Академический Документы
Профессиональный Документы
Культура Документы
GOVERNMENT UNIT
I.
Corporation
Public Corporation
Classes of Corporations
Local Autonomy
In constitutional sense, it means to polarize Local Government Units
from over dependence of central government. Local Government Units
(LGUs)have certain powers given by the Constitution which may not be
curtailed by the national government, but outside of these, local
governments may not pass ordinances contrary to statute.
Kinds of Autonomy:
1. Decentralization of Administration- central government delegates
administrative powers to political subdivisions in order to broaden
the base of government power and in the process make LGUs more
responsive and accountable and ensure their fullest development
as self-reliant communities and make them effective partners in the
pursuit of national development and social progress.
2. Decentralization of Power- involves abdication of political power in
favor of LGUs declared autonomous and amounts to selfimmolation, because the autonomous region becomes accountable
not to the central authorities but to its constituency.
V.
Devolution
Is an act by which the national government confers power and
authority upon various LGUs to perform specific functions and
responsibilities.(LCG, Sec. 17, Par. E)
VI.
Declaration of Policy
1. Territory and subdivisions of the State shall enjoy genuine and
meaningful autonomy to enable then to attain fullest development and
make them more effective partners in attaining national goals.
2. Ensure accountability of LGUs through institution of effective
mechanisms of recall, initiative and referendum.
3. Require all national agencies and offices to conduct periodic
consultations with appropriate LGUs, NGOs and Peoples Organizations
(POs) and other concerned sector of the community before any project
or program is implemented in their respective jurisdictions. (Sec 2,
LGC)
VII.
VIII.
IX.
XI.
Conditions Precedent
for the Creation and Conversion
Municipal Corporation
1. Extent of the area proposed to be incorporated.
2. Nature of the territory.
3. Character of the land and the uses to which it may be devoted.
4. Number of inhabitants.
5. Destiny and location of the area to be incorporated.
XII.
of
The requirements for the division and merger of LGUs are the same as
those of their creation, provided that:
1. It shall not reduce the income, population or land area of LGUs
concerned to less than the minimum requirements prescribed;
2. The income classification of the original LGU shall not fall below its
current income classification prior to division;
3. A plebiscite be held in LGU affected;
4. The assets and liabilities of creation shall be equitably distributed
between the LGUs affected and new LGU. When a municipal district of
other territorial divisions is converted or fused into a municipality all
iv.
According to the case of National Power Corporation vsLleto, G.R. No. 171558
July 11,2012, the determination of just compensation in eminent domain
cases is a judicial function.
Under the Urban Development and Housing Act (Socialized Housing R.S.
7279), expropriation by an LGU for purposes of socialized housing projects shall
occur only as a last resort. It must be shown by the LGU that other methods of
acquisition have been exhausted: mortgage, land swapping, land consolidation,
donation, joint venture agreements, and negotiated purchase.
If all the other methods have been exhausted and expropriation to continue,
the Local Government Unit shall prioritize expropriation of property of:
a. Government Lands
b. Alienable public Lands
c. Abandoned lands
d. Areas for priority development
e. Unacquired BLISS sites
f. Private lands
Furthermore, small property landowners are similarly exempt from
expropriation for purposes of socialized housing, provided:
1. Those owners of real property which consist of residential lands within an
area of not more than 300sq meters in highly urbanized cities, and 800 in
other urban cities;
2. They do not own real property other than the same.
6. The revenue shall insure solely to the LGU, unless otherwise specified;
7. Each LGU shall, as far as practicable, evolve a progressive system of
taxation
8. Shall not be contrary to law, public policy, national economic policy, or in
restraint of trade.
Sources of Local Government Unit Funds
1. Own sources of revenue
2. Taxes, fees and charges which accrue exclusively for their use and
disposition
3. Just share in national taxes which shall be automatically and directly
released to themselves
4. Equitable share in the proceeds from utilization and development of
national wealth and resources within their territorial jurisdiction.
Common Limitations on Taxing Power (Section 133, Local
Government Code)
Unless otherwise provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy of
the following:
(a) Income tax, except when levied on banks and other financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis
causa, except as otherwise provided herein;
(d) Customs duties, registration fees of vessel and wharfage on wharves,
tonnage dues, and all other kinds of customs fees, charges and dues except
wharfage on wharves constructed and maintained by the local government
unit concerned;
(e) Taxes, fees and charges and other impositions upon goods carried into or
out of, or passing through, the territorial jurisdictions of local government
units in the guise of charges for wharfage, tolls for bridges or otherwise, or
other taxes, fees or charges in any form whatsoever upon such goods or
merchandise; (f) Taxes, fees or charges on agricultural and aquatic products
when sold by marginal farmers or fishermen; (g) Taxes on business
enterprises certified to by the Board of Investments as pioneer or non-pioneer
for a period of six (6) and four (4) years, respectively from the date of
registration;
(h) Excise taxes on articles enumerated under the National Internal Revenue
Code, as amended, and taxes, fees or charges on petroleum products;
(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or
similar transactions on goods or services except as otherwise provided
herein; (j) Taxes on the gross receipts of transportation contractors and
persons engaged in the transportation of passengers or freight by hire and
common carriers by air, land or water, except as provided in this Code;
(k) Taxes on premiums paid by way of reinsurance or retrocession;
(l) Taxes, fees or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, except
tricycles;
(m) Taxes, fees, or other charges on Philippine products actually exported,
except as otherwise provided herein; (n) Taxes, fees, or charges, on
Countryside and Barangay Business Enterprises and cooperatives duly
registered under R.A. No. 6810 and Republic Act Numbered Sixty-nine
hundred thirty-eight (R.A. No. 6938) otherwise known as the "Cooperatives
Code of the Philippines" respectively; and
(o) Taxes, fees or charges of any kind on the National Government , its
agencies and instrumentalities, and local government units.
