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Introduction
A. Constitutional Basis -- Article X, 1987 Constitution
B. Innovations in the law on local governments introduced by the Local Government Code of 1991
(1) Devolution of basic services (e.g. health, environment, etc.) to LGUs; (2) Increase of financial resources available to LGUs; (3) Devolution of responsibility for enforcement of certain regulatory powers (e.g. reclassification of agricultural lands); (4) Legal infrastructure for participation of NGOs and POs in the process of governance
Local autonomy:
power of LGUs to decide for themselves on certain matters without need for clearance or approval by the national government devolution of national administration (not power) from the national government to the LGUs flow of autonomy from the national government towards regional agencies act by which the national government confers power and authority upon the various LGUs to perform specific functions and responsibilities (LGC Sec. 17) the transfer of power and authority from the National Government to LGUs to enable them to perform specific functions and responsibilities (Art. 24, IRR of the LGC)
Abdication of political power in favor of LGUs declared to be autonomous. In this case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. (Limbona v. Mangelin) Autonomous regions
(2) Consultations LGC Sec. 2(c): It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate LGUs, NGOs and POs, and other concerned
sectors of the community before any project or program is implemented in their respective jurisdictions.
to consult with the LGUs, NGOs, and other sectors concerned and explain: the goals and objectives of the project or program; its impact upon the people and the community in terms of environmental or ecological balance; and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
No project or program shall be implemented by government authorities unless: (1) the consultations mentioned above are complied with; and (2) prior approval of the sanggunian concerned is obtained.
Note: Occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the Constitution. Comment: Memorandum Circular No. 52 (1993) provides that all offices and employees of national government agencies and offices including GOCCs must strictly comply with the LGC provisions on consultation. However, there are no penalties for such breach. Question is: what are the remedies of the LGC if the consultation requirements are not complied with?
(3) Scope of application The LGC shall apply to all provinces, cities, municipalities, barangays, and other political subdivisions as may be created by law, and, to the extent herein provided, to officials, offices, or agencies of the national government. (LGC Sec. 4) (4) Merger of administrative regions Administrative regions are mere groupings of contiguous provinces for administrative purposes, not for political representation. (Chiongbian v. Orbos) While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the
(5) Rules of interpretation Provision on power of LGU: Liberally interpreted in its favor. In case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the LGU. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the LGU concerned.
Tax ordinance / revenue measure: Construed strictly against the enacting LGU, and liberally in favor of the taxpayer. Tax exemption, incentive, Construed strictly against the person relief granted pursuant to LGC: claiming it. General welfare provisions: Liberally interpreted to give more power to LGUs in accelerating economic development and upgrading the quality of life for people in the community. Customs and traditions in the place where the controversy takes place may be resorted to.
Where there is a controversy arising under the LGC and there is no applicable legal provision or jurisprudence:
Who may create, divide, merge, abolish, or substantially alter boundaries of LGUs?
Congress Sangguniang Panglungsod or Panlalawigan : province, city or municipality : barangay*
*Note: Recommendation of sangguniang bayan is necessary. (LGC 385)
In both instances, there must be a plebiscite called for the purpose in the political unit or units directly affected. [This is to prevent gerrymandering (i.e., the practice of
creating legislative districts to favor a particular candidate or party) and the creation or abolition of units for purely political purposes.]
*Where a plebiscite was held with its principal subject being the conversion of the municipality of Mandaluyong into a highly-urbanized city and the matter of separate district representation being merely ancillary thereto, the Supreme Court held that the exclusion of the inhabitants of San Juan (who belonged to the same congressional district as Mandaluyong) from the plebiscite was proper. (Tobias v. Abalos) Notes:
Can a statute lend color of validity to an attempted organization of a municipality despite the fact that such statute is subsequently declared unconstitutional? In the absence of another valid statute to give color of authority to its creation, the organization of the municipality under such unconstitutional statute is invalid, and the municipality cannot be considered as a de facto corporation. In the case of Municipality of Malabang v. Benito, the Supreme Court held that EO 386 (creating the municipality of Balabagan out of the barrios & sitios of Malabang, Lanao del Sur) was unconstitutional. The mere fact that Balabagan was organzied at a time when the statute had not been invalidated could not make it a de facto corporation, as, independently of the applicable Administrative Code provisions, there was no other valid statute to give color of authority to its creation. However, even though the municipality of Balabagan could not be considered a de facto corporation, this did not mean that the acts done by it in the exercise of its corporate power were a nullity. The Court pointed out that the existence of EO 386 was an operative fact which could not justly be ignored. Thus, the invalidation of the EO would not unsettle the acts done in reliance of the validity of the creation of the municipality. (2) Political and corporate nature of LGUs
Lidasan v. COMELEC
Instrumentality of the State in carrying out the functions of government Administering powers of the state, and promotion of the public welfare
Torio v. Fontanilla
Exercising powers for the special benefit and advantage of the community Can be held liable ex contractu or ex delicto
rd
No liability provided that duties were performed honestly and in good faith, and they did not act wantonly or maliciously (Torio v. Fontanilla)
Respondeat superior
What powers do LGUs have under the general welfare clause of the LGC?
