3004787 uploc gov final reviewer

8/9/2019 3004787 UPLoc Gov Final Reviewer

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Law on Local Government 1Prof. Dan Gatmaytan, 1st semester, AY 1999-

2000

LAW ON LOCAL GOVERNMENTProf. Dan Gatmaytan1st semester, AY 1999-2000

Introduction

A. Constitutional Basis -- Article X, 1987 Constitution

B. Innovations in the law on local governments introduced by the LocalGovernment 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 ofgovernance

C. Effectivity : LGC Secs. 5(d), 536

Evardone v. COMELECSecretary of Health v. CA


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Book I: General Provisions

I. Basic Principles

A. The Code: Policy and Application

(1) Local government, decentralization, autonomy

Local autonomy: power of LGUs to decide for themselves on certainmatters

without need for clearance or approval by thenational government

Decentralization:devolution of national administration (not power)from the

national government to the LGUs

Deconcentration:flow of autonomy from the national governmenttowards

regional agencies

Devolution: act by which the national government conferspower and

authority upon the various LGUs to perform specificfunctions and responsibilities (LGC Sec. 17)

the transfer of power and authority from theNationalGovernment to LGUs to enable them to performspecific functions and responsibilities (Art. 24, IRRof the LGC)

Differentiate decentralization of administration fromdecentralization of power.

Decentralization ofAdministration

Decentralization of Power

Delegation by the centralgovernment of administrativepowers to political subdivisionsin order to broaden the base ofgovernment power. (Limbonav. Mangelin)

Abdication of political power infavor of LGUs declared to beautonomous. In this case, theautonomous government is freeto chart its own destiny andshape its future with minimumintervention from centralauthorities. (Limbona v.Mangelin)

Local government units Autonomous regions

(2) Consultations

LGC Sec. 2(c): It is likewise the policy of the State to require all nationalagencies and offices to conduct periodic consultations withappropriate LGUs, NGOs and POs, and other concerned


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sectors of the community before any project or program isimplemented in their respective jurisdictions.

LGC Sec. 26: Duty of National Government Agencies in the Maintenance

of Ecological Balance.

It shall be the duty of every national agency orGOCC authorized or involved in the planning andimplementation of any project or program that may cause:

pollution;

climatic change;

depletion of non-renewable resources;

loss of crop land, rangeland, or forest cover;and

extinction of animal or plant species

to consult with the LGUs, NGOs, and other sectorsconcerned and explain:

the goals and objectives of the project orprogram;

its impact upon the people and thecommunity in terms of environmental orecological balance; and

the measures that will be undertaken toprevent or minimize the adverse effects thereof.

LGC Sec. 27: No project or program shall be implemented bygovernment authorities unless:

(1) the consultations mentioned above arecomplied with; and

(2) prior approval of the sanggunian concerned isobtained.

Note: Occupants in areas where such projects are to be implementedshall not be evicted unless appropriate relocation sites have been

provided, in accordance with the Constitution.

Comment: Memorandum Circular No. 52 (1993) provides that alloffices and employees of national government agenciesand offices including GOCCs must strictly comply with theLGC provisions on consultation. However, there are nopenalties for such breach. Question is: what are theremedies of the LGC if the consultation requirements arenot complied with?

(3) Scope of application

The LGC shall apply to all provinces, cities, municipalities, barangays, and otherpolitical subdivisions as may be created by law, and, to the extent hereinprovided, to officials, offices, or agencies of the national government.(LGC Sec. 4)

(4) Merger of administrative regions


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Administrative regions are mere groupings of contiguous provinces foradministrative 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 withthe President to facilitate the exercise of the power of general supervision oflocal governments. (Abbas v. COMELEC)

(5) Rules of interpretation

Provision on power of LGU: Liberally interpreted in its favor. In case ofdoubt, any question thereon shall beresolved in favor of devolution of powersand of the LGU. Any fair and reasonabledoubt as to the existence of the power shall

be interpreted in favor of the LGUconcerned.

Tax ordinance / revenue measure: Construed strictly against the enacting LGU,and liberally in favor of the taxpayer.

Tax exemption, incentive, Construed strictly against the personrelief granted pursuant to LGC: claiming it.

General welfare provisions: Liberally interpreted to give more power toLGUs in accelerating economicdevelopment and upgrading the quality of

life for people in the community.

Where there is a controversy Customs and traditions in the place wherearising under the LGC and the controversy takes place may be

there is no applicable legal resorted to.provision or jurisprudence:

B. General Power and Attributes

(1) Creation of LGUs

Who may create, divide, merge, abolish, or substantially alterboundaries of LGUs?

