PUBLIC CORPORATION PRE-FINALS TRANSCRIPT
RECLASSIFICATION OF AGRICULTURAL LANDS
Section 20. Reclassification of Lands. –
(a) A city or municipality may, through an ordinance passed by the sanggunian after
conducting public hearings for the purpose, authorize the reclassification of agricultural
lands and provide for the manner of their utilization or disposition in the following
cases:
(1) when the land ceases to be economically feasible and sound for
agricultural purposes as determined by the Department of Agriculture or
(2) where the land shall have substantially greater economic value for
residential, commercial, or industrial purposes, as determined by the
sanggunian concerned: Provided, That such reclassification shall be limited to
the following percentage of the total agricultural land area at the time of the
passage of the ordinance:
(1) For highly urbanized and independent component cities, fifteen
percent (15%);
(2) For component cities and first to the third class municipalities,
ten percent (10%); and
(3) For fourth to sixth class municipalities, five percent (5%):
Provided, further, That agricultural lands distributed to agrarian
reform beneficiaries pursuant to Republic Act Numbered Sixty-six
hundred fifty-seven (R.A. No. 6657). otherwise known as "The
Comprehensive Agrarian Reform Law", shall not be affected by the
said reclassification and the conversion of such lands into other
purposes shall be governed by Section 65 of said Act.
(b) The President may, when public interest so requires and upon recommendation of
the National Economic and Development Authority, authorize a city or municipality to
reclassify lands in excess of the limits set in the next preceding paragraph.
(c) The local government units shall, in conformity with existing laws, continue to
prepare their respective comprehensive land use plans enacted through zoning
ordinances which shall be the primary and dominant bases for the future use of land
resources: Provided. That the requirements for food production, human settlements,
and industrial expansion shall be taken into consideration in the preparation of such
plans.
(d) Where approval by a national agency is required for reclassification, such approval
shall not be unreasonably withheld. Failure to act on a proper and complete application
for reclassification within three (3) months from receipt of the same shall be deemed as
approval thereof.
(e) Nothing in this Section shall be construed as repealing, amending, or modifying in
any manner the provisions of R.A. No. 6657.
→ When you say reclassification of agricultural lands, it is the power to reclassify such lands to
other uses. It can be:
- Residential land
- Commercial land
- Industrial land
• Conditions:
1) Ordinance (not by resolution, it MUST be through an ordinance)
2) Public hearings
3) Provide for the manner of utilization/disposition
4) Comply with limitations: (limited to the following percentage of the total agricultural
land, which may be increased by the President authorizing the LGU)
15% - HUC and ICC
10% - Component cities and 1st to 3rd class Municipalities
5% - 4th to 6th class Municipalities
IMPORTANT: please take note of the 4th condition (gibalik2x ni sir katulo na..take note take
note take note..)
• Grounds: (any of the following)
1) Land ceases to be economically feasible and sound for agriculture - determined
by the Department of Agriculture
2) Land has substantially greater economic value for residential, commercial, or
industrial – determined by the Sanggunian
-­‐ For existing residential, etc: Zoning ordinance
• When there is a tenant-landlord relationship, DARAB has jurisdiction. So what if during the
pendency of the DARAB case, the LGU reclassifies the agricultural land to residential, would
that oust the DARAB of its jurisdiction? NO.
→ Nicolas Laynesa vs Uy (2008)
-­‐ Despite the reclassification of an agricultural land to non-agricultural land by an
LGU under Sec. 20 of RA 7160, the DARAB still retains jurisdiction over a
complaint filed by a tenant of the land in question for threatened ejectment and
redemption;
-­‐ Jurisdiction is determined by the statute in force at the time of the
commencement of the action. Likewise settled is the rule that jurisdiction over the
subject matter is determined by the allegations of the complaint. DARAB Case No.
V-RC-028 was filed by the tenants of an agricultural land for threatened ejectment
and its redemption from respondents. It cannot be questioned that the averments
of the DARAB case clearly pertain to an agrarian reform matter and involve the
implementation of the agrarian reform laws. Such being the case, the complaint
falls within the jurisdiction of the DARAB under Sec. 50 of RA 6657 on the quasi-
judicial powers of the DAR. It bears stressing that the DAR has primary
jurisdiction to determine and adjudicate agrarian reform matters and shall have
exclusive original jurisdiction over all matters involving the implementation of the
agrarian reform except those falling under the exclusive jurisdiction of the
Department of Agriculture (DA) and the Department of Environment and Natural
Resources (DENR). Primary jurisdiction means in case of seeming conflict between
the jurisdictions of the DAR and regular courts, preference is vested with the DAR
because of its expertise and experience in agrarian reform matters. Sec. 50 is also
explicit that except for the DA and DENR, all agrarian reform matters are within
the exclusive original jurisdiction of the DAR.
-­‐ SEC 20 (e) of LGC is unequivocal that nothing in said section shall be construed as
repealing, amending, or modifying in any manner the provisions of RA 6657. As
such, Sec. 50 of RA 6657 on quasi-judicial powers of the DAR has bot been
repealed by LGC.
-­‐ The DARAB retains jurisdiction over disputes arising from agrarian reform matters
even though the landowner or respondent interposes the defense of
reclassification of the subject lot from agricultural to non-agricultural use.
-­‐ Landowners must understand that while RA 7160, the Local Government Code,
granted local government units the power to reclassify agricultural land, the
stringent requirements set forth in Sec. 30 of said Code must be strictly complied
By: RLB

with. Such adherence to the legal prescriptions is found wanting in the case at
bar.
NOTE: the LGU that can reclassify will only be a CITY or MUNICIPALITY. This is a power that
pertains only to component units, whether a city or municipality. NOT A PROVINCE.
Bar Question: True or False
Reclassification of land by LGU may be done through a resolution. - FALSE
CLOSURE AND OPENING OF ROADS
Section 21. Closure and Opening of Roads. –
(a) A local government unit may, pursuant to an ordinance, permanently or temporarily
close or open any local road, alley, park, or square falling within its jurisdiction:
Provided, however, That in case of permanent closure, such ordinance must be
approved by at least two-thirds (2/3) of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility that is subject to closure is
provided.
(b) No such way or place or any part thereof shall be permanently closed without
making provisions for the maintenance of public safety therein. A property thus
permanently withdrawn from public use may be used or conveyed for any purpose for
which other real property belonging to the local government unit concerned may be
lawfully used or conveyed: Provided, however, That no freedom park shall be closed
permanently without provision for its transfer or relocation to a new site.
(c) Any national or local road, alley, park, or square may be temporarily closed during
an actual emergency, or fiesta celebrations, public rallies, agricultural or industrial fairs,
or an undertaking of public works and highways, telecommunications, and waterworks
projects, the duration of which shall be specified by the local chief executive concerned
in a written order: Provided, however, That no national or local road, alley, park, or
square shall be temporarily closed for athletic, cultural, or civic activities not officially
sponsored, recognized, or approved by the local government unit concerned.
(d) Any city, municipality, or barangay may, by a duly enacted ordinance, temporarily
close and regulate the use of any local street, road, thoroughfare, or any other public
place where shopping malls, Sunday, flea or night markets, or shopping areas may be
established and where goods, merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.
Articles 43 – 45, IRR of LGC
Art. 43. Authority to Close or Open. - An LGU may, through an ordinance,
permanently or temporarily close or open any road, alley, park, or square within its
jurisdiction.
Art. 44. Permanent Closure. –
(a) No permanent closure of any local road, street, alley, park, or square
shall be affected unless there exists a compelling reason or sufficient
justification therefor such as, but not limited to, change in land use,
establishment of infrastructure facilities, projects, or such other justifiable
reasons as public welfare may require.
(b) When necessary, an adequate substitute for the public facility that is
subject to closure shall be provided. No freedom park shall be closed
permanently without provision for its transfer or relocation to a new site.
(c) No such way or place or any part thereof shall be permanently closed
without making provisions for the maintenance of public safety therein.
(d) A property permanently withdrawn from public use may be used or
conveyed for any purpose for which other real property belonging to LGU
may be lawfully used or conveyed.
(e) The ordinance authorizing permanent closure must be approved by at
least two-thirds (2/3) of all members of the sanggunian. Public hearings shall
first be conducted before any ordinance authorizing permanent closure of
any local roads, alley, park, or square is enacted. Notices of such hearings
and copies of the proposed ordinance shall be posted for a minimum period
of three (3) consecutive weeks in conspicuous places in the provincial capitol,
or in the city, municipal, or barangay hall of LGU and within the vicinity of the
street or park proposed to be closed.
Art. 45. Temporary closure. –
(a) Any national or local road, alley, park, or square may be temporarily
closed during actual emergency or fiesta celebrations, public rallies,
agricultural or industrial fairs, or undertaking of public works and highways,
telecommunications, and waterworks projects, the duration of which shall be
specified by the local chief executive concerned in a written order, as follows:
(1) During fiesta celebrations - for a period not exceeding nine (9)
days;
(2) During agricultural or industrial fairs or expositions - for a
period as may be determined to be necessary and reasonable;
(3) When public works projects or activities are being undertaken
for a period as may be determined necessary for the safety,
security, health, or welfare of the public or when such closure is
necessary to facilitate completion of the projects or activities.
(b) An LGU may temporarily close and regulate the use of any local street,
road, thoroughfare, or public place where shopping malls, Sunday markets,
flea or night markets, or shopping areas may be established and where
goods, merchandise, foodstuff, commodities, or articles of commerce may be
sold and dispensed to the general public.
(c) No national or local road, alley, park, or square shall be temporarily
closed for athletic, cultural, or civic activities not officially sponsored,
recognized, or approved by the LGU.
→ But Section 21 does not just pertains to roads, it inlcudes SQUARE, ALLEY and PARK
• Kinds
1. Temporary closure of roads
§ Urgent closure (actual emergency, fiesta celebrations, public works, repairs of
public works, public rallies and the like)
-­‐ applies to local or national roads
-­‐ only by a written order of the Local Chief Executive stating the REASON
and DURATION
By: RLB

§ Non-urgent closure (nothing to do with actual emergency, fiesta celebrations, etc.)
-­‐ applies to local roads only
-­‐ only by an ordinance enacted by a majority vote
NOTE: in the exam, do not use the word URGENT, it is just for discussion purposes.
2. Permanent closure of roads
§ Requirements:
1) Ordinance (2/3 of ALL members)
2) provide for adequate substitute for the facility
3) provisions for the maintenance of public safety
4) if what is involve is a freedom park, provision for relocation/new site.
ADD: Macasiano Doctrine:
5) due process (already complied with by sec. 21)
6) circumstance show that the property is no longer intended or necessary
for public use
*the 6th requirement is no longer seen in section 21, so does it mean
that the ruling in Macasiano vs Diokno is superseded the explicit
wordings in section 21?
Atty. DBL: I submit that it should be a requirement regardless
of the silence in section 21. Because what is involve here is a
public property and what makes a property public is, it is devoted
to public use.
There are 2 levels of analysis if you are to characterize property as
either public or private:
(1) Property Law
(2) Local Government Law
But we will discuss it later, in the meantime, what you need to
know is that it seems that these requirement to make the property
public is INHERENT. So the only way that you can legitimately
close the road, for example, and withdraw it from public use
permanently, it should be established that it is no longer
intended or needed for public use.
NOTE: Opening or closure of roads is discretionary, thus, mandamus will not lie to close or
open, unless there is a clear violation of law. (Cebu Oxygen Case)
• Macasiano vs Diokno (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 LGU to private persons)
- The ordinance by Paranaque authorizing the lease and use of public streets or
thoroughfares as sites for flea market is invalid.
- Streets are local roads used for public service and are therefore considered public
properties. Properties of the local government which are devoted to public service are
deemed public and are under the absolute control of Congress. Hence, local
governments have no authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by Congress.
- 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 concerned. It is only then that the respondent municipality
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" in
accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as Local
Government Code. 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 local government has no power to use it for
another purpose or to dispose of or lease it to private persons.
- Sec 10 Chapter II of the LGC, although authorizing LGUs to close roads and similar
public places, should be deemed limited by Art 424 CC which provides 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 LGC to
private persons.
- The right of the public to use the city streets may not be bargained away through
contract.
• What happens to the road, etc. “permanently withdrawn” from public use?
→ Becomes patrimonial, can now be disposed of or subject of contracts.
→ The rule in property law: for public property to be converted to patrimonial, there
should be an explicit act of Congress withdrawing it from public use. (atty. DBL’s
take: for me, it should still be a requirement para valid ang withdrawal.) And the
explicit act of congress is already found in section 21 because section 21 already says
that what is found permanently withdrawn from public use, it becomes patrimonial and
can be subject of contracts, in so far as local roads are concerned.
• Cabrera vs CA
- One whose property does not abut on the closed section of the street has no right to
compensation for the closing or vacation of the street, if he still has access to the
general system of streets.
- To warrant recovery, the property owner must show that the situation is such that he
has sustained special damage differing in kind, and not merely in degree, from those
sustained by the public generally.
- The Constitution does not undertake to guarantee to a property owner the public
maintenance of the most convenient route to his door. The law will not permit him to
be cut off from the public thoroughfares, but he must content himself with such route
for outlet as the regularly constituted public authority may deem most compatible with
the public welfare. His acquisition of city property is a tacit recognition of these
principles.
- Closure may be in the exercise of Local Police Power, hence, for any loss or
inconvenience caused to a property owner, is damnum absque injuria (damage
without injury), hence, no compensation.
• Cebu Oxygen and Acetelyne Co. vs Berciles
- The City Charter of Cebu empowers the city to withdraw a city road from public use
and therefore, after such valid withdrawal, it becomes patrimonial property and may be
a valid object of a contract of sale.
- 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.
By: RLB

