Ateneo 2007 Political Law (Law on Public Corporation)

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Political Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

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LAW ON PUBLIC CORPORATION Definition of public corporation It is formed or organized for the government of a portion of the State. (Corporation Code) Elements of a municipal corporation

1. A legal creation or incorporation 2. A corporate name by which the

artificial personality or legal entity is known and in which all corporate acts are done

3. Inhabitants constituting the population who are invested with the political and corporate powers which are executed through duly constituted officers and agents

4. A place or territory within which the local civil government and corporate functions are exercised.

Dual nature of municipal corporations

1. Governmental a. The municipal corporation acts as

an agent of the State for the government of the territory and the inhabitants within the municipal limits

b. It exercises by delegation a part of the sovereignty of the State

2. Private/proprietary

a. It acts in a similar category as a business corporation, performing functions not strictly governmental or political

b. Those exercised for the special benefit and advantage of the community.

Note: Local Government Code 15. Every LGU created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a POLITICAL SUBDIVISION of the national government and as a CORPORATE ENTITY representing the inhabitants of its territory. Requisites for the Incorporation of a Municipal Corporation CODE: Te Po C

1. Territory 2. Population 3. Charter

Requisites of a De Facto Municipal Corporation

1. A valid law authorizing incorporation 2. An attempt in good faith to organize

under it 3. A colorable compliance with the law 4. An assumption of corporate powers

An attack on Legal Existence A quo warranto proceeding brought by the State is the proper remedy. It should be commenced within 5 years from the time the act complained of was committed. Creation of Local Government Units (LGUs) Authority to Create LGUs ( 6, LGC)

1. By law enacted by Congress a. Province b. City c. Municipality b. Any other political subdivision (A

barangay may also be created by law. See 386)

2. By ordinance passed by Sangguniang Panlalawigan /Panlungsod

For barangay located within its

territorial jurisdiction Indicators for creation/conversion a. Income b. Population c. Land Area Plebiscite Requirement

It applies to the creation, division, merger, abolition or substantial alteration of boundaries of LGU.

Creation etc. should be approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Beginning of Corporate Existence ( 14, LGC) Corporate existence commences upon the election and qualification of its chief executive and a majority of members of the Sanggunian unless some other time is fixed by the law or ordinance creating it. Local Autonomy Local autonomy can be considered a measure of decentralization of the functions of




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government. Under the principle of local autonomy and decentralization, LGUs have more powers, authority, responsibilities and resources. Decentralization It is the devolution of national administration, not power, to the local levels, in which local officials remain accountable to the central government in the manner the law may provide. Levels of Decentralization Administrative Autonomy

1. The central government delegates administrative powers to the political subdivisions.

2. Purposes a. To broaden the local power base b. To make the units more responsive

and accountable c. To ensure the full development of

LGUs into self-reliant communities d. To break the monopoly of the

national government over managing local affairs

e. To relieve the national government from the burden of managing local affairs

Political Autonomy

1. Involves the abdication of political power in favor of LGUs declared to be autonomous

2. It would amount to self-immolation because the autonomous government would become accountable to its constituency, not to the central government.

Devolution It refers to the act by which the national government confers power and authority upon the various LGUs to perform specific functions and responsibilities. ( 17, LGC). It is considered mandatory under the LGC. Distinction between Supervision and Control Supervision

It means the overseeing or the power or authority of an officer to see that the subordinate officers perform their duties.

In relation to LGUS, the President only has the power of supervision over LGUS. Thus, he cannot interfere with the local governments

as long as they act within the scope of their authority.

Under the LGC (25), the President exercises direct supervision over provinces, highly urbanized cities and independent component cities. He exercises indirect supervision over component cities and municipalities through the provinces. He also exercises indirect supervision over barangays through the city or municipality concerned. Control It means the power of an officer to alter or modify or nullify or set aside what a subordinate officer has done in the performance of his/her duties and to substitute the judgment of the former for that of the latter. In relation to LGUs, it is Congress which exercises control over them. Police Power Police power is not inherent in municipal corporations. Under the LGC, LGUs exercise police power under the general welfare clause (See 16) Branches of the general welfare clause

One branch relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law.

