Professional Documents
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Crombonds LOCGOV Compiled Transcript v2 PDF
Crombonds LOCGOV Compiled Transcript v2 PDF
Dec. 7 class
I LOCAL GOVERNMENTS
Q: Can you find the term “local government unit” in the Constitution?
Yes. The title of Article X is “Local Government.” The term, “local government unit” is used in Sec. 5, 6, 13
and others. Local government units are also referred to as “territorial and political subdivisions” (Sec. 1,
Art. X)
Q: Are these elements needed only for creation? Or are they also for continued existence?
A: They are for both creation and continued existence of an LGU.
Q: There are several barangays in Pampanga which are still covered by lahar. Would these be
considered as existing LGUs still?
A: No. They do not have inhabitants and a territory. (Not sure about this answer. Agra didn’t say what the
correct answer was.)
Autonomous regions
The BJE had all the requirements of a state, thus, it was a state in all but name. The Constitution prohibits
having a state within a state.
Q: How come the framers of the Constitution chose these two areas as possible autonomous
regions?
A: These regions share common and distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics. (Sec. 15, Art. X)
Creation of LGUs
1. autonomous regions,
2. provinces,
3. cities,
4. municipalities,
5. barangays.
Q: There was a proposal to create the barrio as an LGU. Assuming that law is passed, would that
be unconstitutional?
A: Yes. The barrio is not included in the enumeration in the Constitution. The enumeration is exclusive.
Q: There are three milestones in the LGU’s life: creation, incorporation, and corporate existence.
Do these occur at the same time?
A: No. An LGU is created on the day its charter takes effect.
An LGU is incorporated on the day its charter is ratified by a majority vote in a plebiscite.
An LGU’s corporate existence commences when the chief executive and a majority of its sanggunian is
elected and qualified.
o SEC. 14. Beginning of Corporate Existence. - When a new local government unit is created, its
corporate existence shall commence upon the election and qualification of its chief executive
and a majority of the members of its sanggunian, unless some other time is fixed therefor by the
law or ordinance creating it.
Q: In the law, waters 15km from the shoreline are considered “municipal waters.” Do we count
those waters for purposes of creation on an LGU? (missed in v.1)
For purposes of creation, only land area is material. The law is clear.
The aggregate territory which includes waters is not the criteria for creation under the 1991 LGC (sec.
131)
Cities
Q: What is the relationship between provinces and component cities, and provinces and
independent cities?
A: Provinces exercise direct supervision over component cities.
Q: Who would have the power of supervision over highly-urbanized and independent cities?
A: The President has direct supervision over highly-urbanized and independent cities.
Q: Can the mayor of Muntinlupa today rescind the contract entered into by the previous mayor?
A: No. The rule of corporate succession applies to the local governments.
The real party in the contract is the LGU itself, not the mayor.
Q: Is an LGU a quasi-corporation?
A: Yes. They are also called municipal corporation proper.
Administrative Agencies
Public Corporations
(quasi-
corporations)
LGUs (municipal
corporation
proper)
For local government units, their powers are confined to their locality or territorial jurisdiction.
Thus, these powers are called intramural powers.
Their powers within their territory is similar to that of the national government (i.e. broad). They also
possess the three fundamental powers of : police power, taxation, and eminent domain.
Dec. 11 class
II LOCAL AUTONOMY
Q: Is our local government bureaucracy the same as Japan, the US, Britain?
A: No. The US has a federal system while we have a unitary system.
They are similar in the sense that some aspects of governance, like currency and foreign relations, are still
within the domain of the national government.
In terms of powers given to the federal states in the US, LGUs in the Philippines are also granted
legislative power.
Q: Can Congress provide for legislation that all our regions will become states like the US?
A: No. The Constitution defines a unitary form of government for the Philippines,
o although the Constitution does not use the term “unitary.”
1. The Constitution provides that the LGUs shall be under the general supervision of the President, either
directly or indirectly.
2. The Constitution uses the term “territorial and political subdivision.” (Sec. 1, Art. X)
o This implies that LGUs are smaller units of the same national government.
3. Constitutional history (which has always provided for a unitary setup ever since the 1935 Constitution).
4. The term “local autonomy” is used only for a unitary setup.
5. Case law.
Q: In a federal setup, do federal states have a claim against the federal government?
A: Yes. In a unitary setup, LGUs cannot sue the national government.
Q: Can the Bangsamoro or any other LGU have a claim to assert independence?
A: No.
Anatomy of autonomy
Q: An LGU wanted to incorporate a subsidiary. They approached the SEC, and one of the SEC
lawyers said that the LGU cannot create a subsidiary because it does not have the express
authority to do so. Do you agree?
