The euphoria of the 2016 elections may have died down but some legal issues are yet to be resolved by the courts and the Comelec. A number of these cases may relate to the proper interpretation of the “three-term limit rule” for local elective officials.
This disqualification rule, as enshrined under Section 8, Article X of the 1987 Constitution and reiterated in Sec. 43 (b) of the Local Government Code of 1991, prohibits local elective officials from serving more than three (3) consecutive terms in the same position. It ensures that there is a change in leadership every after three consecutive terms of a local elective official to give chance to some other qualified individuals. Although the rule appears to be simple, the same has been a fertile ground for disputes stemming from varying interpretations of said rule.
In Abundo v. Comelec (2012), the Supreme Court laid down the following requisites for the applicability of the rule: (1) that the official concerned has been elected for three consecutive terms in the same local government post; and (2) that he has fully served three consecutive terms.
The Abundo ruling likewise summarized various cases where the applicability of this rule was tested. These cases relate to: (1) assumption of office by operation of law, (2) assumption of office after winning a recall election, (3) conversion of a municipality to a city, and (4) declaration of the proclaimed candidate as the losing party in an election contest, and other analogous cases.
ASSUMPTION OF OFFICE BY OPERATION OF LAW
In Borja, Jr. v. Comelec (1998), Capco was elected vice-mayor but he eventually succeeded as mayor by operation of law due to the death of the incumbent mayor. Capco was then elected as mayor for two more terms after his assumption by operation of law. On his third attempt to re-election, his disqualification was sought. The Supreme Court held that “it is not enough that an individual 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.” Thus, the initial assumption by operation of law was not counted for purposes of the three-term limit rule.
ASSUMPTION OF OFFICE AFTER WINNING IN A RECALL ELECTION
In Socrates v. Comelec (2002), Hagedorn was elected and served as mayor for three consecutive terms. After that Hagedorn opted not to run for the next elections, in which Socrates eventually won. However, while serving his term, Socrates faced recall proceedings. Hagedorn ran for the former’s unexpired term, so Socrates sought his disqualification. The Supreme Court upheld Hagedorn’s candidacy to run in the recall election, since after his third term “he became a private citizen until the recall election” where he won.
CONVERSION OF A MUNICIPALITY INTO A CITY
In Latasa v. Comelec (2003), Latasa served as Mayor of the Municipality of Digos for three consecutive terms. During his third term, Digos was converted to a component city. When he filed his candidacy for city mayor, the Supreme Court ruled that “the conversion of a municipality to a city does not constitute an interruption of the incumbent official’s continuity of service.” Thus, the rule was applied.
LOSING IN AN ELECTION CONTEST
In Lonzanida v. Comelec (1999), Lonzanida was elected and served as mayor for three terms from 1989-1998. However, his proclamation relative to the 1995 election (for his 3rd term) was declared as null on the ground of failure of elections. Three months before the 1998 elections, Lonzanida vacated the mayoralty post. In the May 1998 elections, Lonzanida again filed his certificate of candidacy. This was questioned by his opponent.
The Supreme Court held that “Lonzanida cannot be considered as having been duly elected to the post in the May 1995 elections since his assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation.” It was also stated that “Lonzanida did not fully serve the 1995-1998 mayoral term having been ordered to vacate his post before the expiration of the term, a situation which amounts to an involuntary relinquishment of office.” Thus, the rule did not apply.
Contrast this to Ong v. Alegre (2006), Ong was elected and served as mayor for three terms from 1995-2004. During the 1998 elections, the Comelec nullified Ong’s proclamation on account that he lost during the 1998 elections. Nonetheless, the decision became final and executory on July 4, 2001 when Ong had fully served the 1998-2001 term and was in fact already starting to serve the 2001-2004 term. In 2004, he filed his certificate of candidacy for the same position which his opponent questioned. Ong invoked the ruling in Lonzanida.
The Supreme Court held that “his assumption of office as mayor for the term 1998-2001 constitutes service for the full term.”Lonzanida did not apply because the conditions are different. Ong was deemed to have served for a full term because Ong’s proclamation was voided only after the expiry of the term. It was further noted that “the decision declaring Ong as not having won the 1998 elections was without practical and legal use and value.” “His proclamation 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 limit rule.”
Based on the foregoing, the rule is applicable for as long as a local elective official (1) has been elected and (2) had served for three consecutive terms in the same position. As such, an official who merely assumed office by operation of law can run for the same position for three consecutive terms since he was not elected to the position. Likewise, an officer who has been elected and had served three consecutive terms will not be disqualified to run for a recall election for the same position since there has been an interruption in the continuity of terms of office after his third term. Lastly, an official who did not serve a full term for having been declared to have lost an election contest can still run for the same position since the requirements are not complied with.
