draft

as

of 10 November 2012

RAflEWER ON TOCATGOVERNMENT T.AW

Albrto C Agra
.

Professor of Laws, Political Law Bar Reviewer Ateneo Law School (draft as of 10 November 2012)

'

Part

Local Goremrnent3

Niture of tocal Gorremment 0nits Types of Local Govemment Units Creaffon of local Govemment Units
Part

'

6 9 13
13

local Auto0omy
Unitary, not Fedenl, Form L6cal Autonomy Devolutlon and Deconcentration ExecutiveSuPervlsion . Leglslative contDl

L4 16 19 23 25

Part

Pourer of Lcal Goremments

Delegation and lnterpretatbri of Powers Police Power ' . Eminent Domain Reclass lffcatlon of Land Local Legislation Other Govcrnmcntal and Corporab Powcrs

25 28 33 38 39 48 49

Part

local Autonomy and LocalSourc6 of Funds

Sources of Funds Fiscal Autcinomy

lntemal Revenue Allotment Share in NationalWealth Proceeds Power of Taxatlon

49 49 50 52 53

Alberto

Revlewcr on Local Golctnmrnt Law C. Agra, Atcri.o [.w Sdrool

,
Parts

.,
I

dnftas of

10 Novembcr2ol2

Loc.lcotmmcntofnCds
tetislatine Contol orer Term of Powers of Local

55 55
55 58 59

Office Officials PowertoAPPoint r Ban on Holdlng Dual Posltions

Structure .

Vacancies Part

60 60

Accounbblllty of tocal Gouemment unlB

and

Ofilclab

63 63 63 64

'
Part

Off,cbls Proceedings Penakies . Preventive SusPenslon Eflbct of Re-Electlon

7
Peoplc'3
VenuGs

suabllity and LiabllW Liabiltry of Local Gwernment LlabilltY of Local Adminlstratlve

Uirits ' .
i

68 70 70 72

Paiuclp.tlon Referendum Bodies Assbtance

i;,lj

79
73 73

for Popuhr PardciPation Prior Mandatory Consuttation

lnitiatfue and tocalspeclal Partnershlps and

Recall Scctoral RePrcsntatlv6

75 75 76 76 77

AlbcBo c. At6, Atrrrlo

[.w Sdlool'

draft as of 10 Norember 2012

Pa.t 1. TOCAL GOVERNMN.TS

Noture of Locol Govcmfilrint Unlts

1.

Under the 1987 Crnstitution, local govemments or local government units (LGUS) are referred to as "political and territorial subdivision{ (seclion 7, Article X, 1987 Constitution).

7.L

An LGU ls a public corporation and is classiffed as a municipalcorpoetion Proper.

a.. The four qlements of .an IGU are; (1) lega I creation; (2) corporite name; (3) inhabitants; and (4) place or territory (Public Corporations, RuWtto G. Martin, 7985).

b.

They are established for the govemment of a portion of the State (Publlc Corpomtions, Ruperto G. Martin, 7985).
An LGU can only exercise its powers within its territorial boundary or jurlsdlction. lts powers are intramural. fu an excqption, an LGU can exrclse its powe6 outside the subdlvision (extramural) ln three occaslons; namely, (1) pmtdction of water supply; (2) preventlon of nuisance; and (3) police purposes. (Public Corporotions, Ruperto G, Martin,7985).

c.

7.2 ' 1.3 L.4 .

Local govemments

agencies of Government distinguished from the National Go\rernment which refurs to the entirc machinery of the central govemment (Sections 2 [ ] ond [2], 7987 Nministratlve Code).
Publlc corporations created by local govemments are referred to as quasi-munlclpal corporations (Public Corpomtions, Ruperto 6. Mortin,
198s).

are administrative agencies and

Local Eovemments are distinluisheil from quasi-corpoftrtions. Quaslcorpoftttlons are created by the State, either by law or by authority of law, for a specific govemmental purpos e (Public Corporations, Ruperto G. Mortin, 7985).

Alberto

Rcvlewer on Loc.l Govrmmcnt Law C, Agra, Atcnco Lrw Sdrool

draftas of 10 November 2012

a.

A govemment-owned ahd <ontrolled corporation (GoCC) must be organized eather as a stock or non-stock corpoGtion. (MIAA vs. CA"
G.R. No. 75565O, tuly 20,2006).

i.

A GOCC is vested by law with a legal personali1 separate and. distindt from those actinS for and in its behalf and, in generaf from the people comprisinCit (MlM vs. CA, G.R. No. 755650, tuly 20,2006).

li.

throuth special charter must meet the two conditions, namely: (a) it must be established for the common
GOCC created

good; and {b) it must meet the test of economic viability fSection 76, Artlcle Xil, 7987 Constitution).

' .
b.

iii, Examples

GOCG are: GOCG incorporated under the Corporation Code, subsidiaries of GOCCs, Govemment Financial lnstitutions (GFls), Water Districts, govemment-acquired asset
corporation (MIAA vs.
CA, G.R. No. 155650,

of

tuly 20, 2006).

A government instrumentality (Gl) is neither a stock nor'a non-stock corporation (MlAAvs. CA" 6.R. No.75565O,tuly 20,2O06).

i.

A Gl. which is operationally autonomous, remains part of the National .Govemment machlnery although not integrated with
the department framework (MIAA vs. v. CA, G.R. No. 755650, July 20,2006).

ii. Examples pf

Gls are: Bangko Sentral ng

Research lnstitute, Laguna
Lake Fisheries Development Authority, Bases

Pilipinas, Philippine Rice

Developrnent Authority, Conversion Development Authorw, Philippine Ports Authority, Cagayan de Oro Pbrt Authorlty, San Fernando Port AuthoriW, Cebu Port Authority, and Philippine National Railways (MlM vs. v. CA, G.R. No. 755650, Juty 20, 2006).

2.

The character of LGs ls two-fold, i.e., govemmental or public, and proprietary or private (City of Manilo vs. lntermediote Appellote Court, 6:R, No, 77759, November

ls,1989).

Alberto

Revlewer on Local Go\rcmmcnt Law C. Agra, Ateneo Law Sdrool

draft as of 1o November2ol2

2.1

Govemmental powers are those exercised iri administering the powers of

the state and promoting the public welfare anq they include the
lcgishtlve, judlclal, public and poliHcal. Examples arei'delivery of sand for a munhlpal road (Munictpolity of Son Femando, La Ullon vs. Firme, 6.R. No. L-52779, April 8, 1991), local legislation, control over police and abatement of nuisance.

2.2 ' 2,3 . '

Proprietery powers, on the other hand, are exeicised for the special benefit and advantage of the community and include those which are ministerial privaG and corporate (Municipolity of San Fernondo, Lo Unlon vs. Firme,6.R. /vo. L-52179, Aqtil 8, 1991). Examples are: public cemeteries, markets, ferries and waterwork..

Therebre, the purpose of LGs is also two-fold, i.e., LGs are agents of the State in the exerclse of govemment or public powers, and are agents of the community and people in the exercise of proprietary or private powers flino, Jr. vs. Porto, G.R. No. 729093, August 30, 2007; Mdgtoias vs. Pryce Prcperties ond Phlllppine Amusemen6. ond Gaming Corpordtlon, 6.R. No. 777O97, luly 20, 7994; Bosco lls. Phlllppine AmusemenF and Goming Corpomtton, G.R. No. 97649, Moy 14, 1991).

3. The rule on corporate succession applies to local governments'

3,1 3.2 .

They have the power of continuous succession under its corporate name. (section 22, Local aovernment Code of 7997 or 7997 LGC). When there is a perfected contract executed by the former Governor, the succceding Govemor cannot revoke or ,enounce the same without the coment' of the other parnl (owcmment Seruie lnsumnce System vs. Prcvincc of Torlog G.R. No. 7578il), De@fiber 7, 2@3).

4. Congress in enactlng

the 1991 LGC and chartes of Particular LGs allocates among the different LGs their powers, responslbilities, and lesources and provide for the qualifications, election, appointment and removal,'term, salaries, powers and functions and dirties of local officials, and all other matters relatinf to the organlzation and operatlon ofthe local untts (Sectio n 3, Article X,7987 Constftution).

4.t

One such power is the power to appoint officials. While the Govemor has

. the authority to appolnt officials and employees whose salaries are pald

Revlewer on Local Govamment Law Alberto c. Atra, Atcnro L.w sdlool

draftas of 10 November 2012

out of the provincial funds, thls dos not xtend to the officials and
.

employees ol the sdnggunlang ponlalowlgan because such authority is lodged wfth the yrceo/emor (Atlinza vs. Vtllarom, G.R. No. 767087,

Moy10,2N5).
4.2

The authority

appoint casual and job order employees of the songgunlang panlalawigon belongs to the Viceo/emor. The authoiity of the Viceovernor to appoint the officials bnd employees of the songgunlong ponlolowiEan is anchored on the fact that the salaries of these employees are deiived from the appropriatlon specifically for said local legislative body. Accordingly, the appointing power of the ViceGo\remor is limlted to those employees of the sangguniang ponldlowlgan, as well as those of the Office of the Vice4ovemor, whose salaries are paid out of the funds appropriated tor the sdngguniang ponlolawlgon (Atienza vs. Wllaroso, G.R. No. 7elB7, Moy 10,.2oo5).

to

4.3

ln allocating local powers, Congress may proviie for a system of checks

and balances.

a.

The system of check and balances under the cunent system is statutorily, not constitutionalv (irnlike the three bnnches of
Government), prescribed.

b.

Under the 1983 Local Governmeni Code, the local chief executive performed dual functions - executive.and legislative, he/she being the preslding officer of lhe. sanggunion Under the 1991 LGg the union of legislative and rixecutfue powers in the office of the local chhf execuiive has been dlsbanded, so that either department now comprises different and non-intermir;gling offichl persohalities with the end in view of ensuring a better delivery of ptJblic service and provlde a system of check and balance between the t\^ro fAt,enzo vs. Vtllorosa, 6.R. No.161@1, May 10,2@5).

Types

of Lo(,,l Govemment Units

1.

There are. ffve levels/ kinds of political and territorial subdivisions, namelyl (1) Autonomous Regions; (2) Provlnces; (3) Cities; (4) Municipalities; and (51 Barangays (Section 7, Atticle x, 7987 Co6titufion).

'

Revleuier on Loc.l Go\,emmcnt Law Alberto c. Agn, Ateneo Law Sdrool

r
1.1

draft as of 10 November 2012

The Congtitution ldentifies two Autonomous Reglons, i'e., Muslim

Mindanao and Cordllhns (section 75, Article X, 798V Cor9tittttlon).

a.

Autonomous Regions consist of pmvinces, cities, municipalities, and geqnphical areas which share common and distinctive historicaland cuhural heritage, economic and social structures, and other relevant characteristics (Section 75, Article x, 7987 constitution).

b.

Autonomous Regions are undei the general supervision PresHeht (sectio n 76, Ardcle X, 7987 @nstltution).

of thi

c.

Section 20, Article X of the 1987 constitutlon enumerates the iiredueible legislative powers of autonomous regions: Wlthin Its the provisioni of this terrltorial jurisdiction and subject constitution and national laws, the organic ait of autonomous reglons shall provide for legislative Powers over: (1) Admlnlstratfue organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resourtes; (4) Personal, family, and property relations; (5) Reglonal urban and rural plannlng develoPment (6) Economlc, social, and tourisrir developmenq (7) Educational policiesl (8) Presewation and development of the cultural heritage; and (9) Such other matters as may be authorized by law forthe promotion of the Seneralwelfare ofthe people ofthe region:

to

d.

Republic Act No. 6734

oithe organic Act ofthe Autanomous

Region

of Musllm Mindanao (ARMM) is constitutional and is not violative of the Tripoli Agrement since the former is a later enactment. Further, the Tripoli Agredment musi conform with natiqnal laws such as the. Organic Act. (Abbas vs. bmmission on Electlons, G.R. No. 89657,
November 70, 7989).

e.

The single plebiscite contemplated by the Constitution and R.A. No' 5734 will be determinative oft (1) .whether there 'shall be an autonomous region in Muslim Mindanao; and (2) which provinces and clties, among those enumented in R.A. No. 6734, shall'comprise ft (Abbos vs. Commission on Elecllons, G.R. No. 89657, November 7O,
1989).

Revlewcr on Local Gorvammcnt

flw

Alberto c. Atra, Atenco law School

draft rs of10 November 2012

f. While they are classified as statutes, the Organic Acts are more than ordinary statutes because they enjoy affirmation by a plebiscite. Hence, the provlslons thereof cannot be amended by an ordlnary statute wfthout being approved in a plebiscite (Disomongcop vs. Secretary of Public Work ond Highwoys,6.R. No. 749848, November
2s,2004).
c. An act of the Regional Assembly of ARMM cannot amend the Organic Act nor can it amend the 1991 LGC. The 1991 LGC and the 1987 Admlnistratfue Code cannot amend the Oryanic Act{Pondivs. Court of Appeals, G.R. No. 116850, April 11, 2@2).

h.

The Autonomous Region of the Cordilleras has not been incorporated since in the plebiscite held, the cration has been rejected by all the covered provinces and ctty, save one province. There can be no autonomous region consisting of only one province (Boduo vs. Cordillem Bodong Admlnisnotion, 6.R. No.92A9, Februory 74,7997; Ordlllos.vs. Commlsslon on Electlons, G.R. No. 93(84, Decembcr 4,

lsso).

i,

However, th PGsident can create the Cordillera AdministratiVe Region (CAR). The Executive Order does not crreate the autonomous reglon fior the Cordilleras. The CAR: (1) is not a territorial and political subdivlsion; (2) is not a public corporation; (3) does not haye a separate juridical personality; (4) ls subject to control and supervision of the Presideng and (5f is merely a regional consultative and coordinative council fCordllc ro Brood coalitlon vs. Commlssion on Audit, G.R. No. 79956, lonuary 29, 1990).

L.2

There arc three sub-types of chies, namely: (1) hithly-urban ized; (2) independent cities; and (3) component cities.

a.

The hiihly-urbanized clties and lndependent component clties are not

under the supervision of prwinces and their vote6 are not qualified to vpte for provincial ofBclals (Sectro n.72, Artlcle X,7987 Constftutlon; Sectlon 29, 1991 tGC). These citles are under the dlrect supervislon of the President (5e ction 25, 1991 LGC).

Alberto

Reviewer on Lo6l Govcmmcnt Law C. Agra, Atcn.o Law SdDol

draft as of 10 November 2012

b.

C.omponent

. vote6

citbs are under the supervision of provinces and their elect provincial officials (Secdon 72, Atticle X, 7987

Constitution).

Creotion of local Govemment Units

1.

Only Congress and, by authority of law, local legislitive councils, can create specific LGs. Creation is a legislative act. The enabling law is referred to as the charter of t}e
LGU.

1.1

The President or the Executive Braneh of Govemment has no power to oI the President, G.R. No. create local governments (Camid vs. 17, 2005). 767474, lonuary

We

' a. Municipalities

created by executive fiat but whose existence were not judicially nullified and which continue to operate and exist after 1992 are consHered regular municlpalities. The 1991 LGC is thus a curative laglsl.tion. tf judiciaily annulled in a quowarranto case, the 1991 LGC will have no curative effect fsectrbn 4 42[d], 7991 LCC).

b, An LGU created by executive fiat which operated or func{oned

.

without interruption is considered a municipality by prescription (Muntdpow of timenez vs. Boz, G.R. No. 705746, December 2, 7996).

1.2 '

Contress can provide for the incorporation of Autonomous Regi6ns ldentified under the 1987 constitution. lt has not power to create other Autonomous Re8ions otherthan in Muslim Mindanao and Cordilleras.

a.

The O6ank Act shall define the bas'rc stnrcture of government for the

region consisting of the executlve department and legislatlve assembly, both of which shall be elective and representative of thi constitucnt political uniti. The organh acts shall likewise provirle for speclal courts with perconal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws
(section 78, Articte X, 7987 Constttutton).

b, The creation of the autonomous retion shall be effective when

approved by majority of the votes cast by the constltuent units in a

Ra/lewer on LocrlGovsnme{rt l,aw Alberto C. Agra, Atenco Law Sdtool

draft as of 10 NovemBer 2012

plebiscite called for the purpose, provlded that only provinces, cities, and Seographic areas voting favorably in such plebiscite shall be included in the autonomous region (Secrbn 78, Article X,7987 Constitution) .

The President cannot create a "state"; i.e., Bangsamoro Juridical Entity established under a Memorandum of Agreement, whose relationshlp with the govemment ls characterized by shared authority and responsibility, lt is a state in all but name as it meets the criteria of statehood: (1) a permanerit population; (2) a defined territory; (3) a govemmenq and (4) a capacity to enter into relations with other stat6s (Provrnce of North Cotobato vs. Govemment of the Republic of the Philippines Peace Pdnel on Ancestrul Domain, 6.R. ,vo. 783597,
October 74, 20O8).
1.3

Congress can create provinces, cities, municipalities and barangays subject to the crlteria specified under the 1991 LGC fsectio n 70, Article X, 7987 Constituttonl and special laws such as Republic Act No. 9009 (conversion of municipalities to component cities).

a.

Congress, by speclat law, can proride for different rquirements other than those specified in the 1991 LGC (League oI Cities of the Phllippines v. Commission on Elections,6.8. ,vos. 776957, 777499 ond 778056, April 72, 2077).

b. The

implementing rules and regulations cannot provide different requlrements other than what is provided by law. Exemption by adminlstrative regulatlon from hnd requirment when the province to be created is compojed of one or more islands is invalid (Novorro vs. Ernl,lto, G.R. No. 7nO5O, Aprt 72, 2011). The songgunlong ponlalawigan and songgunlang panlungsd can crate barangays (Sectton 6, 1997 LCC).Ihe songguniang boyon has no such authority under the 1991 [GC.

c,

L.4

An LGU ls deemed created on the day its charter takes effect.

a. lt is deemed incorporated

on the day the charter is apprbved by a majority of the votes cast in a plebiscite in the political units directly

Reviewer on local Go/cmmcnt law Albedo c, Ag6, At6eo Law Sdtool

10

draft as of 10 November2012

. .

affected $ection 7O, Article

L6c).

7987 Constittttion; Section 70,7997

l.

When a municipality is split lnto two, all the baranteys of the original municipality must vote. The plebiscite electorate includes :those who will be economically d islocated and based on plurality of units.(Podillo vs. Commission on Elections, G-R- No. 703328, October79,7992) A.plebiscite is required when a municipallty is converted into an independent component city and when the latter is latel converted to a comPonentrcity as therc was an "upgrade" and "downgrade' particularly insofar as taxes 'and supervision are concemed (Mirdndo vs. Agutrrc, 6.R. IVo. 133064, September 76,

ii.

lsee).

iii.

A boundary dispute presents a prejudicial question to a plebiscite and thus must be resolved prior to the conduct of any plebiscite (CW ol Postg vs. Commlsston on Eledbns, G.R. No. 725646, Seqtember 70, 1999).

.
b.

iv. The . Commlssion

Elections, not the reEular courts,. has jurlsdiction over plebiscite protest cases (Buoc vJ. Commbsion on Elections, G.R. No. 755855, lanuory 26, 2004).

on

The corporate exlstence of an LGU shall commence upon the election and qualification of its chief executive and a majority of the mernbers of 'rls sanggunion, unless some othcr time is fixed therefor by the law

or ordinance creating it fsection ,4, 7991 L@).