- Article 422 of the Civil Code expressly provides that "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." Besides, the Revised Charter of the City of Cebu heretofore
quoted, in very clear and unequivocal terms, states that: "Property thus withdrawn
from public servitude may be used or conveyed for any purpose for which other real
property belonging to the City may be lawfully used or conveyed."
- Since that portion of the city street subject of petitioner's application for registration of
title was withdrawn from public use, it follows that such withdrawn portion becomes
patrimonial property which can be the object of an ordinary contract.
- Opening and/or closure of road is discretionary by the LGU.
CORPORATE POWERS OF LOCAL GOVERNMENTS
Section 22. Corporate Powers –
(a) Every local government unit, as a corporation, shall have the following powers:
(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; and
(6) To exercise such other powers as are granted to corporations, subject to
the limitations provided in this Code and other laws.
(b) Local government units may continue using, modify, or change their existing
corporate seals: Provided, That newly established local government units or those
without corporate seals may create their own corporate seals which shall be registered
with the Department of the Interior and Local Government: Provided, further, That any
change of corporate seal shall also be registered as provided hereon.
(c) Unless otherwise provided in this Code, no contract may be entered into by the
local chief executive in behalf of the local government unit without prior
authorization by the sanggunian concerned(Note: Through the passage of a
board resolution). A legible copy of such contract shall be posted at a conspicuous
place in the provincial capitol or the city, municipal or barangay hall.
(d) Local government units shall enjoy full autonomy in the exercise of their proprietary
functions and in the limitations provided in this Code and other applicable laws.
"corporate"
→ Very important characteristics of a coporation:
(1) Separate and distinct personality
- an action that is actually against the entity cannot be filed against the
officers (e.g. Mayor) alone in lieu of the LGU. If a judgment is rendered
against the officers alone, the same cannot bind the LGU because it has a
separate and distinct personality as that of the officers, and assets owned by
the LGU cannot be made to satisfy the judgment against the officers. And
vice versa.
(2) Acts of the LGU are performed upon the authority of a governing body, the
Sanggunian. (as a general rule)
- Before the Mayor can enter into contracts, he/she must have the authority of
the local council. - Sec 22 (c)
2009 Bar: Pedestrian was hit by a glass plane by an empolyee of an LGU. Pedestrian filed a case
for damages. LGU filed a motion to dissmiss because it claim that it has immunity from suit. May
an LGU claim immunity from suit?
→ No. Section 22 (a) of the LGC. There is already an express consent by Congress that an
LGU has the power to sue and be sued.
To sue and be sued
→ Section 22 of LGC
→ Express consent may be made by law or charter.
• How an LGU initiates and suit in court?
- it is only the Local Chief Executive (LCE), as authorized by the Sanggunian.
- Representatives (the councilors)
• City Council of Cebu vs Cuizon
- The City of Cebu sued, but not through the mayor, through the city councilors
because the mayor was the respondent in this case. SC said representative suit is
allowed on behalf and for the benefit of the city of Cebu.
Atty. DBL: SC justified that this case can prosper because it can filed as a
representative suit and as a taxpayers’ suit. But for me, taxpayer’s suit is not
available on the local level. It is available only on the national level. Taxpayer’s
suit involves only funds of Congress and not any other funds, such as the
President’s funds and the LGU’s funds.
• Who may represent as counsel for the LGU? Can LGU hire private counsel?
-­‐ GENERAL RULE:
(1)LGU’s attorney (e.g. Mun, City, Prov’l Attorney).
(2) Otherwise, if in a municipality where there is no municipal attorney, it
would be the Fiscal.
Reason: (1) only accountable public officers can represent public
entities and (2) public funds should not be expended to hire
private lawyers (Ramos vs CA)
-­‐ EXCEPTION: Private Lawyer - when concerned government counsel is
“disqualified” on ground of conflict onf interest e.g. Sec 481 (3)(i), LGC
Example: Dispute is between two component municipalities that have no
municipal attorneys. In this case, the provincial fiscal or attorney is
disqualified on ground of conflict onf interest. Torn between two lovers xa.
Therefore, it may be the proper time for both municipalities of the province
to secure the services of a private lawyer.
Other examples: (cases where a private lawyer may be hired)
-­‐ municipality vs province;
-­‐ component city vs province;
-­‐ municipality vs component city;
-­‐ or dispute involving him, wife or child with pecuniary interest
*even if at the beginning of the proceedings the LGU was represented by a private
lawyer and later on it was questioned. So thereafter a public lawyer (city attorney)
assumes the position as counsel for the LGU, the pleadings filed by the private lawyer
may be adopted by the public lawyer and the proceedings will still continue.
By: RLB

• Ramos vs CA
-­‐ Only the provincial fiscal, provincial attorney, and municipal attorney should
represent a municipality in lawsuits. Private lawyers may not represent
municipalities on their own, and neither may they do so even in collaboration with
authorized government lawyers. Only in exceptional instances may a private
attorney be hired by a municipality to represent it in lawsuits.
-­‐ These exceptions are enumerated in the case of Alinsug vs. 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 of De Guia vs. 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 vs. 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 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.
-­‐ 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 officers
may act for and in behalf of public entities and that public funds should
not be expended to hire private lawyers.
-­‐ Although a municipality may not hire a private lawyer to represent it in litigation,
in the interest of substantial justice however, a municipality may adopt the work
already performed in good faith by such private lawyer, which work is beneficial to
it provided: (1) no injustice is thereby heaped on the adverse party. (2) no
compensation in any guise is paid therefor by the said municipality to the private
lawyer.
-­‐ In sum, although a municipality may not hire a private lawyer to represent it in
litigation, in the interest of justice however, we hold that a municipality may adopt
the work already performed in good faith by such lawyer, which work is beneficial
to it unless so expressly adopted, the private lawyers work cannot bind the
municipality.
To acquire and convey real and personal property
→ LGU’s properties may be held in:
-­‐ Governmental capacity (property for public use) – imperium; or
-­‐ Proprietary Capacity (patrminonial property) – dominium
• How do you know whether the property is public or patrimonial?
→ If you apply Property Law:
-­‐ Article 420, 423, 424 of the Civil Code
→ In Public Corporation Law, the general test is you apply (either):
(1) The manner which the property was acquired
-­‐ If private fund was used - patrimonial
-­‐ if public fund - governmental
(2) Purpose for which the property is acquired or held
NOTE: TITLE doesn’t matter because even if in the name of LGU, if in reality it came from the
national government for public purpose, then it is held in trust for the State.
• Relevance Of Distinguishing Public From Patrimonial:
(1) Property for publc use is under the control of Congress.
- LGU is merely a political agent of the National Goverment. Consequently, the
principal may convert it to other uses with or without the consent of the LGU
and the latter cannot claim due process nor demand for just compensation
because there is no deprivation as LGU holds the property in trust for the
State.
ü Patrimonial property can be used by LGU without consent of Congress.
- If congress uses it for some purpose, due process and just
compensation must be complied with because there is already
deprivation as the LGU owns the property. The term person under
the due process clause includes public corp.
• Rebuco vs Villegas
- RA 3120 is constitutional and is a manifestation of the legislature’s right
to deal with the state property that includes those held by municipal
corporations in its public or governmental capacity.
- RA 3120 converted the Malate area, which are reserved as communal
property, into disposable or alienable lands of the state to be placed
under the administration and disposal of the LTA for subdivisions into
small lots to the tenants or bona fide occupants thereof.
- Respondent city officials contended that the Act must be stricken down
as unconstitutional for depriving the City of Manila of the lots in
question, and providing for their sale without payment of just
compensation thus constituting deprivation of property without due
process of law.
- The lots in question are manifestly owned by the city in its public and
governmental capacity and are therefore public property over which
Congress had absolute control as distinguished from patrimonial
property owned by it in its private or proprietary capacity of which it
could not be deprived without due process and without just
compensation. The Act was intended to implement the social justice
policy of the consti and the government’s program of land for the
landless. It is a manifestation of the legislature’s right and power to deal
with the state property which includes those held by municipal
corporation in its public and governmental capacity. Therefore, RA 3120
is constitutional.
(2) Property for public use cannot be subject of contract.
- Beyond the commerce of man and woman. Atu i.apil ang woman. What’s the
nature of the contract if it involves a public property? VOID AB INITIO.
Illicit/illegal object of contract.
ü While patrimonial property can be subject of contract
(3) Public property cannot be acquired by prescription against the state.
(4) Public property cannot be subject of attachment and execution.
- Whether it is preliminary or final, it cannot be subject to execution.
Remember that property refered here are real properties and also funds.
• Mun. of Hagonoy vs Hon. DumDum
- A difference lies between suability and liability. Where the suability of the
state is conceded and by which liability is ascertained judicially, the state is
at liberty to determine for itself whether to satisfy the judgment or not.
By: RLB

Execution may not issue upon such judgment, because statutes waiving non-
suability do not authorize the seizure of property to satisfy judgments
recovered from the action. These statutes only convey an implication that the
legislature will recognize such judgment as final and make provisions for its
full satisfaction. Thus, where consent to be sued is given by general or
special law, the implication thereof is limited only to the resultant verdict on
the action before execution of the judgment.
- The universal rule that where the State gives its consent to be sued by
private parties either by general or special law, it may limit claimant’s action
"only up to the completion of proceedings anterior to the stage of execution"
and that the power of the Courts ends when the judgment is rendered, since
government funds and properties may not be seized under writs of execution
or garnishment to satisfy such judgments, is based on obvious considerations
of public policy. Disbursements of public funds must be covered by the
corresponding appropriations as required by law. The functions and public
services rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their legitimate and specific
objects.
- the writ of preliminary attachment must be dissolved and, indeed, it must not
have been issued in the very first place.
- since the property of the municipality may not, in the event that respondent’s
claim is validated, be subjected to writs of execution and garnishment —
unless, of course, there has been a corresponding appropriation provided by
law.
(5) Public property cannot be burdened by any voluntary easement.
- So if it is legal easement, then it is valid.
• Mun. of Paoay vs Manaois
- Fishery or municipal waters are clearly not subject to execution as they do
not beling to the municipality but may well be regarded as property of the
State. What the municipality of Paoay hold is merely what may be considered
the usufruct or the right to use said municipal waters, granted to it by section
2321 of RAC. But the revenue or income coming from the renting of these
fishery lots is certainly subject to execution.
• What about reclaimed properties? Chavez vs PEA 2003
- Submerged lands are properties of public dominion, absolutely inalienable
and outside the commerce of man. This is also true with respect to foreshore
lands. Sec 2 and 3 of Article XII of the 1987 Constitution.
- Hence, it is only when the submerged or foreshore lands are actually
reclaimed that they become alienable agricultral lands of public domain which
can now be disposed of in accordance with law. RA 1899 authorized
municiplaities and chartered cities to reclaim foreshore lands, but not
submerged lands. Now, all reclamation projects are administered and under
the authority of the Philippine Reclaimation Authority (formerly, PEA).
- Therefore, only municipalities and cities can reclaim. Province cannot reclaim.
And only national government can reclaim submerged lands.
• Problem: Filinvest, a realty firm, visited the office of the Mayor of Mandaue City. It is
interested in establishing a commercial and industrial zone in the city where it can build
malls, hotels, sports facilities and other commercial establishments. The site, about 200
hectares, consists of submerged and foreshore lands. The Mayor also though of establishing
on the same site a new city hall and one-stop government center. Aware that submerged
and foreshore lands are public lands, the Mayor is asking you, the city attorney, on how to
assist Filinvest’s plans and the Mayor’s plans. So how will you advise the Mayor?
→ 1st, identify which area are submerged lands and foreshore lands because Mandaue
City can only reclaim foreshore lands as held in the chavez case, that chatered cities
and municipalities had been granted authority to reclaim foreshore lands by RA 1899.
While submerged lands can only be reclaimed by the national government.
→ 2nd, mechanics on how to reclaim foreshore lands. The city of Mandaue must conduct a
project feasiblity study and submit it to PRA for approval because no reclamation will
ever proceed without PRA’s approval.
→ 3rd, Mandaue city must enter into a contract (any business contract) with the PRA. And
if the city does not have the budget to do the reclamation itself, it may ask a private
realty firm to do the physical reclamation, like Filinvest. For as long as it is limited only
to the physical reclamation, because a reclaimed land cannot be transferred to a
private corporation.
→ 4th, assuming that reclamation had already been completed, the foreshore land
becomes alienable agricultural land and then a presidential decree must be issued
declaring the land alienable and disposable. Because of the contract entered into
between Mandaue city and PRA, the city has now the right to acquire the reclaimed
lands and titles will then be issued.
→ 5th, when the titles is issued in favor of the LGU, it must be determined what are the
reclaimed lands that are for public purpose and for commercial/private purpose.
Because if the reclamation was made for commercial purposes, then the land will
become patrimonial property of Mandaue city under the end-user doctrine, therefore, it
can be now be sold as any other patrimonial property. But if the purpose of the
reclamation was public, it will remain part of the public dominion. Hence, in the case of
Mandaue city, the reclaimed land for the new city hall will still remain public land and
thus, cannot be disposed of or sold to a private individual or corporation.
→ 6th, assuming that the national government will reclaim the submerged lands consisting
the 200 hectare land, the beneficiaries can only qualified filipino individuals and
excluding corporations, since private corporations cannot own and acquire public lands
due to the constitutional prohibition.
• Problem: The City of Cebu entered into a contract for services with DBL Corporation
underwhich the latter will provide services for the dumping of garbage in a dumpsite. The
term is 5 years at a rate of 1.5M/month. After 2 years, the City of Cebu is under a new
administration, it stopped paying the monthly fees for the services done by DBL Corporation
for the reason that there is no actual appropriation for the full amount and that the contract
was entered with no authorization from the sanggunian. May the City of Cebu held liable to
DBL Corporation?
→ The liability of Cebu city would depend upon whether the contract was entered into
before or after the enactment of the 1991 Local Government Code. If the contract was
entered before the 1991 LGC, the City of Cebu will be held liable under the implied
municipal liability doctrine because for 2 years already the city of cebu had received
benefits under the contract and it cannot later on evade from its obligation on the
ground that the contract was not authorized by the sanggunian.
→ Assuming that the contract was entered after the 1991 LGC was enacted and there was
no prior authorization by the sanggunian to do so and there was no actual
appropriation, the contract between the City of Cebu and DBL Corporation is voidable.
In the Lexber case, citing the Imus case, SC held that the municipality was not bound
to make advanced payments and, consequently, there was no reason for it to
appropriate funds for the said public service except for a period of one month or one
year. Further, SC did not declare the contract null and void ab initio for the reason that
appropriation for the project can be made subsequent to the execution of the contract.
Applying the said ruling in the instant problem, the law does not require that the LGU
actually appropriates for the entire full amount of the 5-year contract because the
By: RLB

