Beruflich Dokumente
Kultur Dokumente
GENERAL PRINCIPLES
--o0o--
II. THE LOCAL GOVERNMENT CODE OF 1991:
SALIENT FEATURES
Four Major Parts of the Local Government Code of 1991
1. Book I General Provisions
2. Book II - Local Taxation and Fiscal Matters
3. Book III - Local Government Units
4. Book IV - Miscellaneous and Final Provisions
Effectivity: January 1, 1992
Scope of Application of Local Government Code
Applicable to:
1. all provinces
2. cities
3. municipalities
4. barangays
5. and other political subdivisions as may be created by law, and
6. to the extent provided in the Local Government Code (i.e, devolution of
powers):
a. officials
b. offices, or
c. agencies of the National Government
Aims of the LGC of 1991
The Code is meant to transform LGUs into self-reliant communities and
active partners in nation-building by giving them more powers, authority,
responsibilities and resources.
Rules of Interpretation
1. provision on power: liberally interpreted in favor of LGU; in case of doubt,
resolved in favor of devolution of powers;
2. ordinance or revenue measure: construed strictly against LGU enacting it
and liberally in favor of taxpayer;
3. tax exemptions, incentive or relief granted by LGU: construed against
person claiming;
4. general welfare provisions: liberally interpreted to give more powers to
LGUs in accelerating economic development and upgrading quality of life
for people in community;
5. rights and obligations existing on date of effectivity of LGC of 1991 and
arising out of contract or any other source of prestation involving LGU,
shall be governed by the original terms and conditions of said contract or
law in force at time such rights were vested; and
6. resolution of controversies arising under the LGC of 1991 where no legal
provision or jurisprudence applies, resort may be had to customs and
traditions in place where controversies take place.
3
THE LOCAL GOVERNMENT CODE OF 1991: SALIENT FEATURES /4
Other distinctions
The distinction between the two powers was enunciated in Drilon vs. Lim:
An officer in control lays down the rules in the doing of an act. If they are not
followed, he may, in his discretion, order the act undone or re-done by his
subordinates or he may even decide to do it himself. Supervision does not cover
such authority. The supervisor or superintendent merely sees to it that the rules are
followed, but he himself does not lay down such rules, nor does he have discretion
to modify or replace them. If the rules are not observed, he may order the work
done or re-done but only to conform to the prescribed rules. He may not prescribe
his own manner for doing the act. He has no judgment on this matter except to see
to it that the rules are followed.
By constitutional fiat, the heads of political subdivisions are subject to the
Presidents supervision only, not control, so long as their acts are exercised within
the sphere of their legitimate powers, and by the same token, the President may not
withhold or alter any authority or power given them by the Constitution and the
law. (Pimentel vs. Aguirre, 336 SCRA 201) Also, the DBM, by issuing Local
Budget Circular 55 which dictated a uniform amount that an LGU can disburse as
additional allowance to judges stationed therein, overstepped its power of
supervision over LGUs by imposing a prohibition that did not correspond with law
it sought to implement. (Dadole vs. COA, GR No. 125350, December 3, 2002)
Power of Supervision Over Liga. The Presidents power of general
supervision, as exercised by the DILG Secretary as his alter ego, also extends to the
Liga ng mga Barangay. It is not subject to control by the Chief Executive or his
alter ego. Hence, when respondent judge appointed the DILG as interim caretaker
to manage and administer the affairs of the Liga, she effectively removed the
management from the National Liga Board and vested control of the Liga on the
DILG. The acts of the DILG went beyond the sphere of general supervision and
constituted a direct interference with the political affairs not only of the Liga, but
more importantly of the barangay as an institution. What the DILG wielded was the
power of control which even the President does not have. (National Liga ng mga
Barangay vs. Paredes, 439 SCRA 130)
The Special Education Fund may be expended only for salaries and
personnel related benefits of teachers appointed by the local school board in
connection with the establishment and maintenance of extension class.
Extension classes are referred to mean additional classes needed to
accommodate all children of school age deserving to enter in public schools
to acquire basic education.
Likewise, the local Government Code reveals that expenses for
college scholarship grants are not among the projects for which the
proceeds of the SEF may be appropriated. While Secs. 100 c and 272 of the
LGC reproduced Sec. 1 of RA No. 5447, the granting of scholarship to poor
but deserving students was omitted in Secs. 100 c and 272 of the LGC.
(COA vs. Province of Cebu, GR No. 141386, November 29, 2001)
--o0o
IV. CREATION, CONVERSION, DIVISION, MERGER AND
CONSOLIDATION, AND ABOLITION OF LGUs
Creation of LGUs
A local government unit may be created, divided, merged, abolished, or its
boundaries substantially altered by law enacted by Congress in the case of a
province, city, municipality, or other political subdivisions, or by Sanggunian
Panlalawigan (provincial) or Sangguniang Panlungsod (city) ordinance in the case
of a barangay. (Sec. 6) The nature of the power to create LGUs is basically
legislative, hence it is conferred by the Constitution upon Congress and delegated
to the Sangguniang Panlalawigan and Sangguniang Panlungsod with respect to the
creation of barangays. The President has no power to create local government units.
(Municipality of Kapalong vs. Moya, 166 SCRA 70).
While the power to create barangays has been delegated to Sanggunian
Panlalawigan and Sangguniang Panlungsod, Congress, in order to enhance the
delivery of basic services in indigenous cultural communities, may create
barangays in such communities notwithstanding the requirements set forth by law.