2.

The rcquirements for cration oA bcal gorernments are: (11 population; (2) income; and (3) land arca.

2.7

Under the 1991 LGc, these are speiific requlrements sub-type ofLGU /Sections467,450, t142,386,1997
Provlnce 20 mlllion

LOC)t

ior every type or'

:

Requirement lncome

cw
20 million CC

Munldpolity 25 mllllon

Earongdy

50 million

Reylewer on local Govcmmlnt taw AlbeFo c. Agn, Atnro L.w sdtool

11

draftas df 10 No\rember 2012

HUC

100 mlllion

MtoCC
Population
Land Ara

250,000 2,000 km'

150,000 cc 200,000 HUc 100 km'

25,0@
50

km'

2,@0 5;000 Metro Contiguous

2.2

For purposes of creation, onlythe land area is material. The law is clear.

a.

The aggregate territo.ry whiclr includes waters is not the criteria for cneation under the 1991 LGC (Sectio n 131 [r]).

b.

A charter states the boundaries of the local govemment. Areas or barangays not mentioned are bxcluded (Munlcipolity of Nuevo Ero vs. Municlpality of Morcos; G.R. No. 769435, Februory 27, 20OB).

2.3 2.4 2.5

A charter need not mention the population census (Iobrbs vs. Abolos,
G.R. No. 774783, Decembet S, 7994).

Failura to stata the seat of govemment ln the charter ls not fatal (somson vs. Aguirre, G.R. No. 733076, September 22, 1999).

lncome under the 1991 LGC pertains to all funds of the LGU including the lntemal Revenue Allotment (Alvorez vs. Guingona,6.R. No. 778303, lanudry 37, 7996). However, under R.A. 90O9 which deals with the conversion of a municipality to a component city, the funds must be

intemally{enetilted.

2,6 2.7

The lquirements for the creatbn

bf a component city and an

independent component city are the same,

Dependirig on thc type of tGU created, the presence of all the requirements of Population (P), Land Area (tA) ahd lncome (Y) may vary (Secdons 467,450,442, j86, 1991 LGC):
P

City

Barangay

and

[A

PandY,orYand
P

Province

LA

HUC

Municipality

and l-A and Y

PandY

and Y, or Y and LA

Alberto

Revlewer on Local Goreflrmcnt Law C. Agr., Atcneo Lrw Sdrool

12

draftas of 10 Novembr2012

3.

When a municipality is. converted to a clty, the latter acquires a distinct legal peEonality from the former. There is material change in the politlcal and economic rights of the two LGs (lotaso vs. Commbsion on Electlons, G.R' No. 754829,
December 7O,2003).

PaTt 2. LOCAT AUTONOMY

,rnltory, not Fedcml, Form

1.

The form of LGU bureaucracy is unitary, not federal (Mogtoias vs: Pryce Properties and Philipplne Anusements and Goming Corporotion, G.R. Ivo. 777097, July 20,
1994). 1.1

territorial subdivisions are units of the State. Being so, any form of autonomy granted to LGs will necessarily be limited and confined within the extent allowed by the central authority (Mogtolos vs. Pryce Properties ond Phllippine Amusements ottd aoming Coryomtlon, G.R. No.777097, tuly 20,1994).
LGs as politlcal and

t.2

not sovereign units within the State. They ar not empires within an emptre (Lino, Jr. vs. Pdrto,6.R. ,Vo. 72gog3, Aug,;st 3O,.2AO7; Magtaios vs. Pryce Properties and Philtppine Amusements ond Gaming Corpomtion, G, R. N o. 7 77097, J uly 20, 7994 ).
LGs ar

1.3

Autonomy does not contemplate making mini+tates out of LGs (Ganzon vs. Cnurt ol Appedls, G.R. No. 93252, August 5, 7997).
The 1987 Constitution does not conlemplaG any state in this jurisdiction other than the Philipplne state, much less does it provHe for a transitory

status that aims

prepare any part of. Philippine territory for. independence (Province of North cotobato .vs. Government of the " Repubtlc of the Philippines Peace Ponel on Ancr,stml Domaln, 6.R. No.
783597, Oc@ber 14, 2@8).

to

1.5

'

Federalism lmplies some measur. of decentraiization, but unitary systems may also decntralhe. Decentralization differs intrinsically from federallsm in that the sub-units thet have been authorized to act (by

Alberto

Rcvlewer on Lo6l Go/ammcnt [rw C. Atr., Atenco Law Sdrool

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draft as of 10 November2012

central (Dlsomongcop vs. of Public Work and Highways, Scqetury Sovernment G.R. No. 74981t8, Nwember 25, 2004).

delegatlon)

do not possess any cliim of right aSainst the

LoalAutcircmy

1.

Local autonomy means a more responsive and accountable local government structure instituted through a system of decentralization (Sec.ion 3, Article X, 1987 bnstttutio:n; Section 2[o], ,gg7 LGc; 1onzon vs. Court ol Appeals, G.R. No. 9i252, August 5, 7997).

1.1

Under a unitary set-up, local autonomy does not mean absolute selfSovernince, self-rule or selfdetermin ation (Public Corporutions, Ruperto G. Mortin, 1985/. LGs cannot exercise a power contEtry to the 1987 Constitutlon, the 1991 LGC, statutes and their respective charters.

1.2 . .
2.

Autonomy is not meant to end the relation of partnership and lnterdependence beturden the central administration and LGs, or othenvlse, to usher in a reSime of ftderalism (Gonzon vs. burt oJ Appeab,6.il.No.93252,August5,7997).

There are turo levels of iecentralization. Localautonomy is either decentralization of adminlstratlon or decentralization of power flilmbono vs. Mangelln, G.R. No. 80397, February 28,7989).

2.1

Therc is decntralization of administration when the central govemment delegates admlnistrative poweE to poiitical suMivisions in order to broaden the base of govemment pouer and in the process to hake local tovernments more responsive and accountable, and ensure their fullest development as self-reliant cominunfties and make them more effective partners ln the pursuit of national development and social progress. (Llmbono vs. Mongelin, G.R. No. 80397, Februdry 28, 7989). Decentralhation of power, on the otfier hand, involves an abdication of polltlcal power in favor of locai govemment unlts declared to be aqtonomous. The autonomous govemment is free to chart its own destlny and shape 1ts future with minimum intervention from central authorltles flimb ona vs. Mongelin, G.R. No. 80397, Februory 28, 7989).

2,2

Alberio

Revlcwcr on Local Go/cmmc{rt l. w C. Agrr, Atcnco Lew Sdrool

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draftas of

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Norember 2O12

Decentralizotlon

of

Decentrolizotion

ol

Adminktratlon Power Delegation of admlnistrative Abdlcatlon of political power

and regulatory powers Relieves state from burden manaElns local affairs Executive supervlslon

of Chart own destiny

supervision; minimal lnterventlon Accountability to pebple; selflmmolation Applies autondnrous regions

Executive to

Actountabillg
go\rernment

to

central

Applies to provinces, cities, munlclpaliths and baranSays

3.

The ARMM enjoys political autonomy (Limfuno vs. Mongelin, G.R. No. 80391, Februory 28, 1989; Cdrdillem Brood .Coolition vs. Commlssb.n on Audit; G.R. No. 79956, lanuary 29, lggc,). The crEatlon of autonomoirs retions contemplates the grant of polithal autonomy i.e., an autonomy whlch is grater than the adminlstrative autonomy tBnted to (other) LGs (Dlsgmangap vs. Secretary of Public Wo*s ond Highways, G.R. No. 149&48, November 25, 2OU) 3.1

Regional autonomy is the degree of selfdeterminauon eierclsed by the LGU v{s-}ryls the central government. Regional autonomy refers to the

basic internal tovernment powers to thb people of a particular ara or retion with least control and superuision fmm the central governmenl (Disomdngcop vs. Secrctary of Public Works and

granting

of

Htghwoys, G.R. No. 7498tl8., November 25, 2004).

3.2

The aim of the 1987 Constitution is to dxtend to the autonomous peoples, the people of Muslim Mlndanao ln this case, the right to selfdetermination, i.e., a right to choose thelr.own path of deVelopmentj the rEht to determine the polltlcal, cultural and economic 'content of their development path withln the framework of the sovereignty and tenitorial integrity of the Philippine Republlc (Dlsomangcop vs. Seqetory of Public Wo*s ond Highwoys, G.R. No. 749848, Novembet 25, 2OO4).

Alberlo

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4.

The Executlve Department violates local autonomy when it ignores the statutory authority of provlnce to nominate .budget offrcials (Son Juan vs. Civil Seruhe Commbsion, G.R. No.92299, Aprtl 19, 1991).
Where a law is.capable of two interpretations, one in favor of centralized power and the other beneficial to local autonomy, the scales must be weighed in favor of ' autonomy /San luon vs. Civil Seruice Commission, G.R, No. 92299, April 19, 1991).
LGUS have broad powe6 in the following areas: (1) Police Power; (2) Power of Taxation; (3) Power to lnipose Fies and Charges; (4) Sources of Local Revenues; (5) Corporate Powerc; and (6) Local Leglslation. The 1991 LGC in these areas does not provide an exclusive listing of powers. lt may be said that LGUs have resilual powers. Thls is consistent with the liberal view of autonomy which provides that LGUS can exercisl (1) those powers expressly tiven to them; (2) those powers implied from the express powers; (3) those powers not tiven to the National Government or any govemmental agency or instrumentality by law; (4) those powers not proh ibited or forbidden by the Constitution and statutes; (5) provided the powers are nicessary for the carrying out ofthe mandates and duties entrusted to LGUs wlth the end in view of promoting the general weffare in response to local concems and as agents of the communities,

5.

6,

De wtutfu/n

ond Detr,n@ ntmtto n.

1.

Devolution refers to the act by which the national govemment confers power and authority upon the various LGs to perform specific funstions and responsibilities (Section 17[e], ,991 LOC). The national lovemment shall, six (6) months after the effectivity of the 1991 LGC, effect the deconccntration of requisite authorlty and power to the apprcprhte Egional offices or fieH offrces of national agencies or offices whose majorfunctions are not devolved to LGVS (section 528, 1gg1 LGC).
.li.

1.1

The power to regulate and responsibility to delfuer basic services are the functions devolved to LGs. Examples are (Section 77[e], 7997 LGC):
Boslc

Natlonal Government Department of Asrlculture Department of Environment and

Serub*

ReEulatory Powe6

Agricukural extensiori lnspection

and on-site researrh Community+ased forestry proiects prod ucts

of

meat

Enforcement
environmental laws

of

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draft

as

of 10 Norembd 2012

Natural Resources Department of Health Department of Transportation and Commuhications oepartment of Public Work and Highways

Health and
services

hospital

quarantine
Operation of Tricycles

Public
funded

work

locally

Enfortement of National Buildine Code

L.2
2.

Devolution also includes the transfur of personnel. Devolved personnel (former employees of the national go{remment) may be reappointed by city mayor (P/ozo vs. Cossion, G.R. No. 736809, July 27,20@).

'

Devolution is a leglslative act. As to what state powers should be decentralized and what may be deletated to LGs remains a matter of polic% which concems wisdom. lt is therefore a polltlcal question (Bosa vs. Phllipplne Amusemenb and Gamlng Corpordtion, G.R. No.97549, May 74, 7997). There arc two levels of decentralization, i.e., admlnistaatlve or deconcentration, and political or devolutlon (Disomongcop vs. se etory ol Publtc Work and Hlghwoys, G.R. No.749818, November 25, 2004; sectlons 77 and 528,1991 LGCI
Ad min btrdtive De @ n tro lizatio n P olitico I Dece ntro lizdtb n Devolution DeconcentEtion be transferred are Powrs. be transferred not Powers pecilied specifed s national Transfer oational Transfur gorernment goremment agencies to its field agencies local offhes Sovemments Transfer is mandatory Transfur mandatory on the devolving national govmment agency and the receiving local government Powers, responslbilitles, personnel Ad mln istrative in character and resburces 6:month deadline from January 1, 6-month deadline from January 1, L992 t992

3.

to

to

is from

is from to

ls

Revlewer on Local Govcfiment [aw Albertp C. AGn, Atcncq Law Sdrool

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4. .

Devolutlon entalls the transfer of powers from natlonal govemment agencies (transfuroq source of power| to LGs (trhnsferee; rEcipient of powen). Powers not devolved are rctalned by or iEmains with the relevant natiohal gorernment agenry.

4.t

. 4.2

The regulatory functions of the National Pollution Control Commission wene devolved to LGs. Pursuant to such devolution, LGs may conduct inspectlons at reaionable times, without dolng damage, after due notice to the owners of buildings, to ascertain compliance with noise standards . under the laws and order compliance therewith, or suspend or cancel any bullding p.ermits or clearance certificates after due hearing fAC Enterprises t,s. Frdbette Propefties corporotbni 6.R. No. 7667u,
November 2, 2@6).

'

issue ilermits and locational clearances for locallysignificant projects is now lodged with cities and municipalities with a comprehinsive land use plans. The power of the Housing Land Use Regulatory Board (HLURB) to lssue locatlonal clearance ls now llmlted to projects consldercd q qe of vital and natlonal or retional economic or environmental slSniffcance. The power to act as appellati body over decislons and acdons of local and retional phnning and zoning bodies and deputized officlal of the board was retained by the HIURB. (rlolo City 'Zonlng Board of 'Adiustment ond Appeob vs. Gegoto'Abecio Funerol Homes, tnc., G.R. No. 757778, Decembir 8,2003)

The power

to

4,3 .

Cities now have the power

to regulate the operation of tricycles-for-hire

and to grant frarichises for the operatlon thereof. The devolved power pertain3 to the franchisint and regulatory poweF exercised by the land. Iransportatlon Franchising and Regulatory Board (LTFRB) and not its function to trant franchises to other rrchicles, and not the functiirns of the Land Transportation Offrce relatlve to the rEistration of motor vehlcles and issuances of licenses for the drfuing thereof (l'ond Tmnsportatlon Ofice vs. City of Butudn,6.R. No. 737572, lanuary 20,

4.4

Thc Departnient of Environment and Natunl Resources retains the power to confiscate and forfeit any conveyances utilized in violation of the Forestry Code or other forest laws, rules and regulations (Poat vs.
Court

'

of Appeals, G.R. No. 777707, January 7o,7gg7).

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4.5

The authority to grant franchises for the operation of jai+lai frontons lies with Congrcss, while the rgulatory function is vestbd with the Games and Amusement Board (Lim tts. Poquing; G.R. No. 775044, lonuory 27,

less).

Execuutn Superulslon

1.

The State shall ensure the autonomy of local governments (Seition 25, Article 7987 constlfrition).

,1,

2. The

President of the Philippines shall exercise general supervision over LGs. Provlnces wlth reipect to component chies and municipalities, and cities. and munlcipalities with respect to component bararays.shall ensure that the acts of their component units are within the scope of their prescribed powers and functions (sectlon 4, Article X,.7987 Constlutlon; Sectlon 25, 1991 LCC).

' '

2,L 2,2

The Presklent exercises direct supervision over autonomous regions, provlnces outslde autonomous raglons, highly-urbanized cfties,
independent component cities.

The Presldent exercises general or indirect supervision over provinces within autonomous regions, component citles, municipalities, and
barangaYs.

'

2,3 2.4

Provinces exercise direct supervision over component cities and ft uniclpalitles, and indirect suprvisign over barantays.
Cities and municipalities exercise direct supervislbn over barangays.

3.' The President or the "higher'' local govemment has no poiver of control over LGs and "lower' l-Gs, respectlvely (Drilo n vs. Lim, G.R. No. 772497, August 4, 7994; sociol Justice Sochty vs. Atienza, G.R. No. 756O52, February 73, 2008; Leynes vs.
Commbilon on Audit, 6.R. No. 743596, December 77, 2@3)

3.1

Control is the.power of an officer to alter or modify or set aside what a subordinate ofFrcer had done in the performance of his/her duties and to substih.rte the judgment of the former for the latter. An officer in control

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lays down the rules in the doing of an act lt they are not followed, he/she may, in his/her discretion, order the act undone or redone by his/her subordinate or he/she may even declde to do it himself/herseff (Drilon vs. Llm, G.R. No. 772497, August 4, 79!n; sf,cio,l lustice Society vs. Atienzd,6.R. ,Vo. 75@52, Februory 13, 2008; Leyies vs. Commissbn on Audil G.R. No. 743596, December 77, 2@3).

3.2

Supervision ls the por{er of a superior officer to see to it that lower . officers perform their functions is accordance wlth law. The supervisor or superintendent merely sees to it that the rules are followed, but he/she himself/hercelf does not lay down such ruhs, nor does he/she have the discretion to modify or replace them. lf the rules are not obsewed, he/she may order the work done or redone but only to conform to the prcscribed rules. He/she may not prbsribe his/her own manner.for the doing of ihe act He/she has no judgment on this matter except to see to it that the rules are followed (Drlloq vs. Lim, G.R. No. 772497, August 4, 7gg4; Soclat lusticb Society vs. Atienza, G.R. No. 756052, February X3, 20c8; Leynes vs. bmmbslon on Audit, c.R, No. 143596, December 77, 2@3).
Superuision

Overseelng Ensure ihat supervised unh follows

law/ rules

supervised unit acted contrary to law decision Over actor and act Substltute judgment over that'made There must be a.law by subordinatc . questions Only involves law wisdom, law-conforming (declare hgal or ilhgal); not wisdom iudgment or exercise of discretion or policy Discretion to order act undone or redone Prescribe manner by which act is done

Allows interference

if

@ntrol rulis in doing of an act lmpose limitations when there is none imposed by hw Decide for subordinate or change
Lays down

of

Alter

4,

Superulsion involves the power to revlew of executive orders and ordinancis, i.e,, declare them uhra vires or lllegal (sections 3O,56 ond 57, 1991 LGC); the power to discipline (Section 61, 1991 LGC); the power to intetrate development plans and

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zoning ordinance s (sectione tU7, 458 ond 467, tsgl t6C); the power to resolve boundary d lspute s (Scr/(ion 778, t991 L6C); the power to approve I eaves (Section 47, 1991 LGC), accept resignatlons (sectlon 82, 1991 L6Cl and fill-up vacancles in the ianggunian [Secldron tM, 1991 LGC); and the power to 'augment basic services (Section 77,7997 LGC).

5.

An LGU can:
5.tr

Grant and release the disbursement for the hospitalization and health care insurance benefrts of provincial offclals and employees without any prior apprcval from the PresirJent since there is no law requlring prior approval. Further, Administrative Order No. 103 does not cover bcal govemments (Negros Occidintal vs. Comnisg,ion on Aidit, 6.R. No. 782574, September 28, 2O7O).

5.2

Provile allowances to judges, subjest to availability of local funds, The Department of Budget of Management cannot impose a cap on the allowance since there is no law which limits the amoun! othenlrise, this wlll amount to control (leynes trs. Commlssion on Audft; G.R. No. 743596, Deembet 77,2(n3).