services of DBL Corp. is to be performed on a monthly basis. (Please read the full case
of Quezon City vs Lexber)
• Requisites for the validity of a contract entered into by LGUs:
a) The local government unit must have the power to enter into the particular contract
b) Pursuant to Sec. 22(c) of the LGC, there must be a prior authorization by the
Sanggunian (generally, through a resolution) concerned, and a legible copy of the
contract shall be posted at a conspicuous place in the provincial capitol or the city,
municipal or barangay hall
c) In accordance with Secs. 46 and 47, Chapter 8, Subtitle B, Book V of the 1987
Administrative Code, if the contract involves the expenditure of public funds, there
should be an actual appropriation and a certificate of availability of funds by
the treasurer of the lgu except in the case of a contract for supplies to be carried in
stock
d) The contract must conform with the formal requisites of written contracts prescribed
by law
o What would be the nature of the contract of one the requisites are not complied with?
> A and C requisite:
- Ultra vires, thus, void
- Not subject to ratification
> B and D requisite:
- Voidable
- Subject to ratification
• Land Bank vs Cacayuran
- Generally, an ultra vires act is one committed outside the object for which a corporation
is created as defined by the law of its organization and therefore beyond the powers
conferred upon it by law.
- There are two types of ultra vires acts:
(1) an act utterly beyond the jurisdiction of a municipal corporation,
these are ultra vires in the primary sense and void; and
(2) the irregular exercise of a basic power under the legislative grant
in matters not in themselves jurisdictional, these are ultra vires only in
a secondary sense which does not preclude ratification or the
application of the doctrine of estoppel in the interest of equity and
essential justice.
- An act which is outside of the municipality's jurisdiction is considered as a void ultra
vires act, while an act attended only by an irregularity but remains within the
municipality's power is considered as an ultra vires act subject to ratification and/or
validation. To the former belongs municipal contracts which (a) are entered into
beyond the express, implied or inherent powers of the local government unit; and (b)
do not comply with the substantive requirements of law e.g., when expenditure of
public funds is to be made, there must be an actual appropriation and certificate of
availability of funds; while to the latter belongs those which (a) are entered into by the
improper department, board, officer of agent; and (b) do not comply with the formal
requirements of a written contract e.g., the Statute of Frauds.
• Non-compliance of the requisites:
ü Doctrine of estoppel – with respect to void contracts, this is civil law concept. Doctrine
of estoppel will not apply to void contracts, otherwise, it will make the contract that is
void valid.
- The doctrine of estoppel cannot be applied as against a municipal corporation to
validate a contract which it has no power to make, or which it is authorized to
make only under prescribed mode or manner, although the corporation has
accepted the benefits thereof and the other party has fully performed his part of
the agreement, or has expended large sums in preparation for performance.
ü Doctrine of implied municipal liability – as applied to transactions without contracts that
could have been valid had one been entered into to the extent of the benefit received.
- 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 of implied municipal liability applies to
all cases where money or other property of a party is received under such
circumstance that the general law, independent of express contract, implies an
obligation upon the municipality to do justice with respect to the same.
• When to make actual appropriation for a contract? Quezon City vs Lexber
-­‐ The facts in the Osmeña case are not parallel to the facts in the instant case. While in
the former the construction of an abattoir entailed the payment in full of a fixed
amount, the case at bar involved a contract for services still to be rendered which was
payable on a monthly basis, just as in the Imus case. In the latter case, the Supreme
Court did not declare the contract null and void ab initio for the reason that
appropriation for the project can be made subsequent to the execution of the contract.
• What form of authorization by the Sanggunian? Quisumbing vs Gov. Garcia
-­‐ General Rule: Resolution by the Sanggunian
-­‐ Exceptions:
1) Should the appropriation ordinance, for instance, already contain in
sufficient detail the project and cost of a capital outlay such that all that
the LCE needs to do after undergoing the requisite public bidding is to execute the
contract, no further authorization is required, the appropriation ordinance already
being sufficient.
2) Should the appropriation ordinance described the projects in generic
terms such as “infrastructure projects”, “inter-municipal waterworks, drainage
and sewerage, flood control, and irrigation system projects”, “reclamation
projects”, or “roads and bridges”, there is an obvious need for a covering contract
for every specific project that in turn requires approval by the sanggunian.
3) Specific sanggunian approval may also be required for the purchase of goods
and services which are neither specified in the appropriation ordinance
nor encompassed within the regular personal services and maintenance
operating expenses.
To negotiate and secure grants
Section 23. Authority to Negotiate and Secure Grants. –
Local chief executives may, upon authority of the sanggunian, negotiate and secure
financial grants or donations in kind, in support of the basic services or facilities
enumerated under Section 17 hereof, from local and foreign assistance agencies
without necessity of securing clearance or approval therefor from any department,
agency, or office of the national government of from any higher local government unit:
Provided, That projects financed by such grants or assistance with national security
implications shall be approved by the national agency concerned: Provided, further,
That when such national agency fails to act on the request for approval within thirty
(30) days from receipt thereof, the same shall be deemed approved.
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The local chief executive shall, within thirty (30) days upon signing of such grant
agreement or deed of donation, report the nature, amount, and terms of such
assistance to both Houses of Congress and the President.
LIABILITY FOR DAMAGES
LIABILITY FOR DEFECTIVE PUBLIC WORKS
Art. 2189 NCC –
Provinces, cities and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition of roads, streets,
bridges, public buildings, and other public works under their control or supervision.
Art. 471 IRR of LGC – Liability for Damages. –
As provided in Article 2189 of RA 386, otherwise known as the Civil Code of the
Philippines, as amended, provinces, cities, and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason of the defective
condition of roads, streets, bridges, public buildings, and other public works under their
control or supervision. The extent of liability for damages shall be governed by the
provisions of the Civil Code on quasi-delicts.
Supreme Court Administrative Circular 10-2000 –
Judges are hereby enjoined to observe utmost caution, prudence and
judiciousness in the issuance of writs of execution to satisfy money judgments
against government agencies and local government units.
Notwithstanding the rule that government properties are not subject to levy and
execution unless otherwise provided for by statute or municipal ordinance, the Court
has, in various instances, distinguished between government funds and properties for
public use and those not held for public use. Thus, where property of a municipal or
other public corporation is sought to be subjected to execution to satisfy judgments
recovered against such corporation, the question as to whether such property is
leviable or not is to be determined by the usage and purposes for which it is held.
1.Properties held for public uses — and generally everything held for
governmental purposes — are not subject to levy and sale under execution
against such corporation. The same rule applies to funds in the hands of a
public officer and taxes due to a municipal corporation.
2.Where a municipal corporation owns in its proprietary capacity, as
distinguished from its public or governmental capacity, property not used or
used for a public purpose but for quasi private purposes, it is the general rule
that such property may be seized and sold under execution against the
corporation.
3.Property held for public purposes is not subject to execution merely
because it is temporarily used for private purposes. If the public use is wholly
abandoned, such property becomes subject to execution.
-­‐ Public funds are beyond execution, garnishment or attachment for the following reasons:
-­‐ Funds are for public purpose
-­‐ General welfare – paramount public policy
-­‐ Funds are appropriated only pursuant to a law and court judgments are not law
Problem: X was standing along N. Bacalso St., a national highway, waiting for a taxi to take him
to Talisay City, Cebu. Beside the loading/unloading area where X was standing was a newly
constructed city public market under the management of ABC Corporation. X did not notice an
uncovered manhole right in front of him. Apparently, excavations on the ground for the laying of
pipes of the public market caused the manhole to be left uncovered. Upon seeing a taxi, X made
few steps forward and stepped down from the gutter in order to hail the taxi. X’s right foot fell
inside the uncovered manhole and injured his right leg. X managed to get up though and slowly
walked towards the public market, X stepped on a uncovered opening that could not be seen
because of dirty rainwaters. A 2-inch rusty nail. Stuck inside the opening, peirced X’s left foot.
When sued for damages, the City of Cebu argued that:
1) The City of Cebu cannot be sued without its consent;
2) The manhole was in a national highway that does not belong to the city;
3) ABC Corp. alone should be held liable for X’s injury on his left foot;
4) The operation of a public market is governmental function that will not make the city
liable for damages;
5) The City of Cebu is exempt from all forms of damages under its Charter.
• Question 1: The City of Cebu cannot be sued without its consent.
-­‐ There is already express consent as provided by Section 22 of the LGC.
• Question 2: The manhole was in a national highway that does not belong to the city.
Municipality of San Juan vs CA
-­‐ For liability to arise under Article 2189 of the Civil Code, ownership of the roads,
streets, bridges, public buildings and other public works, is not a controlling factor, it
being sufficient that a province, city or municipality has control or supervision thereof.
• Question 3: ABC Corporation alone should be held liable for X’s left foot.
Jimenez vs City of Manila
-­‐ It is liable for the following reasons:
o Art. 2189 comes into play, since the injury took place in a public building.
o Also, Art. 2189 requires that the LGU must retain supervision and control over the
public work in question for it to be held liable. The evidence showed that the
Management and Operating Contract explicitly stated that the City of Manila
retained supervision and control over the Sta. Ana Market.
o Also, in a letter to Finance Secretary Cesar Virata, Mayor Raymond Bagatsing
admitted this fact of supervision and control. Moreover, Sec. 30(g) of the Local
Tax Code says that public markets shall be under the immediate supervision,
administration and control of the City Treasurer.
o Jimenez could not be held liable for negligence. A customer in a store has every
right to presume that the owner will comply with his duty to keep his premises
safe for customers. The owner of the market, on the other hand, was proven to
have been negligent in not providing a cover for the said opening. The negligence
of the City of Manila is the proximate cause of the injury suffered.
• Question 4: The operation of a public market is governmental function that will not make the
city liable for damages.
City of Manila vs IAC
-­‐ LGU’s powers are twofold in character-public, governmental or political on the one
hand, and corporate, private and proprietary on the other. A municipal corporation
proper has a dual function, a public character as regards the state at large insofar as it
is its agent in government, and private (so called) insofar as it is to promote local
necessities and conveniences for its own community. And with respect to proprietary
functions the settled rule is that a municipal corporation can be held liable to third
persons ex contractu.
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• Question 5: The City of Cebu is exempt from all forms of damages under its Charter.
City of Manila vs Teotico
-­‐ Rule in Statutory Construction: if two statutes or laws have the same character, both
are either general or special laws, the earlier law is deemed modified, amended or
repealed by the recent law. But if both statutes or laws do not partake of the same
nature, one is special and the other is general, special law prevails over general law.
But SC said, in determining whether the law is general or special, we do not look at the
law as a whole but you look at the provision itself and while the Civil Code of the
Philippines is a general law, Article 2189 is specific. Further SC said that while the
charter of City of Manila is a special law, the declaration in the provision that it is
exempt from all forms of damages is a general provision of law. Therefore, the general
provision of law is deemed modified by the special provision of law in the Civil Code.
So, the provision of Article 2189 of the NCC prevails over the charter of the City of
Manila.
LIABILITY FOR TORTS (QUASI-DELICT)
Section 24, LGC. Liability for Damages. –
Local government units and their officials are not exempt from liability for death or
injury to persons or damage to property.
Art. 2180 NCC. –
The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who
are under their authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the branches in which the
latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
The State is responsible in like manner when it acts through a special agent; but not
when the damage has been caused by the official to whom the task done properly
pertains, in which case what is provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they remain in
their custody.
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
→ Tort: (definition)
- is a common law term which in our jurisdiction, it is called quasi-delict.
- It is a civil liability for damages, not a criminal offense. The one liable here is the LGU
and you cannot criminally sue a LGU.
• Municipality of San Fernando vs Firme (naa sa midterm nga transcript. Refer nalng.
Hehe)
- If governmental function: the LGU is not liable; if proprietary function: the LGU is liable.
- 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 of propriety functions. As
emphasized in the case of Torio vs. Fontanilla, the distinction of powers becomes
important for purposes of determining the liability of the municipality for the acts of its
agents which result in an injury to third persons.
- 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
propriety capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant is not acting in its governmental capacity
when the injury was committed or that the case comes under exceptions recognized by
law. Failing this, the claimant cannot recover.
• Merritt vs Government of the Philippines Islands
- Under article 2180 of the NCC, the responsibility of the state is limited only in cases
where it acts as a special agent, one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office, so that in representation
of the state and being bound to act as an agent thereof, he executed the trust confided
to him. This concept does not apply to any executive agent who is an employee of the
active administration and who in his own responsibility performs the functions which
are inherent in and naturally pertain to his office and which are regulated by law and
the regulations.
2011 Bar: A collision occurred involving a passenger jeepney driven by Leonardo, a cargo truck
driven by Joseph, and a dump truck driven by Lauro but owned by the City of Cebu. Lauro was
on his way to get a load of sand for the repair of the road along Fuente Street, Cebu City. As a
result of the collision, 3 passengers of the jeepney died. Their families filed a complaint for
damages against Joseph who in turn filed a third party complaint against the City of Cebu and
Lauro. Is the City of Cebu liable for the tort committed by its employee?
→ Assuming that Lauro is a regular employee and there is tort, then the San Fernando case is
the applicable jurisprudence. In the San Fernando case, SC said that driving a vehicle to load
sand for the repair of road is a governmental function. Thus, City of Cebu is not liable.
However, under section 24 of the LGC, such distinction made in the San Fernando case
cannot be found in the code, where it says LGUs and its officers are not exempt from liability
in case of death and injuries suffered by a person.
*Take note of the Spouses Jayme vs Apostol case. (in short, basaha ang kaso)
Problem: The Sanggunian Panglungsod of Carcar City ordered the construction of a wooden
stage for a play during its fiesta celebration. The stage, however, collapsed causing serious
physical injuries to the participants of the play. The participants sued Carcar City and all its SP
members for damages. May the suit prosper? If yes, who should be liable?
Torio vs Fontanilla
→ The basic rule to be first followed is that a municipal corporation cannot be held liable for an
injury caused in the course of performance of a governmental function. With respect to
By: RLB

