group # 05- local government (1)

8/11/2019 Group # 05- Local Government (1)

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SELECTED TOPICSON

LOCAL GOVERNMENT CODEOF 1991

(R.A. NO. 7160)

GROUP NO. 05

HASHIM, ZAIDA AMORILLE B.

PATALINGHUG, VRAMIE L.

TANJUSAY, MARIA KATRINA S.

TORRES, ROMEL G.

LLB- 4


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H. Qualifications and Disqualifications of Elective Officials

A. QUALIFICATIONS

(a) An elective local official must be a citizen of the Philippines; a registeredvoter in the barangay, municipality, city, or province or, in the case of amember of the sangguniang panlalawigan, sangguniang panlungsod, orsangguniang bayan, the district where he intends to be elected; a residenttherein for at least one (1) year immediately preceding the day of theelection; and able to read and write Filipino or any other local language ordialect.

(b) Candidates for the position of governor, vice-governor, or member of the

sangguniang panlalawigan, or mayor, vice-mayor or member of thesangguniang 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 independentcomponent cities, component cities, or municipalities must be at leasttwenty-one (21) years of age on election day.

(d) Candidates for the position of member of the sangguniang panlungsod orsangguniang bayan must be at least eighteen (18) years of age on electionday.

(e) Candidates for the position of punong barangay or member of thesangguniang barangay must be at least eighteen (18) years of age on electionday.

(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[Section 39 (a), R.A. No. 7160).

1. Citizenship

This is the liberal interpretation that should give spirit, life and meaning toour law on qualifications consistent with the purpose for which such law wasenacted. So too, even from a literal (as distinguished from liberal) construction, itshould be noted that Section 39 of the Local Government Code speaks of"Qualifications" of "ELECTIVE OFFICIALS", not of candidates (Frivaldo vs.COMELEC, 257 SCRA 727).

2. Residence

a. Absence

Caasisapplication for immigrant status and permanent residence in the

U.S. and his possession of a green card attesting to such status are conclusiveproof that he is a permanent resident of the U.S. despite his occasional visits to thePhilippines. The waiver of such immigrant status should be as indubitable as hisapplication for it. Absent clear evidence that he made an irrevocable waiver of thatstatus or that he surrendered his green card to the appropriate U.S. authoritiesbefore he ran for mayor of Bolinao in the local elections on January 18, 1988, ourconclusion is that he was disqualified to run for said public office, hence, hiselection thereto was null and voidn(Caasi vs. Court of appeals, 191 SCRA 229).


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The principle of ANIMUS REVERTENDI, we ruled in the case of absencefrom ones residence or origindomicileto pursue studies, engage in business, orpractice his avocation, is not sufficient to constitute abandonment or loss of suchresidence. The determination of a persons legal residence or domicile largelydepends upon intention which may be inferred from his acts, activities and

utterances. In the instant case, there is no evidence to prove that the petitionertemporarily left her residence in Kananga, Leyte in 1975 to pursue any calling,profession or business. What is clear is that she established her residence inOrmoc City with her husband and considers herself a resident therein. Theintention of animus revertendi not to abandon her residence in Kananga, Leytetherefore, is not present. The fact that she occasionally visits Kananga, Leytethrough the years does not signify an intention to continue her residence therein(Abella vs. COMELEC, 201 SCRA 253).

The term residence is to be understood not in its common acceptation asreferring to dwelling or habitation, but rather to domicile or legal residence,that is, the place where a party actually or constructively has his permanenthome, where he, no matter where he may be found at any given time, eventuallyintends to return and remain (animus manendi). A domicile of origin is acquiredby every person at birth. It is usually the place where the childs parents reside andcontinues until the same is abandoned by acquisition of new domicile (domicile ofchoice). Registration as a voter does not bar the filing of a subsequent casequestioning a candidates lack of residency. Petitioner nonetheless says that hisregistration as a voter of Butnga, Oras, Eastern Samar in January 2001 isconclusive of his residency as a candidate because 117 of the Omnibus ElectionCode requires that a voter must have resided in the Philippines for at least oneyear and in the city or municipality wherein he proposes to vote for at least sixmonths immediately preceding the election. As held in Nuval v. Guray, however,

registration as a voter does not bar the filing of a subsequent case questioning acandidates lack of residency (Coquilla vs. COMELEC, 385 SCRA 607).

To effect change of domicile, there must be animus manendi coupled withanimus non revertendithe intent to remain in the new domicile of choice must befor an indefinite period of time, the change of residence must be voluntary, and theresidence at the place chosen for the new domicile must be actual(Michelena vs.Boado, 475 SCRA 290).

Establishing residence in a community merely to meet an election lawrequirement defeats the purpose of representation: to elect through the assent of

voters those most cognizant and sensitive to the needs of the community. Thispurpose is best met by individuals who have either had actual residence in thearea for a given period or who have been domiciled in the same area either byorigin or by choice. In other words, the actual, physical and personal presence ofherein private respondent in Cagayan de Oro City is substantial enough to showhis intention to fulfill the duties of mayor and for the voters to evaluate hisqualifications for the mayorship. Petitioners very legalistic, academic and technicalapproach to the residence requirement does not satisfy this simple, practical andcommon-sense rationale for the residence requirement (Torayno vs. COMELEC,337 SCRA 574)

Under the Rules of Court, a quo warranto may be brought only by (1) thesolicitor general or (2) a public prosecutor or (3) a person claiming to be entitled to

the public office or position usurped or unlawfully held or exercised by another. Areading of the Rules shows that petitioners, none of whom qualify under any of theabove three categories, are without legal standing to bring this suit (supra).

The term residence, as used in the election law, imports not only anintention to reside in a fixed place but also personal presence in that place,coupled with conduct indicative of such intention. Domicile denotes a fixedpermanent residence to which when absent for business or pleasure, or for like


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reasons, one intends to return. The Court explained that in order to acquire a newdomicile by choice, there must concur (1) residence or bodily presence in the newlocality, (2) an intention to remain there, and (3) an intention to abandon the olddomicile. There must be animus manendi coupled with animus non revertendi. Thepurpose to remain in or at the domicile of choice must be for an indefinite period oftime; the change of residence must be voluntary; and the residence at the place

chosen for the new domicile must be actual (Papandayan vs. COMELEC, 381SCRA 133)

Applying case law to the present case, it can be said that the respondenteffectively abandoned her residency in the Philippines by her acquisition of thestatus of a permanent U.S. resident. Nonetheless, we find that the respondentreacquired her residency in the Philippines even before the holding of the May2001 elections. The records show that she surrendered her green card to theImmigration and Naturalization Service of the American Embassy way back in1998. By such act, her intention to abandon her U.S. residency could not havebeen made clearer. Moreover, when she decided to relocate to the Philippines forgood in 1993, she continued living here and only went to the U.S.A. on periodicvisits to her children who were residing there. Moreover, she was elected Mayor inthe 1998 elections and served as such for the duration of her term. We find suchacts sufficient to establish that the respondent intended to stay in the Philippinesindefinitely and, ultimately, that she has once again made the Philippines herpermanent residence (Gayo vs. Verceles, 452 SCRA 504)

B. DISQUALIFIACTION

The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moralturpitude or for an offense punishable by one (1) year or more ofimprisonment, 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 tothe 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 theright to reside abroad and continue to avail of the same right after theeffectivity of this Code; and

(g) The insane or feeble-minded (Section 40, R.A. No. 7160)

1. Conviction of offenses involving moral turpitude

a. Ground

Not every criminal act, however, involves moral turpitude. It is for thisreason that as to what crime involves moral turpitude, is for the Supreme Court todetermine. In resolving the foregoing question, the Court is guided by one of thegeneral rules that crimes mala in se involve moral turpitude, while crimes malaprohibita do not, the rationale of which was set forth in Zari v. Flo -res, to wit: It(moral turpitude) implies something immoral in itself, regardless of the fact that it


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is punishable by law or not. It must not be merely mala prohibita, but the act itselfmust be inherently immoral. The doing of the act itself, and not its prohibition bystatute fixes the moral turpitude. Moral turpitude does not, however, include suchacts as are not of themselves immoral but whose illegality lies in their beingpositively prohibited (De la Torre vs. COMELEC, 258 SCRA 483)

At any rate, the phrase within two (2) years after serving sentence shouldhave been interpreted and understood to apply both to those who have beensentenced by final judgment for an offense involving moral turpitude and to thosewho 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 meansthat the phrase modifies both parts of Sec. 40(a) of the Local Government Code(Moreno vs. COMELEC, 498 SCRA 547).

b. Duration

The Republic act 7160 is a codified set of laws that specifically applies tolocal government units. Section 40 thereof specially and definitively provides fordisqualifications of candidates for elective local positions. It is applicable to themonly. On the other hand, Section 12 of BP 881 speaks of disqualifications ofcandidates for any public office. It deals with the election of all public officers.Thus, Section 40 of RA 7160, insofar as it governs the disqualifications ofcandidates for local positions, assumes the nature of a special law which ought toprevail.