5.3

Provide for additional allowances and other. benefits to national government officials .stationed or assigned to a muhicipality. or city, providEd that the grant of beneftts does not run in conflict with other statutes (Villoreno vs. Commission on Audh G.R. No. 745383e4, August 6,2@3).
Enact tax ordinances, subject to review by the Secretary of Justice, to ascertain the constitutionality or legalfi thereof. The Secretary however, hasno the dght to declare the tax measurc unjusq excessive, oppressive or confiscatory, or direct the substltution of provlsions since this wlll amount to contK,l (Drllon vs. Lim, O.R. No. 712497, August4, 7gg4).

s.4

5.5

Expropriate agricultural land without securing approval from the Department of Agrarian Reform (DAR) .slnce there ls no law lrh ich requires this, DAR's authority ii confined to the conversion of agricultural lands (Comarlnes Sur vs. Court ol Appeals, 6.R. No. L7S6(M, SepHmber
18,2009).

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5.6

Reclassify lands from reiidential to non-aBrlcultural hnds without DAR approval as therc is no law mandatlng such approval (Pasong Bayabos Formefs Assoclatlon vs. Coutt of Appeals, G.R. No. 142359 142980, Mdy

2s,2oo4).

5.7

Elect representatives to the National Liga ng mga Banngay. The Department of lnterior and Local Government cannot appolnt an interlm carctaker to manage and administer the affairs of the Liga as this would
vlolate local autonomy (/Votii, nal Liga ng mga Barangoy vs. Paredes, G.R. Nos. 130775/ 131939,-September 27, 2004).

However, an LGU cannot:

6.1

Go beyond the rquirements set forth in the CocKighting Law despite the fact that cocmghting ls a devolved power. Further, the Cockfighting Law has not been repealed (Ton vs. Perena, G;R. No. 749743, February 78,

2@s).

6.2

Authorize the clty administrator to act on violations of the National Bullding Code since underthe law, only the city enSlneer, as the bullding officlal hAs the exclusive authority to act on matterc rlating to the ..Issuance of demolition permits or the revocation ot suspension thereof (People of the Phllipplnes vs. Sondigonboyan, G.R. No. 744159, September 29,2@4L Regulite the subscriber rates charged by Cable Television operators within fts tenitorial jurisdiction since this power is vested with the National Telecommunications Commlssion (NTC) to the exclusion. of other bodles (Botang6 ATV vs. Coutt of Appcols, G.R.. No. 138810, Mober20,.2@4).
grant franchises to cable television operators as this power has been delegated to the NTC (Zoomzat vs. People ol the Phtlipptnes, G.R. No. 735535, February74,20O5).

5.3 ' .

6.4 ln the absence of constitutional or legislative authorization, '

7.

lnsoiar as the Presldent, Executive Branch, National Government Agencies and Qtrasiorporations arb concemed :

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7.1

The Prcsldent has the power to discipline erring local elective officials. The power to discipline k not incompatible with supervision (loson vs. Tores, A.R, No, 13125, Moy 20, 7998). Supervlslon and lnvestigation are not lnconslstent terms. lnvestigation does not slgnlfy control, a power which the President does not have (Gonzon vs. Court of Appeols, G.R. No.
93252; August S, 7997).

7.2

he Phlllppine Amusemeht and Gaming Corporation (PAGCOR) then can set up casinos even without the approval of the LGs as the charter of PAGCOR empowers . lt to centrelize gamblinS (Magtajas vs. Pryce Propefties and Philipplne Amusements and Goming Corporation, 6.R. No. 711097,Ju1y 20,1994).
The Laguna Lake Development Authority (LLDA), puEuant to its charter, can orderthe dismantling of fishpens. Laguna de Bay therefore cannot be subjeeu to fraBniented ronceirts of maiaBement -policies whefe lakeshore LGs exercise'exclusive dbminion over Specific portions of the lake waer (Loguna Loke Danelopment Authotity vs. Court ol Appeals, G.R. No. 720865-77, December 7, 7995).

7.3

7.4

The LI.DA, pursuairt to its mandate, can issue ccase and desist orders atainst LGs to stop the dumping of its garbage in bn open dumpsite (Lalaho Lake Devetoptrient Authoftty, G.R. No, 77O72O, Motch 76, 7994).

Leglslotlve Con'/.ol

1.

The Stat shall ensuit ttte autonorny of local govemments (SeCti6n 25, Attidc lt, 7987 C.onstitution).
@hgrEss rctahs confol of thE local govemments ln slgnlficafitly.reducd degree now than under previous Constitutions. The "lthough power to crcate still includes the power to destroy, The porver to trant still includes the power to withhold or recall. The National Legislature is stlll the princlpal of the LGs, which cannot defy its will or modfi or violate lB |Ews (Magtalos vs. Pryce Ptopertles and Phlllppine Amusements and Gomlng Cotpomtlon, G,R. No. 777097, July 2q $94). Under the 1987 Constitution, Congress has the power to:

2,

3.

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draftas of 10 November

2O12

3.1

Allocate among the different local government units their poweri, responslbllities, and rcsounes, and provHe for the qualiflcations, elecdon, appointment and rmoval term, salaris, Jrou/ers and functions and duties of local officlals, and all other matters relating to the organization and operetion of the local units (5 ectton 3, Article X). Prescribe guijelines and limitations sources of lgcal government revenues and local power to levy taxes, fees, and charges provlded these ane conslsbnt with the bilsic poliry of local autonomy (sectton ,5, Articte x).
. Determine

3.2

3.3

the just share in the national Exes of local govemments

(&,clion 6, Artlcle X).

3,4 3.5
.

ProvHe the manner by which local govemments receive their equitable shrre. in the proceds of the utilization and developrnent of the national wealth within thelr respective areas (Sedion 7, Article X).
St

the term limits of barangay officlab fsectio n B, Articte X).

3.5 3.7 3.8

Prascrlbe the manner ry whhh sectciral reprcsentaiives shall be installed in local legislative bodies (sectbn 9, Arttcle X),

Deffne the criteria for the creation, divislon, merger, ibolition and substantial alteration of boundaries of local gwemm ents (section'10, ArtkleX).
Pass

the organic act

aif

the autohohoug rEgions {se ctioh 78, Atticta x).

4.

Congress exerilses control over the propertles.of LGs.

4.!

Afthle 424 df the Civil Code hVS dai,fl fte basic princ-tples that propenies of the public dominion devoted to public use and made available to the public ln gbneral are outside the commerce of men (persons) and cannot 'te disposd of or fuased -!y th LGU to prfuate .persons (Macasiano vs,
Dlokno,
G,,R.

no.

977il,

August 70, t99Z).

4.2

Pursuant to the Regalian doctrine, any land that has never beer acquired

through purchas",

!r.nt or.ny ofier

mode of acquisltlon remains part of

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the public domain and is owned by the State. LGs cannot approprhG to themselves publlc lands without prlor grant from the tovemment (nuno, Bank ol Ando us. Romoa Catholtc Archilshop ol Llngqlen-Dqgupon, G,R. No. 755O57, Moy 21, 2N7)4.3

A lot comprising the public plaza is property of public dominion; hence, not susceptible to private ownership by the church or by the munhipality (Roman Catholic Bishop of Kalibo, Aklon vs. Muntcipallty of Buruanga, Aktdn,6,R. No. 749745, March 37,

2006).

'

A city can validly reconvey a portion of lts stret that has been closed or withdrawn from public use where Congress has specifically delegated to such political subdtuisioh, through lti Chaftei, the arrthority to regulat6 fts strets. Srrch property withdrawn from public servitude to be used or conveyed for any purposi for which other property belonging to the city ftay'be lawfully used or cohveyed (FigutfrLtut ys. Libl, G,R. No. t:5568,8 November 28, 2@7).

Part 3. POWERS OF LOCAL GOVERNMENTS

Eeteg otton ond t ntetp,tr,ffio n ol

fuwe B

1.

LGs have constitutionat statutory and jurisprudentia I powers.

. .

1.1 t,2

The sources of powers of LGs are tlie 1987 Cohstitution, the .1991:tGC, statutes, charteB of LGs and jurisprudence or case law.

The ,power

to 1ax is a

constltutlonal fsect bn

S,

Atticle

Constl,tutlon) and statutory power (sectioa 18, 1991 t6C,f . Other th an the 1991 LGC, Republic Act No.7305 or.the Magna Carta for publlc Health Workers, Republic Act No. 7883 or the Baranlay Health Workrs, Ben!fiA and lncentives Act of 1995, among othe6, are the statutes thai govem LGs. The Supreme Court in the case of pimentel.vs. Agtirre (G.R. No. 132988, :,uly .19, 2O00) declared that tGs have.fscal aubnomy.

iggT

1.3

Constitutional powers cannot be repealed or modified .by Congress save in a constitutional amendment. Statutes can be repealed or modified by

Alberte

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draftas of 10 November2012

Congress, Powers defined or interpreted by the Supreme Court can be r-

defined and re-interpreted by it.

f.4

There dre other classificaflons of LGU powers: (1) govemmental (e"g. por/ver to leglslate) and proprletary (e.g. operating a public market); (2) codal-1991 LGC (e.g. power to close local roads) and non<odal (e.g. power of operational control over police under Republic Acts Nos. 6975 and 8551; devolution of tralning seruices uhder the Technical Education and Skills Development Authority pursuant to Republic Act No. 7796); (3) statedeleSated (e.g. police power) and devolved (eg. barangay daycare centers); (4) express (e.g. power to create an office) and implied (e.g, power to abolish that office; (5) executive (e!. power to veto an ordinancb) and legislative (e.g. power to enact an ordinance); (6) general legishtive (e,g. power to issue business permits) and police power proper (e.9. power to lmpose a curfew); (7) intramural (d.g. power of eminent domain) and extramural (e.g. police purposes) (8) mandatory (e.g. power to deliver basic services. as part of deVolution) and discretionary (e.g. power to expropriate a piece of property); (9) intemal (e.g. power to adopt the sanggunion intemal rules of procedure) and external (e.g. power to enact a zoning ordinance); and (10) specific to an LGU (e.9. powerto legislate) and inter-l-GU (e.g. powerto enter into a collaboratfue alliance wfth other LGs).

Congress 'allocate[sl among the difrerent local govemment units thelr powers, responsibilities, and resources, and providq for the qualiflcations, election, appolntment and remwal, trm, salaries, powers and functions and duties of bcal officials, and all other matters relating to the organization and operation of the local units' fSectron 3, Atttcte X, 7:987 Consfrtutionl.
3. The following are the rules of interpretation of the powers of LGs:

3.1 . 3.2

Wher a law ls capable of two interprtations, one in favor of cefttralhed power and the other beneftcial to local autonomy, the scales must be welghed in favor of auton omy (San luon vs. Civll Service Commlssion, 6.R. t{o.92299, April 19, 1991). Any pmvision on a power of an LGU shall be liberally interpreted in its favor, and in case of doub! any question thereon shall be resolved in

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favor of derolution of powers and of the lower LGU /sectio n

LGc).

5[a],

1gg1

3.3

Any fair and rcasonable doubt as to the exlstence of the power shall be interpreted in favprofthe LGU concemed (Sectlon 5[o], 1991 LGC).

a.

Considering that the powers ofthe Department of Energy regadint the "Pandacan Terminalf are not categorical any doubt as to the validity <if a zoning ordinance disallowing the maintenance of such terminab must be resolved in favor of the ordinance's validitry poctal tuitia Society vs. Atilnzo, G.R. No. 756(82, Februory 73, 2ooa).

b,

'
c.

While the law did not expressly vest on provincial governments the power to abolish that office, absent, however, any contrary provision, that authority should be deemed embraced by implication from the power to areate it (lovier vs. Court of Npeols, 6.R. No. L49065, tune, 1,1994).
The provision in the city charter on the local power to provide for the maintenance of watenrork for supplying water to the inhabitants of the city dos not carry with it the right and authority to appropriate wahr. (Buendio vs. CW ol iligdn, G.R. No. 732209,' April 29, 2NS).

d.

Statutes conferring ihe power of eminent domain to political subdivisions . cannot be brqadened or constricted by implication (Province of @marines Sur vs. Court ol Appeols, G.R. No. 7756U,
Sepftmber 78,2OO9).

3.4

.illef grented -ry'any tarpay/er. Any tax exeriptioh, 'lncentivE or LGU pursuiht to the provisions of this Code shall be construed strictly against the person claimlne lt (Sec(ion 5[b], 1991 LCC).
3.5

of dqub9 iny tax ordinance or rvenue measure shall be comtued sticdy agalnst the LGU enacting i! and liberolly in favor of the ln
case

The general welfare provisions in the 1991 LGC shall be llberally interpreted to glve more powers to LGs in accelerating e'conomic devet pmcnt and upSrading the quality of life for,the people in the
communlty (sea/on s[cl, 1991 LGC).

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draftas of 10 November 2012

3.6

Rights and obligations existing on the date of effectivity of the 1991 LGC and arlslng out of contracts or any other source of prsentation involving an LGU shall be govemed by the orfinal terms and conditions of said contracB or the law in force at the tlme such rights were vested fsection

sldl,
3.7

lesl

L6c).

ln the resolution of controversies arising under the 1991 LGC where no legal provision or Jurisprudence applies, resort may be had to the customs and traditions in the place where the controversies take place
(section itel, 1gg1
LGC).

3.8

ln interpretint statutory provisions on municipal fiscal powers, doubts

wiil have to be resolved ln favor of municipal corporatlons (Son Poblo City vs. Rettes, G.R. No. 7277@, March 25, 1999).

3.9

ln case of doubt, any tax ordinance or revenue measure shall be

construed strictly against the local governrnent unit enacting it, and liberal[, in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local govemment unit pursuant to the provisions of 1991 Local govemment Code shall be construed stricdy against the person claimlng it. (Section 5[bl, 1991 LGC) The.Seneral wetfare provisions in the 1991 Lctcal Govemment Code shall be liberally interpreted to give more powe6 to local government units in accelerating economic devebpment and upgrading the quality of life for the people in the community. (Section 5[c], 1991 LGC)

Pollce Power

1.

stetubty detsgated power undat.section 16 of the 1991 LGC. The gcncral welfa'nr clause is the delegatlon ln statutory form of the police power of the State to l:Gs (Manlla vs, Logulo,6.R. No. 778727, Apti! 72, 2@5; fimitu*lalac' tlotet'and MM OfP-.rutlans *wcldtloh, tnc., vs. Mayor.q Manila, G.R. No. L-24693,Ju|y 31, 1967).
The General Wclfarc Clausb ufider the 1991 LGC states: "Every local gwemrnent unlt shall exenclse the powers expressly gnnted, those necessarlly lmplled therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effectfue Sovemance, and those which are essential to the promotion of the

P6lie powr of local Bo /emrnents ls.e

2,

Revhwer oh Local Gotremmcnt Lrw Alberto C, Agra, Atchco lrw Sdrool

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draftas of

1O

Norember 2012

general welfare. Within their rspective territorial jurisdictions, local govemment units shall ensure and suppor! among other thlngs, the prservation ahd enrbhment of culturE, promote heahh and safety, enhance the rlght of the people to a balanced ecology, encourage and support the development of airpropriate and self-reliant scientific and technologicalcapabilities, improve public morals, enhance economic prosperity and social justice, promote firll employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants" (Section 76).

3.

For a valid exerclse of police power, twb requisites must concur: (1) Lawful Subject (substantive due prccess; equal protection; public interest rcquires interference); and (2) Lawful Method (procedural due prccess; reasonable means to achieve the purpose) (Lucena Grand Centml Teminol vs. JAC Liner, G.R. No. 7t,f,33g, February 23,20Os).

..

1.1 .

' . L.2

An LGU is consHered to have properly exercised lB police powers only when the followlng requisites ar met (1) the interests of the public generally,.as distinguished from those of a particular class, require the interference of the Stlte; and (2) the means employed are reasonably necessary for the attalnment of the object sought to be accomplished and are not unduly oppresive. The first requlrement refers to the equdl protection clause, and the scond to the due pr,ocess clause of the Constitullon (Parayno vs. tovellonos,6.R. /Vo. 748408 tuly 74, 2006; Lucena Gmrd Centrol Terminal vs. JAC Liner, 6.R. No. 7/8339, February 23,2@s).
The power to establish zones for lndustrlal, commercial and rpsidential uses is derived from the police power ltself and ls exercised for the protsctioh and beneflt of'the residents uf a locelitlt tsociot lustice Socie.iy vs. Atienza, G.R. No. 15@52, February 73,200/3j

1.3

A municipality feiled to comply wlth thc iluc p?ocess ch$e wheh ft passed a Resolutlon ordering the closure/transftr of .a gasoline station where it did not even attempt to determin lf there was. an actual .viohtion of 'a zoning ordinance (Pardyno tts. iovelbnos, G:R..No. !48tt08 tuly 14,2@6).

1,4

An ordinance aimed at relieving traffic cgngestion meets th first

standard. However, declaring bus termlnals.as nuirance pr. se or publlc

RcvlewGr on Local Gorrcmmcnt

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irraftas of 10 November2Ol2

'

nuisances and ordering their closure

or

relocation contravenes the

second standard. Terminals are not public nulsances. Their operation is a

legltlmate builness whictt by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community (Luceno Gmnd Centrol Terminat vs. lAC Liner, G.R. No. 748339, February 23, 2005).
The general welfaie clause has two branche s (Rurol Bonk of Makatl, G.R. No.15O763 tuly 02;2004).

of Makati

vs.

Municipality

2.7

The

firc! known as the general legislative power, authorizes the local legishtive council to enact ondinances and make regulations not repr8nant to law, as mdy be necessary to cary into effect and discharge

the powers and duties conferred upon the local legislative council by law (Ruml Eank of Mokoti vs. Municipality of Mokatl, G.R. No. 750763 July 02,

2ou).
2.2

The second, known as the police power proper, authorizes the local tovemment to enact ordinanees as may be necessary and proper for the halth and safety, prosperity, mbrels, peace, goot order, eorhfoG ahd convenience of the municipality and its inhabitants, and for the protection of their property (Rurol Bonk of Makoti vs. Munlclpolity of MaMi, G.R..No. 750763 tuly02, 2N4).

3.

ln the exercise of police power, an LGU can:

3.1

locil city or municipal leglslation which logically arrantes, prescribed, defines and apportions a given political subdivision into specific land uses as present 'and'firturc projec'tlon of heeds (PdrlonE Bdyobds Farmers Associdtton vs. Caurt oFAppeats,6.R. Nos. 742359/ 74880, May 25, 2oo4).
lssue zonint classification. A ioning ordinance is defined as a

3,2

Prohlblt the expanslon of a hospital based on the approved a new zoning ordlnance identifylng another zone for hospitals, but which allowed existing structures to continue in their present location fDerl,no vs. St JamesHospitol, lnc., 6,R. No.-766735, November 28, 2007). Restrict the use of property since contractual restrictions on the use of property could not prevail over the reasonable exercise of police power

3.3

through zoninB regulations (United BF Homes vs. CW Mayot of

Reviewr on Local Got

mmant Law

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of 10 November 2012

. 3.4

Pomnoque, G,R. 4fi1q Februory 07, 2OO7; OrtiOos & Co. vs. Feoti Bank and Trust Co., G.R, No. L-24670, Decemtnr 74, 7979),
Regulate the constructbn of warehouses wherein inflammable materials are stored where such warehouses are located at a distance of 200

meters from. a block of houses and not the construction per se of a warehouse (Tatel vs. Municipollty of Vtmq G.R. No. 40243, Morch 77, 1ss2).