proprietary functions, the settled rule is that a municipal corporation can be held liable upon
contracts and in torts.
→ According to 2282 of the revised Administrative Code, municipalities are authorized to hold
fiesta, but it is not their duty to conduct such. Thus, the fiesta is proprietary in nature. The
same analogy can be applied to the maintenance of parks, which is a private undertaking, as
opposed to the maintenance of public schools and jails, which are for the public service.
(The key word then is duty.)
→ Under the doctrine of respondent superior (see first paragraph of Art. 2180), the
municipality can be held liable for the death of Fontanilla if:
o the municipality was performing a proprietary function at that time; and
o negligence can be attributed to the municipality’s officers, employees or agents
performing the proprietary function.
→ The evidence proved that the committee overseeing the construction of the stage failed to
build a strong enough to insure the safety of zarzuela participants. Fontanilla was entitled to
ensure that he would be exposed to danger on that occasion.
→ The municipal council is not responsible. The Municipality stands on the same footing as an
ordinary private corporation with the municipal council acting as its board of directors. It is
an elementary principle that a corporation has a personality, separate and distinct from its
officers, directors, or persons composing it and the latter are not as a rule co-responsible in
an action for damages for tort or negligence culpa aquillana committed by the corporation’s
employees of agents unless there is a showing of bad faith or gross or wanton negligence on
their part. To make an officer of a corporation liable for the negligence of the corporation
there must have been upon his part such a breach of duty as contributed to or helped to
bring about, the injury; that is to say, he must be a participant in the wrongful act.
LIABILITY FOR CONTRACTS
• Scope:
- It is considered as a private individual when it enters into contracts. But this rule
applies only to contracts done within the authority of the LGU (intra vires). If ultra
vires, meaning outside the authority of the LGU, it can’t be held liable ex-contractu
since the contract is void and cannot be cured, in which case, the doctrine of estoppel
does not apply if the contract is void such as when the LGU already received benefits
because it will only validate an otherwise void contract. (Lexber case)
• 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 of implied municipal liability has been said to apply to
all cases where money or other property of a party is received under such
circumstances that the general law, independent of express contract implies
an obligation upon the municipality to do justice with respect to the same.
• Province of Cebu vs IAC
- Even if the contract would be voided, the contract of legal services is in the nature that
the LGU could have validly entered into, so it cannot escape liability on the basis that,
for them, it was ultra vires because it did not have the authority of the Sanggunian.
- The petitioner cannot set up the plea that the contract was ultra vires and still retain
benefits thereunder. Having regarded the contract as valid for purposes of reaping
some benefits, the petitioner is estopped to question its validity for the purposes of
denying answerability.
• Doctrine of Estoppel is not applicable in void contracts
San Diego vs Municipality of Naujan
- the doctrine of estoppel cannot be applied as against a municipal corporation to
validate a contract which it has no power to make or which it is authorized to make
only under prescribed conditions, within prescribed limitations, or in a prescribed mode
or manner, although the corporation has accepted the benefits thereof and the other
party has fully performed his part of the agreement, or has expended large sums in
preparation for performance. A reason frequently assigned for this rule is that to apply
the doctrine of estoppel against a municipality in such case would be to enable it to do
indirectly what it cannot do directly. Also, where a contract is violative of public policy,
the municipality executing it cannot be estopped to assert the invalidity of a contract
which has ceded away, controlled, or embarrassed its legislative or government
powers.
LIABILITY FOR ILLEGAL DISMISSAL
• Who should be held liable for back wages and damages, if there’s any, in case of illegal
dismissal?
- Illegal dismissal may occur, at least, in 2 ways:
1) Dismissal is declared illegal because, while there was ground for a valid
dismissal (like an EE committed misconduct), but the procedure was not
observed.
2) There was no valid ground for dismissal but was dismissed due to
malice or bad faith, then the dismissal is illegal.
- It can be a municipal liability or personal liability of the official
o Municipal liability: if the dismissal was illegal but there was absence of malice or
bad faith, the municipal government is liable.
o Personal liability of the superior: if the illegal dismissal was tainted with malice or
bad faith.
Atty. DBL’s justification: It is actually the prerogative of the state to come up with a principle
that it can only be held liable for acts that are regular and within the bounds of law and
when the act is unlawful or beyond the authority (like malice and bad faith), it cannot be
imputed to the state, hence, it should be the personal liability of the officer.
• MUNICIPAL LIABILITY
o Municipality of Jasaan vs Gentallan
- An illegally dismissed government employee who is later ordered reinstated is
entitled to backwages and other monetary benefits from the time of her
illegal dismissal up to her reinstatement. This is only fair and just because an
employee who is reinstated after having been illegally dismissed is
considered as not having left her office and should be given the
corresponding compensation at the time of her reinstatement.
- In the instant case, we note that there is no finding that malice or bad faith
attended the illegal dismissal and refusal to reinstate Gentallan by her
superior officers. Thus, they cannot be held personally accountable for her
back salaries. The municipal government, therefore, should disburse funds to
answer for her claims resulting from dismissal.
- If there was no malice or bad faith that attended the illegal dismissal, the
superior officers cannot be held personally accountable for her back
salaries. The municipal government, therefore, should disburse funds
to answer for her claims resulting from dismissal.
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*Municipal Liability despite malice
o Laganapan vs Asedillo
- The Court finds no merit in the contention of the respondent Municipality of
Kalayaan, Laguna that Mayor Elpidio Asedillo alone should be held liable for
the back salaries of the petitioner, because the records show that the action
was instituted against Mayor Asedillo, not personally, but in his capacity as
Municipal Mayor of Kalayaan, Laguna, and he appeared and defended the
action in such capacity.
- Furthermore, it is of record that, after the summary dismissal of Laganapan
by Asedillo, the Municipal Council of Kalayaan instead of opposing or at least
protesting Laganapan’s summary dismissal of his position, even abolished the
appropriation for the salary of the Chief of Police of Kalayaan – Laguna. The
Court considers this act of the Municipal Council as an approval or
confirmation of the act of respondent Mayor in summarily dismissing
Laganapan, as to make said municipality equally liable as the mayor for the
reinstatement of Laganapan and for the payment of his back salaries.
• PERSONAL LIABILITY OF THE OFFICIAL
o Correa vs CFI of Bulacan
- The municipal corporation is responsible for the acts of its officers only when
they have acted by: (1) authority of the law and; (2) in conformity
with its requirements. But a public officer who commits a tort or other
wrongful act, done in excess or beyond the scope of his duty, is not
protected by his office and is personally liable therefore like any private
individual. This principle of personal liability has been applied to cases where
a public officer removes another officer or discharges an employee
wrongfully, the reported cases saying that by reason of non-compliance with
the requirements of law in respect to removal from office, the officials were
acting outside of their official authority.
*Other cases involving personal liability of the official
o Salcedo vs CA
- For instance, the municipal mayor was held liable for the back salaries of the
Chief of Police he had dismissed, not only because the dismissal arbitrary,
but also because the mayor refused to reinstate him in defiance of an order
of the Commissioner of Civil Service to reinstate.
o Nemenzo vs Sabillano
- The municipal mayor was held personally liable for dismissing a police
corporal who possessed the necessary civil service eligibility, the dismissal
being done without justifiable cause and without any administrative
investigation.
o Rama vs CA
- The governor, vice-governor, members of the Sanggunian Panlalawigan,
provincial auditor, provincial treasurer and provincial engineer were ordered
to pay jointly and severally, in their individual and personal capacity,
damages to some 200 employees of the province of Cebu who were eased
out from their positions because of their party affiliations.
o Chavez vs Sandiganbayan
- The general rule is that public officials can be held personally accountable for
acts claimed to have been performed in connection with official duties where
they have acted ultra vires or where there is a showing of bad faith.
• ENFORCEMENT OF MONETARY JUDGMENT
→ What will the sheriff do if there is favorable judgment in favor of the plaintiff and
against the LGU?
- 1st, the sheriff will ask the LGU to pay in cash to satisfy the judgment.
- 2nd, if the mayor will say that they will not pay, to look for patrimonial properties
because patrimonial properties are not exempt from execution.
- 3rd, if there is no patrimonial properties, especially in LGU that are not that rich,
then the remedy is MANDAMUS for the appropriation for the funds.
o Municipality of Makati vs CA
1) Levy on the patrimonial property of the judgment local government unit;
2) When a municipality fails or refuses, without justifiable reason, to effect payment
of a final money judgment rendered against it, the claimant may avail of the
remedy of mandamus in order to compel the enactment and approval of the
necessary appropriation ordinance that the correspondent disbursement of
municipal funds.
ELECTIVE OFFICIALS
QUALIFICATIONS
Section 39. Qualifications. –
(a) 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 one (1) year
immediately preceding the day of the election; and able to read and write Filipino or
any other local language or dialect.
(b) Candidates for the position of governor, vice-governor, or member of the
sangguniang panlalawigan, or mayor, vice-mayor or member of the sangguniang
panlungsod of highly urbanized cities must be at least twenty-one (21) years of age on
election day.
(c) Candidates for the position of mayor or vice-mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of age
on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang
barangay must be at least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age
but not more than twenty-one (21) years of age on election day.
2005 Bar: In the May 8, 1995 election for local officials whose terms were to commence on June
30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor of
Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that he
is repatriated Filipino citizen and a resident of the Province of Laguna. To be qualified for the
office to which a local official has been elected, when at the latest should he:
(a) A Filipino citizen? Explain.
(b) A resident of the locality? Explain.
By: RLB

→ Answer:
- Question (a): The citizenship requirement in the LGC refer to that of “Elective” officials,
not of “Candidates”, hence, this qualification needs to be possessed by the official not
at the time he filed his certificate of candidacy but at the time of the commencement of
office, after he takes his oath of office and assumes his post. (Frivaldo case)
*FRIVALDO DOCTRINE – the date of repatriation shall retroact to the date of the
application for repatriation.
- Question (b): The term residence is synonymous with domicile, which imports not only
intention to reside in a fixed place but also personal presence in that place, coupled
with conduct indicative of such intention, at least 1 year immediately preceding the
election. (Gallego case)
• Qualifications:
a) Citizen of the Philippines
b) Registered voter in the locality/district where he intends to be elected
c) Resident in the locality/district where he intends to be elected at least 1 year
immediately preceding the election
d) Able to read and write Filipino or any local language or dialect.
e) Age: 23, 21, 18, 15-18
A. Citizenship
→ Natural-born; or
→ Naturalized
NOTE: citizenship requirement does not specify that the local elective official be a natural
born, unlike the President, VP, Senators, House of Representatives, Justices of the SC,
Ombudsman and the members of the Constitutional Commissions that they must be natural-
born Filipinos. In the case of local elective officials, it is not required. So even if a naturalized
Filipino can be a mayor.
• Frivaldo vs Comelec
- The law does not specify any particular date or time when the candidate must
possess citizenship, unlike that for residence (which must consist of at least one
year's residency immediately preceding the day of election) and age (at least
twenty three years of age on election day).
- So too, even from a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of "Qualifications" of
"ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be
required at the time of election or at the time of the filing of the certificates of
candidacies, as Lee insists? Literally, such qualifications -- unless otherwise
expressly conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the
time he is proclaimed and at the start of his term -- in this case, on June 30, 1995.
Thus, if the purpose of the citizenship requirement is to ensure that our people
and country do not end up being governed by aliens, i.e., persons owing
allegiance to another nation, that aim or purpose would not be thwarted but
instead achieved by construing the citizenship qualification as applying to the time
of proclamation of the elected official and at the start of his term.
- Therefore, the citizenship requirement in the LGC is to be possessed by an elective
official at the latest as of the time he is proclaimed and at the start of the term of
office to which he has been elected. Registration under PD 725 (Repatriation) is
valid and effective and retroacts to the date of the application. Thus, Frivaldo’s
repatriation is to be given effect as of the date of his application therefor.
B. Residence (Residence is synonymous with “domicile” in election laws.)
→ Residence: (1) temporary – physical presence for particular or temporary purpose or
calling; or (2) permanent
→ Domicile: permanent (coupled with animus manendi)
• When is residence temporary or permanent?
- Residence is temporary depending on the purpose. It’s not the length but the
purpose.
o If the purpose for being there physically is temporary, then that place is
your temporary residence. A purpose is temporary if there is a
definite beginning and a definite end, such as:
- studying (from enrollment to graduation, unless otherwise
expelled earlier. haha)
- business
- exercise of profession
- working abroad looking for greener pasture.
o Otherwise, it is permanent. SC said that a permanent undertaking or
purpose is to live in a family or conjugal dwelling (because “till death do
us part” mana dili mana “till annulment, do us part.”)
→ For purposes of Election Law, there are 2 kinds of domicile:
(1) Domicile of origin – domicile of your parents at the time of your birth.
(2) Domicile of choice – when you change your domicile of origin and acquire
a new one, then that is now your domicile of choice.
*VERY IMPORTANT PRINCIPLE: there can only be one domicile at a time. But there can be
two ore more residences at a time.
MCQ Problem: X, a natural-born Filipino citizen, studied law in the University of San Carlos
in Cebu City from 1990 until 1994. He became a member of the Philippine Bar in 1995. In
1998, he went to Harvard University in the USA and studied Master of Laws (LLM) in
International Law. (murag educational background lagi ni Atty. DBL aaaai..) He finished his
LLM-International Law degree in 2001 after which he worked as paralegal of an American
law firm specializing in International Law practice until 2007. In 2008, he came back to the
Philippines and is now contemplating of running for Governor in the Province of Cebu in the
2013 local elections. What should X prove in order to establish that he has complied with the
residence requirement? Answer: C
A. Physical presence in Cebu Province since 2008, animus manendi in the
Philippines, and animus non-revertendi to the US;
B. Physical presence in the Philippines since 2008, animus manendi in the
Philippines, animus revertendi in the Philippines;
C. Animus manendi in the Philippines and animus revertendi to the Philippines;
D. Animus manendi in the Philippines and animus non-reventendi to the US.
Example: Assuming Mr. Tiu is married, his wife and children resides in Surigao City but Mr.
Tiu is living in Cebu City to study law. Assuming he is already a lawyer, he plans to run for
Mayor of Surigao City. His opponent questioned his candidacy and argued that Mr. Tiu is not
By: RLB

anymore a residence of Surigao City because you have acquired a new residence, Cebu City.
What does Mr. Tiu needs to establish in order to qualify to run for Mayor in Surigao City?
Answer: Mr. Tiu has to established non-abandonment of domicile. And it would
require facts to established such non-abandonment, such as: (1) I have not
abandoned my domicile in Surigao City because my wife is still there (although I
hate her) and I still have my children there in Surigao City; (2) We still have our
conjugal dwelling and business in Surigao City.
And in contrast, while I am physically here in Cebu City, I have not performed acts
indicative of the intention to live permanently in Cebu City because of the
following: (1) I’m just residing in an apartment, so it’s temporary because it is an
apartment; (2) I have not acquired big assets, I have not transferred my business
here.
• Proof of Non-Abandonement of Domicile
- Animus manendi (the intent to live permanently) and
- Animus revertindi (the intention to return to the domicile, meaning, this
presupposes that you have been absent for a while)
Another Example: In lieu with the previous example, instead of running for mayor in
Surigao City, Mr. Tiu is now running for Mayor in Cebu City. His opponent in Cebu is
questioning his residency and Mr. Tiu that he is actually a resident of Surigao City.
Therefore, Mr. Tiu is disqualified to run for Mayor in Cebu City. What does Mr. Tiu needs to
establish in order to qualify to run for Mayor in Cebu City?
Answer: No, I have abandoned Surigao City already. Wai ayu ang Surigao City.
Because (1) I am in actual physical presence in the new domicile, evidenced by a
certification issued by the Brgy. Captain showing that I have a residence and
community tax; (2) I have acquired a new residential house, an indication that I
intent to live permanently in Cebu City; (3) I have asked my family to come live
with me in Cebu City and I have sold my conjugal dwelling and business in
Surigao City, showing my intention not to go back there.
• Proof of Abandonment of Old Domicile (Gallego vs Romualdez Case):
- Actual physical presence in the new domicile
- Animus manendi in the new domicile, and
- Animus non-revertendi (intention not to return) to domicle of origin
*Rest house is not proof of the intent to live permanently, on the contrary, it is proof of
intent not to live permanently. No matter how long you stay in a rest house, it shall
never be considered as a domicile. Why? The purpose of going to a rest house is TO
REST. It’s not permanent, it’s temporary. (The only permanent purpose that has to do
with rest is rest in peace. HAHA) – Domino vs Comelec
• Faypon vs Quirino
- Mere absence from one's residence of 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 person's 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 lost his residence of origin must show and prove preponderantly
such abandonment or loss. A previous registration as voter in a municipality other
than that in which he is elected is not sufficient to constitute abandonment or loss
of his residence of origin.
- A citizen may leave the place of his birth to look for “greener pastures”, as the
saying goes, to improve his lot, and that, of course includes study in other places,
practice of his avocation, or engaging in business. When an election is to be held,
the citizen who left his birthplace to improve his lot may desire to return to his
native town to cast his ballot, but for professional or business reasons, or for any
other reason, he may not absent himself from the place of his professional or
business activities; so there he registers as voter as he has the qualifications to be
one and it not willing to give up or lose the opportunity to choose the officials who
are to run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or residence of
origin, has not forsaken him. This may be the explanation why the registration of
a voter in a place other than his residence of origin has not been deemed
sufficient to constitute abandonment or loss of such residence. It finds justification
in the natural desire and longing of every person to return to the place of his
birth. This strong feeling of attachment to the place of one’s birth must be
overcome by positive proof of abandonment for another.
• Coquilla vs Comelec
- The term "residence" is to be understood not in its common acceptation as
referring to "dwelling" or "habitation", but rather to "domicile" or legal residence,
that is, "the 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 child’s parents reside
and continues until the same is abandoned by acquisition of new domicile
(domicile of choice).
- naturalization in foreign country results in abandonment of residency, not
citizenship because of RA 9225
• Caasi vs CA
- 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.
• S. Jalosjos vs Comelec
- To be an actual and physical resident of a locality, one must have a dwelling place
where one resides no matter how modest and regardless of ownership. The mere
purchase of a parcel of land does not make it one's residence. The fact that the
residential structure where petitioner intends to reside was still under construction
on the lot she purchased means that she has not yet established actual and
physical residence in the barangay.
- A temporary stay in a stranger's house cannot amount to residence. Petitioner's
stay in the house of Mrs. Yap in Brgy. Punta Miray was only a temporary and
intermittent stay that does not amount to residence. It was never the intention of
petitioner to reside in that barangay, as she only stayed there at times when she
was in Baliangao while her house was being constructed. Her temporary stay in
Brgy. Punta Miray cannot be counted as residence in Baliangao.
- Approval of voter registration does not presupposes six-month residency in the
place prior to registration. It is not conclusive and at best, the approval of her
registration as a voter carries a presumption that the registrant will be able to
meet the six-month residency requirement for the elections in which the registrant
intends to vote. It does not prove that the registrant has resided in the locality for
more than one year prior to the elections.
By: RLB

