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority. Petitioners, as taxpayers, contend that said provision is unconstitutional as under the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint", since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; and, (c) Sec. 261, par. (g), of the Omnibus Election Code. Issue: WON the proviso in Sec. 13, par. (d), of R.A. 7227 violates the constitutional proscription against appointment or designation of elective officials to other government posts Held: Yes Ratio: The rule expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment. It is argued that Sec. 94 of the LGC permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity. In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; the Vice-President, who may be appointed Member of the Cabinet; and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor. This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of

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Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio. Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice."The Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio. Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City. As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. In his treatise, Philippine Political Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office." Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power. Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment. While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Where, as in the case of Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third

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persons, where the duties of the office were exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such. Election Cases Involving Local Elective Officials Galido v. COMELEC (1991) Facts: Galido and private respondent Galeon were candidates during the January 1988 local elections for mayor of Garcia-Hernandez, Bohol. Petitioner was proclaimed the duly-elected Mayor. Private respondent filed an election protest before the RTC. After hearing, the said court upheld the proclamation of petitioner. Private respondent appealed the RTC decision to the COMELEC. Its First Division reversed the RTC decision and declared private respondent the duly-elected mayor. After the COMELEC en banc denied the petitioners motion for reconsideration and affirmed the decision of its First Division. The COMELEC held that the fifteen (15) ballots in the same precinct containing the initial C after the name Galido were marked ballots and, therefore, invalid. Undaunted by his previous failed actions the petitioner filed the present petition for certiorari and injunction before the Supreme Court and succeeded in getting a temporary restraining order. In his comment to the petition, private respondent moved for dismissal, citing Article IX (C), Section 2(2), paragraph 2 of the 1987 Constitution, that Final decisions, orders or rulings of the COMELEC in election contests involving elective municipal offices are final and executory, and not appealable. Issue: Whether or not a COMELEC decision may, if it sets aside the trial courts decision involving marked ballots, be brought to the Supreme Court by a petition for certiorari by the aggrieved party? Held: Yes Ratio: The fact that decisions, final orders or rulings of the COMELEC in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. Under Article IX (A), Section 7 of the Constitution, which petitioner cites, it is stated, 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 thereof. We resolve this issue in favor of the petitioner. The petition involves pure questions of fact as they relate to appreciation of evidence (ballots) which is beyond the power of review of this Court. The COMELEC found that the writing of the letter "C" after the word "Galido" in the fifteen (15) ballots of Precinct 14 is a clear and convincing proof of a pattern or design to identify the ballots and/or voters. This finding should be conclusive on the Court. The Commission on Elections (COMELEC) has exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials and has appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective barangay officials decided by trial courts of limited jurisdiction. (Article IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution). In the present case, after a review of the trial court's decision, the respondent COMELEC found that fifteen (15) ballots in the same precinct containing the letter "C" after the name Galido are clearly marked ballots. May this COMELEC decision be brought to this court by a petition for certiorari by the aggrieved party (the herein petitioner)? Under Article IX (A) Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by this Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." On the other hand, private respondent relies on Article IX, (C), Section 2(2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory, and not appealable. (Emphasis supplied)

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We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. We do not, however, believe that the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in rendering the questioned decision. It is settled that the function of a writ of certiorari is to keep an inferior court or tribunal within the bounds of its jurisdiction or to prevent it from committing a grave abuse of discretion amounting to lack or excess of jurisdiction. As correctly argued by the COMELEC, it has the inherent power to decide an election contest on physical evidence, equity, law and justice, and apply established jurisprudence in support of its findings and conclusions; and that the extent to which such precedents apply rests on its discretion, the exercise of which should not be controlled unless such discretion has been abused to the prejudice of either party. Finally, the records disclose that private respondent had already assumed the position of Mayor of Garcia-Hernandez as the duly-elected mayor of the municipality by virtue of the COMELEC decision. The main purpose of prohibition is to suspend all action and prevent the further performance of the act complained of. In this light, the petition at bar has become moot and academic. Rivera v. COMELEC (1991) Facts: Juan Garcia Rivera and Juan Mitre Garcia II were candidates for the position of Mayor of Guinobatan, Albay, during the local elections in January 1988. The Municipal Board of Canvassers proclaimed Rivera as the duly elected Mayor by a majority of 10 votes. Garcia filed an election protest with the RTC, which rendered its verdict finding Garcia to have obtained 6,376 votes as against Rivera's 6,222. On appeal to the Comelec, the Comelec sustained with modification the judgment. It ruled that Juan Garcia was the duly elected municipal mayor by a majority of 153 votes over Juan Rivera instead of plurality of 154 votes. Upon MR, the Comelec affirmed the decision. Garcia commenced to discharge the duties and functions of Mayor of Guinobatan on 10 October 1990, by virtue of a writ of execution implementing the COMELEC decision of 6 September 1990. He continued as mayor until 10 November 1990 when he was served notice of this Court's temporary restraining order, issued upon Rivera's motion. In this petition, Rivera prayed for the issuance of a restraining order arguing that the judgment had not yet become final and executory. He cites Article IX-C, Section 2, Par. (2) of the 1987 Constitution, in relation to Part VII, Rule 39, Section 1 of the COMELEC Rules of Procedure. He also contends that since the COMELEC decision has not yet become final and executory, the COMELEC has no authority to issue the assailed order and writ of execution. Petitioner maintains further that he has a period of thirty (30) days from 6 September 1990 or until 6 October 1990 within which to elevate the COMELEC decision, on certiorari, to this Court, pursuant to Section 1, Rule 39 of the COMELEC Rules of Procedure. He submits that the questioned COMELEC decision is not one that became final and executory unless restrained by this Court as provided under Section 3, Rule 39 of the COMELEC Rules, as said rule applies only to "decisions in pre-proclamation cases and petitions to deny due course or to disqualify a candidate, and postpone or suspend elections." Lastly, according to petitioner, Section 13(a) of Rule 18 (finality of Comelec decisions or resolutions) and Section 1 of Rule 39 (review by the Supreme Court of Comelec decisions, orders and rulings) of the COMELEC Rules of Procedure, should be read in the context of Section 7, Article IX-A of the Constitution (Supreme Court authority to review on certiorari a Comelec decision, order or ruling). Garcia contends that the Constitution declares that the Comelec decision on election contests involving elective municipal and barangay officials are to be final, executor and not appealable. Issue: WON the decisions of the COMELEC in election contests involving elective municipal and barangay officials, being final and executory and not appealable, preclude the filing of a special civil action of certiorari Held: Yes Ratio: Under Article IX (A), Section 7 of the Constitution, which petitioner cites in support of this petition, it is stated: "(U)nless otherwise provided by the Constitution or by law, any decision, order, or ruling of each (Constitutional) Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. On the other

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hand, private respondent relies on Article IX, (C), Section 2 (2), paragraph 2 of the Constitution which provides that decisions, final orders, or rulings of the Commission on Elections in contests involving elective municipal and barangay offices shall be final, executory and not appealable. We resolve this issue in favor of the petitioner. The fact that decisions, final orders or rulings of the Commission on Elections in contests involving elective municipal and barangay offices are final, executory and not appealable, does not preclude a recourse to this Court by way of a special civil action of certiorari. The proceedings in the Constitutional Commission on this matter are enlightening. Flores vs Comelec: Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that "decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable" applies only to questions of fact and not of law. That provision was not intended to divest the Supreme Court of its authority to resolve questions of law as inherent in the judicial power conferred upon it by the Constitution. We eschew a literal reading of that provision that would contradict such authority. Actually, the main thrust of the present petition for certiorari is that the COMELEC en banc committed grave abuse of discretion when it affirmed the decision of its First Division, promulgated on 2 May 1990, annulling the proclamation of the petitioner as the duly elected Mayor of Guinobatan, Albay and when it did not exclude from the total votes of Garcia at least 10 votes which were allegedly misappreciated in Garcia's favor. We have closely scrutinized the challenged COMELEC decision and find that the said decision was not arrived at capriciously or whimsically by respondent COMELEC. A painstaking re-evaluation of the questioned 67 ballots was made by the COMELEC en banc. In fact, fourteen (14) ballots originally adjudicated in Garcia's favor were overruled by the Commission en banc, thus reducing the number of votes in his favor to 894 votes out of the 2,445 contested ballots. On the other hand, 16 ballots were added in Rivera's favor, thus increasing the votes in his favor to 1,087 votes. Moreover, the appreciation and re-evaluation of ballots are factual determinations. It is settled that in a petition for certiorari, findings of fact of administrative bodies are final unless grave abuse of discretion has marred such factual determinations. We find none in this case. Regalado, concurring: What the foregoing observations actually boil down to is that the decisions, orders, or rulings of said constitutional commissions are not subject to appellate review, that is, with this Court acting in the exercise of appellate jurisdiction and exercising its power of review over alleged errors of law and, sometimes, of fact or both. Such decisions, orders or rulings are not, however, invulnerable to an original civil action of certiorari, prohibition or mandamus invoking the original jurisdiction of this Court, under its power of control and supervision over the lower courts, to pass upon errors of jurisdiction imputed to said commissions. This is inevitable and justified because no appeal or any other plain, speedy or adequate remedy in the ordinary course of law lies from said adjudications. Narvasa, dissenting: It bears stressing that the final, executory and unappealable character of the COMELEC's rulings, orders or decisions in election contests involving elective municipal and barangay offices, is pronounced not by statute or presidential issuance, but by the Constitution itself. This is a relevant consideration because while Congress is granted by Section 2, Article VIII of the Constitution the "power to define, prescribe, and apportion the jurisdiction of the various courts, . . . (it) may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5" of the same Article VIII; and said Section 5 declares it to be one of the powers of the Supreme Court to "(r)eview, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in . . . (specifically listed cases)." It is in truth this fundamental limitation on the legislative prerogative to "define, prescribe, and apportion the jurisdiction" of courts which is, that the Supreme Court may not be deprived by law of jurisdiction over certain particular cases that underlay this Court's doctrines allowing review by the special civil action of certiorari under Rule 65 of judgments and final orders of the National Labor Relations Commission under the Labor Code, and the Central Board of Assessment Appeals, from which no appeal is prescribed by law. It cannot be gainsaid however that while Congress may not deprive the Supreme Court of its constitutionally stated powers, that self-same Constitution may itself effect that deprivation; and this appears to be precisely the purpose and intent of said Section 2, Article IX-C of the Constitution as written: to remove from this Court's power to review, revise, reverse, modify, or affirm on appeal or certiorari final judgments and orders of the COMELEC in "election contests involving elective municipal and barangay offices."

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Rivera v. COMELEC (2007) Facts: In the May 2004 Synchronized National and Local Elections, Marino Morales ran as candidate for mayor of Mabalacat. On January 5, 2004, he filed his Certificate of Candidacy. On January 10, petitioners filed before the Comelec a petition to cancel Morales certificate of candidacy on the ground that the was elected and had served three previous consecutive terms as mayor of Mabalacat contrary to RA 43(b) of RA 7160. Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a caretaker of the office or as a de facto officer because he was not validly elected as his proclamation as mayor was declared void by the RTC and thereafter, he was preventively suspended by the ombudsman. The Comelec ruled that Morales was disqualified to run for public office. Morales MR was however granted. The Comelec ruled that his proclamation before was void and that the discharge of the duties is that of a de facto mayor. In the other case filed by Anthony Dee: After Morales was proclaimed as the duly elected mayor, Anthony Dee filed a petition for quo warranto before the RTC. Dee reiterated the previous arguments of petitioners. The RTC dismissed Dees petition for quo warranto on the ground that Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but Dee in the May 1998 elections for the term 1998 to 2001. Comelec affirmed. Issue: WON Morales is disqualified from running for mayor Held: Yes Ratio: This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre with identical facts, thus: For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. We hold that such assumption of office constitutes, for Francis, service for the full term, and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated. Here, Morales invoked not only Lonzanida v. COMELEC, but also Borja, Jr. v. Commission on Elections which is likewise inapplicable. In Borja, the Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a term under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He

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held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC, this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the term contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a break in the service of private respondent Ramon T. Talanga as mayor. He was a private citizen for a time before running for mayor in the recall elections. Here, Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicitRespondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years. This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. This is the very situation in the instant case. Morales maintains that he served his second term (1998 to 2001) only as a caretaker of the office or as a de facto officer. Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as caretaker or de facto officer, he exercises the powers and enjoys the prerequisites of the office which enables him to stay on indefinitely. Morales should be promptly ousted from the position of mayor of Mabalacat. Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. In the light of the foregoing, Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot. Issue: WON it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term. Held: Yes Ratio: In Labo v. Comelec, this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner. As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code. Montebon v. Comelec ( 2008) Facts: Montebon, Ondoy and Potencioso, Jr. were candidates for municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Elections. Petitioners and other candidates filed a petition for disqualification against respondent with the COMELEC alleging that respondent had been elected and served three consecutive terms as municipal councilor in 1998-2001, 20012004, and 2004-2007. Thus, he is proscribed from running for the same position in the 2007 elections as it would be his fourth consecutive term. Respondent admitted having been elected, but claimed that the service of his second term in 2001-2004 was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying for the position of municipal councilor in the 2007 elections. Petitioners, on the other hand contended that voluntary renunciation of the

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office shall not be considered an interruption in the continuity of service for the full term for which the official concerned was elected. The comelec denied the petition for disqualification. On appeal, the Comelec en banc affirmed and ruled that there was no voluntary renunciation of office, but rather, an effective disruption in the full service of his second term as councilor. Issue: WON respondent's assumption of office as vice-mayor in January 2004 interrupted his 20012004 term as municipal councilor. Held: Yes Ratio: In Lonzanida v. Commission on Elections the Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post; and 2) that he has fully served three consecutive terms. In Borja, Jr. v. Commission on Elections, the Court emphasized that the term limit for elective officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Thus, for the disqualification to apply, it is not enough that the official has been elected three consecutive times; he must also have served three consecutive terms in the same position. While it is undisputed that respondent was elected municipal councilor for three consecutive terms, the issue lies on whether he is deemed to have fully served his second term in view of his assumption of office as vice-mayor of Tuburan on January 12, 2004. Succession in local government offices is by operation of law. Section 44 of Republic Act No. 7160, otherwise known as the Local Government Code, provides that if a permanent vacancy occurs in the office of the vice mayor, the highest ranking sanggunian member shall become vice mayor. In this case, a permanent vacancy occurred in the office of the vice mayor due to the retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor, succeeded him in accordance with law. It is clear therefore that his assumption of office as vice-mayor can in no way be considered a voluntary renunciation of his office as municipal councilor. In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary renunciation as follows: The second sentence of the constitutional provision under scrutiny states, `Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected.' The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. Thus, respondent's assumption of office as vice-mayor in January 2004 was an involuntary severance from his office as municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary renunciation because it was by operation of law. Succession by law to a vacated government office is characteristically not voluntary since it involves the performance of a public duty by a government official, the nonperformance of which exposes said official to possible administrative and criminal charges of dereliction of duty and neglect in the performance of public functions. It is therefore more compulsory and obligatory rather than voluntary. Borja v. COMELEC (1991) Facts: Jose Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. Jose Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections. Benjamin Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

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Comelec ruled in favor of petitioner and declared Capco disqualified from running for reelection as mayor of Pateros. On motion, the Comelec en banc reversed the decision and declared Capco eligible to run for mayor. It ruled that Capcos succession into office is not counted as one term for purposes of the computation of the three term limitation under the Constitution and Local Government Code. Capco was voted for in the elections. He received 16,558 votes against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers. Issue: WON Capco is eligible to run for mayor Held: Yes Ratio: (Purpose of the three term rule) First, to prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question. The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office whether by election or by succession by operation of law would be to disregard one of the purposes of the constitutional provision in question. Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against prescreening candidates (from) whom the people will choose as a result of the proposed absolute disqualification, considering that the draft constitution provision recognizing peoples power. Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of reelection. Indeed, a fundamental tenet of representative democracy is that the people should be allowed to choose whom they please to govern them. To bar the election of a local official because he has already served three terms, although the first as a result of succession by operation of law rather than election, would therefore be to violate this principle. Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such official[s) from serving for more than three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that 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. The term served must therefore be one for which (the official concerned) was elected. The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term now withstanding his voluntary renunciation of office prior to its expiration. Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars members of the House of Representatives from serving for more than three terms. Commissioner Bernas states that if one is elected Representative to serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed. This is actually based on the opinion expressed by Commissioner Davide: Yes, because we speak of term and if there is a special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House.