'

3.5

Order the closure and padlockint of a plant causing pollutibn when the closure was in response to complaints of residents, after an lnvestigation was conducted, when there was no building permit froril the host municipality, and when the temporary permit to operate by the National Pollution @ntrol Commission has expired flecfino logy Developen, lnc. vs. Coutt of Npeots, G.R. No. 94759, fdnuory 27, 7997).

4.

However, an LGU cannotl

4.1,

Prohlbft the operation of sauna -and massage parlors, karaoke bars, , beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels, inns or order their transfer or conversion without infrlnting the constitutional guarantees of due process and equal protection of laws not even under the guise of pollce power (ErmJtd' Mc/late Hotel and Motel Opemtions Association, lnc., vs. Mayor of Manilo, 6:R.No. L-24693,lu\y 31, 1967).
Enact an ordinance prwehting motels from offuring wash rates and rentlng out a room more than once a day is an unreasonable exercise ,polide poirer whelt the behavior which the orilinance see*s to curtiil (i.e., prostitution, use of illhit drugs) is already prohibited and can be curtalhd .by appvlng existlng laws (whibltght gorporution vs. City of Manlla; G:R,Ilo. 722846, Jat udry 20, 2009). Prohibit the operation of nightclubs. They may be regulated, but.not prvented from carrying on their business (Delo Cruz vs. Paras, G.R. Nos. 14257 1-7 2, t u ty 25, E$ ). Modify the terms of an application for a public assembly permit without even indicating ho,v the city mayor arrived at such a decision against

' '

4.2

of

. 4.3 ' 4,4 '

the
31

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dnftas of

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standald of the clear and present danger. test (tntegroted Bat of the
Phlllpplnes vs. Atienzo, G.R,
No;,

7?5247,

kbrudry 24,2070).

lmpose.an absolwe ban on public assemblies. A mayor, however, can deny the issuance of a rally permit on the ground of clear and present danger to public order, public safety, public convenience, public morals or publlc health (Bayon vs. Ennitd, G.R. No. 769838, Aprll 25, 2006).
4.6
Regulate the practice of a profession, like that of optometry. through the issuance of a permit Such a function iswithin the exclusive domain of the

admlnistrative agency specifically empowered by law to supervise the pmfession, i.e., Professional Regulations Commission and the Board of Examiners in Optometry (Acebedo Opticol vs. Court of Appeals, 6.R. No. 700752 Mdrch 31,2O0O).
4.7
Cause the summary abatement of concrete posts where the posts did not

pose any hazard to the safuty of persons and property.but merely posed an inconvenience to the publicrby blocking the free passage of people to .nd from the national road. The post is not nuisance per se (Telmo vs.

4.8

'

Cause

the destruction of quonset building where copra is stored since

thls is a legitimate business. By its nature, it cannot be said to be injurious to rights of prcperty, of health or of comfort of the community. lf it is a nuisance per accrUens it may be so proven in a hearing conducted forthat purpose (Ertote Fruncisco vs. Court of Appeab, 6.R. No.95279, July 26,

1eel).

'4.9

of"a bank.for non-payment of taxes since the appropriate remedbs to enforce paynent ofdelinguent taxes or fees are . prfildcd hl soction 62 of the Local Tax c.rdE. closuG is n61 a feinedy (Rural Bonk of Makoti vs. Munbipal@ ol Makatl,6.R. No. 750763, July 02,2004).
Order the closure

5.

No compensatlon ls needed to be pald by the LGU as there is no compensable taking

in the condcmnatlon of private property under pollce power, Property condemned under police power k usually noxious or intended for a noxious purpose (Didipfo Edtth-Sdvert' MultFPurpose Assochtion t$. 6ozun, 6.R. No. 757882, Morch 30,
2006).

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dnft asof l0 Norember 2012

5.1

ln t're exercise of police power, prcperty rfhts of private indfuiduals are subiected to restraints and burdens ln order to secure the general cirmfoG health, and prospertty of the state, Whefe a prcperty interEst i3 merely rstricted because the continued use thereof would be injurious to public welfare, or where property is destroyed because its iontinued exlstdhce'woild'bd tniuriortl'to public lnter6st, thdir is no c6hpensable aklng, @idipio Eorth-sovers' Muftl-Putpose Assoclotion vs' 6ozun, G.R. No. 757882, Morch 3O, 2@6).
ln the exerclse of lts police power regulation, the state restrlcts the use

5.2

of private property, but none of the property lntersts ln the bundle of rights:which'constitute ownershli'is appropriated foruse by or for the benefit of the public. (Didipio Eaftfi'Sove6' Muftl'Purpose y'ssoclation vs.
Gozun, G.R. No. 757882, March 30, 2@6).

Emlnentfun,p,ln

1.

Eminent Domain is a statLttory power oi LGs. The 1991 LGC defines the power arid enumerates the requirements, to wit -A local govemment unit-may, through its chbf executive and ading pursuant to an ordinance, exercise the poarer of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of juit compensation, pursuant to the provisions of the Consthution and pertinent laws: Provided, however, That the power of eminent domaln 'may not be a(ercised unless a valid and'definlte offer has been prwiously made to the owner, and such offur was not accePted: Ptovlded, furthr, That the local govemment unit may immediately take possession of the proPerty upon the filing of the expropriation proceedings and upon maklng a deposit'.t ith the proper court of at least flftren percent (15%) oi the falr markct value of the property based on the curent tax dechration of the Ptoperty to be rxproprlated: Provided, finally, That the arnount to be'pald for the expropriated property shallte'determhed by the proper couG based on the fair market value at the.time of the taklng of the

property." (scctton 19, 1991

LGC).

2. The powel of emlnent

1

domain deletited to LGs ls ln reality not eminent but "inferior." Congress is stlll the principal of LGs, and the latter cannot go against the principafs will or rnodifu the sarne {Eeluso vi. Munlclpallty 'at Ponay' G.R, No'
5 39 74, AuEust 07, 2OOO ).

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3. ln the exerclse of the power of eminent domain, it is bash'that the taking of priYate property must be for a public purpo se (Section 79, 7$7 LGC).

3.1 ' 3.2 3.3

Public use is defined as whatever is beneficially employed for the community (Bdrongoy Sindaitan, San Fernondo vs. Court of Appeats, 6.R. No.75O&40;Morch22,2@7I

lf the intended feedei road will only benefrt the residents of a private' subdfulsion, then there is no valid putqsn (Borongoy Sindolan, San Femarf,o vs. Court of Appeols,.6.R. No, 1506&, Mdtdt 22,2Cn1,
The ordinance must show why the subject property was singled out fior xproprhtton or what necesslty impelled the particular chohe or selection (Logcao vs, Labm, G.R. No. 755745, Odober 73, 2@4).

4. To justify the payment of just compensation, there must be compensable taking. The exproprhted property must be used after taklng (Didtpio Eorth-Saverc' Miltl' Purpose Asoclation vs. Gozun, 6.R. 157882, Mordt 30,20N)

4.t . .
4.2

When a property interest is appropriated and applied to some public purpose, there is compensable taking.The deprivation of use can in fact . be. total and it will not constltute compensable .taklnS if nobody else acquires use of the property or any intercst therein. lf, however, in tie regulation of the us of the property, somebody else .acquires the use or interest therot such rsffiction eoflstituts eoffipenseble taklnz @idipto Eorth-Sove6' Multi-Purpose Association vs. Gozun, 6,R. 757882, Morch

j0,2@9.

'

Orderin3 a pardcuhr type of businss to wind up, transfer, relocate or convert to an allowable type of business in efiect permanentv restrlcts the use of property and thus goes beyond regulation. Just compensation 2@5[ is therefore required (Manilo vs. Loguio;6.R. No. 778727, Aprtl
.12,

5. The.foundation of the right to exercise eminent domain is Senuine necessity and that necesslty must be of public character (Sect/oa 19,7991 LGC)'

5.1

Govemment

not capriciously or arbitnrlly choose which prfuate property should be expropriated. The condeinnor'must show the

.may

Re\rlewer on Locrl Gorrmmeot

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draftas of 10 Norcmber 2012

necessity p*us b Lord Chrbtian School Foundation vs. Paitg, G.R. No. 752230, August O9, 20O5; Meycottyon vs. lnte,med'r/te Apryllote Court, G.R. N o. 7 272 6, tdnuory 29, 7988).

5.2

The claim of the LGU that the piece of property is the "shortest and most

sultable access road" and that the "lot has been surveyed as the'best posslble. ingress and egress" must be proven by a showing of a preponderance of evidence (lesus ls Lord Chtistlan School Foundation vs. Postg, G.R. No. 752230, Augt$t 09, 2OO5).

5.3' . .

The rEht

to take private property for public purposes necessarily or'Elnates f.rom .the necessity and the taking must be limited to such necessity. There is no genuine necessity when taking of private property is done br the benefrt of a small communlty whlch seek to have its own sport and recreational facility, notrrvithstanding the fact that there ls a recrcational facility only a short.distance away (Mosikip vs. CW of Posig, G.R. No. 736349, tanuory 23, 2OOO).

5. The enabling lestrument for the exerclse of eminent domain is an ordinance, not a resolutlon (Scf,rlon 19, 7991 LGC).

6.1

exprcsses the sentiment of the municipal councll wlll not suffice fBelusa vs. Munlcipallty ol Pandy, G.R. No. 753974, Augtst 07, 20O6; Pomnoque vs. VM Reolty Corpomtion, G.R. No. 12782O luly 20, 1998).

A resolution whlch mere[

' 6,2 ' 6.3

ln a resolution, there is no positive act of instituting the intended exproprhtion proceedinis (Anbnio vs.6eronimo, G.R. No. 724779, Nwember73,20Ail.
The enactment of the ord,n.n." must prccede the filing .of the cxprcprbtlon complalnt (Saguibin vs. Mondaluyong City, 6.R. No. 73W7,March 14,2M).

7. There must be a rralld and definite oller (Seaion 79,1991 LGC).

7.t

Reasonable efforts must be exhaustdd in acquiring the' property voluntarlly (tesus is Lord Christian School Foundotion vs. Paslg, G.R. No, 7 5223O, August 0 9, 2 005 ).

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draft as of 10 November2012

7.2

An LGU has. the burden of proving mmpliance with the mandatery requirement of a valid and definite 6ffer to the owner of the property before fillng its complalnt and the rejection thereof ,by the latter. lt is incumbent upon the condemnor to exhaust all reaionable efforts to
obtain thi land it desires by agreement. Faiture to prove compliance with the mandatory requirement will result in the dismlssal of the complaint (Jesus ts Lotd Chrlstian School Foundotlon vs. Pdsig, G.R. No. 752230,
Augustag,2OOS)

7.3

The offer musi be complete, lndlcating wlth sufffclent cleamess the klnd of contract iniended and definitely stating the essential conditions ofthe proposed contract. An offer would require, among other things, a clear certainty on both the object and the cause or consideration of fie . envisioned contract There is no valid offer when the letter sent by the LGU to the owner is a mere invitation to a conference to discuss the project and the prlce (Jes.B ls Lord chrbtlan sctlool Founddtlon vs. Postg, G.R. No. 752230, August 09, 2OOS).
.

8, ln the exerclse of thls power, the Constitution and other pertinent laws must be followed (secilon -ig, lggl Lcc).

8.1

Private lands rank hst In the order of priority for purposes of socialized housing. Expropriation proceedings are to be resorted to only aftir the other modes of aquisition have been exhausted under Republic Act' No. 7279, the Urban Development and Housing Act of 1992 lEstdte of Helrs of Loie Ex-ltstict lose B.L. Rey* vs. Manilo, 6.R. No. 732437/ 737746, Februory n) ZAU; fnstrcom tntumotlonal vs. Court ol Appeals, G.R. No. 125218 128077, Jonuory 23, 7998).

The authority of the supervising-hlgher LGU in exerclsing its review authority over ordinances of supervised-lower LGU ls limited to q u.stions of law/legal questions, i.e., whether or not the ordinances are within the Powes of supervised-lower LGU to ehacq whether or not urtu vires; and whether or not procedures were followed. The power to revlew does not extend to cholce of property to be expropriated (Moday vs. Court of Appeob, 6.R. No. 707976 Februory 20, 1997).

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draft as of 10 Norember2012

10. The approval of the Department of ASrarian Reform (DAR) is not required before an

LGU can expropriate. an agricuhural land (Provlnce Appeob, G.R. No. 7756U, Sepbmber 78, 2@9).

of

Camarines Sut

w.

Court of

ll.Judicial review of the

exercise of eminent domain is.limited to the following areas of concem: (1) the adequary of the compensation; (2) the nicessity of the taking; and (3) the public use character of the purpose of the taking (Masikip vs. CW of Pasig, G.R. No. 736349,lonuary 23, 2@6).

11,1

An expropriation suit is lncapable of pecunhry estimation. Accordingly, it ftlls wlthln the juribdiction of Regional Trial Court, rgardless of the value of the subject property. An expropriation suit does not involve the necovery of a sum of nioney Uut involves the govemmenfs authority to expropriate (Bordilro n vs, Masili, G.R. No. 746886, Aprtl30,2Oo3).

11..2 The requlsites for authorhing lmmediate entry in the exeicise of an LGU's right of emlnent domaln are as follows: (1) the flling of a complaint for
exproprlation sufficient in form and substance; and (2) the deposit of the amount equivalent to 15% of the fair ma*et value of the property to be expropriated based on its c1lnent tax declaratlon. Upon compliance wlth these requircments, the bsuance of a- writ of possession becomes ministerial.frroi,o Ary vs. Leg6pi, G.R. Not. 154674 Novembr 25,.20(M).

a.

For a writ of porr"rrion to issue, only two requirements are required: (1) the sufficiency in form and substance ofthe complaint; and (2) the

. '

'
b.

required provisional deposit. No hearing is rquired for the issuance of a writ of possession, The.sufficiency in form and substance of the complaint for exproprlation can be determined by the mere eiamlnation of the allegations of the ccinplalnt (iloilo City vs. Legospi, . 6.& No. 154674, Nottember 25, 2004).

The law does not make the determination of a public purpose a condition precedent to the lssuance of a tvrlt of possession (Fmncia
vs. Meycouoyon, G.R. No. 77O432, Morch

24,2W[

c. The requlred deposlt ls

based on the. propervs current tax declaration (Knechl' ln.* vs. Munidpality of hlnta, G.R. 745254, July 17,2006).

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11.3

The owner of the expropriated property has certain remedies.

The owner may file a mandamus case against the LGU in order to compel iG songgunian to enact another approprlation ordinance replacing a previous one which charged the payment for just compensation to a non-existent bank account (Oftego vs. Cjty ot Cebu, G.R. No.78756243, October 2,2(nq. Where a municlpality fails or refuses, wlthout justifiable reason, to effect payment of a final money judgment rendered against it the clalmant may avall of the remedy of mandamus ln order.to compel the enactment and approval of the necessary appropriation ordinance, and the coresponding disbuBemnt of municipal funds therefori (Mdkoti vs. coutt of Appeols,6.n. No. 898998a9, odober 07,7990; Yujuico vs. Atienzd, G.R. No. 764282, October 12, 2@5).
The non-filing ofan expropriatioh case will not necessarily lead to the retum of the prcperty to its owner. Recovery of possession can no longer be allowed where the owner was Builty of estoppel and, more importantly, where what was constructed on the property was a

'

public

road. what is left to the owner is the right to

compensation (Eweblo vs. Liis, 6.R. No. 762474, October 75,

just 2@9l

Reclosificodon ol land
Reclasslffcation is the act of specifying how agrhuhural lands shall be utilized for nongrlcultural (residential, industrial, commercial) as embodid in the land use plan, subject to the requirements ind procedure for land usa conversion (Sec.ion 20, 7997 LGC).

1.1

Conversion is different from reclassffication, Converslon is the act of changlng the current use of a piece of agrhutturat land lnto some other Agrarian Reform use as approved by the Department (DAR). Accordingly, a mere reclassificatlon of agrhuttural land does not automatically allow a landowner to change tB use and thus cause the ejectment of the tenants. He/she has to undergo the process of conversion before he/she is permltted to use the agricultural land for other purposes (Ros vs. DAR, G.R. No. 732477, August 37, 2OOS).

of

Revlewer on Local Gorammlnt

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Albertb c, Agra, Atenco Law Sdrool

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Eminent Domoin Zoning Compensabh Police Powr Taklng Owner No change of owner Change (private to LGU)

Reclossification Administrative
No change of owner

Conversion
Ad min

istrative

of

No change of owner

Any land
Change actual use

Any land
No change

Agrlcuhunl to non- Agricuhural to nonAgricultural

No chanSe

Asricuhural Chanse actual use

All LGUs

Odginates

No
mandated

Cities/ Munlcipalities; Prcvlnce inte8rates hearing hearing mandated

from Cities/ Municipalities

.

Department
.

of

Agrarian Reform

No

Public
req uired

hearlnB

No
mandated

hearlng

Locf/l Leglslot/d,n

1.

Local legislatve power is the power of LGUs through their local leglslattue councils qnact, fpeal, amend, modify ordinances and issue resolutions.

to

1.1

Local legislative power shall be exercised by the sangguniong panlolowigan tor the province; lhe songguniang ponlungsod lor the cifi; the sangguniang bayo1t for the municipality; and the sdngguniong
bomngoy lor lhe barangay (Sectio n 48, 7997 LGC).

2,

Local leglshtlon is refurred

to as subordination legislation.

2,L

'

tocal political sukiivlsions are able to legislate only byl virtue of a valid delegation of leglslatlve power from the natlonal legislature except only that the power to create their own sources of revenue and to lew taxes Is confened by the Constitution itself. They are mene agents vested with what is called the power of subordinate legislatlon. As delegates of Congtess, LGUS cannot contravene but must obey at all times the will of their principal. An enactment local in origin cannot prevail against a decreg which has the force and effect of a statute (Monilo vs. Ldguio, G.R. No.778127, April 12,20oil.

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2.2

An ordlnance in conflict with a state law of general character and statcwide application is universally. held to be invalkl. The principle is
frequcntly exprcssed in the declaration that munlcipal authoritles, under a general grant of powec cannot adopt ordinances whhh infringe upon the splrit of a stat law or repugnant to the teneral policy of the state. ln every power to pass ordinances given to a municipality, there is an implied restriction that the ordinances shall be c6nsistent with the general law (Eataqgas CA'IV vs. Coutt of Appeols, G.R. No. 138810'
'October 20, 2004).

2.3 2.4

The delegate cannot be superbr to the princlpal or exercise powers hlgher ttian.those of the lattei (Logcoo vs. Lobro, G.R. No. 755746, Odobcr 13,2OO4).

A provlso in an ordinance dircting that the real property ax be based on the actual aniount reflected in the deed of conveyance or the prevailing Burau of lntemal Revnue zonal value is invalid not only because it
mandates an exclusive rule ln determining the falr market value but more so because it dbparts from the established procedures stated in the Local Assrssment Regulations No; t42 (Allied Banking vs. Quezon cW,6.R. lvo' 7s4726, gctobet 11, 2P05|

3.