Section 133 of the Local Government Code provides a limitation on the power
of a Local Government Unit to levy taxes, fees, or charges on the national
government, its agencies and instrumentalities, unless otherwise provided.
Section 234 on the other hand, grants Local Government Units the power to
impose real property tax on properties of the Republic of the Philippines and
its political subdivisions when its beneficial use is granted to a taxable
person.
Fundamental Principles on the Financial Affairs of a Local
Government Unit
(a) No money shall be paid out of the local treasury except in pursuance of an
appropriations ordinance or law;
(b) Local government funds and monies shall be spent solely for public
purposes;
(c) Local revenue is generated only from sources expressly authorized by law
or ordinance, and collection thereof shall at all times be acknowledged
properly;
(d) All monies officially received by a local government officer in any capacity
or on any occasion shall be accounted for as local funds, unless otherwise
provided by law;
(e) Trust funds in the local treasury shall not be paid out except in fulfillment
of the purpose for which the trust was created or the funds received;
(f) Every officer of the local government unit whose duties permit or require
the possession or custody of local funds shall be properly bonded, and such
officer shall be accountable and responsible for said funds and for the
safekeeping thereof in conformity with the provisions of law;
(g) Local governments shall formulate sound financial plans, and the local
budgets shall be based on functions, activities, and projects, in terms of
expected results; pment plans, goals, and strategies in order to optimize the
utilization of resources and to avoid duplication in the use of fiscal and
physical resources;
(i) Local budgets shall operationalize approved local development plans;
(j) Local government units shall ensure that their respective budgets
incorporate the requirements of their component units and provide for
equitable allocation of resources among these component units;
(k) National planning shall be based on local planning to ensure that the
needs and aspirations of the people as articulated by the local government
units in their respective local development plans are considered in the
formulation of budgets of national line agencies or offices;
(l) Fiscal responsibility shall be shared by all those exercising authority over
the financial affairs, transactions, and operations of the local government
units; and
(m) The local government unit shall endeavor to have a balanced budget in
each fiscal year of operation.
In the case of BascovsPagcor, 197 scra 52, Congress has the power of control
over local governments. If Congress can grant a municipal corporation the power
to tax certain maatters, it can also provide for exemptions or even take back the
power, xxx The power of local governments to impose taxes and fees is always
subject to limitations which Congress may provide by law xxx Local governments
have no power to tax instrumentalities of the National Government; PAGCOR
being an instrumentality of the National Government is therefore exempt from
local taxes.
IV. Basic Services and Facilities (Section 17, R.A.7160). Local Government
units shall endeavor to be self-reliant and shall continue exercising the powerrs and
discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this code.
The public works and infrastructure projects and other facilities, programs and
services funded by the national government under the General Appropriations Act
and other laws, are not covered under this section, except where the local
government unit is duly designated as the implementing agency for such projects,
facilities, programs and services.
V. Closure and Opening of Roads
(Section 21, R.A. 7160). A local
Government unit may, pursuant to an ordinace, permanently or temporarily close or
open any local road, alley, park, or square falling within its jurisdiction: Provided,
however, That in case of permanent closure, such ordinance must be approved by
at least two-thirds (2/3) of all the members of the sanggunian, and when necessary,
an adequate substitute for the public facility that is subject to closure is provided.
The requisites for temporary closure:
1. Via ordinance
2. May be done due to:
a. Actual Emergency
b. Fiesta celebrations
c. Public rallies
d. Agricultural or industrial fairs
e. Undertaking of public works and highways, telecommunications, and
waterworks projects
3. Duration of closure must be specifically stated in the order of closure
4. If for thepurpose of athlectic, cultural, or civil activites; these must be
officially sponsored, recognized, or approved by the local government.
The requisites for permanent closure:
1. Via Ordinance approved by at least two-thirds (2/3) of all members of the
Sanggunian
2. Such ordinance must have provisions for the maintenance of public safety
therein
3. Such property withdrawn may be used or conveyed for any purpose for which
other real property belonging to the local government may be lawfully used
or conveyed
4. When necessary, an adequate substitute for the public facility that is subject
to closure should be provided
5. If a freedom park is permanently closed, there must be a provision for its
transfer or relocation to a new site.