[Sec. 385(a), LGC]
In Sema vs. COMELEC, GR No. 177597, July 16, 2008, the Supreme Court
voided the creation of the Province of Sharif Kabunsuan under MMA 201 enacted
by the ARMM Regional Legislative Assembly. Under RA 9054, or the Expanded
Organic Act for Muslim Mindanao, the Regional Legislative Assembly (RLA) has
been delegated the power to create barangays, municipalities and provinces. While
there is no constitutional prohibition for the ARMM RAL to create municipalities
and barangays within its territorial jurisdiction, this is not so in the case of the
creation of provinces and cities. The Court ruled that Section 19 of Article VI
of RA 9054, insofar as it grants to the ARMM Regional Legislative Assembly the
power to create provinces and cities, is void for being contrary to Section 5 of
Article VI of the Constitution and Section 20 of Article X of the Constitution, as
well as Section 3 of the Ordinance appended to the Constitution. The ARMM
Regional Legislative Assembly cannot create a province without a legislative
district because the Constitution mandates that every province shall have a
legislative district. Moreover, ARMM Regional Legislative Assembly cannot enact
a law creating a national office like the office of a district representative of
Congress because legislative power of the ARMM Regional Legislative Assembly
operates only within its territorial jurisdiction as provided in Section 20 of Article
X of the Constitution (Ibid.)
The creation or conversion of a local government unit to another level shall
be based on the following verifiable indicators of viability and projected capacity to
provide services:
a. Sufficient income and
b. Population and/or
c. Land Area
15
CREATION, CONVERSION, DIVISION, MERGER,
CONSOLIDATION AND ABOLITION OF LGUs /16
Creation of Barangays
Role of Barangays. As basic political unit, the barangay serves as the
primary planning and implementing unit of government policies, plans, programs,
projects and activities in the community, and as a forum wherein the collective
views of the people may be expressed, crystallized and considered, and where
disputes my be amicably settled. (Sec. 384, LGC)
Creation of Municipalities
Role of Municipalities. The municipality consisting of a group of
barangays, serves primarily as a general purpose government for the coordination
and delivery of basic, regular and direct services and effective governance of the
inhabitants within its territorial jurisdiction. Sec. 440, LGC)
Who Creates Municipality. A municipality may be created, divided,
merged, abolished or its boundary substantially altered only by an act of Congress,
subject to the criteria established in the Code. (Sec 441, LGC) Likewise, under RA
9054, the Regional Legislative Assembly of the Autonomous Region of Muslim
Mindanao is now conferred with the power to create municipalities within its
territorial jurisdiction.
The President has no power to create local government units. (Municipality
of Kapalong vs. Moya, 166 SCRA 70). However, in Municipality of San Narciso vs.
Mendez, 239 SCRA 11, the validity of the creation of the Municipality of San
Andres by the President through an executive order pursuant to Sections 68 and
2630 of the Revised Administrative Code was upheld by the Supreme Court. Even
if Executive Order No. 353 creating the Municipality of San Andres is a complete
nullity for being the result of an unconstitutional delegation of legislative power,
the peculiar circumstances obtaining in the case hardly could offer a choice other
than to consider the Municipality to have at least attained the status of a de facto
municipal corporation.
CREATION, CONVERSION, DIVISION, MERGER,
CONSOLIDATION AND ABOLITION OF LGUs /18
Likewise, in Municipality of Jimenez vs. Baz, 265 SCRA 182, the Supreme
Court ruled that where a municipality created as such by executive order is later
impliedly recognized and its acts are accorded validity, its creation can no longer be
questioned. A municipality has been conferred the status of at least a de facto
municipal corporation where its legal existence has been recognized and acquiesced
publicly and officially.
However, in Camid vs. Office of the President, 448 SCRA 711, the Supreme
Court ruled that Section 442 (d) of the Local Government Code does not serve to
affirm or reconstitute the judicially dissolved municipalities such as Andong in
Lanao del Sur which had been previously created by presidential issuances or
executive orders. The provision affirms the legal personalities only of those
municipalities such as San Andres of Quezon which may have been created using
the same infirm legal basis, yet were fortunate enough not to have been judicially
annulled. On the other hand, the municipalities challenged in actual cases before the
Supreme Court and subsequently judicially dissolved in cases such as Pelaez, San
Joaquin and Malabang, remain inexistent unless recreated through specific
legislative enactments, as done with the eighteen (18) municipalities certified by the
DILG. These municipalities derived their legal personality not from presidential
issuances or executive orders which originally created them or from Section 442(d)
but from the respective legislative status which were enacted to revive them. The
legal effect of the nullification of Andong in Pelaez was to revert the constituent
barrios of the voided town back into their original municipalities.
Substantive Requisites. 1) Average annual income of at least two million
five hundred thousand pesos for the last two consecutive years based on the 1991
constant prices; 2) a population of at least twenty-five thousand inhabitants; and
3) a contiguous territory 50 square kilometers. The creation of the new
municipality must not however reduce the income, population and land area of the
original municipality to less than the minimum requirement prescribed in the Code.
(Sec. 442, LGC)
Municipalities existing as of the date of the effectivity of the LGC shall
continue to exist and operate as such. Existing municipal districts organized
pursuant to presidential issuances or executive orders and which have their
respective elective set of elective municipal officials holding office at the time of
the effectivity of the LGC shall henceforth be considered as regular municipalities.