A: No LGUs enjoy residual powers.
It is true that there is no express authority to do so. However, by virtue of the liberal view of local
autonomy, the LGUs can exercise a power which is not prohibited or forbidden by the Constitution and
statutes. (p. 16 of reviewer)
Decentralization
ARMM
Q: How would you differentiate the charter of QC from the charter of ARMM?
A: The charter of QC (and other LGUs) can be amended by Congress through an ordinary legislative
enactment.
The Charter of the ARMM can only be amended if the legislative enactment is ratified in a plebiscite by
the people in ARMM.
Devolution
Q: What is devolution?
A: It is the act by which the national government confers power and authority upon the various LGs to
perform specific functions and responsibilities.
Q: What can we learn from the cases of AC Enterprises v. Frabelle Properties, Iloilo City Zoning
Board v. Gegata-Abecia Funeral Homes, and LTO v. City of Butuan? (see p. 18 of reviewer)
A: AC Enterprises – regulatory functions of the National Pollution Control Commission were devolved to
the LGs. Thus, LGs are allowed to conduct inspections after due notice.
Iloilo City Zoning – The power to issue permits and locational clearances for locally-significant projects is
now lodged with cities and municipalities with comprehensive land use plans. This power was devolved
from the HLURB. Now, the HLURB may only issue clearances to nationally or regionally significant
projects. It also retained its power to act as an appellate body over zoning decisions.
LTO – Cities now have the power to regulate and grant franchises for the operation of tricycles for hire.
This was devolved from the LTFRB. Registration of motor vehicles is still retained by the LTO.
Q: Who determines what powers can be devolved and powers which are retained?
A: Devolution is a legislative act.
The determination of which powers to be devolved and which ones to be retained is a political question.
Powers not devolved are retained by the relevant national government agency.
Devolution is power-specific.
Supervision, Control
President
Direct General or indirect
Autonomous regions, provinces within autonomous regions,
provinces outside autonomous regions, component cities,
highly-urbanized cities, municipalities,
independent component cities. barangays.
Provinces
Direct indirect supervision
component cities and municipalities, and barangays
Cities Municipalities
direct supervision
barangays
Q: Describe the relationship between the president and Makati City (and other highly-urbanized
and independent cities).
A: The President exercises direct supervision over Makati City.
Q: What can the President not do to barangays? What can the President do to provinces outside
ARMM and Makati City?
A: Supervision is the power of a superior officer to see to it that lower officers perform their function in
accordance with law. It involves the
o power to review ordinances and declare them ultra vires or illegal,
o the power to discipline,
o the power to integrate development plans,
o the power to resolve boundary disputes,
o the power to approve leaves,
o accept resignations,
o fill up vacancies in the sanggunian,
o and the power to augment basic services. (pp. 20-21 of reviewer)
These powers can be exercised by the President over those units which is directly supervised by him/her
(i.e. highly-urbanized and independent cities, provinces outside of ARMM).
It does not involve control.
Q: There are only 2 national government agencies which were given authority by the Congress to
review ordinances. What are they?
1. A: DOJ over tax ordinances;
2. Department of Budget and Management (DBM) over appropriations ordinances.
Q: In what case can the DENR, without any law as there is none, direct provinces to submit to it
ordinances for review?
A: It cannot do that. It would amount to control. Only the Congress has control.
Q: Can the DOJ say that instead of imposing a P10 tax, we should now impose an ad valorem of
tax P15?
A: No. That would amount to control since it is a substitution of judgment by the DOJ to that of a local
government.
Q: How come the President doesn’t have the authority to review ordinances of barangays?
A: The President only has indirect supervision over barangays. It is the cities and municipalities which
exercise direct supervision over barangays.
Q: Can the DOJ declare a tax ordinance to be unjust, oppressive, excessive, and confiscatory?
A: No. That is a question of fact which must be answered only by the courts. Review of tax ordinances, as
an exercise of supervision, is only limited to questions of law. Otherwise, it would amount to control
which the DOJ does not have.
Dec. 14 class
Supervision
Relationship between the president and local government is supervision. Depending on the hierarchy in
the organizational structure, it can be either direct or indirect. In so far as those LGUs under the indirect
supervision of the president, by law, the president cannot do anything. In the same way when we speak of the
provinces. The provinces have no authority, by law, to reverse the decisions or discipline the officials of the basic
political unit (barangay). If there is such a law, then that would be allowed. But our laws, specifically the 1991 LGC,
does not allow for intervention to bypass the next level.