The second branch is more independent of the specific functions of the council. It authorizes ordinances as are necessary and proper to provide for the health and safety, promote prosperity, improve morals, peace, good order etc. Eminent Domain and Reclassification of Land Requisites for Valid Exercise [CODE: OPJO]

1. ORDINANCE authorizing the local chief executive to subject a certain property to expropriation

2. Expropriation should be for a PUBLIC USE/PURPOSE or for the WELFARE of the POOR/LANDLESS.

3. Payment of JUST COMPENSATION 4. Valid and definite OFFER TO PAY

which was NOT accepted. Role of Supervising Local Government Unit It can only declare the ordinance invalid on the sole ground that it is beyond the power of the




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lower LGU to issue. Hence, it cannot declare the ordinance invalid on the ground that it is unnecessary. (Moday v. CA, Feb. 20, 1997) Role of National Government The approval of the national government is not required of local governments to exercise the power of eminent domain. Role of Judiciary

1. Can inquire into the legality of the exercise of the right.

2. Can determine whether there was a genuine necessity

NOTE: Only cities and municipalities can reclassify agricultural lands through the proper ordinance after conducting public hearings for the purpose. Grounds for Reclassification

1. When the land ceases to be economically feasible and sound for agricultural purposes as determined by the Department of Agriculture.

2. When the land shall have substantially greater economic value for residential, commercial or industrial purposes as determined by the Sanggunian concerned.

Taxation Power to tax of LGUs is now pursuant to direct authority conferred by the 1987 Constitution. Since LGUs have no inherent power to tax, their power must yield to a legislative act. Legislative Power

1. Local chief executive (except for punong barangay because he is already a member of the Sangguniang barangay) has to approve the ordinance enacted by the council.

2. Veto power of local chief executive. ( 55)

a. Grounds i. Ultra vires ii. Prejudicial to public welfare

b. Item veto i. Appropriations ordinance ii. Ordinance/resolution adopting local

development plan and public investment program

iii. Ordinance directing the payment of money or creating liability. Veto communicated to sanggunian

within 15 days for province and 10 days for city or municipality.

Review by Higher/Supervising Council

1. The higher council can declare the ordinance/resolution invalid if it is beyond the scope of the power conferred upon the lower Sanggunian.

2. For barangay ordinances, the higher council can also rule that it is inconsistent with law or city/municipal ordinances.

Corporate Powers ( 22) CODE: S C Re C O

1. To have continuous succession in its corporate name

2. To sue and be sued 3. To have and use a corporate seal 4. To acquire and convey real or personal

property 5. To enter into contracts 6. To exercise such other powers as are

granted to corporations, subject to limitations in LGC/other laws.

Requisites of valid municipal contracts:

1. LGU has express, implied or inherent power to enter into a particular contract;

2. Entered into by proper department, board, committee, or agent;

3. must comply with substantive requirements;

4. must comply with formal requirements; 5. in case entered into by local chief

executive on behalf of LGU, prior authorization by Sanggunian concerned is needed

Municipal Liability Rule: Local Government units and their officials are not exempt from liability for death or injury to persons or damage to property (Sec 24 R.A. 7160) Doctrine of Implied Municipal Liability A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appropriated by it as to which it has the general power to contract; the doctrine applies to all cases where money or other property of a party is received under such circumstances that the general law, independent




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of an express contract, implies an obligation to do justice with respect to the same (Nachura, Reviewer in Political Law, p. 499) Qualifications of Elective Local Officials ( 39)

1. Filipino citizen 2. Registered voter in:

a. the barangay, municipality, city or province where he intends to be elected

b. the district where he intends to be elected in case of a member of the Sangguniang panlalawigan, Sangguniang panlungsod or Sangguniang bayan.