On the other hand, the rule is applicable to disqualify a local elective official to run for a fourth consecutive term over the same position even if the municipality has been converted into a city, or when a local elective official has been declared to have lost an election only after he had already served his full term.
Reynold L. Orsua is an Associate of the Litigation and Dispute Resolution (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
source: Businessworld
Wednesday, July 20, 2016
Monday, July 18, 2016
Federalism 101: Meaningful autonomy, virtues and frailties
Venezuela is the poster boy for how mindless populism runs an economy down to the ground. The country is on a free fall and Venezuelans are teetering on the edge of starvation. It is also a poster boy for how not to organize a federal system. Two centuries after its founding as a federal state in 1811, it has still to find a federalism that works. It has oscillated from the original decentralized federalism to a “Centralized Federal State” of the 1999 Constitution to the “transitional constitutional regime” where the president enjoys decree-making powers. Along the way, the central state has so disemboweled the subnational states that all the possible virtues that can adorn federalism have folded their tents and departed.
What are the possible virtues and frailties of meaningful federalism? My perspective will be economic and will be limited. Everything depends upon meaningful autonomy. With meaningful autonomy, these are possible: first jurisdictional competition: subnational states can engage its fellow states in competition for investments via lower taxes or more market-friendly labor policies in the same way that countries compete. One of the great attractions of PRC as investment destination is that labor unions are illegal. A sub-state can choose from different economic models, say, South Korea or North Korea as autonomy allows. The fate of the whole economy is thus not a wagered upon one model. It is risk diversification at the policy level. Modern Venezuela has, however, evolved no more than meaningless autonomy.
Second is that subnational states will implement a national policy as suits its needs and complimentary assets.
A good example is the agrarian reform policy in India: different subnational states implemented different types of agrarian reform of which the three most important are (Banerjee and Mookherjee, 2005; 2007): (1) tenancy reform which changed the contractual terms in favor of tenants in rural India (crop shares and security of tenure associated most with Operation Barga in Punjab and West Bengal); (2) land ceiling and redistribution: imposed land ownership ceilings and the redistribution of land in excess of the ceiling (Kerala and CARP Philippines); (3) the abolition of tax farming intermediaries, the zamindari system. The robust favorable result on poverty reduction and farm productivity heavily favored contract and bargaining reform while land ceiling and acquisition produced the opposite result. The already agriculturally affluent Punjab and West Bengal benefited. The framers of CARP followed Kerala and got the same sad outcome. So one possibility under meaningful federalism is that land reform in the Philippines will diversify for the good.
The third virtue of the federal system comes via the Buchanan-Nozick federalism: the sub-states will differentiate by local public goods and citizens can vote with their feet -- locate in states whose the Constitution and the local public goods congrue best with their individual values. One state may combine high income taxes with quality publicly provided local public goods and services (Scandinavian welfare state) and another combines low income taxes with less publicly and more privately provided public goods (most LDCs and the Philippines). This circumscription of citizen values by Tiebout voting (effectively violating the Arrow axiom of universal domain) avoids the Arrow paradox of democracy. A federal system like the Swiss cantons acts to homogenize the sub-state population and preferences thus enabling, for example, the median voter theorem.
Fourth is the “tragedy of the commons” argument: In presidential states viewed as a failure by its polity, different subnational groups will retreat to their own subgroups who view fiscal resources of the center as a common resource: they will play a zero-sum game of “grab as grab can”; in those same presidential states, “who pays and who loses” may not be very palpable because the contested resource is large and the competing claimants are numerous and faceless. When federated, the contested subnational state’s common resource as well as the number of claimants are smaller resulting in more visibility and salience on “who pays and who loses.” This should induce greater vigilance and accountability over the allocation and use of local resources -- the classic argument for most decentralization effort.
But the frailties of meaningful federalism are also compelling: arterial infrastructure (those that span sub-national state jurisdictions) will find it harder to be engendered for two reasons: increased approval hurdles (we already experience this with the Local Government Code); two, because the fraction of fiscal resources in the control of the center decreases (as in, say, the Pimentel Plan), it is less able to bankroll those public works, ceteris paribus.
And then there is the equalization transfer issue: cross jurisdiction inequality will rise because capacity of the center to effect fiscal transfers (Internal Revenue Allotment) to poorer jurisdictions will fall -- the Calabarzon region for example will retain more of its huge tax revenues while poorer regions such as ARMM can expect less in the form of IRA. Again cross jurisdiction mobility will mitigate but not eliminate this problem for citizens and household who can move. Poverty will thus rise in these poorer sub-states even as it drops in richer ones.