[Sec. 442 (d), LGC]
Creation of Provinces
Role of Provinces. A province, composed of cluster of municipalities, or
municipalities and component cities, and as a political and corporate unit of
government, serves as a dynamic mechanism for developmental processes and
effective governance of local government units within its territorial jurisdiction.
(Sec. 459, LGC)
Status of Sub-provinces
Existing sub-provinces are converted into regular provinces upon the
approval by a majority votes cast in a plebiscite to be held in the said sub-province
and the original province directly affected. (Sec. 462, LGC)
Plebiscite Requirement
When Conducted. Section 10 of the LGC provides that the creation,
division and merger, abolition or substantial alteration of the boundaries of local
government units must be approved by a majority of votes cast in a plebiscite in the
political unit or units directly affected. Such plebiscite shall be conducted by the
COMELEC within 120 days from the date of the effectivity of the law, not from its
approval The word approval could only mean effectivity as used and
contemplated in Section of the Code. The completion of the publication of the law
(September 1, 2000) should be the reckoning point in determining the 120-day
period within which to conduct the plebiscite, not from the date of its approval
(August 16, 2000) when the law had not yet been published. Since publication is
indispensable for the effectivity of a law (Tanada vs. Tuvera146 SCRA 446)), a
plebiscite can be scheduled only after the law creating a city took effect. (Cawaling
vs. COMELEC, supra)
Necessity of Plebiscite
RA 8528 changing the status of Santiago from an independent component
city to a component city is unconstitutional for its failure to provide that said
conversion should be submitted to the people of Isabela in a proper plebiscite, as
required by Section 10, Article X of the 1987 Constitution. A close analysis of the
said constitutional, provisions will reveal that the creation, division, merger,
abolition or substantial alteration of boundaries of local government units involve a
common denominator material change in the political and economic rights of the
local government units directly affected as well as the people therein. (Miranda vs.
Aguirre, GR No. 133064, September 16, 1999)
The Constitution imposes two conditions: (i) the creation, division, merger,
abolition or substantial alteration of boundary of local government unit must meet
the criteria fixed by the Local Government Code on income, population and land
area; and (ii) the law must be approved by the people by majority of the votes cast
in a plebiscite in the political units directly affected. (id)
The requirements of income, population and land area in Sections 7, 8 and 9
of the Local Government Code are imposed to help assure the economic viability of
the local government unit concerned. They were not imposed to determine the
necessity of a plebiscite of the people. (id)
CREATION, CONVERSION, DIVISION, MERGER,
CONSOLIDATION AND ABOLITION OF LGUs /26
The changes that will result from downgrading the city of Santiago from an
independent component city are many and cannot be characterized as insubstantial.
For one, the independence of the city as a political unit will be diminished. The city
mayor will be placed under the administrative supervision of the provincial
governor. The resolutions and ordinances of the city council of Santiago will have
to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by
the city will now have to be shared with the province. (id)
Reiterating the necessity of a plebiscite, the Supreme Court in Latasa vs.
COMELEC, 417 SCRA 601, ruled that substantial differences do exist between a
municipality and a city. For one, there is material change in the political and
economic rights of the local government unit when it converted from a municipality
to a city and undoubtedly, these changes affect the people as well. It is precisely for
this reason why Section 10 of Article X of the Constitution mandates that no
province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered without approval by majority of
votes cast in a plebiscite in the political units directly affected.
Prejudicial Question
A case involving a boundary dispute between local government units
presents a prejudicial question which must first be decided before plebiscites for the
creation of the proposed barangays may be held. Merely because a plebiscite
has already been held in regard to a propose barangay does not necessarily render
a pending petition for settlement of boundary dispute involving said barangay moot
and academic. (Pasig City vs. COMELEC, 314 SCRA 179)
--o0o--
Foodstuffs
Petitioner questioned the validity of ordinance No. 142, which prohibited
selling perishable foodstuffs outside the public markets; Ordinance No. 145, which
required all perishable foodstuffs to be inspected by the City Health Officer; and
Ordinance No. 150, which prohibited anyone other than the city to operate a public
market. The Supreme Court ruled that Ordinance No. 142 is a regulatory ordinance.
Ordinance No. 145 is intended to promote general welfare. Ordinance No. 150 was
enacted by the city to prohibit the operation of public markets by anyone other than
the city. The claim of petitioner that her market is not public, because it is privately
owned is unmeritorious. The test of public market is its dedication to service of the
general public and not its ownership. (Javellana vs. Kintanar, 119 SCRA 627)
Cockfighting License
It is the Sangguniang Bayan concerned alone which has the power to
authorize and license the establishment, operation and maintenance of cockpits, and
regulate cockfighting and commercial breeding of gamecocks within its territorial
jurisdiction. But its discretion is limited by PD 449, the Cockfighting Law of 1974,
in that it cannot authorize more than one cockpit per city or municipality, unless
such cities or municipalities have population of over 100,000, in which case two
cockpits may be established. Cockfighting is a valid matter of police regulation, as
it is a form of gambling essentially antagonistic to the aims of enhancing national
productivity and self-reliance limitation on the number of cockpits in a given
municipality is a reasonably necessary means for the accomplishment of the
purpose of controlling cockfighting, for clearly more cockpits equals more
cockfight. A municipal ordinance must not contravene the Constitution and any
statute. Ordinance No. 7 contravenes the Cockfighting Law in allowing three
cockpits in a city. (Tan vs. Perena, 452 SCRA 53)
Abatement of Nuisance
While a Sanggunian is empowered under the Local Government Code to
enact ordinances declaring, preventing or abating noise and other forms of
nuisances, it cannot declare a particular thing as a nuisance per se and order its
condemnation. It does not have the power to find as a fact, that a particular thing is
a nuisance with such thing is not a nuisance per se; nor it can authorize the
extrajudicial condemnation and destruction of that as a nuisance which in its nature,
situation or use is not such. These things must be determined and resolved in the
ordinary courts of law. If a thing be in fact a nuisance due to the manner of its
operation, that question cannot be determined by a mere resolution of a
Sanggunian. (AC Enterprises, Inc. vs. Frabelle Corp., 506 SCRA 625)
In Parayno vs. Jovellanos, 495 SCRA 85, it was held that a gas station
business could not be considered a nuisance which a municipality could summarily
abate in the guise of exercising police power. The abatement of nuisance without
judicial proceedings is possible only if it is a nuisance per se. A gas station is not a
nuisance per se or one affecting the immediate safety of persons and property,
hence it cannot be closed down or transferred summarily to another location. A
local government is considered to have properly exercised its police powers only
when the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State
and (2) the means employed are reasonably necessary for the attainment of the
object sought to be accomplished and not unduly oppressive. The first requirement
refers to the equal protection clause and the second, to the due process clause.