Congress : province, city or municipality Sangguniang Panglungsod or

Panlalawigan : barangay*

*Note: Recommendation of sangguniang bayanis necessary. (LGC 385)

In both instances, there must be a plebiscite called for the purpose in the politicalunit or units directly affected. [This is to preventgerrymandering(i.e., the practice of

creating legislative districts to favor a particular candidate or party) and the creation orabolition of units for purely political purposes.]

*Where a plebiscite was held with its principal subject being theconversion of the municipality of Mandaluyong into a highly-urbanized city

and the matter of separate district representation being merely ancillarythereto, the Supreme Court held that the exclusion of the inhabitants of


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San Juan (who belonged to the same congressional district as Mandaluyong)from the plebiscite was proper. (Tobias v. Abalos)

Notes:

In the creation of barangays, there is no minimum requirement for areaand income. But for all the other LGUs, there are standards prescribed.

The creation of LGUs is a purely legislative act. HOWEVER, LGUscreated by the executive shall continue to exist by virtue of LGC 442 (d). (cf.Municipality of San Narciso v. Mendez)

When the inquiry is focused on the legal existence of a body politic, theaction is reserved to the State in a proceeding forquo warranto or any otherdirect proceeding. It must be brought in the name of the Republic of thePhilippines and commenced by the Sol-Gen or the fiscal when directed by thePresident of the Philippines, and it must be timely raised. (Municipality of San

Narciso v. Mendez)

Can a statute lend color of validity to an attempted organization of a municipalitydespite 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 ofMunicipality of Malabang v. Benito, the Supreme Court held thatEO 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 notmake it a de facto corporation, as, independently of the applicable AdministrativeCode provisions, there was no other valid statute to give color of authority to itscreation.

However, even though the municipality of Balabagan could not be considered ade facto corporation, this did not mean that the acts done by it in the exercise ofits corporate power were a nullity. The Court pointed out that the existence ofEO 386 was an operative fact which could not justly be ignored. Thus, theinvalidation 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

Differentiate the political nature and corporate nature of LGUs.

POLITICAL /GOVERNMENTAL

CORPORATE /MUNICIPAL

Sec. 15, LGC Political subdivision of national government

Corporate entityrepresenting inhabitants ofits territory

Lidasan v. COMELEC Instrumentality of theState in carrying out thefunctions of government

Agency of community inadministration of local affairs

Torio v. Fontanilla Administering powers ofthe state, and promotion

Exercising powers for thespecial benefit and


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of the public welfare advantage of the community

Liability of LGU to 3rd

persons

NOTE: This must be

related to Art. 24 of theLocal GovernmentCode.

LGU cannot be held liable

Exceptions:(1) If statute provides

otherwise;(2) NCC 2189

Can be held liable excontractuorex delicto

Liability of LGUsagents / officers

No liability provided thatduties were performedhonestly and in good faith,and they did not actwantonly or maliciously(Torio v. Fontanilla)

Respondeat superior

Examples of governmental activities:

Regulations against fire, disease; Preservation of public peace;

Maintenance of municipal prisons;

Establishment of schools, post-offices, etc.(Torio v. Fontanilla, citing Mendoza v. de Leon)

Examples of proprietary / corporate activities:

Municipal waterworks;

Slaughterhouses;

Markets;

Stables;

Bathing establishments;

Wharves;

Ferries;

Fisheries;

Maintenance of parks, golf courses, cemeteries, airports(Torio v. Fontanilla, citing Mendoza v. de Leon)

Holding of a town fiesta (Torio v. Fontanilla)

Notes:

Public markets are subject to the LGUs supervision and control. Their closure or

conversion into private markets must follow the procedures laid down by law. Thus,where the power to establish and maintain public markets is granted to the MunicipalBoard, the local chief executive cannot unilaterally withdraw it from use as a publicmarket without the approval of the Board. (Cruz v. CA)

(3) General Welfare

What powers do LGUs have under the general welfare clause of theLGC?

(1) Powers expressly granted to the LGU;

(2) Those powers necessarily implied therefrom;(3) Powers necessary, appropriate, or incidental for its efficient and effectivegovernance; and

(4) Those powers which are essential to the promotion of the general welfare.(LGC Sec. 16)

What duties do LGUs have under the general welfare clause?


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Within their respective territorial jurisdictions, LGUs shall ensure and support,among other things:

Preservation and enrichment of culture; Promotion of health and safety;

Enhancement of the right of the people to a balanced ecology; Development of appropriate and self-reliant scientific andtechnological capabilities; Improvement of public morals; Enhancement of economic prosperity and social justice; Promotion of full employment among their residents; Maintenance of peace and order; and Preservation of the comfort and convenience of their inhabitants.

What are the 2 branches of the general welfare clause?

(1) Those ordinances / resolutions necessary to carry into effect and dischargepowers and duties conferred upon the municipal council by law; and

(2) Those ordinances / resolutions necessary and proper to provide for thehealth and safety, promote the prosperity, improve the morals, peace, goodorder, comfort, and convenience of the municipality and the inhabitantsthereof, and for the protection of property therein.