It is now canonical in the post-Piketty Capital era that income inequality will rise in market economies unless there is a determined pushback by the state. The capacity of the state to do that by transfers (say with an expanded CCT) will be diminished. It is a good bet that,ceteris paribus, net poverty incidence will rise.
Finally, the centrifugal risk: a successful sub-state in a national collective viewed as a failure will be tempted to go it alone (“Brexit” in EU, Catalan exit in Spain). The presence of a sub-state president and legislature makes it easier to bolt. If the economy tanks under the Duterte or subsequent presidency, the rush to the door will forthcome.
A paradox emerges: If Duterte turns out to be a gale force for the good, meaningful federalism will cramp his style. If Duterte turns out to be a force for the bad, meaningful federalism can limit the damage. This conservative posture may not jibe well with voters’ electoral expectation.
Of course, Duterte can always do a Hugo Chavez: chip away at federal autonomy using emergency decree-making powers and run the Philippine economy to the ground. Le plus la meme chose? Whether power is presidential or federal, only correct policies will redeem it.
Raul V. Fabella the chairman of the Institute for Development and Econometric Analysis, a professor at the UP School of Economics, and a member of the National Academy of Science and Technology.
source: Businessworld Column
Introspective
What are the possible virtues and frailties of meaningful federalism? My perspective will be economic and will be limited. Everything depends upon meaningful autonomy. With meaningful autonomy, these are possible: first jurisdictional competition: subnational states can engage its fellow states in competition for investments via lower taxes or more market-friendly labor policies in the same way that countries compete. One of the great attractions of PRC as investment destination is that labor unions are illegal. A sub-state can choose from different economic models, say, South Korea or North Korea as autonomy allows. The fate of the whole economy is thus not a wagered upon one model. It is risk diversification at the policy level. Modern Venezuela has, however, evolved no more than meaningless autonomy.
Second is that subnational states will implement a national policy as suits its needs and complimentary assets.
A good example is the agrarian reform policy in India: different subnational states implemented different types of agrarian reform of which the three most important are (Banerjee and Mookherjee, 2005; 2007): (1) tenancy reform which changed the contractual terms in favor of tenants in rural India (crop shares and security of tenure associated most with Operation Barga in Punjab and West Bengal); (2) land ceiling and redistribution: imposed land ownership ceilings and the redistribution of land in excess of the ceiling (Kerala and CARP Philippines); (3) the abolition of tax farming intermediaries, the zamindari system. The robust favorable result on poverty reduction and farm productivity heavily favored contract and bargaining reform while land ceiling and acquisition produced the opposite result. The already agriculturally affluent Punjab and West Bengal benefited. The framers of CARP followed Kerala and got the same sad outcome. So one possibility under meaningful federalism is that land reform in the Philippines will diversify for the good.
The third virtue of the federal system comes via the Buchanan-Nozick federalism: the sub-states will differentiate by local public goods and citizens can vote with their feet -- locate in states whose the Constitution and the local public goods congrue best with their individual values. One state may combine high income taxes with quality publicly provided local public goods and services (Scandinavian welfare state) and another combines low income taxes with less publicly and more privately provided public goods (most LDCs and the Philippines). This circumscription of citizen values by Tiebout voting (effectively violating the Arrow axiom of universal domain) avoids the Arrow paradox of democracy. A federal system like the Swiss cantons acts to homogenize the sub-state population and preferences thus enabling, for example, the median voter theorem.
Fourth is the “tragedy of the commons” argument: In presidential states viewed as a failure by its polity, different subnational groups will retreat to their own subgroups who view fiscal resources of the center as a common resource: they will play a zero-sum game of “grab as grab can”; in those same presidential states, “who pays and who loses” may not be very palpable because the contested resource is large and the competing claimants are numerous and faceless. When federated, the contested subnational state’s common resource as well as the number of claimants are smaller resulting in more visibility and salience on “who pays and who loses.” This should induce greater vigilance and accountability over the allocation and use of local resources -- the classic argument for most decentralization effort.
But the frailties of meaningful federalism are also compelling: arterial infrastructure (those that span sub-national state jurisdictions) will find it harder to be engendered for two reasons: increased approval hurdles (we already experience this with the Local Government Code); two, because the fraction of fiscal resources in the control of the center decreases (as in, say, the Pimentel Plan), it is less able to bankroll those public works, ceteris paribus.