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There is a difference, however, between the case of a vice-mayor and that of a member of the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by operation of law. On the other hand, the Representative is elected to fill the vacancy. In a real sense, therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds another confirms the theory. Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the VicePresident to the Presidency in case of vacancy in that office. This provision says that No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time. Petitioner contends that, by analogy, the vice-mayor should likewise be considered to have served a full term as mayor if he succeeds to the latters office and serves for the remainder of the term. The framers of the Constitution included such a provision because, without it, the Vice-President, who simply steps into the Presidency by succession would be qualified to run for President even if he has occupied that office for more than four years. The absence of a similar provision in Art. X, 8 on elective local officials throws in bold relief the difference between the two cases. It underscores the constitutional intent to cover only the terms of office to which one may have been elected for purpose of the three-term limit on local elective officials, disregarding for this purpose service by automatic succession. There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for more than four years is ineligible for election as President. The Vice-President is elected primarily to succeed the President in the event of the latters death, permanent disability, removal or resignation. While he may be appointed to the cabinet, his becoming so is entirely dependent on the good graces of the President. In running for Vice-President, he may thus be said to also seek the Presidency. For their part, the electors likewise choose as Vice-President the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in the presidency for more than four years may rightly be considered as service for a full term. This is not so in the case of the vice-mayor. Under the local Government Code, he is the presiding officer of the sanggunian and he appoints all officials and employees of such local assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy therein being only one of them. It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in that office should not be counted in the application of any term limit. To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. Borja Supplement: Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election. Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the full term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the 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 considered to have completed one term. His resignation constitutes an interruption of the full term Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively.

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In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. Case No. 3. 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 Art. X 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of the mayor in the first term but simply found himself thrust into it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death , of the deceased mayor. To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one of the purpose of applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. Adorneo v. COMELEC (2002) Facts: Petitioner and private respondent were the only candidates for mayor of Lucena City in the May 14, 2001 elections. Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001. Petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000, where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that Talagas candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution. On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but only for two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each. Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full term, in the contemplation of the law and the Constitution. The Comelec found Talaga disqualified for the position of city mayor. The Comelec en banc reversed and ruled that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May 11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption in the continuity of his service as Mayor of Lucena City. Issue: WON Talaga is disqualified to run for mayor Held: No

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Ratio: The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held, To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following case or situation: Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their freedom of choice is not unduly curtailed. Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said, This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. Accordingly, COMELECs ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections. Patently untenable is petitioners contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987 Constitution. To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission member, stating that in interpreting said provision that if one is elected representative to serve the unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed. As pointed out by the COMELEC en banc, Fr. Bernas comment is pertinent only to members of the House of Representatives. Unlike local government officials, there is no recall election provided for members of Congress. Neither can respondents victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as voluntary renunciation for clearly it is not. In Lonzanida vs. COMELEC, we said: The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. Socrates v. COMELEC (2002) Facts: On July 2, 2002, 312 out of 528 members of the incumbent barangay officials of the Puerto Princesa convened into a Preparatory Recall Assembly to initiate the recall of Victorino Dennis M. Socrates (mayor). The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA. The PRA passed a Resolution declaring its loss of confidence in Socrates and called for his recall. Socrates filed a petition to deny due course to the Recall Resolution but the Comelec en banc dismissed the case for lack of merit. Edward M. Hagedorn filed his certificate of candidacy for mayor in the recall election.Ma. Flores F. Adovo and Merly E. Gilo filed a petition before the COMELEC, to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. The petitions were all anchored on the ground that Hagedorn is disqualified from running for a fourth consecutive term, having

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been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post. The Comelec declared Hagedorn qualified to run in the recall election. G.R. No. 154512. Socrates sought to nullify the COMELEC en banc resolution which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their respective constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the publics constitutional right to information. G.R. No. 154683. Vicente S. Sandoval, Jr. sought to annul COMELEC Resolution No. 5673 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. The court gave the candidates an additional 15 days within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002. G.R. Nos. 155083-84. Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions declaring Hagedorn qualified to run for mayor in the recall election. The Court ordered the COMELEC to desist from proclaiming any winning candidate in the recall election until further orders from the Court. In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively. Issue: WON the recall resolution was valid Held: Yes Ratio: Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials, and DILG officials]. The Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC, unless the findings are patently erroneous. In the instant case, we do not find any valid reason to hold that the COMELECs findings of fact are patently erroneous. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is no legal basis in Socrates claim that respondents violated his constitutional right to information on matters of public concern. Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and in scheduling the recall election on September 24, 2002. Issue: WON Hagedorn is qualified to run for mayor in the recall election

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Held: No Ratio: The constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be no immediate reelection after three terms. What the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term, not any other subsequent election. If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials. The framers of the Constitution thus clarified that a Senator can run after only three years following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend the period of rest of an elective official who has reached his term limit to be the full extent of the succeeding term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over his closest opponent, Socrates. From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from

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June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorns service as mayor. In Hagedorns case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient to break an elective local officials continuity of service. Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective officials terms in office. In the same manner, Hagedorns recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorns recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. Worse, to make Hagedorns recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission. Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. Davide, concurring and dissenting. The ponencia is then correct when it holds that the three-term limit bars an immediate reelection for a fourth term. But I disagree when it rules that in the case of Hagedorn he did not seek an immediate reelection for a fourth term because he was not a candidate for reelection in the May 2001 election. It forgets that what would have been his fourth term by virtue of the May 2001 election was for the period from 30 June 2001 to 30 June 2004. The flaw in the ruling results from an apparent confusion between term and election, the root cause of which is the attempt to distinguish voluntary renunciation of office from involuntary severance from office and the term of office to which it relates. I wish to add that the Constitutional Commission debates on the issue of no immediate reelection after three consecutive terms for members of Congress clearly indicated that the no immediate reelection after the 3-term limit would equally apply to the elective local officials. This accounted for the immediate acceptance by the Committee on Local Governments of the aforementioned Amendment of Commissioner Davide, which is now Section 8 of Article X of the Constitution. These debates clearly showed the Intent of the Commission that the ban against an immediate reelection after three consecutive terms applies to the fourth term, i.e., the term immediately following the three consecutive terms, to be filled up by the regular election for such fourth term. For one to be able to run again after three consecutive terms, he has to rest for the entire immediately succeeding fourth term. On the next fifth term he can run again to start a new series of three consecutive terms. The dichotomy made in the ponencia between voluntary renunciation of the office as used in Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 and involuntary severance from office is unnecessary, if not misplaced. From the discussion in the ponencia, the latter is made to apply to the banned term, i.e., the fourth term immediately following three consecutive terms. Speaking now of Hagedorn, he cannot have suffered involuntary severance from office because there was nothing to be severed; he was not a holder of an office either in a de jure or de facto capacity. He knew he was disqualified from seeking a third reelection to office. Disqualification is, definitely, not synonymous with involuntary severance. Even if we concede that involuntary severance is an act which interrupts the continuity of a term for purposes

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of applying the three-term principle the rule laid down in Lonzanida vs. COMELEC (311 SCRA 609), cited in the ponencia, page 17, is not applicable in the case of Hagedorn. The involuntary severance referred to in that case was one that took place during any of the three terms; hence, the term during which it occurred should be excluded in the computation. In the case of Hagedorn, no such involuntary severance took place during any of his three terms brought about by his election in 1992 and reelections in 1995 and 1998. More importantly, the voluntary renunciation referred to in Section 8, Article X of the Constitution and Section 43(b) of R.A. No. 7160 is one that takes place at any time during either the first, second, or third term of the three consecutive terms. This is very clear from the last clause of Section 8, Article X of the Constitution, which reads: shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The purpose of the provision is to prevent an elective local official from voluntarily resigning from office for the purpose of circumventing the rule on the belief that the term during which he resigned would be excluded in the counting of the three-term rule. In short, the provision excluded is intended to impose a penalty on one who flouts the rule or make a mockery of it by the simple act of resigning. Thus, applying it in the case of Hagedorn, even if he voluntarily resigned on his third term, he would still be barred from seeking reelection in the May 2001 election. Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4 February 2002) because in that case Talaga did not win in his second reelection bid, or for a third term, in the May 1998 elections. He won in the recall election of 12 May 2000. Hagedorn, as earlier stated, fully served three successive terms. Mendoza v. COMELEC (2002) For resolution is a petition for certiorari filed by petitioners Melanio L. Mendoza and Mario E. Ibarra, seeking to set aside the resolution of the Commission on Elections, dated August 15, 2001, in EPC No. 2001-5 and to declare respondent Leonardo B. Romans election as governor of Bataan on May 14, 2001 as null and void for allegedly being contrary to Art. X, 8 of the Constitution, which provides that: The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. 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. After due deliberation, the Court voted 8 to 7 to DISMISS the petition: VITUG, J., joined by YNARES-SANTIAGO, J., voted to dismiss the petition. He contended that as revealed by the records of the Constitutional Commission, the Constitution envisions a continuous and an uninterrupted service for three full terms before the proscription applies. Therefore, not being a full term, a recall term should not be counted or used as a basis for the disqualification whether served prior (as in this case) or subsequent (as in the Socrates case) to the nine-year, full three-term limit. MENDOZA, J., in whose opinion QUISUMBING, J. joined, voted to dismiss the petition on the ground that, in accordance with the ruling in Borja, Jr. v. COMELEC, 295 SCRA 157 (1998); Arcos v. COMELEC, G.R. No. 133639, Oct. 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 (1999); and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a term during which succession to a local elective office takes place or a recall election is held should not be counted in determining whether an elective local official has served more than three consecutive terms. He argued that the Constitution does not prohibit elective local officials from serving for more than three consecutive terms because, in fact, it excludes from the three-term limit interruptions in the continuity of service, so long as such interruptions are not due to the voluntary renunciation of the office by an incumbent. Hence, the period from June 28, 1994 to June 30, 1995, during which respondent Leonardo B. Roman served as governor of Bataan by virtue of a recall election held in 1993, should not be counted. Since on May 14, 2001 respondent had previously served as governor of Bataan for only two consecutive terms (1995-1998 and 1998-2001), his election on that day was actually only his third term for the same position. PANGANIBAN, J., joined by PUNO, J., also voted to dismiss the petition. He argued that a recall term should not be considered as one full term, because a contrary interpretation would in effect cut short the elected officials service to less than nine years and shortchange his constituents. The desire to prevent monopoly of political power should be balanced against the need to uphold the voters obvious preference who, in the present case, is Roman who received 97 percent of the votes cast. He explained that, in Socrates, he also voted to affirm the clear choice of the electorate, because in a democracy the people should, as much as legally possible, be governed by

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leaders freely chosen by them in credible elections. He concluded that, in election cases, when two conflicting legal positions are of almost equal weight, the scales of justice should be tilted in favor of the peoples overwhelming choice. AZCUNA, J., joined by BELLOSILLO, J., also voted to dismiss, arguing that it is clear from the constitutional provision that the disqualification applies only if the terms are consecutive and the service is full and continuous. Hence, service for less than a term, except only in case of voluntary renunciation, should not count to disqualify an elective local official from running for the same position. This case is different from Socrates, where the full three consecutive terms had been continuously served so that disqualification had clearly attached. On the other hand, SANDOVAL-GUTIERREZ, J., with whom DAVIDE, JR., C.J., and AUSTRIAMARTINEZ, CORONA, and CALLEJO, SR., JJ. concurred, holds the view that the recall term served by respondent Roman, comprising the period June 28, 1994 to June 30, 1995, should be considered as one term. Since he thereafter served for two consecutive terms from 1995 to 1998 and from 1998 to 2001, his election on May 14, 2001 was actually his fourth term and contravenes Art. X, 8 of the Constitution. For this reason, she voted to grant the petition and to declare respondents election on May 14, 2001 as null and void. CARPIO, J., joined by CARPIO MORALES, J., also dissented and voted to grant the petition. He held that a recall term constitutes one term and that to totally ignore a recall term in determining the three-term limit would allow local officials to serve for more than nine consecutive years contrary to the manifest intent of the framers of the Constitution. He contended that respondent Romans election in 2001 cannot exempt him from the three-term limit imposed by the Constitution. Tenure of Office Osmena v. COMELEC (2002) Facts: The petition) calls for a determination of the validity and constitutionality of Republic Act 7056, "An Act Providing for the National and Local Elections in 1992, Pave the Way for Synchronized and Simultaneous Elections Beginning 1995, and Authorizing Appropriations Therefor," which was signed into law on June 20, 1991. The suit was instituted by Governor Emilio M. Osmea (Cebu), Gov Roberto Pagdanganan on behalf of the League of Governors of the Philippines, Representatives Pablo P. Garcia (3rd District-Cebu), Raul V. del Mar (North District-Cebu City), Antonio T. Bacaltos (1st District-Cebu), Wilfredo G. Cainglet (3rd District-Zamboanga del Norte) and Romeo Guanzon (lone District-Bacolod City), by way of a petition for Prohibition, mandamus and Injunction with temporary restraining order and/or preliminary injunction to prevent the implementation of said Republic Act 7056 and the consequent expenditure of public funds and to compel the Comelec to immediately and with all deliberate speed set up the machinery and make the necessary preparation for the holding of synchronized national and local elections on the second Monday of May, 1992. The petitioners' claim they have actual and material legal interest in the subject matter of this case not only because, as public officials, they have taken an oath to support and defend the Constitution but also because, as taxpayers, they have an interest in seeing to it that public funds are properly and, more importantly, lawfully disbursed. They pray for this Court to declare Republic Act No. 7056 as unconstitutional and, therefore, invalid and inoperative because: 1. Republic Act 7056 violates the mandate of the Constitution for the holding of synchronized national and local elections on the second Monday of May 1992. 2. Republic Act 7056, particularly the 2nd paragraph of Section 3 thereof, providing that all incumbent provincial, city and municipal officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified violates Section 2, Article XVIII (Transitory Provision) of the Constitution. 3. The same paragraph of Section 3 of Republic Act 7056, which in effect, shortens the term or tenure of office of local officials to be elected on the 2nd Monday of November, 1992 violates Section 8, Article X of the Constitution. 4. Section 8 of Republic Act 7056, providing for the campaign periods for Presidential, VicePresidential and Senatorial elections, violates the provision of Section 9, Article IX under the title "Commission on Elections" of the Constitution. 5. The so-called many difficult if not insurmountable problems mentioned in Republic Act 7056 to synchronized national and local elections set by the Constitution on the second Monday of May, 1992, are not sufficient, much less, valid justification for postponing the local elections to the second Monday of November 1992, and in the process violating the Constitution itself. If, at all, Congress can devise ways and means, within the parameters of the Constitution, to eliminate or at

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least minimize these problems and if this, still, is not feasible, resort can be made to the selfcorrecting mechanism built in the Constitution for its amendment or revision. The Solicitor General prays for the denial of the petition on the ground that the question is political in nature and that the petitioners are merely asking for an advisory opinion from the court, there being no justiciable controversy for resolution. On the merits of the case, the Solicitor General contends that Republic Act 7056 is a valid exercise of legislative power by Congress and that the regular amending process prescribed by the Constitution does not apply to its transitory provisions. Issue: WON the Court has competence to act on the matter at bar Held: Yes Ratio: What is involved here is the legality, not the wisdom of RA 7056. And even if we were to assume that the issue presented before us is political in nature, We would still not be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers in proper cases even political questions, provided naturally, that the question is not solely and exclusively political (as when the Executive extends recognition to a foreign government) but one which really necessitates a forthright determination of constitutionality, involving as it does a question of national importance. On the other procedural issues raised, We held as early as in the Emergency Power Cases that where serious constitutional questions are involved, "the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure." It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter. To summarize, on the procedural issue, We hold in view of the foregoing considerations, that the issue presented to us in the case at bar, is justiciable rather than political. Even if the question were political in nature, it would still come within our powers of review under the expanded jurisdiction conferred upon us by Article VIII, Section 1 of the 1987 Constitution, which includes the authority to determine whether grave abuse of discretion amounting to excess or lack of jurisdiction has been committed by any branch or instrumentality of the government. As for the other alleged procedural flaws lack of court standing, etc., assuming the existence of such flaws, the same may be brushed aside, conformably with existing doctrine so that the important constitutional issue raised may be addressed. Accordingly, We are left with no other alternative but to uphold the jurisdiction of the Court over the present cases. It goes without saying that We do this not because the Court is superior to the Executive and/or Legislative but simply because the Executive, the Legislative and this Court are subject to the Constitution as the supreme law. Issue: WON RA 7056 is unconstitutional Held: Yes Ratio: It is evident from the wording of Article XVIII, Sections 2 and 5 of the 1987 Constitution that the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years. That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the following records of the proceedings in the Constitutional Commission. It thus becomes very evident that the Constitution has mandated a synchronized national and local election prior to June 30, 1992 or more specifically as provided for in Article XVIII, Sec. 5-on the second Monday of May, 1992. On this point, it has to be stressed that the term of office of elective local officials, except barangay officials, is fixed by the Constitution at three years (Sec. 8, Art. X). The incumbent local officials were elected in January 1988. Therefore, their term would have expired on February 2, 1991. But their term was adjusted to expire at noon of June 30, 1992. The reason for the said