Local legislative acts are refurred to as denominated ordinances. For an ordinance

to

be valid, it must not only be within the corporate powers of the LGU to enact and must be passed according to the Procedure prescribed by law, it must also conform to the followlng substantive requirements: (1) must not contEvene the Constitution or any statute; (2) must not be udfair or oppressive; (3) must not be partial or discriminatory (4) must not Prohibit but may rtulate tnde; (5) mUst be general and consistent wlth public policy; and (6) must not be unreasonabh (Logcao us' Labro,.6.R. No. 755746, Odober 13,2@4). Ordinances enacted by LGUs enjoy the presumption of constitutionality' To ovarttrow this presumption, there must be a clear and unequivocal breach of the Constitutlon, not merely a dbubtful or argumentative contradiction. ln shoB the conf,ict wfth the Constitutlon must be shown beyond reasonable doubt. When doubt exlsts, even lf well-founded, there can be no finding of unconstitutionality (Tcino vs. tucmtes, G.R. No. 770249, August 27, 7997).

4.

Revlewcr

Local Govammcnt

hw

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2O12

5.

.
6,

A vold leglslatfue act such an ordinance granting a franch i5e to cable television operatoE, a po,ver vested on the Natiorial Telecommunications Commlssion, does not confur any rlht nor vest any privilege Boomzat vs. People ol the phitippines, G.R-No. 735535,turuary 14, 2005).
Ordinances passed in the exercise of thi general welfa re clause and devolved powers of LGUS need not be approVed by the devolvlng agency in order to be effective absent a specific provision of law (Tano vs. Socmtes, G.R. No. 710249, August 27, 7997).
There are no unlawful disbursements of public funds when disbursements are made pursuant to a renacted budget. Money can be paid out of the local treasury since there is a valid apprcpriation (Villanueva vs. Opte,6.R. ,Vo. 765725, October 78, 2@s).
Local legislative councils enact ordinances and issue resolutions.

7.

'8.

8.1 .

Leglslative actions of a gene(l and permanent character shall be enacted in the form of ordinances, while those whlch are of temporary character shall be pasied In the form of resplutbns. Mattrs relating to proprietary functions and to private coircerns shall also be acted upon by resolution (Att. 7O7, tmplementing Rules ond Regulations ol the 7gg7 LGC) Resolutions Expression of Sentimint orOpinion Private or Prcprietary

Ordinonces Equivalent to Law Publlc or Goremmental

More or Less Permanent Temporary As a general rule, must undergo 3 As a general rule, only undergoes 2 readings ieadings All ordinances subject to Veto/ Only some rsolutions subjelt to Review Revlew local plan developrirent and public lnvestment program)

Veto/

(i.e.,

9.

LGUs can enter

lnb contracb

subject to cerlain requirements (section 22tal[S],

1991 L6C).

9.1

Unless othenrvise provided in the 1991 LGC, no contract may be entered

into by the local chlef executive ln behalf of the LGU without prior

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.

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draftas of 10 November 2012

A legible. copy of such posted phce at a conspicuous in the provincial capitol or ' contract shall be the crty, municlpal or barangay hall (section 22[c], 1991 LGC):
authoriration by the songgunon concerned.

g.2

A mayor validly entered into a Contract of Legal Services where the

sanggunion unanimously passed a resolution authorizing his/her to hire a lawyer 9f his/her choice represent the municipalit/s interest (Munlcipality ol Tiwi vs. Betito, G.R. No. 77787i,luly 2010). .9,

to

9.3

The prior authorization may be in the form of an appropriation ordinance passd for the year which speclfically corers the prcjecg cost br confrct to be cntered lnto by the LGU (Quisumblng vs. Gorcla,6.R. IVo. 775527, Decembar.8,20@).

9.4

A loan agreement entered into by the provinclal go\rernor without prior authorization from the songgun iang panlalowigon is unenforceable. The songgunlon's fallure to impugh the contract's validity despite knowledge of its infirmiff is an lmplied ratification that validetes the contract (Ocompo vs. P.eople, G,R. Nos. 156547-51 / 75638235, Februory 4, 2008).
The authority of the Punong Barangay to accept a donation'on behalf of the barangay is deemed ntified when thmugh the yea rs, the sangguiion borongay dld not repudiate the acceptance ofthe donation and wheri the barangay and the people ofthe barangay have continuously enjoyed the material and.public service benefits arising from the infrastructures projects put,up on the subject property (Dolar vs, Borangoy Lublub, G.R. No. 752663, November 78,2o05).

9.5 .

9.6

A local chief executive has the authority to file suits for the ,ecovery of funds an{ property on behalf of the LGU, even without the prlor authorlzadon from the songgunion, Nowhere ln the enumerated powers and duties of lhe songgunion can one find the requirement of such prior authorlzation ln favor of the local chief executlve for the purpose of filing suits on behaff of the LGU (City of Caloocan vs, Court ol Appeols, G.R. No, 145W, Mdy03,2006).

10. The locai legislative process has

the following stagesftteps: (t) sponsorsh.ipj (z) 1't reading; (3) committee deliberations; (21) committee repoG (5) 2nd reading (interpellation and amendments); (6) 3'd readings, attestatlon; (7) transmittal to

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local chief executfue; (8) approval or vto; (9) publhation/ posting; (1Ol effectivity; and (11) review by the superuising-higher songgunion.
L1.. A

sanggunlan is a collegial body.

11.1.

Legislation rcquires the participation of all its members so that they may not only nepresent the interests of their rcsbective constituents but also help ln the making of decisions by voting upon wery question put upon lhe body (Zamora vs. Cabollero, G.R. No. 747767, lonudry 14, 2OO4).

LL,2

ofthe sanggunlan done outside the parameters of provisions the legal am legally infirm. All such acts cannot b given blnding force and effect for they are considered unofficial acts done during an unauthorized session Qamom vs. Caballero,6.R. No. 747767, lanuary 74, 2004).
The agts of only a part

11,3

A majofiof all members ol the songgunion who have been ehcted and qualified shall constitute a quorum to transact of.ficial business. The determinatlon of the existence of a quorum ls based on the total number of membeB ol lhe songgunian without regard to the filing of a leave of absence (Zomoro vs. @ballero, 6,R. No. 74n67, January 74, 2M).
sanggunlon may provide for a vote requirment dlfferent from that' prescribed under the law (i.e.; generally, majority vote) for certain (but not qll) ordinances as in amending.a zoning odinance.. (Cosrn o vs. Coutt ol Appeals, G.R. No. 97792, December 2, 7997).

LL.4 A

11.5

The sanggunidn's verbal concurence is not the concurence envisioned under the law. Thri sanggunion, as a leglslative body, acts through a .resolution or an ordinince, adopted in a legislative session (Montuerto vs, Ty, G,R. No. 777736, October 6,2M). There is nothing in the language of the law that restric,ts the rnatters to be taken up during the first regular session merely to the adoption or updating of the house rules. A supplemental budget may be passed on the filst sessbn. day of the sangSunian (Malonzo vs. Zomora, G.R. No. 137718,tu|y 27, 1999).

11.5

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draftas of 10 November 2012

11.7

'
11.8

There is nothing in the law which prohibits the conduct of three readings of a proposed ordinance from being held in just on session day (Malonzo vs. ZAmom, G.R. No. 737778, tuly 27, 1999). Absent a law, local legislative councils have no contempt and subpoena powers.(/Veg.os Odental Electric Coopemtive tnc. vs. Songgunidng Panlungsod of Dumoguete, G.R. No. 72492, November O5, 7987).

tl

12. Governors and ma,yors have

the power to approve or veto ordinances. The local chlef executlve may veto any ordinance of the songgunlon panlolawigon, songgunlang ponlungsod, or songgunian boyan on the ground that it is ultro vires ot prjudicial to the public welfare, stating his reasons thercfor in writing fsectio,
55[o], 1991LGc).

72.7

The tovemor or mayor has the power to veto the entire ordinance or particular items thereof. The local chief executive, .except the punong barangay, shall have the powr to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a krcal development plan and public investment program, or an ordinance directing the payment of money or creating liabilry qection.55[bL 7gg7 LCc). The locil chief executive may veto an ordinance or resolution only once. lhe songguilan may override the veto of the local chief executive concemed by two-thirds (2/3) vote of all its members, thereby making the ordinance effective even without the approval of the local chief executive concemed (Sect on 55 [c], 1991 LGC). The grant of the veto power confers authority beyond the simple act of slgning an ordinance or rcsolution as a requisite to its enforceability. Such power accords the local chief executive the discretion to sustain a resoludon or ordlnance in the first instance or to veto it and return it with hls/her objections to the sanggunian (Delos Reyes vs. Sondigonbayan, G.R. No.721275, November 73, 7997). An appropriation ordinance signed by the local chief executive authorizes the rhas of public funds, The mayor's signatur approving the budget ordlnance was his/her assent to the appropriation of funds. lf he/she did

t2.2

12.3

72.4

Alb.rto

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drafta$ of l0 November 2012

.
.L2.5

aBne with such allocatibn, he,/she couH have vetoed the (C.olooan Clty vs. Allo.rde,6.8. lVo. 707271, September 10, 2003).

not

item

A munlclpal mayor cannot issue a mayor's permft to operate a cockpit withoqt an enabling ordinance. A Seneral oldinance empowering a mayor to lssue permlts cannot be used to justify the issuance of a license. A mayor cannot also be compelled to lssue such a license since this would constitute an undue encroachment on the mayor's administrative
prerogatjves (Canet vs. Decend, G.R. No. 7553t14, October 20, 2004).

,. .

13. Review is a rcconsideration or re-examinatlon fot purposds qf correction, The power of rcview is exercised to determine whether it is necessary to correct the acts of the subordinate and b see to lt that supervised unit performs the dutles in accordance ,with law (Caslno vs, Court of Appeok, G.R. No. 97792, Oecember 2, 7997).
14.

'

An LGU has two branches of govemment, i.e. executive and legislatfue' The
Governor for the Plovinces, Mayors for Cfties and Munlclpalitles, and the Punong Barangay for Barantays are the local chief executlves, whlle the Viceovernor and Vice-t\^ayor ar the vlce-local chief executives. The 1991 LGC does not provide for the positlon ofvice-Punong BaEngay.
Local Chiel Executlve

Executive

Veto or Approve Appoint Employees of the Executive 'Branch and Leglslatlve Branch funded by Executive Branch Approves DisbursemenF and Vorcherc for Executive Branch Appropriations: May Vcto, lf apprcved, must release funds

Vice4ocal Chlef Executive Legishtive and Executive (as vice) Preside over sessions Appoint Employees ol Sanggunion and Vice-Ma)ror funded from Office Sanoqunian and OYLCE Approves Disburcements and Vouchers for Legislatfue Branch Enact Appropriatlons Ord ina nce

of

Veto Approve or dlsapprove lntra-LGU (within the LGU) Executlve Power Local chief Executlve

Ranlew

Reconsideradon or re-examination for pumoses of @rlectlon lnter-Lcu (2 l-GUs) Leglslatfue Powei

Supervising-H igher
San

ggunian

Rcvieweron Local Gorratnmmt Ltw Alberto c. Aga, Atcneo l.wsdrool

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dr8ftas of

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November 2012

Vcto

Review

Ultro Vires (beyond. the powers of the UkruVircs LGU) or PreJudhlal to Public Welfare of
law and fact/ wlsdom

lnvolves question and lnvolves question of law only facVwisdom Period to exerclse: Prcvlnce (15 days); 30 days City/ Municlpallty (10 days) No Veto in Barangays No Review of Provincial Ordinances Reversal by Orerri{e or Judicial Review Judicial Review (revercal only by courts) (reversal by courts)
15, The 1991 LGC allows for review of certain ordlnances.

of law

15.1

The law requires that a di3satisfied taxpayer who questions the validity or legallty of a tax ordinance must file lts appeal to the Secrtary of Justice within 30 days from effuctivlty thereof. ln case the Secrtary decides the

appeaf a period of 30 days is allowed for an aggrieved party to go to court But if the Secretary dos nof act theneon, after tfie lapse of 60 days, a pirty could already proceed to seek relld ln court fneyes et or. vs. Court ol Appeats, G.R. No. 778233,'December lO, 7999; Section 797, lggl
LGC).

a.

to appeal to the Secreiary of Justice withln 30 days from the. effectlvity date of the tax ordinance as mandated by Section 1g7 of the 1991 LGC is fatal (lordine Davies vs. Allposo, G.R. No, ttBgOO,
FailurE February 27,2003).

L5,2 The Department of Budtet and Management shall review ordinances authorlzlng the annual or suppbmental approprlations of pmvinces,
hlghly+rbanized cltles, iridependent component oltles, and munlcipalities within the Metropolitan Manila Arca (section 326, 1991 LGC),

15.3

'

Ordinances banning the catching of certain species of fishes and conls need not be appoved by the Department of Environment and Natural Resourc* before they can be effectr've becausc in the exerclse of devolved power, such approval is not necessiry (Tono vs. Socmtes, 6.R. No. 770249, August 27, 7997).

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15,4 The Office of the

'

Presidenq Department

of

lnterior and

Local

Go\rornmenq and other executive departrents ar not given the power to review underthe 1991 LGC.

16. The constitutionality and legality of ordinances and resolutions may be raised before

the courts on judicial review.

16.1 A ietition for certioreri filed against a

sanggunion the legality of an ordinance will not lie since the songgu nien dor:s not fall within the ambit of tribunaf board, or officer exercislng judlclal or quasi-judicial functions. The enactment of an ordinance was done ln the exerclse of legislatfue and executive functions of the sa nggunion and mayor rspectiveiy and do not parteke of Judicial or quasi-ludicial functions (Ltga ng mgo Bomngoy Notlonal vs. Moni6, G.R. No. 754599, ldnuory 27, 2OU). The appropriate remedy is a petltion for dechratory relief. The requisites of an actlon for declantory relief are: (l)the subject matter of the controversy must be a deed, will, contract or other written instrumen! statute, executive order or regulation, or ordinance; (2)the terms of said documenb and the validity thereof are doubtfill and rcquire judicial constructloU (3) there must have been no brach ofthe documents in question; (+) ihere must be an actual justiciable controversy or the "ripening seedd' ,of one between persons whose lnterests are adverse; (5) the issue must be rlpe for judicial determination; and (5) adequate relief is not available through other means or other forms of action or

15.2

'

proceeding.. Thus, an astion for declaratory rclief questioning two rsolutions and an ordinance by a songgunian pntungsod is premature where said issuances mercly endorced farrorably to tlre Houslng Land Use and Regulatory Boad (HLURB) an application to dcvelop a memorial park. The sanggunion has not yet acted on the appllcation with finality. 'The HLURB, being the iole regulatory body for housing and land developmen! has the final say.on the matter, Under the doctrine of prlmary administative jurlsdictioh, courts cannot or wlll not determine a controversy where the issues for resolution dernand the exercise of sound admlnlstratlve discretion; requiring the special knowledge, experlenci, and services of the administratfue trlbunal to determine technical and intricate mattem of fact (Fener, lr. vs. Roco, !r., 6.R. No. 774729,luly 5,207O).

Alberto

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draft as of 10 November2012

16,3

The Supreme Court can only review, revise, reverse, modify on appeal or certiorarl final judgments and olders of lower courts ln all cases in wh'rh the constiMlonality or validity of, among other thlngs, an ordinance is in question (Ortegd vs. Quezon CW, G.R. No. 767tPO, September O2, 2005).

16.4 lt is a genenl

rule that the regularlty of the enactment of an officially promulgated statute or ordinance may not be impeached by parol evidence or oral testimony either of individual officers and members, or of strangers who may be intersted in nullifying legislitive action (Reyes et. il. vs. Court o! Appeals, G.R. No; 77t233, December 70, Tggg).

other Govemnr,ntot otf, c$pomte ll(,we1

1.

The corporat powers of LGUS are enumerated in the 1991 LGC but the listing is not exclusive.

1.1

Every LGU, as a corporation, shall have the following powers to: (1) have . continuous succission ln its corporate name; (2) sue and be sued; (3)

have and use a corporate seal; (4) acquire and convey real or personal property; (5) enter into contractr; and (5) exercise such other powers as ar gradted to corporations, subject to the lirilitations provkied in the 1991 LGC and other laws (Sectbn 22, 1991 LGC).

2: 'implibd Aside from expres pou4em,

LGUS also have

implied powers (i.e. those powers

from express powers and state policies). While the law did not expressly vest on LGUS the power to abolish that offre, absent, however, any cohtnry provision, that authority should be deemed embraceC by implication from the power to create it (Jovier vs. Coutt ol Appeols, G.R. No. L4$65, tune, 7, 7994).

.2,L . 2.2 .

for the widenlng and improvement of prlvatelyowned sidewalk. Under the law, no public money shall be appropilated or applied for private purposes (Albon lts. Fermndo, G.R. No. 7t8357, tune 3 0, 2006).
LGUs cannot use public funds

'An LGU must comply with the legal condhions imposed on a donation (Clty ol Angeles vs, Court ol Appeals, G.R. No. 97882, August 2e, $96).

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Paft 4. TOCAT AUTOIIOMY AND LOCAL SOURGES OF FUNDS

Sources

ol

Funds

1,

LGUs have constitutional and statutory sources

offunds.

1.1

Under the 1987 Crnstitution, the sources of fundi of local governments are their share ln national taxes, share in the proceeds of the utilization and dwelopment national wealth, local taxes, fees and charSes, other sources of revenues fsections t6 ond 7, Attlcte X, 7987 constitutlon). Under the 1991 LGUs raise funds from loan s (*ctions 3O0 and 3O7, 7gg7 donations and grants (Sedion 23, 7997 tOC/, float bonds (Section 299, 7997 l.6Cl, exercise of proprietary tunctions (Saion 22tdl. 1991

. LOCI,

l.6C/, and credit-financing schemes such as Buildoierate-Transfer

ichemes (8,A. No. 7778 amending R.A. No. 6957),

Flscol

Aubnoiny

1,

Local autonomy includes both administrative and fiscal autonomy (Provlncr ol Botongos vs. Romub,6.R. No. 752774, May 27,2M; Pimentel vs. Aguirrc, G.R. No. 732988,Ju|y 79,20d)).
.LGUS

enjoy fiscal autonomy. The constitutional basis of fiscal autonomy is Section 5, Articl X of the 1987 Constitution (Pimcntel vs. Aguirre, G.R. li o. 132988, I uly 79, 2@0). Fiscaleutonorny nrans that LGUs have the: (1) power to create theirown sources of rwenue in addition to their equitable share in the hational taxes released by the national Bovernment, as well as the (2) power to allocate their resources in acrordance with their own priorities. (3) lt extends to the prepaiatlon of their budgets, arid local officials in tumhave to work wlthin the constralnB lhereol (Ptmenbt vs. Agutrri, G.R. No. 732988, tuty 19, 2@OL

7.2

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draftas of 10 November 2012

1.3 .
2.

Local frcal autonomy does not however rule out any manner of national govemment intervention by way of supervision, in order to ensure that local prognms, fiscal and otherwise, are conslstent with national goals (Plmentel vs. Aguirre, G.R. No. 1j29*, luly 19,2(m).