Intervantion, Ordinances
Intervention is also limited by law. While the president exercises direct supervision over provinces outside
ARMM, independent cities or highly independent cities, the president has no authority to review ordinances of
these local governments. Why? Because there is no law.
At present, only two departments have been given by law the authority to review ordinances, namely,
Other agencies cannot, on their own, absent any law, arrogate unto themselves the power to review ordinances.
the LGU can provide for hospitalization benefits even without the approval of the president, because the
approval of the president is not required by law.
DBM cannot impose a limitation for the allowances of judges because under the law, they’re depending
on the financial capacity of the LGU.
o Thereby imposing a limitation (at the time it was trying to impose a cap of 5000 pesos).
o SC said, that cannot be done because it will amount to control because it is imposing the
limitation by executive fiat not by legislation.
DAR has no authority over the expropriation of agricultural land because there is no law which gives DAR
that authority.
o The authority of DAR pursuant to the Comprehensive Agrarian Reform Program law will be
conversion.
o Expropriation, in effect, is not conversion.
Because when you expropriate, the land, from private ownership, becomes
governmental.
When you talk about conversion, it is private to private.
o In the same way that DAR has no authority over classification of lands, because DAR’s authority is
limited to conversion.
Camarines Sur
In the case of Camarines Sur, the SC said,
Cockfighting Law,
The LGU cannot violate the Cockfighting Law, obviously.
Cable TV franchise
LGUs cannot also give/extend cables, television franchises
because this authority was given exclusively to the National Telecommunications Commission.
This is not a shared power.
The LGU is precluded from issuing business permits from PCSO outlets.
Otherwise, the PCSO charter will be amended and that’s not the intention of the 1991 LGC despite the fact that the
PCSO charter is an earlier law. Again, StatCon, earlier, versus later—normally it’s later—unless of course the earlier
law is a special law.
Going back to the case of PAGCOR, now, the PAGCOR charter has been amended. Now, they have to get the
consent of the host LGU. But prior to this charter, consent was not needed. Otherwise, PAGCOR (did he mean the
LGU?) will become a toothless tiger. That was the pronouncement of the code.
Summary
Again, to summarize the three pages, follow the law. Unless of course the law is unconstitutional. My example
was: DENR was given autonomy to have control over LGUs. But right now, that is the law, and it is presumed valid
until declared otherwise.
Powers
Powers. It is important, obviously, to determine whether the power is constitutional and / or statutory. If
it’s purely statutory and not constitutional, then Congress can amend. It can even take away. But if it is
constitutional, then Congress cannot take away by ordinary legislation.
Power to Legislate
Power to Tax
The power to tax is a constitutional power. Therefore, it cannot be taken away.
Can Congress impose limitations on this power? Yes,
because the constitution says, ‘subject to such limitations as congress may impose.’
Statutory. As emphasized in the case of Manila vs Laguio, the bottom part of p. 28, it says here,
‘the general welfare clause, is the delegation, in statutory form, of the police power of the State
to the LGUs.’
And therefore, can Congress repeal Section 16, LGC (General Welfare Clause)? Yes, because it is
only given to [LGUs] by Congress as a statutory power.
Although some people will argue, if we take away this power, then you will stifle people, render inutile local
autonomy. How can you be a true agent of the people if you don't have police power? So this could be the power
argument against the reading.
Expropriation power
Is the power to expropriate a constitutional or statutory power (of LGUs)? Here, it is a statutory power. In
the commentary of Fr. Bernas, he refers to this power not as eminent domain but inferior domain. Because LGUs,
as the condemnor, must strictly comply with all the requirements enumerated under the 1991 LGC.
When that particular ordinance was reviewed by the province, the province said, ‘you should
have chosen the property of Y.’ That was unlawful unconstitutional
o that in effect amounted to substitution of the judgment of the lower, of the supervised.
o That amounted to control.
o That went beyond the legal question. It went into the issue of wisdom and propriety.
What would be the recourse if the choice of the property was capricious, whimsical?
Go to court, before the expropriation proceedings,
not before the higher LGU, because the limitation of the higher LGU is confined to supervision.
If the province expropriates, then your only recourse would be the courts, because the President, as we
have earlier discussed, has no authority to review ordinances enacted by provinces.
As discussed by a lot of Supreme Court cases, there are two requisites for a valid exercise of
police power. Namely,
both requirements must concur and must always be present:
1. one, lawful subject, citing due process, equal protection, public interest required, and
2. lawful method, particularly pertaining to the procedure.
No that cannot be done, because while there might be a lawful subject—to ease traffic—the means will
be unreasonable.
There are a lot of cases about beerhouses, motels, LGU cannot provide for a wholesale closure because not all
beerhouses are engaged in adult activities.