DISQUALIFICATIONS
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;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) 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;
and
(g) The insane or feeble-minded.
Additional Disqualifications:
R.A. 8295 (Lone Candidate Law): Section 4. Disqualification – In addition to the
disqualifications mentioned in Sections 12 and 68 of the Omnibus Election Code and Sec. 40 of
Republic Act No. 7160, otherwise known as the Local Government Code, whenever the evidence
of guilt is strong, the following persons are disqualified to run in a special election called to fill the
vacancy in an elective office, to wit:
h) Any elective official who has resigned from his office by accepting an appointive
office or for whatever reason which he previously occupied but has caused to become
vacant due to his resignation; and
i) Any person who, directly or indirectly, coerces, bribes, threatens, harasses,
intimidates or actually causes, inflicts or produces any violence, injury, punishment,
torture, damage, loss or disadvantage to any person or persons aspiring to become a
candidate or that of the immediate member of his family, his honor or property that is
meant to eliminate all other potential candidate.
ü Sec. 12, Omnibus Election Code – insane, incompetents, guilty of acts of disloyalty to the
government, etc…
ü Sec. 68, Omnibus Election Code – vote buying, acts of terrorism, and other election
offenses
ü Sec. 69, Omnibus Election Code – Nuisance candidate
→ The disqualifications of elective officials and candidate are not exclusively listed in the
LGC. Section 40 of the LGC is not the only source of grounds for disqualifications. There
are many other laws that also provide for disqualification.
Problem: In 2008, X was convicted of Violation of BP Blg. 22 (Bouncing Checks Law) and was
sentenced to serve a maximum six months of imprisonment. X wants to run for Governor of the
Province of Cebu in the 2013 elections.
A. Is X disqualified to run for local position by reason of his conviction?
B. Will your answer be the same if X had instead applied for and was granted
probation?
→ Answer:
- Question A: Section 40(a) of the LGC states that those persons 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 is
disqualified from running for any elective local position.
But the problem is silent if the conviction is by final judgment. And the phrase “was
sentenced to serve” does not mean he actually served the sentence. SO QUALIFY
NALANG KA SA IMUNG ANSWER…
Assuming that there was no appeal, and he in fact served the sentence, he is
disqualified because BP Blg. 22 is a violation involving moral turpitude, as held in
Moreno vs Comelec.
- Question B: Moreno vs Comelec — An order/grant placing defendant on probation is
not a sentence but is rather, in effect, a suspension of the imposition of sentence. The
period within which a person is under probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of
probation suspends the execution of the sentence. During the period of probation, the
probationer does not serve the penalty imposed upon him by the court but is merely
required to comply with all the conditions prescribed in the probation order.
A. Sentenced by final judgment for (1) offense involving moral turpitude or (2)
offense punishable by 1 year or more of imprisonment, within 2 years after service of
sentence.
→ The disqualification applies if there is service of sentence and is good only for 2 years
after service of sentence. NOT PERPETUAL DISQUALIFICATION.
→ If you get convicted with a crime involving moral turpitude by final judgment and after
serving the sentence, the disqualification extends to 2 years after serving of sentence.
It means that after 2 years, you become qualified to run.
→ Also, if you have been sentenced with final judgment of an offense with a penalty of “1
year or more” and after service of sentence, the disqualification stays for 2 years. After
that, you become qualified.
→ The phrase "within two (2) years after serving sentence" is interpreted and understood
to apply both to those who have been sentenced by final judgment for an offense
involving moral turpitude and to those who have been sentenced by final judgment for
an offense punishable by one (1) year or more of imprisonment. The placing of the
comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of
the Local Government Code.
• Meaning of Moral Turpitude
-­‐ Defined as everything which is done contrary to justice, modesty, or good morals;
an act of baseness, vileness or depravity in the private and social duties which a
man owes his fellowmen, or to society in general.
-­‐ Whether it is “malum prohibitum” or “malum in se”, it is not the test.
• Examples of MORAL TURPITUDE crimes:
→ Hanrieder vs De Rivera (Bouncing Checks Law)
- The Administrative Code of 1987 provides that conviction for a crime
involving moral turpitude is a ground for disciplinary action. The Uniform
Rules on Administrative Cases in the Civil Service states that conviction for a
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crime involving moral turpitude is a grave offense and upon the first offense,
the penalty of dismissal must be meted out. Further, this Court characterized
the violation of B.P. 22 as a crime involving moral turpitude because in
issuing a check with the knowledge of insufficiency of funds, it is a showing
of a lack of moral values.
→ De la Torre vs Comelec (Anti-Fencing Law)
- Dili ni katung anti-fencing that you cannot construct a fence without permit.
Kabaw namu unsa ni… It’s is a crime involving moral turpitude.
- Petitioner's conviction of fencing, which we have heretofore declared as a
crime of moral turpitude and thus falling squarely 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.
• Effect of Probation – refer to Moreno vs Comelec
-­‐ If you apply for probation, the consequence is you do not serve your sentence.
Thus, according the Supreme Court, the period of disqualification could not even
begin to run.
Question: If you get convicted of a crime involving moral turpitude and this crime is
punished the RPC with a penalty that carries an accessory penalty of absolute perpetual
disqualification to hold public office. So 2 years after serving your sentence, are you
qualified to run?
→ Jalosjos vs Comelec (June 18, 2013)
- Art. 40 of the LGC and Perpetual Disqualification to Hold Office under RPC
- While Section 40 (a) of the LGC allows a prior convict to run for local elective
office after the lapse of two (2) years from the time he serves his sentence,
the said provision should not be deemed to cover cases wherein the law
imposes a penalty, either as principal or accessory, which has the effect of
disqualifying the convict to run for elective office.
- Section 40 (a) of the LGC refers to a temporary disqualification and SC has
qualified such temporary disqualification by the RPC. Therefore, if the penalty
imposed, either as perpetual or accessory, is a PERPETUAL
DISQUALIFICATION to hold office, it is a permanent disqualification.
B. Removed from office as a result of an administrative case.
→ The removal contemplated here means that it is an administrative penalty. The official
has been removed because he was disciplined and punished. E.g. misconduct and other
disciplinary grounds. (murag mugawas jud ni sa exam kay ana xa, “aku class kay
honest man ku, aku g.present ni daan pra ig.exam kay wa’i mahayay. Wa na jud ku’i
sala ana. HAHAHAH)
→ Excluded in this situation is when you’re removed from office if, for example, assuming
there’s a case pending against the official by the COMELEC, and you were ordered to
vacate the office because of the rule that you are disqualified to hold office, it’s not a
removal as a result of an administrative case.
Problem: X, was the City attorney of Cebu City in 1985. He was accused of having received
bribes from businessmen in exchange for favorable legal opinions. Mayor Y initiated an
administrative case that resulted to the removal of X, sometime in 1988. X, who had been
living a private life since 1988, is now planning to run for Mayor for the City of Cebu in the
2013 elections against Mayor Z, the incumbent mayor and son of Mayor Y. Mayor Z is
questioning his eligibility on the ground that he was earlier removed form office as a result
of an administrative case. X counter-argued that the disqualification will not apply to him
because he was removed from an “appointive”, not from an “elective” office (OBO).
→ At the time an official is removed, is it necessary to determine whether he is
holding an elective position? NO. Because the provision only states, “removed
from office”, and SC said it could be ANY office, whether elective or appointive.
Further, SC held the provision under Article 40 (b) of the LGC is a new provision,
hence, it cannot be given retroactive application. Therefore, if the candidate was
earlier removed before the effectivity of the 1991 LGC, the said disqualification will
not apply to him. But the if the candidate was removed from office during the
effectivity of the LGC, the disqualification applies.
• Prospective application, thus, only applicable to those persons removed from office
as a result of an administrative case during the effectivity of the LGC of 1991, meaning
if removed from office as a result of an administrative case before the LGC of 1991, it’s
not a ground for disqualification.
→ Grego vs Comelec
- 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." (Underscoring
supplied). That the provision of the Code in question does not qualify the
date of a candidate's removal from office and that it is couched in the past
tense should not deter us from applying the law prospectively. The basic
tenet in legal hermeneutics that laws operate only prospectively and not
retroactively provides the qualification sought by petitioner. A statute, despite
the generality in its language, must not be so construed as to overreach acts,
events or matters, which transpired before its passage. Lex prospicit, non
respicit. The law looks forward, not backward.
• Any “office” – whether removed from an office held as an elective or appointive
official because what’s important is you’ve been removed as a result of an
administrative case.
→ Osorio vs Comelec
- Article 40 (b) of the LGC states "removed from office" without any
qualification. It is a cardinal rule in statutory construction that when the law
does not distinguish, we must not distinguish, in accordance with the maxim
ubi lex non distinguit nec nos distinguere debemus.
C. Convicted by final judgment for violating the oath of allegiance to the Republic.
→ Espionage; Rebellion; Coup d’état; Sedition; Treason.
→ Apparently the Court has not enumerated all offenses or crimes that belong to crimes
involving oath of allegiance.
D. Those with dual citizenship
→ Dual citizenship here means dual allegiance. It is dual allegiance that is declared by the
Constitution as inimical to the national interest, not dual citizenship, and must be dealt
with by law. Indeed there is danger in having a person showing dual allegiance, naa
man gali na ang danger sa husband showing dual allegiance, dba? Kana na nuon
national security matters.
• 3 ways of Naturalization in the Philippines:
1) Judicial – go to court, but expensive and lengthy process because you
have a lot of expenses and must comply with the residency requirement of
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10 years or 5 years, as the case maybe. And after judgment, there is a 2
year-probation before the judgment becomes final.
2) Direct act of Congress – quick but most expensive because nothing will
happen to your request if you don’t ask a congressman to faithfully and
expeditiously process such bill to confirm citizenship to an individual. In
short, mag.under the table ka sa congressman kay you cannot have it all
man jud class. Give and take situation. You want it done swiftly, you pay.
3) Administrative – (applicable only to aliens or foreigners born in the
Philippines and have been residing in the Philippines since birth) Go to the
special committee of naturalization at the office of immigration. Not so
expensive because the filing fee is only 40K then 20K for each beneficiaries,
like if a spouse or minor children will also acquire citizenship, otherwise called
derivative citizenship;
• Mercado vs Manzano
-­‐ Dual citizenship is different from dual allegiance. The former arises when, as a
result of the concurrent application of the different laws of two or more states, a
person is simultaneously considered a national by the said states. For instance,
such a situation may arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the
citizenship clause (Art. IV) of our Constitution, it is possible for the following
classes of citizens of the Philippines to posses dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if
by the laws of their fathers' country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the latter's country the
former are considered citizens, unless by their act or omission they are
deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without
performing any act, be also a citizen of another state; but the above cases are
possible given the constitutional provisions on citizenship.
-­‐ Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While
dual citizenship is involuntary, dual allegiance is the result of an individual's
volition. With respect to dual allegiance, Article IV, Section 5 of the Constitution
provides: "Dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law."
-­‐ The phrase "dual citizenship" in R.A. No. 7160, Section 40(d) must be understood
as referring to "dual allegiance." Consequently, persons with mere dual citizenship
do not fall under this disqualification. Unlike those with dual allegiance, who must,
therefore, be subject to strict process with respect to the termination of their
status, for candidates with dual citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect Philippine citizenship to terminate their
status as persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. As Joaquin G.
Bernas, pointed out: "Dual citizenship is just a reality imposed on us because we
have no control of the laws on citizenship of other countries. We recognize a child
of a Filipino mother. But whether or not she is considered a citizen of another
country is something completely beyond our control." By electing Philippine
citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws,
such an individual has not effectively renounced his foreign citizenship.
-­‐ By filing a certificate of candidacy when he ran for his present post, private
respondent elected Philippine citizenship and in effect renounced his
American citizenship, effectively removing any disqualification he might
have as a dual citizen.
• There are at least 2 ways by which a person can acquire dual citizenship:
a) By birth – where there is a concurring application of jus soli and jus
sanguini principles
b) Apply for naturalization in the foreign country and before availing of RA
9225 (Dual Citizenship Reacquisition Retention Act of 2003)
*RA 9225:
-­‐ elements—(1) former natural-born Filipino; (2) apply for
naturalization in a foreign country; (3) take oath of allegiance
-­‐ are deemed not to have lost their Philippine citizenship, and can
require it by taking the oath of allegiance
-­‐ What necessarily is the consequence to the 2nd citizenship when
the person takes his oath of allegiance to the Philippines, when our
laws do not have any effect at all on foreign laws? Dba? So it is still
possible to have, technically, dual citizenship.
• Cordora vs Comelec
-­‐ Tambunting has dual citizenship. His trips showed that he is both American and
Filipino. (Art. IV) of our Constitution, it is possible for the following classes
of citizens of the Philippines opposes dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries;
(2) Those born in the Philippines of Filipino mothers and alien fathers
if by the laws of their fathers’ country such children are citizens of that
country;
(3) Those who marry aliens if by the laws of the latter’s country the
former are considered citizens, unless by their act or omission theyare
deemed to have renounced Philippine citizenship.
-­‐ Dual Citizenship is not a ground for disqualification from running from any elective
local position.
-­‐ Dual Citizenship is different from Dual Allegiance. Dual citizenship is involuntary
and arises when, as a result of the concurrent application of the different laws of
two or more states, a person is simultaneously considered a national by the said
states. This means that a person who has dual citizenship already acquired both
citizenships since birth. No act done to acquire the citizenship Like any other
natural-born Filipino, it is enough for a person with dual citizenship who seeks
public office to file his certificate of candidacy and swear to the oath of allegiance
contained therein. Dual allegiance is brought about by the individual’s active
participation in the naturalization process. Tambunting did not fail to meet the
residency requirement. The residency requirement is not dependent upon
citizenship.
• Maquiling vs Comelec (April 16, 2013; July 2, 2013)
-­‐ The use of foreign passport after renouncing one's foreign citizenship is a positive
and voluntary act of representation as to one's nationality and citizenship; it does
not divest Filipino citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective position.
By: RLB