Moral turpitude can be inferred from the third element. The fact that theoffender agrees to accept a promise or gift and deliberately commits an unjust actor refrains from performing an official duty in exchange for some favors, denotes a

malicious intent on the part of the offender to renege on the duties which he oweshis fellowmen and society in general. Also, the fact that the offender takesadvantage of his office and position is a betrayal of the trust reposed on him by thepublic. It is a conduct clearly contrary to the accepted rules of right and duty,justice, honesty and good morals. In all respects, direct bribery is a crime involvingmoral turpitude (Magno vs. COMELEC, 390 SCRA 495).

2. Fugitive from justice

A fugitive from justice includes not only those who flee after conviction toavoid 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 ones flight from a particular jurisdiction. And obviously, there can onlybe an intent to evade prosecution or punishment when there is knowledge by thefleeing subject of an already instituted indictment, or of a promulgated judgment ofconviction (Rodriguez vs. Commission on elections, 259 SCRA 296)


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10. Prohibitions

Prohibited Business and Pecuniary Interest

(a) It shall be unlawful for any local government official or employee, directlyor indirectly, to:

(1) Engage in any business transaction with the local government unitin which he is an official or employee or over which he has the power


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of supervision, or with any of its authorized boards, officials, agents,or attorneys, whereby money is to be paid, or property or any otherthing of value is to be transferred, directly or indirectly, out of theresources of the local government unit to such person or firm;

(2) Hold such interests in any cockpit or other games licensed by alocal government unit;

(3) Purchase any real estate or other property forfeited in favor ofsuch local government unit for unpaid taxes or assessment, or byvirtue of a legal process at the instance of the said local governmentunit;

(4) Be a surety for any person contracting or doing business with thelocal government unit for which a surety is required; and

(5) Possess or use any public property of the local government unit for

private purposes.

(b) All other prohibitions governing the conduct of national public officersrelating to prohibited business and pecuniary interest so provided for underRepublic Act Numbered Sixty-seven thirteen (R.A. No. 6713) otherwiseknown as the "Code of Conduct and Ethical Standards for Public Officialsand Employees" and other laws shall also be applicable to local governmentofficials and employees (Section 89, R.A. No. 7160).

Practice of Profession

(a) All governors, city and municipal mayors are prohibited from practicing

their profession or engaging in any occupation other than the exercise oftheir functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in anyoccupation, or teach in schools except during session hours: Provided, Thatsanggunian members who are also members of the Bar shall not:

(1) Appear as counsel before any court in any civil case wherein alocal government unit or any office, agency, or instrumentality of thegovernment is the adverse party;

(2) Appear as counsel in any criminal case wherein an officer oremployee of the national or local government is accused of an offensecommitted in relation to his office.

(3) Collect any fee for their appearance in administrative proceedingsinvolving the local government unit of which he is an official; and

(4) Use property and personnel of the government except when thesanggunian member concerned is defending the interest of thegovernment.

(c) Doctors of medicine may practice their profession even during official

hours of work only on occasions of emergency: Provided, that the officialsconcerned do not derive monetary compensation therefrom (Section 90,R.A. No. 7160)

Section 90 of the Local Government Codedoes not discriminate againstlawyers and doctors. It applies to all provincial and municipal officials in theprofessions or engaged in any occupation. Section 90 explicitly provides thatsanggunian members may practice their professions, engage in any occupation, or


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teach in schools except during session hours. If there are some prohibitions thatapply particularly to lawyers, it is because of all the professions, the practice of lawis more likely than others to relate to, or affect, the area of public service.

[Javellana vs. Department of Interior and Local Government, 212 SCRA475(1992)]

Petitioner violated Memorandum Circular No. 74-58 prohibiting agovernment official from engaging in the private practice of his profession if suchpractice would represent interests adverse to the government. The complaint forillegal dismissal filed by Javiero and Catapang against City Engineer Divinagraciais in effect a complaint against the City Government of Bago City, their realemployer, of which petitioner Javellana is a councilman. Hence, judgment againstCity Engineer Divinagracia would actually be a judgment against the CityGovernment. By serving as counsel for the complaining employees and assistingthem to prosecute their claims against City Engineer Divinagracia, the petitionerviolated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713)prohibiting a government official from engaging in the private practice of hisprofession, if such practice would represent interests adverse to the government(supra)

The Sandiganbayan found that the charge against Mayor Teves for causingthe issuance of the business permit or license to operate the Valencia Cockpit andRecreation Center is not well-founded. This it based, and rightly so, on theadditional finding that only the Sangguniang Bayan could have issued a permit tooperate the Valencia Cockpit in the year 1992. Indeed, under Section 447(3) ofthe LGC of 1991, which took effect on 1 January 1992, it is the SangguniangBayan that has the authority to issue a license for the establishment, operation,and maintenance of cockpits. Unlike in the old LGC, Batas Pambansa Blg. 337,wherein the municipal mayor was the presiding officer of the Sangguniang Bayan,

under the LGC of 1991, the mayor is not so anymore and is not even a memberof the Sangguniang Bayan. Hence, Mayor Teves could not have intervened ortaken part in his official capacity in the issuance of a cockpit license during thematerial time, as alleged in the information, because he was not a member of theSangguniang Bayan. A fortiori, there is no legal basis to convict Teresita Teves as aco-conspirator in the absence of a finding that Mayor Teves himself is guilty of theoffense charged. In short, the Sandiganbayan correctly absolved the petitioners ofthe charge based on the first mode. And there is no need to belabor this point.

[Teves vs. Sandiganbayan, 447 SCRA 309(2004)]

I. Succession of Elective Officials

Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor,

and Vice-Mayor

If a permanent vacancy occurs in the office of the governor or mayor, thevice-governor or vice-mayor concerned shall become the governor or mayor. If apermanent vacancy occurs in the offices of the governor, vice-governor, mayor, orvice-mayor, the highest ranking sanggunian member or, in case of his permanentinability, the second highest ranking sanggunian member, shall become thegovernor, vice-governor, mayor or vice-mayor, as the case may be. Subsequentvacancies in the said office shall be filled automatically by the other sanggunian

members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, thehighest ranking sanggunian barangay member or, in case of his permanentinability, the second highest ranking sanggunian member, shall become thepunong barangay.


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(1) The President, through the Executive Secretary, in the case of thesangguniang panlalawigan and the sangguniang panlungsod of highlyurbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod ofcomponent cities and the sangguniang bayan;

(3) The city or municipal mayor, in the case of sangguniang barangay,upon recommendation of the sangguniang barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of thepolitical party under which the sanggunian member concerned hadbeen elected and whose elevation to the position next higher in rankcreated the last vacancy in the sanggunian shall be appointed in themanner hereinabove provided. The appointee shall come from thesame political party as that of the sanggunian member who causedthe vacancy and shall serve the unexpired term of the vacant office. In

the appointment herein mentioned, a nomination and a certificate ofmembership of the appointee from the highest official of the politicalparty concerned are conditions sine qua non, and any appointmentwithout such nomination and certification shall be null and void abinitio and shall be a ground for administrative action against theofficial responsible therefore.

(c) In case or permanent vacancy is caused by a sanggunian member whodoes not belong to any political party, the local chief executive shall, uponrecommendation of the sanggunian concerned, appoint a qualified person tofill the vacancy.

(d) In case of vacancy in the representation of the youth and the barangay inthe sanggunian, said vacancy shall be filled automatically by the official nextin rank of the organization concerned (Section 45, R.A. No. 7160).