Therefore, via police power. Howeverr, a LGU can order the closure of a particular establishment, a
particular beerhouse, for as long as the owner is accorded due process.
So, notice, hearing and investigation.
1. If you read carefully section 16, the first part of that section pertains to the first branch. Meaning,
whatever is given by law, the LGU can exercise that. What is given can be exercised.
So can a LGU abate a nuisance per se? Yes, under branch 1.
2. The second part of section 16 pertains to the second branch. Anything to do with promotion of morals,
public policy, public welfare, even if there’s no express provision in the local government code, can be
exercised. (…unintelligible…)
Can a LGU impose a curfew? Yes, under branch 2.
Because there’s no express provision in the 1991 local government code authorizing LGUs to curtail the mobility of
people. The justification of local governments will be,
LGU regulation
Can an LGU regulate a profession?
No, because the authority to regulate is given to the Professional Regulation Commission.
In the same way that a LGU cannot give or extend a franchise of cable TV
What can a local government do insofar as cable TV operators are concerned? What can a local government do
insofar as lotto outlets are concerned? What can a local government do insofar as professions are concerned?
According to the SC that cannot be done because that is not one of the remedies for nonpayment of
taxes. For collecting… to impose payment of delinquent taxes.
Eminent domain
What should happen first, the ordinance for eminent domain or the expropriation case? The ordinance.
Resolution v Ordinance
(This is actually a TANGENT see below: “ eminent domain continued” for the rest of the requirements)
Therefore, when they congratulate Manny Pacquiao, whether he wins or he loses, what’s the appropriate form?
Resolution or ordinance? Resolution.
But if they give Manny Pacquiao 10,000 pesos from the public coffers, is that resolution or
ordinance? Ordinance
because there is an appropriation of public funds. Although typically, a lot of LGUs which would use the
term resolution.
Why do you think would a lot of LGUs would rather use the term “resolution” rather than “ordinance?”
Because not all resolutions are subject to review by the higher LGU.
There are only 2 resolutions subject to review by the next higher LGU:
(1) the local development plan, and
(2) public investment program.
But as we all know, what’s more important, the title or the substance? The substance.
What’s another reason why it’s important to distinguish between ordinances and resolutions?
(1) First one is the process. All ordinances are subject to review by the higher LGU, but only some resolutions
subject to review.
o When you talk about the veto power by the governor and the mayor, the punong barangay was
not given that power.
o Why? Because the punong barangay presides over the sessions of the sanggunian. It is awkward
and unfair for a presider, who can vote, to later on render useless the voting by the sangguniang
barangay.
o Unlike in the case of the mayor. The mayor today, does not preside over the sanggunian. But
earlier on, under the 1983 LGC, the mayor presided over the sessions of the sanggunian. Can
Congress revert to the old system? Yes.
Some people say that that will violate the separation of powers. But as we earlier discussed there is no separation
of powers when we talk about LGUs, similar to the separation of powers of the National government according to
the constitution. We have separation of powers today but that separation was defined by congress and therefore
congress can redefine by amending the law, so we can revert to the old system.
(2) The other reason aside from the process would be the issue of legality of the measure.
o And this was underscored in a lot of cases pertaining to expropriation.
o The law says ordinance. Even if the substance of the measure is an ordinance but the title is
"resolution" according to the Supreme Court: that is unlawful.
o Therefore follow the law: it says "ordinance" - ordinance, if the law says otherwise, then for
those who know the distinction, and there is a chart in your reviewer showing when it is an
ordinance or a resolution ....(he didn't finish the thought)
There was one example here of a sports and recreational facility. Can the government expropriate for this
purpose? Yes. But how come in this case the SC said it was unlawful?
Remedies against an LGU for not paying after the court has decided just compensation:
but when you talk about reclassification; it is from one type of use: agri, to another type of use: non-agri.
Local Legislation
Local legislation is known as subordinate legislation. Ordinances, because they are local laws, must be subordinate
to the Constitution, statutes, and its charter. Local legislation is also known as denominated legislation, it must
comply with substantive and procedural requirements. Local legislation also enjoys the presumption of
constitutionality and validity.
o In one case regarding the amendment for a zoning ordinance SC said it can be done as an
exception. Because LGUs are in the best position to address local concerns, that is the principle
of subsidiary.
1. In one case -- who had the authority to demolish fish pens LLDA or Lakeshore?
o In the other 2 cases the SC said the LLDA had the authority to issue cease and desist orders
because it was an issue which involves several LGUs.
i. Naturally a National Agency or GOCC entrusted to oversee not just one LGU but several
of them should prevail over one LGU.
Conflict between national and local - generally the national government prevails, unless there is a law that says
otherwise.