And then there is the equalization transfer issue: cross jurisdiction inequality will rise because capacity of the center to effect fiscal transfers (Internal Revenue Allotment) to poorer jurisdictions will fall -- the Calabarzon region for example will retain more of its huge tax revenues while poorer regions such as ARMM can expect less in the form of IRA. Again cross jurisdiction mobility will mitigate but not eliminate this problem for citizens and household who can move. Poverty will thus rise in these poorer sub-states even as it drops in richer ones.
It is now canonical in the post-Piketty Capital era that income inequality will rise in market economies unless there is a determined pushback by the state. The capacity of the state to do that by transfers (say with an expanded CCT) will be diminished. It is a good bet that,ceteris paribus, net poverty incidence will rise.
Finally, the centrifugal risk: a successful sub-state in a national collective viewed as a failure will be tempted to go it alone (“Brexit” in EU, Catalan exit in Spain). The presence of a sub-state president and legislature makes it easier to bolt. If the economy tanks under the Duterte or subsequent presidency, the rush to the door will forthcome.
A paradox emerges: If Duterte turns out to be a gale force for the good, meaningful federalism will cramp his style. If Duterte turns out to be a force for the bad, meaningful federalism can limit the damage. This conservative posture may not jibe well with voters’ electoral expectation.
Of course, Duterte can always do a Hugo Chavez: chip away at federal autonomy using emergency decree-making powers and run the Philippine economy to the ground. Le plus la meme chose? Whether power is presidential or federal, only correct policies will redeem it.
Raul V. Fabella the chairman of the Institute for Development and Econometric Analysis, a professor at the UP School of Economics, and a member of the National Academy of Science and Technology.
source: Businessworld Column
Introspective
Raul V. Fabella
Tuesday, July 12, 2016
Amicable settlement can be enforced by village ‘lupon’
Dear PAO,
My neighbor and I entered into an amicable settlement over my vehicle, which he had damaged in an accident. Under such settlement, he agreed to pay me P 3,000.00 a month for twelve months starting January 2016. He, however, has not paid me anything. May I enforce our agreement?
My neighbor and I entered into an amicable settlement over my vehicle, which he had damaged in an accident. Under such settlement, he agreed to pay me P 3,000.00 a month for twelve months starting January 2016. He, however, has not paid me anything. May I enforce our agreement?
Sincerely yours,
BJ
BJ
Dear BJ,
For your information, Articles 416 and 417 of Republic Act (RA) 7160 or the Local Government Code of the Philippines, states:
For your information, Articles 416 and 417 of Republic Act (RA) 7160 or the Local Government Code of the Philippines, states:
SEC. 416. Effect of Amicable Settlement and Arbitration Award. – The amicable settlement and arbitration award shall have the force and effect of a final judgment of a court upon the expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been made or a petition to nullify the award has been filed before the proper city or municipal court. However, this provision shall not apply to court cases settled by the lupon [village council] under the last paragraph of Section 408 of this Code, in which case the compromise settlement agreed upon by the parties before the lupon chairman or the pangkat [group] chairman shall be submitted to the court and upon approval thereof, has the force and effect of a judgment of said court.
SEC. 417. Execution. – The amicable settlement or arbitration award may be enforced by execution by the lupon within six (6) months from the date of the settlement. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court.
Clearly, when you and your neighbor settled your differences in the barangay [village] and you came up with an agreement relative to that, the same is considered of force and in effect ten (10) days after its award or agreement, if the same is not duly repudiated. Within six (6) months thereafter, the same maybe executed by the barangay lupon, but beyond that time, the filing of a Motion for Execution before the proper Municipal/Metropolitan Trial Court becomes the proper remedy, which is apt in your situation.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
Thursday, July 7, 2016
Just days before he assumed the Presidency, Mayor Rodrigo Duterte unveiled a mammoth master plan for a P39-billion Davao Coastline and Port Development project.
A joint venture agreement was signed June 21 by the Davao City government and Mega Harbor Development Corporation. The project covers 200 hectares from the existing Sta. Ana Wharf to the Bucana area, where the Davao River flows out to the gulf.
Under the plan, Mega Harbor will begin with the reclamation of four islands. The first of the four islands will host a modern port with berthing length of 2.5 kilometers.
The second and third islands will be devoted to mixed-use components. The City of Davao will get about five hectares for its own use. The three islands will be linked to the mainland by a common access road.
The fourth island will feature a residential component, including a relocation site for the affected settlers. It will have its own access to the mainland.