(U.S. v. Salaveria)

Ordinances / acts deemed ultra vires and void:

An ordinance imposing a cadaver transfer fee which is payable whenever

a cadaver, previously interred in a burial place, is removed therefrom fortransfer to a private cemetery in Caloocan City, and which is distinct from theburial fee (Viray v. City of Caloocan)

An ordinance requiring entities selling admission tickets to movies, publicexhibitions, games, contests, or other performances to charge only half-pricefor children between 7-12 years old (Balacuit v. CFI of Agusan del Norte)

Leasing of public plaza to vendors (Villanueva v. Castaneda)

Ordinances / acts deemed valid under the general welfare clause:

A municipal ordinance prescribing the zonification and classification ofmerchandise and foodstuff sold in the public market (Ebona v. Municipality ofDaet)

A proclamation reserving certain parcels of the public domain situated inMalabon for street widening and parking space purposes (Republic v.Gonzales)

An ordinance prohibiting the playing of games such aspanguingue,poker, paris-paris (and other games of chance) on days not Sundays or legalholidays (U.S. v. Salaveria)

Condemnation and demolition of buildings found to be in a dangerous orruinous condition within the authority provided for by municipal ordinances(Chua Huat v. CA)

A resolution confirming / ratifying a Burial Assistance Program extendingfinancial assistance to bereaved families (Binay v. Domingo)


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A zoning ordinance which declares an area as a commercial zone andregulates the location of funeral homes therein (Patalinghug v. CA)

Notes:

To constitute public use, the public in general should have equal or commonrights to use the land or facility involved on the same terms, however limited innumber the people who can actually themselves of it at a given time. (Republic v.Gonzales, citing various cases)

The number of users is not the yardstick in determining whether property isproperly reserved for public use or public benefit. (Republic v. Gonzales)

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 donot make a distinction between nuisanceper se and nuisance

per accidens, thus creating a presumption that LGUs can abateall kinds of nuisances without need of a judicial order.

However, the jurisprudence holds that LGUs can abateextrajudicially only nuisancesper se. How should thisdiscrepancy be reconciled?

Study carefully the following:

The Civil Code provisions regarding nuisances; Estate of Gregoria Francisco v. CA

Technology Developers, Inc. v. CA (parts 1 & 2)

Laguna Lake Development Authority v. CA

(4) Basic Services and Facilities

What are the basic services and facilities which LGUs must provide totheir constituents?

BARANGAY MUNICIPALITY PROVINCE CITY

Agricultural supportservices

Agriculture andfishery extension andon-site researchservices and facilities

Agricultural extensionand on-site researchservices and facilities;organization of farmersand fishermenscooperatives

See municipality andprovince

Health services Same; health centersand clinics

Health services,including hospitals andtertiary health services


Social welfare

services

Same Same, including rebel

returnees andevacuees, reliefoperations, populationdevt services

See municipality and

province

General hygiene andsanitation

Same See municipality andprovince

Solid wastecollection

Solid waste disposal

system orSee municipality andprovince


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environmentalmanagement system

Katarungang

pambarangayNA See municipality and

province

Maintenance of

roads, bridges andwater supplysystems

Roads, bridges,

communal irrigation,artesian wells,drainage, floodcontrol

Similar to those for

municipality


province

Infrastructurefacilities (e.g. plazamulti-purpose hall)

Municipal buildings,cultural centers,public parks


Information andreading center

Information services,tax and marketinginformation systems,and public library

Upgrading andmodernization of taxinformation andcollection services


Satellite or public

market

Public markets,

slaughterhouses


province

Implementation ofcommunity-basedforestry projects

Enforcement offorestry laws, limited tocommunity-basedforestry projects,pollution control law,small-scale mining law,mini-hydroelectricprojects for localpurposes


School buildings See municipality andprovince

Public cemetery See municipality andprovince

Tourism facilities Tourism developmentand promotionprograms


Police, fire stations,jail

Same See municipality andprovince

Industrial research anddevelopment services


Low-cost housing and

other mass dwellings


province

Investment supportservices


Inter-municipaltelecommunicationservices

Adequatecommunication andtransportationfacilities

How shall these basic services and facilities be funded?