For closure by Cities, Municipalities and Barangays
1. Via ordinance
2. May temporarily close and regulate the use of any local street, road, or any
other public place
3. For shopping malls, Sunday flea, or night markets, or shopping areas for the
sale of goods, merchandise, foodstuffs and commodities.
1.
2.
GENERAL REQUIREMENT:
Exercised by (Sec. 48)
1. sangguniangpanlalawigan for the province
2. sangguniangpanlungsod for the city
3. sangguniangbayan for the municipality
4. sangguniang barangay for the barangay
CONSTITUTIONAL REQUIREMMENT:
1)
2)
3)
4)
5)
6)
it
it
it
it
it
it
must
must
must
must
must
must
The tests of a valid ordinance are well established. A long line of decisions has held
that to be valid, an ordinance must conform to the following substantive
requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
Presided by(sec. 49):
1.Vice-governor or vice-mayor or punong barangay hewill vote only in case of a
tie (because he is not a member of the Sanggunian Perez v. De la Cruz [1969])
2. Inability of the above: members present and constituting a quorum shall elect
from among themselves a temporary presiding officer
What is the effect of the enforcement of a disapproved ordinance or
resolution?
A: It shall be sufficient ground for the suspension or dismissal of the official or
employee (Sec. 58, R.A. 7160)
When is the effectivity of ordinances or resolutions?
A: GR: Within 10 days from the date a copy is posted in a bulletin board and in at
least 2 conspicuous spaces. (Sec. 59(a) R.A. 7160)
XPN: Unless otherwise stated in the ordinance or resolution. (Sec. 59(a) R.A. 7160)
What ordinances require publication for its effectivity
A:
1.
Ordinances that carry with them penal sanctions. (Sec. 59(c) R.A. 7160)
2.
Ordinances and resolutions passed by highly urbanized and independent
component cities. (Sec. 59(d) R.A. 7160)
What are the instances of approval of ordinances?
1. If the chief executive approves the same, affixing his signature on each and every
page thereof
2. If the local chief executive vetoes the same, and the veto is overridden by 2/3
vote of all members of the sanggunian.
Note: Local Chief Executive may veto the ordinance only once on the ground that
the ordinance is ultra viresand prejudicial to public welfare. The veto must be
communicated to the sanggunian within
a. 15 days = province
b. 10 days = city or municipality
Note: Local Chief Executive may veto the ordinance only once on the ground that
the ordinance is ultra viresand prejudicial to public welfare. The veto must be
communicated to the sanggunian within
a. 15 days = province
b. 10 days = city or municipality
Ordinances enacted by the sangguniang barangay shall, upon approval by the
majority of all its members, be signed by the punong barangay. (Sec. 54, LGC)
REVIEW OF ORDINANCES/RESOLUTIONS
Component
City
or Barangay Ordinances
Reviewed by
Furnish
ordinance
within
copies
of
or resolution
Period to examine/review
documents
Ground
to
invalidate
ordinance or resolution
Municipality
Ordinances
and Resolutions
SangguniangPanlalawigan SangguniangPanlungsod
or Sangguniang Bayan
3 days after approval of 10 days after enactment
ordinance or resolution of ALL ordinances
approving
the
local
devopment plans and
public
investment
programs formulated by
the local development
councils
30 days after receipt of 30 days after receipt of
copies, after which the copies, after which the
ordinance or resolution is ordinance is presumed
presumed valid if no valid if no action is taken
action is taken
within the 30 days, it may
also be transmitted to the
provincial
attorney
or
prosecutor
for
examination; said atty. or
prosecutor shall give his
written recommendations
within 10 days from
receipt of document
ordinance or resolution is ordinance is inconsistent
beyond
the
power with law and city or
conferred
upon
the municipal ordinances
Sanggunian concerned
in
such
case,
the
sangguniang
barangay
may adjust, amend or
modify
the
ordinance
within 30 days from
receipt
from
the
sangguniangpanlungsod
or sangguniangbayan
Judicial Intervention
RULES OF COURT, Rule 63
Section 4. Local Government Ordinances. In any action involving the validity of a
local government ordinance, the corresponding prosecutor or attorney of the local
government unit involved shall be similarly notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional, the Solicitor General shall also be
notified and entitled to be heard.
Perez v. De la Cruz, 27 SCRA 587 (1969)
The vice-mayor, as presiding officer of the sanggunian, may not vote to
create a tie, and then vote again to break the deadlock. This is because the
presiding officer is not a member of the sanggunian. Thus, he can only vote in case
of a tie. However, a member of the sanggunian acting as chairman may vote as a
member and as chairman, to break the tie.
Homeowners Association of the Phil., Inc. v. Municipal Board of City of Manila, 24
SCRA 856 (1968)
The failure of the Solicitor General to appear in the lower court to defend the
constitutionality of an ordinance is not fatal to the case. The determination of the
question of WON the Sol-Gen should be required to appear in any action involving
the validity of any treaty, law, executive order, rule or regulation is a matter left to
the discretion of the Court pursuant to the Rules of Court. Inasmuch as the said
requirement is not mandatory, but discretionary, non-compliance therewith affected
neither the jurisdiction of the trial court nor the validity of the proceedings therein.