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adjustment, as well as those of the Senators, members of the House of Representatives, President and Vice-President, is the same to synchronize the national and local elections. Upon the other hand, and contrary to the express mandate of the 1987 Constitution, RA 7056 provides for two (2) separate elections in 1992 as follows: Sec. 2. Start of Synchronization To start the process of synchronization of election in accordance with the policy hereinbefore declared there shall be held: (a) An election for President and Vice-President of the Philippines, twenty four (24) Senators and all elective Members of the House of Representatives on the second Monday of May, 1992, and (b) An election of all provincial, city and municipal elective officials on the second Monday of November, 1992. The purpose of Republic Act 7056 is as stated in Section 1 thereof under the heading "Statement of Policy" . . . to start, as much as practicable, the synchronization of the elections so that the process can be completed in the 1995 elections with the result that beginning 1995 there shall be only one (1) simultaneous regular elections for national and local elective officials every three (3) years. With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local elections in the second Monday of May, 1992, the inevitable conclusion would be that Republic Act 7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized election. Stated differently, Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article XVIII, Sections 2 and 5 of the 1987 Constitution. But this is not all. There are other provisions of the Constitution violated by RA 7056. For one, there is Section 2, Article XVIII of the Constitution which provides that the local official first elected under the Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. It has been held that: It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify with the time. If the local election will be held on the second Monday of November 1992 under RA 7056, those to be elected will be serving for only two years and seven months, that is, from November 30, 1992 to June 30, 1995, not three years as provided for by the Constitution. Then also, Section 9, Article IX of the Constitution provides that: Unless otherwise fixed by the Commission in special cases, the election period shall commence ninety days before the day of election and shall end thirty days thereafter. Under this provision the filing of the Certificate of Candidacy and the ensuing campaign period must be embraced or circumscribed within that election period of ninety days, except when in special cases, the Comelec (not Congress) alters the period. But RA 7056 provides for a different campaign period, as follows: Sec. 8. (a) For President arid Vice-Presidential elections one hundred thirty (130) days before the day of election. (b) For Senatorial elections, ninety (90) days before the day of the election, and (c) For the election of Members of the House of Representatives and local elective provincial, city and municipal officials forty-five (45) days before the day of the elections. All these the postponement of the holding of a synchronized national and local election from 1992 to 1995; the hold-over provision for incumbent local officials; the reduction of the term of office of local officials to be elected on the second Monday of November 1992 and the change in the campaign periods, are violative of the 1987 Constitution. The contention of the Solicitor General that the method of amendment or revision prescribed by the Constitution (Article XVIII) does not apply to the Transitory Provisions because in the nature of things Transitory Provisions are to be carried out as soon as practicable, and Congress can, in the exercise of its legislative power enact the needed legislation, in this case RA 7056, deserves no consideration at all. The 1987 Constitution has stated in clear and categorical language that "the six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992 (Article XVIII, Sec. 5)." As discussed earlier, the elections referred to, to be synchronized with the election of the President and Vice-President on the second Monday of May 1992, is the election for Senators, Members of the House of Representatives and local officials. It is noteworthy that the Solicitor General evaded the issue of the constitutionality of RA 7056. Although he made a lengthy discussion on the procedural issues and on the legislative power of

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Congress, he failed to refute the arguments of the petitioners that RA 7056 violated several provisions of the 1987 Constitution more importantly, the provision on synchronization of election. Vacancies and Succession Jainal v. Comelec, G.R. No. 147927 (2007) Facts: Petitioner Jainal Julhatab J. Talib were duly certified candidates for Mayor of Indanan, Sulu in the 10 May 2004 elections. During the canvassing, Talib objected to the inclusion of certain returns before the Municipal Board of Canvassers (MBC). On 20 May 2004, petitioner was proclaimed by the MBC as the winning candidate with a margin of 1,018 votes. On May 23, Talib filed a pre proclamation case iwith the Comelec praying for the annulment of election returns pertaining to 21 precints representing 2788 votes. He alleged that the watchers were asked to leave the precincts before the counting and preparation of the election returns. Also, the returns were not signed by the members of the board of election inspectors. Also, the number of votes exceeded the number of voters in two precincts. Petitioner prayed for the dismissal of the case contending that the allegations are not the proper subject of an election protest. The comelec annulled the election returns in nine precincts. The proclamation of Jainal was also annulled. Hence, petitioner filed the instant petition, including Hussi Ahajan as private respondent in his capacity as Vice-Mayor who, under the provisions of the Local Government Code, will fill up the vacancy created by the annulment of petitioners proclamation. Issue: WON Talib should have followed the procedure outlined in Section 20 of RA 7166 for contesting election returns Held: No Ratio: Sec. 20 of R.A. No. 7166 provides for the steps, outlined below, to be undertaken by a party contesting the inclusion or exclusion of any election return: Submitting oral objections and thereupon entering the objections in the form for written objections to be prescribed by the COMELEC; Submitting evidence in support of the objections within twenty-four (24) hours; Informing the MBC of his intention to appeal from the MBC ruling on his objections; Filing with the MBC a written and verified notice of appeal within forty-eight (48) hours from suspension of the canvass, and taking an appeal to the COMELEC within an inextendible period of five (5) days from filing the notice of appeal. However, the provision also requires the MBC to perform certain acts, to wit: Recording the oral objections in the minutes of the canvass; Automatically deferring the canvass of the contested returns and proceeding to canvass the uncontested returns; Summarily and immediately ruling on the objections upon receipt of the evidence; Entering its ruling in the prescribed form and authenticating the same; Entering in the minutes of the canvass a partys signified intention to appeal the ruling to the COMELEC; Suspending the canvass after canvassing all the uncontested returns and ruling upon the contested returns; and Making an appropriate report to the COMELEC immediately upon receipt of the notice of appeal, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. Petitioner does not state in what respect and on what basis Talib failed to comply with Sec 20 of RA 7166. It is incumbent upon petitioner to prove the alleged non-compliance. In the absence of such proof, there is no aspect in the proceedings before the MBC which legally precludes Talib from filing his petition before the COMELEC in accordance with the COMELEC Rules of Procedure. In fact, petitioner did not even raise this issue of non-compliance with Sec. 20 of R.A. No. 7166 in his Answer and Memorandum filed before the COMELEC. The general rule is that a pre-proclamation case before the COMELEC is, logically, no longer viable after a proclamation has been made. However, this rule admits of exceptions, as when the proclamation is null and void. The proclamation of petitioner in this case is void for three (3) reasons: (1) it was based on a canvass that should have been suspended with respect to the contested election returns; (2) it was done without prior COMELEC authorization which is required in view of the unresolved objections of Talib to the inclusion of certain returns in the canvass; and (3) it was predicated on a canvass that included unsigned election returns involving such number of

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votes as will affect the outcome of the election. In this regard, it has long been recognized that among the reliefs that the COMELEC may grant is to nullify a proclamation or suspend the effects of one. Assuming, however, that Sec. 20 of R.A. No. 7166 was not complied with, Talib cannot be faulted or made to suffer for such non-compliance as it was the MBC who did not comply with its duties under Sec. 20 of R.A. No. 7166. When Talib made his objections to the inclusion of the contested election returns, there was no other recourse for the MBC except to rule on the objections, suspend the canvass of the contested election returns, and suspend the proclamation of petitioner, in that sequence. Instead of doing so, the MBC, after ruling on the objections, included the contested returns in the canvass and immediately proclaimed petitioner. These actions of the MBC rendered it impossible for Talib to comply with Sec. 20 of R.A. No. 7166 any further. It should be noted that the forty-eight (48)-hour period for filing a verified notice of appeal with the MBC is reckoned from suspension of the canvass. The appeal to the COMELEC is also reckoned five (5) days from suspension of the canvass. Understandably, Talib had no other recourse but to go directly to the COMELEC. It is worthy of note that what was filed with and resolved by the poll body is a pre-proclamation case. Pre-proclamation cases refer to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of election returns. Issue: WON the order of the RTC of Jolo, Sulu in Election Protest Case No. 5-4-04 upholding petitioners proclamation as Mayor of Indanan, Sulu precludes the COMELEC from issuing the assailed resolutions Held: No Ratio: Note that Election Protest Case No. 5-4-04 is an election protest case filed by Isnaji, the third candidate for the position of Mayor against petitioner and Talib. Being an election protest or a post-proclamation case, it is markedly different from the case filed by Talib before the COMELEC which is a pre-proclamation case. Verily, the order of the trial court in the election protest case does not conflict with nor diminish the legal effect of the COMELEC en banc Resolution, invalidating eight (8) of the nine (9) questioned election returns. Particularly, the order is not inconsistent with the directive of the COMELEC to the Election Officer of Indanan to convene the BEI in the concerned precincts for a recount, after notice to the parties and after ensuring that the integrity of the ballot boxes are not compromised. The order of the trial court directed a dismissal of the election protest on a technicality, that is, for failure of Isnaji as protestant to prosecute the protest. No election returns were examined and no ballots revised. The questioned election returns could not have been examined before the trial court because they were already with the COMELEC at that time in connection with Talibs pre-proclamation case. The trial court perfunctorily considered the report of the Revision Committee and on that basis concluded that it was no longer necessary to continue with the case because of petitioners "enormous lead" over Isnaji, not Talib. Although denominated as a respondent in Election Protest Case No. 5-4-04, Talib could not be expected to participate therein because of his pending pre-proclamation case with the COMELEC. Had he participated in the election protest, his pre-proclamation case would have been deemed abandoned because the general rule is that the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy, or amounts to the abandonment of one earlier filed. Without a doubt, the dismissal of Election Protest Case No. 5-404 could not have cast an adverse or prejudicial effect on Talibs pending pre-proclamation case. Issue: WON the Comelec observed the procedure outlined in Section 235 of BP 881 Held: Yes Ratio: Contrary to petitioners contention, the COMELEC fully complied with this Courts exhortation in Dagloc v. COMELEC that the provision be followed to ascertain the will of the electorate. Indeed, the COMELEC did not instantaneously nullify the questioned election returns as claimed by petitioner. Utilizing the first procedure contained in the first sentence of Sec. 235, the COMELEC used other copies of said suspect election returns, namely the election returns submitted by Talib. When this was not enough, it even resorted to an examination of the COMELEC copies. And when it was evident that the election returns for the nine precincts were manufactured or fabricated because the printed names and signatures of the members of the BEI were absent, it was only then that the COMELEC annulled the said election returns and petitioners proclamation.

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The COMELEC thereafter ordered the Election Officer of Indanan to convene the BEI in the concerned precincts for a recount, if possible, or to report to the COMELEC the impossibility of a recount so that a special election can be immediately scheduled. Clearly, the issuances of the COMELEC can hardly be described as precipitate and premature. Issue: WON it was proper for Comelec to pierce the veil of election returns Held: No Ratio: It is a well-entrenched rule in jurisprudence that in a pre-proclamation controversy, the board of canvassers and the COMELEC are not to look beyond or behind election returns which are on their face regular and authentic returns. In Chu v. COMELEC, aside from reiterating the rule against piercing the veil of returns, this Court intimated that a pre-proclamation case is the proper remedy if the defects and irregularities are apparent from a physical inspection of the election returns. In the case at bar, the COMELEC did not have to look at other evidence to conclude that the election returns were manufactured because the defects were apparent on the face of the election returns themselves. In fact, a detailed description of each questioned election return was provided in the Resolution of the COMELEC (2nd Division). Forum Shopping: The relief sought in the Extreme Urgent Ex-Parte Manifestation is basically the same as the prayer for a temporary restraining order in the present petition which was still pending resolution by this Court at the time the Extreme Urgent Ex-Parte Manifestation was filed before the COMELEC. However, for as long as the present petition, including the prayer for injunctive relief, pends before this Court, the assailed COMELEC resolutions remain presumptively valid. With the filing of the present petition, only this Court has jurisdiction to nullify the COMELEC resolutions or suspend their enforcement. Another violation of the ban against forum-shopping lies in petitioners failure to inform this Court of its filing of the Extreme Urgent Ex-Parte Manifestation with the COMELEC. What is worse than petitioners forum-shopping is the poll bodys favorable action on petitioners Extreme Urgent ExParte Manifestation despite knowledge of the pending petition with this Court. Such action on the part of COMELEC should not be countenanced and deserves disapprobation. Position of Municipal Mayor: The Local Government Code is clear on the matter of succession. Sec. 44 of R.A. No. 7160 and Art. 83, Rule XIV of the Implementing Rules of the Local Government Code governing vacancies and succession, quoted below, apply: Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and Vice Mayor. If a permanent vacancy occurs in the office of the governor or mayor, the vicegovernor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his permanent inability, the second highest-ranking sanggunian member, shall become the governor, vice governor, mayor or vice mayor as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein: (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. (c) A tie between or among the highest ranking sanggunian members shall be resolved by the drawing of lots. (d) The successors as defined herein shall serve only the unexpired terms of their predecessors. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office. For purposes of succession as provided in this Chapter, 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 registered voters in each district in the immediately preceding local election. [Emphasis supplied.] Verily, the vacancy created by the nullification of petitioners proclamation is in the nature of a permanent vacancy and may be qualified as a "permanent incapacity to discharge the functions of his office." Ahajans assumption of the office of Mayor should be understood as subject to the result of the recount to be conducted in accordance with the issuances of the COMELEC. Thus,

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there is an immediate need for the COMELEC to speedily ascertain the true will of the electorate in the eight (8) precincts whose election returns were nullified. Labo, Jr. v. COMELEC (1992), supra. The doctrine of res judicata does not apply to questions of citizenship. Modes of losing Philippine citizenship naturalization in a foreign country, express renunciation of citizenship, subscribing to an oath of allegiance to support the Constitution or laws of a foreign country. The annulment of Labos Australian citizenship as a result of the finding that his marriage to an Australian national was bigamous did not automatically restore is Philippine citizenship. Menzon v. Petilla 197 SCRA 251 (1991) Facts: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988, Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. Menzon took his oath of office before Senator Alberto Romulo. The Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the DILG as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. Undersecretary Rubllar stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The petitioner through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Rubillar, Jr. regarding the June 22, 1989 opinion. Undersecretary Rubillar replied and explained his opinion: On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vicegovernor temporarily. In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the DILG, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the ActingGovernor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. Issue: WON there was a vacancy Held: Yes Ratio: The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the

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vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Issue: WON the Secretary of Local Government had the authority to designate the petitioner. Held: Yes Ratio: The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional

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compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the ViceGovernor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. Docena v. Sang. Panlalawigan of Eastern Samar (1991) Facts: Luis Capito, elected and serving as member of the Sangguniang Panlalawigan (SP) died in office. Petitioner Agustin Docena was appointed to succeed Capito. This appontment was issued by Department of Local Government Secretary Santos on November 19, 1990. November 27: For unknown reasons, respondent Socrates Alar was also appointed by Secretary Santos to the position already occupied by Docena. December 18: the SP passed Resolution No. 75 recognizing Alar rather than Docena as legitimate successor of the late Capito. December 19: Secretary Santos sent a letter to Alar, informing the latter of the prior appointment of Docena and recalling Alar's appointment Issue: WON Docena should be the appointed member to the Sangguniang Panlalawigan Held: Yes Ratio: The pertinent legal provision is Section 50, LGC: SEC. 50. Permanent Vacancies in Local Sanggunians. Except for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member who caused the vacancy, and shall serve the unexpired term of the vacant office. 1. From the tenor of the appointment extended to Docena on November 19, 1990, there is no question that it was intended to be permanent. Petitioner's appointment had already become complete and enforceable at the time it was supposed to have been "superseded" by the appointment in favor of Alar. Docena had already acquired security of tenure in the position and could be removed therefrom only for any of the causes, and conformably to the procedure, prescribed by the Local Government Code. These requirements could not be circumvented by the simple process of recalling his appointment. 2. The respondents are ambivalent about the power of the Secretary of Local Government to recall his appointments. They described the December 19 recall of Alar as "whimsical, capricious and wishy-washy" for lack of a previous hearing (although they had no similar complaints about the recall of Docena's appointment although also made without hearing). Appointive Local Officials Common to all Municipalities, Cities and Provinces De Rama v. CA (2001) Facts : Petitioner Conrado L. de Rama, Mayor of Pagbilao, Quezon, wrote a letter to the Civil Service Commission (dated July 13, 1995) seeking the recall of the appointments of fourteen (14) municipal employees. Petitioner de Rama justified his recall request on the allegation that the

