Beruflich Dokumente
Kultur Dokumente
Introduction
Evardone v. COMELEC
Secretary of Health v. CA
I. Basic Principles
(2) Consultations
LGC Sec. 2(c): “It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate LGUs, NGOs and POs, and other concerned
sectors of the community before any project or program is
implemented in their respective jurisdictions.
pollution;
climatic change;
depletion of non-renewable resources;
loss of crop land, rangeland, or forest cover;
and
extinction of animal or plant species
The LGC shall apply to all provinces, cities, municipalities, barangays, and other
political subdivisions as may be created by law, and, to the extent herein
provided, to officials, offices, or agencies of the national government.
(LGC Sec. 4)
While the power to merge administrative regions is not expressly provided for
in the Constitution, it is a power which has traditionally been lodged with the
President to facilitate the exercise of the power of general supervision of local
governments. (Abbas v. COMELEC)
Tax ordinance / revenue measure: Construed strictly against the enacting LGU,
and liberally in favor of the taxpayer.
In both instances, there must be a plebiscite called for the purpose in the political
unit or units directly affected. [This is to prevent gerrymandering (i.e., the practice of
creating legislative districts to favor a particular candidate or party) and the creation or
abolition of units for purely political purposes.]
*Where a plebiscite was held with its principal subject being the
conversion of the municipality of Mandaluyong into a highly-urbanized city
Notes:
When the inquiry is focused on the legal existence of a body politic, the action is
reserved to the State in a proceeding for quo warranto or any other direct
proceeding. It must be brought in the name of the Republic of the Philippines
and commenced by the Sol-Gen or the fiscal when directed by the President of
the Philippines, and it must be timely raised. (Municipality of San Narciso v.
Mendez)
In the absence of another valid statute to give color of authority to its creation,
the organization of the municipality under such unconstitutional statute is invalid,
and the municipality cannot be considered as a de facto corporation.
In the case of Municipality of Malabang v. Benito, the Supreme Court held that
EO 386 (creating the municipality of Balabagan out of the barrios & sitios of
Malabang, Lanao del Sur) was unconstitutional. The mere fact that Balabagan
was organzied at a time when the statute had not been invalidated could not
make it a de facto corporation, as, independently of the applicable Administrative
Code provisions, there was no other valid statute to give color of authority to its
creation.
POLITICAL / CORPORATE /
GOVERNMENTAL MUNICIPAL
Liability of LGU to 3rd LGU cannot be held liable Can be held liable ex
persons contractu or ex delicto
Exceptions:
NOTE: This must be (1) If statute provides
related to Art. 24 of the otherwise;
Local Government (2) NCC 2189
Code.
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 LGU’s 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 Municipal
Board, the local chief executive cannot unilaterally withdraw it from use as a public
market without the approval of the Board. (Cruz v. CA)
What powers do LGUs have under the general welfare clause of the
LGC?
(4) Those powers which are essential to the promotion of the general welfare.
(LGC Sec. 16)
Within their respective territorial jurisdictions, LGUs shall ensure and support,
among other things:
(1) Those ordinances / resolutions necessary to carry into effect and discharge
powers and duties conferred upon the municipal council by law; and
(2) Those ordinances / resolutions necessary and proper to provide for the
health and safety, promote the prosperity, improve the morals, peace, good
order, comfort, and convenience of the municipality and the inhabitants
thereof, and for the protection of property therein.
(U.S. v. Salaveria)
Notes:
To constitute public use, the public in general should have equal or common rights to
use the land or facility involved on the same terms, however limited in number 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 is properly
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 do
not make a distinction between nuisance per se and nuisance
per accidens, thus creating a presumption that LGUs can abate
all kinds of nuisances without need of a judicial order.
What are the basic services and facilities which LGUs must provide to
their constituents?
Health services Same; health centers Health services, See municipality and
and clinics including hospitals and province
tertiary health services
environmental
management system
Inter-municipal Adequate
telecommunication communication and
services transportation
facilities
From the share of LGUs in the proceeds of national taxes and other local
revenues and funding support from the national government, its instrumentalities
and GOCCs which are tasked by law to establish and maintain such services or
facilities. (LGC Sec. 17 (g))
What are the powers granted to LGUs under Sec. 18 of the LGC?
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Under this provision, LGUs have the power and authority to:
(1) establish an organization that shall be responsible for the efficient and effective
implementation of their development plans, program objectives and priorities;
(2) create their own sources of revenue and to levy taxes, fees, and charges which
shall accrue exclusively for their use and disposition and which shall be retained
by them;
(3) have a just share in national taxes which shall be automatically and directly
released to them without need of any further action;
(4) have an equitable share in the proceeds from the utilization and development of
the national wealth and resources within their respective territorial jurisdictions
including sharing the same with the inhabitants by way of direct benefits;
(a) The land has ceased to be economically feasible and sound for
agricultural purposes as determined by the DA; or
(b) The land shall have substantially greater economic value for
residential, commercial, or industrial purposes, as determined by the
sanggunian concerned.