Respondent municipality failed to comply with due process
POWERS OF LOCAL GOVERNMENT UNITS /37
clause when it passed Res. No. 50. While it maintained that the gasoline filling
station of petitioner was less than 100 meters from the nearest public school and
church, the records do not show that it even attempted to measure the distance,
notwithstanding that such distance was crucial in determining whether there was
actual violation of Section 44. The different local offices that respondent
municipality tapped to conduct an investigation never conducted such measurement
either.
exemption privileges under the LGC is consistent with the State policy to ensure
autonomy of local government units. Hence, Cebu City has the power to collect
taxes from the MCIAA. (Mactan Cebu International Airport Authority vs. Marcos,
GR No. 120082, September 11, 1996)) But in MIAA vs. CA, GR No.155650, July
20, 2006, 495 SCRA 51, the Supreme Court declared that no taxes, fees, or charges
of any kind may be imposed by any local government unit against the National
Government, its agencies, or instrumentalities and that their properties shall not be
subject to levy, encumbrance, or sale. This would include real estate taxes on
properties intended for public use and for some public service.
One of the most significant provisions of the Local Government Code is the
removal of the blanket exclusion of instrumentalities and agencies of the national
government from the coverage of local taxation. Section 193 of the LGC provides
for withdrawal of tax exemption privileges by certain entities, including GOCCs,
except local water districts, cooperatives duly registered under RA 6938, non-stock
and non-profit hospitals and educational institutions. Although as a general rule,
LGUs cannot impose taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, this rule now admits an exception,
i.e., when specific provisions of the LGC authorized the LGUs to impose taxes,
fees or charges on the aforementioned entities.
(NPC vs. City of Cabanatuan, 401 SCRA 259)
Section 133 of the LGC, was not intended to be so absolute a prohibition on
the power of LGUs to tax the National Government, its agencies and
instrumentalities. The exemptions from real property taxes are enumerated in
Section 234, which specifically states that only properties owned by the Republic
of the Philippines or any of its political subdivisions is exempted from payment of
the tax. Clearly, instrumentalities or GOCCs do not fall within the exception under
Section 234. The express withdrawal of all tax exemptions accorded to all persons
natural or juridical, as stated in Section 193 of the LGC applies, without
impediment to the GSIS. (City of Davao vs. RTC Br XII, Davao City 467 SCRA
280)
Section 193 of the LGC is indicative of the legislative intent to vest broad
taxing powers upon local government units and to limit exceptions from local
taxation to entities specifically provided therein. There is reasonable classification
under the LGC to justify the different tax treatment between electric cooperatives
covered by PD 269 as amended, and electric cooperatives under RA 6938. Sections
193 and 234 of the LGC permit reasonable classification as these exceptions are not
limited to existing conditions and apply equally to all members of the same class.
(PHILRECA vs. Secretary of DILG, 403 SCRA 558)
The grant of taxing powers of local government units by the Constitution
and the Local Government Code does not affect the power of Congress to grant
exceptions to certain persons, pursuant to a declared national policy. The legal
effect of the constitutional grant to local government means that in interpreting
hinders or impede the automatic release of the IRA. (ACORD vs. Zamora,
459 SCRA 578) In Lucman vs. Malawi, 511SCRA 268, it was held that the
right to demand for the funds belongs to the local government itself through
the authorization of their Sanggunian.
Just Compensation. The government must pay the owner thereof just
compensation as consideration therefore. Just compensation means the fair market
value of the property or the equivalent for the value of the property at the time of its
taking. Anything beyond, that is more anything short of that is less, than just
compensation.
When eminent domain is exercised by a local government unit, the amount
to be paid for the expropriated property shall be determined by the proper court,
based on the fair market value of the property at the time of actual taking. While
Section 4 of Rule 67 of the Rules of Court provides that just compensation shall be
determined at the time of filing of the complaint for expropriation, such law cannot
prevail over Section 19 of RA 7160 which is a substantive law. (The City of Cebu
vs. Dedamo, 380 SCRA) It was also held that the value of the property shall be
ascertained as of the date it was actually taken, because it is as of that time that the
real measure of the owners loss may be fairly adjudged. (Nepomuceno vs. City of
Surigao, GR No. 146091, July 28, 2008) Once the value of the property is fixed by
the court, the amount shall earn interest at the legal rate until full payment is
effected. (Ibid.)