The phrase sanggunian concerned in Section 45(c) should more properlybe understood as referring to the Sanggunian in which the vacancy is created. Thisis in keeping with the policy implicit in Section 45(a) (3). In other words, with theexception of the Sangguniang Barangay pars. (a) and (b) must be read as providingfor the filling of vacancies in the various Sanggunians when these vacancies arecreated as a result of the cessation from office (other than expiration of term) ofmembers who belong to political parties. On the other hand, Section 45(c) must beunderstood as providing for the filling of vacancies created by members who do not

belong to any political party [Farias vs. Barba, 256 SCRA 396(1996)]

The appointing authority is not bound to appoint anyone recommended tohim by the Sanggunian concerned since the power of appointment is adiscretionary power, yet neither is he vested with so large a discretion that he candisregard the recommendation of the Sanggunian concerned (supra).

In the case at bar, since neither petitioner Al Nacino nor respondent EdwardPalafox was appointed in the manner indicated in the preceding discussion, neitheris entitled to the seat in the Sangguniang Bayan of San Nicolas, Ilocos Norte whichwas vacated by member Carlito B. Domingo. For while petitioner Al Nacino wasappointed by the provincial governor, he was not recommended by theSangguniang Bayan of San Nicolas. On the other hand, respondent Edward Palafoxwas recommended by the Sangguniang Bayan but it was the mayor and not theprovincial governor who appointed him (supra).


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4. Party of occupant of last vacancy

The last vacancy in the Sanggunian refers to that created by the elevationof the member formerly occupying the next higher in rank which in turn also had

become vacant by any of the causes already enumerated, and the term lastvacancy is thus used in Section 45 (b) to differentiate it from the other vacancypreviously created. The term by no means refers to the vacancy in the No. 8position which occurred with the election of Rolando Lalas to the seventh positionin the Sanggunian. Such construction will result in absurdity [Navarro vs. Courtof Appeals, 355 SCRA 672(2001)].

5. Temporary vacancy

Temporary Vacancy in the Office of the Local Chief Executive

(a) When the governor, city or municipal mayor, or punong barangay istemporarily incapacitated to perform his duties for physical or legal reasonssuch as, but not limited to, leave of absence, travel abroad, and suspensionfrom office, the vice-governor, city or municipal vice-mayor, or the highestranking sangguniang barangay member shall automatically exercise thepowers and perform the duties and functions of the local chief executiveconcerned, except the power to appoint, suspend, or dismiss employeeswhich can only be exercised if the period of temporary incapacity exceedsthirty (30) working days.

(b) Said temporary incapacity shall terminate upon submission to theappropriate sanggunian of a written declaration by the local chief executiveconcerned that he has reported back to office. In cases where the temporaryincapacity is due to legal causes, the local chief executive concerned shallalso submit necessary documents showing that said legal causes no longerexist.

(c) When the incumbent local chief executive is traveling within the countrybut outside his territorial jurisdiction for a period not exceeding three (3)consecutive days, he may designate in writing the officer-in-charge of thesaid office. Such authorization shall specify the powers and functions thatthe local official concerned shall exercise in the absence of the local chief

executive except the power to appoint, suspend, or dismiss employees.

(d) In the event, however, that the local chief executive concerned fails orrefuses to issue such authorization, the vice-governor, the city or municipalvice-mayor, or the highest ranking sangguniang barangay member, as thecase may be, shall have the right to assume the powers, duties, andfunctions of the said office on the fourth (4th) day of absence of the saidlocal chief executive, subject to the limitations provided in subsection (c)hereof.

(e) Except as provided above, the local chief executive shall in no caseauthorize any local official to assume the powers, duties, and functions ofthe office, other than the vice-governor, the city or municipal vice-mayor, orthe highest ranking sangguniang barangay member, as the case may be(Section 46, R.A. No. 7160).


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The appointment of the petitioner, moreover, is in full accord with the intentbehind the Local Government Code. There is no question that Section 49 inconnection with Section 52 of the Local Government Code shows clearly the intentto provide for continuity in the performance of the duties of the Vice-Governor. x xx By virtue of the surroundings circumstance of this case, the mode of successionprovided for permanent vacancies may likewise be observed in case of a temporary

vacancy occurring in the same office. In this case, there was a need to fill thevacancy. The petitioner is himself the member of the Sangguniang Panlalawiganwho obtained the highest number of votes. The Department Secretary actedcorrectly in extending the temporary appointment.[Menzon vs. Petilla, 197 SCRA251(1991)]

J. Discipline of Local Officials

a) Elective officials

(i) Grounds Disciplinary Actions

An elective local official may be disciplined, suspended, or removed from office

on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence, or

dereliction of duty;

(d) Commission of any offense involving moral turpitude or an offensepunishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive working days, except inthe case of members of the sangguniang panlalawigan, sangguniangpanlungsod, sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship or residence or thestatus of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumeratedabove by order of the proper court (Section 60, R.A. No. 7160).

(ii) Jurisdiction

A verified complaint against any erring local elective official shall be

prepared as follows:

(a) A complaint against any elective official of a province, a highly urbanizedcity, an independent component city or component city shall be filed beforethe Office of the President;


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(a) The sangguniang panlalawigan, in the case of decisions of thesangguniang panlungsod of component cities and the sangguniang bayan;and

(b) The Office of the President, in the case of decisions of the sangguniangpanlalawigan and the sangguniang panlungsod of highly urbanized citiesand independent component cities.

Decisions of the Office of the President shall be final and executory (Section 67,R.A. No. 7160).

(vi) Doctrine of Condonation

The doctrine of forgiveness or condonation is not only founded on thetheory that an officials reelection expresses the sovereign will of the electorate toforgive or condone any act or omission constituting a ground for administrativediscipline which was committed during his previous term but is also dictated by

public policy; The doctrine cannot, however, apply to criminal acts which thereelected official may have committed during his previous term [Salalima vs.Guingona, Jr., 257 SCRA 55(1996)].

1. Grounds

Public officials cannot be subject to disciplinary action for administrativemisconduct committed during a prior term. The doctrine of forgiveness orcondonation is not only founded on the theory that an officials reelection expressesthe sovereign will of the electorate to forgive or condone any act or omissionconstituting a ground for administrative discipline which was committed during his

previous term but is also dictated by public policy [Salalima vs. Guingona, Jr.,257 SCRA 55(1996)].

Any administrative liability which petitioner Salalima might have incurred inthe execution of the retainer contract in O.P. Case No. 5469 and the incidentsrelated therewith and in the execution on 6 March 1992 of a contract for additionalrepair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450are deemed extinguished by his reelection in the 11 May 1992 synchronizedelections. So are the liabilities, if any, of petitioner members of the SangguniangPanlalawigan ng Albay, who signed Resolution No. 129 authorizing petitionerSalalima to enter into the retainer contract in question and who were reelected inthe 1992 elections. This is, however, without prejudice to the institution ofappropriate civil and criminal cases as may be warranted by the attendant

circumstances (supra).

2. Effect of appeal of finding of Commission on Audit

Salalima vs. Guingona, 257 SCRA 55

3. Procedure

a. Preventive suspension

i. Valid suspension

The power to discipline evidently includes the power to investigate. As theDisciplining Authority, the President has the power derived from the Constitutionitself to investigate complaints against local government officials. A.O. No. 23,however, delegates the power to investigate to the DILG or a Special InvestigatingCommittee, as may be constituted by the Disciplining Authority. This is not unduedelegation, contrary to petitioner Josons claim. The President remains the


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Disciplining Authority. What is delegated is the power to investigate, not the powerto discipline[Joson vs. Torres, 290 SCRA 279(1998)].

In sum, preventive suspension may be imposed by the DiscipliningAuthority at any time (a) after the issues are joined; (b) when the evidence of guiltis strong; and (c) given the gravity of the offense, there is great probability that therespondent, who continues to hold office, could influence the witnesses or pose a

threat to the safety and integrity of the records and other evidence (supra).

The provision of Section 63 of the Local Government Code was only meantas a cap on the discretionary power of the President, governor, and mayor toimpose excessively long preventive suspensions. The Ombudsman is not mentionedin the said provision and was not meant to be governed thereby. Verily, the saidprovision does not govern preventive suspensions imposed by the Ombudsman,which is a constitutionally created office and independent from the Executivebranch of government[Miranda vs. Sandiganbayan, 464 SCRA 165(2005)].

ii. Void suspension

In its Order dated 22 April 2003, the Office of the President stated that thefacts of the case do not warrant a conclusion that issues are deemed joined.Furthermore, the Office of the President found no basis for the issuance of thepreventive suspension. Where the grounds cited by the Sangguniang Panlalawiganfor recommending the preventive suspension of a respondent mayor were justgeneral statements unsupported by any evidence, the same would be contrary tothe requisites for a preventive suspension; Suspension from office of an electiveofficial would deprive the electorate of the service of the person they have voted intoofficethe Supreme Court has been ill at ease with suspensions because it is out

of the ordinary to have a vacancy in local government [Joson III vs. Court ofAppeals, 482 SCRA 360(2006)].