(5) The reclassification does not exceed the following limits at the time of the
passage of the ordinance:
Comprehensive Land Use Plan approved by the HLURB (in the case
of provinces, highly urbanized cities, independent component cities
and the cities and municipalities of M.M.) or the Sangguniang
Panlalawigan (in the case of component cities and municipalities);
Certification from the local HLURB specifying the total area of zoned
agricultural lands in the LGU concerned based on the approved
Comprehensive Land Use Plan or Zoning Ordinance prior to the
application for conversion;
Certification from the DAR indicating that such lands are not
distributed or covered by a Notice of Valuation under CARP; and
Certification from DENR that the area applied for reclassification has
been classified as alienable and disposable, and is not needed for
forestry purposes in case the area applied for falls within public lands.
(AO 363, Sec. 1B (5))
Socialized housing: refers to housing programs and projects covering houses and lots
or homelots only undertaken by the government or the private
sector for the underprivileged and homeless citizens which shall
include sites and services developments, long-term financing,
liberalized terms on interest payments, and such other benefits in
accordance with RA 7279.
What are the requisites for entering into a contact by the LGU?
(Sec. 22c)
General supervision, to ensure that the acts of LGUs are within the scope of their
prescribed powers and functions. (Art. X, Sec. 4, 1987 Constitution)
Also, the President may direct the appropriate national agency to provide
financial, technical, or other forms of assistance to an LGU upon its (the LGU’s)
request. (LGC Sec. 25c)
Control Supervision
What is the nature of the power of the Secretary of Justice to review the
constitutionality or legality of tax ordinances and revenue measures?
The power granted by Sec. 187 of the Local Government Code to the Secretary
of Justice to review the constitutionality or legality of tax ordinances and revenue
measures is a mere act of supervision and not of control. The Secretary of
Justice is not permitted to submitted his own judgment for the judgment of the
local government that enacted the measure. (Drilon v. Lim)
PROVINCIAL GOVERNOR:
Chairman of the provincial peace and order council; shall oversee the
implementation of the provincial public safety plan (RA 6975, Sec. 51
(a))
Upon good cause shown, the President may, directly or through the
Commission, motu proprio restore such deputation withdrawn. (RA 8551,
Sec. 65)
Have the duty to sponsor periodic seminars for members of the PNP
assigned to detailed in his LGU in order to update them regarding
local ordinances and legislations;
Have the power to impose, after due notice and summary hearings,
disciplinary penalties for minor offenses* committed by members of
the PNP assigned to their respective jurisdictions
Upon good cause shown, the President may, directly or through the
Commission, motu proprio restore such deputation withdrawn. (RA 8551,
Sec. 65)
The same holding is true with respect to the contention on the operational
supervision and control exercised by the local officials. These officials would
simply be acting as representatives. (Carpio v. Executive Secretary)
What is the nature of the relationship of the province and the cities
and municipalities within its territorial jurisdiction?
Notes:
If the reviewing authority fails to act on said EOs within 30 days after
their submission, they shall be deemed consistent with law and
therefore valid.
A. Qualifications
(a) Governor |
Vice-governor |
Member of sangguniang panlalawigan |
Mayor | At least 23 years old on
Vice-mayor | election day
Member of sangguniang panglungsod |
of highly urbanized cities |
B. Disqualifications
What are the grounds for disqualification under the Local Government
Code?
(1) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment, within two (2)
years after serving sentence (LGC Sec. 40 (a));
As a general rule, crimes mala in se involve moral turpitude, while crimes mala
prohibita do not. In the final analysis, however, whether or not a crime involves
moral turpitude is ultimately a question of fact and frequently depends on all the
circumstances surrounding the violation of a statute. (Dela Torre v. COMELEC)
Probation only suspends the execution of the sentence. It does not suspend 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));
(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 not decided
before the expiration of his term of office, his subsequent reelection operates as
a condonation of his previous misconduct and he cannot be removed.
(Aguinaldo v. Santos)
Where a deputy sheriff was dismissed from the service upon conviction for
serious misconduct and was barred from reinstatement to any position in national
or local government, it was held that such bar only applied to appointive
positions. He was not disqualified from running for an elective position. (Grego
v. COMELEC)
(3) Those convicted by final judgment for violating the oath of allegiance to the
Republic (LGC Sec. 40 (c));
Dual citizenship as contemplated under this provision and the Constitution refers
to dual allegiance. Consequently, persons with mere dual citizenship do not fall
under the disqualification. (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 circumscription of the
law to the extent that it confines the term "fugitive from justice" to refer only to a
person (the fugitive) "who has been convicted by final judgment." (Marquez v.