As a conse.quence of fiJcal autonomy:

'

2.1,

The Department of Budget and Management cannot impose a limitation not found in the law such as setting a cap on the amount of allowances for judges (Dadole vs. Commissbn on Audit, G.R, No. 725350, December

8,2@2).
2.2

ln revlewlng tax ordinances, the Department ofJustice can only declare a tax measure unconstitutional and illegal. The Secretary cannot amend, modify or rcpeal the tax measurc or declare it excessive, conflscatory or contrary to public welfare /Orilon vs. Lim, 6.R. No. 772497, August 4, 1se4). ThF rstrictlve and limhed nature of the tax exemption privileges under the 1991 LGC ls consistent wlth the State pollcy of local autonomy. The obvlous lntentldn of the law is to broaden the tax base of LGUS to assure

2.3

them of substantlal sources

bf

rcvenue (Philippine Rurat Electic

Coorym.tlves Associofion vs. DlL6, 6.R No. 743076, June 70, zOOi). 2.4

With. the added burden of devolution, it is eVen more imperative for goveinment entlties to share in the rcqulrements of local development, fiscal or otheftvise, by paying taxes or other charges due from them (Natbnol Power Corpordtian vs. @banotuon CW, C.R. No. 749770, Nril 09,2OO3).

ln interpreting statutory provisions on munlcipal fiscal powers, doubts wlll have to be resolVed in favor of LGUs (Son Pabto City vs. Rcyes, 6.R, No. 7277(8, Mordt 25, 1999).

tntemol Ret8nue Allotn ant

1.

just shar, as determined by law, ln the national taxeswhich shall be automatically rebared to them (Sec.bn 6 Article X, 7987 Constitution).
LGUS shall have a

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dnft

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1.2

At prcient, all .LGUs have a 40% share in the national lnternal revenue taxes based on the collection of the thlrd ftscal year precedlng the
cunent fiscal yea r (Sealon 284, 1991 LcC).

1.3

Of the 40%, provinces and cities are entitled to 23% each; municipaiities, 34%; and barangays, 2096. The share of a particuhr local government shall be based on this formula: population, 58z6; land area, 25%; and equal sharing, 25?/, (Secrton 285, 1991 LGC),
ln the event that the natlonal government incurs an unmanageable public sector defich, th President of the Philipplnes is hereby authorized, upon the recommendation of Secrtary of Finance, Secretary of lnterior and

L,4

Local Govemment and Secretary of Budget and Managemen! lnd subJect to consuftation with the presiding ofilcers of both Houses of Congress and the presidents of the "liga", to make the necessary adjustments in the internal reveriue allotment of lncal government units but in no case shall the allotment be less than thlrty percent (3096) of the collection of national intrnal revenue hxes of the third fiscal year preceding the currnt ftscal year fSe ction 284, 7997 LGC).
1,s

The lnternal Revenue Allotment (lRA) of LGUs: (11 forms part of the income of local govemment units; (2) forms part of the gross accretion of the funds of the local govemment units; (3) regularly and automatically accrues to the local treasury without need of further action on the part of the LGU; (4) is a regular and recurring item of income; (5) accrues to the general fund of the LGUs; (6) is used to finance local operations subject to modes provided ty the 1991 LGC and itr implementing rules; and p) is included in the computation of the aveEte annual lncome for purposes of conversion of LGUs (Alvorez w. Guingona, G.R, No. 778303, lonudry
31,1996). The share of each LGU shall be released, without need of any further . action, dlrectly to the provinclal, clty, munliipal or barangay treasurer, as the.case may be, on a quarterv basis within five (5) days after the end of each quarter, and which shall not be subject to any lln or holdback that

may be lmposed by the national golernment fot whatever purpose

(Sectlon 286, 1991 LGC).

Revlewlr on Local Gorrent'mcflt law Albertot. Agra, Atcnlo taw Sdlool

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draftas of 1(}November2012

a.

The Prcsident cannot withhold 10% of the IRA without complying witft the requirements under Section 284 of the 1991 LGC. This would . . be v'olatlve of local autonomy and ffscal autonomy (Pimentel $. Aguine, G.R. No. 732988,|u\y 19, 2@O).
The Genenl Appropriation Act cannot place a portion of the tRA.in an
.

b,

Unprogrammed Fund only to be released when a.mnditlon is met, i,e., the original rvenue targets are realized (Altemative center vs. Zamom, 6.R. No. 7tU256,lune 8, 2005). The provlsions in the Genenl Appropriation Act creating the Local Gorernoent Spcial Equalization Fund and iuthorlzing the nonrelease of the full 40% to all LGUs are inappmpriate provlsions/ridi:rs. Further, an appropriations act cannot amend a sqbstantive law, i.e, !991LGC (Ptovlnce o! Betonge vs. Romulo,6.R. lVo. 752774, Moy 27,

c,

20u).

d, A'no repofl no release"

policy may not be valldly enforced against offrces vested with fiseal autonorfly. The automatic release provision found ln the Constltution means that LGUS cannot be required to . perform any act to recelve the "Just share" accruing tb them from the national coffers (Civil Service Commissbn vs. Deportment ol Eudget ond Monogement, G.R. No. 158797, July 22, 2005}

Shore

ln Natlodal Weafth PrcCf.eds

1.

shall be entftled to an equitable share in the proceeds of the utilization and development of the national wealth within their rcspectfoe areas, ln the nianner provHed by law, lnckrdlnt sharing the same with the lnhabhants by way of direct beneftB (Sedlon 7, Artiile X, 7987 Corctitution).
LGUS

1.1 .

LGUs shall have a 4096 share of gross collectlon derived by ihe national govemment from the preceding fiscal year from mining taxes, royalties, forestry and flshery charges, and sr.rch other taxes, fees, or charges, includlng Ehted surcharges, interests, or fines, and from its share in any coproductlon, joint venture or production sharing agreement in the utilization and development of the national weahh within their territorial jurisdictbn (Section 290, 1991 LGC).

Revl.urer on LocaiGdicmmcnt Law Albarto C. Agra, Atcnco Lrw Sdrool

52

dnftas of

10 November2012

The host province shall be entftled to 2@6; componeflt municipality/ city, 45% {lf highly-urbanized or independent city, 65%), and barangay, 35%

(section 292, 1991 LGCI.

Power of Taxotb

1.

Each LGU shall have the power to levy taxes, fees, and charges subject to such guidelines and llmitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fues, and charges shall actrue exclusively to the LGUS (sectioa 5, Articte X, 7987 Constftution).

1.1

L.2 . '

The power to tax is primarily vestei, in the C.ongrcss; however, in our jurisdiction, it may be exercised by local leglslative bodies,. no long6r merely by vlrtue of a valid delegation as before, but pursuant to direct authority confurred by Sectlon 5, Article X of the 1987 Constitution. The exercise of tie power may be subject to such guidelines and limitations as th6 C,ontress may provide which, however, must be consistent with the baslc policy of local autonomy (Mdcton C.bu tnteinationot Airpaft Authotry vs. Marcos,6.R. No. le(fr82, Septembr U, 1996)
The llst of taxes under Book ll of the 1991 LGC not exclusive. LGUS may exercise the power to levy taxes, fues or charges on any base or subject:

(11 not othen rise specifically enumerated hereln or taxed under the . provisbns of the National lnternal Revenue Code, as amended, or other appllcable laws: Provided, That the taxes, fees, or charges shall: (2) not be uniust,. excessive, oppressivg confiscatory of contrary to dectared naqonal policy: Provlded, further, That the: (3) ordinance levying such taxs, fecs or charges shall: (4) not be enacted wlthout any prior public hearini conducted for the purpose (section 186,1991 L6C).
Cities

Prcvlnes
Tax on Transfer Real Pmperty

Munldpalities

Eomngays
Tax on Stores

of

Tax on Tiansftr Real Property

of of

Business Tax on Business

Ownership Tax on Buslness Printing and Publicatlon

Owherchip

of

Tax on. Business

Printing and Publication

Manufacturers Tai on Wholesalers, Distributo6, or

Dealers

or Retallers with

ffxed business establishments

Albcrto

Revlewer on local Govcnrmant hw C. Agra, AtaEo [.w Sdtool

53

draft as of 10 November2012

Provltl;ces

Cities Frdnchise Tax Tax on Sand, Gravel and Othar

Franchlse Tax Tax on Send, Gravel and Other

Municipalities Business Tax on

Retailers
Business Tax on

Quarry Resources ProfessionalTax Amusament Tax Annual Fixed Tax for Every Delivery Truck or Van of Manufactu ters or Prodrcers, Wholesalerc of, Dealers, or Retallers in, Certaln Products
Real Property Tax

quarry
Resources ProfessionaJTax Amusement Tax Aniual Fixed Tax for Every Delivery Truck or Van of

Exporters, and on

Manufacturers, Wholesalers and

Retailers Essential

of

Special Education Fund Lcvy Ad Valorem Tax on ldle Lands Special Levy on Land Benefited by Public Work

Commodities Business Tax on Contractols ManufactureG ot Business Tax on Producers, l Banla Wholesalerc of, Euslness Tax on Dealers, or Peddlers Retailers in, Business Tax on all Certain Products other Buslnesses Buslness Tax on Maiufacturers Communlty Tax Business Tax on Real Property Tax Wholesalers, for Metro-Manlla Distributors, or Municipallties Dealers Special Educatlon Business Tax on Fund Levy Retailers Ad Valorem Tix on Business Tax on ldle Lands Exporters, and Spechl levy on on Land Benefltcd by Manufacturers, Publh Works Wholesalers and Retailers of
Essentia
I

Commodities
Eusiness Tax on

Contractors
Eusiness Tax on Banks Business Tax on

RcYle!4Gr on Locrl Govcmmcirt Law

54

Alberto

C.

Agr., Atcico

llw

Sdtool

draftas of

10

Norember 2012

Provlnces

Clties Peddlers
Business Tax oh

Municipolities

Bomnsoys

all oth6r. Businesses

Community Tix Real Property Tax Special Education Fund Levy Ad Valorem Tax on ldle Lands Special LeW on Land Eenefited by Public Works

Part 5. TOCAL GOVERNMEfI|T OFF|CIALS Legtst otlve

@thot ow

Si,rucu;rne

.1. The
of

1987 constftutlon does not enumerate the local officials of the five kinds/levels

LGUs.

2.

congress shall pmvirle for the qualificauons, election, appointment and removaf term, salaries, and powers and functlons and duties of local officials (section i, Article X,7987 constftutionf. congress exercises leglslative control over structure of
LGUs.

ferm of Ofike

1.

The term of office of elective local officials, except barangay officlals, which shall be determined by law, shall be three years and no such offlclal shall sewe for more than three consecutive terms. voluntary renunciauon of the offfce for any length of time shall not be consldered as an interruption ln the c6ntlnulty of his service for the full term for whlch he was elected (sectlon g, Article X, 7gB7 Corqttuttion). lJndet R.A. No, 9164, the cunrnt term of office of elective barangay officlals is three years.

Alberto

Revlcwer on LocrlGovcfirmcnt L.w C. Agr., Atarco Lew Sdrool

55

draftas of 10 November 2012

1.1

For thi 3-term rule to apply, two conditions must concun (f i the official concemed has been etected for three consecutive terms in the same local government post and (2) he/she has fully served three consecutive terms. A municipal councilor who was elected for three conseutive terms but who had to assume the positioh of vice-mayor on his/her second term in view of the .incumbent's reiirement is not deemed to have fulty served three consecutive teftns (Montetnn vs. Comelec,6.R. No. 780t144, April 08, 2W).

L.2 '

He/she must also have been elected to the same position for the same number of times hefore the disqualification can apply. The first requisite is absent when a. proclamation was subsequently declared void since there was no proclamation at all. While a proclaimed candidate may assume office on the strength of the pmclamation of the Board of. Ca nvassers, he/she is only a presumptlve wlnner who assumes offrce subiect to the final outcome of the election protest. The second requislte ls not present when the official vacates the ofrlce not by voluntary renunciatlon but in compliance with the legal process of writ of executlon lssued by the Commission on Electidns (Lonanido us. Comcleg 6.R. No. 1351s4 tuly 28, 1999). The term llmft for electfue local offtcials must be taken to refer to the. rlght to be elected as well as the rlght to serve in .the same elective position. Consequently, it is not enough that an individual has served three consecutlve terms in an elective local office, he/she must also hav.e been elected to the same position for the same number of times beiore the disqualmcation can apply. Thus, the term of a vice-mayor who bccame the mayor by succession is not consklercd a tcrm as mayor for purposs of the 3iterm rule (Borjo vs. bmelec, G.R. No. 739495, September 03, 7998).

1.3 ' ' I.4 '

Preventlve suspension, by its nature, does not involve an effuctive intenuptlon ofa term and should therefore not be a reason to avoid the 3-term.limitation, Because it is imposed by oper.tion of law, preventive suspenslon does not lnvolve a voluntary nenunclation; It merely involves the temporary incapacity to perform the service that an eiective offae dcmandi (Aldovino, Jr. vs. Commisslon on Eledlons, 6.R. lVo. 184A36,
December 23, 2@9).

Albcrto

Rarlewcr on LocrI Gorrcmmcnt Law C. A8ra, Ataco L.w Sdlool

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draftas of 10 No/ember

2O12

1.5

A person who has run for th ree consecutive terms may run in a recall elecffon rc long as the sau candidate is not runnlng for immediate reelection following his/her three consecutive terms. Term limlts should be construed strictly to give the fullest possibl effect to the right of the
electorate to choose their leaders. Thus, the 3-term llmit for local elected officials is not violated when a local official wins in a recall election for mayoi after serving three full terms as mayor since said election is not consldered immediate reelection (Soootes vs. Comelec, G.R. No. 754572, November 72, 2002).

1.6

A person who served for two.consecutive terms for mayor and thereafter lost ln the succeeding elections, can run ln the next election since the 3term rule was not violated (Adoniteo vs. Comelea) G.R. No. 747927,

February04,2O02)
,..7

A punont barangay serving hls/her third term of office who ran, won and assumed offlce as songguhlon bcryon member ls deemed to have voluntarily relinquished his/her offre as punong barangay for purposes of thB thre-term rule (8olos vs. Comcl.c, 6.8. No. 784@2, March 77, 20oe). A 3-term mayor of a municipality converted lnto a clty on the 3'd term of the mayor cannot seek office as a city mayor in the f i elections of city offlcials considering the area and inhabitants of the locality are the same and that the municipal miyor continued to hold office until such time as city electlons are held. There was no lnvoluntary renunciation on the part of the municipal mayor at airy time during the three terms. While th city acqulred a new corporate existence separate and distlnct from that of thc munlclpallty, this do.s not moan that for the purpose of applying the constitrtional provision on term limitadons, the office of the municipal mayor would be construed as dlfferent from that of tfie office of the city mayor (totoso l/s . Comelec, G,R. No. 7W29, Oecembet 70, 2003).

1.8

1.9

A punong barangay who has served for three consecutive terms when the bar.nSay was still part of a municipaltty is dligualified from runnlng for a 46 consecutive term when the municipalfi wa; converted to a city because the positlon and territorlal iurbdlction are the sam (Locedo vs. Luncno, G.R. No. 782867, November 25, 2O@),

Alb.rto

Revleurlr on tocrl GdrmnEnt L8w C. Agra, At nco trwsdrool

57

daftas of

1O

Novembr2012

1.10

ln case of failure of elections inrolving barangay officlals, the incumbent officlals shall remain in offtce in a holdover capaclty pursuant to Section 5 of Republh Act No.9t64 (Adap vs. Comelec,6.fi. IVo. 161984, Februory 21,2007).

Powecof LoalOlftctdts

1, 2.

The powers of local govemment officials are defined under the 1991 LGC.

The powers and responsibilities of the Provincial Govemor are enumerated gnder Section 465 of the 1991 LGC. Among others, the Govemor shall exercise general supervislon and control over all programs, projects, services, and activities of the provlncial govemmenq enforce all laws and ordinances rclatlve to the governance of the province; repnesent the province in all its business transactions and sign in its behalf all bonds, contracts, and obligations, and such other documents upon authortty of the songgunlong ponlolowigan or pursuant to lew or ordinance; ensure that all executive officlals and employees of the provlnce falthfully discharge their duties and fun4lons as prwlded.by law and the 1991 LGC; nsur that th acts of the componcnt cldes and municipalities of the provlnce and of its offclals and employees rre withln the Scope of their prescribed powec; duties and functions; and ensure that all taxes and other revenues of the provlnc are collected, and that provincial funds are applled to the payment of expenses and settlement of obligations of the prwince, in accordance with law or ordinance.

3.

The powers and responsibilities of the Clty/Munlcipal Maior are listed under Sections 455 arfr 444 of the 1991 LGq respectivev. Among others, the Mayor shall exercise gcneral supcrvision and control over all programs, projects, services, and activltles of the munlclpal tovemmnt enforce all .laws and ordlnahces relatlve to the govemance of the municipality; upon authorization.W lhe sangguniong panglungsod/boyan, represent the municipality in all its business transactions and slgn on lts behalf all bonds, contracts, and obllgations, and such other documents rnade puauant to law or ordinance; ensure that dll executlve officials and employees of thc clty/municipality faithfully discharge their duties and functions; solemnlae manlats; ensur .that the acc of the city/munlclpallty's component barangays and of lts officlals and employees are withln tfie scope of their prescribed powers, functlons, duths and responsiblllties; issue llcenses and permits and suspcnd or rcvoke the same fbr any viclation of the condftions upon whlch said

.Rorlewar m tocllGorcmmcnt law Alberto C. A$r, Atcoco hw Sdrodl

58

draft as of 10 November 2012

or prmtts had been ilsued, pursuant to law or ordinance; and ensure the delivery of basic services and the pfovision of adequate facilities.
licenses

4.' The powers and rasponsibilities of the punong Barangay are enume.ated under
Section 389 of the.1991 LGC. Amon! others, the punong Barangay shall enforce of all laws and ordinances which are applicable within the banngay; promote the general

welfare of the barangay; negotiate, enter into, and sign contracts for and in behalf of the barangay, upon authorization of the sangguniong barangay; maintain public order in the barangay; call and preslde over the sessions of lhe songgunlang bomnioy and the barangay assembly, and vote only to break a tie; upon approval by. a majority of all the members ol the songguniotv bomngoy, appoint or replace the banngay tneasurr, the barangay secnetary and other appointive barangay officials; administer the opeatinn of the kotorungatp pambomngoy; and exercise general supervision over the activitles ofthe songguaiong kobotaon.

Power to Appotnt

1. The

Local Chhf Execltfue and the Vice-l-ocal appoint.

Ch

ief Executlve have the power to

t,1

As a 3cneral rule, appolntments made" by defeatcd local candldates after the elecuons ar prohibtted to avofd anlmosffies between oueoing and lncoming ofricials, to allow the incoming admlnlstration a free hand in implementirig its policles, and to ensure that appointments and promotlons arE not used as tools for politlcal patronage or as reward for services rcndered to . the outtoing local officials. However,' such appointments may be allowed if the following requisites concur relative to thelr lssuance: (1) The appolntment has gone through the regular scrEenlng by the Personnel Selection Board (pSB) befure the prohibited pedod on the lssuance of appointmenG as shown .by the pSB report or mlnutes of tB meeting; (2) The appolntee ls quallfhd; (3) There is a need to flll up the vacancy lmmediately ln order not to prejudice public service and/or endanger public iafety; and (4) The appointment is not one of those mass appointments issued after the electlons (Nozoreno vs, City ol Dumaguete, G.R. No. 78484, tuly 12, 20071

Wherc a. munlcipal mayor orders.

tre suspenslon or dismissal of a munlclpalemployee on grounds he/she believes to be proper, but his/her
59

Alberto

Revlawer on Local Gdamment trw C. Agra, Atar.o Lrw Sdtool

daftas of

10 November 2012

order is reversed or nullified by the Civil Servhe Commission or the Couft of Appcals, he/she has the right to contest such adverse ruling. His/her rlght to appeal f,ows from the fact that hls/her power to appolnt canies wlth it the power to remove. Belng chief exicuttve of the municipality, he/she possesses this disciplinary power over appointive municipal officials and employees (Ddgodog vs. Tongnowa, G.R. No. 161166-67, Februory 03,2005). The city legal officer has no disciplinary authoriry over the chief of the Legal Affalrc and Complaint Services of the Division of City Schools, lnasmuch as the saU official was appointed by and is a subordinate of the regional direitor of the Department of Education, Culture and Sports, he/she is subject to the supervision and contml of saH dlrector (Aguirre vs. Oc Castto, G.R. No. 727637, December 77, 7999).