POWERS OF LOCAL GOVERNMENT UNITS /46
An expropriation suit falls within the jurisdiction of the RTC since it is
incapable of pecuniary estimation. (Barangay San Roque, Talisay, Cebu vs. Heirs
of Francisco Pastor, 334 SCRA 127 and Bardillon vs. Brgy. Masili of Calamba,
Laguna, supra)
2. For public use or purpose or welfare, for the benefit of the poor and the
landless;
The power of eminent domain must not be exercised arbitrarily even
if purposed for resolving a critical problem such as squatting. (Antonio vs.
Geronimo, 476 SCRA 340)
3. Only after a valid and definite offer had been made to, and not accepted by,
the owner.
The purpose of the requirement of a valid and definite offer to be
first made to the owner is to encourage settlements and voluntary
acquisition of property needed for public purposes in order to avoid the
expense and delay of a court action. It permits the land owner to receive full
compensation, and the entity acquiring the property, immediate use and
enjoyment of the property. A single bona fide offer that is rejected by the
owner will suffice. (Jesus is Lord Christian School Foundation vs.
Municipality of Pasig MM, 466 SCRA 235)
(3) Appeal - within the time and manner prescribed by the Rules of Court,
any party may elevate the decision to the sanggunian concerned to the proper
Regional Trial Court having jurisdiction over the area in dispute which shall decide
the appeal within 1 year from the filing thereof.
In Municipality of Sta. Fe vs. Municipality of Aritao, GR No.140474,
September 21, 2007, it was held that it is only in the exercise of its appellate
jurisdiction can the proper RTC decide the case, on appeal, should any party
aggrieved by the decision of the Sangguniang Panlalawigan elevate the same.
Presiding Officer
The vice-governor, the vice-mayor, and the punong barangay shall be the
presiding officer of the sanggunian but shall vote only in case of tie. In case of
inability of the presiding officer, the members shall elect a temporary presiding
officer from among themselves.
Being the acting governor, the Vice-governor cannot simultaneously
exercise the duties of the latter, since the nature of the duties of the Provincial
Governor calls for a full-time occupant to discharge them. The creation of a
temporary vacancy in the office of the Governor creates a corresponding vacancy in
the office of the Vice - governor whenever the latter acts as Governor by virtue
Sessions
The minimum number of sessions shall be once a week for the sanggunang
panlalawigan, sangguniang panlungsod and sangguniang bayan, and twice a month
for the sangguniang barangay. On the first day of session immediately following
the election of its members, the sanggunian shall by resolution, fix the day, time
and place of its regular sessions.
A special session may be called by the local chief executive or a majority of
the sanggunian members. Unless concurred in by two-thirds vote of the members
present, no matter may be reconsidered at the special session except those stated in
the notice. A majority of all the members of the sanggunian shall constitute a
quorom.
Quorom
A majority of all members of the Sanggunian who have been elected and
qualified shall constitute a quorum to transact official business. (Section 53, LGC)
Quorom is defined as that number of members of a body which, when
legally assembled in their proper places, will enable the body to transact its proper
business or that number which makes a lawful body and gives it power to pass upon
a law or ordinance or do any valid act. (Zamora vs. Caballero, 419 SCRA 384)
Majority when required to constitute a quorum, means the number greater than
half or more than half of any total. (Id.)
The entire membership, including the presiding officer and ex-officio
members, must be taken into account in computing the quorum of the sangguniang
panlalawigan, for while the Constitution merely states that majority of each House
shall constitute a quorum Section 53 of the local Government Code is more
exacting as it requires that the majority of all members of the Sanggunian who
have been elected and qualified shall constitute a quorum. (Id.)
Review of Ordinances
The sangguniang panlalawigan shall review ordinances and resolution of
cities and municipalities to determine if they are within their power. (Sec. 56) The
sangguniang panlungsod or bayan shall review sangguniang barangay ordinances to
determine if they are lawful. (Sec. 57)
The sanggunian concerned shall review the ordinance within 30 days from
receipt thereof. If no action is taken within 30 days, the ordinance is presumed
consistent with the law, and therefore valid and deemed approved.
The Sangguniang Panlalawigan was without authority to review and
disapprove a Sangguniang Bayan resolution authorizing the mayor to expropriate a
lot for a farm center and government sports facilities on the ground that the
expropriation was unnecessary since there were still available lots for the purpose.
The municipality has the power to exercise the power of eminent domain pursuant
to the Local Government Code. The resolution is valid and can be used as authority
to petition for the condemnation of the property of petitioners. (Moday vs. CA, 268
SCRA 586)
RA 7942 does not give MMDA the authority to review land use plans and
zoning ordinances of cities and municipalities. This is only found in its
implementing rules which made a reference to EO 72. EO 72 expressly refers to
comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly not
a CLUP nor intended to be one. Instead it is a very specific ordinance which
reclassified the land use of a defined area in order to prevent the massive effects of
a possible terrorist attack. It is Ordinance No. 8119 which was explicitly
POWERS OF LOCAL GOVERNMENT UNITS /57
formulated as the Manila (CLUP) and Zoning Ordinance of 2006 CLUPs are the
ordinances which should be submitted to the MMDA for integration in its
metropolitan physical framework plan and approved by the HLURB to ensure that
they conform with national guidelines and policies. (SJS vs. Atienza, 545 SCRA 92)
Enforcement of disapproved
ordinances/resolutions
Any attempt to enforce an ordinance or resolution approving the local
development plan and public investment program, after the disapproval thereof,
shall be sufficient ground for the suspension or dismissal of the official or
employee concerned.