From the share of LGUs in the proceeds of national taxes and other localrevenues and funding support from the national government, its instrumentalitiesand GOCCs which are tasked by law to establish and maintain such services orfacilities. (LGC Sec. 17 (g))

(5) Power to Generate Revenue


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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 andeffective implementation of their development plans, program objectives and

priorities;

(2) create their own sources of revenue and to levy taxes, fees, and chargeswhich shall accrue exclusively for their use and disposition and which shall beretained by them;

(3) have a just share in national taxes which shall be automatically anddirectly released to them without need of any further action;

(4) have an equitable share in the proceeds from the utilization anddevelopment of the national wealth and resources within their respectiveterritorial jurisdictions including sharing the same with the inhabitants by way of

direct benefits;

(5) acquire, develop, lease, encumber, alienate, or otherwise dispose of realor personal property held by them in their proprietary capacity and to apply theirresources and assets for productive, developmental, or welfare purposes, in theexercise or furtherance of their governmental or proprietary powers andfunctions and thereby ensure their development into self-reliant communitiesand active participants in the attainment of national goals.

(6) Eminent Domain

What are the requisites for the exercise of eminent domain byLGUs?

(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)

(7) Reclassification of lands

What are the requisites for valid reclassification of lands by LGUs?

(1) The LGU must be either a city or municipality;

(2) Public hearings are conducted for the purpose;

(3) The sanggunian passes an ordinance authorizing the reclassification ofagricultural lands and provides for the manner of their utilization anddisposition;

(4) The purpose for reclassification is either:

(a) The land has ceased to be economically feasible and sound foragricultural purposes as determined by the DA; or

(b) The land shall have substantially greater economic value forresidential, commercial, or industrial purposes, as determined by thesanggunian concerned.


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(5) The reclassification does not exceed the following limits at the time of thepassage of the ordinance:

Highly urbanized and independent 15% of total agriculturalcomponent cities: land area

Component cities, 1st to 3rdclass 10%municipalities:

4th to 6th class municipalities: 5%

Exception: When the LGU is authorized by the President whenpublic interest so requires and uponrecommendation of the NEDA.

(6) Compliance with the requirements of national government agencies:

Comprehensive Land Use Plan approved by the HLURB (in thecase of provinces, highly urbanized cities, independent componentcities and the cities and municipalities of M.M.) or the SangguniangPanlalawigan (in the case of component cities and municipalities);

Certification from the local HLURB specifying the total area ofzoned agricultural lands in the LGU concerned based on the approvedComprehensive Land Use Plan or Zoning Ordinance prior to theapplication for conversion;

Certification from the National Irrigation Administration that thearea to be reclassified is not covered under Pres. A.O. 20, series of1992;

Certification from the DAR indicating that such lands are notdistributed or covered by a Notice of Valuation under CARP; and

Certification from DENR that the area applied for reclassificationhas been classified as alienable and disposable, and is not needed forforestry purposes in case the area applied for falls within public lands.

(AO 363, Sec. 1B (5))

Differentiate reclassification, land use conversion, and zoning.

Reclassification Land Use

Conversion

Zoning

Definition Act of specifying howagricultural land shall beutilized for non-agricultural uses such asresidential, industrial,commercial as embo-died in the land use plansubject to the require-ments and procedure forconversion. It alsoincludes the reversion of

non-agricultural lands toagricultural use. (JointHLURB, DAR, DA, DILGMemo-Circular, s. 1995)

Act or process ofchanging the currentuse of a piece ofagricultural land intosome other use(Sec. 2, AO 363)

Delineation of a city /municipality intofunctional zoneswhere only specifiedland uses are allowed.It directs and regulatesthe use of all lands inthe community inaccordance with anapproved or adoptedland use plan for the

city / municipality.

Socialized housing: refers to housing programs and projects covering houses and lots


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or homelots only undertaken by the government or the privatesector for the underprivileged and homeless citizens which shallinclude sites and services developments, long-term financing,liberalized terms on interest payments, and such other benefits inaccordance with RA 7279.

What are the priorities in the acquisition of lands for socializedhousing?

(1) Those owned by the Government or any of its subdivisions,instrumentalities, or agencies, including GOCCs and theirsubsidiaries;

(2) Alienable lands of the public domain;(3) Unregistered or abandoned and idle lands;(4) Those within the declared Areas for Priority Development, Zonal

improvement sites, and Slum Improvement and ResettlementProgram sites which have not yet been acquired;

(5) BLISS sites which have not yet been acquired; and

(6) Privately-owned lands. (RA 7279, Sec. 9)

Thus, in the case ofFilstream International v. CA where private landswere subjected to expropriation proceedings for socialized housingwithout prior resort to the acquisition of other lands, the Supreme Courtheld that the property owners right to due process was violated and setaside the expropriation order accordingly.

(8) Closure and opening of roads

What are the requirements for a valid permanent closure?

What are the requirements for valid temporary closure?

(9) Corporate powers

What are the requisites for entering into a contact by the LGU?(Sec. 22c)

Differentiate public from private / patrimonial property.


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(10) Authority to Negotiate and Secure Grants

(11) Liability for Damages

Differentiate between suability and liability.

Can the doctrine of estoppel be applied against municipalcorporations?