3. Resident therein for at least 1 year immediately preceding the day of the election.

4. Able to read and write Filipino/ any other local language or dialect

Age requirement POSITION AGE

REQUIREMENT Governor, Vice Governor, Mayor, Vice Mayor, member of Sangguniang Panlungsod in highly urbanized cities

At least 23 years old on election day

Mayor, Vice Mayor of independent component cities or municipalities

At least 21 years old

Member of Sangguniang Panglungsod, Member of Sangguniang Bayan, Punong Barangay, Member of Sangguniang Barangay

At least 18 years old

Disqualifications for Local Elective Officials ( 40)

1. 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

2. Those removed from office as a result of an administrative case.

3. Those convicted by final judgment for violating the oath of allegiance to the Republic

4. Those with dual citizenship

5. Fugitives from justice in criminal or non-political cases here or abroad

6. Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code

7. The insane or feeble minded Term of Office Term of office: 3 years No local elective official shall serve for more than 3 consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. Vacancies Permanent vacancy

1. Grounds a. Elective local official fills a higher

vacant office b. Refuses to assume office c. Fails to qualify d. Dies e. Removed from office f. Voluntarily resigns g. Permanently incapacitated to

discharge the functions of his office




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2. Filling of vacancy a. Automatic succession

b. by appointment

3. Ranking- It is determined on the basis of proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election

4. The general rule is that the successor (by appointment) should come from the same political party as the Sanggunian member whose position has become vacant. The exception would be in the case of vacancy in the Sangguniang barangay.

Temporary Vacancy Grounds (not exclusive list)

1. Leave of absence 2. Travel abroad 3. Suspension from office

If the positions of governor, mayor or

punong barangay become temporarily vacant, the vice-governor, vice-mayor or highest ranking Sanggunian member will automatically exercise the powers and perform the duties and functions of the local chief executive concerned.

Exception: He/she cannot exercise the power to appoint, suspend or dismiss employees. Exception to exception: If the period of temporary incapacity exceeds 30 working days. Termination of temporary incapacity

Upon submission to the appropriate Sanggunian of a written declaration by the local chief that he has reported back to office

If the temporary incapacity was due to legal reasons, the local chief executive should also submit necessary documents showing that the legal causes no longer exist. Appointment of OIC: The local chief executive can designate in writing an OIC if he is traveling within the country but outside his territorial jurisdiction for a period not exceeding 3 consecutive days. The OIC cannot exercise the power to appoint, suspend or dismiss employees. Omnibus Election Code ( 67)

Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall

VACANCY SUCCESSOR 1. In the office of the governor, mayor

Vice-Governor, Vice-Mayor

2. In the office of the governor, vice-governor, mayor or vice-mayor

Highest ranking Sanggunian member

3. In the office of the highest ranking Sanggunian member (who was supposed to fill the vacant position of governor etc.

Second highest ranking Sanggunian member

4. In the office of the punong barangay

Highest ranking sangguniang barangay member/2nd highest ranking sanggunian member

VACANCY APPOINTMENT BY WHOM

1. Sanggunian Panlalawigan or Panlungsod of highly urbanized cities and independent component cities

President, through Executive Secretary

2. Sangguniang Panlungsod of Component Cities, Sangguniang Bayan

Governor

3. Sangguniang Barangay

City/Municipal Mayor upon Recommendation of the Sanggunian barangay concerned




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be considered ipso facto resigned from his office upon filing of his certificate of candidacy. Grounds for Disciplinary Actions ( 60) CODE: DCDCAUAS An elective local official may be disciplined, suspended or removed from office on any of the following grounds:

1. Disloyalty to the Republic of the Philippines

2. Culpable violation of the Constitution 3. Dishonesty, oppression, misconduct in

office, gross negligence, dereliction of duty

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

5. Abuse of authority 6. Unauthorized absence for 15

consecutive working days, except in the case of members of the Sanggunian panlalawigan, Sangguniang panlungsod, Sangguniang bayan, Sangguniang barangay.