TORRES, ROMEL G.

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b. Decisions

Form and Notice of Decision

(a) The investigation of the case shall be terminated within ninety (90) daysfrom the start thereof. Within thirty (30) days after the end of theinvestigation, the Office of the President or the sanggunian concerned shallrender a decision in writing stating clearly and distinctly the facts and thereasons for such decision. Copies of said decision shall immediately befurnished the respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired term of therespondent or a period of six (6) months for every administrative offense, norshall said penalty be a bar to the candidacy of the respondent so suspendedas long as he meets the qualifications required for the office.

(c) The penalty of removal from office as a result of an administrativeinvestigation shall be considered a bar to the candidacy of the respondentfor any elective position (Section 66, R.A. No. 7160).


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i. Validity

To render a decision in administrative cases involving elective local officials,the decision of the Sanggunian must thus be in writing stating clearly anddistinctly the facts and the reasons for such decision. Neither may the so-calledDecision prepared by Sanggunian Member Rodrigo V. Sotto on September 5,

1994 be regarded as the decision of the Sanggunian for lack of the signatures ofthe requisite majority. Like the procedure in the Supreme Court, the votingfollowing the deliberation of the members of the Sanggunian did not necessarilyconstitute their decision unless this was embodied in an opinion prepared by oneof them and concurred in by the others, in the same way that the voting followingthe deliberation on a case in the Supreme Court becomes its decision only after theopinion prepared by a Justice is concurred in by others composing the majority.Until they have signed the opinion and the decision is promulgated, the Justicesare free to change their votes.Reelection of respondent abates any administrative disciplinary proceedingsagainst him.-Pursuant to 66(b) of the Code, the penalty of suspension cannot exceed theunexpired term of the respondent or a period of six (6) months for everyadministrative offense. On the other hand, any administrative disciplinaryproceeding against respondent is abated if in the meantime he is reelected,because his reelection results in a condonation of whatever misconduct he mighthave committed during his previous term (Malinao vs. Reyes, 255 SCRA 616).

ii. Penalty

There is no grave abuse of discretion in imposing the penalty of suspension,although the aggregate thereof exceeds six months and the unexpired portion of

the elective officials term of office where the suspension imposed for eachadministrative offense does not exceed six months and there is an expressprovision that the successive service of the suspension should not exceed theunexpired portion of their term of office (Salalima vs. Guingona, 257 SCRA 55).

Assuming then that the findings and conclusions of the Office of thePresident in each of the subject four administrative cases are correct, it committedno grave abuse of discretion in imposing the penalty of suspension, although theaggregate thereof exceeded six months and the unexpired portion of the petitionersterm of office. The fact remains that the suspension imposed for eachadministrative offense did not exceed six months and there was an expressprovision that the successive service of the suspension should not exceed the

unexpired portion of the term of office of the petitioners. Their term of office expiredat noon of 30 June 1995. And this Court is not prepared to rule that thesuspension amounted to the petitioners removal from office.The Office of the President is without any power to remove elected officials, sincesuch power is exclusively vested in the proper courts as expressly provided for inthe last paragraph of the aforequoted Section 60. Parenthetically, it may beobserved that Article 125, Rule XIX of the Rules and Regulations implementing theLocal Government Code of 1991 grants to the disciplining authority the power toremove an elective local official. Paragraph (b) of the said Article provides asfollows: (b) An elective local official may be removed from office on the groundsenumerated in paragraph (a) of this Article [The grounds enumerated in Section 60,

The Local Government Code of 1991] by order of the proper court or thedisciplining authority whichever first acquires jurisdiction to the exclusion of theother. (Emphasis supplied) This grant to the disciplining authority of the power toremove elective local officials is clearly beyond the authority of the OversightCommittee that prepared the Rules and Regulations. It is settled that no rule orregulation may alter, amend, or contravene a provision of law, like the LocalGovernment Code. Implementing rules should conform, not clash, with the law
http://void%280%29/http://void%280%29/http://void%280%29/http://void%280%29/


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that they implement, for a regulation which operates to create a rule out ofharmony with the statute is a nullity (supra).

Power to remove erring elective local officials from service lodged exclusively

with the courts. It is beyond cavil, therefore, that the power to remove erring elective

local officials from service is lodged exclusively with the courts. Hence, Article 124 (b),Rule XIX, of the Rules and Regulations Implementing the Local Government Code,

insofar as it vests power on the disciplining authority to remove from office erring

elective local officials, is void for being repugnant to the last paragraph of Section 60 of

the Local Government Code of 1991. The law on suspension or removal of elective

public officials must be strictly construed and applied, and the authority in whom such

power of suspension or removal is vested must exercise it with utmost good faith, for

what is involved is not just an ordinary public official but one chosen by the people

through the exercise of their constitutional right of suffrage. Their will must not be put

to naught by the caprice or partisanship of the disciplining authority. Where the

disciplining authority is given only the power to suspend and not the power to remove,

it should not be permitted to manipulate the law by usurping the power to remove(Pablico vs. Villapando, 385 SCRA 601, July 31, 2002).

c. Appeal

i. Availability of appeal

Petitioner brought this case by way of petition for certiorari and mandamus.A prime specification of the writ of certiorari, however, is that there is no appealnor any plain, speedy and adequate remedy in the ordinary course of law available

to petitioner. But, in the case at bar, petitioner could have appealed the decision ofthe Sanggunian to the Office of the President as provided in 67(b) of the LocalGovernment Code. The so-called Decision prepared by Sanggunian MemberRodrigo V. Sotto on September 5, 1994 cannot be regarded as the decision of theSanggunian for lack of the signatures of the requisite majority[Malinao vs. Reyes,255 SCRA 616(1996)].

ii. Execution pending appeal

The decisions of the Office of the President under the Local Government Code

are immediately executory even pending appeal. Under the same case of Lapid v. Court

of Appeals, we enunciated that the decisions of the Office of the President under the

Local Government Code are immediately executory even pending appeal because the

pertinent laws under which the decisions were rendered mandated them to be so. In

sum, the decisions of the Office of the President are final and executory. No motion for

reconsideration is allowed by law but the parties may appeal the decision to the Court

of Appeals. The appeal, however, does not stay the execution of the decision. Thus, the

DILG Secretary may validly move for its immediate execution (Calingin vs. Court ofAppeals, 439 SCRA 173).

An implied repeal predicates the intended repeal upon the condition that a

substantial conflict must be found between the new and prior laws. In the absence of an

express repeal, a subsequent law cannot be construed as repealing a prior law unless an

irreconcilable inconsistency and repugnancy exists in the terms of the new and old

laws (Berces vs. Guingona, 241 SCRA 539).


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d. Effect of Re-election

Petitioners re-election to the position of Governor of Cagayan has rendered the

administrative case pending before us moot and academic.

Except for criminal acts committed, public official cannot be removed for administrative

misconduct committed during a prior term.-Clearly then, the rule is that a public official can not be removed for administrative

misconduct committed during a prior term, since his re-election to office operates as a

condonation of the officers previous misconduct to the extent of cutting off the right to

remove him therefore. The foregoing rule, however, finds no application to criminal

cases pending against petitioner for acts he may have committed during the failed coup

(Aquinaldo vs. Santos, 212 SCRA 768).

b) Appointive officials

J. Recall

By Whom Exercised

The power of recall for loss of confidence shall be exercised by the registeredvoters of a local government unit to which the local elective official subject to suchrecall belongs (Section 69, R.A. No. 7160).

A. Initiation

Initiation of the Recall Process

(a) Recall may be initiated by a preparatory recall assembly or by theregistered voters of the local government unit to which the local electiveofficial subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city,district, and municipality which shall be composed of the following:

(1) Provincial level. - All mayors, vice-mayors, and sanggunianmembers of the municipalities and component cities;

(2) City level. - All punong barangay and sanggunian barangaymembers in the city;

(3) Legislative District level. - In case where sangguniangpanlalawigan members are elected by district, all elective municipalofficials in the district; and in cases where sangguniang panlungsodmembers are elected by district, all elective barangay officials in thedistrict; and

(4) Municipal level. - All punong barangay and sangguniang barangaymembers in the municipality.