Ortega vs. QC Government, GR 161400, September 2, 2005
Consti provides that SC may Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of Court may provide, final judgments
and orders of lower courts cases where the validity of an ordinance is questioned.
There must be a decision by an inferior court before the SC can assume jurisdiction.
Also, SC cannot have original jurisdiction over actions for declaratory relief. No
factual issues should be discussed by the Supreme Court
What is the quorum in the sanggunian?
A: A majority of all the members of the sanggunian who have been elected and
qualified. (Sec. 53(a) R.A. 7160)
SESSION:
1.
Regular sessions: fixed by resolution on 1st day of the session immediately
following the election of its members
2.
Minimum numbers of regular sessions: once a week (panlalawigan,
panlungsod, bayan) and twice a month for the sangguniang barangay
3.
Special session: may be called by the local chief executive or by a majority of
the members of the sanggunian
cause: when public interest demands
Written notice: served personally at the member's usual place of residence at
least 24 hours before the session
Unless otherwise concurred in by 2/3 vote of the sanggunian members present,
there being a quorum, no other matters may be considered except those stated in
the notice
o Open to the public
UNLESS a closed-door session is ordered by an affirmative vote of a majority of
the members present (there being a quorum)
in the public interest or for reasons of security, decency, or morality.
o No 2 sessions may be held in a single day
INITIATIVE AND REFERENDUM
INITIATIVE
The legal process whereby the registered voters of a LGU may directly propose,
enact or amend any ordinance. (Sec. 120 R.A. 7160)
REFERENDUM
The legal process whereby the registered voters of the LGU may approve, amend or
reject any ordinance enacted by the sanggunian. (Sec. 126 R.A. 7160)
Who may exercise all registered voters of the provinces, cities, municipalities
and barangays
Requirements
a.
referendum or initiative affecting a resolution or ordinance passed by the
legislative assembly of a province or city: petition must be signed by at least 10% of
the registered voters in the province or city, of which every legislative district must
be represented by at least 3% of the registered voters therein; Provided, however,
That if the province or city is composed only of 1 legislative district, then at least
each municipality in a province or each barangay in a city should be represented by
at least 3% of the registered voters therein.
b.
referendum or initiative on an ordinance passed in a municipality: petition
must be signed by at least 10% of the registered voters in the municipality, of which
every barangay is represented by at least 3% of the registered voters therein
c.
referendum or initiative on a barangay resolution or ordinance: must be
signed by at least 10% of the registered voters in said barangay
Procedure in Local Initiative
a.
not less than 1,000 registered in case of provinces and cities, 100 in case of
municipalities, and 50 in case of barangays, may file a petition with the local
legislative body, respectively, proposing the adoption, enactment, repeal, or
amendment, of any law, ordinance or resolution
b.
if no favorable action thereon is made by local legislative body within 30 days
from its presentation, the proponents through their duly authorized and registered
representative may invoke their power of initiative, giving notice thereof to the local
legislative body concerned
c.
2 or more propositions may be submitted in an initiative
d.
proponents shall have 90 days in case of provinces and cities, 60 days in case
of municipalities, and 30 days in case of barangays, from notice mentioned in
subsection (b) hereof to collect the required number of signatures
e.
the petition shall be signed before the Election Registrar, or his designated
representative, in the presence of a representative of the proponent, and a
representative of the regional assemblies and local legislative bodies concerned in a
public place in the LGU
f.
if the required number of the signatures is obtained, the COMELEC shall then
set a date for the initiative for approval of the proposition within 60 days from the
date of certification by the COMELEC in case of provinces and cities, 45 days in case
of municipalities, and 30 days in case of barangays
Effectivity of Local Propositions If the proposition is approved by a majority of
the votes cast, it shall take effect 15 days after certification by the COMELEC
Limitations on Local Initiatives
a.
the power of local initiative shall not be exercised more than once a year
b.
initiative shall extend only to subjects or matters which are within the legal
powers of the local legislative bodies to enact
c.
if at any time before the initiative is held, the local legislative body shall adopt
in toto the proposition presented, the initiative shall be cancelled. However, those
against such action may, if they so desire, apply for initiative in the manner herein
provided
Limitations Upon Local Legislative Bodies Any proposition or ordinance or
resolution approved through the system of initiative and referendum as herein
provided shall not be repealed, modified or amended, by the local legislative body
concerned within 6 months from the date therefrom, and may be amended,
modified or repealed by the local legislative body within 3 years thereafter by a vote
of 3/4 of all its members: Provided, however, that in case of barangays, the period
shall be 18 months after the approval thereof
Local Referendum Any local legislative body may submit to the registered
voters of autonomous region, provinces, cities, municipalities and barangays for the
approval or rejection, any ordinance or resolution duly enacted or approved
Courts are not precluded from declaring null and void any proposition approved
for violation of the Constitution or want of capacity of the local legislative body to
enact the said measure.