-­‐ By using his foreign passport, Arnado positively and voluntarily represented
himself as an American, in effect declaring before immigration authorities of both
countries that he is an American citizen, with all attendant rights and privileges
granted by the United States of America.
-­‐ The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an absolute
and perpetual renunciation of the foreign citizenship and a full divestment of all
civil and political rights granted by the foreign country which granted the
citizenship.
-­‐ This act of using a foreign passport after renouncing one's foreign citizenship is
fatal to Arnado's bid for public office, as it effectively imposed on him a
disqualification to run for an elective local position.
-­‐ Arnado's category of dual citizenship is that by which foreign citizenship is
acquired through a positive act of applying for naturalization. This is distinct from
those considered dual citizens by virtue of birth, who are not required by law to
take the oath of renunciation as the mere filing of the certificate of candidacy
already carries with it an implied renunciation of foreign citizenship. Dual citizens
by naturalization, on the other hand, are required to take not only the Oath of
Allegiance to the Republic of the Philippines but also to personally renounce
foreign citizenship in order to qualify as a candidate for public office.
-­‐ This requirement of renunciation of any and all foreign citizenship, when read
together with Section 40 (d) of the Local Government Code which disqualifies
those with dual citizenship from running for any elective local position, indicates a
policy that anyone who seeks to run for public office must be solely and
exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine
citizenship to continue using a foreign passport — which indicates the recognition
of a foreign state of the individual as its national — even after the Filipino has
renounced his foreign citizenship, is to allow a complete disregard of this policy.
E. Fugitives from justice in criminal or non-political crimes here or abroad
→ includes “fugitives from prosecution” – those who flee after the charge to avoid
prosecution, which involves a question of intent
• Fugitive from justice can be interpreted in 2 ways:
a. Flee to avoid prosecution
b. Flee to evade punishment
Problem: X was an accountant of a private company in California, USA. The Company, after
suffering from huge losses, decided to close its business last January 2012. X decided to go
back to the Philippines and booked last March 2012 a ticket for a September 9, 2012 trip to
the Philippines. In April of 2012, X accepted a part-time job from ABC Financing Company in
California. X arrived in the Philippines last September 10, 2012 and is now planning to run
for Governor in the Province of Cebu next year.
A. Assume that a case for Estafa was filed by ABC Financing against X on September
20, 2012.
B. Assume that a case for Estafa was filed by ABC Financing against X on September
8, 2012.
Answer: Rodriguez vs Comelec
-­‐ A "fugitive from justice" includes not only those who flee after conviction to avoid
punishment but likewise who, after being charged, flee to avoid prosecution." 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.
-­‐ Fugitive from justice" as a ground for the disqualification or ineligibility of a person
seeking to run for any elective local position under Section 40(e) of the Local
Government Code, should be understood according to the definition given in the
MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who
flee after conviction to avoid punishment but likewise those who, after being
charged, flee to avoid prosecution." Intent to evade on the part of a candidate
must therefore be established by proof that there has already been a conviction or
at least, a charge has already been filed, at the time of flight. Not being a "fugitive
from justice" under this definition, Rodriguez cannot be denied the Quezon
Province gubernatorial post.
*So apparently, even if you have received a demand letter stating that “you hereby
being asked to return the misappropriated amount of 1M USD. And you don’t answer
the demand letter and you booked a flight, go back to the Philippines, you did not even
know that a charge was filed against you. Do you think that’s a sound threshold that
there must be a charge? Then you have to establish knowledge? In order to connect
that the purpose of the flight was really to avoid prosecution? YES.
ü Narrow application of the Principle of Fugitive from Justice
(1) There must first be a charge
(2) There is the act of fleeing
(3) Then you establish knowledge that the act of fleeing is because of
the indictment
F. Permanent Residents in 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
→ Another disqualification is when you acquire permanent immigrant status abroad.
G. The insane and the feeble-minded.
→ You know these people. IT TAKES ONE TO KNOW ONE. HAHAHA
VERY IMPORTANT: The disqualifications in Section 40 are CONTINUING disqualifications. It’s
not that you only consider Section 40 upon the filing of the certificate of candidacy because these
are continuing.
Example: So even if during his first term X was eligible, but in the middle of his term he
acquired permanent immigrant status in the US or became insane. Then he is now susceptible to
a quo warranto case filed against him because he becomes ineligible already.
Question: What about ecclesiastic? Are they qualified or disqualified? – DISQUALFIED. But what
about Ed Panlilio? Why did he became Governor? Being governor is not a municipal official while
the Admin Code refers to municipal office.
→ In the old Administrative Code, there was a provision, Section 2175, that states that “in
no case shall there be elected or appointed to a municipal office: (1) ecclesiastics; (2)
soldiers in active service; (3) persons receiving salaries or compensation from provincial
or national funds; or (4) contractors for public works of the municipality.”
• Pamil vs Teleron
-­‐ The challenged Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the
religious freedom guaranteed by the Constitution. To so exclude them is to impose a
By: RLB

religious test. Being an ecclesiastic, therefore, professing a religious faith suffices to
disqualify for a public office.
MANNER OF ELECTION
Section 41. Manner of Election. –
(a) The governor, vice-governor, city mayor, city vice-mayor, municipal mayor,
municipal vice-mayor, and punong barangay shall be elected at large in their respective
units by the qualified voters therein. However, the sangguniang kabataan chairman for
each barangay shall be elected by the registered voters of the katipunan ng kabataan,
as provided in this Code.
(b) The regular members of the sangguniang panlalawigan, sangguniang panlungsod,
and sangguniang bayan shall be elected by district, as may be provided for by law.
Sangguniang barangay members shall be elected at large. The presidents of the
leagues of sanggunian members of component cities and municipalities shall
serve as ex officio members of the sangguniang panlalawigan concerned. The
presidents of the "liga ng mga barangay and the pederasyon ng mga sangguniang
kabataan" elected by their respective chapters, as provided in this Code, shall serve as
ex officio members of the sangguniang panlalawigan, sangguniang panlungsod, and
sangguniang bayan.
(c) In addition thereto, there shall be one (1) sectoral representative from the women,
one (1) from the workers, and one (1) from any of the following sectors: the urban
poor, indigenous cultural communities, disabled persons, or any other sector as may be
determined by the sanggunian concerned within ninety (90) days prior to
the holding of the next local elections as may be provided for by law. The
COMELEC shall promulgate the rules and regulations to effectively provide for the
election of such sectoral representatives.
RA 8553 - Section 1. Sec. 41(b) of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, is hereby amended to read as follows:
(b) The regular members of the sangguniang panlalawigan, sangguniang panlungsod,
and sangguniang bayan shall be elected by district as follows:
- First and second-class provinces shall have ten (10) regular members;
- third and fourth-class provinces, eight (8);
- fifth and sixth-class provinces, six (6):
Provided, That in provinces having more than five (5) legislative districts,
each district shall have two (2) sangguniang panlalawigan members, without
prejudice to the provisions of Sec. 2 of Republic Act No. 6637.
Sangguniang barangay members shall be elected at large. The presidents of the
leagues of sanggunian members of component cities and municipalities shall serve as
ex officio members of the sangguniang panlalawigan concerned. The presidents of the
liga ng mga barangay and the pederasyon ng mga sangguniang kabataan elected by
their respective chapters, as provided in this Code, shall serve as ex officio members of
the sangguniang panlalawigan, sangguniang panlungsod, and sangguniang bayan.
• LCE and Vice – at large
• Sanggunian Members of Province, City and Municipality – by district
• Sanggunian Members of Barangay – at large
DATE OF ELECTION
Section 42. Date of Election. –
Unless otherwise provided by law, the elections for local officials shall be held every
three (3) years on the second Monday of May
→ Schedule: Every 3 years on the 2nd Monday of May, unless otherwise provided for by
law.
→ For Local Elections: the constitutional mandate is synchronization of local and
national elections. (Kida vs Senate case)
TERM OF OFFICE
Constitution: Section 8, Article 10 – 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.
*Thus, involuntary relinquishment of office is considered an interruption in the
continuity of his service for the full term for which he was elected.
RA 8524 -
Section 1. Sec. 43 of Republic Act No. 7160, otherwise known as the Local Government
Code of 1991, is hereby amended to read as follows:
Sec. 43. Term of office. –
(a) The term of office of all elective officials elected after the effectivity of
this Code shall be three (3) years, starting from noon of June 30, 1992 or
such date as may be provided for by law, except that of elective barangay
officials and members of the sangguniang kabataan: Provided, That all local
officials first elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June 30, 1992.
(b) No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.
(c) The term of barangay officials and members of the sangguniang kabataan
shall be for five (5) years, which shall begin after the regular election of
barangay officials on the second Monday of May 1997: Provided, That the
sangguniang kabataan members who were elected in the May 1996 elections
shall serve until the next regular election of barangay officials.
RA 9164 - AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG
KABATAAN ELECTIONS, AMENDING REPUBLIC ACT NO. 7160, AS AMENDED, OTHERWISE
KNOWN AS THE "LOCAL GOVERNMENT CODE OF 1991", AND FOR OTHER PURPOSES
Section 1. Date of Election. – There shall be synchronized barangay and sangguniang
kabataan elections which shall be held on July 15, 2002. Subsequent synchronized
barangay and sangguniang kabataan elections shall be held on the last Monday of
October and every three (3) years thereafter.
By: RLB

Section 2. Term of Office. –The term of office of all barangay and sangguniang
kabataan officials after the effectivity of this Act shall be three (3) years.
No barangay elective official shall serve for more than three (3) consecutive terms in
the same position: Provided, however, That the term of office shall be reckoned from
the 1994 barangay elections. 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 the elective official was elected.
Section 3. Registration. – For purposes of the July 15, 2002 synchronized barangay
and sangguniang kabataan elections provided under this Act, a special registration of
voters for the sangguniang kabataan shall be fixed by the Commission on Elections
(COMELEC). Subsequent registration of barangay and sangguniang kabataan voters
shall be governed by Republic Act No. 8189.
Section 4. Assumption of Office. – The term of office of the barangay and sangguniang
kabataan officials elected under this Act shall commence on August 15, 2002. The term
of office of the barangay and sangguniang kabataan officials elected in subsequent
elections shall commence at noon of November 30 next following their election.
Section 5. Hold Over. – All incumbent barangay officials and sangguniang kabataan
officials shall remain in office unless sooner removed or suspended for cause until their
successors shall have been elected and qualified. The provisions of the Omnibus
Election Code relative to the failure of elections and special elections are hereby
reiterated in this Act.
Section 6. Section 424 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, is hereby amended to read as follows:
Sec. 424. Katipunan ng Kabataan. – The katipunan ng kabataan shall be
composed of Filipino citizens actually residing in the barangay for at least six
(6) months, who are fifteen (15) but less than eighteen (18) years of age on
the day of the election, and who are duly registered in the list of the
sangguniang kabataan or in the official barangay list in the custody of the
barangay secretary.
Section 7. Section 428 of Republic Act No. 7160, otherwise known as the Local
Government Code of 1991, is hereby amended to read as follows:
Sec. 428. Qualifications. – An elective official of the sangguniang
kabataan must be a Filipino citizen, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately
prior to election, at least fifteen (15) years but less than eighteen (18) years
of age on the day of the election, able to read and write Filipino, English, or
the local dialect, and must not have been convicted of any crime involving
moral turpitude.
Section 8. Appropriation. – The amount of one billion one hundred million pesos
(P1,100,000,000.00) needed for the purpose shall be charged from the appropriation of
the COMELEC authorized under Republic Act No. 9162, otherwise known as the FY
2002 General Appropriations Act.
In addition, the savings of the COMELEC not exceeding three hundred million pesos
(P300,000,000.00) shall be used to augment said appropriations as authorized under
COMELEC Special Provision No. 2 of the Republic Act No. 9162.
The funds mentioned above may be augmented by an amount not exceeding ten
percent (10%) of the sangguniang kabataan funds reserved pursuant to Section 532
(c) of Republic Act No. 7160.
Section 9. Applicability of Other Election Laws. – The Omnibus Election Code and other
existing election laws, as far as practicable, shall apply to barangay and sangguniang
kabataan elections.
RA 9340 - AN ACT AMENDING REPUBLIC ACT NO. 9164, RESETTING THE BARANGAY AND
SANGGUNIANG KABATAAN ELECTIONS, AND FOR OTHER PURPOSES
SECTION 1. Section 1 of Republic Act No. 9164 is hereby amended to read as follows:
SECTION 1. Date of Election. - There shall be synchronized barangay and
sangguniang kabataan elections which shall be held on July 15, 2002.
Subsequent synchronized barangay and sangguniang kabataan elections shall
be held on the last Monday of October 2007 and every three (3) years
thereafter.
SEC. 2. Section 4 of Republic Act No. 9164 is hereby amended to read as follows:
SEC. 4. Assumption of Office. - The term of office of the barangay and
sangguniang kabataan officials elected under this Act shall commence on
August 15, 2002, next following their elections. The term of office of the
barangay and sangguniang kabataan officials elected in the October 2007
election and subsequent elections shall commence at noon of November 30
next following their election.
SEC. 3. Section 5 of Republic Act No. 9164 is hereby amended to read as follows:
SEC. 5. Hold Over. - All incumbent barangay and all sangguniang kabataan
officials shall remain in office unless sooner removed or suspended for cause
until their successors shall have been elected and qualified Provided,
however, That barangay and all sangguniang kabataan officials who are ex
officio members of the sangguniang bayan, sangguniang panlungsod or
sangguniang panlalawigan as the case may be shall continue to serve as
such members in the sanggunian concerned until the next barangay election.
The Liga ng mga Barangay at the municipal, city, and provincial levels shall,
within thirty (30) days after the next barangay election, conduct elections for
ex officio positions in the sanggunians under the supervision of the
Department of the Interior and Local Government.
SEC. 4. Section 8 of Republic Act No. 9164 is hereby amended to read as follows:
SEC. 8. Appropriations. - The amount necessary for the implementation of
this Act shall be taken from the appropriation of the Commission on Elections
(COMELEC) under the General Appropriations Act and/or supplementary
appropriations thereafter.
In addition, the savings of the COMELEC not exceeding Three hundred
million pesos (P300,000,000.00) shall be used to augment said
appropriations as authorized under COMELEC Special Provision No. 2 of
Republic Act No. 9162.
By: RLB