Ban on Hotdlng Dual

Posltbrc

1.

No (local) elecUve official shall be eligible for appointment or designation in any capacity to any public offtce or position durihg his/her tenure (9..ctbn 7[bL Article lX[B], 1987 Constltutlon).

1.1

A clty mayor cannot be appointed to the posltlon of chairperson of the Subic Bay Metropolitan Authority since such office ls not an ex-officio post or attached to the office of the mayor. This provision expresses the lpolicy agalnst the concentration of sevenl publlc posltions in one peron, so that a public officer or employee may se e full-time with dedication and thus be efficient in the delivery.of public serulces (Frores vi. Drlhn, 6.R. No. 7A82, Junc 22, 1993).
Pursuant to Section 7(8), Artble ll of the Guidellnes ln the Conduct of Electric Cooperatlve Distrlct Electlons, ex-ofilcio sanggunlon members are dlsqualified from becomlng board memberc of electrh cooperatives (Notlonal Ebctrlficotion Admlnlstrotion is. Villanueva, 6.R. n o. 76,8203, Morch 9,2O7O).

t,2 '

Vacdncles

Alberto

Revlewer on Local Go\rerrment Law C, A8ra, At neo Law Sdrool

60

draftas of

1O

Noveinber2Ol2

There are permanent and temporary cluses of lacancies in local elective posltions under the 1991 LGC. The grounds are:

Pemonent
Death Voluntary reslgnatiorl Convlction Expiration of term Permanent disabllity Fills a higher vacant office Refuses to assume office Fails to qualify Removed from office Failure of elections
.

Tempomry
Leave of absence

Travel abmad Suspension from office Preventlve suspension

Sickness

Temporary disability

Where a pernanent vacancy occurs due to dlsqualification in the office of mayor, the proclaimed vice-mayor shall succeed as mayor, pursuant to Sectlon 44 of the 1991 LGC (pundaodoya vs. Commlssion on Electtons, G.R. 779373, September tZ, 2@9). .No.
1.2

When a mayor is adJudged to.be disqualified, a permanent.vacancy was creaEd for f"ilure of the elected mayor tD qualifo for the office. ln such eventuallty, the duf elected vice mayorshall succeed as provlled by law, The second placer cannot be declared as mayor (Toral Kore vs. Comeleq G.R. Nos. 757526 157522, Aprit 28,2OU).

1.3

ln case there ls a permanent vacancy caused by a songgunidfi member belonglrE to a political party, it shall be the president actlng through the executiv scretary who shall appoint the rephcement, upon the certmcatlon and nomination of fte politlcal party fum whera the replacd member combs from, tor the songgunlong ponlalourlgon and tdnggunlong . panglungsod of a hiehv urbanlzed or independent componcnt city. For the songgunldng panglungsod of component citles . and lt shall be the govemor who shall make the appointment upon the certlficatioit and nomlnation of the political party trom where the rplaced member comes from. in caie the vacancy ls caused by a member who does not come from any polfthal party, appointment shall be done by the officials mentioned upon the recommndation of the songgunion concemed, withou! however, need of the nomination or
.

Reviewcr on Local Got cmmcnt Law Alberto C. Agra, Atenco Law Sdrool

61

draftesof

10 November 2012

certificatlon from any political party. For sarpguniang barongoy membe6, it is the mayor who appoint! upon rEcommendation of the sangguniang bomngny (Forinds vs. Borbo, G.R. No. 11673, Apfl 19,
1996). L.4

ln case of vacanry in lha sangguniong bdyon, the nominee of the party under which the member concemed was eiected and whose elevation to the higher position created the last vacancy will be appointed. The last vacancy refers to that crated by the elivation of the councilor as vicemayor, The reason behind the rule is to maintain party representation (Navoiio vs. Court of Appeats, G.R. No. 741302, Mardt 28, 2OO1).
For purposes of succession in the filling up of vacancies under Section rl4

of 1991

LGC,

the ranking in the sanggunian shall be determined on the

basis of the proportion of votes obtained by each winning carididates to

the total number of registered voters in each district in the immediately prceding local election, not the number of voters who actually voted (Vlctoria vs. Comelec, G.R. No. 7O90O5, tonudry lq 7994).
1.6

The hlghest-ranklng municipal cquncilor/s succession to the office of vicemayor cannot be considered i voluntary renunchtion of his/her. offlce as cbuncilor since it occuned by operation of.law (Montebon vs. Comeleq G.R. No. 78(M44, April 08, 2008). Resignations by sangguniang ponlolowigon members must submit their letters of resignation to the president or to hls^er alter ego, the Secretary of the lnterior and Local Govemment. The letter must be submitted, rcceived and acted upon by the supervising officials, otherwlse, there was no valld and complete reslgnation (songguniong Eayon of fun Andres vs. Court of Appeab,,G.R. No. 118883, lonuory 76, 19s8). When the Viceovemor exercises the powers and duties of the ffice of the Governor, he/she does not assume tha latter office. He/she only acts

L.7

1.8

as the Governor but does not 'become, the Govemor. His/her assumption of the powers of the provincial Chief Executive does not

create a prmanent vacqum or vacancy in his/her position as the ViceGovernor. But he/she does temporarily relinguish the powers of the ViceGovemor, including the power to preside over the sessions of the

Alberto

Ranlewer on LocalGonGmmrnt law C, Agra, At neo tew Sdtool

62

d,aft

as

of 10 November20l2

songgunloig panlalowlgan (Gamba luly 20,7999).

vs.

Aguirre, et. al., G.R. No. l3t!!173,

Absence should be rasonabf con;triied to meani .efrectlve, absence, i.e.. one that renders the officer concerned powerless, for the time being, to dlschar8e the powers and prerogatives of his/her office. There is no vacancy whenevir the ofrice ls occupied by a legally qualified incumbenL A sehsu coglrorio, there ls d vacancy when there ls no person lawfully authorized'to assume and exerrlse at present the duties of the office (Gomboa vs, Aguifte, et. ol., 6.R. No, 734273,Ju1y 20, 7999).

Part 6. ACCOUT{TAEIrY OF LOCAL GOVERNMEIaT Uf{tTS ANO OFFIC|ALS Suabtlity and Uobllity

1. 2.
3.

LGU5 have

the power to sue and be sued fsection 22 [alt2], 1gg1 Lcc).Because of

LGUS are

the statutory wafuer,

not

immrf, from suit.

LGUs and their officials are not exempt from liabllity for death or injury to persons or damage to proprty (sect on 24, 79st7 LGC),

The test of liability of the municipality depends on whether or not the driver, acting on behalf of the munlciFlity, is performing govemmental or proprietary funct;ons. The distinction of powers becomes important for purposes of determining the liability of the munlclpality for the acts of ib agents which resutt in an injury to third pensons. Under the 1983 Local Govemment Code, LGUS are exempt from liability while in thc pcrformance of their officlat fuirctions. Dellvery of sand and gravel for the construcdon of a munlclpal biidge in ttre cxcrclsc of the govemmantal capaclty of LGUS (Munbhalw of Son Fernatdo, Lo Unlon w, Firme, G.R. No. L52779, Aprll 8, 1991). Under the 1991 LGC, the dlstlnction between governmental and proprletary powe6 has been removed.

i'

LtobilW ol Loc',t Oovemment Unlt,

1.

When there ls no malice or bad faith that attended the lllegal dismissal and refusai to reinstate on the part of the munblpal ofriiials, they cannot be held personally accountable for the back salaries. The municlpal govemment should disburse funds

Rarbwer on Locel Got cmnrcnt Law Alberto C, Agr., Atcnao Liw Sdrool

63

draftas of 10 November2012

to answer for the claims resulting fronr the dismlssal (Cfuil

6ehtollon, G.R. No. 752833 Moy 09, 2@5).
2.

Service Commissbn vs.

The LGU is liable for the illegal dismlssal of an appointive employee and the appointment in his/her stead of another, a nonrivil service eligible, whosir salaries it thereafter pald. The dismissal by the mayor was confirmed and ratified when the city did not oppose the disralssal and the appolntment (Begls, !r. vs. Osmeho, !r.,
G.R. No. 26785, May 23, 1991).

3.

An LGU ls liable for injuribs sustained due to defectlve roads and mdnholes. For
iiablllty to arlse indir Artlcle 2189 of the Clvll Code, ownershlp of the rcads, streets, bridges, public bulldh* and other public work is not a controlling factor, it being sufficient that a provlnce, city or muhbipality has control or supervision thereof (Municipattiy of Son luon ts. Court of Appeots,6.R. No. 121920, August g,2Oo5; Guilotco vs. Dogupan,6.R. No. 67576, March 27, 7989).

4. Inasmuch as the license for the establishment of a cockpit ls a mere privilege which

can be suspended at any time by competent authority, the fixing in a municipal ordinance bf a dlstance of not less than two kllometers between one cockpit and another, ls not srfftclent to warrant the annulment of such ordlnance on the ground that lt lS partlal, c\ren though it is prejudiclal to an alrcady established cockpit (ADod vs. Eiangellsto, G.R. No. 38884 Septembr 24 7933).

Liobllityof

loalOfre|

1;

The paler of supervision is compatible with the power to dlscipline. The power to discipline does not amount to executive control which is proscribed under Section, 4, Artlch X of the 1987 Constitution.

1.1

The Pmsldent's power of general superylslon means no more than the power of ensurint that laws arc fafthfully executed, or that subordinate offlceni act withln the law. Supervlslon ls not incompatible wfth disclplhd. rhe power to disclpline and ensurc that the laws be faithfully eiecuEd must be construed 'to authorlze the Presldent to order an investlgation of the act or conduct of local offlclals when in hii/her ophlon the good of the publlc servlce rc rcqulres (Jo'tr/n vs. Torres, G.R. No.737255, Moy 20, 1998).

Revlewer on [ocalGovcmmant Law Alberto c. Agrr, Atcneo L.w sdrool

64

draftas of 10 November 2012

1,2

Jurlsdlction over admlnistrative dkciplinary actlons against elective local offlchls is lodged in two authorlties: the Dlsclplinlng Authority and the lnvestlgatlng Authorlty. The Disciplihary Auttrorlty may constitute a Speclal lnvestigating Committeb ln lieu of the Secretary of the lnterlor and Local Govemment. With respect to a provlnclal 8overnor, the disciplinlng Authorfty is the President of the Philippines, whether acting by hlmself/hirself or through the Executlve Secretary poson vs. Torres, 6.R. No. 131255, May 20,1998). The Secretary of the lnterior and Local Govemrnent is the lnvestigating Authority, who may act himself/ herself or constituie and lnvestitatlng Commtttee. The Secretary of the Department, however, is not the excluslve lnvestigating Authorlty. ,ln lieu of the Department Secretary, the Dlsciplinlng Authorfty may designate a Special lnvistigating Committee (Joson vs. Tc,rltr., G.R. No. 737255, May 20, 1998).

1.3

'

2. The grounds for disclplinary action against local electfue offlcials are: (1) Disloyalty

to (3) (2) the Republie of the Philippines; Culpable violatiqn of the Constitution; Dishonesty, oppresslon, misconduct in office, gross negligence, or dereliction of duty; ( ).Commisslon of any offense involving moral turpltude or an offense punishable by at hast prlslon moyor; (5) Abuse of authorlty; (6) Unauthorized absence for fifteen (15) consecutive working days, except ln the case of members of the sanggunlang ponloldwlgon, sangguniong panrungsod, soagguniang boyan, and songgunlong bomngay; (7) Application tsr, or acquisitlon of, foreign citizenship or residence or the status of an immigrant of another country; and (8) Such other
grounds as may be provided in 1991
LGC and

other laws (section 60,7997 LCC).

3. The basls

of admlnistrative liability differs from criminal liability. The purpose of admlnistratlve proceedlngs is malnly to protect tle publlc servlce, based on the time-honorcd pdnclple that a public office ls a pubilc trust; On the other hand, the purpos of the cdminal. prosecution ls the puniihment of crime. However, the reelection of a public officlal extinguishes only the. adminlstrative, but not the criminal, liability lncurred by him/her durlng hls/her previous term of olfice (Valencio vs.
Sondigonboyon, G.R. No, 141336, June 29, 2M).

4. An "administrative offense" means every act or conduct or omisslon which amounts to, or constitutes, any ofthe grounds for disciplinary aclion (Sdlalimo vs. Guingond, G.R. No. 117589-92, Moy 22,1996).

Revlewer on Locdl Go\rcmmcnt [aw

'

65

Alberto

C.

Agr., Atcnco L.w Sdrool

.
4.1.

draftas of 10 November2ol2

A municlpal mayor, vice-mayor and treasurer were Buitty of two (2) counts of violation of the Antiraft and Corrupt Practices Actwhere they
knowlngly slmulbted a bidding/canvasslng in favor of the maYor's son (De lrsus, Sr. vs'. Sandlgdnbdydn, G.R. Nos. 7825394Q February 23, 2017)-

4.2

Therc are two modes by whlch a public officer who has a direct or indirect financlal or pecuniary interest in any business, contmct or transaction may .violate Section 3(h) of the Anti-Graft and Conupt Praitlces Act. The first mode is if in connection with hls/her pecuniary intercst in any business; contract or transaction, the public officer intervenes or takes.part.in his/her offichl capacity. The second mode is ' wh:n he/she is prohibited from havlng such interest by the Constitution . or any law. A mayor relative to the issuance of a license to operate a cockpit which he/she owns cannot be heH liabli under the firct modi slnce he/she could not have intervened or taken part in his/her official capacity in the issuance of a cockpit license because he/she was not a member of the sangguniang bcryon. Under the 1991 LGC, the grant of a lhehse is a lbgislative act of the songgunian. Hourever, the mayor bould be liable under the second mode. (Domingo vs, Sandiganboyan, G.R- No. 749775 October 25, zoos;Ieves t/s' sandigonboyon, G.R. No. 154182,
Deember 77, 20O4).

4.3

subsequent appointmenB to the posltion of Assistarit City Assessor has not been challenged, the city mayor who appointd a person to serve in said poiition hed every ritht to assume in good tai'th that the one who held the position prior to the appointments no longer held the same. Thr.rs, the city mayor ls not liable for viohtion of Sectbns 3(a) and 3(e) of the AntiGraft and Corrupt Practices Aca (Reyes vs. Atlcnza, G.R. No. 152243 Seitember 23, 2@5).

When the validity

of

4.4

To be crlminally liable foi violation of Section 3(e) of R.A, 3019, the injury sustalned must have been caused by posltlve or passlve acts of manifest partlaltty, evident bad falth, or gross lnexcusable negligence. Since the State Audhorc even recommended that munlcipal officlals should not pay th clalms due to irregularities ln the transactbns.and the patent nullity of thc sime, it cannot be said that the injury claimed to have been s$talned by was caused by any of ofriciald overt acts (Fuenes vs. Sandlgonbayan,6.R. ,Vo.

1il6il,luty

20, 2@6).

Revlehrcr on Local Govammcnt lrw Alberto C. Agra, Atcnco Law Sdtool

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draft as of

1O

November2ol2

The issuance ofa certification as to availability offunds for the payment of th wages and sahdes of local officials aw.aiting appointment by the Civll Servlce C.ornmissbn (CSC) is not a ministerlal function of the city treasurer. Since the CSC has not yet approvei the appointment, there were yet no seryices performed to speak of, and there was yet no due and demandable obligation (Altres vs. Empleo, G.R. No. 780986, Decembet 70,2(nq.
4.6

A municlpal mayo; is mandated to abide by the 1991 UdC which directs that executive officials and employees of thq municipallty falthfully dlscha.le their duties and functlons as provlded by law. Such duty. lncludes enforclng decisions or final resolutions, ordens or rulings of the Ci'ill Service Commission (CSC). IVelosco .vs. Sandigonboyan, G.R. No. 760997, Februory 28, 2@5).
'

41

'
4.8

A municipal rnayor b not guiw of viohting Sectix 3(e) of the Antiraft and Conupt Practices Act in issuing a Memorandum preventing vendors with questimabh lease contracB tom odupying market stalb where the said Memoranduin applies equitably to all awardees of lease contracts, and dld not gfue any unwananted benefit, advantage, or preference to any particular private party (,a,ph rts. endkn@on, 6.R. /Vo. 753952:77,
AugtBt 23,2070).

All heads of offices have to rely to a reasonable extent on their

subordinates and on the good faith of those who prepare bids. purchase supplies, or enter lnto negotiations. A public officer cannot be expected to probe records, inspect documents, and question persons before he/she signs vouchers preiented for his/her sEnature unless there is rome added Eason why he/she should examine each voucher jn such detall. When an exceptional blrcumstance exist whlch shbuld have prodded the officer, and if he/she were out.to pDtebt the lnterest ofthe munhtpality he/she swore to serve, he/she ls expected go beyond what hls/hcr subordlnates prepared or recommended (Leycano vs. Commtssion on AudllG.R. No.754665, February 74 2N6).

.
4.9

Munlclpal employees {rere. gultty of falsification of public documents .wheru they falled to disclose ln thelr StatemenB,of Assets and Liabillties (SALN) their relationship with ln the fourth clvll degree of consanguinity

'and affinlty to th municipal mayor who appointed them to their

RevlaYiq on Local Govemmcnt l8w Alberto c, Agra, Atenco Law Sdrool

67

draft as of 10 N ovember 2012

posftiirns lGoleos vs. People, G.R. Nos. 174730-37 s,2011).

174845-52, Februdry

4.10

When a complaint merely alleges that the disbursement for financial assistance was neither authorized by hw nor justifled as a lawful expense and no law or ordinance was cited that provided for an original appropriation of the amount used for the financlal asilstance and that it was diverted from the appropriation it was intended for, the complaint is defective as it does not prove technical malversatlon (Tetangco vs. Ombudsman, G.R. No. 756427, tanudry 20, 2006). A candldate's conviction by finat judgment of the crime of fencing is a crime lnvolving moral turpitude which disqualifies such a person from elective publlc office under Section 40(a) ofthe 1991 LGC (Delo Torre vs. Comelec. G.R. No. 727592, July 5, 1996). an elected one, should not be onion skinned. strict personal discipline is expected of an occupant of a public office because a public bfficial is a property of the public {Yobut vs. Otttbudsmon, G.R. No. 7773U, tune.77, 7994).
A mayor who continues to perform the functions of the office despite the fact that he/she is under preventive suspensibn usurps the authority of

4.lL

4.12 A public official, more especially

4.13

the Office of the Mayor and is liable for violation of Section 13 of the Antiraft and Corrupt Practices Act (Mlrando vs. Sondigonboyon, 6.R.
No. 754098, t uly 27, 2@5).

Admf,hffivePrced,',es

1.