(1) Powers expressly granted to the LGU; (2) Those powers necessarily implied therefrom; (3) Powers necessary, appropriate, or incidental for its efficient and effective governance; and (4) Those powers which are essential to the promotion of the general welfare. (LGC Sec. 16)
Notes:
A resolution confirming / ratifying a Burial Assistance Program extending financial assistance to bereaved families (Binay v. Domingo) A zoning ordinance which declares an area as a commercial zone and regulates the location of funeral homes therein (Patalinghug v. CA)
Abatement of nuisances
Comment: Secs. 447 and 458 of the LGC grant the Sangguniang Bayan and Sangguniang Panlungsod, respectively, the power to declare, prevent or abate any nuisance. The provisions of the Code do not make a distinction between nuisance per se and nuisance per accidens, thus creating a presumption that LGUs can abate all kinds of nuisances without need of a judicial order. However, the jurisprudence holds that LGUs can abate extrajudicially only nuisances per se. How should this discrepancy be reconciled?
What are the basic services and facilities which LGUs must provide to their constituents?
BARANGAY Agricultural support services MUNICIPALITY Agriculture and fishery extension and on-site research services and facilities PROVINCE Agricultural extension and on-site research services and facilities; organization of farmers and fishermens cooperatives Health services, including hospitals and tertiary health services CITY See municipality and province
Health services
Same
Same, including rebel returnees and evacuees, relief operations, population devt services
Same
See municipality and province Similar to those for municipality See municipality and province
Infrastructure facilities (e.g. plaza multi-purpose hall) Information and reading center
School buildings
See municipality and province See municipality and province Tourism development and promotion programs Same See municipality and province
Public cemetery
Tourism facilities
See municipality and province See municipality and province See municipality and province See municipality and province Adequate communication and transportation facilities
Industrial research and development services Low-cost housing and other mass dwellings Investment support services Inter-municipal telecommunication services
What are the powers granted to LGUs under Sec. 18 of the LGC?
Under this provision, LGUs have the power and authority to: (1) establish an organization that shall be responsible for the efficient and effective implementation of their development plans, program objectives and priorities;
What are the requisites for the exercise of eminent domain by LGUs?
(1) Exercised by the chief executive; (2) Pursuant to an ordinance; (3) For public use, or purpose, or welfare for the benefit of the poor and the landless; (4) Upon payment of just compensation (based on the fair market value at the time of the taking, not at the time of payment); (5) Valid and definite offer had previously been made to the owner, and such offer was not accepted. (LGC Sec. 19)
5%
Definition
Act of specifying how agricultural land shall be utilized for nonagricultural uses such as residential, industrial, commercial as embodied in the land use plan subject to the requirements and procedure for conversion. It also includes the reversion of non-agricultural lands to agricultural use. (Joint HLURB, DAR, DA, DILG Memo-Circular, s. 1995)
Delineation of a city / municipality into functional zones where only specified land uses are allowed. It directs and regulates the use of all lands in the community in accordance with an approved or adopted land use plan for the city / municipality.
Socialized housing: refers to housing programs and projects covering houses and lots or homelots only undertaken by the government or the private sector for the underprivileged and homeless citizens which shall include sites and services developments, long-term financing, liberalized terms on interest payments, and such other benefits in accordance with RA 7279.
What are the priorities in the acquisition of lands for socialized housing?
(1) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including GOCCs and their subsidiaries; (2) Alienable lands of the public domain;
What are the requisites for entering into a contact by the LGU? (Sec. 22c) Differentiate public from private / patrimonial property.
Differentiate between suability and liability. Can the doctrine of estoppel be applied against municipal corporations? Governmental v. proprietary functions.
What is the nature of the power of the Secretary of Justice to review the constitutionality or legality of tax ordinances and revenue measures? The power granted by Sec. 187 of the Local Government Code to the Secretary of Justice to review the constitutionality or legality of tax ordinances and revenue measures is a mere act of supervision and not of control. The Secretary of Justice is not permitted to submitted his own judgment for the judgment of the local government that enacted the measure. (Drilon v. Lim)
Law on Local Government 14 Prof. Dan Gatmaytan, 1st semester, AY 1999-2000 What is the doctrine of qualified political agency?
All executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless, disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (De Leon v. Carpio, as quoted in Carpio v. Executive Secretary)
What is the extent of operational supervision and control of local chief executives over the Philippine National Police?
PROVINCIAL GOVERNOR: Shall choose the provincial director from a list of 3 eligibles recommended by the PNP regional director; Chairman of the provincial peace and order council; shall oversee the implementation of the provincial public safety plan (RA 6975, Sec. 51 (a)) Deputized agent of the National Police Commission in his jurisdiction. As such, he can inspect police forces and units, conduct audit, and exercise other functions as authorized by the Commission. (RA 8551, Sec. 64)
*NOTE: Unless reversed by the President, this deputation may be suspended or withdrawn by the National Police Commission, upon consultation with the provincial governor and congressman concerned, for any of the following grounds: (a) Frequent unauthorized absences; (b) Abuse of authority; (c) Providing material support to criminal elements; or (d) Engaging in acts inimical to national security or which negate the effectiveness of the peace and order campaign. Upon good cause shown, the President may, directly or through the Commission, motu proprio restore such deputation withdrawn. (RA 8551, Sec. 65)
CITY AND MUNICIPAL MAYORS: Shall exercise operational supervision and control* over PNP units in their respective jurisdictions, except during the 30-day period immediately preceding and following any national, local or barangay elections. (RA 6975 Sec. 51 (b), as amended by RA 8551)
* the power to direct, superintend, and oversee the day-to-day functions of police investigation of crime, crime prevention activities, and traffic control in accordance with the rules and regulations promulgated by the National Police Commission. It likewise includes the power to employ and deploy units or elements of the PNP.
Have the power to impose, after due notice and summary hearings, disciplinary penalties for minor offenses* committed by members of the PNP assigned to their respective jurisdictions
* Offenses punishable by withholding of privileges, restriction to specified limits, suspension or forfeiture of salary, or any combination thereof for a period of 16-30 days. (RA 6975, Sec. 41 (a) (2))
Have the authority to choose the Chief of Police from a list of 5 eligibles recommended by the provincial police director; May recommend the recall or reassignment of the Chief of Police when, in the perception of the local peace and order council, such Chief of Police has been ineffective in combating crime or maintaining peace and order in the city or municipality Have the authority to recommend to the provincial director the transfer, reassignment, or detail of PNP members outside of their respective city or town residences; Have the authority to recommend the appointment of new members of the PNP to be assigned to their respective cities from a list of eligibles previously screened by the peace and order council or municipalities Have control and supervision over anti-gambling operations (RA 6975, Sec. 51 (b) (4), as amended by RA 8551) Deputized agents of the National Police Commission(NAPOLCOM) in his jurisdiction. As such, they can inspect police forces and units, conduct audit, and exercise other functions as authorized by the Commission. (RA 8551, Sec. 64)
*Unless reversed by the President, this deputation may be suspended or withdrawn by the NAPOLCOM, upon consultation with the provincial governor and congressman concerned, for any of the following grounds: (a) Frequent unauthorized absences; (b) Abuse of authority; (c) Providing material support to criminal elements; or (d) Engaging in acts inimical to national security or which negate the effectiveness of the peace and order campaign. Upon good cause shown, the President may, directly or through the Commission, motu proprio restore such deputation withdrawn. (RA 8551, Sec. 65)
Is the deputization of municipal and city mayors as agents of the NAPOLCOM a usurpation of the power of control of the NAPOLCOM over the PNP? No. There is no usurpation of the power of control of the NAPOLCOM under Section 51 of RA 6975 because under this very same provision, it is clear that the local executives are only acting as representatives of the NAPOLCOM. As
What is the nature of the relationship of the province and the cities and municipalities within its territorial jurisdiction?
Component cities / municipalities: Province, through the governor, shall ensure that the city / municipality acts within the scope of its prescribed powers and functions.
Notes: Copies of the EOs must be forwarded to the proper reviewing authority within 3 days from their issuance. In all instances of review, the local chief executive concerned shall ensure that such EOs are within the powers granted by law and in conformity with provincial, city or municipal ordinances. If the reviewing authority fails to act on said EOs within 30 days after their submission, they shall be deemed consistent with law and therefore valid.
(b) Mayor / Vice-mayor of independent component | cities, component cities or municipalities | (c) Member of sangguniang panglungsod or bayan | Punong barangay, member of sangguniang | barangay (d) Candidates for sangguniang kabataan
At least 21 years old on election day At least 18 years old on election day
At least 15 years old but not more than 21 years old on election day
B. Disqualifications
What are the grounds for disqualification under the Local Government Code?