Mayor Veto
The mayor can approve or disapprove (technical term: to Veto) certain items of or the entire ordinance. When can
a mayor do an item veto? (From handout 3.12.1)
1. Appropriations ordinance,
2. an ordinance or resolution adopting a local development plan and public investment program, or
3. an ordinance directing the payment of money or creating liability.
o (lifted from reviewer) The requisites of an action for declaratory relief are:
1. the subject matter of the controversy must be a deed, will, contract or other written
instrument, statute, executive order or regulation, or ordinance;
2. the terms of said documents and the validity thereof are doubtful and require judicial
construction;
3. there must have been no breach of the documents in question;
4. there must be an actual justiciable controversy or the "ripening seeds" of one between
persons whose interests are adverse;
5. the issue must be ripe for judicial determination; and
6. adequate relief is not available through other means or other forms of action or
proceeding.
o Thus, an action for declaratory relief questioning two resolutions and an ordinance by a
sanggunian panlungsod is premature where said issuances merely endorsed favorably to the
Housing Land Use and Regulatory Board (HLURB) an application to develop a memorial park. The
sanggunian has not yet acted on the application with finality. The HLURB, being the sole
regulatory body for housing and land development, has the final say on the matter. Under the
doctrine of primary administrative jurisdiction, courts cannot or will not determine a controversy
where the issues for resolution demand the exercise of sound administrative discretion, requiring
the special knowledge, experience, and services of the administrative tribunal to determine
technical and intricate matters of fact (Ferrer, Jr. vs. Roco, Jr., G.R. No. 174129, July 5, 2010).
Corporate powers are enumerated under the law (Section 22,1991 LGC) but this list is not
exclusive
because of number 6 : exercise such other powers as are granted to corporations, subject to the
limitations provided in the 1991 LGC and other laws.
Implied powers
Aside from having residual powers which are powers which are not prohibited but can be exercised. Under the
view of local autonomy, they have implied powers: power to create has the power to abolish.
For this part it would be really helpful to memorize sections 5-7 of Art X ng Constitution.
Sources of Revenue
Where do LGUs get their money? Or in other words, what are their sources of funds?
There are constitutional and statutory sources :
o LGUs shal have a just share, as determined by law, in the national taxes which shall be
automatically released to them ( Section 6, ArticleX ).
o All LGUs shall have a 40% share in the national internal revenue taxes.
This is simply the mode wherein LGUs collect their own taxes from their territorial jurisdiction.
Some people call “share in national wealth” : national wealth tax, is this proper?
Not really, since the proceeds from these operations aren’t taxes at all. They are “shares” from the
profits from national wealth exploitation projects.
Ex. Mining operations in location X have to pay an excise tax to the government. The LGU in location
X gets a cut from that tax.
Quezon province has a source of oil and an oil refinery thereon. To move the oil it has a pipe that
passes through Laguna. Who gets a share of the oil proceeds?
There is a source of oil being exploited outside the legal territorial jurisdiction of Laguna. Can
they get a share?
The constitution has a list of sources of revenue. Is this a finite list of sources?
Levying Taxes
Can that power be given to local governments? (sir was acting shady about the recit answer so I
added an excerpt from a tax book to elucidate )
The law right now provides that only the BIR shall have that power.
The law-making body of the government and its political subdivisions exercise the power of
taxation. The powers to enact laws and ordinances, and to impose and collect taxes are given to the
Congress.
o Non-delegation o f Legislative Power to Tax. In its strict sense, the power to make tax laws
cannot be delegated to other branches of the government. Since peculiarly and exclusively
legislative in nature, the power to make .tax laws cannot be exercised by the executive or
judicial branch of the government. (Luzon stevedoring co. vs.Court of Tax Appeals, 163 SCRA
647)
o Therefore, when the power to tax is delegated to the local government units (LGUs),- only
the legislative branch of the LGU can exercise the power. Also, if delegated to the President,
it is limited to administrative discretion subject to valid standards.
Can you give an example that is levied by a province? (matrix lifted from reviewer into a
understandable format) The underlined ones are items he specifically asked : “____ is under what
authority to tax?”