Political
subdivision
of
national
government
Administering the powers of state and
promoting public welfare
Includes the legislative, judicial, public
and political
LGU cannot be held liable
Except:
if statute provides otherwise
Art. 2189, CC
Corporate
entity
representing
inhabitants of its territory
Exercised for special benefit and
advantage of the community
Includes those which are ministerial,
private and corporate
Can be held liable ex contractu or ex
delicto
MUNICIPAL LIABILITY
RULE: Local government units (LGUs) and their officials are not exempt from
liability for death or injury to persons or damage to property (Sec. 24, R.A. 7160)
1. Specific provisions of law making LGUs liable:
a. Art. 2189, NCC: Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason of
the defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision.
The City of Manila was held liable for damages when a person fell into an
open manhole in the streets of the city. (City of Manila vs. Teotico, 22 SCRA
267)
Liability of the City for injuries due to defective roads attaches even if the
road does not belong to the LGU, as long as the City exercises control or
supervision over said road. (Guilatco vs. City of Dagupan, 171 SCRA 382)
b. Art. 2180 (6th par.), NCC: The State is responsible in like manner when
it acts through a special agent; but not when the damage has been
caused by the official to whom the task done properly pertains, in which
case what is provided in Article 2176 shall be applicable.
Merritt vs. Government of the Philippine Islands, 34 Phil 311
FACTS: E. Merritt was a constructor who was excellent at his work. One day, while
he was riding his motorcycle along Calle Padre Faura, he was bumped by a
government ambulance. The driver of the ambulance was proven to have been
negligent. Because of the incident, Merritt was hospitalized and he was severely
injured beyond rehabilitation so much so that he could never perform his job the
way he used to and that he cannot even earn at least half of what he used to earn.
In order for Merritt to recover damages, he sought to sue the government
which later authorized Merritt to sue the government by virtue of Act 2457 enacted
by the legislature (An Act authorizing E. Merritt to bring suit against the Government
of the Philippine Islands and authorizing the Attorney-General of said Islands to
appear in said suit). The lower court then determined the amount of damages and
ordered the government to pay the same.
ISSUE: Whether or not the government is liable for the negligent act of the driver of
the ambulance.
HELD: No. By consenting to be sued a state simply waives its immunity from suit. It
does not thereby concede its liability to plaintiff, or create any cause of action in his
favor, or extend its liability to any cause not previously recognized. It merely gives a
remedy to enforce a preexisting liability and submits itself to the jurisdiction of the
court, subject to its right to interpose any lawful defense. It follows therefrom that
the state, by virtue of such provisions of law, is not responsible for the damages
suffered by private individuals in consequence of acts performed by its employees
in the discharge of the functions pertaining to their office, because neither fault nor
even negligence can be presumed on the part of the state in the organization of
branches of public service and in the appointment of its agents. The State can only
be liable if it acts through a special agent (and a special agent, in the sense in which
these words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special
official) so that in representation of the state and being bound to act as an agent
thereof, he executes the trust confided to him.
In the case at bar, the ambulance driver was not a special agent nor was a
government officer acting as a special agent hence, there can be no liability from
the government. The Government does not undertake to guarantee to any person
the fidelity of the officers or agents whom it employs, since that would involve it in
all its operations in endless embarrassments, difficulties and losses, which would be
subversive of the public interest.
c. Art. 34, NCC: When a member of a city or municipal police force refuses
or fails to render aid or protection to any person in case of danger to life
or property, such peace officer shall be primarily liable for damages, and
the city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal
proceedings, and a preponderance of evidence shall suffice to support
such action.
The LGU is subsidiarily liable for damages suffered by a person by reason
of the failure or refusal of a member of the police to render aid and
protection in case of danger to life and property.
2. Liability for Tort
Despite the clear language of Sec. 24, RA 7160, that the local government
units and their officials are not exempt from liability for death or injury to
persons or damage to property, it is still unclear whether liability will accrue
when the local government unit is engaged in governmental functions.
Supreme Court decisions, interpreting legal provisions existing prior to the
effectivity of the Local Government Code, have come up with the following
rules on municipal liability for tort:
a. If the LGU is engaged in governmental functions, it is not liable.
In Palafox vs. Province of Ilocos Norte, 102 Phil 1186, as well as in Palma vs.
Garciano, it was held that the prosecution of crimes is a governmental
function, and thus, the LGU may not be held liable therefor.
The Municipality was not held liable for torts committed by a regular
employee, even if the dump truck used belonged to the municipality,
inasmuch as the employee was discharging governmental (public works)
functions. (Municipality of San Fernando vs. Firme 195 SCRA 692)
When the Mayor refused to abide by a TRO issued by the court, he may be
held in contempt. (Moday vs. CA, 1997)
When the LGU does not pay the statutory minimum wage (mandated by law)
even if there is lack of funds. (Racho vs. Municipality of Ilagan, Isabela, 1968)
General Rule: Local government unit is liable only for contracts that are intra vires.