The funds mentioned above may be augmented by an amount not exceeding
ten percent (10%) of the sangguniang kabataan funds reserved pursuant to
Section 532(c) of Republic Act No. 7160.
→ Term of office – determined by the constitution and statute
→ The term of office of all local elective officials, except barangay officials, is fixed by the
constitution. While the term of office of barangay officials is fixed by law.
• Article 10, Section 8 of the Constitution – 3 years (2006 Bar)
• Terms of Barangay Officials:
- RA 8524 (1998) – 5 years
- RA 9164 (2002) – 3 years up to 3 terms only and to begin in year 1994.
- RA 9340 (2005) – Extended the term (which ended on Nov. 30, 2005) to Nov. 30, 2007
NOTE: “Hold-over principle” validly applies to barangay officials only. The reason is that since
barangay officials are heading the most fundamental and basic political unit of our society,
pragmatism should allow, otherwise, it would prejudice the delivery of basic services or create
hiatus in government service. Thus, hold-over is allowed for barangay officials, but not allowed to
all others unless the law allows it. (Sambarani vs Comelec)
Sec. 5 RA 9164 - Hold Over. –
All incumbent barangay and all sangguniang kabataan officials shall remain in office unless
sooner removed or suspended for cause until their successors shall have been elected and
qualified Provided, however, That barangay and all sangguniang kabataan officials who are
ex officio members of the sangguniang bayan, sangguniang panlungsod or sangguniang
panlalawigan as the case may be shall continue to serve as such members in the sanggunian
concerned until the next barangay election. The Liga ng mga Barangay at the municipal,
city, and provincial levels shall, within thirty (30) days after the next barangay election,
conduct elections for ex officio positions in the sanggunians under the supervision of the
Department of the Interior and Local Government."
• Three Term Limit Rule
- Elements:
(1) That the official concerned has been elected for three consecutive terms
in the same local government post; and
(2) That he has Official fully served three consecutive terms.
Problem 1:
- 1993: X, the VM succeeded Y, the M who died, by operation of law. X served as Mayor
until 1995.
- 1995-1998: X was elected and served as Mayor
- 1998-2001: X was re-elected and again served as Mayor
- 2001 Elections: Was X barred to run as Mayor?
Answer: NO. Because the 3-term limit rule under the law states that the official must be
elected for the same local government post for 3 consecutive terms. And in 1993, his 1st
term, he was not elected as mayor but as vice-mayor and he just succeeded as mayor by
operation of law and not through an election.
• Borja vs Comelec
- 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
not withstanding his voluntary renunciation of office prior to its expiration.
- 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.
Problem 2:
- 1988-1995: X was elected and served as Mayor for 2 consecutive terms
- 1995: X was re-elected and started serving as Mayor
- 1997: Comelec ruled that X was not validly proclaimed and X stepped down as ordered
by the Comelec.
- 1998 elections: Was X barred to run as Mayor?
Answer: NO. The 3-term limit rule applies when the official has fully served for three
consecutive terms for the same position. But while serving his 3rd term, X stepped down
pursuant to Comelec’s decision that he was not validly proclaimed, thus, there is involuntary
relinquishment of office. And an involuntary relinquishment of office serves as an
interruption of his term.
• Lonzanida vs Comelec
- Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule, that:
“No local elective official shall serve for more than three consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected.”
- The petitioner cannot be deemed to have served the May 1995 to 1998 term because
he was ordered to vacate his post before the expiration of the term.
- Pursuant to the constitutional provision above, 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.
Question: would your answer be the same if, instead of being ordered to stepped down in
1997, he just resigned as mayor?
→ No. My answer would be different. In the same case, a voluntary renunciation of a
term does not cancel the renounced term in the computation of the three-term
limit. Therefore, X is deemed to have fully served his 3rd term.
Problem 3:
- 1992-1998: X was elected and served as Mayor for 2 consecutive terms
- 1998: X ran as Mayor but lost to Y
- 2000: Y faced a recall election and X was elected in the recall election and served as
Mayor
- 2001: Was X barred to run as Mayor?
Answer: NO. The 3-term limit rule refers to 3 consecutive terms. When X ran as Mayor but
lost to Y in 1998, he was not elected for 3 consecutive terms. There was no consecutiveness
in this case.
By: RLB

• Adormeo vs Comelec
- 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. 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. The two conditions for the application of the disqualification
must concur: a) that the official concernedhas been elected for three consecutive terms
in the same local government post; and b) that he has fully served three consecutive
terms.
- COMELECs ruling that private respondent was not elected for three (3) consecutive
terms should be upheld. The continuity of his mayorship was disrupted by his defeat in
the 1998 elections. 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. 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 Court held that private respondent cannot be construed as having been elected
and served for three consecutive terms. His loss in the May 1998 elections was
considered by the Court as an interruption in the continuity of his service as mayor. For
nearly two years, private respondent therein lived as a private citizen.
Problem 4:
- 1992-2001: X was elected and served as Mayor for 3 consecutive terms
- 2001 elections: X did not run; Y was elected Mayor
- 2002: Y faced recall election and X filed certificate of candidacy for the recall elections
- Q: Can X participate in the recall elections?
Answer: YES
• Socrates vs Comelec
- 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 re-
election 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 re-
election after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
- Based from the deliberations of a Constitutional Commission, what the Constitution
prohibits is an immediate re-election for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a subsequent re-election for a
fourth term as long as the re-election 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 re-election after the third term.
- Neither does the Constitution prohibit one barred from seeking immediate re-election to
run in any other subsequent election involving the same term of office. What the
Constitution prohibits is a consecutive fourth term.
- The principle behind the three-term limit rule is to prevent consecutiveness of the
service of terms, and that there was in his case a break in such consecutiveness after
the end of his third term and before the recall election.
ü How long should be their break?
- If you are to test the law, even a 1-day break will be sufficient, because it’s a break
just the same. Although it is not physically possible.
Problem 5:
- 1992-2001: X was Mayor of a municipality for 3 consecutive terms
- Before May 2001 elections: The municipality became a new city
- 2001 elections: X filed COC for mayor of the new city
- Was X qualified to run for Mayor of the new city?
Answer: NO.
• Latasa vs Comelec
- The Court noted that the delineation of the metes and bounds of the City of Digos did
not change even by an inch the land are a previously covered by the Municipality of
Digos. This Court also notes that the elective officials of the Municipality of Digos
continued to exercise their powers and functions until elections were held for the new
city officials. True, the new city acquired a new corporate existence separate and
distinct fromthat of the municipality. This does not mean, however, that for the
purpose of applying the subject Constitutional provision, the office of the municipal
mayor would now be construed as a different local government post as that of the
office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos
is the same as that of the municipality. Consequently, the inhabitants ofthe municipality
are the same as those in the city. These inhabitants are the same group of voters who
elected petitioner Latasa to be their municipal mayor for three consecutive terms.
These are also the same inhabitants over whom he held power and authority as their
chief executive for nineyears.
- It can be seen from Lonzanida and Adormeo that the law contemplates a rest period
during which the local elective official steps down from office and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.
- To allow Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three
consecutive terms 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.
Problem 6:
- 1995-1998: X was elected and served as Mayor
- 1998-2001: X was re-elected and served as mayor, but an election protest was filed
against X in 1998
- 2001-2004: X was re-elected and served as mayor, and the 1998 election protest was
decided against X
- 2004 elections: Was X qualified to run as mayor?
Answer: NO. For the following reasons:
(1) ingun ang SC, Hoy Mr. X kung dili ikaw ang mayor sa 1998, kinsa man? Ang pikas?
Nga wa galingkud?
By: RLB

(2) He was a de facto officer. Whether he was de facto or de jure officer, he was still
an officer but de facto lng. It should be counted against him.
(3) During electoral protest, whoever is the protestee, until the election process is
decided, is the presumptive winner.
• Francis Ong vs Comelec
- For the three-term limit for electivelocal government officials to apply, two conditions or
requisites must concur, to wit:
(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 (3) consecutive terms.
- The disqualifying requisites are present herein, thus effectively barring petitioner
Francis from running for 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.
ü How to be qualified?
- First, call and pressure the COMELEC (i don’t know how you will do it) to come up with
a resolution before the end of your 3rd term.
- When there is already a resolution, do not question it anymore. Instead, obey it and
you step down before noon of June 30.
- After stepping down as ordered by the COMELEC, you can now avail of the
interruption—the “break” thing.
- Then when you run for 2004 election, you will be qualified. It’s as simple as that. IT
WORKS!
Problem 7:
- 1995-1998: X was elected and served as Mayor
- 1998-2001: X was re-elected and served again as Mayor, but a protest was filed in
1998
- 2001-2004: X was re-elected and served again as Mayor, but in July of 2001, the 1998
protest was decided against X.
- 2004 elections: X filed COC for mayor but it was cancelled, although he won and was
proclaimed Mayor
- May 17, 2007: X stepped down as mayor as ordered
- 2007: X was elected again as mayor
- Was X qualified to run as mayor for 2007?
Answer: YES
• Dizon vs Comelec
- We concede that Morales occupied the position of mayor of Mabalacat for the following
periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30
June 2004, and 1 July 2004 to 16 May 2007. However, because of his
disqualification, Morales was not the duly elected mayor for the 2004-2007 term.
Neither did Morales hold the position of mayor of Mabalacat for the full term.
- Morales cannot be deemed to have served the full term of 2004-2007 because he was
ordered to vacate his post before the expiration of the term. Morales’ occupancy of the
position of mayor from 1 July 2004 to 16 May 2007 cannot be counted as a term for
purposes of computing the three-term limit. Indeed, the period from 17 May 2007 to 30
June 2007 served as a gap for purposes of the three-term limit rule. Thus, the present
1 July 2007 to 30 June 2010 term is effectively Morales’ first term for purposes of the
three-term limit rule.
Problem 8:
- In 1994, 1997 and 2002: X was elected Punong Barangay
- 2004: X ran and won as municipal councilor, leaving his post as punong barangay
- 2007: X filed COC for the position of punong barangay (the same barangay)
- Is he qualified?
Answer: NO.
• Bolos, Jr. vs Comelec
- Petitioner was elected as Punong Barangay for three consecutive terms, satisfying the
first condition for disqualification. However, petitioner did not fill in or succeed to a
vacancy by operation of law. He instead relinquished his office as Punong Barangay
during his third term when he won and assumed office as Sangguniang Bayan
member of Dauis, Bohol, which is deemed a voluntary renunciation of the Office of
Punong Barangay.
Problem 9:
- X was elected mayor 3 times during the terms: 1998-2001, 2001-2004 and 2004-2007
- In September 2005, X was ordered “preventively suspended” by the Sandiganbayan
- In 2007, X filed a COC and ran for mayor.
- Was X qualified to run for the 2007 elections?
Answer: NO.
• Aldovino vs Comelec
- Preventive suspension is an effective interruption because it renders the suspended
public official unable to provide complete service for the full term; thus, such term
should not be counted for the purpose of the three-term limit rule.
- “Interruption” of a term exempting an elective official from the three-term limit rule is
one that involves no less than the involuntary loss of title to office. An officer who is
preventively suspended is simply barred from exercising the functions of his office but
title to office is not lost.
2008 Bar: Abdul ran and won in the May 2001, 2004 and 2007 elections for Vice-Governor of
Tawi-Tawo. After being proclaimed Vice-Governor in 2004 elections, his opponent, Khalil, filed an
election protest before the Commission on Elections. Ruling with finality in the protest, the
COMELEC declared Khalil as duly elected Vice-Governor though the decision was promulgated
only in 2007, when Abdul had wholly served 2004-2007 term and was in fact already on his 2007-
2010 term as Vice Governor. What will be your advice?
Francis Ong case
2011 Bar: Alfredo was elected municipal mayor for 3 consecutive terms. During his third term,
the municipality became a city. Alfredo ran for city mayor during the next immediately succeeding
election. Voltaire sought his disqualification citing the 3 term limit for elective officials. Will
Voltaire’s action prosper?
Latasa case
2011 Bar: Adela served as Mayor of Kasim for 2 consecutive terms. On her third term, COMELEC
ousted her in a election protest that Gudi, her opponent, filed against her. 2 years later, Gudi
faced recall proceedings and Adela ran in the recall election against him. Adela won and served
as Mayor for Gudi’s remaining term. Can Adela run again for Mayor in the next succeeding
election without violating the 3-term limit?
Socrates case
By: RLB

 

highest official of the political party concerned are conditions sine qua non, and any
VACANCIES AND SUCCESSIONS appointment without such nomination and certification shall be null and void ab initio
and shall be a ground for administrative action against the official responsible
Permanent Vacancies therefore.

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, (c) In case or permanent vacancy is caused by a sanggunian member who does not
Mayor, and Vice-Mayor. – belong to any political party, the local chief executive shall, upon recommendation of
(a) If a permanent vacancy occurs in the office of the governor or mayor, the vice- the sanggunian concerned, appoint a qualified person to fill the vacancy.
governor 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 (d) In case of vacancy in the representation of the youth and the barangay in the
highest ranking sanggunian member or, in case of his permanent inability, the second sanggunian, said vacancy shall be filled automatically by the official next in rank of the
highest ranking sanggunian member, shall become the governor, vice-governor, mayor organization concerned.
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 • Factors to consider: P-R-L
defined herein. - Meaning of “permanent vacancy”
- Method of “ranking”
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest - Meaning of “last vacancy in the Sanggunian”
ranking sanggunian barangay member or, in case of his permanent inability, the *because whoever caused the last vacancy in the sanggunian, his political
second highest ranking sanggunian member, shall become the punong barangay. affiliation will matter, in which case, his party will have the right to nominate
the official who will fill-up the vacancy
(c) A tie between or among the highest ranking sanggunian members shall be resolved
by the drawing of lots. • Official
1) Fills a higher vacant position
(d) The successors as defined herein shall serve only the unexpired terms of their 2) Refuses to assume office
predecessors. 3) Fails to qualify
4) Dies
For purposes of this Chapter, a permanent vacancy arises when an elective local official 5) Removed from office
fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed 6) Resigns
from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge 7) Permanently Incapacitated to discharge the functions of his office (either physically or
the functions of his office. otherwise)
For purposes of succession as provided in the Chapter, ranking in the sanggunian shall
be determined on the basis of the proportion of votes obtained by each winning • Ranking
candidate to the total number of registered voters in each district in the immediately - Formula:
preceding local election.