Governmental v. proprietary functions.

C. Intergovernmental relations between national government and LGUs

(1) Executive Supervision

What is the power of the President over LGUs?

General supervision, to ensure that the acts of LGUs are within the scope of theirprescribed powers and functions. (Art. X, Sec. 4, 1987 Constitution)

Direct supervisory authority over provinces, highly urbanized cities,and independent component cities

Supervision over component cities and municipalities throughprovinces

Supervision over barangays through city and municipality (LGC Sec.25)

Also, the President may direct the appropriate national agency to providefinancial, technical, or other forms of assistance to an LGU upon its (the LGUs)request. (LGC Sec. 25c)

Differentiate between control and supervision.

Control Supervision

Power of an officer to alter or modify or Overseeing or the power ornullify or set aside what a subordinate authority of an officer to see thatofficer had done in the performance of subordinate officers perform theirhis duties and to substitute the judgment duties. If the latter fail or neglectof the former for that of the latter to fulfill them, the former may take(Mondano v. Silvosa) such action or step as prescribed

by law to make them perform theseduties. (Mondano v. Silvosa)

What is the nature of the power of the Secretary of Justice to review theconstitutionality or legality of tax ordinances and revenue measures?

The power granted by Sec. 187 of the Local Government Code to the Secretaryof Justice to review the constitutionality or legality of tax ordinances and revenuemeasures is a mere act of supervision and not of control. The Secretary ofJustice is not permitted to submitted his own judgment for the judgment of thelocal government that enacted the measure. (Drilon v. Lim)


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What is the doctrine of qualified political agency?

All executive and administrative organizations are adjuncts of the ExecutiveDepartment, the heads of the various executive departments are assistants and

agents of the Chief Executive, and, except in cases where the Chief Executive isrequired by the Constitution or law to act in person on the exigencies of thesituation demand that he act personally, the multifarious executive andadministrative functions of the Chief Executive are performed by and through theexecutive 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 theChief Executive. (De Leon v. Carpio, as quoted in Carpio v. Executive Secretary)

(2) Relations with Philippine National Police

What is the extent of operational supervision and control of localchief executives over the Philippine National Police?

PROVINCIAL GOVERNOR:

Shall choose the provincial director from a list of 3 eligiblesrecommended by the PNP regional director;

Chairman of the provincial peace and order council; shall overseethe implementation of the provincial public safety plan (RA 6975, Sec.51 (a))

Deputized agent of the National Police Commission in hisjurisdiction. As such, he can inspect police forces and units, conductaudit, and exercise other functions as authorized by the Commission.(RA 8551, Sec. 64)

*NOTE: Unless reversed by the President, this deputation may besuspended or withdrawn by the National Police Commission, uponconsultation 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 whichnegate the effectiveness of the peace and order campaign.

Upon good cause shown, the President may, directly or through theCommission, 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 periodimmediately preceding and following any national, local or barangayelections. (RA 6975 Sec. 51 (b), as amended by RA 8551)

* the power to direct, superintend, and oversee the day-to-day functionsof police investigation of crime, crime prevention activities, and trafficcontrol in accordance with the rules and regulations promulgated by the


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National Police Commission. It likewise includes the power to employand deploy units or elements of the PNP.

Chairman of local peace and order council; shall develop andestablish an integrated area / community public safety plantembracing priorities of action and program thrusts for implementation

by the local PNP stations;

Have the duty to sponsor periodic seminars for members of thePNP assigned to detailed in his LGU in order to update themregarding local ordinances and legislations;

Have the power to impose, after due notice and summaryhearings, disciplinary penalties forminor offenses* committed bymembers of the PNP assigned to their respective jurisdictions

* Offenses punishable by withholding of privileges,

restriction to specified limits, suspension or forfeitureof salary, or any combination thereof for a period of16-30 days. (RA 6975, Sec. 41 (a) (2))

Have the authority to choose the Chief of Police from a list of 5eligibles recommended by the provincial police director;

May recommend the recall or reassignment of the Chief of Policewhen, in the perception of the local peace and order council, suchChief of Police has been ineffective in combating crime or maintainingpeace and order in the city or municipality

Have the authority to recommend to the provincial director thetransfer, reassignment, or detail of PNP members outside of theirrespective city or town residences;

Have the authority to recommend the appointment of newmembers of the PNP to be assigned to their respective cities from alist of eligibles previously screened by the peace and order council ormunicipalities

Have control and supervision over anti-gambling operations(RA 6975, Sec. 51 (b) (4), as amended by RA 8551)

Deputized agents of the National PoliceCommission(NAPOLCOM) in his jurisdiction. As such, they caninspect police forces and units, conduct audit, and exercise otherfunctions as authorized by the Commission. (RA 8551, Sec. 64)

*Unless reversed by the President, this deputation may be suspended orwithdrawn by the NAPOLCOM, upon consultation with the provincialgovernor 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 theCommission, motu proprio restore such deputation withdrawn. (RA 8551,Sec. 65)


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Is the deputization of municipal and city mayors as agents of theNAPOLCOM a usurpation of the power of control of the NAPOLCOM overthe PNP?