Effectivity of Ordinances
a. Unless otherwise stated in the ordinance, it shall take effect
after 10 days from posting at the provincial capitol or city, municipal or
barangay hall and two other conspicuous places.
b. The gist of all ordinances with penal sanction shall be
published in a newspaper of general circulation in the province. In the
absence of such newspaper, the ordinance shall be posted in all
municipalities and cities of the province where the sanggunian of origin is
situated.
c. In highly urbanized and independent component cities, in
addition to posting, the main features of the ordinance shall be published in
a local newspaper of general circulation. In the absence of such newspaper,
it shall be published in any newspaper of general circulation.
Enforcement of Local Ordinances
The Local Government Code imposes upon the city mayor the duty to enforce all
laws and ordinances relative to the governance of the city. As the chief executive
of the city, he has the duty to enforce ordinances as long as they have not been
repealed by the Sanggunian or annulled by the courts. He has no other choice. It is
his ministerial duty to do so. (Social Justice Society vs. Atienza, 517 SCRA 657)
In City Engineer of Baguio vs. Baniqued, GR 150270, November 26, 2008,
it was held that the issuance of notice of demolition by the City Mayor is never a
judicial, ministerial or rule-making function. It is strictly an act of law enforcement
and implementation.
--o0o--
the change of residence must be voluntary, and the residence at the place
chosen for the new domicile must be actual. The Supreme Court agreed
with the Second Division of the COMELEC that Dumpit-Michelena failed
to establish that she has abandoned her former domicile.
iii. Ability to read and write Filipino or any other local dialect
iv. Registered voter of the local government unit, or of
the district where he intends to be elected in the case of the members of the
sanggunian
Age Qualification
a) Candidates in provinces and highly urbanized cities at least
23 years old
b) Candidates for mayor and vice mayor of component cities or
municipalities at least 21 years old
c) Candidates for Sanggunian member in component cities and
municipalities at least 18 years old
d) Barangay officials at least 18 years old
e) Sanggunian Kabataan at least 15 to 17 years old
The required age qualification must be possessed by any candidate,
national or local, on the day of election.
In People vs. Tuanda, 181 SCRA 692, the Supreme Court did not
make a distinction whether the offender is a lawyer or a non-lawyer, nor did
it declare that such offense constitutes moral turpitude when committed by a
member of the Bar but not so when committed by a non-member. (Villaber
vs. COMELEC, 369 SCRA 126)
Direct bribery is a crime involving moral turpitude. The Local
Government Code is a codified set of laws that specifically applies to local
government units. Section 40 thereof specifically and definitely provides for
disqualifications of candidates for elective local positions. It is applicable to
them only. On the other hand, Section 12 of the Omnibus Election Code
speaks of disqualifications of candidates for any public office. It deals with
the election of all public officers. Thus, Section 40 of the Local Government
Code insofar as it governs the disqualifications of candidates for local
positions, assumes the nature of a special law which ought to prevail.
(Magno vs. COMELEC 390 SCRA 495)
b. Those removed from office as a result of an administrative case.
An elective local official who was removed from office prior to
January 1, 1992 is not disqualified from running for elective local office.
(Grego vs. COMELEC, 274 SCRA 481)
c. Those convicted by final judgment for violating his oath of allegiance to the
Republic.
d. Those with dual citizenship.
The phrase dual citizenship in RA 7160, Sec. 40(d) and RA 7854,
Sec. 20 must be understood as referring to dual allegiance. Consequently,
persons with mere dual citizenship do not fall under this disqualification.
For candidates with dual citizenship, it should suffice if, upon the filing of
their certificates of candidacy, they elect Philippine citizenship to terminate
their status as persons with dual citizenship considering that their condition
is the unavoidable consequence of conflicting laws of different states.
(Mercado vs. Manzano, 307 SCRA 630)
However, if dual citizenship is acquired voluntarily pursuant to RA
9225, The Dual Citizenship Law, the same can be a ground for
disqualification to the right of suffrage.
e. Fugitives from justice in criminal or non-political cases.
The term includes not only those who flee after conviction to avoid
punishment, but likewise who, after being charged, flee to avoid
prosecution. (Marquez vs. COMELEC, 243 SCRA 538)
f. Permanent residents in foreign country or those who have the right to reside
abroad and continue to avail of it.
A Filipino citizens immigration to a foreign country constitutes an
abandonment of his domicile and residence in the Philippines. In other
words, the acquisition of a permanent residency status is a foreign country
constitutes a renunciation of the status as a resident of the Philippines.
(Caasi vs. CA, 191 SCRA 229)
The act of a person surrendering her greencard to the Immigration
and Naturalization Service of the US Embassy is clear indication of her
intention to abandon her US residency. (Gayo vs. Verceles, 452 SCRA 504)
When the evidence of the alleged lack of residence qualification is
weak or inconclusive and it clearly appears that the purpose of the law
would not be thwarted by upholding the right to the office, the will of the
electorate should be respected. In this case, considering the purpose of the
residency requirement, i.e., to ensure that the person elected is familiar with
the needs and problems of his constituency, there can be no doubt that
private respondent is qualified. (Gayo vs. Verceles, citing Perez)
g. The insane or feeble-minded.