Section 45. Permanent Vacancies in the Sanggunian. –

(a) Permanent vacancies in the sanggunian where automatic succession provided
above do not apply shall be filled by appointment in the following manner: Note: A tie between and among the highest ranking sanggunian members
(1) The President, through the Executive Secretary, in the case of the shall be resolved by “drawing of lots”.
sangguniang panlalawigan and the sangguniang panlungsod of highly
urbanized cities and independent component cities; • Vacancy: How to fill up?
-­‐ It depends on the kind of LGU and it depends on whether the one who “caused the last
(2) The governor, in the case of the sangguniang panlungsod of component vacancy” is a member of a political party or not.
cities and the sangguniang bayan; o If not a member of political party, the Sanggunian concerned “recommends” to
either the President (Prov, HUC, ICC) or the Governor (CC & Mun), as the case
(3) The city or municipal mayor, in the case of sangguniang barangay, upon may be.
recommendation of the sangguniang barangay concerned. o If a member of political party, the party of the official who “caused the last
vacancy” shall nominate to the President or the Governor, as the case may be. If
(b) Except for the sangguniang barangay, only the nominee of the political party under in the Barangay Sanggunian, since there is no political party, the Sanggunian
which the sanggunian member concerned had been elected and whose elevation to the concerned recommends to the Mayor.
position next higher in rank created the last vacancy in the sanggunian shall be
appointed in the manner hereinabove provided. The appointee shall come from the Illustration 1:
same political party as that of the sanggunian member who caused the vacancy and Mayor: X (XXX)
shall serve the unexpired term of the vacant office. In the appointment herein Vice-Mayor: Y (PPP)
mentioned, a nomination and a certificate of membership of the appointee from the Councilors:
By: RLB

1st A (KKK)
2nd B (XXX)
3rd C (XYZ)
4th D (PPP)
5th E (KKK)
6th F (Independent)
7th G (YYY)
8th H (XYZ)
-­‐ Let’s kill X, the Mayor, so he dies. How many vacancies will occur?
o 10 vacancies. (from the mayor to the 8th councilor) But that is not to say that you
will fill up the 10 positions by different persons because under section 45, the law
already provides for the rule on succession that the next in line will occupy the
vacant higher positions.
o That means that Y will become the mayor and A will become the vice mayor. And
so on….
-­‐ Who will fill the 8th councilor?
o Fariñas vs Barba
- There is only one rule governing appointments to the Sangguniang Barangay.
Any vacancy therein caused by the cessation from office of a member must
be made by the mayor upon the recommendation of that Sanggunian. The
reason is that members of the Sangguniang Barangay are not allowed to
have party affiliations.
- Indeed there is no reason for supposing that those who drafted §45 intended
to make the manner of filling vacancies in the Sanggunians, created by
members who do not belong to any political party, different from the manner
of filling such vacancies when created by members who belong to political
party or parties. The provision for the first must approximate the provision
for the second situation. Any difference in procedure must be limited to the
fact that in the case of vacancies caused by those who have political
affiliations there is a party which can nominate a replacement while there is
none in the case of those who have no political affiliation. Accordingly, where
there is no political party to make a nomination, the Sanggunian, where the
vacancy occurs, must be considered the appropriate authority for making the
recommendation, by analogy to vacancies created in the Sangguniang
Barangay whose members are by law prohibited from having any party
affiliation.
- Having determined that appointments in case of vacancies caused by
Sanggunian members who do not belong to any political party must be made
in accordance with the "recommendation" of the Sanggunians concerned
where the vacancies occur, the next question is: Is the appointing authority
limited to the appointment of those "recommended" to him? We think an
affirmative answer must be given to the question.
- The appointing authority is not bound to appoint anyone recommended to
him by the Sanggunian concerned. The power of appointment is a
discretionary power. On the other hand, neither is the appointing power
vested with so large a discretion that he can disregard the recommendation
of the Sanggunian concerned, Since the recommendation takes the place of
nomination by political party, the recommendation must likewise be
considered a condition sine qua non for the validity of the appointment, by
analogy to the provision of §45(b).
- The upshot of this is that in the case at bar, since neither petitioner Al Nacino
nor respondent Edward Palafox was appointed in the manner indicated in the
preceding discussion, neither is entitled to the seat in the Sangguniang Bayan
of San Nicolas, Ilocos Norte which was vacated by member Carlito B.
Domingo. For while petitioner Al Nacino was appointed by the provincial
governor, he was not recommended by the Sangguniang Bayan of San
Nicolas. On the other hand, respondent Edward Palafox was recommended
by the Sangguniang Bayan but it was the mayor and not the provincial
governor who appointed him.
-­‐ Who caused the last vacancy?
o Navarro vs CA
- The reason behind the right given to a political party to nominate a
replacement where a permanent vacancy occurs in the Sanggunian is to
maintain the party representation as willed by the people in the election.
- The "last vacancy" in the Sanggunian refers to that created by the elevation
of the member formerly occupying the next higher in rank which in turn also
had become vacant by any of the causes already enumerated. The term "last
vacancy" is thus used in Sec. 45 (b) to differentiate it from the other vacancy
previously created. The term by no means refers to the vacancy in the No. 8
position which occurred with the election of Rolando Lalas to the seventh
position in the Sanggunian. Such construction will result in absurdity.
• What are the conditions when the political party will make the nomination?
→ Damasen vs Tumamao
- The conditions for the rule of succession are:
(1) the appointee shall come from the same political party as that of the
Sanggunian member who caused the vacancy.
(2) the appointee must have a nomination and a Certificate of Membership
(bona fide membership) from the highest official of the political party
concerned.
- Since the permanent vacancy in the Sanggunian occurred because of the elevation
of LDP member Alonzo to vice-mayor, it follows that the person to succeed her
should alsobelong to the LDP so as to preserve party representation.
Illustration 2:
Mayor: X (XXX)
Vice mayor: Y (PPP)
Councilors:
1st A (Independent)
2nd B (XXX)
3rd C (PPP)
4thD (PPP)
5thE (KKK)
6thF (Independent)
7thG (YYY)
8thH (PPP)
- Same facts. Let’s kill the Mayor. How to fill up the vacancy when the official who cause the
vacancy is an independent candidate?
o Since there is no political party involved, it is the Sanggunian who will nominate. If the
vacancy was in a municipality, it is not the Mayor who will appoint. But the Governor
will appoint. If it is an independent component city, highly-urbanized city and province,
it will the President who will appoint. In the case of Barangay Sanggunian, the Mayor
will appoint. (Fariñas case)
2008 Bar: On August 8, 2008, the Governor of Bohol died and Vice-Governor Cesar became the
Governor by operation of law. Accordingly, Benito, the highest ranking member of the
Sanngguniang Panlalawigan was elevated to the position of Vice Governor. By the elevation to
By: RLB

the office of the Vice-Governor, a vacancy in the Sanggunian Panlalawigan was created. How
should the vacancy be filled? 3%
Answer: Ang answer ni Atty. DBL—The vacancy in this case may be filled depending on whether
or not Benito is a member of a political party or an independent candidate. Then qualify nlng ka.
hahaha
Problem: X, Y and Z were the candidates for Mayor in Municipality of ABC. Y had earlier filed a
petition for the cancellation of X’s certificate of candidacy on the ground that X failed to comply
with the 6-month residency requirement. During the election, and while the disqualification case
was still pending, X received the highest number of votes followed by Y. Thereafter, the
COMELEC disqualified X. W, the elected Vice-Mayor, insisted the he should become the Mayor.
Should W be allowed to assume the office of the Mayor?
Answer: The Second Placer rule will not apply in this case. Ergo, applying the discussion below
about disqualifications, the Vice Mayor cannot assume the position of the Mayor because there is
no vacancy. Y is legally the true winner. X is the de-facto while Y is the de-jure officer.
There are 2 grounds of disqualifications:
(1) grounds that will affect the validity of certificate of candidacy
- the grounds refer to the eligibility to become a candidate (citizenship,
residency, etc.) under section 39 of the LGC and thus, making his
certificate of candidacy void from the very beginning. Thus, making him
not a valid candidate.
- The Second Placer rule will not apply.
(2) grounds that will not affect the vailidity of certificate of candidacy
- refers to the acts that the candidate made after the filing of the
certificate of candidacy (during the election) like vote-buying, terrorism
or etc….
- the Second Placer rule will apply.
*Under the Second Placer rule, the 2nd placer, being the defeated candidate, cannot
take the place of the 1st placer when the 1st placer gets disqualified because as willed
by the people, it is the 1st placer who was chosen by them. And the mere fact that he
finished second shows that he was not the choice of the people so why should he be
allowed to take the position of the 1st placer. Therefore, the Second Placer rule bars the
2nd placer to take the place of the disqualified 1st placer.
• S. Jalosjos vs Comelec
- There is another more compelling reason why the eligible candidate who garnered the
highest number of votes must assume the office. The ineligible candidate who was
proclaimed and who already assumed office is a de facto officer by virtue of the
ineligibility.
- The rule on succession in Section 44 of the Local Government Code cannot apply in
instances when a de facto officer is ousted from office and the de jure officer takes
over. The ouster of a de facto officer cannot create a permanent vacancy as
contemplated in the Local Government Code. There is no vacancy to speak of as the de
jure officer, the rightful winner in the elections, has the legal right to assume the
position.
Temporary Vacancy in the Office of the LCE
Section 46. Temporary Vacancy in the Office of the Local Chief Executive. –
(a) When the governor, city or municipal mayor, or punong barangay is temporarily
incapacitated to perform his duties for physical or legal reasons such as, but not limited
to, leave of absence, travel abroad, and suspension from office, the vice-governor, city
or municipal vice-mayor, or the highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and functions of the local
chief executive concerned, except the power to appoint, suspend, or dismiss employees
which can only be exercised if the period of temporary incapacity exceeds thirty (30)
working days.
(b) Said temporary incapacity shall terminate upon submission to the appropriate
sanggunian of a written declaration by the local chief executive concerned that he has
reported back to office. In cases where the temporary incapacity is due to legal causes,
the local chief executive concerned shall also submit necessary documents showing
that said legal causes no longer exist.
(c) When the incumbent local chief executive is traveling within the country but outside
his territorial jurisdiction for a period not exceeding three (3) consecutive days, he may
designate in writing the officer-in-charge of the said office. Such authorization shall
specify the powers and functions that the local official concerned shall exercise in the
absence of the local chief executive except the power to appoint, suspend, or dismiss
employees. (S-A-D)
(d) In the event, however, that the local chief executive concerned fails or refuses to
issue such authorization, the vice-governor, the city or municipal vice-mayor, or the
highest ranking sangguniang barangay member, as the case may be, shall have the
right to assume the powers, duties, and functions of the said office on the fourth (4th)
day of absence of the said local chief executive, subject to the limitations provided in
subsection (c) hereof.
(e) Except as provided above, the local chief executive shall in no case authorize any
local official to assume the powers, duties, and functions of the office, other than the
vice-governor, the city or municipal vice-mayor, or the highest ranking sangguniang
barangay member, as the case may be.
• Instances:
- leave of absence
- travel abroad
- suspension from office
- other temporary incapacity for physical or legal reasons
• In case of temporary incapacity, the vice or the highest ranking sanggunian member (HRS)
shall automatically exercise the powers and functions of the LCE.
Problem: Mayor X of Cebu City went to the US for one month. Vice-Mayor Y, acted as Mayor in
the meantime.
A. What powers may and may not be exercised by Y? Can Y solemnize marriage? YES.
B. While Y is acting as Mayor of Cebu City, may the SP elect a new Presiding officer? YES.
Answer in QA:
-­‐ All powers and functions of the LCE can be exercised by the vice or the HRS, except the
powers to appoint, suspend or dismiss (SAD) employees, unless the temporary
incapacity exceeds 30 days, in which case, the acting official may now exercise the SAD
powers.
By: RLB

 

-­‐ Hence, in People vs Bustamante, the vice mayor (who was the acting mayor) was (b) Whenever the application for leave of absence hereinabove specified is not acted
held to have the power to solemnize marriage, which is a power belonging to the upon within five (5) working days after receipt thereof, the application for leave of
mayor under the LGC. It’s not one of the SAD powers. absence shall be deemed approved.

Answer in QB: • Approved by:

-­‐ A Vice-Governor who acts as Governor effectively creates a temporary vacancy in the -­‐ President – if it is the LCE of Province, Highly-Urbanized City and Independent
position of Presiding Officer of the SP entitling therefore the SP to select an acting Component City
Presiding Officer during the period that the Vice-Governor acts as Governor. (Gamboa -­‐ LCE – if it is the Vice
vs Aguirre) -­‐ Vice – if it is the Sanggunian members and employees
-­‐ Governor – if it is a component city and municipality mayor
Problem: Mayor X of Cebu City went to Manila for 3 days to attend a 2-day seminar. -­‐ Mayor – if it is the Punong Barangay
A. Will Y, the VM, act as Mayor during X’s absence? YES. -­‐ Punong Barangay – if it is the SB members
B. Who shall perform the powers and functions of the Mayor of Cebu City during X’s absence and
what are the scope and limitations to such powers and functions? Note: Inaction within 5 days – deemed approved.

• How do you distinguish an OIC from an acting official? (gwapu ni pang-essay question karun
Sunday)
-­‐ OIC is to be designated and in the designation, the Mayor will define the scope of the
powers of the OIC. Unlike in the case of an acting officer, the law already provides for
the kinds of powers and functions that he can exercise.

• The Officer in Charge (OIC)

-­‐ The OIC is to be designated by the LCE when he is “traveling within the country but
outside his territorial jurisdiction” for a period not exceeding 3 days; while the
acting official shall automatically exercise the powers of the LCE when he is traveling
outside the country or traveling abroad

-­‐ The OIC (which the mayor may appoint, either the vice or HRS) shall perform the
powers and functions as may be delegated to him by the LCE except the powers to
appoint, suspend or dismiss employees; while the acting official exercises all powers
and functions of the LCE except the SAD powers

-­‐ If the LCE has not designated an OIC, the Vice or the HRS has the right to assume the
office of the LCE on the 4th day as acting official.

APPROVAL OF LEAVE OF ABSENCES

Section 47. Approval of Leaves of Absence. –

(a) Leaves of absence of local elective officials shall be approved as follows:
(1) Leaves of absence of the governor and the mayor of a highly urbanized
city or an independent component city shall be approved by the President or
his duly authorized representative;

(2) Leaves of absence of vice-governor or a city or municipal vice-mayor shall

be approved by the local chief executive concerned: Provided, That the
leaves of absence of the members of the sanggunian and its employees shall
be approved by the vice-governor or city or municipal vice-mayor concerned;

(3) Leaves of absence of the component city or municipal mayor shall be

approved by the governor; and

(4) Leaves of absence of a punong barangay shall be approved by the city or

municipal mayor: Provided, That leaves of absence of sangguniang barangay
members shall be approved by the punong barangay.

By: RLB