No. There is no usurpation of the power of control of the NAPOLCOM underSection 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. Assuch deputies, they are answerable to the NAPOLCOM for their actions in theexercise of their functions under that section. Thus, unless countermanded bythe NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM.

The same holding is true with respect to the contention on the operationalsupervision and control exercised by the local officials. These officials wouldsimply be acting as representatives. (Carpio v. Executive Secretary)

(3) Inter-Local Government Relations

What is the nature of the relationship of the province and the citiesand municipalities within its territorial jurisdiction?

Component cities / municipalities: Province, through the governor, shallensure that the city / municipality acts withinthe scope of its prescribed powers andfunctions.

Highly urbanized citiesIndependent component cities: Independent of the province.

Review of Executive Orders (LGC Sec. 30)

Governor: EOs promulgated by component city or municipalmayor within his jurisdiction

City / Municipal Mayor: EOs promulgated by the punong barangay withinhis jurisdiction

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 shallensure that such EOs are within the powers granted by law and inconformity with provincial, city or municipal ordinances.

If the reviewing authority fails to act on said EOs within 30 daysafter their submission, they shall be deemed consistent with law andtherefore valid.

(4) Relations with Peoples and Nongovernmental Organizations

(5) Local prequalification, bids and awards committee


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II. Elective Officials

A. Qualifications

What are the qualifications for elective local officials?

(1) Philippine citizen (Note: not necessarily natural-born);(2) Registered voter in the barangay, municipality, city, or province, or district (in case of

member of sangguniang panlalawigan, panglungsod or bayan);(3) Resident of area for at least 1 year immediately preceding the day of the election;(4) Able to read and write Filipino or any other local language or dialect(5) Compliance with age requirement:

(a) Governor |Vice-governor |Member of sangguniang panlalawigan |Mayor | At least 23 years old onVice-mayor | election dayMember of sangguniang panglungsod |

of highly urbanized cities |

(b) Mayor / Vice-mayor of independent component | At least 21 years old oncities, component cities or municipalities | election day

(c)Member of sangguniang panglungsod or bayan | At least 18 years old onPunong barangay, member of sangguniang | election day

barangay

(d) Candidates for sangguniang kabataan At least 15 years old butnot more than 21 years old onelection 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 foran 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 crimesmala prohibita do not. In the final analysis, however, whether or not a crimeinvolves moral turpitude is ultimately a question of fact and frequently dependson 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 ofmalicious deprivation of one's rightful property as that which animated therobbery or theft which, by their very nature, are crimes of moral turpitude. (DelaTorre v. COMELEC)

Probation only suspends the execution of the sentence. It does notsuspend the applicability of the disqualification. (Dela Torre v. COMELEC)


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(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 electiveofficials rendered by the Sanggunian must :

(a) be in writing;(b) state the facts and the law on which it was based; and(c) be signed by the members taking part in the decision. (Malinao v. Reyes)

Where an administrative case filed against an elective local official is notdecided before the expiration of his term of office, his subsequent reelectionoperates as a condonation of his previous misconduct and he cannot beremoved. (Aguinaldo v. Santos)

Where a deputy sheriff was dismissed from the service upon convictionfor serious misconduct and was barred from reinstatement to any position in

national or local government, it was held that such bar only applied to appointivepositions. He was not disqualified from running for an elective position. (Gregov. COMELEC)

Comment: See the case of Reyes v. COMELEC.

(3) Those convicted by final judgment for violating the oath of allegiance to theRepublic (LGC Sec. 40 (c));

(4) Those with dual citizenship (LGC Sec. 40 (d));

Dual citizenship as contemplated under this provision and theConstitution refers to dual allegiance. Consequently, persons with mere dualcitizenship do not fall under the disqualification. (Mercado v. Manzano)

The filing of a certificate of candidacy suffices as a renunciation ofAmerican (foreign) citizenship and effectively removes any disqualification acandidate may have as a dual citizen. (Mercado v. Manzano)

(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 circumscriptionof the law to the extent that it confines the term "fugitive from justice" to refer onlyto a person (the fugitive) "who has been convicted by final judgment." (Marquezv. COMELEC)

The term "fugitive from justice" includes not only those who flee afterconviction to avoid punishment, but likewise those who, after being charged, fleeto avoid prosecution. (Rodriguez v. COMELEC)

The intent to evade is the compelling factor that animates one's flight froma particular jurisdiction. And obviously, there can only be an intent to evade

prosecution or punishment where there is knowledge by the fleeing subject of analready instituted indictment, or of a promulgated judgment of conviction. Intentto evade on the part of a candidate must therefore be established by proof thatthere has already been a conviction, or at least a charge had been filed, at thetime of flight. (Rodriguez v. COMELEC)


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(6) Permanent residents in a foreign country or those who have acquired the right toreside abroad and continue to avail of the same right after the effectivity of theLocal Government Code (LGC Sec. 40 (f));

Sec. 68 of the Omnibus Election Code (BP 881) provides that "anyperson 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 personhas waived his status as permanent resident or immigrant of a foreign country inaccordance with the residence requirement provided for in the election laws."