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appointments of said employees were midnight appointments of the former mayor, Ma. Evelyn S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution. Three of the said employees, namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for payment of their salaries, alleging that although their appointments were declared permanent by Conrado Gulim, Director II of the CSC Field Office based in Quezon, petitoner de Rama withheld the payment of their salaries and benefits pursuant to Office Order No. 95-01. Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-Judicial Division of the CSC issued an Order finding that since the claimants-employees had assumed their respective positions and performed their duties pursuant to their appointments, they are entitled to receive the salaries and benefits appurtenant to their positions. The CSC Legal and QuasiJudicial Division ruled that the said employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-assumed mayor. CSC denied petitoners request for the recall of appointments of the fourteen employees, for lack of merit, and declared that the appointments of the said employees were issued in accordance with pertinent laws, and cannot be withdrawn or revoked by the appointing authority until disproved by the CSC. Furthermore, CSC dismissed petitioners allegation that these were midnight appointments. Constitutional provision prohibits only those appointments made by an outgoing President and cannot apply to local elective officials. CSC upheld the validity of the appointments, and petitioners failure to present evidence would warrant the revocation or recall of the said appointments. Petitioner moved for the reconsideration of the CSCs Resolution, averring that the CSC was without jurisdiction: (1) to refuse to revoke the subject appointments; and (2) to uphold the validity of said appointments, even assuming there was failure to present eveidence. Issue :Whether or not Article VII, Section 15 of the Constitution covers local elective officials. Decision : No. Records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC, the only justification he gave was that these were midnight appointments that are forbidden under Article VII, Section 15 of the Constitution. The CSC ruled, and correctly so, that the said prohibition applies only to presidential appointments. In truth, there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. DISSENTING OPINION: Mendoza. What the majority overlooks is that Article VII, Section 15 is simply an application of a broader principle that after the appointing authority has lost the elections, his is the duty of a prudent caretaker of the office, and therefore, he should not fill positions in the government unless required by the imperatives of public service. Leagues of Local Barangay Units and Elective Officials David v. COMELEC (1997) Facts: In his capacity as barangay chairman of Barangay 77, Zone 7, Kalookan City and as president of the Liga ng mga Barangay sa Pilipinas, Alex L. David filed a petition for prohibition to prohibit the holding of the barangay election scheduled on the second Monday of May 1997. Petitioner Liga ng mga Barangay Quezon City Chapter represented by its president Bonifacio M. Rillon filed a petition "to seek a judicial review by certiorari to declare as unconstitutional: 1. Section 43(c) of R.A. 7160 which reads as follows: (c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular election of barangay officials on the second Monday of May 1994. 2. COMELEC Resolution Nos. 2880 and 2887 fixing the date of the holding of the barangay elections on May 12, 1997 and other activities related thereto;

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3. The budgetary appropriation of P400 million contained in Republic Act No. 8250 otherwise known as the General Appropriations Act of 1997 intended to defray the costs and expenses in holding the 1997 barangay elections: Both petitions though worded differently raise the same ultimate issue: How long is the term of office of barangay officials? Petitioners contend that under Sec. 2 of RA 6653 "(t)he term of office of barangay officials shall be for five (5) years . . ." This is reiterated in RA 6679. Petitioners further aver that although Sec. 43 of RA 7160 reduced the term of office of all local elective officials to three years, such reduction does not apply to barangay officials because (1) RA 6679 is a special law applicable only to barangays while RA 7160 is a general law which applies to all other local government units; (2) RA 7160 does not expressly or impliedly repeal RA 6679 insofar as the term of barangay officials is concerned; (3) while Sec. 8 of Article X of the 1987 constitution fixes the term of elective local officials at three years, the same provision states that the term of barangay officials "shall be determined by law"; and (4) thus, it follows that the constitutional intention is to grant barangay officials any term, except three years; otherwise, "there would be no rhyme or reason for the framers of the Constitution to except barangay officials from the three year term found in Sec. 8 (of) Article X of the Constitution." Comelec maintains that RA 7160 repealed all other special laws relied upon by the petitioner. Issue: WON the term of the barangay officials should be limited only to three years Held: Yes Ratio: In light of the brief historical background, the intent and design of the legislature to limit the term of barangay officials to only three (3) years as provided under the Local Government Code emerges as bright as the sunlight. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the law. And three years is the obvious intent. First. RA 7160, the Local Government Code, was enacted later than RA 6679. It is basic that in case of an irreconcilable conflict between two laws of different vintages, the later enactment prevails. Legis posteriores priores contrarias abrogant. The rationale is simple: a later law repeals an earlier one because it is the later legislative will. It is to be presumed that the lawmakers knew the older law and intended to change it. In enacting the older law, the legislators could not have known the newer one and hence could not have intended to change what they did not know. Under the Civil Code, laws are repealed only by subsequent ones and not the other way around. Under Sec. 43-c of RA 7160, the term of office of barangay officials was fixed at "three (3) years which shall begin after the regular election of barangay officials on the second Monday of May 1994." This provision is clearly inconsistent with and repugnant to Sec. 1 of RA 6679 which states that such "term shall be for five years." Note that both laws refer to the same officials who were elected "on the second Monday of May 1994." Second. RA 6679 requires the barangay voters to elect seven kagawads and the candidate obtaining the highest number of votes shall automatically be the punong barangay. RA 6653 empowers the seven elected barangay kagawads to select the punong barangay from among themselves. On the other hand, the Local Autonomy Code mandates a direct vote on the barangay chairman by the entire barangay electorate, separately from the seven kagawads. Hence, under the Code, voters elect eight barangay officials, namely, the punong barangay plus the seven kagawads. Under both RA 6679 and 6653, they vote for only seven kagawads, and not for the barangay chairman. Third. During the barangay elections held on May 9, 1994 (second Monday), the voters actually and directly elected one punong barangay and seven kagawads. If we agree with the thesis of petitioners, it follows that all the punong barangays were elected illegally and thus, Petitioner Alex David cannot claim to be a validly elected barangay chairman, much less president of the national league, of barangays which he purports to represent in this petition. It then necessarily follows also that he is not the real party-in-interest and on that ground, his petition should be summarily dismissed. Fourth. In enacting the general appropriations act of 1997, Congress appropriated the amount of P400 million to cover expenses for the holding of barangay elections this year. Likewise, under Sec. 7 of RA 8189, Congress ordained that a general registration of voters shall be held "immediately after the barangay elections in 1997." These are clear and express contemporaneous statements of Congress that barangay officials shall be elected this May, in accordance with Sec. 43-c of RA 7160. Fifth. In Paras vs. Comelec, this Court said that "the next regular election involving the barangay office concerned is barely seven (7) months away, the same having been scheduled in May, 1997."

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This judicial decision, per Article 8 of the Civil Code, is now a "part of the legal system of the Philippines." Sixth. Petitioners pompously claim that RA 6679, being a special law, should prevail over RA 7160, all alleged general law pursuant to the doctrine of generaila specialibus non derogant. Petitioners are wrong. RA. 7160 is a codified set of laws that specifically applies to local government units. It specifically and definitively provides in its Sec. 43-c that "the term of office of barangay officials . . . shall be for three years." It is a special provision that applies only to the term of barangay officials who were elected on the second Monday of May 1994. With such particularity, the provision cannot be deemed a general law. Petitioner may be correct in alleging that RA 6679 is a special law, but they are incorrect in stating (without however giving the reasons therefor) that RA 7160 is necessarily a general law. It is a special law insofar as it governs the term of office of barangay officials. In its repealing clause, RA 7160 states that "all general and special laws . . . which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly." There being a clear repugnance and incompatibility between the two specific provisions, they cannot stand together. The later law, RA 7160, should thus prevail in accordance with its repealing clause. When a subsequent law encompasses entirely the subject matter of the former enactments, the latter is deemed repealed. Issue: WON the three year term is in accord with the constitution Held: Yes Ratio: Petetioner Liga ng mga Barangay Quezon City Chapter posits that by excepting barangay officials whose "term shall be determined by law" from the general provision fixing the term of "elective local officials" at three years, the Constitution thereby impliedly prohibits Congress from legislating a three year term for such officers. We find this theory rather novel but nonetheless logically and legally flawed. Undoubtedly, the Constitution did not expressly prohibit Congress from fixing any term of office for barangay officials. It merely left the determination of such term to the lawmaking body, without any specific limitation or prohibition, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of public service. It must be remembered that every law has in its favor the presumption of constitutionality. 38 For a law to be nullified, it must be shown that there is a clear and unequivocal (not just implied) breach of the Constitution. 39 To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what the fundamental law prohibits, the statute permits. The petitioners have miserably failed to discharge this burden and to show clearly the unconstitutionality they aver. There is absolutely no doubt in our mind that Sec. 43-c of RA 7160 is constitutional. Sec. 8, Article X of the Constitution limiting the term of all elective local officials to three years, except that of barangay officials which "shall be determined by law" was an amendment proposed by Constitutional Commissioner (now Supreme Court Justice) Hilario G. Davide, Jr. According to Fr. Joaquin G. Bernas, S.J., the amendment was "readily accepted without much discussion and formally approved." Indeed, a search into the Record of the Constitutional Commission yielded only a few pages of actual deliberations. Issue: WON petitioners are Estopped From Challenging Their Three-Year Terms Held: Yes Ratio: Respondent Commission on Elections submitted as Annex "A" of its memorandum, 43 a machine copy of the certificate of candidacy of Petitioner Alex L. David in the May 9, 1994 barangay elections, the authenticity of which was not denied by said petitioner. In said certificate of candidacy, he expressly stated under oath that he was announcing his "candidacy for the office of punong barangay for Barangay 77, Zone 7" of Kalookan City and that he was "eligible for said office." The Comelec also submitted as Annex "B" 44 to its said memorandum, a certified statement of the votes obtained by the candidates in said elections. If, as claimed by petitioners, the applicable law is RA 6679, then (1) Petitioner David should not have run and could not have been elected chairman of his barangay because under RA 6679, there was to be no direct election for the punong barangay; the kagawad candidate who obtained the highest number of votes was to be automatically elected barangay chairman; (2) thus, applying said law, the punong barangay should have been Ruben Magalona, who obtained the highest

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number of votes among the kagawads 150, which was much more than David's 112; (3) the electorate should have elected only seven kagawads and not one punong barangay plus seven kagawads. In other words, following petitioners' own theory, the election of Petitioner David as well as all the barangay chairmen of the two Liga petitioners was illegal. The sum total of these absurdities in petitioners' theory is that barangay officials are estopped from asking for any term other than that which they ran for and were elected to, under the law governing thie very claim to such offices: namely, RA 7160, the Local Government Code. Petitioners' belated claim of ignorance as to what law governed their election to office in 1994 is unacceptable because under Art. 3 of the Civil Code, "(i)gnorance of the law excuses no one from compliance therewith." Private Counsel/Lawyers for elective local officials Alinsug v. RTC and Mayor Ponseca (1993) Facts: Zonsayda Alinsug, had been a regular employee of the municipal government of Escalante, Negros Occidental, when she received a permanent appointment as Clerk III in the office of the Municipal Planning and Development Coordinator of the same municipality. Mayor Rolando Ponsica detailed her to the Office of the Mayor. On 19 June 1992, Zonsayda absented herself from work allegedly to attend to family matters. She had asked permission from the personnel officer but not from the mayor. Mayor Ponsica issued Office Order No. 31, suspending Zonsayda for one month and one day commencing on 24 June 1992 for "a simple misconduct which can also be categorized as an act of insubordination." The order also stated that the suspension "carries with it forfeiture of benefits such as salary and PERA and leave credits during the duration of its effectivity." Zonsayda filed with the RTC a petition for injunction with damages. She alleged that her suspension was an act of political vendetta. Mayor Ponsica, through private practitioner Samuel SM Lezama, claimed that Zonsayda had not yet exhausted administrative remedies and that her suspension was in accordance with law. The foregoing elicited a motion from the petitioner, praying that the answer be disregarded and expunged from the record, and that the respondents be all declared in default on the ground that since the respondents were sued in their official capacities, "not including their private capacities," they should have been represented by either the municipal legal officer or the provincial legal officer or prosecutor as provided for by Sec. 481 (b) (i) and (3) of the Local Government Code. It also cited Sec. 1 of Rep. Act No. 10 and Art. 177 of the RPC which penalizes usurpation of public authority. The respondents opposed the motion. Manifesting that the municipality of Escalante has no legal officer, they asserted that both the Local Government Code and the Administrative Code of 1987 do not have any provision "relative to the duty of any provincial legal officer or prosecutor to represent a municipality or its officials in suits filed against them by an employee or a private individual." They contended that it was "unnecessary to provide such a provision because there (exist) administrative and judicial rulings sustaining the validity of the employment of a private counsel by municipal officials. The lower court issued the Order denying the motion on the thesis that since the appointment of a legal officer was optional on the part of the municipal government (Art. 481, third paragraph, Local Government Code) and the municipality of Escalante had not, in fact, designated any such legal officer, petitioner's move to declare respondents in default "for having retained a private counsel" was not thereby legally sustainable. Issue: WON a private counsel may represent municipal officials sued in their official capacities Ratio: It appears that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in the ruling in De Guia v. The Auditor General where the Court held that the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and

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when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise. Thereafter, in Ramos v. Court of Appeals, the Court ruled that a municipality may not be represented by a private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the fiscal, as such representation was violative Sec. 1683 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that "the municipality should not be burdened with expenses of hiring a private lawyer" and that "the interests of the municipality would be best protected if a government lawyer handles its litigations." But would these proscriptions include public officials? Not necessarily. It can happen that a government official, ostensibly acting in his official capacity and sued in that capacity, is later held to have exceeded his authority. On the one hand, his defense would have then been underwritten by the people's money which ordinarily should have been his personal expense. On the other hand, personal liability can attach to him without, however, his having had the benefit of assistance of a counsel of his own choice. In Correa v. CFI of Bulacan, 10 the Court held that in the discharge of governmental functions, "municipal corporations are responsible for the acts of its officers, except if and when, the only to the extent that, they have acted by authority of the law, and in conformity with the requirements thereof." In such instance, this Court has sanctioned that representation by private counsel. In one case, We held that where rigid adherence to the law on representation of local officials in court actions could deprive a party of his right to redress for a valid grievance, the hiring of a private counsel would be proper. And, in Albuera v. Torres, this Court also said that a provincial governor sued in his official capacity may engage the services of private counsel when "the complaint contains other allegations and a prayer for moral damages, which, if due from the defendants, must be satisfied by them in their private capacity." The key then to resolving the issue of whether a local government official may secure the services of private counsel, in an action filed against him in his official capacity, lies on the nature of the action and the relief that is sought. While the petition below was filed against respondents as public officials, its allegations were also aimed at questioning certain acts that can well bring the case beyond the mere confines of official functions; thus 2.12 These actuations of the respondent mayor in detailing petitioner to his office and eventually suspending her from work, particularly the latter are no doubt respondent mayor's political vendetta of petitioner, a vengeance unleased on her for her children's and family's not going with and voting for him in the May 11, 1992 election and instead supporting the candidacy of their relative-candidate (Mr. Barcelona) in said election, who was his greated (sic) worry at that time. 2.13 The aforesaid acts of respondent mayor are clearly, apparently and obviously a political harassment and persecution, appreasive (sic), acts of vindictiveness, a grave abuse of executive discretion, despotic, unjust, unwarranted, condemnable and actionable; the indefinite detail order and, especially the suspension, were not done in good faith, not for a valid cause, and done without giving petitioner opportunity to be heard, hence, null and void for being violative of petitioner's legal and constitutional right to due process. . The petition then went on to claim moral and exemplary damages, as well as litigation expenses, as shown by its prayer. Moral damages cannot generally be awarded unless they are the proximate result of a wrongful act or omission. Exemplary damages, on the other hand, are not awarded if the defendant had not acted in a wanton, oppressive or malevolent manner nor in the absence of gross or reckless negligence. A public official, who in the performance of his duty acts in such fashion, does so in excess of authority, and his actions would be ultra vires that can thereby result in an incurrence of personal liability. Municipality of Pililia, Rizal v. CA (1994) Facts: The RTC rendered judgment in favor of petitioner Municipality of Pililla, Rizal, against private respondent Philippine Petroleum Corporation, ordering therein defendant to pay said plaintiff (1) the amount of P5,301,385.00 representing the tax on business due from the defendant under Section 9(A) of Municipal Tax Ordinance No. 1 of said municipality for the period from 1979 to 1983. The SC affirmed the judgment with modification . Atty. Felix E. Mendiola filed a motion in behalf of plaintiff municipality with the RTC for the examination of defendant corporation's gross sales for the years 1976 to 1978 and 1984 to 1991 for the purpose of computing the tax on business imposed under the Local Tax Code, as amended. The corporation filed a manifestation to the effect that the mayor already received the sum as