(c) A majority of all the preparatory recall assembly members may convenein session in a public place and initiate a recall proceedings against anyelective official in the local government unit concerned. Recall of provincial,city, or municipal officials shall be validly initiated through a resolutionadopted by a majority of all the members of the preparatory recall assemblyconcerned during its session called for the purpose.


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(d) Recall of any elective provincial, city, municipal, or barangay official mayalso be validly initiated upon petition of at least twenty-five percent (25%) ofthe total number of registered voters in the local government unit concernedduring the election in which the local official sought to be recalled waselected.

(1) A written petition for recall duly signed before the election registraror his representative, and in the presence of a representative of thepetitioner and a representative of the official sought to be recalledand, and in a public place in the province, city, municipality, orbarangay, as the case may be, shall be filed with the COMELECthrough its office in the local government unit concerned. TheCOMELEC or its duly authorized representative shall cause thepublication of the petition in a public and conspicuous place for aperiod of not less than ten (10) days nor more than twenty (20) days,for the purpose of verifying the authenticity and genuineness of thepetition and the required percentage of voters.

(2) Upon the lapse of the aforesaid period, the COMELEC or its dulyauthorized representative shall announce the acceptance ofcandidates to the position and thereafter prepare the list ofcandidates which shall include the name of the official sought to berecalled (Section 70, R.A. No. 7160).

The petition to initiate recall proceedings must be of or by, at least 25% of the

total number of registered voters, i.e., the petition must be filed, not by one person only,

but by at least 25% of the total number of registered voters. Recall must be pursued by

the people, not just by one disgruntled loser in the elections or a small percentage ofdisenchanted electors, otherwise its purpose as a direct remedy of the people shall be

defeated by the ill motives of a few among them whose selfish resort to recall would

destabilize the community and seriously disrupt the running of government

(Angobung vs. COMELEC, 269 SCRA 245).

B. Limitations

(a) Any elective local official may be the subject of a recall election only once

during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official'sassumption to office or one (1) year immediately preceding a regular localelection (Section 74, R.A. No. 7160).

A regular election, whether national or local, can only refer to an election participated

in by those who possess the right of suffrage, are not otherwise disqualified by law, and

who are registered voters. One of the requirements for the exercise of suffrage under

Section 1, Article V of the Constitution is that the person must be at least 18 years of

age, and one requisite before he can vote is that he be a registered voter pursuant to the

rules on registration prescribed in the Omnibus Election Code (Sections 113-118).

Under the law, the SK includes the youth with ages ranging from 15 to 21 (Sec. 424,

Local Government Code of 1991). Accordingly, they include many who are not qualified

to vote in a regular election, viz., those from ages 15 to less than 18. In no manner then

may SK elections be considered a regular election (whether national or local) (Parasvs. COMELEC, 264 SCRA 49).


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A recall is a process which begins with the convening of the preparatory recall

assembly (PRA) or the gathering of the signatures at least 25% of the registered voters

of a local government unit, and then proceeds to the filing of a recall resolution or

petition with the COMELEC; As used in par. (b) of 74 of the Local Government Code,recall refers to the election itself by means of which voters decide whether they

should retain their local official or elect his replacement.

Since the power vested on the electorate is not the power to initiate recall proceedings

but the power to elect an official into office, the limitations in 74 of the Local Gov-

ernment Code cannot be deemed to apply to the entire recall proceedingsthe

limitations in Section 74 apply only to the exercise of the power of recall which is

vested in the registered voters (Claudio vs. COMELEC, 331 SCRA 388).

C. Mootness

The specific purpose of the preparatory recall assembly was to revive the vice-

mayor. However, the resolution does not apply to the vice-mayor anymore, since she

gave up the office of vice-mayor when she assumed the position of mayor(Afiado vs.

COMELEC, 340 SCRA 600).

K. Term limits

C. Term

The principal aim of the liga ng mga barangay is to promote the development of

barangays and secure the general welfare of their inhabitants.

The rule is settled that unless holding over be expressly or impliedly prohibited, the

incumbent may continue to hold-over until someone else is elected and qualified to

assume office (Galarosa vs. Valencia, 227 SCRA 728).

Special elections could be held anytime, provided the date of the special

elections is within thirty days from the time the cause of postponement has ceased.-

Unlike Section 6, Section 45 does not state that special elections should be held on a

date reasonably close to the date of the election not held. Instead, Section 45 states that

special elections should be held within thirty days from the cessation of the causes for

postponement. Logically, special elections could be held anytime, provided the date ofthe special elections is within thirty days from the time the cause of postponement has

ceased (Sambarani vs. Commission on elections, 438 SCRA 319).

Since there was a failure of elections in the 15 July 2002 regular elections and in the 13

August 2002 special elections, petitioners can legally remain in office as barangay

chairmen of their respective barangays in a hold-over capacity (supra).

As the law now stands, the language of Section 5 of RA 9164 is clear. It is the

duty of this Court to apply the plain meaning of the language of Section 5. Since there

was a failure of elections in the 15 July 2002 regular elections and in the 13 August

2002 special elections, petitioners can legally remain in office as barangay chairmen of

their respective barangays in a hold-over capacity. They shall continue to dischargetheir powers and duties as punong barangay, and enjoy the rights and privileges

pertaining to the office. True, Section 43(c) of the Local Government Code limits the

term of elective barangay officials to three years. However, Section 5 of RA 9164

explicitly provides that incumbent barangay officials may continue in office in a hold

over capacity until their successors are elected and qualified (supra).


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____________________________________________

L. Local Government Units

1) Barangay

2) Municipality

3) City

4) Province

A. Barangays

As the basic political unit, the barangay serves as the primary planning andimplementing unit of government policies, plans, programs, projects, and activitiesin the community, and as a forum wherein the collective views of the people maybe expressed, crystallized and considered, and where disputes may be amicablysettled (Section 384, R.A. No. 7160).

The Code explicitly vests on the punong barangay, upon approval by amajority of all the members of the sangguniang barangay, the power to appoint orreplace the barangay treasurer, the barangay secretary, and other appointivebarangay officials [Section 389 (b) (5) R.A No. 7160]. This provision is reinforced, inthe case of the secretary and the treasurer, by the provisions of Section 394 andSection 395 of the Local Government Code. Applying the rule that the power toappoint includes the power to remove, one that the Court finds no cogent reason tonow depart from, the questioned dismissal from office of the barangay officials bythe punong barangay without the concurrence of the majority of all the members ofthe Sangguniang Barangay cannot be legally justified. To rule otherwise could alsocreate an absurd situation of the Sangguniang Barangay members refusing, likehere, to give their approval to the replacements selected by the punong barangay

who has unilaterally terminated the services of the incumbents. It is likely that thelegislature did not intend this absurdity to flow from its enactment of the law[Alquizola vs. Ocol, 313 SCRA 273, August 27, 1999].

B. Municipality and Cities

The municipality, consisting of a group of barangays, serves primarily as ageneral purpose government for the coordination and delivery of basic, regular anddirect services and effective governance of the inhabitants within its territorialjurisdiction (Section 440, R.A. No. 7160).

The city, consisting of more urbanized and developed barangays, serves as ageneral purpose government for the coordination and delivery of basic, regular, anddirect services and effective governance of the inhabitants within its territorialjurisdiction (Section 448, R.A. No. 7160).

1. Employees


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Paragraph 12 along with paragraphs 5, 6, 8, 13 and 14 of EO 503 deals withsafeguards against termination, reduction of pay and diminution in rank ofexisting personnel; it is not about the power of the mayor to discipline personnel ofthe Division of City Schools. In effect, the said provision serves more to limit theappointing authority of the city mayor, whose acts must be circumscribed by theaforecited conditions. It is not incompatible and can exist with aforecited provisions

of the Administrative Code. Indeed, it cannot be deemed to have divested theregional director of his disciplining power. The court agreed with the CA that theLGC did not automatically repeal the provisions in the 1987 Administrative Code,contrary to petitioners argument. There is no provision in the LGC expresslyrescinding the authority of the DECS regional director to appoint and exercisedisciplinary authority over first-level employees. On the other hand, impliedrepeals are not lightly presumed in the absence of a clear and unmistakableshowing of such intention. Absent any contrarystatutory provision, the power toappoint carries with it the power to remove or to discipline. Since respondent wasappointed by the regional director of DECS, she may be disciplined or removed bythe latter pursuant to law (Aguirre vs. De Castro, 321 SCRA 95, December 17,1999).