(7) The insane or feeble-minded (LGC Sec. 40 (g));

(8) Other grounds, e.g.

(a) Vote-buying

Vote-buying is a ground for disqualification under Sec. 68 of the OmnibusElection Code (BP 881).

Vote-buying has its criminal and electoral aspects. Its criminal aspect todetermine the guilt or innocence of the accused cannot be the subject ofsummary hearing. However, its electoral aspect to ascertain whether theoffender should be disqualified from office can be determined in anadministrative proceeding that is summary in character. (Nolasco v.COMELEC)

(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 rightto 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 consecutiveterms in an elective local office. He must also have been elected to the sameposition for the same number of times before the disqualification can apply.(Borja v. COMELEC)

What are the effects of the filing of a disqualification case?

Any candidate who has been declared by final judgment to be disqualified shall

not be voted for, and the votes cast for him shall not be counted.

If for any reason a candidate is not declared by final judgment before an electionto be disqualified and he is voted for and receives the winning number of votes in suchelection, the Court or COMELEC shall continue with the trial and hearing of the action,inquiry or protest and, upon motion of the complainant or any intervenor, may during thependency thereof order the suspension of the proclamation of such candidate wheneverthe evidence of his guilt is strong.(RA 6646, Sec. 6)

C. Election Cases involving local elective officials: procedures

Appeal of decisions of COMELEC

The fact that decisions, final orders or rulings of the COMELEC in contests involving electivemunicipal and barangay offices are final, executory and not appealable, does not preclude arecourse to the Supreme Court by way of a special civil action of certiorari. (Galido v.COMELEC)


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Execution pending appeal in election cases

What are the recognized "good reasons" for execution pending appeal inelection 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)

A combination of two or more of these reasons will suffice to grant execution pendingappeal.

Note: The filing of a bond does not constitute a good reason. However, the trialcourt may require the filing of a bond as a condition for the issuance of acorresponding writ of execution to answer for the payment of damages which theaggrieved party may suffer by reason of the execution pending appeal.

3-term limit for elective officials

The term limit for elective local officials must be taken to refer to the right to be elected as wellas the right to serve in the same elective position. Consequently, it is not enough that anindividual has served 3 consecutive terms in an elective local office. He must also have beenelected to the same position for the same number of times before the disqualification can apply.(Borja v. COMELEC)

D. Vacancies and successions

When does a permanent vacancy arise?

Sequence for automatic succession

Temporary vacancies

Leaves of absence


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E. Local legislation

Who exercises local legislative power?

LGU Local legislativepower

Presiding Officer*

Province Sangguniang Panlalawigan Vice-Governor

City Sangguniang Panlungsod City Vice-Mayor

Municipality Sangguniang Bayan Municipal Vice-Mayor

Barangay Sangguniang Barangay Punong Barangay

* The presiding officer shall vote only to break a tie. (LGC Sec. 49 (a))

Veto power by local chief executive

Who may veto: Governor, city mayor or municipal mayor (LGC Sec. 55 (a));

What may be vetoed: Any ordinance of the sangguniang panlalawigan,panlungsod, or bayan in its entirety;

Any particular item or items* of an:

Appropriations ordinance;

Ordinance or resolution adopting a localdevelopment plan and public investment

program; Ordinance directing the payment or moneyor creating liability.

*In this case, the veto shall not affect the item /s notobjected to.

Grounds: The ordinance is ultra vires or prejudicial to the publicwelfare.

What are the tests of a valid ordinance?

(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.

(Magtajas v. Pryce Properties; Tatel v. Municipality of Virac)

Differentiate an ordinance from a resolution.

Ordinance Resolution

Nature Law Merely a declaration of thesentiment or opinion of alawmaking body on aspecific matter

Permanence General and permanent Temporary in nature

Need for 3rd reading? Requires a 3rd reading Does not require a 3rd


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reading, unless decidedotherwise by a majority ofall the Sanggunianmembers

(cf. Municipality of Paranaque v. V.M. Realty Corp.)