Exception: LGU may not be estopped in order to validate a contract which the LGU
is not authorized to make even if it has accepted the benefits thereunder (San
Diego vs. Municipality of Naujan, 1960)
A private individual who deals with a LGU is imputed with constructive
knowledge of the extent of the power or authority of the LGU to enter into
contracts. Thus, ordinarily, the doctrine of estoppel does not lie against the LGU.
Mancenido vs. Court of Appeals, G.R. No. 118605, April 12, 2000
FACTS: Petitioners, who are public school teachers, filed a case against the
provincial officials to compel them to pay their claims for unpaid salary increases. In
this petition for review on certiorari, they argue that the CA erred in recognizing the
authority of the council of the provincial officials to file a notice of appeal.
HELD: The SC held that in resolving whether a local government official may
secure the services of private counsel in an action filed against him in his official
capacity, the nature of the action and the relief sought are to be considered. In view
of the damages sought in the case at bar which, if granted, could result in personal
liability, respondents could not be
LOCAL OFFICIALS
Provisions Applicable to Elective and Appointive Officials
A. Prohibited Business and Pecuniary Interest
Section 89 of Republic Act 7160 provides that; it shall be unlawfull for any
local government official or employee, directly or indirectly, to:
1. Engage in any business transaction with the local government unit in
which he is an official or employee or over which he has the power of
supervision, or with any of its authorized boards, officials, agents, or
2.
3.
4.
5.
B. Practice of Profession
Section 90 of R.A. 7160 states that:
1. All governors, city and municipal mayors are prohibited from practicing
their profession or engaging in any occupation other than the exercise of
their functions as local chief executives;
2. Saggunian members may practice their profession, engage in any
occupation, or teach in schools except during session hours: Provided,
That Sanggunian members who are also members of the Bar shall not:
a. Appear as counsel before any court in any civil case wherein a local
government unit or any office, agency, or instrumentality of the
government is the adverse party;
b. Appear as counsel in any criminal case whrein an officer or
employee of the national or local government is accused of an
offense committed in relation to his office.
c. Collect any fee for their appearance in administrative proceedings
involving the local government unit of which he is an official; and
d. Use property and personnel of the government except when the
sanggunian member concerned is defending the interest of the
government.
3. Doctors of medicine may practice their profession even during official
hours of work only on occassions of emergency: provided, That the
officials concerned do not derive monetary compensation therefrom.
C. Prohibition against Appointment
1. Section 7, Article IX-B of the Constitution states that, no elective official
shall be eligilbefor appointment or designation in any capacity to any
public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment n the Govenrment or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
2. Also Section 6, of Article IX-B of the 1987 Constitution provides that, no
candidate who has lost in any election shall, within one year after such
election, be appointed to any office in the Government of any
government-owned or controlled corporations or in any of its subsidiaries.
However, a losing candidate in barangay elections are not included in
the prohibition.
Elective Local Officials
Qualifications and Disqualifications
Manner of Election
(a) The governor, vice-governor, city mayor, city vice-mayor, municipal mayor,
municipal vice-mayor, and punong barangay shall be elected at large in their
respective units by the qualified voters therein. However, the sangguniangkabataan
chairman for each barangay shall be elected by the registered voters of the
katipunanngkabataan, as provided in this Code.
(b) The regular members of the sangguniangpanlalawigan, sangguniangpanlungsod,
and sangguniangbayan shall be elected by district as follows:
First and second-class provinces shall have ten (10) regular members; third and
fourth-class provinces, eight (8); and fifth and sixth-class provinces, six (6):
Provided, That in provinces having more than five (5) legislative districts, each
district shall have two (2) sangguniangpanlalawigan members, without prejudice to
the provisions of Section 2 of Republic Act No. 6637. Sangguniang barangay
members shall be elected at large. The presidents of the leagues of sanggunian
members of component cities and municipalities shall serve as ex officio members
of the sangguniangpanlalawigan concerned. The presidents of the ligangmga
barangay and the pederasyonngmgasangguniangkabataan elected by their
respective chapters, as provided in this Code, shall serve as ex officio members of
the sangguniangpanlalawigan, sangguniangpanlungsod, and sangguniangbayan.
(c) In addition thereto, there shall be one (1) sectoral representative from the
women, one (1) from the workers, and one (1) from any of the following sectors: the
urban poor, indigenous cultural communities, disabled persons, or any other sector
as may be determined by the sanggunian concerned within ninety (90) days prior to
the holding of the next local elections as may be provided for by law. The COMELEC
shall promulgate the rules and regulations to effectively provide for the election of
such sectoral representatives. (Section 41, R.A. 7160)
Date of Election
Every three years on the second Monday of May, unless otherwise provided
by law.
Three (3) years, starting from noon of June 30, 1992, or such date as
may be provided by law.