7. Application for or acquisition of foreign citizenship or residence or the status of an immigrant of another country.

8. Such other grounds as may be provided by the Code/other laws.

Preventive Suspension ( 63)

1. When can it be imposed a. After the issues are joined b. When the evidence of guilt is strong c. Given the gravity of the offense,

there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence

2. Who can impose preventive suspension

IMPOSED BY: RESPONDENT LOCAL OFFICIAL

1. President Elective official of a province, highly urbanized or Independent component city

2. Governor Elective official of a component city or municipality

3. Mayor Elective official of a barangay

3. Duration of preventive suspension Single preventive suspension

should not exceed 60 days. If several administrative cases are

filed against an elective official, he cannot be preventively suspended for more than 90 days within a single year on the same ground/s existing and known at the time of the first suspension.

Suspension

It should not exceed the unexpired term of the respondent or a period of 6 months for every administrative offense.

Penalty is NOT a bar to the candidacy of the respondent suspended as long as he meets the qualifications for the office. Removal as result of Administrative Investigation It serves as a BAR to the candidacy of the respondent for any elective position. Recall ( 69-75) Recall is the power of the electorate (registered voters) to remove a local elected official for loss of confidence through the holding of a special/recall election. Two modes of initiating a recall:

1. adoption of a resolution by the Preparatory Recall Assembly (composed of local officials of the lower/supervised local government unit)

2. petition by at least 25% of the registered voters. GROUND = Loss of confidence




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Process of Initiating Recall I. By Preparatory Recall Assembly (PRA)

1. Composition of PRA

2. Procedure

Session in a public place to initiate recall proceeding

Resolution adopted by a majority of all the members of the PRA during the session called for the purpose of initiating recall proceedings

II. By Petition of Registered Voters

Petition of at least 25% of the total number of registered voters in the LGU concerned during the election in which the local official sought to be recalled was elected.

The written petition for recall should be duly signed before the election registrar or his representative and in the presence of the representative of the petitioner and the official sought to be recalled.

It should be signed in a public place. Petition should be filed with

COMELEC through its office in the LGU concerned

Publication of petition for 10-20 days in order to verify the authenticity and genuineness of the petition and the required % of voters.

Conduct of Recall Election The official/s sought to be recalled are

automatically considered as duly registered candidates.

The date set for the recall election should not be less than 30 days after filing of resolution/petition in the case of barangay, city or municipal officials and 45 days in the case of provincial officials

Effectivity of Recall Recall will only be effective upon the

election and proclamation of a successor.

If the official sought to be recalled receives the highest number of votes, confidence in him is affirmed and he shall continue in office.

Limitations on Recall Elective local official can be the subject

of a recall election only once during his term of office.

No recall shall take place within 1 year from the date of the officials assumption to office or 1 year immediately preceding a regular local election.

LOCAL Initiative ( 120-125) It is the legal process whereby the registered voters of a LGU may directly propose, enact or amend any ordinance NOTE: In Garcia v. Comelec, the SC ruled that a resolution can also be the proper subject of an initiative Who May Exercise Power It may be exercised by all registered voters of the provinces, cities, municipalities, barangays. Procedure

1. Number of voters who should file petition with Sanggunian concerned a. Provinces and cities - at least 1000

registered voters

IMPOSED BY: RESPONDENT LOCAL OFFICIAL

1. President Elective official of a province, highly urbanized or Independent component city

2. Governor Elective official of a component city or municipality

3. Mayor Elective official of a barangay

LEVEL COMPOSITION 1. Provincial Mayors, vice-mayors,

Sanggunian members of the municipalities and component cities

2. City Punong barangay and Sangguniang barangay members in the city

3. Legislative district

Elective municipal/barangay officials

4. Municipal Punong barangay and sangguniang barangay members in the municipality




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b. Municipality - at least 100 c. Barangay - at least 50

2. Sanggunian concerned has 30 days to

act on the petition. If the Sanggunian does not take any favorable action, the proponents may invoke the power of initiative, giving notice to Sanggunian.

3. Proponents will have the following number of days to collect required number of signatures a. Provinces and cities - 90 days b. Municipalities - 60 days c. Barangays - 30 days

4. Signing of petition 5. Date for initiative set by Comelec if

required number of signatures has been obtained.