Provinces
Tax on Transfer of Real Property Annual Fixed Tax for Every Delivery Truck or
Ownership Tax on Business of Printing and Van of Manufacturers or Producers,
Publication Wholesalers of, Dealers, or Retailers in, Certain
Franchise Tax Tax on Sand, Gravel and Other Products
Quarry Resources Real Property Tax
Professional Tax Special Education Fund Levy
Amusement Tax Ad Valorem Tax on Idle Lands
Special Levy on Land Benefited by Public
Works
Cities
Tax on Transfer of Real Property Business Tax on Exporters, and on
Ownership Tax on Business of Printing and Manufacturers, Wholesalers and Retailers of
Publication Essential Commodities
Franchise Tax Tax on Sand, Gravel and Other Business Tax on Contractors
Municipalities
Business Tax on Manufacturers Business Tax on Banks
Business Tax on Wholesalers, Distributors, or Business Tax on Peddlers
Dealers Business Tax on all other Businesses
Business Tax on Retailers Community Tax Real Property Tax for Metro-
Business Tax on Exporters, and on Manila Municipalities
Manufacturers, Wholesalers and Retailers of Special Education Fund Levy Ad Valorem Tax
Essential Commodities on Idle Lands Special Levy on Land Benefited
Business Tax on Contractors Benefited by by public works
Public Works
Barangays
Tax on Stores or Retailers with fixed business establishments (ex. Sari-sari store)
When you talk about the national Bureaucracy; national, local who allocates what kinds of taxes
can be levied by the National (BIR), by customs etc..
Congress again.
Shares in Taxes
If you want to question a TAX ordinance for being illegal what is your remedy? Who will have
jurisdiction?
The department of Justice
o Only two bodies in the LGC have the authority to review local ordinances
1. DBM department of Budget and management
2. DOJ for TAX ordinances
BIR
Yes he can, when there is a national unmanageable public sectordeficit (this is a technical term).
This is when the Philippines cannot repay any of its debts.
o This is different from a fiscal crisis – because were always in a state of fiscal crisis!
o but in no case shall the allotment be less than thirty percent (30%) of the collection of
national internal revenue taxes (Section 284,1991 LGC).
Automatically released
Can the Department of Budget and Management say that before LGUs can receive their share in
the IRA they must submit a local development plan?
No. Sec 6 Art X again – National taxes shall be automatically released to them.
Here is the LGC version:
o The share of each LGU shall be released, without need of any further action, directly to the
provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly basis
within five (5) days after the end of each quarter, and which shall not be subject to any lien
or holdback that may be imposed by the national government for whatever purpose (Section
286, 1991 LGC).
The President cannot withhold 10% of the IRA without complying with the requirements under Section
284 of the 1991 LGC. This would be violative of local autonomy and fiscal autonomy (Pimentel vs. Aguirre,
G.R. No. 132988,July 19, 2000).
Can congress this time in a general appropriations act withhold money from LGUs until they reach
their internal revenue targets?
Fiscal autonomy
Administrative autonomy
If you will compare the 1983 local government code to the current one, people will say that
democratization has been strengthened and institutionalized – do you agree? Why?
Yes, aside from the decentralization and devolution concepts we learned in earlier chapters, among
others, and the most relevant to this topic, in the 91 LGC we saw shift of emphasis from state to civil
society. This refers to the process by which civil society participates directly in government
programs and systems of governance.
In other words: the LGC gave us the 7 venues for popular participation. Namely:
1. local special bodies;
2. prior mandatory consultation;
3. recall;
4. disciplinary action;
5. initiative and referendum;
6. sectoral representation; and
7. Partnership and assistance.
7. PEOPLES PARTICIPATION
Calro lives in Paranque and leads a group of civic minder people (Carlo’s Planeteers). There is a
proposal to put up a power plant there (By Agra Power Plant builders), but Calro and his gang
don’t want it there. What are his options?
Code Stuff
Sec. 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior
approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are
to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance
with the provisions of the Constitution.
2(c) : It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, non-governmental and people's
organizations, and other concerned sectors of the community before any project or program is
implemented in their respective jurisdictions.
26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the
duty of every national agency or government-owned or -controlled corporation authorizing or
involved in the planning and implementation 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 local government units,
nongovernmental organizations, and other sectors concerned and explain the goals and objectives of
the project or program, its impact upon the people and the community in terms of environmental or
ecological balance, and the measures that will be undertaken to prevent or minimize the adverse
effects thereof.
The APPB consulted with the Planeteers, representing the community, already. What if they
completely ignore any of the demands or concerns of the Planeteers? Will it prevent APPB from
completing the project?
APPB can still push through – as long as they consult with the local communities, that particular
requirement is complied with. They do not need to heed any of their demands (strictly speaking).
What are the requirements before APPB can start a national project that affects the
environmental and ecological balance of local communities can be implemented?
What are the programs that are covered by this (section 27)?
Is starting a Lotto covered by this rule? What about Mooring facility? Dumpsite?
No a lotto is neither a program nor a project of the national government, but of a charitable
institution: the Philippine Charity Sweepstakes.