As things happen in Davao City, this huge undertaking is expected to progress very quickly. Mega Harbor announced the company would be complying with the necessary permits within the year. The project development group, meanwhile, is now completing its assessment of the traffic, social and environmental impact of the project.
This large project was approved by the City Council last April 12, as undergoing a Swiss Challenge where possible contenders could offer lower bids for the original proponent to match. The entire package will be completed at no cost to the city.
Residents that might be affected by the project will be offered relocation to medium-rise building to be constructed within the project area. The whole project will be organized on the theme of “Green Urbanism” and promises to be a world-class city.
The most notable thing about this project is that it was unsolicited.
The proponents built a design and proposed it to the City Council on a joint venture arrangement. The City Council, for its part, examined the project, looked at its environmental impact and the social costs of relocating the settlers to be displaced. Then they approved it, as simple as that.
This departs quite sharply with the method and policies associated with public-private partnerships during the Noynoy Aquino administration.
To begin with, no unsolicited proposals were entertained. This foreclosed any bright ideas that might emanate from the private sector.
Then, the Noynoy administration looked at the front-end revenues to be made from a PPP project. This was an oppressive inclination. It forced private investors to cough up huge sums for government’s share of the program, in most cases undercutting viability of the project or forcing consumers to pay for the exorbitant front-end costs.
It will do well for the bureaucrats of the Aquino era to look at this project in Davao City.
No front-end fees were paid government, only a share of the land to be developed. No additional costs were imposed that would have undermined the viability of the project.
The Davao project, hopefully, serve as the model of how things could be done from hereon.
source: Philippine Star Column of
Wednesday, July 6, 2016
‘Less than 1 percent of LGUs ready for disasters’
LESS than one percent, or only 160 out of 1,700 local government units (LGUs), have existing action plans to deal with disasters, a fact that makes poor people more vulnerable to calamities, according to an official of the Climate Change Commission (CCC).
CCC Secretary Emmanuel de Guzman said the discovery compels them to require all the LGUs to formulate their respective local climate change action plans (LCCAPs) by the end of next year.
He noted that an action plan will enable the LGUs to increase the capacities of local communities to reduce disaster risk and adapt to climate change.
“Each LGU should have a local climate change action plan as mandated by the Climate Change Act of 2009. Thus far, out of 1,700 LGUs including provinces, only 160 would have a plan,” de Guzman, vice chairman of the CCC, said.
The official added that there is an urgent and compelling need to enhance the capacity of the LGUs to adapt to climate change and reduce their vulnerability to weather-related disasters in order to protect the nation’s poorest, who bear the brunt of climate change impacts.
“Based on our timeline, we should have 500 plans by the end of the year and all the LGUs, municipalities, cities and provinces, should have their own LCCAP by the end of next year,” he said.
The absence of such action plans, de Guzman pointed out, is a “social sin” because it is contrary to the interest of the most vulnerable sectors of society.
“Non-action on climate and disaster risks is a social sin and a form of injustice to the poor and the most vulnerable,” he said.
With the LCCAP, de Guzman further noted, the LGUs could have access to the P1-billion People’s Survival Fund (PSF) that will finance local adaptation initiatives.
The PSF may be used to finance adaptation activities such as water resources and land management; risk insurance for farmers, agricultural workers and other stakeholders; infrastructure development and protection of natural ecosystems; and monitoring of vector-borne diseases triggered by climate change.
De Guzman said sectors mired in poverty such as farmers, fisherfolk and informal settlers living in danger areas have a higher chance of suffering ill effects of climate change since they often live, farm or hold assets in areas more exposed to drought and floods, which put their homes, crops, livestock and even their own lives at greater risk.
These sectors, he added, also have limited safety nets or insurance mechanisms to help them cope with climate change-related shocks like failed harvests linked to changing weather patterns and loss or damage linked to weather extremes.
“An LCCAP could well define the strategies of a community for strengthening local risk governance, enhancing rural livelihood, ensuring ecosystems integrity and building cultural resilience. Implementing these strategies surely reduces disaster risk and builds the adaptive capacity and resilience of communities to climate change impacts,” de Guzman explained.
He said they plan to empower the LGUs against climate change by rolling out in the coming months a network of learning centers that will offer standardized training modules on adaptation and mitigation measures.
De Guzman cited Section 14 of the Climate Change Act of 2009 or Republic Act 9729 that mandates LGUs as frontline agencies in the formulation, planning and implementation of climate change action plans in their respective areas, consistent with the provisions of the Local Government Code, the National Framework Strategy on Climate Change and the National Climate Change Action Plan.
source: Manila Times
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