2. Powers of mayors

a. Imposition of conditions for issuance of mayors permit

The distinction must be made between the grant of a license or permit to dobusiness and the issuance of a license to engage in the practice of a particular

profession.The first is usually granted by the local authorities and the second isissued by the Board or Commission tasked to regulate the particular profession. A

business permit authorizes the person, natural or otherwise, to engage in businessor some form of commercial activity. A professional license, on the other hand, isthe grant of authority to a natural person to engage in the practice or exercise ofhis or her profession. (Acebedo Optical Company, Inc. vs. Court of Appeals,329 SCRA 314, March 31, 2000).

In the present case, the objective of the imposition of subject conditions onpetitioners business permit could be attained by requiring the optometrists inpetitioners employ to produce a valid certificate of registration as optometrist, fromthe Board of Examiners in Optometry. A business permit is issued primarily toregulate the conduct of business and the City Mayor cannot, through the issuanceof such permit, regulate the practice of a profession, like that of optometry. Such afunction is within the exclusive domain of the administrative agency specifically

empowered by law to supervise the profession, in this case the ProfessionalRegulations Commission and the Board of Examiners in Optometry. In the case atbar, what is sought by petitioner from respondent City Mayor is a permit to engagein the business of running an optical shop. It does not purport to seek a license toengage in the practice of optometry as a corporate body or entity, although it doeshave in its employ, persons who are duly licensed to practice optometry by theBoard of Examiners in Optometry (supra.)

b. Issuance of mayors permit

The exercise of the power of a mayor to issue licenses and permits cannot be

deemed ministerial, and as to whether the power was validly exercised is a matterwithin the province of a writ of certiorari, not of mandamus. While the SupremeCourt agreed with petitioner that there is no ordinance conferring upon therespondent mayor the power to refuse the issuance of the permit for the operationof an arrastre service, we are, as yet, unprepared to declare that the power of themunicipal mayor as enunciated under Section 444(b)(3)(iv)is ministerial. What canbe deduced from the aforesaid section is that the limits in the exercise of the powerof a municipal mayor to issue licenses, and permits and suspend or revoke the


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same can be contained in a law or an ordinance. Otherwise stated, a law or anordinance can provide the conditions upon which the power of the municipalmayor under Section 444(b)(3)(iv) can be exercised. Section 444(b)(3)(iv) of the LocalGovernment Code of 1991 takes its cue from Section 16 thereof, which is largely anexercise of delegated police power. The general welfare clause is the delegation instatutory form of the police power of the State to LGUs. Through this, LGUs may

prescribe regulations to protect the lives, health, and property of their constituentsand maintain peace and order within their respective territorial jurisdictions.Accordingly, the court have upheld enactments providing, for instance, theregulation of gambling, the occupation of rig drivers, the installation and operationof pinball machines, the maintenance and operation of cockpits, the exhumationand transfer of corpses from public burial grounds, and the operation of hotels,motels, and lodging houses as valid exercises by local legislatures of the policepower under the general welfare clause (Roble Arraste, Inc. vs. Villaflor, 499SCRA 434, August 22, 2006).

c. Revocation of mayors permit

The power to approve a license includes by implication, even if not expresslygranted, the power to revoke it.By extension, the power to revoke is limited by theauthority to grant the license, from which it is derived in the first place. Thus, ifthe Food and Drug Administration (FDA) grants a license upon its finding that theapplicant drug store has complied with the requirements of the general laws andthe implementing administrative rules and regulations, it is only for their violationthat the FDA may revoke the said license. By the same token, having granted thepermit upon his ascertainment that the conditions thereof as applied particularlyto Olongapo City have been complied with, it is only for the violation of suchconditions that the mayor may revoke the said permit. In the case at bar, thepetitioner acted invalidly in revoking Mayor's Permit No. 1954 after the FDA had

authorized the resumption of operations of the San Sebastian Drug Store followingthe enforcement of the penalties imposed upon it. However, it was competent forthe petitioner to suspend Mayor's Permit No. 1955 for the transfer of the OlongapoCity Drug Store in violation of the said permit. Such suspension shouldnevertheless be effective only pending the return of the drug store to its authorizedoriginal site or the eventual approval by the mayor of the requested transfer iffound to be warranted (Gordon vs. Veridiano, 167 SCRA 51, November 8, 1988).

While the power of the mayor to issue business licenses and permitsnecessarily includes the corollary power to suspend, revoke or even refuse to issuethe same, he must observe, however, due process in exercising these powers,which means that the mayor must give the applicant or licensee notice and

opportunity to be heard. True, the mayor has the power to inspect and investigateprivate commercial establishments for any violation of the conditions of theirlicenses and permits. However, the mayor has no power to order a police raidon these establishments in the guise of inspecting or investigating thesecommercial establishments. Lim acted beyond his authority when he directedpolicemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Suchact of Lim violated Ordinance No. 7716 which expressly prohibits police raids andinspections, to wit: Section 1. No member of the Western Police District shallconduct inspection of food and other business establishments for the purpose ofenforcing sanitary rules and regulations, inspecting licenses and permits, and/orenforcing internal revenue and customs laws and regulations. This responsibilityshould be properly exercised by Local Government Authorities and other concerned

agencies. (Emphasis supplied) These local government officials include the CityHealth Officer or his representative, pursuant to the Revised City Ordinances of theCity of Manila, and the City Treasurer pursuant to Section 470 of the LocalGovernment Code (Lim vs. Court of Appeals, 387 SCRA 149, August 12, 2002)

d. Appointment of employees


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The provisions of Republic Act 5185 giving mayors the power to appoint allofficials entirely paid out by City funds and those of BP 337 empowering localexecutives to appoint all officers and employees of the city, were not meant todeprive the City Council of Manila, its appointing power granted by existing statuteand after all, that arrangement is sufficient to accomplish the objectives of both theDecentralization Act and the Local Government Code, that is, to provide teeth to

local autonomy (Lopez vs. Civil Service Commission, 195 SCRA 777, April 16,1991)

e. Removal of employees

Generally the power to appoint includes the power to remove employeesappointed by a municipal mayor without having to secure the concurrence of theSangguniang Bayan may be similarly terminated by him without the need tosecure the concurrence of the Sangguniang Bayan. As for petitioners argumentthat the former mayor acted without the authority of the Sangguniang Bayan, thesame does not lie. Under R.A. No. 7160 (Local Government Code), a head ofdepartment or office in the municipal government shall be appointed by the mayorwith the concurrence of the majority of all sangguniang bayan members. Generallythe power to appoint includes the power to remove except in instances where itdoes not include the power to remove, e.g. 1. The Members of the Supreme Court,the Members of the Constitutional Commissions, and the Ombudsman who areappointed by the President may be removed from office, on impeachment for, andconviction of, culpable violation of the Constitution, treason, bribery, graft andcorruption, other high crimes, or betrayal of public trust. 2. The Judges of lowercourt are subject to discipline by the Supreme Court en banc which can order theirdismissal by a vote of a majority of the Members who actually took part in thedeliberations on the issues in the case and voted thereon. Since it is not claimedthat respondent was a head of department or office in the office of petitioner, then

following Sec. 444(5) of the Local Government Code, under which a mayor isempowered to appoint all officials whose salaries and wages are wholly or mainlypaid out of municipal funds and whose appointments are not otherwise providedfor in this Code, as well as those he may be authorized by law to appoint, formerMayor Camero did not have to secure the concurrence of the Sangguniang Bayanto terminate respondents services (Municipal of La Libertad vs. Penaflor, 453SCRA 833, March 18, 2005).

f. Prevention of pollution

It is beyond a municipal mayors ken and competence to review, revise,reverse, or set aside a permit to operate the petitioners charcoal briquette plant

issued by the Environmental Management Bureau (EMB), which is the primaryauthority to determine whether petitioners manufacturing process violates anti-pollution laws, rules and regulations. The complaint against the petitioner forviolation of anti-pollution laws should have been addressed to the EMB whichalone is empowered to investigate and, after a public hearing, to determine whetherthe charcoal briquette plant was causing air pollution in excess of permissiblelimits, whether the discharge of smoke from petitioners 16-meter smoke stackshould be reduced or discontinued, whether additional devices for that purposeshould be installed, and whether its business should be temporarily suspended ortotally banned. That investigation and determination can only be made by the EMB,assisted by its staff of sanitary engineers, environmental experts, chemists,physicians, and technical men working with scientific equipment and laboratory

facilities to measure the degree and extent of air pollution in the plant site andaround it, and determine the danger, if any, that it poses to the health of thepeople in the barangay where the plant is located (Technology Development Inc,vs. Court of Appeals, 201 SCRA xi).