No, a mooring facility does not fall within this.
Which local special body will you go to if the Planeteers wanted to oppose the powerplant?
Development council ? School board ? Health board ? Peace and order council?
The recommendations were ignored by the sanggunian, what else can the Planeteers do?
Initiative and referendum
What is the sanggunian enacted an ordinance (not a resolution) authorizing the construction of
the power plant, what will be your remedy?
Referendum. Here, the law-making body submits to the registered voters of its territorial jurisdiction,
for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-
making authority.
Does the application of local initiatives extend to both resolutions and ordinances?
The application of local initiatives extends to all subjects or matters which are within the legal powers of
the sanggunians to enact, which undoubtedly includes ordinances and resolutions.
For it to be otherwise would trivialize the democratization under the 91 LGC.
Recall
The Mayor signed an ordinance that you did not like. Can you recall the mayor?
Yes
No recall shall take place within one (1) year from the date of the official's assumption to office or;
one (1) year immediately preceding a regular local election (Sec 74 LGC)
A simple reading of this provision can be misleading though. Check the reviewer for the nuances.
Last Pahabol Questions
At this this point can you file a case against the mayor for abuse of authority?
Didn’t answer
Should there be a women’s rep in all the sanggunians in the Philippines? Labor rep? Urban Poor
rep?
Q: Would you find the words, “governor,” “mayor,” etc. in the Constitution?
A: No. Those are only found in the Local Government Code.
Q: The term limits (i.e. three years and not more than 3 consecutive terms) in the Constitution
pertain to what type of local officials?
A: Only to local elective officials, except barangay officials. (Sec. 8, Art. X)
For appointive officials, the term is determined by law.
Q: What is the effect if the mayor resigns? Would that be considered a full term?
A: Yes, it is considered as a term with regard to the three-term limit. There was voluntary
renunciation.
Q: A Mayor was placed for suspension for one year. Would that be considered as a term?
A: No, because he did not fully serve the term.
Preventive suspension
3.there is a great probability that the respondent, who continues to hold office, could influence
the records and other evidence.
However, failure to answer despite several opportunities is construed as a waiver to present
evidence.
o In this case, preventive suspension may be imposed even if an answer hasn’t been filed.
(Joson v. CA)
The requisites are different if it is the Ombudsman who imposes preventive suspension.
o There’s no need for an answer. The Ombudsman Act provides for the requisites. (Carabeo v.
CA, p. 71 of reviewer)
Term continued
Q: If you were later on disqualified as a candidate, yet you were the one elected, and as an effect,
you are ousted from the position, can you run again?
A: Yes. That cannot be considered a term, with regard to the 3-term limit, because your election was
invalid.
First requirement is absent.
Q: When you resign from office, will that be considered a full term?
A: Yes.
Q: When you assume a higher position or a different position (eg. you run for Congress and win
while you are still Mayor), will that be considered a full term [as mayor]?
A: Yes. Similar to resignation,
there was voluntary renunciation when you run for office.
Q: During your third term as a municipal mayor, your municipality is converted to a city. Do they
have two distinct personalities?
A: In terms of corporate personality, they are different.
For purposes of applying the three-term limit, the third term mayor cannot run again.
o Although they have different corporate personality, they are still composed of the same
constituency and area, and so, the three-term limit will apply. (Latasa v. COMELEC)
Q: Assuming the territory was enlarged or decreased. Will the rule be different?
A: If the territory is enlarged, the constituency and territory would be different.
o Thus, the three-term limit will not apply.
However, if the territory is decreased, the constituency and territory for that particular area will still
be the same.
o Thus, the three-term limit will apply. The smaller territory is actually a component of the
previous constituency of the three-term mayor.
Q: Can the mayor be, at the same time, the CEO of a government corporation?
A: No local elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his/her tenure. (Sec. 7[b[, Art. IX[B], 1987 Constitution)
For example, the mayor of Makati is also the representative of Makati in the MMDA Council. He can
also be the chairman of the Makati Development Council, School Board, etc.
Q: Can a sanggunian member be, at the same time, be a board member of an electric
cooperative?
A: No. (National Electrification Administration v. Villanueva)
Q: The governor goes to Manila to attend a 1-day conference. Who becomes the governor?
A: The governor still.
Q: The governor goes to Hong Kong for 1 day. Who become the governor?
A: The vice-governor, in an acting capacity.
If the governor goes somewhere else in the Philippines for less than 3 days, he still exercises the
functions of the office of governor.
But if the governor goes away for more than 3 days OR less than 3 days but outside the country, there
is a temporary vacancy and thus, the vice-governor becomes the governor in an acting capacity.