F. Judicial intervention

G. Disciplinary actions

Differentiate preventive suspension of elective local governmentofficials under the Local Government Code and under the OmbudsmanAct (RA 6770):

Local Government Code(RA 7160)

Ombudsman Act(RA 6770)

Grounds When evidence of guilt is strong,and given the gravity of the offense,there is great probability that thecontinuance in office of therespondent could influence thewitnesses or pose a threat to thesafety and integrity of the recordsand other evidence. (Sec. 63)

When evidence of guilt is strong,and (a) the charge against suchofficer or employee involvesdishonesty, oppression or gravemisconduct or neglect in theperformance of duty; (b) thecharges would warrant removalfrom the service; or (c) therespondent's continued stay inoffice may prejudice the case filedagainst him. (Sec. 24)

Who mayimpose

President, governor, or mayor, asthe case may be

Ombudsman or his Deputy

Length ofsuspension

Maximum of 60 days for any singlepreventive suspension

If several administrative cases arefiled, suspension shall not be more

than 90 days within a single year onthe same ground or groundsexisting and known at the time ofthe first suspension.

Until case is terminated by Officeof Ombudsman, but not more than6 months

Exception: When the delay in

the disposition of the case by theOmbudsman is due to the fault,negligence or petition of therespondent, in which case theperiod of such delay shall not becounted in computing the period ofsuspension.

Differentiate between preventive suspension and suspension as apenalty.

Notes on suspension as a penalty:

Cannot exceed the unexpired term of the respondent or a period of 6 months forevery administrative offense;

Such penalty shall not be a bar to the candidacy of the respondent so suspendedas long as he meets the qualifications required for the office


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Any administrative disciplinary proceeding against respondent is abated if in the meantime he isreelected, because his reelection results in a condonation of whatever misconduct he mighthave committed during his previous terms. (Malinao v. Reyes)

What are the grounds for disciplinary actions?

What is the procedure for administrative complaints?

What are the requisites for the validity of decisions in administrativecomplaints 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 suchdecision;(3) It must be signed by the members taking part in the decision.

(Malinaov. Reyes)

Can the President remove an erring local government official?No. Sec. 60 of the LGC provides that removal can be done only by order of the propercourt.

H. Recall

Definition

Nature

By whom exercised

Ground

How initiated

Election on Recall

Effectivity

Limitations


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I. Human Resources Development

Resignations

Preventive suspension of appointive local officials

What are the penalties which a local chief executive may impose?

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

In what instances can a private lawyer represent the LGU?

(1) When the municipality is an adverse party in a case involving the provincialgovernment or another municipality or city within the province (De Guia v. Auditor-General)

Test as to when a local government official can securethe services of private counsel: Nature of the action and the relief that is sought

(Alinsug v. RTC Branch 58)

K. The Local Boards

Title III. Other Provisions applicable to LGUs

A. Settlement of Boundary disputes

B. Local Initiative and Referendum

Differentiate between initiative and referendum.

Procedure

What is the jurisdiction of the COMELEC as regards initiative?Referendum?


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Book II. Local Government Taxation

How is income defined under the Local Government Code?

A. Taxation in General

What is the doctrine of supremacy of the national government overlocal governments in the context of taxation?

What is the rule concerning taxing powers of LGUs vis--vis thenational government?

GENERAL RULE: The taxing powers of LGUs cannot extend to the levy oftaxes, fees and charges of any kind on the National government, itsagencies and instrumentalities and LGUs. (LGC 133)

Exception: Real property taxes (LGC 232)

Exception to exception: (LGC 234)

What are the tax remedies available to the taxpayer?

Appeal to DOJsecretary(LGC 187)

Appeal to Board ofAssessment

Appeals(LGC 226)

Payment underprotest, with appeal

to BAA(LGC 252)

GROUND Question onconstitutionality orlegality

Non-satisfactionwith action ofassessor

PERIOD Within 30 days fromeffectivity

Within 60 daysfrom date of receiptof written notice ofassessment


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B. Real Property Taxation

Who may levy real property tax?

(1) Provinces;

(2) Cities;(3) Municipalities within the Metro Manila area (LGC 232)

C. Local Fiscal Administration

D. Property and Supply Management in the LGUs

E. Internal Revenue Allocation


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Part III. Local Government Units

1. The Barangay

A. Katarungay Pambarangay

B. Sangguniang Kabataan

2. The Municipality

3. The City

4. The Province

5. Appointive Local Officials common to allmunicipalities, cities, and provinces

6. Leagues of LGUs and elective officials

Miscellaneous and Final Provisions

I. Provisions for implementation

II. Transitory provisions

III. Application of the code to LGUs in the autonomous regions

A. ARMMB. CAR

IV. The Metropolitan Manila Development Authority

What is the jurisdiction of the MMDA?

What are the duties of the MMDA?

3004787 uploc gov final reviewer

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