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evidenced by the release and quitclaim documents executed by said mayor. The court below issued an order denying plaintiff municipality's motion for examination and execution of judgment on the ground that the judgment in question had already been satisfied. When Atty. Mendiola ffiled a petition for certiorari with the SC, PPC filed a motion questioning Atty. Mendiola's authority to represent petitioner municipality. The CA dismissed the petition for having been filed by a private counsel in violation of law and jurisprudence, but without prejudice to the filing of a similar petition by the Municipality of Pililla through the proper provincial or municipal legal officer. Issue: WON Atty. Mendiola has authority to file a petition in behalf of the municipality Held: No Ratio: The Court of Appeals is correct in holding that Atty. Mendiola has no authority to file a petition in behalf of and in the name of the Municipality of Pililla. The matter of representation of a municipality by a private attorney has been settled in Ramos vs. Court of Appeals, et al., and reiterated in Province of Cebu vs. Intermediate Appellate Court, et al., where we ruled that private attorneys cannot represent a province or municipality in lawsuits. Under the above provision, complemented by Section 3, Republic Act No. 2264, the Local Autonomy Law, only the provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law. The submission of Atty. Mendiola that the exception is broad enough to include situations wherein the provincial fiscal refuses to handle the case cannot be sustained. The fiscal's refusal to represent the municipality is not a legal justification for employing the services of private counsel. Unlike a practicing lawyer who has the right to decline employment, a fiscal cannot refuse to perform his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special attorney, the municipal council should request the Secretary of Justice to appoint an acting provincial fiscal in place of the provincial fiscal who has declined to handle and prosecute its case in court, pursuant to Section 1679 of the Revised Administrative Code. It is also significant that the lack of authority of herein counsel, Atty. Mendiola, was even raised by the municipality itself in its comment and opposition to said counsel's motion for execution of his lien, which was filed with the court a quo by the office of the Provincial Prosecutor of Rizal in behalf of said municipality. The contention of Atty. Mendiola that private respondent cannot raise for the first time on appeal his lack of authority to represent the municipality is untenable. The legality of his representation can be questioned at any stage of the proceedings. In the cases hereinbefore cited, the issue of lack of authority of private counsel to represent a municipality was only raised for the first time in the proceedings for the collection of attorney's fees for services rendered in the particular case, after the decision in that case had become final and executory and/or had been duly executed. Furthermore, even assuming that the representation of the municipality by Atty. Mendiola was duly authorized, said authority is deemed to have been revoked by the municipality when the latter, through the municipal mayor and without said counsel's participation, entered into a compromise agreement with herein private respondent with regard to the execution of the judgment in its favor and thereafter filed personally with the court below two pleadings entitled and constitutive of a "Satisfaction of Judgment" and a "Release and Quitclaim". A client, by appearing personally and presenting a motion by himself, is considered to have impliedly dismissed his lawyer. Herein counsel cannot pretend to be authorized to continue representing the municipality since the latter is entitled to dispense with his services at any time. Both at common law and under Section 26, Rule 138 of the Rules of Court, a client may dismiss his lawyer at any time or at any stage of the proceedings, and there is nothing to prevent a litigant from appearing before the court to conduct his own litigation. The client has also an undoubted right to compromise a suit without the intervention of his lawyer. 22 Even the lawyers' right to fees from their clients may not be invoked by the lawyers themselves

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as a ground for disapproving or holding in abeyance the approval of a compromise agreement. The lawyers concerned can enforce their rights in the proper court in an appropriate proceeding in accordance with the Rules of Court, but said rights may not be used to prevent the approval of the compromise agreement. The apprehension of herein counsel that it is impossible that the municipality will file a similar petition, considering that the mayor who controls its legislative body will not take the initiative, is not only conjectural but without factual basis. Contrary to his pretensions, there is presently a manifestation and motion pending with the trial court filed by the aforesaid municipal mayor for the withdrawal of the "Satisfaction of Judgment" and the "Release and Quitclaim" 24 previously filed in the case therein as earlier mentioned. Ramos v. CA (1997) Facts: On April 18, 1990, petitioners filed a petition before the court a quo for the Declaration of Nullity of Municipal Ordinances No. 91 (1976) and No. 7 (1990) and the contract of lease over a commercial arcade to be constructed in the municipality of Baliuag, Bulacan. Meanwhile, the provincial Fiscal and the Provincial Attorney, Oliviano D. Regalado, filed an Answer on behalf of respondent municipality. At the pre-trial conference, Atty. Roberto B. Romanillos appeared, manifesting that he was counsel for the municipality. On the same date, Atty. Romanillos filed a motion to dissolve injunction and a motion to admit an Amended Answer with motion to dismiss. The provincial attorney appeared as collaborating counsel of Atty. Romanillos. The Provincial Fiscal did not appear. It was Atty. Romanillos who submitted the Reply to petitioners' Opposition to respondents' motion to dissolve injunction. It was also Atty. Romanillos who submitted a written formal offer of evidence for the municipality. Despite the hearing, petitioners questioned the personality of Atty Romanillos to appear as counsel of the municipality. Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint stating that Atty. Romanillos was withdrawing as counsel for respondent municipality and that Atty. Regalado, as his collaborating counsel for respondent municipality, is adopting the entire proceedings participated in/undertaken by Atty. Romanillos. The judge denied the petitioners motion to disqualify. Issue: Who is Authorized to Representa Municipality in its Lawsuits? Ratio: In the recent case of Municipality of Pililla, Rizal vs. CA, this Court, through Mr. Justice Florenz D. Regalado, set in clear-cut terms the answer to the question of who may legally represent a municipality in a suit for or against it, thus: . . . The matter of representation of a municipality by a private attorney has been settled in Ramos vs. CA, et al., and reiterated in Province of Cebu vs. IAC, et al., where we ruled that private attorneys cannot represent a province or municipality in lawsuits. Section 1683 of the Revised Administrative Code provides: Sec. 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation. The provincial fiscal shall represent the province and any municipality or municipal district thereof in any court, except in cases whereof (sic) original jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in question is a party adverse to the provincial government or to some other municipality or municipal district in the same province. When the interests of a provincial government and of any political division thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is disqualified to serve any municipality or other political subdivision of a province a special attorney may be employed by its council. Under the above provision, complemented by Section 3, RA 2264, the Local Autonomy Law, only provincial fiscal and the municipal attorney can represent a province or municipality in their lawsuits. The provision is mandatory. The municipality's authority to employ a private lawyer is expressly limited only to situations where the provincial fiscal is disqualified to represent it. For the aforementioned exception to apply, the fact that the provincial fiscal was disqualified to handle the municipality's case must appear on record. In the instant case, there is nothing in the records to show that the provincial fiscal is disqualified to act as counsel for the Municipality of Pililla on appeal, hence the appearance of herein private counsel is without authority of law. The provincial fiscal's functions as legal officer and adviser for the civil cases of a province and corollarily, of the municipalities thereof, were subsequently transferred to the provincial attorney. The foregoing provisions of law and jurisprudence show that only the provincial fiscal, provincial attorney, and municipal attorney should represent a municipality in its lawsuits. Only in exceptional instances may a private attorney be hired by a municipality to represent it in lawsuits.

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These exceptions are enumerated in the case of Alinsug vs. RTC Br. 58, San Carlos City, Negros Occidental, to wit: Indeed, it appears that the law allows a private counsel to be hired by a municipality only when the municipality is an adverse party in a case involving the provincial government or another municipality or city within the province. This provision has its apparent origin in the ruling in De Guia v. The Auditor General where the Court held that the municipality's authority to employ a private attorney is expressly limited only to situations where the provincial fiscal would be disqualified to serve and represent it. With Sec. 1683 of the old Administrative Code as legal basis, the Court therein cited Enriquez, Sr. v. Gimenez which enumerated instances when the provincial fiscal is disqualified to represent in court a particular municipality; if and when original jurisdiction of case involving the municipality is vested in the Supreme Court, when the municipality is a party adverse to the provincial government or to some other municipality in the same province, and when, in a case involving the municipality, he, or his wife, or child, is pecuniarily involved, as heir legatee, creditor or otherwise. Thereafter, in Ramos vs. CA, the Court ruled that a municipality may not be represented by a private law firm which had volunteered its services gratis, in collaboration with the municipal attorney and the fiscal, as such representations was violative of Sec. 1683 of the old Administrative Code. This strict coherence to the letter of the law appears to have been dictated by the fact that "the municipality should not be burdened with expenses of hiring a private lawyer" and that the interests of the municipality would be best protected if a government lawyer handles its litigations. None of the foregoing exceptions is present in this case. It may be said that Atty. Romanillos appeared for respondent municipality inasmuch as he was already counsel of Kristi Corporation which was sued with respondent municipality in this same case. The order of the trial court dated September 19, 1990, stated that Atty. Romanillos "entered his appearance as collaborating counsel of the provincial prosecutor and the provincial attorney." This collaboration is contrary to law and hence should not have been recognized as legal. It has already been ruled in this wise: The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm does not legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M. While a private prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil cases wherein a municipality is the plaintiff. As already stated, private lawyers may not represent municipalities on their own. Neither may they do so even in collaboration with authorized government lawyers. This is anchored on the principle that only accountable public officers may act for and in behalf of public entities and that public funds should not be expanded to hire private lawyers. Petitioners cannot be held in estoppel for questioning the legality of the appearance of Atty. Romanillos, notwithstanding that they questioned the witnesses of respondent municipality during the hearing of its motion to dissolve the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals held that the legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings. Elementary fairness dictates that parties unaware of the unauthorized representation should not be held in estoppel just because they did not question on the spot the authority of the counsel for the municipality. The rule on appearances of a lawyers is that until the contrary is clearly shown, an attorney is presumed to be acting under authority of the litigant whom he purports to represent. His authority to appear for and represent petitioner in litigation, not having been questioned in the lower court, it will be presumed on appeal that counsel was properly authorized to file the complaint and appear for his client. Issue: Would the adoption by Atty. Regalado of the proceedings participated in by Atty. Romanillos validate such proceedings? Held: Yes Ratio: It does not appear that the adoption of proceedings participated in or undertaken by Atty. Romanillos when he was private counsel for the respondent municipality of Baliuag such as the proceedings on the motion to dissolve the injunction, wherein petitioners had even cross-examined the witnesses presented by Atty. Romanillos in support of said motion and had even started to present their witnesses to sustain their objection to the motion would have resulted in any substantial prejudice to petitioners' interest. As Wee see it, to declare the said proceedings null and void notwithstanding the formal adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan in court and to require trial anew to cover the same subject matter, to hear the same

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witnesses and to admit the same evidence adduced by the same parties cannot enhance the promotion of justice. This Court believes that conferring legitimacy to the appearance of Atty. Romanillos would not cause substantial prejudice on petitioners. Requiring new trial on the mere legal technicality that the municipality was not represented by a legally authorized counsel would not serve the interest of justice. After all, this Court does not see any injustice committed against petitioners by the adoptions of the work of private counsel nor any interest of justice being served by requiring retrial of the case by the duly authorized legal representative of the town. In sum, although a municipality may not hire a private lawyer to represent it in litigations, in the interest of substantial justice however, we hold that a municipality may adopt the work already performed in good faith by such private lawyer, which work is beneficial to it (1) provided that no injustice it thereby heaped on the adverse party and (2) provided further that no compensation in any guise is paid therefor by said municipality to the private lawyer. Unless so expressly adopted, the private lawyers work cannot bind the municipality. Issue: WON Joint Motion Need Not Comply with Rule 15 Held: Yes Ratio: We also agree with the justification of public respondent than a motion to withdraw the appearance of an unauthorized lawyer is a non-adversarial motion that need not comply with Section 4 Rule 15 as to notice to the adverse party. The disqualification of Atty. Romanillos was what petitioners were really praying for when they questioned his authority to appear for the municipality. The disqualification was granted, thereby serving the relief prayed for by petitioners. such being the case, no "notice directed to the parties concerned and served at least 3 days before the hearing thereof" 30 need be given petitioners, the questioned motion not being contentious. Besides, what petitioners were questioning as to lack of authority was remedied by the adoption of proceedings by an authorized counsel, Atty. Regalado. The action of the trial court allowing the motion of respondent municipality effectively granted petitioners motion to disqualify Atty. Romanillos. In People vs. Leviste, we ruled that: While it is true any motion that does not comply with the requirements of Rule 15 should not be accepted for filing and, if filed, is not entitled to judicial cognizance, this Court has likewise held that where a rigid application of the rule will result in a manifest failure or miscarriage of justice, technicalities may be disregarded in order to resolve the case. Litigations should, as much as possible, be decided on the merits and not on technicalities. As this Court held in Galvez vs. Court of Appeals, "an order of the court granting the motion to dismiss despite the absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings . . . which cannot deprive a competent court of jurisdiction over the case." It should be remembered that rules of procedure are but tools designed to facilitate the attainment of justice, such that when rigid application of the rules tend to frustrate rather than promote substantial justice, this Court is empowered to suspend their operation. Salalima v. Guingona 257 SCRA 55 (1996) Facts: This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7, 380, 410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorneys fees. Issue: WON respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant

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to said agreement for purposes of the case filed by NPC with the Supreme Court against the Province. Held: Yes Ratio: Sec. 481 of the Local Government Code (R.A. No. 7160) requires the appointment of a legal officer for the province whose functions include the following: Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party. The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, that local government units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them. This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the case of Municipality of Bocaue, et al. v. Manotok. In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court. qMoreover, the entire transaction was attended by irregularities. First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2 April 1986. The respondents attempted to dispute this finding by presenting the Solicitor Generals conformity dated 15 July 1993. This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 86-255 is a prior written conformity and acquiescence of the Solicitor General. Another irregularity in the transaction concerns the lawyers. Resolution No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retained contract itself. In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90. Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the Supreme Court case. Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm. Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479. Finally, the attorneys fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable. The contingent fee of 18% of the P2l4 million claim of the Province against NPC amounts to P38.5 million. The word unconscionable, as applied to attorneys fee, means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him. The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPCs petition against the Province. The comment filed by Atty. Ricafort already covers the basic issues raised in the petition. When Atty. Cornago filed an appearance and subsequently a memorandum for the

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Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million. Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College. It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record. Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorneys fee of P38.5 million is unconscionable. By allowing such scandalously exorbitant attorneys fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority. Disciplinary Actions Ganzon v. CA (1991), supra. Facts: DLG Secretary issued against Mayor Ganzon 3 separate orders of 60-day preventive suspensions dated Aug11 1988, Oct11 1988, and May3 1990. A fourth order was issued on July3, 1991. On August 5, 1991, SC issued order that the first 3 suspensions are affirmed provided that Ganzon may not be made to serve future suspensions on account of any of the remaining admin charges against him. Ganzon filed a petition for mandamus with "manifestation and compliance," alleging that he had already fully served the suspension orders issued against him, in compliance with the August 5 SC Order, and that he should be allowed to re-assume his office starting September 4 1991. Held: Simultaneous service of the 3rd and 4th orders of suspension can be allowed Under the bizarre circumstances of CAB, It would work in favor of Ganzon, an elective official, and it presumably will favor the local constituency and certainly lessen if not offset the harsh effects of whatever motive may be behind the intriguing action of DLG Sec in issuing the successive suspension orders especially when he could have pursued a consolidated effort. SC takes judicial notice of recently-approved LGC which provides, under Sec63 as to imposition of preventive suspensions, that Sec63 (b). . . that, any single preventive suspension of local elective official shall not extend beyond sixty (60) days: Provided, further that in the event that several administrative cases are filed against an elective official, he cannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known at the time of the first suspension." Espiritu v. Melgar (1992) Facts: Ramir Garing filed a sworn letter-complaint with Secretary Luis Santos of DILG charging Mayor Nelson Melgar of Naujan. Oriental Mindoro, with grave misconduct, oppression. abuse of authority, culpable violation of the Constitution and conduct prejudicial to the best interest of the public service. Melgar allegedly assaulted Garing and ordered his arrest and detention in the municipal jail of Naujan without filing any charges until his released the following day. An identical letter complaint was filed by Garing with Provincial Governor of Oriental Mindoro Benjamin Espiritu, accusing Melgar of the same violations.A third complaint filed by Garing with the Presidential Action Center, OP. Mayor Melgar submitted his answer wherein he said that while he was delivering a speech during a graduation ceremony, Garing suddenly clapped causing disturbance on the part of the audience. When the Mayor ended his speech, he instructed a policeman to investigate Garing. It appeared that Garing was drunk. The mayor also presented medical certificate proving that Garing was not hurt. A balison was then taken from Garing. The mayor informed Garing to go home (he had sobered up), but he refused to go and only did so the following morning.