Date of Election
Unless otherwise provided by law, the elections for local officials, except
for barangay officials, shall be held every three (3) years on the second Monday of
May.
Manner of Election
a. The governor, vice governor, mayor, vice mayor, and
punong barangay shall be elected at large in their respective units by
qualified voters therein. Sangguniang Kabataan chairman for each barangay
shall be elected by the registered voters of the katipunan ng barangay. (Sec.
41.)
b. For provinces and cities with two or more legislative
districts, the elective member of the sanggunian shall be elected by
legislative districts. Provinces, cities and municipalities in Metropolitan
Manila with only one legislative district shall be divided into two districts
by the COMELEC. [Sec. 3 (a) and (b), RA 7166; Sec. 1, RA 7887]
c. Regular elective members of the Sanggunian of cities and
municipalities shall be elected at large. (Sec. 1, RA 7887)
d. Sangguniang barangay members shall be elected at large.
e. The president of the league of sanggunian members of
component cities and municipalities shall be ex officio member of the
sangguniang panlalawigan.
Term of Office
The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected. (Section 8, Art. X, PC)
Under Section 2 of RA 9164. the term of office all barangay and
sangguniang kabataan officials shall be three years. The counting of the three
consecutive terms shall be reckoned from the 1994 barangay elections. Thus,
Laceda who has served as Punong Barangay of Panlayaan for three consecutive
terms, was disqualified from running for the fourth time as punong barangay.
(Laceda, Sr. vs. Limena, GR 182867, November 25, 2008) In this case, while it is
true that under RA 8806, the municipalities of Sorsogon and Bacon were merged
and converted into a city thereby abolishing the former and creating Sorsogon City
as new political unit, it cannot be said that for the purpose of applying the
prohibition in Section 2 of RA 9164, the Office of the Punong barangay of
Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a
different local government post as that of the office of Punong Barangay of
Barangay Panlayaan, Sorsogon City, is the same as before conversion.
Consequently, the inhabitants of the barangay are the same. They are the same
group of voters who elected Laceda to be their Punong barangay for three
consecutive terms and over whom Laceda held power and authority as their Punong
Barangay. Moreover, RA 8806 did not interrupt Lacedas term.
Requisites
For the prohibition or disqualification to apply, two requisites must concur:
(1) the official concerned has been elected for three consecutive terms in the same
local government post and (2) that he has fully served three consecutive terms.
(Borja vs. COMELEC, 295 SCRA 157; See also Latasa vs. COMELEC, 417 SCRA
574; Ong vs. Alegre, 479 SCRA 473 and Laceda Sr. vs. Limena, supra)
Assumption by Succession. The term limit for elective local officials must
be taken to refer to the right to be elected as well as the right to serve in the same
elective position. Consequently, it is not enough that an individual has served three
consecutive in an elective local office, he must also have been elected to the same
position for the same number of times before the disqualification can apply. (Borja
vs. COMELEC, 295 SCRA 157 reiterated in Adormeo vs. COMELEC GR
No.147927, February 4, 2002)
But in Ong vs. Alegre, 479 SCRA 473, the Supreme Court held that Ongs
assumption as mayor of San Vicente, Camarines Sur from July 1, 1998 to June 30,
2001, constitutes service of full term and should be counted as full term
served in contemplation of the three term limit prescribed by the Constitution
While Ongs opponent won in an election protest in the 1998 mayoralty race, and
therefore was the legally elected mayor, that disposition was without practical
and legal use and values, having been promulgated after the term of the contested
office has expired. Ongs contention that he was only a presumptive winner in the
1998 mayoralty derby as his proclamation was under protest did not make him less
than a duly elected mayor. His proclamation by the Municipal Board of
Canvassers as duly elected mayor in 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from the
start to finish of the term, should be legally be taken as service for a full term in
contemplation of the three-term rule. This case equally applies to Morales because
he was the mayor of Mabalacat, Pampanga continuously for the entire period
without any break notwithstanding the decision in the electoral protest case ousting
him as mayor. Such circumstance does not constitute an interruption in serving the
full term, hence he is disqualified. (Rivera III vs. COMELEC, GR No. 167591, May
6, 2007)
LOCAL OFFICIALS /72
SFP was elected and served three consecutive term as municipal councilor.
During his second term, he succeeded as vice-mayor due to the retirement of the
incumbent vice-mayor. His assumption as vice-mayor was considered an
involuntary severance from his office as municipal councilor resulting an
interruption in his second term of service. It was held that it could not be deemed to
have been by reason of voluntary renunciation because it was by operation of law,
hence qualified to run again as municipal councilor. (Montebon vs. COMELEC,
551 SCRA 50)
election, is no longer covered by the prohibition for two reasons. First, a subsequent
election is no longer an immediate reelection after three consecutive terms. Second,
the intervening period constitutes an involuntary interruption in the continuity of
service. (Socrates vs. COMELEC, 2002, 391 SCRA 457)
A necessary consequence of the interruption of service is the start of a new
term following the interruption. An official elected in recall election serves the
unexpired term of the recalled official. This unexpired term is in itself one
term for purposes of counting the three-term limit. A local official who serves a
recall term should know that the recall term is in itself one term although less than
three years. This is the inherent limitation he takes by running and winning in the
recall election. (Ibid.)