C. Provinces


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The province, composed of cluster of municipalities, or municipalities andcomponent cities, and as a political and corporate unit of government, serves asdynamic mechanism for developmental processes and effective governance of localgovernment units within its territorial jurisdiction(Section 459, R.A. No. 7160)

1. Appointment of officials

The power to appoint or designate one temporarily in cases oftemporary absence or disability or a vacancy in a provincial office resides inthe President of the Philippines, not the Provincial Governor.

The law applicable is Section 471(a) of RA 7160otherwise known as theLocal Government Code which mandates that:Sec. 471. Assistant Treasurers.(a) An assistant treasurer may be appointed bythe Secretary of Finance from a list of at least three (3) ranking eligiblerecommendees of the governor or mayor, subject to civil service law, rules andregulations.x x x x x x x x x

In fact, the appointing officer is authorized by law to order the payment ofcompensation to any government officer or employee designated or appointed to fillsuch vacant position, as provided under Section 2077 of the RevisedAdministrative Code which states that:

Section 2077.Compensation for person appointed to temporary service.In case of the temporary absence or disability of a provincial officer or in case of avacancy in a provincial office, the President of the Philippines or officer having the

power to fill such position may, in his discretion, order the payment ofcompensation, or additional compensation, to any Government officer or employeedesignated or appointed temporarily to fill the place, but the total compensationpaid shall not exceed the salary authorized by law for the position filled.

Undoubtedly, the aforecited laws do not authorize the Provincial Governor toappoint nor even designate one temporarily in cases of temporary absence ordisability or a vacancy in a provincial office. That power resides in the President ofthe Philippines or the Secretary of Finance. Necessarily, petitioners designation asAssistant Provincial Treasurer for Administration by Governor Mayo beingdefective, confers no right on the part of petitioner to claim the difference in thesalaries and allowances attached to the position occupied by him.Moreover, what was extended to petitioner by Governor Mayo was merely a

designation not an appointment (Dimaandal vs. Commission on Audit, 291SCRA 322, June 26, 1998)

2. Vice Governor

It is correct that when the Vice-Governor exercises the powers and dutiesof the Office of the Governor, he does not assume the latter office. He only acts asthe Governor but does not become the Governor. His assumption of the powers,duties and functions of the provincial Chief Executive does not create a permanentvacuum or vacancy in his position as the Vice-Governor. Necessarily, he does notrelinquish nor abandon his position and title as Vice-Governor by merely becomingan Acting Governor, (not Governor) or by merely exercising the powers and duties

of the higher office. But the problem is, while in such capacity, does he temporarilyrelinquish the powers, functions, duties and responsibilities of the Vice-Governor,including the power to preside over the sessions of the SP? Sad to say the newLocal Government Code is silent on this matter, yet this query should be answeredin the positive. A Vice-Governor who is concurrently an Acting Governor is actuallya quasi-Governor. This means, that for purposes of exercising his legislativeprerogatives and powers, he is deemed as a non-member of the SP for the timebeing. By tradition, the offices of the provincial Governor and Vice-Governor are


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essentially executive in nature, whereas plain members of the provincial boardperform functions partaking of a legislative character. This is because the authorityvested by law in the provincial boards involves primarily a delegation of somelegislative powers of Congress (Gamboa vs. Aguirre, 310 SCRA 867, July 20,1999).

To repeat, the creation of a temporary vacancy in the office of the Governorcreates a corresponding temporary vacancy in the office of the Vice-Governorwhenever the latter acts as Governor by virtue of such temporary vacancy. Thisevent constitutes an inability on the part of the regular presiding officer (ViceGovernor) to preside during the SP sessions, which thus calls for the operation ofthe remedy set in Article 49(b) of the Local Government Codeconcerning theelection of a temporary presiding officer. The continuity of the Acting Governors(Vice-Governor) powers as presiding officer of the SP is suspended so long as he isin such capacity. Under Section 49(b), (i)n the event of the inability of the regularpresiding officer to preside at the sanggunian session, the members present andconstituting a quorum shall elect from among themselves a temporary presidingofficer.(supra.)

The Vice-Governor, as the presiding officer of the SangguniangPanlalawigan, has administrative control of the funds of the said body and it ishe who has the authority to approve disbursement vouchers for expendituresappropriated for the operation of the Sangguniang Panlalawigan. However, in thiscase, it does not appear whether the contractual/job order employees, whoseappointments were terminated or cancelled by the Memorandum dated July 1,2002 issued by the respondent Governor, were paid out of the provincial fundsor the funds of the Sangguniang Panlalawigan. Nonetheless, the validity of the saidmemorandum cannot be upheld because it absolutely prohibited the respondent

Vice-Governor from exercising his authority to appoint the employees, whetherregular or contractual/job order, of the Sangguniang Panlalawigan and restrictedsuch authority to one of recommendatory nature only. This clearly constituted anencroachment on the appointment power of the respondent Vice- Governorunder Section 466(a)(2) of Rep. Act No. 7160(Atienza vs. Villarosa, 458 SCRA385, May 10, 2005).


__________________________________________

1. Basic Principle

A. Policy and Application

1. Declaration Policy

a. Local autonomy for territorial and political subdivisions

The territorial and political subdivisions shall enjoy local autonomy (Art. 10 Sec. 2

of the Philippine Constitution).

b. Accountability of Local Government units through recall, initiative and

referendum


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It is also the policy of the State to ensure the accountability of localgovernment units through the institution of effective mechanisms of recall,initiative and referendum (Sec 2 (b) of RA 7160).

c. Consultation by national offices with local government units and non-

government organizations before implementing any program (Sec.2)

It is likewise the policy of the State to require all national agencies andoffices to conduct periodic consultations with appropriate local government units,non-governmental and people's organizations, and other concerned sectors of thecommunity before any project or program is implemented in their respectivejurisdictions (Sec 2 (c) of RA 7160)

2. Rules interpretation

a. Liberal Interpretation of power of local government units

Any provision on a power of a local government unit shall be liberally

interpreted in its favor, and in case of doubt, any question thereon shall be

resolved in favor of devolution of powers and of the lower local government unit.

Any fair and reasonable doubt as to the existence of the power shall be interpreted

in favor of the local government unit concerned[Section 5 (a), R.A. No. 7160]

b. Strict construction of tax ordinances

Section 5. (b) In case of doubt, any tax ordinance or revenue measure shall beconstrued strictly against the local government unit enacting it, and liberally infavor of the taxpayer. Any tax exemption, incentive or relief granted by any localgovernment unit pursuant to the provisions of this Code shall be construed strictlyagainst the person claiming it [Section 5.(b)]

c. Liberal interpretation of general welfare provisions

The general welfare provisions in this Code shall be liberally interpreted togive more powers to local government units in accelerating economic developmentand upgrading the quality of life for the people in the community [Section 5. (c)]

d. Application of Original terms of construct or law upon vested rights

Rights and obligations existing on the date of effectivity of this Code and arisingout of contracts or any other source of presentation involving a local governmentunit shall be governed by the original terms and conditions of said contracts or thelaw in force at the time such rights were vested[Section 5. (d)]

e. Resort to customs in the absence of law or jurisprudence (Sec.5)

In the resolution of controversies arising under this Code where no legal provisionor jurisprudence applies, resort may be had to the customs and traditions in theplace where the controversies take place[Section 5. (e)]

B. General Powers and Attributes of Local Government Units


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1. A local government unit may be created, divided, merged, abolished, or its

boundaries substantially altered by law in the case of a province, city,

municipality, or other political subdivision, or by city or provincial ordinance in the

case of a barangay

2. The creation or conversation of a local government unit to another level shall be

based on:

a. sufficient income

Income - It must be sufficient, based on acceptable standards, to provide for allessential government facilities and services and special functions commensuratewith the size of its population, as expected of the local government unit concerned;

Province- 20 million Annual IncomeCity- 20 million Annual Income

Municipality- 2.5 million Annual Income

b. Population

Population - It shall be determined as the total number of inhabitants within theterritorialjurisdiction of the local government unit concerned

Province- 200,000

City- 150,000

Municipality- 25,000

Baranggay- 2,000/ Highly Urbanized 5,000

c. Land area (Sec.7)

Land Area - It must be contiguous, unless it comprises two or more islands or is

separated by a local government unit independent of the others; properly identifiedby metes and bounds with technical descriptions; and sufficient to provide for suchbasic services and facilities to meet the requirements of its populace. Compliancewith the foregoing indicators shall be attested to by the Department of Finance(DOF), the National Statistics Office (NSO), and the Lands Management Bureau(LMB) of the Department of Environment and Natural Resources (DENR).