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The Sangguniang Panlalawigan of Oriental Mindoro passed Resolution No 55, recommending to the Provincial Governor that the Mayor be preventively suspended for 45 days pending the investigation of the administrative complaint. When the mayor received the order of suspension, he filed a "Petition for Certiorari with Preliminary Injunction with prayer for Restraining Order" in the RTC of Oriental Mindoro alleging that "the order of suspension was an arrogant, despotic and arbitrary abuse of power" by the Governor. The RTC judge issued a writ of preliminary injunction enjoining Governor Espiritu from implementing the Order of suspension against Mayor Melgar On appeal, petitioner contends that the trial judge erred in granting the preliminary injunction since the Governor is empowered under Sec 63 LGC to place an elective municipal official under preventive suspension pending decision of an administrative case against the elective municipal official. Also, under Sec 61 LGC, the Sangguniang Panlalawigan has jurisdiction over the complaints against any municipal official, while Section 19(c) of the Judiciary Reorganization Act of 1930 withdrew from RTCs jurisdictions over such cases. Also, the mayor has a remedy of appeal under Sec 66 LGC. Issue: WON the governor has the power to suspend the mayor Held: Yes Ratio: Under Section 63 LGC, the provincial governor of Oriental Mindoro is authorized by law to preventively suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of the following grounds were shown to exist: When there is reasonable ground to believe that the respondent has committed the act or acts complained of; When the evidence of culpability is strong; When the gravity of the offense so warrants; or When 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. There is nothing improper in suspending an officer before the charges against him are heard and before he is given an opportunity to prove his innocence. Preventive suspension is allowed so that the respondent may not hamper the normal course of the investigation through the use of his influence and authority over possible witnesses. Since the mayor believed that his preventive suspension was unjustified and politically motivated, he should have sought relief first from the Secretary of DILG, not from the courts. Mayor Melgar's direct recourse to the courts without exhausting administrative remedies was premature. The RTC had no jurisdiction over Special Civil Action No. R-5003 and gravely abused its discretion in refusing to dismiss the case. There may exist honest differences of opinion with regard to the seriousness of the charges, or as to whether they warrant disciplinary action. However, as a general rule, the office or body that is invested with the power of removal or suspension should be the sole judge of the necessity and sufficiency of the cause. So, unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard for the principle of separation of powers demand that the action of said officer or body should be left undisturbed. However, in this particular case. since the 60-day preventive suspension of Mayor Melgar was maintained by the Temporary Restraining Order which we issued on August 6, 1991, and therefore has already been served, he is deemed reinstated in office without prejudice to the continuation of the administrative investigation of the charges against him. Aguinaldo v. Santos (1992) Facts: Petitioner was the duly elected Governor of the province of Cagayan. Shortly after the December 1989 coup d'etat was crushed, the Secretary of Local Government sent a telegram and a letter, to petitioner requiring him to show cause why he should not be suspended or removed from office for disloyalty to the Republic, within forty-eight (48) hours from receipt thereof. A sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by Veronico Agatep, Manuel Mamba and Orlino Agatep, the mayors of the municipalities of Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the latter committed during the coup. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution, though he admitted that he was sympathetic to the cause of the rebel soldiers. The Secretary suspended petitioner from office for 60 days from notice, pending the outcome of the formal investigation. During the hearing, petitioner did not present any evidence and instead

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moved that the Secretary inhibit himself, which motion was denied. Later, the Secretary rendered a decision finding petition guilty as charged and ordering his removal from office. The Vice Governor, Melvin Vargas was installed as Governor. In this appeal, the power of the Secretary to suspend officials was repealed by the 1987 Constitution and that the act of disloyalty committed by petitioner was not proven beyond reasonable doubt. While the case was pending before the SC, petitioner filed his certificate of candidacy for the position of Governor of Cagayan. Three petitions for disqualification were filed against him on the ground that he had been removed from office. The Comelec granted the petition. Later, this was reversed on the ground that the decision of the Secretary has not yet attained finality and is still pending review with the Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual proclamation as Governor of Cagayan. Issue: WON the Secretary has the power to suspend or remove local government officials as alter ego of the President Held: Yes Ratio: Petitioner's re-election to the position of Governor of Cagayan has rendered the administrative case pending before Us moot and academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al: the reelection to office operates as a condonation of the officer's misconduct to the extent of cutting off the right to remove him therefor. The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct, to practically overrule the will of the people. Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup. The power of respondent Secretary to remove local government of officials is anchored on both the Constitution and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the acts of the President unless expressly rejected by him. 4 The statutory grant found in B.P. Blg. 337 itself has constitutional roots, having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2. A similar provision is found in Section 3, Article X of the 1987 Constitution. Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said that BP337 was repealed by the effectivity of the present Constitution. Moreover, in Bagabuyo et al. v. Davide, Jr., BP 337 remained in force despite the effectivity of the Constitution, until such time as the proposed Local Government Code of 1991 is approved. The power of he Secretary of the DILG to remove local elective government officials is found in Secs. 60 and 61 of BP 337. As to petitioner's argument of the want of authority of the Secretary to appoint Melvin Vargas as Governor, We need but point to Section 48 (1) of B.P. Blg. 337 to show the fallacy of the same. Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized under Article 137 of the RPC. Petitioner is not being prosecuted criminally under the provisions of the RPC, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence.

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Reyes v. COMELEC (1996) Facts: G.R. No. 120905. Renato Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro. An administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, that petitioner exacted and collected P50,000,00 from each market stall holder in the Bongabong Public Market. Also, that certain checks issued to him by the National Reconciliation and Development Program of the DILG were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took 27 heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months. The Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office. Petitioner filed a petition for certiorari, prohibition and injunction with the RTC of Oriental Mindoro. Later, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito Reyes, issued an order for petitioner to vacate the position of mayor and peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused. Meanwhile, petitioner filed a certificate of candidacy wit the Comelec. Rogelio de Castro sought the disqualification of petitioner as candidate for mayor, citing the LGC. The Comelec canceled petitioners certificate of candidacy. However, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the dulyelected mayor. The Comelec en banc affirmed. Invoking the ruling in the case of Aguinaldo v. Santos, petitioner argues that his election on May 8, 1995 is a bar to his disqualification. G.R. No. 120940. Julius Garcia, who obtained the highest number of votes next to Reyes intervened, contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro. The Comelec en banc denied Garcias prayer since a candidate who obtains the second highest number of votes in an election cannot be declared winner Issue: WON the decision of the Sangguniang Panlalawigan is not yet final because he has not been served a copy thereof. Held: No Ratio: The failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it. Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for certiorari in the RTC was pending. His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision. The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final. Petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, 67. But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner. The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. In the case at bar, although a temporary restraining

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order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner. Issue: WON petitioners reelection rendered the administrative charges against him moot and academic Held: No Ratio: The case at bar is the very opposite of Aguinaldo vs Comelec. Here, although Reyes brought an action to question the decision in the administrative case, the TRO issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to the Office of the President. He was thus validly removed from office and, pursuant to 40(b) of the LGC, he was disqualified from running for reelection. It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to 40(b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. R.A. No. 7160 could not be given retroactive effect. Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved. All in all, herein Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution). Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election. Issue: WON Julius Garcia should be declared mayor in view of the disqualification of Renato Reyes Held: No Ratio: That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, 6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections.

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Hagad v. Gozo-Dadole (1995) Facts: Criminal and administrative complaints were filed against respondents (Mayor Alfredo Ouano, Vice-Mayor Paterno Caete and Sangguniang Panlungsod Member Rafael Mayol, all public officials of Mandaue City, by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede) by Mandaue City Councilors Magno B. Dionson and Gaudiosa O. Bercede with the Office of the Deputy Ombudsman for the Visayas. The respondents were charged with having violated R.A No. 3019, as amended; Articles 170 and 171 RPC; and R.A. No. 6713. Councilors Dionson and Bercede averred that respondent officials, acting in conspiracy, had caused the alteration and/or falsification of Ordinance No. 018/92 by increasing the allocated appropriation therein from P3,494,364.57 to P7M without authority from the Sangguniang Panlungsod of Mandaue City. Aside from opposing the motion for preventive suspension, respondent officials prayed for the dismissal of the complaint on the ground that the Ombudsman supposedly was bereft of jurisdiction to try, hear and decide the administrative case filed against them since, under Section 63 LGC, the power to investigate and impose administrative sanctions against said local officials, as well as to effect their preventive suspension, had now been vested with the Office of the President. Dionson and Bercede argued that the LGC could not have repealed, abrogated or otherwise modified the pertinent provisions of the Constitution granting to the Ombudsman the power to investigate cases against all public officials and that, in any case, the power of the Ombudsman to investigate local officials under the Ombudsman Act had remained unaffected by the provisions of the Local Government Code of 1991. The Office of the Deputy Ombudsman denied the motion to dismiss and recommended the preventive suspension of respondent officials, except City Budget Officer Pedro M. Guido, until the administrative case would have been finally resolved by the Ombudsman. A petition for prohibition, with prayer for a writ of preliminary injunction and temporary restraining order, was filed by respondent officials with the RTC. Acting favorably on the pleas of petitioning officials, respondent Judge issued a restraining order directed at petitioner, enjoining him from enforcing and/or implementing the questioned order of preventive suspension issued in OMB-VIS-ADM-92-015. Issue: WON the Ombudsman has jurisdiction over the case Held: Yes Ratio: The general investigatory power of the Ombudsman is decreed by Section 13(1,) Article X1, of the 1987 Constitution, while his statutory mandate to act on administrative complaints is contained in Section 19 of R.A. No. 6770. Section 21 of the same statute names the officials who could be subject to the disciplinary authority of the Ombudsman. Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus contends that the Office of the Ombudsman correspondingly has the authority to decree preventive suspension on any public officer or employee under investigation by it. Respondent officials, upon the other hand, argue that the disciplinary authority of the Ombudsman over local officials must be deemed to have been removed by the subsequent enactment of the Local Government Code of 1991 which vests the authority to investigate administrative charges, listed under Section 60 thereof, on various offices In the case specifically of complaints against elective officials of provinces and highly urbanized cities. Thus, respondents insist, conformably with Section 63 of the Local Government Code, preventive suspension can only be imposed by: ". . . the President if the respondent is an elective official of a province, a highly urbanized or an independent component city; . . ." There is nothing in the LGC to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that courts must generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus esf optimus interpretendi, i e, every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting

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statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. Certainly, Congress would not have intended to do injustice to the very reason that underlies the creation of the Ombudsman in the 1987 Constitution which "is to insulate said office from the long tentacles of officialdom." Quite interestingly, Sections 61 and 63 of the present Local Government Code run almost parallel with the provisions then existing under the old code. The authority to conduct administrative investigation and to impose preventive suspension over elective provincial or city officials was at that time entrusted to the Minister of Local Government until it became concurrent with the Ombudsman upon the enactment of R.A No. 6770, specifically under Sections 21 and 24 thereof, to the extent of the common grant The Local Government Code of 1991 (R.A No. 7160), in fine, did not effect a change from what already prevailed, the modification being only in the substitution of the Secretary (the Minister) of Local Government by the Office of the President. Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act is much too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintain its application. The two provisions govern differently. In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly, oppression or grave misconduct or neglect in the performance of duty; (b) that charges should warrant removal from the service; or (c) the respondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventive suspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any time after the 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 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. The contention is without merit. The records reveal that petitioner issued the order of preventive suspension after the filing (a) by respondent officials of their opposition on the motion for preventive suspension and (b) by Mayor Ouano of his memorandum in compliance with the directive of petitioner Be that, as it may, we have heretofore held that, not being in the nature of a penalty, a preventive suspension can be decreed on an official under investigation after charges are brought and even before the charges are heard. Naturally, such a preventive suspension would occur prior to any finding of guilt or innocence. Moreover, respondent officials were, in point of fact, put on preventive suspension only after petitioner had found, in consonance with our ruling in Buenaseda vs. Flavier, that the evidence of guilt was strong. Finally, it does appear, as so pointed out by the Solicitor General that respondent officials' petition for prohibition, being an application for remedy against the findings of petitioner contained in his 21 September 1992 order, should not have been entertained by the trial court. Salalima v. Guingona (1996), supra. In Salalima v. Guingona, Jr., the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the LGC. It further invalidated Article 125, Rule XIX of IRR. The Court nullified the rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the disciplining authority the power to remove elective officials, a power which the law itself granted only to the proper courts. Grego v. COMELEC 274 SCRA 481 (1997) Facts: On October 31, 1981, Basco was removed from his position as Deputy Sheriff by the Court Court upon a finding of serious misconduct in an administrative complaint lodged by Nena Tordesillas. Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the 1988, local elections. He won and, accordingly, assumed office. After his term, he sought reelection in the 1992 election. He again won. However, a case for quo warranto was filed by Cenon Ronquillo (Candidate for councilor), who alleged Basco's ineligibility to

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be elected councilor on the basis of the Tordesillas ruling. Other complaints were filed before the Office of the Ombudsman and in the DILG. In 1995, Basco ran again for councilor. William Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila's Second District. The Manila BOC however proclaimed Basco as a duly elected councilor of the Second District of Manila. In view of the proclamation, Grego filed an urgent motion seeking to annul the illegal proclamation. The Comelec dismissed the petition for disqualification ruling that the administrative penalty imposed by the SC on Basco was wiped away and condoned by the electorate who elected him. Issue: WON Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992 Held: No Ratio: Petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal from office which took place in 1981. It is stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies. We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case." Issue: WON private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office Ratio: At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length. Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover without distinction both appointive and local positions merit any consideration. Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective position. (And with prejudice to reinstatement..) In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointive position. In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position.

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Issue: WON private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC is void ab initio? Ratio: The inapplicability of RA 7166 Section 20(i) to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate. RA 6646 Section 6 does not support petitioner's contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion. Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used instead the word "shall" in its rules. Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case. Issue: WON Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate Held: No Ratio: Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, where we laid down a possible exception to the rule that a second placer may not be declared the winning candidate, finds no application in this case. The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification. In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second District of Manila. Joson v. Executive Secretary Torres 290 SCRA 279 (1998) Facts: Oscar C. Tinio is the Vice-Governor of Nueva Ecija while Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C. Santos, Vicente C. Palilio and Napoleon G. Interior are members of the Sangguniang Panlalawigan. The private respondents filed with the Office of the President a complaint charging Governor Eduardo Joson with grave misconduct and abuse of authority. Allegedly, Joson belligerently barged into the Hall and angrily kicked the door and chairs in the

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Hall and uttered threatening words at private respondents during a scheduled session. Private respondents claim that this incident was an offshoot of their resistance to a pending legislative measure supported by petitioner that Nueva Ecija obtain a loan of P150 million from the PNB. Josons acts were intended to harass them into approving this loan, which private respondents opposed the loan because the province had an unliquidated obligation of more than P70 million incurred without prior authorization from the Sangguniang Panlalawigan. Private respondents prayed for the suspension or removal of petitioner; for an emergency audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in light of the financial condition of the province, Joson failed to file his answer despite numerous grant of extension. Thus, DILG Undersecretary Manuel Sanchez issued an order declaring Joson in default. Later, Joson, thru counsel, filed a Motion to Dismiss alleging that the letter complaint was not verified and that the DILG has no jurisdiction over the case and has no authority to require him to answer the complaint. Executive Secretary Torres issued an order placing Joson under preventive suspension for 60 days pending investigation of the charges against him. Also, the Motion to Dismiss was denied. Secretary Barbers directed the PNP to assist the implementation of the order of preventive suspension. Also, Vice Governor Oscar Tinio was appointed as Acting Governor. Joson filed a petition for certiorari and prohibition with the CA challenging the preventive suspension and default order. The CA dismissed the case. Joson claimed that there was nothing in his conduct that threatened the members of the Sangguniang Panlalawigan or caused alarm to the employees. He said that like Vice-Governor Tinio, he was always accompanied by his official security escorts whenever he reported for work. He also alleged that the joint affidavit of Elnora Escombien and Jacqueline Jane Perez was false. Escombien was purportedly not inside the session hall during the incident but was at her desk at the office and could not in any way have seen petitioner in the hall. Issue: WON the filing of a letter complaint before the Office of the President was proper Held: Yes Ratio: Administrative disciplinary proceedings against elective local officials are governed by the Local Government Code of 1991.In all matters not provided in A.O. No. 23, the Rules of Court and the Administrative Code of 1987 apply in a suppletory character. Section 60 of Chapter 4, Title II, Book I of the LGC enumerates the grounds for which an elective local official may be disciplined, suspended or removed from office. When an elective local official commits an act that falls under the grounds for disciplinary action, the administrative complaint against him must be verified and filed under Section 61. In the instant case, Joson is an elective official of the province of Nueva Ecija. The lettercomplaint against him was therefore properly filed with the Office of the President. According to petitioner, however, the letter-complaint failed to conform with the formal requirements set by the Code. He alleges that the complaint was not verified by private respondents and was not supported by the joint affidavit of the two witnesses named therein; that private respondents later realized these defects and surreptitiously inserted the verification and sworn statement while the complaint was still pending with the Office of the President. We find no merit in the contention of the petitioner. The absence of the document, page or book number of the notarial register of the subscribing officer is insufficient to prove petitioner's claim. The lack of these entries may constitute proof of neglect on the part of the subscribing officer in complying with the requirements for notarization and proper verification. They may give grounds for the revocation of his notarial commission. But they do not indubitably prove that the verification was inserted or intercalated after the letter-complaint was filed with the Office of the President. Nor is the fact of intercalation sufficiently established by the affidavit of Solita Santos. Santos was one of the signatories to the letter-complaint. In her affidavit, she prayed that she be dropped as one of the complainants since she had just joined the political party of Joson. She decided to reveal the intercalation because she was disillusioned with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner Joson. Santos cannot in any way be considered an unbiased witness. Her motive and change of heart render her affidavit suspect. Assuming, nonetheless, that the letter-complaint was unverified when submitted to the Office of the President, the defect was not fatal. The requirement of verification was deemed waived by the President himself when he acted on the complaint. Verification is a formal, not jurisdictional