Effectivity of Proposition If proposition is approved by a majority

of the votes cast, it will take effect 15 days after certification by the Comelec as if the Sanggunian and the local chief executive had taken affirmative action.

If it fails to obtain required number of votes, it is considered defeated

Limitations It should not be exercised more than

once a year. It can only extend to subjects or matters

which are within the legal powers of the Sanggunians to enact.

If the Sanggunian adopts in toto the proposition presented and the local chief executive approves the same, the initiative shall be cancelled.

Limitations upon Sanggunians The Sanggunian cannot repeal, modify

or amend any proposition or ordinance approved through system of initiative/referendum within 6 months from the date of approval thereof.

The Sanggunian can amend, modify or repeal the proposition/ordinance w/in 3 years thereafter by a vote of of all its members.

For barangays, the applicable period is 18 months.

Referendum ( 126-127) It is the legal process whereby the registered voters of the local government units may

approve, amend or reject any ordinance enacted by the Sanggunian. Authority of Courts The proper courts can still declare void any proposition adopted pursuant to an initiative/referendum on the following grounds:

1. Violation of the Constitution 2. Want of capacity of the Sanggunian

concerned to enact the measure.

Camid v. Office of the President, 448 SCRA 711 (January 17, 2005)

Ratio:

Pelaez (122 Phil 965) and its offspring cases ruled that the President has no power to create municipalities, yet limited its nullificatory effects to the particular municipalities challenged in actual cases before this Court. With the promulgation of the Local Government Code, the legal cloud was lifted over the municipalities similarly created by Executive Order but not judicially annulled Section 442B of the Local Government Code deemed curative whatever legal effects to title those municipalities had labored under.

Municipal corporations may exist by prescription where it is shown that the community has claimed and exercised corporate functions, with the knowledge and acquiescence of the legislature, and without interruption or objection for period long enough to afford title by prescription.

The legal effect of the nullification of a municipality in Pelaez case was to revert the constituent barrios of the voided town back into their original municipalities.




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Atienza v Villarosa , 458 SCRA 385 (May 10, 2005) Ratio:

The provisions of Republic Act 7160 are anchored on principles that give effect to decentralization.

The Vice-Governor, as the presiding officer of the Sangguniang Panlalawigan, has administrative control of the funds of the said body and it is he who has the authority to approve disbursement vouchers for expenditures appropriated for the operation of the Sangguniang Panlalawigan.

While Republic Act 7160 is silent as to the matter, the authority granted to the Vice-Governor to sign all warrants drawn on the provincial treasury for all expenditures appropriated for the operation of the Sangguniang Panlalawigan as well as to approve disbursement vouchers relating thereto necessarily includes the authority to approve purchase orders covering the same applying the doctrine of necessary implication.

While the Governor has authority to appoint officials and employees whose salaries are paid out of the provincial funds, this does not extend to the officials and employees of the Sangguniang Panlalawigan because such authority is lodged with the Vice-Governor. The appointing power of the Vice-Governor is limited to the employees of the Sangguniang Panlalawigan as well as those of the Office of the Vice-Governor, whose salaries are paid out of the funds appropriated for the Sangguniang Panlalawigan if the salary of an employee or official is charged aagainst the provincial funds, even if this employee reports to the Vice-Governor or is assigned to his office, the Governor retains the authority to appoint the said employee

Laxina, Sr. v Office of the Ombudsman*, 471 SCRA 542 (September 30, 2005) Ratio:

The Office of the Ombudsman has concurrent jurisdiction with the local government units over administrative cases against elective officials such as barangay chairmen.

Republic v Gingoyon*, 478 SCRA 474 (December 19, 2005) Ratio:

The Court cannot accept the Governments proposition that the only properties that may be expropriated under Republic Act No. 8974 are parcels of land RA No. 8974 contemplates within its coverage such real property constituting land, buildings, roads, and constructions of all kinds adhered to the soil.

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Ateneo 2007 Political Law (Law on Public Corporation)