COMELEC)
The term "fugitive from justice" includes not only those who flee after conviction
to avoid punishment, but likewise those who, after being charged, flee to avoid
prosecution. (Rodriguez v. COMELEC)
The intent to evade is the compelling factor that animates one's flight from a
particular jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment where there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of conviction. Intent
to evade on the part of a candidate must therefore be established by proof that
there has already been a conviction, or at least a charge had been filed, at the
time of flight. (Rodriguez v. COMELEC)
(6) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of the
Local Government Code (LGC Sec. 40 (f));
Sec. 68 of the Omnibus Election Code (BP 881) provides that "any person who is
a permanent resident of or an immigrant to a foreign country shall not be
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qualified to run for an elective office under such Code unless said person has
waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws."
(a) Vote-buying
Vote-buying has its criminal and electoral aspects. Its criminal aspect to
determine the guilt or innocence of the accused cannot be the subject of
summary hearing. However, its electoral aspect to ascertain whether the
offender should be disqualified from office can be determined in an
administrative proceeding that is summary in character. (Nolasco v.
COMELEC)
The term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served 3 consecutive
terms in an elective local office. He must also have been elected to the same
position for the same number of times before the disqualification can apply.
(Borja v. COMELEC)
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 election to be
disqualified and he is voted for and receives the winning number of votes in such
election, 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 the
pendency thereof order the suspension of the proclamation of such candidate whenever
the evidence of his guilt is strong.
(RA 6646, Sec. 6)
The fact that decisions, final orders or rulings of the COMELEC in contests involving elective
municipal and barangay offices are final, executory and not appealable, does not preclude a
recourse to the Supreme Court by way of a special civil action of certiorari. (Galido v.
COMELEC)
What are the recognized "good reasons" for execution pending appeal in
election cases?
(Ramas v. COMELEC)
A combination of two or more of these reasons will suffice to grant execution pending
appeal.
Note: The filing of a bond does not constitute a good reason. However, the trial
court may require the filing of a bond as a condition for the issuance of a
corresponding writ of execution to answer for the payment of damages which the
aggrieved party may suffer by reason of the execution pending appeal.
The term limit for elective local officials must be taken to refer to the right to be elected as well
as the right to serve in the same elective position. Consequently, it is not enough that an
individual has served 3 consecutive terms in an elective local office. He must also have been
elected to the same position for the same number of times before the disqualification can apply.
(Borja v. COMELEC)
D. Vacancies and successions
Temporary vacancies
Leaves of absence
E. Local legislation
* The presiding officer shall vote only to break a tie. (LGC Sec. 49 (a))
Appropriations ordinance;
Ordinance or resolution adopting a local
development plan and public investment
program;
Ordinance directing the payment or money or
creating liability.
*In this case, the veto shall not affect the item /s not
objected to.
welfare.
Ordinance Resolution
Need for 3rd reading? Requires a 3rd reading Does not require a 3rd
reading, unless decided
otherwise by a majority of
all the Sanggunian
members
F. Judicial intervention
G. Disciplinary actions
Length of Maximum of 60 days for any single Until case is terminated by Office of
suspension preventive suspension Ombudsman, but not more than 6
months
If several administrative cases are
filed, suspension shall not be more Exception: When the delay in
than 90 days within a single year on the disposition of the case by the
the same ground or grounds Ombudsman is due to the fault,
existing and known at the time of negligence or petition of the
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Cannot exceed the unexpired term of the respondent or a period of 6 months for
every administrative offense;
Such penalty shall not be a bar to the candidacy of the respondent so suspended as
long as he meets the qualifications required for the office
H. Recall
Definition
Nature
By whom exercised
Ground
How initiated
Election on Recall
Effectivity
Limitations
Resignations
What are the penalties which a local chief executive may impose?
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J. Practice of Profession
Practice of profession
(1) When the municipality is an adverse party in a case involving the provincial
government or another municipality or city within the province (De Guia v. Auditor-
General)
Procedure
A. Taxation in General
GENERAL RULE: The taxing powers of LGU’s cannot extend to the levy of
taxes, fees and charges of any kind on the National government, its
agencies and instrumentalities and LGU’s. (LGC 133)
(1) Provinces;
(2) Cities;
(3) Municipalities within the Metro Manila area (LGC 232)
1. The Barangay
A. Katarungay Pambarangay
B. Sangguniang Kabataan
2. The Municipality
3. The City
4. The Province
A. ARMM
B. CAR