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requisite. Verification is mainly intended to secure an assurance that the allegations therein made are done in good faith or are true and correct and not mere speculation. The lack of verification is a mere formal defect. The court may order the correction of the pleading, if not verified, or act on the unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that the ends of justice may be served. Issue: WON the DILG has jurisdiction over the case Held: Yes Ratio: The Disciplining Authority is the President of the Philippines, whether acting by himself or through the Executive Secretary. The Secretary of the Interior and Local Government is the Investigating Authority, who may act by himself or constitute an Investigating Committee. The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee. The power of the President over administrative disciplinary cases against elective local officials is derived from his power of general supervision over local governments. The power of supervision means "overseeing or the authority of an officer to see that the subordinate officers perform their duties. If the subordinate officers fail or neglect to fulfill their duties, the official may take such action or step as prescribed by law to make them perform their duties. The President's power of general supervision means no more than the power of ensuring that laws are faithfully executed, or that subordinate officers act within the law. Supervision is not incompatible with discipline. And the power to discipline and ensure that the laws be faithfully executed must be construed to authorize the President to order an investigation of the act or conduct of local officials when in his opinion the good of the public service so requires. The power to discipline evidently includes the power to investigate. As the Disciplining Authority, the President has the power derived from the Constitution itself to investigate complaints against local government officials. A. O. No. 23, however, delegates the power to investigate to the DILG or a Special Investigating Committee, as may be constituted by the Disciplining Authority. This is not undue delegation, contrary to Joson's claim. The President remains the Disciplining Authority. What is delegated is the power to investigate, not the power to discipline. Moreover, the power of the DILG to investigate administrative complaints is based on the alter-ego principle or the doctrine of qualified political agency. This doctrine is corollary to the control power of the President. Control is said to be the very heart of the power of the presidency. As head of the Executive Department, the President, however, may delegate some of his powers to the Cabinet members except when he is required by the Constitution to act in person or the exigencies of the situation demand that he acts personally. The members of Cabinet may act for and in behalf of the President in certain matters because the President cannot be expected to exercise his control (and supervisory) powers personally all the time. Each head of a department is, and must be, the President's alter ego in the matters of that department where the President is required by law to exercise authority. In the case at bar, petitioner claims that the DILG Secretary usurped the power of the President when he required petitioner to answer the complaint. Undisputably, the letter-complaint was filed with the Office of the President but it was the DILG Secretary who ordered petitioner to answer. Strictly applying the rules, the Office of the President did not comply with the provisions of A.O. No. 23. The Office should have first required petitioner to file his answer. Thereafter, the complaint and the answer should have been referred to the Investigating Authority for further proceedings. Be that as it may, this procedural lapse is not fatal. The filing of the answer is necessary merely to enable the President to make a preliminary assessment of the case. The President found the complaint sufficient in form and substance to warrant its further investigation. The judgment of the President on the matter is entitled to respect in the absence of grave abuse of discretion. Issue: WON Joson was properly placed under preventive suspension Held: Yes Ratio: In view of petitioner's inexcusable failure to file answer, the DILG did not err in recommending to the Disciplining Authority his preventive suspension during the investigation. Preventive suspension is authorized under Section 63 of the LGC. Preventive suspension may be

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imposed at any time after the issues are joined, that is, after respondent has answered the complaint, when the evidence of guilt is strong and, given the gravity of the offense, there is a great possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. The failure of respondent to file his answer despite several opportunities given him is construed as a waiver of his right to present evidence in his behalf. The requisite of joinder of issues is squarely met with respondent's waiver of right to submit his answer. The act of respondent in allegedly barging violently into the session hall of the Sangguniang Panlalawigan in the company of armed men constitutes grave misconduct. The allegations of complainants are bolstered by the jointaffidavit of two (2) employees of the Sangguniang Panlalawigan. Respondent who is the chief executive of the province is in a position to influence the witnesses. Further, the history of violent confrontational politics in the province dictates that extreme precautionary measures be taken.' Executive Secretary Torres found that all the requisites for the imposition of preventive suspension had been complied with. Petitioner's failure to file his answer despite several opportunities given him was construed as a waiver of his right to file answer and present evidence; and as a result of this waiver, the issues were deemed to have been joined. The Executive Secretary also found that the evidence of petitioner Joson's guilt was strong and that his continuance in office during the pendency of the case could influence the witnesses and pose a threat to the safety and integrity of the evidence against him. Issue: WON the Resolution finding Joson guilty and imposing on him the penalty of suspension from office for six months without pay was proper Held: Ratio: Settled is the rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied. The essence of due process is to be found in the reasonable opportunity to be heard and to submit evidence one may have in support of one's defense. To be heard does not only mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. Thus, when respondent failed to submit his position paper as directed and insisted for the conduct of formal investigation, he was not denied of his right of procedural process. The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's right to a formal investigation is spelled out in the following provisions of A.O. No. 23. The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam where he disputed the truth of the allegations that he barged into the session hall of the capitol and committed physical violence to harass the private respondents who were opposed to any move for the province to contract a P150 million loan from PNB. In his Order of October 8, 1997, Undersecretary Sanchez admitted petitioner's Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner filed a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October 29, 1997. Petitioner's motion was denied on November 11, 1997. Secretary Barbers found petitioner guilty as charged on the basis of the parties' position papers. On January 8, 1998, Executive Secretary Torres adopted Secretary Barbers' findings and recommendations and imposed on petitioner the penalty of six (6) months suspension without pay. The rejection of petitioner's right to a formal investigation denied him procedural due process. Section 5 of A. O. No. 23 provides that at the preliminary conference, the Investigating Authority shall summon the parties to consider whether they desire a formal investigation. This provision does not give the Investigating Authority the discretion to determine whether a formal investigation would be conducted. The records show that petitioner filed a motion for formal investigation. As respondent, he is accorded several rights under the law. An erring elective local official has rights akin to the constitutional rights of an accused. These rights are essentially part of procedural due process. The local elective official has the (1) right to appear and defend himself in person or by counsel; (2) the right to confront and cross-examine the witnesses against him; and (3) the right to compulsory attendance of witness and the production of documentary evidence. These rights are reiterated in the Rules Implementing the LGC and in A.O. No. 23. Petitioner's right to a formal investigation was not satisfied when the complaint against him was decided on the basis of position papers. There is nothing in the Local Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that provide that administrative cases against elective local officials can be decided on the basis of position papers. A.O. No. 23 states

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that the Investigating Authority may require the parties to submit their respective memoranda but this is only after formal investigation and hearing. A.O. No. 23 does not authorize the Investigating Authority to dispense with a hearing especially in cases involving allegations of fact which are not only in contrast but contradictory to each other. These contradictions are best settled by allowing the examination and cross-examination of witnesses. Position papers are often-times prepared with the assistance of lawyers and their artful preparation can make the discovery of truth difficult. The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal investigation applies to appointive officials and employees. Administrative disciplinary proceedings against elective government officials are not exactly similar to those against appointive officials. In fact, the provisions that apply to elective local officials are separate and distinct from appointive government officers and employees. This can be gleaned from the LGC itself. In the LGC, the entire Title II of Book I of the Code is devoted to elective officials. It provides for their qualifications and election, vacancies and succession, local legislation, disciplinary actions, and recall. Appointive officers and employees are covered in Title III of Book I of the Code entitled "Human Resources and Development." All matters pertinent to human resources and development in local government units are regulated by "the civil service law and such rules and regulations and other issuances promulgated thereto, unless otherwise provided in the Code." The "investigation and adjudication of administrative complaints against appointive local officials and employees as well as their suspension and removal" are "in accordance with the civil service law and rules and other pertinent laws," the results of which "shall be reported to the Civil Service Commission." It is the Administrative Code of 1987, specifically Book V on the Civil Service, that primarily governs appointive officials and employees. Their qualifications are set forth in the Omnibus Rules Implementing Book V of the said Code. The grounds for administrative disciplinary action in Book V are much more in number and are specific than those enumerated in the Local Government Code against elective local officials. The disciplining authority in such actions is the Civil Service Commission although the Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities are also given the power to investigate and decide disciplinary actions against officers and employees under their jurisdiction. When a complaint is filed and the respondent answers, he must "indicate whether or not he elects a formal investigation if his answer is not considered satisfactory." If the officer or employee elects a formal investigation, the direct evidence for the complainant and the respondent "consist[s] of the sworn statement and documents submitted in support of the complaint and answer, as the case may be, without prejudice to the presentation of additional evidence deemed necessary x x x, upon which the cross-examination by respondent and the complainant, respectively, is based." The investigation is conducted without adhering to the technical rules applicable in judicial proceedings." Moreover, the appointive official or employee may be removed or dismissed summarily if (1) the charge is serious and the evidence of guilt is strong; (2) when the respondent is a recidivist; and (3) when the respondent is notoriously undesirable. The provisions for administrative disciplinary actions against elective local officials are markedly different from appointive 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 hearing in administrative cases is expressly allowed with respect to appointive officials but not to those elected. An elective official, elected by popular vote, is directly responsible to the community that elected him. The official has a definite term of office fixed by law which is relatively of short duration. Suspension and removal from office definitely affects and shortens this term of office. When an elective official is suspended or removed, the people are deprived of the services of the man they had elected. Implicit in the right of suffrage is that the people are entitled to the services of the elective official of their choice. Suspension and removal are thus imposed only after the elective official is accorded his rights and the evidence against him strongly dictates their imposition. Conducto v. Monzon (1998) Facts: Complainant filed a complaint with the Sangguniang Panlungsod of San Pablo City against Benjamin Maghirang, the barangay chairman of Barangay III-E of San Pablo City, for abuse of authority, serious irregularity and violation of law as Maghirang appointed his sister-in-law, Mrs. Florian Maghirang, to the position of barangay secretary in violation of Section 394 of the LGC. At the same time, complainant filed a complaint for violation of Article 244 RPC with the Office of the City Prosecutor against Maghirang, which was, however, dismissed on the ground that Maghirangs sister-in-law was appointed before the effectivity of the LGC, which prohibits a punong barangay from appointing a relative within the fourth civil degree of consanguinity or affinity as barangay

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secretary. The order of dismissal was submitted to the Office of the Deputy Ombudsman for Luzon. Complainant obtained an Opinion from Dir. Jacob Montesa of the DILG declaring the appointment of Maghirang void. The Office of the Deputy Ombudsman dismissed the case but ordered Maghirang to replace his sister in law as barangay secretary. Later, the Office of the Deputy Ombudsman granted the MR and ordered the filing of an information for unlawful appointment against Maghirang. With prior leave from the Office of the Deputy Ombudsman, the City Prosecutor filed, in Criminal Case No. 26240, a motion for the suspension of Maghirang pursuant to Section 13 of R.A. No. 3019. The judge denied the motion and ruled that since Maghirang was reelected as barangay chairman, the offenses committed during the previous term are not causes for removal. The Office of the Court Administrator (OCA) recommended that the judge liable for ignorance of the law and that he be reprimanded with a warning that a repetition of the same or similar acts in the future shall be dealt with more severely. The OCA said that it is well settled in Section 13 of RA 3019 that the court suspends any public officer against whom a valid information was filed against him. Issue: WON the judge was grossly ignorant of the law Held: Yes Ratio: All things considered, while concededly, respondent Judge manifested his ignorance of the law in denying complainants Motion for Suspension of Brgy. Chairman Maghirang, there was nothing shown however to indicate that he acted in bad faith or with malice. Be that as it may, it would also do well to note that good faith and lack of malicious intent cannot completely free respondent from liability. The findings and conclusions of the Office of the Court Administrator are in order. However, the penalty recommended, i.e., reprimand, is too light, in view of the fact that despite his claim that he has been continuously keeping abreast of legal and jurisprudential development (sic) in law ever since he passed the Bar Examinations in 1995, respondent, wittingly or otherwise, failed to recall that as early as 1967 in Ingco v. Sanchez this Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal, liability incurred by him during his previous term of office, thus: The ruling, therefore, that -- when the people have elected a man to his office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any -- refers only to an action for removal from office and does not apply to a criminal case, because a crime is a public wrong more atrocious in character than mere misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is injurious not only to a person or group of persons but to the State as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal liability, does not include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense. There is a whale of a difference between the two cases. The basis of the investigation which has been commenced here, and which is sought to be restrained, is a criminal accusation the object of which is to cause the indictment and punishment of petitioner-appellant as a private citizen; whereas in the cases cited, the subject of the investigation was an administrative charge against the officers therein involved and its object was merely to cause his suspension or removal from public office. While the criminal cases involves the character of the mayor as a private citizen and the People of the Philippines as a community is a party to the case, an administrative case involves only his actuations as a public officer as (they) affect the populace of the municipality where he serves. Then on 20 June 1969, in Luciano v. The Provincial Governor, et al.,[20) this Court likewise categorically declared that criminal liabilities incurred by an elective public official during his previous term of office were not extinguished by his re-election, and that Pascual v. Provincial Governor and Lizares v. Hechanova referred only to administrative liabilities committed during the previous term of an elective official. Petitioner's reliance on the loose language used in Pascual v. Provincial Board of Nueva Ecija that "each term is separate from other terms and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove

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him therefor" is misplaced. The Court has in subsequent cases made it clear that the Pascual ruling (which dealt with administrative liability) applies exclusively to administrative and not to criminal liability and sanctions. Thus, in Ingco v. Sanchez the Court ruled that the reelection of a public officer for a new term does not in any manner wipe out the criminal liability incurred by him in a previous term. Punishment for a crime is a vindication for an offense against the State and the body politic. The small segment of the national electorate that constitutes the electorate of the municipality of Antipolo has no power to condone a crime against the public justice of the State and the entire body politic. Reelection to public office is not provided for in Article 89 of the Revised Penal Code as a mode of extinguishing criminal liability incurred by a public officer prior to his reelection. On the contrary, Article 9 of the Anti-Graft Act imposes as one of the penalties in case of conviction perpetual disqualification from public office and Article 30 of the Revised Penal Code declares that such penalty of perpetual disqualification entails "the deprivation of the public offices and employments which the offender may have held, even if conferred by popular election." It is manifest then, that such condonation of an officer's fault or misconduct during a previous expired term by virtue of his reelection to office for a new term can be deemed to apply only to his administrative and not to his criminal guilt. As succinctly stated in then Solicitor General (now Associate Justice) Felix Q. Antonio's memorandum for the State, "to hold that petitioner's reelection erased his criminal liability would in effect transfer the determination of the criminal culpability of an erring official from the court to which it was lodged by law into the changing and transient whim and caprice of the electorate. This cannot be so, for while his constituents may condone the misdeed of a corrupt official by returning him back to office, a criminal action initiated against the latter can only be heard and tried by a court of justice, his nefarious act having been committed against the very State whose laws he had sworn to faithfully obey and uphold. A contrary rule would erode the very system upon which our government is based, which is one of laws and not of men." While diligence in keeping up-to-date with the decisions of this Court is a commendable virtue of judges -- and, of course, members of the Bar -- comprehending the decisions is a different matter, for it is in that area where ones competence may then be put to the test and proven. Thus, it has been said that a judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles and aware of well-settled and authoritative doctrines.[23) He should strive for excellence, exceeded only by his passion for truth, to the end that he be the personification of justice and the Rule of Law. Needless to state, respondent was, in this instance, wanting in the desired level of mastery of a revered doctrine on a simple issue. Pablico v. Villapando (2002) Facts: Solomon B. Maagad, and Renato M. Fernandez (members of the Sangguniang Bayan of San Vicente, Palawan) filed with the Sangguniang Panlalawigan of Palawan an administrative complaint against Mayor Alejandro A. Villapando for abuse of authority and culpable violation of the Constitution. Villapando allegedly entered into a consultancy agreement with Orlando Tiape (defeated mayoralty candidate) which amounted to an appointment to a government position within the prohibited one year period under the Constitution. Villapando claimed that he did not appoint Tiape, but he merely hired him and a consultant does not constitute an appointment to a government office or position as prohibited by the Constitution. The Sangguniang Panlalawigan of Palawan found respondent guilty of the administrative charge and imposed on him the penalty of dismissal from service. The Office of the President affirmed the decision of the Sangguniang Panlalawigan. Villapando filed a certiorari and prohibition before the CA seeking to annul the decision of the Office of the President. The CA declared void the decision of the OP and the Sangguniang Panlalawigan. Issue: WON local legislative bodies and/or the Office of the President, on appeal, can validly impose the penalty of dismissal from service on erring elective local officials Held: No Ratio: The pertinent portion of Section 60 of the Local Government Code of 1991 provides: Section 60. Grounds for Disciplinary Actions. An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

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An elective local official may be removed from office on the grounds enumerated above by order of the proper court. It is clear from the last paragraph of the provision that the penalty of dismissal from service upon an erring elective local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al we held that "[t]he Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60." Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that "(b) An elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other." The disciplining authority referred to pertains to the Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President. As held in Salalima, this grant to the "disciplining authority" of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may alter, amend, or contravene a provision of law, such as the LGC. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing rules. It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. As explained by the Court in Lacson v. Roque: "the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove." Removal only by courts Sangguaning Barangay of Don Mariano v. Punong Barangay Martines (2008) Facts: Severino Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 64 of RA 7160. The complaint was later amended for Dishonesty, Misconduct in Office and Violation of the Anti-Graft and Corrupt Practices Act. Petitioner alleged that Martinez committed the following acts: 1. Failure to submit and fully remit to the Barangay Treasurer the income of their solid waste management project since 2001 particularly the sale of fertilizer derived from composting. 2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection. 3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x. 4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x. 5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x.