Three (3) years, which shall begin after the regular election of
barangay officials on the second Monday of May 1994. (R.A. 9164:
Synchronized Barangay and SangguniangKabataan Elections 2002)
No elective local official shall serve for more than three (3) consecutive terms
in the same position.
a. Reckoned from the 1994 barangay elections
b. Voluntary renunciation of office for any length of time shall not be
considered as an interuption.
term.
In the case of Socrates vs COMELEC, G.R. No. 154512, November 12, 2002,
after three consecutive terms, an elective official cannot run for immediate
re-election for a fourth term. The prohibited election refers to the next regular
election for the same office following the same office following the third
consecutive term. Any subsequent election, like recall election, is no longer
covered by the prohibition for two reasons: (1) a subsequent election like
recall election, is no longer an immediate re-election after three consecutive
terms; and (2) the intervening period constitutes an involuntary interruption
in the continuity of service.
The constitution does not require that the interruption be a full term of
3 years. The clear intent of the framers of the law is that iterruption for any
length of time is sufficient to break an elective local officials continuity of
service.
In the case of Latasavs COMELEC G.R. No. 154829, December 10, 2003, the
mayor of a municipality held his post for three terms. During his last term,
the municipality became a city and ge was declared hold-over mayor by the
charter. The said mayor should not be allowed to run again. If he were
allowed to do so, he would have served the same people for a term more
than what is allowed by law.
Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that allows
an elective officials stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising the
functions and prerogatives of the office within suspension period. The best
indicator of the suspended officials continuity in office is the absence of a
permanent replacement and the lack of the authority to appoint one since no
vacancy exists.
To allow a preventively suspended elective official to run for a fourth
and prohibited term is to close our eyes to this reality and to allow a
constitutional violation through sophistry by equating the temporary inability
to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. (Aldovinovs COMELEC)
Permanent Vacancy
Under Section 44 of the Local Government Code, permanent vacancy
occurs when an elective local official:
1. Fills a higher vacant office
2. Refuses to assume office
3. Fails to qualify
4. Dies
5. Is removed from office
6. Voluntarily resigns
7. Otherwise permanently incapacitated from discharging the functions of his
office.
Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor,
and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor concerned shall become
the governor or mayor. If a permanent vacancy occurs in the offices of the
governor, vice-governor, mayor, or vice-mayor, the highest ranking
sanggunian member or, in case of his permanent inability, the second highest
ranking sanggunianmember, shall become the governor, vice-governor,
mayor or vice-mayor, as the case may be. Subsequent vacancies in the said
office shall be filled automatically by the other sanggunian members
according to their ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the punong barangay, the
highest ranking sanggunian barangay member or, in case of his permanent
inability, the second highest ranking sanggunianmember, shall become the
punong barangay.
A tie between or among the highest ranking sanggunian members
shall be resolved by the drawing of lots
The successors as defined herein shall serve only the unexpired terms
of their predecessors
COMPENSATION
The compensation of local officials and personnel shall be determined by the
sanggunian concerned: Provided, That the increase in compensation of elective
local officials shall take effect only after the terms of office of those approving such
increase shall have expired: Provided, further, That the increase in compensation of
the appointive officials and employees shall take effect as provided in the ordinance
authorizing such increase: Provided, however, That said increases shall not exceed
the limitations on budgetary allocations for personal services provided under Title
Five, Book II of this Code: Provided, finally, That such compensation may be based
upon the pertinent provisions of Republic Act Numbered Sixty-seven fifty-eight (R.A.
No 6758), otherwise known as the Compensation and Position Classification Act of
1989.
The
punong
barangay,
the
sangguniang
barangay
members,
the
sangguniangkabataan chairman, the barangay treasurer, and the barangay
secretary shall be entitled to such compensation, allowances, emoluments, and
such other privileges as provided under Title One, Book III of this Code.
Elective local officials shall be entitled to the same leave privileges as those enjoyed
by appointive local officials, including the cumulation and commutation thereof.
(Section 81, LGC)
RECALL
The ground for recall is loss of confidence upon the local government official.
The right to recall is given to the registered voters of the Local government
unit to which the local elective official subject to recall belongs.
Commencement of Recall Process:
Election on Recall
Barangay, city or municipal officials: not later than 30 days from completion
Effectivity of Recall
Upon election and proclamation of a successor. If the official sought to be
recalled receive the highest number of votes, confidence in him is affirmed and
he shall continue in office.
Limitation on Recall
Local elective official may be subject of a recall election only once during his
term of office for loss of confidence. No recall shall take place within one year
from the date of the officials assumption to office or one year immediately
preceding a regular local election.
RESIGNATION
Resignation of Elective Local Officials. (a) Resignations by elective local
officials shall be deemed effective only upon acceptance by the following
authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vicemayors of highly urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city
mayors and city vice-mayors of component cities;
(3) The sanggunian concerned, in the case of sanggunian members; and
(4) The city or municipal mayor, in the case of barangay officials.