Province- 200 sq. km.

City- 100 sq. km.

Municipality- 50 sq. km

3. Division and merger of local government units shall comply with the same

requirements for their creation. The income, population or land area shall not be

reduced to less than the minimum requirements.(Sec.8)


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4. a local government unit may be abolished when its income, population or land

area has been reduced to less than the minimum requirements (Sec.9)

5. The creation, division, merger, abolition or substantial alteration of the

boundaries of local government units must be approved by plebiscites in the

political units affected. (Sec.10)

6. The corporate existence of a new local government unit shall commence upon

election and qualification of its chief executive and majority f the members of the

sangunian. (Sec.14)

7. Every local government unit is a body politic and corporate. (Sec.15)

8. Powers

a. Powers expressly granted

Among the authorities and powers granted to LGUs under RA 7160,otherwise known as the Local Government Code (LGC) of 1991, is the power togenerate resources to supplement national governments ssistance throughInternal Revenue Allocation (IRA) and grants. Under Section 18 thereof, LGUs areauthorized to levy taxes, fees and charges and create other sources of revenues forits exclusive use and disposition. The power to impose fee/charge/ or generaterevenue under the Code is exercised by the Sanggunian through an appropriate

ordinance.

b. implied powers

c. powers necessary, appropriate, or incidental for efficient and effective

governance

d. Powers essential for promotion of general welfare. (Sec.16)

9. A local government unit may exercise the power of eminent domain.

a. an offer must have been made to the owner and rejected.

b. The local government unit may immediately take the possession upon filling

of expropriation proceedings and deposit in court of 15% of the fair market value.

(Sec.19)

10. a local government unit may close or open any local road, alley, park or square

by two thirds vote of all members of the sangunian. Property permanently

withdrawn from public use may be used or conveyed for any proposes. (Sec.20 )

11. Corporate Powers

a. powers

i. To have continues succession in the name


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ii. To sue and the sued

iii. To have and use a seal

iv. To acquire and convey property

v. To exercise other powers granted to corporations. (Sec.22)

b. The local chief executive may not enter into any contract without prior

authorization by sangunian. (Sec.22)

12. Local government units and their officials are not exempt from liability

for death or injury to a person or damage to property. (Sec.24)


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C. Intergovernmental relations

1. National government and local government units

a. The President shall exercise general supervision over government units.

i. The President shall exercise supervisory authority directly over provinces, highly

urbanized cities and independent component cities.

ii. The President shall exercise supervision over component cities and

municipalities though the province and over barangays through the city and

municipality. (Sec.25)

b. No project shall be implemented by government authorities without consultation

with the local government units and prior approval of the sangunian (Sec.27).

2. Inter-Local Government Relations

a. The province, through the governor, shall ensure that any component city and

municipality acts within powers. (Sec.27)

b. The city or municipality, through the major, shall ensure that barangays act

within the scope of their powers. (Sec.29)

c. The governor shall review all executive orders promulgated by the mayor. The

mayor shall review all executive orders promulgated by punong barangays. (Se.30)

II. Elective Officials

A. Qualifications and Election

1. Qualifications


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a. Common qualifications

i. Filipino Citizen

ii. Registered over the local government unit, or the district where he intends to

elected in the case of members of the sangunian.

iii. Residence therein for the least one year immediately before the election.

iv. Ability to read and write Filipino or any other local dialect.

b. Age

i. candidates and the provinces and highly urbanized cities--- 23 years.

ii. Candidates for mayor or vice mayor of component cities or municipalities--- 21

years

iii. Candidates for sangunian member in component cities and municipalities18

years

iv. Barangay officials18 years

v. Sanguniang kabataan--- 15 to less than 18 years (Sec. 7, Rep. Act. No. 1964)

2. Disqualifications

a. Those sentenced for an offense involving moral turpitude or an offense

punishable by imprisonment for one year or more, within two years after serving

sentence

b. Those removed from office because of an administrative case

c. Those convicted for violating oath of allegiance t the Philippines

d. Those with dual citizenship

e. Fugitive from justice

f. Permanent residents in a foreign country or those who have the right to reside

abroad and continue to avail of it.

g. The insane feeble minded

TORRES, ROMEL G.

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3. Election


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a. The Governor, vice governor, mayor, vice mayor, and punong barangay shall

be elected large. (Sec.41)

b. For Provinces and cities with two or more legislative districts, the elective

member of sangunian shall be elected by legislative districts. Provinces and cities

and municipalities in Metropolitan in Manila with only one legislative district shall

be divided into two districts by the Commission on Elections. (Sec. 3 (a) and (b)

Rep. Act. No. 7166; Sec. 1, Rep. Act. No. 7887)

c. Regular elective members of the sangunian of cities and municipalities shall be

elected at large. (Sec.1, Rep. Act. NO. 7887)

d. Sanguniang barangay members shall be elected in large.

e. The president of the league of the sangunian members of component cities and

municipalities shall be ex officio member of the sanguniang panlalawigan.

f. The president of the liga ng mga barangay and the pederasyon ng mga

sanguniang kabataan shall be ex officio member of the sangunian.

g. There shall be a sectoral representative from the women, workers, urban poor,

indigenous cultural communities, disabled persons, or any other sector determined

by the sangunian. (Sec.41)

4. Terms of office 3 years (Sec.43, as amended by Sec. 2, Rep. At. No. 9164)

B. Vacancies and Sucession

1. Governor and mayor

a. Vice governor and vice mayor

b. sanguniang members according to ranking

2. Punong barangay

a. Highest ranking sanguniang barangay member

b. Second highest ranking sanguniang barangay member

3. Ranking in the sangunian shall be determined on the basis of the proportion of

the votes obtained to number of registered voters in each district.

4. Ties will be resolved by drawing of lots. (Sec.44)

5. Sangunian

a. Provinces, highly urbanized cities, and independent component cities----

appointment by President


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b. Component city and municipality ---- appointment by governor

c. Sanguniang barangayappointment by mayor

d. Except for the sanguniang barangay, the appointment shall come from the

political party of the member who caused the vacancy.

e. If the member does not belong to any party, the appointee shall be

recommended by the sangunian.

f. The appointee for the sanguniang barngay shall be recommende by the

sanguniang barangay.

g. Vacancy in the representation of the youth and the barangay in the sangunian

shall be filed by the official next in rank in the organization. (Sec.45)

6. Temporary Vacancy

a. When the governor, the mayor or punong barangay is temporarily

incapacitated to perform his duties, the vice governor, vice mayor, or ranking

sanguniang barangay member shall exercise his powers except the power to

appoint, suspend or dismiss employees, which can only be exercised after 30

working days.

b. When the local chief executive is traveling within the Philippines for not more

than 3 consecutive days, he may designate an officer-in-charge. The authorization

shall specify the powers of the officers-in-charge except the power to appoint,

suspend or dismiss employees.

c. If the local executive does not issue the authorization, the vice governor, vice

mayor, or highest ranking sanguniang member shall assume his powers on the

fourth day of his absence. (Sec.46)


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C. Local Legislation

Local legislative power shall be exercised by the Sangguniang Panlalawiganfor the Province; the Sangguniang Panlungsod for the City; the Sangguniang Bayanfor the Municipality; and the Sangguniang Barangay for the Barangay (Section 48,R.A. No. 7160).


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1. The vice governor, the vice mayor, and the punong barangay shall be presiding

officer of the sangunians but shall vote only in case of a tie [Section 49 (a), R.A.

No. 7160].

2. In case of inability of the presiding officer, the members shall elect a temporary

presiding officer from among themselves[Section 49 (b), R.A. No. 7160].

3 For disorderly behavior and absence without justifiable cause for four (4)

consecutive sessions a, member may be censured, reprimanded, excluded from the

session, suspended for not more than 60 days, or expelled. Suspension or

expulsion shall require concurrence of at least two thirds (2/30 vote of all the

sanggunian members. A member sentenced by final judgment to imprisonment for

at least one year for a crime involving moral turpitude shall be automatically

expelled.[Section 50 (b) (5), R.A. No. 7160].

4 Every sanggunian member

group # 05- local government (1)

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