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6. That several attempts to discuss said problem during sessions were all in vain because respondent declined to discuss it and would adjourn the session.x x x. For failure to file an Answer, Martinez was declared in default and was placed under preventive suspension for 60 days. Thereafter, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office. The decision was conveyed to the mayor of Bayombong, Nueva Ecija. The mayor, however, issued a Memo wherein he stated that the Sangguniang Bayan has no power to order Martinez removal from office. However, the decision remains valid until reversed. Martinez then filed a special civil action for certiorari before the RTC. The court declared the decision void and maintained that the proper courts, and not the petitioner, are empowered to remove an elective official from office. Issue: WON the Sanggunian may remove Martinez, an elective local official, from office. Held: No Ratio: Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office. During the deliberations of the Senate on the Local Government Code,[16] the legislative intent to confine to the courts, i.e., RTCs, the Sandiganbayan and the appellate courts, jurisdiction over cases involving the removal of elective local officials was evident. In Salalima v. Guingona, Jr., the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the LGC. It further invalidated Article 125, Rule XIX of IRR. The Court nullified the rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the disciplining authority the power to remove elective officials, a power which the law itself granted only to the proper courts. Thus, it is clear that under the law, the Sangguniang Bayan is not vested with the power to remove Martinez. Petitioner contends that administrative cases involving elective barangay officials may be filed with, heard and decided by the Sangguniang Panlungsod or Sangguniang Bayan concerned, which can, thereafter, impose a penalty of removal from office. It further claims that the courts are merely tasked with issuing the order of removal, after the Sangguniang Panlungsod or Sangguniang Bayan finds that a penalty of removal is warranted. The aforementioned position put forward by the petitioner would run counter to the rationale for making the removal of elective officials an exclusive judicial prerogative. In Pablico v. Villapando, the court declared that:The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. (Emphasis supplied.) The rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority. Vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority. Thus, the petitioners interpretation would defeat the clear intent of the law. Moreover, such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panlungsod, or Sangguniang Bayan. This would be an unmistakable breach of the doctrine on separation of powers, thus placing the courts under the orders of the legislative bodies of local governments. The courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office is thus left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code. As the law stands, Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang

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Panlungsod or Sangguniang Bayan. However, the Sangguniang Panlungsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panlungsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension; if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. Petitioner alleged that an interpretation which gives the judiciary the power to remove local elective officials violates the doctrine of separation of powers. This allegation runs contrary to the 1987 Constitution itself, as well as jurisprudence.The doctrine of separation of powers is not absolute in its application; rather, it should be applied in accordance with the principle of checks and balances. The removal from office of elective officials must not be tainted with partisan politics and used to defeat the will of the voting public. Congress itself saw it fit to vest that power in a more impartial tribunal, the court. Furthermore, the local government units are not deprived of the right to discipline local elective officials; rather, they are prevented from imposing the extreme penalty of dismissal. Petitioner questions the Decision of the trial court for allowing the petition filed before it as an exception to the doctrine of exhaustion of administrative remedies. If, indeed, the Sangguniang Bayan had no power to remove Martinez from office, then Martinez should have sought recourse from the Sangguniang Panlalawigan. This Court upholds the ruling of the trial court. The doctrine of exhaustion of administrative remedies, which is based on sound public policy and practical consideration, is not inflexible. There are instances when it may be dispensed with and judicial action may be validly resorted to immediately. Among these exceptions are: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5) where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of non-exhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) in quo warranto proceedings. As a general rule, no recourse to courts can be had until all administrative remedies have been exhausted. However, this rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, it is apparent that the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan.[24] Thus, his direct recourse to regular courts of justice was justified. Disciplinary actions over Local Appointive Officials Mendez v. Civil Service Commission (1991) Facts: The Acting Register of Deeds of Quezon City Vicente N. Coloyan filed an administrative complaint against the petitioner, a legal research assistant in the Quezon City Office of the City Attorney, for Gross Misconduct and Dishonesty, allegedly for having torn off a portion of TCT 209287 from the registry book of Quezon City and for having pocketed it. After three months of investigation, Quezon City Mayor Adelina Rodriguez dismissed the said complaint against the petitioner for insufficiency of evidence. Coloyan appealed to the Merit Systems Protection Board which reversed the decision and ruled that Mendez is guilty as charged and therefore dismissed from service. The CSC affirmed on appeal. Issue: WON the exoneration made by the mayor is unappealable Held: Yes

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Ratio: The petitioner filed a motion for reconsideration, assailing the reversal of the city mayor's decision by the MSPB and the CSC on the ground that Coloyan is not an aggrieved party or "party adversely affected by the decision" allowed by law to file an appeal. Moreover, the petitioner claimed that his exoneration by the city mayor is unappealable pursuant to Section 37, paragraph (b) of P.D. 807. It is axiomatic that the right to appeal is merely a statutory privilege and may be exercised only in the manner and in accordance with the provision of law. A cursory reading of P.D. 807, otherwise known as "The Philippine Civil Service Law" shows that said law does not contemplate a review of decisions exonerating officers or employees from administrative charges. The phrase "party adversely affected by the decision" refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action which may take the form of suspension, demotion in rank or salary, transfer, removal or dismissal from office. In the instant case, Coloyan who filed the appeal cannot be considered an aggrieved party because he is not the respondent in the administrative case below. Finally, pursuant to Section 37 paragraph (b) of P.D. 807, the city mayor, as head of the city government, is empowered to enforce judgment with finality on lesser penalties like suspension from work for one month and forfeiture of salary equivalent to one month against erring employees. By inference or implication, the remedy of appeal may be availed of only in a case where the respondent is found guilty of the charges filed against him. But when the respondent is exonerated of said charges, as in this case, there is no occasion for appeal. Macalingag and Carlos v. Chang (1992) Facts: Lorinda Carlos signed a formal administrative charge approved by Victor Macalincag accusing Robert Chang of dishonesty, neglect of duty and acts prejudicial to the best interest of the service. They are for: (a) disbursing the amount of P30,000 to Ms. Marisa Chan during the local elections, (b) disbursing certain funds allegedly as financial assistance to bereaved families, (c) disbursing funds for merienda of the employees, (d) incurring overdrafts, (e) transferring certain amounts from the treasurers safe to the realty tax divisions safe, and (f) remitting to the Bureau of Treasury the national collection. Macalincag issued an Order of Preventive Suspension against Chang. Chang filed a petition for prohibition with writ of preliminary injunction before the RTC against Macalinlag and Carlos. The judge sustained the power of the Secretary of Finance to issue the Order of Preventive Suspension. Upon MR, the court set aside its decision and ordered the petitioners to cease and desist from enforcing the order of preventive suspension. Issue: WON the Secretary of Finance has jurisdiction to issue an Order of Preventive Suspension against the acting municipal treasurer of Makati, Metro Manila. Held: Yes Ratio: Chang contends that a government officer is not suspended until someone has assumed the post and the officer subject of the suspension order has ceased performing his official function; that the implementation of the questioned suspension order was overtaken by the issuance of EO 392 creating the Metropolitan Manila Authority and that the power to discipline is vested solely on the person who has the power to appoint. It is very apparent from the records that Chang was administratively charged on October 6, 1989 for dishonesty, neglect of duty and acts Prejudicial to the best interest of the service. It was signed by Carlos, Executive Director, Bureau of Local Government and approved by Macalincag, Undersecretary of Finance, then acting Secretary. Simultaneous with the charge, Chang was preventively suspended which caused him to file a complaint for Prohibition with preliminary injunction in the lower court. The lower court pointed out that in order that a preventive suspension will be implemented, there are two steps involved, viz: 1) service of a copy of said order on the respondent and 2) designation of his replacement. The trial court ruled that until an acting municipal treasurer is appointed to replace the respondent, the order of preventive suspension dated October 6, 1989 is incomplete and cannot be said to have taken effect. This ruling of the trial court is untenable. Preventive Suspension is governed by Sec. 41 of P.D. 807 or the Civil Service Law. It will be noted that under the law, designation of the replacement is not a requirement to give effect to the

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preventive suspension. On the contrary, Batas Pambansa Blg. 337, otherwise known as the Local Government Code, provides in Section 156, Article 5, Chapter 3, Title II thereof for the automatic assumption of the assistant municipal treasurer or next in rank officer in case of suspension of the municipal treasurer. Accordingly, there appears to be no question that: the Order of Preventive Suspension of respondent Chang became effective upon his receipt thereof, which is presumed when he filed a complaint in the trial court preventing the implementation of such Order of Suspension. Otherwise stated, the designation of the OFFICER-IN-CHARGE to replace Chang is immaterial to the effectivity of the latter's suspension. A contrary view would render nugatory the very purpose of preventive suspension. Among others, Chang argued that EO 392 gave rise to the creation of the Metropolitan Manila Authority (MMA) and vested in the President of the Republic of the Philippines the power to appoint municipal treasurers in Metro Manila. As the power to suspend and remove a municipal official is an incident of the power to appoint, he maintained that it is the President who may suspend or remove him. Earlier, prior to EO 392, the power to appoint the aforesaid public officials was vested in the Provincial Treasurers and Assessors of the Municipalities concerned, under PD 477 and later transferred to the Commissioner of Finance under PD 921, but under both decrees, the power of appointment was made subject to Civil Service Laws and the approval of the Secretary of Finance. Verily, the intention of the aforesaid legislations to follow the Civil Service Laws, Rules and Regulations is unmistakable. Correspondingly, the power to discipline is specifically vested under Sec. 37 of P.D. No. 807 in heads of departments, agencies and instrumentalities, provinces and chartered cities who have original jurisdiction to investigate and decide on matters involving disciplinary action. Stated differently, they are the proper disciplining authority referred to in Sec. 41 of the same law. The Office of the Municipal Treasurer is unquestionably under the Department of Finance as provided for in Sec. 3, P.D. No. 477. Hence, the Secretary of Finance is the proper disciplining authority to issue the preventive suspension order. More specifically acting Secretary of Finance, Macalincag, acted within his jurisdiction in issuing the order. By and large, even assuming that the power to appoint, includes the power to discipline as argued by Chang, acting Secretary Macalincag as Secretary of Finance is an alter ego of the President and therefore, it is within his authority, as an alter ego, to preventively suspend Chang. Garcia v. Pajaro and the City of Dagupan (2002) Facts: Sebastian Garcia is an employee at the City Treasurers Office, Dagupan City. He was ordered suspended by City Treasurer Juanito Pajaro and directed the withholding of his salary because of the Formal Charge filed against him. However, Pajaro continued reporting for work because he did not honor the suspension order as the City Treasurer acted as the complainant and that there was no complaint against him from the Office of the City Mayor. Juanito Pajaro, the City Treasurer of Dagupan City, claimed that Garcia has been rating unsatisfactory in his performance for several semesters, which is the reason why he was formally charged. Garcia was preventively suspended for ninety days since the charge is a major offense. An investigation was scheduled but Garcia failed to appear and testify. Garcia also did not answer the subpoena. So, Pajaro proceeded with an ex parte investigation. The Bureau of Local Government Finance favorably approved the suspension. This was affirmed by the Regional Director. Affirming the RTC Decision, the CA held that private respondent was vested with legal power and authority to institute disciplinary action against subordinate officers and employees. The appellate court further held that the requisites of administrative due process had been fully observed by Pajaro while investigating petitioner. But despite being informed of the charges against him and being given the opportunity to be heard in a formal investigation, petitioner chose not to answer those charges. Issue: WON the City Treasurer has disciplinary powers over the petitioner Ratio: At the outset, it should be pointed out that under the old and the present Local Government Codes, appointive officers and employees of local government units are covered by the Civil Service Law; and such rules, regulations and other issuances duly promulgated pursuant thereto, unless otherwise specified. Moreover, the investigation and the adjudication of administrative complaints against appointive local officials and employees, as well as their

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suspension and removal, shall be in accordance with the Civil Service Law and rules and other pertinent laws. The Administrative Code of 1987, -- specifically Book V on the civil service -- is the primary law governing appointive officials and employees in the government. They may be removed or dismissed summarily (1) [w]hen the charge is serious and the evidence of guilt is strong; (2) [w]hen the respondent is a recidivist x x x; and (3) [w]hen the respondent is notoriously undesirable. Technical rules of procedure and evidence are not strictly applied; due process in the administrative context cannot be fully equated with that in the strict judicial sense. The power to discipline is specifically granted by Section 47 of the Administrative Code of 1987 to heads of departments, agencies and instrumentalities, provinces and cities. On the other hand, the power to commence administrative proceedings against a subordinate officer or employee is granted by Section 34 of the Omnibus Rules Implementing Book V of the said Administrative Code to the secretary of a department, the head of office of equivalent rank, the head of a local government unit, the chief of an agency, the regional director or a person with a sworn written complaint. Further, the city treasurer may institute, motu propio, disciplinary proceedings against a subordinate officer or employee. Local Administrative Regulations (LAR) No. 2-85, which was issued by the Ministry of Finance on March 27, 1985, authorized the minister (now secretary) of finance, the regional director, and head of a local treasury or an assessment office to start administrative disciplinary action against officers or employees subordinate to them. In the case at bar, the city treasurer is the proper disciplining authority referred to in Section 47 of the Administrative Code of 1987. The term agency refers to any of the various units of the government including a department, a bureau, an office, an instrumentality, a government-owned or controlled corporation, or a local government or a distinct unit therein. Respondent Pajaro, as the city treasurer, was the head of the Office of the Treasurer; while petitioner, a senior revenue collector, was an officer under him. Thus, the city treasurer is the proper disciplining authority who could investigate petitioner and issue a preventive suspension order against him. Petitioners contention that it is only the city mayor who may discipline him is not persuasive. Section 455 (b-1-x) of the 1991 Local Government Code states that the city mayor may cause to be instituted administrative or judicial proceedings against any official or employee of the city. This rule is not incongruent with the provisions of the 1987 Administrative Code, which authorizes the heads of agencies to discipline subordinate employees. Likewise, the old Local Government Code does not vest in city mayors the sole power to discipline and to institute criminal or administrative actions against any officers or employees under their jurisdiction. In fact, there is no provision under the present Local Government Code expressly rescinding the authority of the Department of Finance to exercise disciplinary authority over its employees. By the same token, there is nothing that prohibits the city treasurer from filing a complaint against petitioner. As a corollary, the power to discipline evidently includes the power to investigate. In the present case, Pajaro was authorized to issue the assailed Preventive Suspension Order against petitioner, because the latter was charged with gross neglect of duty, refusal to perform official duties and functions, and insubordination -- grounds that allowed the issuance of such Order, as provided by Section 51 of the 1987 Administrative Code. Clearly, the city treasurer acted within the scope of his power when he commenced the investigation and issued the assailed Order. Issue: WON Garcia was denied due process Held: No Ratio: In an administrative proceeding, the essence of due process is simply the opportunity to explain ones side. Such process requires notice and an opportunity to be heard before judgment is rendered. One may be heard, not solely by verbal presentation in an oral argument, but also -- and perhaps even many times more creditably and practicably -- through pleadings. So long as the parties are given the opportunity to explain their side, the requirements of due process are satisfactorily complied with. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of an action or a ruling. In the case at bar, the administrative proceedings were conducted in accordance with the procedure set out in the 1987 Administrative Code and other pertinent laws. First, petitioner was furnished a copy of the May 30, 1990 formal charge against him. Second, Pajaro requested the approval of the Order of Preventive Suspension in his June 1, 1990 letter addressed to the Bureau of Local Government Finance regional director, who approved the Order in the First Indorsement

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dated June 4, 1990. Third, a subpoena dated July 31, 1990 was issued to petitioner ordering him to testify during an investigation on August 15, 1990. However, he admittedly refused to attend the investigation; thus, it was conducted ex parte. Fourth, the Department of Finance affirmed Respondent Pajaros findings in its August 1, 1991 Decision,. We need only to reiterate that parties who choose not to avail themselves of the opportunity to answer charges against them cannot complain of a denial of due process. Petitioners refusal to attend the scheduled hearings, despite due notice, was at his own peril. He therefore cannot validly claim that his right to due process was violated. As to petitioners claim for damages, the extant rule is that a public officer shall not be liable by way of moral and exemplary damages for acts done in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. There was no such showing in the present case. RECALL Rivera v. COMELEC (2007), supra. It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated. Here, Morales invoked not only Lonzanida v. COMELEC, but also Borja, Jr. v. Commission on Elections which is likewise inapplicable. In Borja, the Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a term under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC, this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the term contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a break in the service of private respondent Ramon T. Talanga as mayor. He was a private citizen for a time before running for mayor in the recall elections. Here, Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit. Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without a