A verified compl.int agalnst any erring local electfue officlal shall.be preparcd as follows: (1) A complalnt agalmt any electlve officlal of a provlnce, a highly urbanized clty, an lndependent component city or component clty shall be flled before the Office of the Pr$ldenq (2) A complaint against any electlve offhiaiof a municipality
shall be ffled befiore the songg uniong ponlolourlgon whose decislon may be appealed to the Office of th. President and (3) A complaint against.any elective banngay official shall be filed before lhe satgguniong panfulgsod or sanggunlong bayan concemed whose decision shall be final and executor (Sectb n 67, 7997 LOC).

Alberto

Revlcurcr on Local Govgnmcnt Law C. Agrd, Atenco Llwsdrool

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draft as of

1O

Norember2012

2.

ln admlnlstrative proceedings, procedural due process simply means the opportunity

to explaln one's slde or the opportunity to seek a reconsideration of the action or ruling complained of. Procedural due process has been rccogn Ed to include the following: (1) the rliht to actual or constructive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a real opportunity to be heard personally or with the assistance of cpunsel, to present wltnesses and evidence ln one's hvor, and to defend onet rlghts; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratfuely a reasonable guarantee of honesty as well as impartiality; and (4) a finding by sald tdbunal which is supported by substantial evHence submltted for conslderaton dirrlng the hearlng or contalned ln the hcords or made known to the partles affected fCos lmlro vs. Tondog, G.R. No. 74;,6737, lunc 8, 20os).

2,1.

Under the 1991 LGC, an elective local officlal must be a citizen of the Philippines. One who claims that a local official ls not has the burden of

proving his/her claim. ln administrative cases and petitions for disquallfication, the quantum of proof required is substantial eviderice
(Matugos vs. Comelec, G.R, No. 7579tU, Januaty 2A,
2OO4).

2.2 2.3

The lack of verification in a letter<omplalnt may be waived, the defect not bint fatal. Verification is a formal, not jurisdictlonal requisite (./oson vs. Torr*, G.R. No. 131255, Mdy 20, 1998),

Under Section 61 of the 1991 LGC, a complaint against any elective offichl of a municipality shall be filed befiore lhe songguniang panlalawigon whose decision may be appealed to the Office of the
Presldent (Borindo ng vs. Dacolos, G.R. No, 158874 November 7O,20An).

2,4 -

The voting following the deliberation of the members of lhe songgunion In administrative cases does not @nttitute the decision unless this was embodied in an opinion prepared by one of them and concured in by ttre

majorlty, Until they have signed the opinlon and the decision is promulgated, the councllbrs are free to chinge thelr votes: No notibe of the sesslon where a decision of lhe sanggunlai is to be promulgated on the admlnistrative case is rcquird to bd glven to the anymperson' The dellberatlon of the sdoggunlan ls.an lnternal malr (Malinoo vs. Reyes,
G.R. No. 717678, Morch 29, 1996),

Revlciver on Local Govammcnt Law Alberto c, Agra, At nlo L.wsdtool

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dnft

as

of 10 November2012

Pendltles

1.

Only the courb can rmove a local elective official.

1.1
. The Rules and Regulations

lmplementing the 1991.1GC, insofar as it vests power on the "disciplining authorM to remove from office ering elective local officials, is void. Local legislative bodids and/or the Office of . the President on appeal cannot validly impose the penalty of dismissal from servhe on erring elective local officials, .lt is beyond cavil that the pow. r to remove erring elective local oftcials from service is lodged exdluslvely wlth the awTs (Pablim vs. Vttlopondo, G.R. No. 747870, luty 37,2U)2);

L,2

'

'fhe sangguniong bayan Is not empowered to remove an elective local offlcial fom office. Section 6O oJ the 1991 LGC conferred o(clusivefi on the courts such po/lrer. Thus, ff the acts allegedly bommitted by a barangay official are of a grave natuG and, f found gullty, would merlt the'penalty of removal from offlce, the case should be filed with the regional trial court (Sangguntong Baronggy of Don Martono Mdrcos, Bayombong vs. Punong Borongay Mortlnez, G.R. No. 77626, Marci 3, 2N8).
A sanggunlang panhlawlgan may cause the Femoval of a municipal mayor who d id not appeal to the Office bf the Presideht with in the reglementary

pefiod the decision removing him/her from office (Reyes vs. Comeleq G.R. No.720905, Morch 7,7996).

The President may suspend an erring provlnclal elected official who committed several administrative offenses for an aggregate period cxcedlng six inonths provided that each administntive offunse, the perlod of s-uspension does not exced the 6-month limit /solatirno vs.
Guingono, 6..R. No. 717589:92, Moy 22, 79tt6).

Prcventtve Suspenslon

1.

Preventfue suspension is merely a preventfue measure, a preliminary step in an adminlstratlve invcstEatbn. This is not a penalty.

Revlc\icr on Loc.l Gdcmircnt Law Alberto C. A8ra, Ateneo Law Sdrool

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draftrsof

10 No\rcmber 2012

The purpose of the suspension order is to prevent the accused from using his/her position and the powers and prerogatives of hls/her office to influence potentlal witnesses or tamper with records whhh may be vital in the prosecution of the case against hlm/her.lf after suc( investigation, the cfrarge is established and the person investigated ls found guilty of acts warranting his/her suspension or removal, then he/she ls suspended, removed or dismissed. This is the penalty. Not being a penalty, the perlod whhln whlch ohe is under preventfue suspension is not considered part of the actJal penatty of suspension. Thus, service ofthe preventive suspension cannot be credited as servlce of pen alty (Quimbo vs. Geruocio, G.R. No. 755620, August 09, 2@5).
3. A pGventive suspension riray be.imposd by the disciplinary authority at any time: (1) after the tssues are joined, i.e., responderit has filed an ansiwec (2) when the evldence of gulh ls siong; and (3) gfuen thi gi'avlty of the offunses, there is great

probability that the respondent, who continues to hold office, could influence the witnesses or pose a threat to the safety and integrity of the records and other evldence. These are the pre-requisites. However, the failure of respondent to tile his/her answer despite several opportunitles given him/her Is construed as a waiver of his/her rfiht to present evldence ln hls/her behaff. ln this situation, a preventive suspension may be lmposed even if an answer.has not been frled (loson vs. Court of Appeols, G.R: No,760652, Februory 73, 2006).

3.1

The rule under the Ombudsman Act of 1989 is different. Ombudsrmn Act of 1989 does not require that notice and hearlng precede the preventive

. 3.2

suspension of an erring official, Only two requishes must concur to render the preventive suspension order valid, Fi6t, ther must a prior determinatlon by the Ombudsman that the evidence of respondent's . guih ls strong, Second. (1) the offunse charged must lnvolve dishonesty, opprcssbn, grave misconduct or neghct in the performance of dug; (21 . thc chiges would warrant removal from tha service; or (3) the respondent's cqntlnued stay in the office may FnJudice the case filed agalnst hlm (turcibeo vs. Coutt ol Appeals, 6.n. ,Vos, 178W/.778OO3, DecP-,mbei 4, 2009).
Sectlon 63 of the 1991 lGC whlch provldes for a 60day maximum period for prventfue suspenslon for a slngh offense does not govern preventfue s$penslons imposed by the Ombudsman. Under the Ombudsman Act . the prrventive suspensioh shall contlnue untll the case ls terminated by

Revlcwar on tocal G6/rn[rGnt lew Alberto C. Agrr, Atcnco lewsdrool

7l

draft as of 10 November2ol2

the ffice of the Ombudsman but not more than slx months (Mironda vs. Sandigonboyan, G.R. No. 754098, July 27, 2@5).

3.3

Under the 1$1 LGC, a single preventive suspenslon. of local electfue officlals should not go beyond 50 days. Thus, the Sandiganbayan cannot prwentively suspend a mayor for 90 days (8ios vs. Sandiganboyan, G.R, 'No: 729973 September 25, 7997).

4.

Direct recounse to the courts wlthout exhaustlng admlnlstrative remedies is not permitted. Thus, a mayor ulho claims that the imposttion of preientive suspension by the governor was unjusdfled and .politlcally motlvated, should seek relief first from the Secretary of ttre lntericr and tocal Gorremment, not from the cotirts (Espirltu vs. Mcbar, G.R. No. 7d)874, Februory 73,7992).

4.1 A

munlclpal ' offfcial placed under . prcvndve suspehsion by a songgunlang ponlalawigon must file a motion for reconslderation before the sald sanggunlan before filing a petitlon for certiorari with the Court.of Appeals {Flores vs. Sangguniong Panlolautigon of Pampango,6.R. No. 759022, Februo ry 23, 2cns ).

4,2 .

A municlpal mayor may file before the court of Appeals a petition for certiorari, lnstead of a petition for review assailing the decision of the Offfce of the President whlch reinstates the prventfue suspension order lssued by the prwincial govemor. The special civil action of certiorari is
propr to corrcct errors of jurisdiction including the commission of grave abuse of discretion amounting to lack'or excess of jurisdiction. Exhaustion of edminlstrative remedies may be dlspensed with whin pure questions of law are involved (loson vs. Court ol Apryob,6.8. No. 760652, Februory 13,2@6).

EltedolRe+hc,;ba

1.

An administEtive case has become moot and academic as a result of the expiration of term of officc of an elective local official during whlch the act complained of was allegedly committed. Prpceedings against respondent are therefor barred by his/her re+lectlon (Molinao 6. Reyes, 6.R. No. 777678, Morch 29, 1996).

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Alberto C. Agr., Atrnco lrw sdlool

draft as of

1O

November2Ol2

1.1

'

A reelected local official may not be held administratively accountable

for

mlsconduct committed during his/her prior term of office. The rationale for this holding ls that when the electorate put him/her back into office, it is presumed that it did so with full knowledge of his/her life and

character, including his/her past misconduct. lf, armed with such knowledge, it stlll reelects himr/her, then such reelection is consilered a condonatlon of his/her past misdeeds (Volenclo vs. Sondiganboyan, G.R. ' No. 7473i6, tune 29, 2OM)
7.2

adminlstraiivE. misconduct commttbd during.a prior term sin& his/her re+lectbn to office operats as a condonation. To do otherwise would be to deprfue the people of their riaht to elect their offhers. When the people have elected a pe6on to office, lt must be assumed that they did this with knowledge of his/her life and character that they disregarded or foryave his/her fault, if he/she had been guilty of ahy (Solalima w. Guingona, 6.R. No. 777589-92, May 22,1996).
The electorate's condonatlon of the ptvlous administrative infractions

A public official cannot be removed for

reelected officlals cannot bc extended to that of, reeppointed coterminous employees; ln the latter's case, thele is neither subvenlon of the sorereign will nor disenfranchisement of the electorate to speak of. lt ls the populace's will, not the whlm of the appointlnt authority, that could extinguish.an administrative liability /So/umbides vs. ffice oJ the Ombudsmon, G.R. No.78U)77, April 23, 2010).

of

Part 7. PEOPTE,S PARTIOPANON

Venu* lor tupulor fuftld.pot on

1.

There ane seven venues by which ordinary cltizens, non-governmental and people's bGanizations can particlpate in local govemance. These are: (i) local spechl bod ies; (2) prior mandatory consuttation; (3) recall; (4! disciplinary actlon; (5) initiitive and referendum; (6) sectoral reprsentation; and (7) partnership and assistance.

Prlo r M ondototy Consultotlon

Alberto

Rerrlerier on tocal Govdrmcnt Lrw C. Agra, Atenco law Sdrool

73

draft as of 10 November 2012

1.

Prior to the lmplomentation of national projects, the prior approval by the LGU and prior consultation wlth afrected sectors are reguked fsectfons ond 27,7997 LGC).

1.1 . .

The grant of an Environmental Clearance Certificate by the Departmeni of Environment and Natural Resources in favor of National Power Corporation of the construction of a mooring facility does not violate Sections 26 and 27 of the 1991 LGC. The mooring facility itself is not environmentally critical and hence does not belong to any of the six types of projects mentloned in the law. The projects and Programs mentioned ln section 27 should be interpreted to man projects and programs whose effects are among those enumerated in secdons 26 and 27, to wit those that (1) may cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable resources; (4) may resuh in loss of crbp land, nngeland, or forest core4 (5) may endicate certain animal or plant species; and (5) other project! or trograms that may call for the eviction of a particular group of people residing in the locality where these will be implemented. lt is another matter lf the operation of the power barge ii at issue (Bahgus Fry Fisherfolk Diwato Mogbuhos vs, Lanzanas, G.R. No. 737442, tuly 10, 2@3),

L.2

The 1991 LGC requires conference with the affucted communities of a government project. Thus, before the National Power Corporation energlzes and transmits high vohage electric cunent through its cables in connection with Poyrer Trinsmission iroject which could cause illnesses, the tequirements set fprth in Section 27 of the 1991 LGC must be followed (Hemondez vs. Notional Power Corpomtion, G.R. No. 145328'
Morch

2j,2aod

1.3 . .

Undet the 1991 LGg two requisites must be met before a national prirjcct that affects the environmental and ecological balance of local communities can be implemented: prior consultatlon with the affected local communitiei, and prior approval of the project by the appropriate songgunldn. Absent either of thesi mandabry requirements, the

projec(s implementation is. illegal. The establishment of a dumpslte/landflll by the national govemment and the Metropolltan Manila Development Authority requires conipliance with these
requirements (Province of Rhot vs. Executive Seaatary, G.R. No. 129546, December 73, 2@5).

Revlcier on
Alberto
C.

Local

Grycmmmt law

74

Agr., Atenco L.w Sdtool

draft as of 10 November2012

1.4 .

The requirement of prior consultation and approval under Sections 2(c) and 27 ofthe 1991 LGC applies only to national programs and/or pojects whhh are to bi implembnted in a particular local community. Lotto is netther a program nor a project of the. national govemment, but of a charftable institution, the Philippine Charity Sweepstakes Offce. Though sanctioned by the national govemment, it is far-fetched to say that lotto falfs within the contemplation of the law (Lina, h. vs. Pofio, G.R. No. 729O93, August 30, 2001).

nitiqtive o nd Relerti ndu m

The voters have the power of initiative and referendum.

1.

1.1 L.2 1.3

Locel initlative is the legal process whereby the registered voters of an LGU may directly propose, enact, or amend any ordinance (section 720, 1991 LGC).

local refurendum is the legal process whereby the registered voters of the LGUs may appbve, amend or reject any ordinance enacted by the
songgunlan

(*ctton 726, 7997 LGC).

.
1,,4

lnitiative is resorted to or initiated by the people directly either because the lawfiaking body fails or refuses to enact thi law, ordinance, resolution or act that they desire oi because they want to amend or modify on already existlng. On the other hand. in a local refurendum, the hw+naking body submits to the registered voters of its territorial Jurisdktion, for approval or rejection, any ordinance or resolution which ls duly enacted or. approved by such law-making authority (Sublc Bay Metroptthn Authority vs. Comelec, 6.R. /Vo. 725476, September 26,
1996).

The application of local inhiatives extends to all subjects or matters which

'are within the legal powers of the songguntons to enact, which undoubbdly includes ordlnances and resolutions (6arcia vs. Comelec,
G.R,

No.777230, September 30, 7994),

Loco,l Speclal Eodtes

Rcvlcvier on LocalGovcmmcntt w

75

Alberto

C.

Agr., Atanco L.w Sdrool

draft as of 10 November 2012

1.

The local spechl bodies are the dwelopment councili (section 7O6, 1991 LCC), school boards (scctton 98, 1991 LGCI, hcalth boards (Section tOZ, t991 LGC), peace and order counclls (Section 116, 1991 LGC), and peopli's law enforcemerit boards (R.A. No. 6975). People's and nongwemmental organizations are represented in
these bodies.

Pa nnerships

qnd Asslst,,nce

1.

Local governments shall pmmote the establishment and operation of people's and

nonovemmental orBanlzations to become active partners in the pursuit of local autonomy. Local governments may provide assistance to, financial or othenrise, and may enter into partnership and eooperative arrangements with civil society groups, nonovemmental and people's organizations (Sectfons 34 -36, 1991 LGC).

Recalt

1.

The power of recall or the power to nemove a local elective offibial for loss of confldence shall be xerclsed by the rglstered voters of an LGU to whbh the local elective official subject to such recall belongs (Sedion 69, 1997 LAq.

. t.l .

Recall ls a mode of removal of public officer by the people before the end

of his/her term of office, The people's prerogative to remove a public

officer ls an incident of their soverelgn power and in the absence of any Constltutional restraint, the power is implied in all governmental operations. Loss of confiden6e as a ground for recall is a political question (Garda vs, Comelec, G.R. No. 777577, October 5,7993).

1,2 . 1.3

The 1-year ban. refers to election uihere the. ofrlce held by the local official sought to be recalled shall be contested. The scheduled barangay election on May 1997 ls not the regular election contemplated for purposes of computlng the l-year irohibiffon' for recall of municipal elective officials (lorlol vs. @meleg G.R. No, 727456, Morch 20, 1997).

The f-iear ban cannot be deemed to apply to the entire recall procedings. The limitations apply only to the exerclse of the power of
rccall which is vested in the registered voterc. So, as long as the election

Rerrle*er m locrl Gorcmmrnt Law Alberto C. Agra, Atcnco Lrw Sdrool

75

dnftas of

10 Novembr 2012

is heH outsidi the one-year period, fnom assumption to office the &rcal official sought to be recalled, the prcliminary proceedings to initiate a recall can pe held even before the end of the first year in office of sald local offrclal (Claudio vs. Comeleq G.R. No. 740560, Moy 4, 2000).

1.4 '

A party aggrieved by the issuance of a Commission on Election resolution

plovuing for the schedule of activities for the recall of elective offtcials should have filed, when he/she had suffictent tlme, a motion fior reconslderatlon with the Commlsslon pursuant to the rule on exhaustlon of administrative remedies (larlol vs, Comelec, 6.R. IVo. 727456, March
20,1997).

2.

Under the 1991 LGC, therc are two modes of initiating recall: (1) popular petition by the votars; (2) resolution by the Preparatory Recall Assembly composed of elective officials of the supervised-lower LGU. Under R.A.. No. 92M, the second mode was repealed.

Sectorol Reprclnt,/ryes

1.

There shall be three sectoral representatfues in the pnovlncial, city and municipal legiilative councils. ln addiUon to the reEular members, there shall be one (1) sectoral reprsentatlve from the women, one (1) from the workers, and one (1) from any of the following sectors: the urban poor, indigenous cultural communities, disabled persons, or any other sector as may be determined by the sanggun'an concemed withln nlnety (90) days prlor to the holding of the next local elections as may be provided for by law (section 47,1991LGC),

.1.1

Sectlon 9 of the 1987 Phlllppine Constitution .prptide3 that 'legislative bodies of local.gorernment.shall have sectoral repre3entation as may be prescribcd by lau/'. The phnse "as may be prescrlbd by lar/' does not and cannot, by its very wording, restrict ltself to the uncertainty of future

legisiatlon. Such lnterpretatlon would. defeat the very purpose ot immediately including sectoral iepresentatlves in the local law-making bodles. Ottrerwlse, ln the interegnum, fmm the ratification of the Constitutlon untll the passage of the approprlate sEtute, the sectors would have no voice in the formulation of legislation that would directly affect thck lndlvidual members (Suparlf/on vs. Sontos, 6.R. No. U663,
August 21, 1990).

Reviewer on Local

Alberto

C.

AgR,

Govmmcit law At nco LrwSdrool

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