(1) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence (LGC Sec. 40 (a)); As a general rule, crimes mala in se involve moral turpitude, while crimes mala prohibita do not. In the final analysis, however, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of a statute. (Dela Torre v. COMELEC) Fencing is a crime involving moral turpitude: actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude. (Dela Torre v. COMELEC) Probation only suspends the execution of the sentence. It does not suspend the applicability of the disqualification. (Dela Torre v. COMELEC)
(2) Those removed from office as a result of an administrative case (LGC Sec. 40(b)); To be valid, a decision in administrative cases involving local elective officials rendered by the Sanggunian must : (a) be in writing; (b) state the facts and the law on which it was based; and
(5) Fugitives from justice in criminal or nonpolitical cases here or abroad (LGC Sec. 40 (e)); Art. 73 of the IRR of the LGC is an inordinate and undue circumscription of the law to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." (Marquez v. COMELEC) The term "fugitive from justice" includes not only those who flee after conviction to avoid punishment, but likewise those who, after being charged, flee to avoid prosecution. (Rodriguez v. COMELEC) The intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment where there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction. Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction, or at least a charge had been filed, at the time of flight. (Rodriguez v. COMELEC)
(6) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of the Local Government Code (LGC Sec. 40 (f)); Sec. 68 of the Omnibus Election Code (BP 881) provides that "any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for an elective office under such Code unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws."
(b) Voluntary renunciation (Dimaporo v. Mitra) (c) Service for 3 consecutive terms in the same position (LGC Sec. 43 (b)) The term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served 3 consecutive terms in an elective local office. He must also have been elected to the same position for the same number of times before the disqualification can apply. (Borja v. COMELEC)
What are the recognized "good reasons" for execution pending appeal in election cases?
(1) public interest involved or the will of the electorate; (2) shortness of the remaining portion of the term of the contested office; and (3) length of time that the election contest has been pending. (Ramas v. COMELEC)
E. Local legislation
Who exercises local legislative power?
LGU
Province City Municipality Barangay
Presiding Officer*
Vice-Governor City Vice-Mayor Municipal Vice-Mayor Punong Barangay
* The presiding officer shall vote only to break a tie. (LGC Sec. 49 (a))
*In this case, the veto shall not affect the item /s not objected to.
Grounds:
F. Judicial intervention
G. Disciplinary actions
Differentiate preventive suspension of elective local government officials under the Local Government Code and under the Ombudsman Act (RA 6770):
Local Government Code (RA 7160) Grounds When evidence of guilt is strong, and given the gravity of the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence. (Sec. 63) Ombudsman Act (RA 6770) When evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may prejudice the case filed against him. (Sec. 24) Ombudsman or his Deputy
President, governor, or mayor, as the case may be Maximum of 60 days for any single preventive suspension If several administrative cases are filed, suspension shall not be more than 90 days within a single year on the same ground or grounds existing and known at the time of the first suspension.
Until case is terminated by Office of Ombudsman, but not more than 6 months Exception: When the delay in the disposition of the case by the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension.
What are the grounds for disciplinary actions? What is the procedure for administrative complaints? What are the requisites for the validity of decisions in administrative complaints rendered by the pertinent Sanggunian?
(1) The decision must be in writing; (2) It must state clearly and distinctly the facts and the reasons for such decision; (3) It must be signed by the members taking part in the decision. (Malinao v. Reyes)
H. Recall
Definition
Nature
By whom exercised
Ground
How initiated
Election on Recall
Effectivity
Limitations
J. Practice of Profession
Practice of profession Who is authorized by law to be counsel of LGUs?
(1) Provincial fiscal; (2) Provincial attorney; (3) Municipal attorney
Test as to when a local government official can secure the services of private counsel: Nature of the action and the relief that is sought (Alinsug v. RTC Branch 58)
Procedure
A. Taxation in General
What is the doctrine of supremacy of the national government over local governments in the context of taxation? What is the rule concerning taxing powers of LGUs vis--vis the national government?
GENERAL RULE: The taxing powers of LGUs cannot extend to the levy of taxes, fees and charges of any kind on the National government, its agencies and instrumentalities and LGUs. (LGC 133) Exception: Real property taxes (LGC 232) (LGC 234)
Exception to exception:
GROUND
PERIOD
I.
The Barangay
A. Katarungay Pambarangay B. Sangguniang Kabataan
II.
The Municipality
III.
The City
IV.
The Province
V.
Appointive Local Officials common to all municipalities, cities, and provinces Leagues of LGUs and elective officials
VI.
I.
II.
Transitory provisions
III.
IV.