(b) Copies of the resignation letters of elective local officials, together with the
action taken by the aforesaid authorities, shall be furnished the Department of the
Interior and Local Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority
concerned within fifteen (15) working days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted
upon presentation before an open session of the sanggunian concerned and duly
entered in its records: Provided, however, That this subsection does not apply to
sanggunian members who are subject to recall elections or to cases where existing
laws prescribe the manner of acting upon such resignations.
Grievance procedure
In every local government unit, the local chief executive shall establish a
procedure to inquire into, act upon, resolve or settle complaints and grievances
presented by local government employees.
Also, under Section 58 of the Local Government Code, any attempt to enforce
and disapproved ordinance or resolution on local development plans or public
investment programs, shall be sufficient ground for the suspension or dismissal of
the officer or employee concerned.
PREVENTIVE SUSPENSION
The respondents continued stay in office would prejudice the case filed
against him.
Cannot be suspended for more than 90 days within a single year on the
same fround existing and known at the time of the first suspension;
REMOVAL
ADMINISTRATIVE APPEAL
To Whom Appealable
The appeal shall not prevent a decision from being final and executory.
Doctrine of Condonation
A public official cannot be removed for administrative misconduct committed
during a prior term, since his re-election to office operates as a condonation of
the officers previous misconduct to the extent of cutting off the right to remove
him therefor. The foregoing rule, however, finds no application to criminal cases,
as these are violations against the state itself. (Aguinaldo vs Santos 1992).
According to the case of Malinaovs Reyes, 255 scra 616, the re-election of a
local official bars the continuation of the administrative case against him,
inasmuch as the re-election of the official is tantamount to condonation by the
people of whatever past misdeeds he may have committed.
demotion in rank,
suspension for not more than one (1) year without pay,
If the penalty imposed is suspension without pay for not more than
thirty (30) days, his decision shall be final.
Act of relinquishment
Elements of Abandonment:
Intent to abandon
INTERGOVERNMENTAL RELATIONS
I.
II.
III.
IV.
V.
VI.
I.
II.
RELATIONS
WITH
PEOPLES
AND
NONGOVERNMENTAL
ORGANIZATIONS
i. Role of Peoples and Non- governmental Organizations
in
the
city
or
on
the
or
component
cities
and
on
the
the
and
Mandated by:
A. The 1987 Constitution Article X, Sec. 3
B. Local Government Code Sections 120-127
C. RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND
REFERENDUM
II.
Definitions
A. Local Initiative - A legal process whereby the registered voters of a LGU
may directly propose, enact, or amend any ordinance.
B. Local Referendum - A legal process whereby the registered voters of the
LGUs may approve, amend or reject any ordinance enacted by the
sanggunian.
III.
Statutory Requirements
A. Who may exercise - all registered voters of the provinces, cities,
municipalities and barangays.
B. Referendum or initiative affecting a resolution or ordinance passed by the
legislative assembly of a province or city:
1. The petition must be signed by at least 10% of the registered voters in the
province or city;
2. of which every legislative district must be represented by at least 3% of
the registered voters therein;
3. Provided, however, that if the province or city is composed only of 1
legislative district, then at least each municipality in a province or each
barangay in a city should be represented by at least 3% of the registered
B.
C.
D.
E.
V.
VI.
VII.
IX.
X.
Jurisprudence
A. Garcia v. COMELEC 237 SCRA 279 (1994) A resolution may be the
subject of an initiative or referendum.
Facts: The Sangguniang Bayan (SB) ngMorong, Bataan passed Resolution No.
10 wherein agreed to the inclusion of the municipality of Morong as part of
the Subic Special Economic Zone in accordance with RA 7227. Private citizen
Enrique Garcia and friends filed a petition with the SB to annul the said
resolution. When their petition went unheeded, Garcia resorted to the power
of initiative under the LGC of 1991. The COMELEC however denied the
petition for local initiative on the ground that under the LGC of 1991 the
subject of local initiative refers only to an ordinance and not a resolution.
Issue: Whether or not COMELEC is correct.
Held: No.
1) Sec. 32 of Article VI of the Constitution says that initiative and referendum
is a system wherein the people can directly propose and enact laws or
approve or reject any act or law. The word act makes it clear that
resolutions are also included initiatives.
2) RA 6735 defines 3 system of initiative, one of them being initiative on local
legislation which included, among others, resolution.
3) In the LGC itself, Section 124 says, Initiatives shall extend only to subjects
or matters which are within the legal powers of the Sanggunian to enact.
Definitely, the scope of Sanggunians powers includes resolutions which make
them covered under initiatives.
B. SBMA v. COMELEC 262 SCRA 492 (1996)
An Initiative is power of the people to propose bills and laws, and to enact or
reject them at the polls independent of the legislative assembly.
A
Referendum is the right reserved to the people to adopt or reject any act or
measure which has been passed by a legislative body and which in most
cases would without action on the part of electors become law. These lawmaking powers belong to the people and the COMELEC only
exercises administration and supervision of the process. Hence,
COMELEC cannot control or change the substance or the content of
the legislation. COMELEC should have prepared for an initiative, not
a referendum.