4. Physicians may practice their profession even during office hours only on
emergencies and without monetary compensation. (Sec. 90)
Prohibited Appointment
1. No elective or appointive local official shall be eligible for
appointment or designation to any public office during his tenure.(Flores
vs.Drilon, 223SCRA 568)
2. Unless otherwise allowed by law or by the primary function of his
office, no elective or appointive local official shall hold any other office.
3. Except for losing candidates in barangay elections, no candidate
who lost in any election should be appointed to any office within one year
after election. (Sec. 94)
4. Preventive suspension
a. Political Disciplinary Authority
i. Official of province, highly urbanized city or
independent component city President
ii. Official of component city or municipality Governor with recommendation of the
Sanggunian Panlalawigan
iii. Barangay official Mayor with recommendation of the Sanggunian
Bayan/Panlungsod
b. Grounds
i. Strong evidence of guilt.
ii. Probability that continuance in office can influence
or endanger safety of records.
c. Duration
i. Single suspension 60 days
ii. Several suspension 90 days within a year
In criminal cases, a 90-day preventive suspension imposed
by the Sandiganbayan on a local elective official instead of the
maximum 60 days provided by Section 63 of the Local Government
Code is not flawed where the same was based on Section 13 of RA
3019, malversation of public funds being an offense involving fraud
against government funds and is clearly included among crimes
contemplated under that section. The Anti-Graft and Corrupt
Practices Act implicitly recognizes that the power of preventive
suspension lies in which the criminal charged is filed. The provision
pendent lite applies to all persons indicted upon a valid information
under the Act, whether they be appointive or elective officials. It
applies to a Municipal mayor, a Governor, a Congressman. It is
mandatory for a the court to place under preventive suspension a
public officer accused before it. (Nicart vs. Sandiganbayan, 495
SCRA 73)
6. Decision
To render a decision in administrative cases involving elective
officials, the decision of the Sanggunian must be in writing and stating
clearly and distinctly the facts and the reasons for such decisions. (Malinao
vs. Reyes, 255 SCRA 616) The so-called decision of a member of a
Sanggunian cannot be regarded as decision of the Sanggunian for lack of
signatures of the requisite majority. (Ibid.)
8. Administrative Appeal
a. Period 30 days
b. Appellate authority
i. Sangguniang panlungsod of component cities and
sangguniang bayan sangguniang panlalawigan
ii. Sangguniang panlalawigan and sangguniang
panlungsod of highly urbanized cities and independent
component cities President
iii. President final (Sec. 67)
c. Execution
The decision shall be executory pending appeal and the
respondent shall be considered as under preventive suspension
should he win the appeal. In the event that the appeal results in
exoneration, he shall be paid his salary and such other emoluments
during the pendency of the appeal.(Sec. 68)
The decisions of the Office of the President under the Local
Government Code are immediately executory even pending appeal
because the pertinent laws under which the decisions were rendered
mandated them so. In sum, the decisions of the Office of
the President are final and executory. No motion for reconsideration
is allowed by law but the parties may appeal the decision to the
Court of Appeals. The appeal, however, does not stay the execution
of the decision, Thus, the DILG Secretary may validly move for its
immediate execution. (Calingin vs CA, 434 SCRA 173)
The phrase final and executory in Sections 61c, 67 and 68,
respectively, simply means that the administrative appeals will not
prevent the enforcement of the decisions. The decision is
immediately executory but the respondent may nevertheless appeal
the adverse decision to the Office of the President or to the
Sangguniang Panlalawigan, as the case may be. (Don vs. Lacsa, GR
170810, August 7, 2007)
---oo0oo---
HUMAN RESOURCES AND DEVELOPMENT
A. Casual Employees
The local chief executive may employ casual employees without
approval of the Civil Service Commission for not more than 6 months. (Sec.
77)
B. Prohibited Interests
1. It is prohibited for any local government official to directly or
indirectly:
a. Engage in any business transaction with the local
government unit of which he is an official or over which he
has supervision, whereby money is to be paid or property is
to be transferred out of the resources of the local government
unit to him.
b. Hold interest in any cockpit or game licensed by the local
government unit.
The Local Government Code which specifically
prohibits local government officials from possessing
pecuniary interest in a cockpit licensed by the local
government unit and, which in itself, prescribes the
punishment for violation thereof, is paramount to the Anti-
Graft Law which penalizes possession of prohibited interest
in a general manner. (Teves, vs. Sandiganbayan, 447 SCRA
309)
Absent any evidence that the mayor divested himself
of his ownership over the cockpit, his ownership thereof is
rightly to be presumed because a thing once proved to exist
continues as long as is usual with things of that nature.
(Ibid.)
c. Purchase property forfeited to the local government unit for
unpaid taxes or by virtue of a legal process at the instance of
the local government unit.
d. Be a surety for any person contracting with the local
government unit.
e. Use any public property of the local government unit for
private purpose. (Sec. 89)
2. It is unlawful for any public official and his relatives within the
fourth civil degree of consaguinity or affinity to enter into any
contract for the construction, acquisition, operation or maintenance
of any project or procurement of materials or equipment with the
local government. (Sec. 520)
85
--oo0oo
REVIEW NOTES
By
TABLE OF CONTENTS
I. General Principles. . . . . . . . . . . . . . . . . . . . . . . . . P 1
II. The Local Government Code of 1991:
Salient Features. . . . . . . . . . . . . . . . . . . . . P 2
Rules of Interpretation. . . . . . . . . . . . . . . . . . . . .. P 2
Declaration of State Policies. . . . . . . . . . . . . . . ... P 4