Q: In that case, can the vice-governor still preside over the sessions of the sanggunian
panlalawigan?
A: No.
Q: While being Acting Governor, can the vice governor sign ordinances?
A: Yes because such power is vested in the office of the governor.
A: The LGU is liable to pay damages or back wages if there is no malice or bad faith on the part of the
municipal officials.
If there is bad faith, then there is personal liability on the official who illegally dismissed the
employee.
Q: Assuming you are that employee and you filed a case. Who would be your respondents?
A: The LGU and the Mayor who terminated you, in his official capacity.
The Mayor is an indispensable party.
Supervision
Q: One manifestation of supervision is the power to discipline. Some argue that the power to
discipline allows for control, not just supervision. What do you say?
A: It does not amount to control. It is still supervision.
o In supervision, the supervisor supervises the actions and actors.
Q: Is it correct to say that the one who has the power to discipline also has the power to
investigate? Or can there be two separate persons?
A: It can be performed by two separate persons.
Q: Who can be the investigating authority of the President when he decides on whether or not to
suspend a governor?
A: The President can appoint any agency he sees suitable to investigate.
Q: Do all the grounds mentioned in Sec. 60 of the 1991 LGC pertain to one’s performance of
office?
A: No. Disloyalty to the Republic of the Philippines is not necessarily connected to performance of
office.
o Same with culpable violation of the Constitution, dishonesty, oppression, commission of any
offense involving moral turpitude.
It really depends on the way the offense is described by law. If it is “dishonesty in office,” then it must
be connected to the office. But if its just “dishonesty,” then why distinguish when the law does not
distinguish?
Q: If you have a pending case, and you are re-elected, what happens?
A: The case will be dismissed because re-election has rendered the issue moot. Re-election means
that the people forgave you. It is a condonation.
Q: What is the role of the mayor when it comes to cockpits? What is the role of the sanggunian?
A: The mayor issues the permits for the cockpit to operate,
the sanggunian grants the franchise to the cockpit.
Q: Can the mayor grant a permit without the franchise being granted by the sanggunian?
A: No.
(Sir’s aside: You know, cockfighting is now a devolved power. It used to be a power of the Philippine
Gamefowl Commission. But because of the 1991 LGC, the PGC was dissolved. The functions of the PGC have
now been devolved. It’s a local power shared by the sanggunian.)
Q: You have a mayor who owns a cockpit. A case was filed against him or her. Liable or not? If
liable, under what?
A: There are 2 modes by which a public officer who has a direct or indirect financial or pecuniary
interest in any business, contract, or transaction may violate Sec. 3(h) of the Anti-Graft and Corrupt
Practices Act (R.A. 3019).
1. The first mode is if in connection with his/her pecuniary interest in any business, the public
officer intervenes or takes part in his/her official capacity.
2. The second mode is when he/she is prohibited from having such interest by the Constitution
or any law.
In this case, while the mayor has pecuniary interest, he did not use his official capacity for the
issuance of a franchise, because he is not part of the sanggunian. He is thus not liable under the first
mode. However, he is liable under the second mode. (Domingo v. Sandiganbayan; Teves v.
Sandiganbayan)
Q: A former vice mayor of Makati went down Makati Ave. and tried to direct traffic. Then comes a
foreigner. Ginulpi niya yung foreigner [for insulting him]. Liable? Not Liable?
A: Liable. The local official must not be onion-skinned.
Strict personal discipline is expected of an occupant of a public office because a public official is a
property of the public. (Yabut v. Ombudsman)
Q: Mayor is placed under preventive suspension, yet he still performs the functions. Liable or not
liable?
A: Liable for usurping the authority of the Office of the Mayor. It is a violation of Sec. 13 of RA 3019.
(Miranda v. Sandiganbayan)
Q: Can the mayor continue to disburse the salary of an official whose dismissal has been
confirmed by the CSC?
A: No. That would amount to giving unwarranted benefits using public funds to a person not entitled
to that.
Q: What are the requisites of procedural due process in administrative proceedings against local
officials?
A: notice,
hearing,
tribunal vested with jurisdiction,
a ruling supported by substantial evidence submitted during the hearing (Casimiro v. Tandog)
Q: What is the maximum penalty that a governor may impose on an erring official of a component
city or municipality?
A: Suspension
Q: How come in the case of Reyes, the mayor was actually removed in office by the governor?
A: He did not appeal to the Office of the President within the reglementary period. (Sir: “In short,
kasalanan ng abogado.”)
Q: Can a local official be suspended for several offenses, with a total period which goes beyond
the term?
A: Yes, provided that the penalty for each administrative offense does not exceed the 6-month limit.