consolidated local govt
TRANSCRIPT
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Review:Local Government Law
AlbertoC.Agra
ProfessorofLaws,AteneoLawSchool
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Flow
1. Nature of Local Governments2. Local Autonomy3. Powers of LGUs (Police Power; EminentDomain)4. Fiscal Autonomy (Power to Tax; IRA;
Other Sources)5. Local Legislation6. Public Accountability
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1. Nature of LGUs
Ours is still a unitary form ofgovernment, not a federal state.
LGUs are Territorial and PoliticalSubdivisions
Not Imperium in Imperio, NotIndependent Sub-National Units
5 Levels/ Kinds (Autonomous Regions,Provinces, Cities, Municipalities andBarangays)
LGUs are Municipal Corporation Proper;Administrative Agencies
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1. Nature of LGUs
LGU Dual Capacities: Governmental/Public and Proprietary/ Private
Dual Agency: LGUs as Agentsof theState and People
Sources of Powers: Constitution Lawand Charter (No Inherent Powers)
Legislative Separation of Powers Corporate Succession (Contractual
Obligations)
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1. Nature of LGUs
Creation Legislative Act: Charter (Not by Executive unless
State Recognition and No Judicial Dissolution);Authority to set requirements for certain local
governments Criteria: Population, Land Area and (or) Income
(internal or external) Distinct Personality: Municipality to a City
Failure to identify Seat of Government not fatal Plebiscite (directly affected; upgrade anddowngrade; boundary disputes prejudicial question;plebiscite protest cases Comelec)
Assail Existence: Quo Warranto (5 years)
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1. Nature of LGUs
P/C/M/B ARMM CAR MMDA
LGU LGU Admin Agency Admin Agency
AdminAutonomy
PoliticalAutonomy
Not EnjoyAutonomy
Not EnjoyAutonomy
Police &Legislative
Power
Police &Legislative
Power
No PolicePower; No
Legislative
No PolicePower; No
LegislativePresidential
Supervision
Presidential
Supervision
Presidential
Control
Presidential
Control
Amend by Law Amend by Law
+ Plebiscite
Amend by
Pres./ Law
Amend by Law
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2. Local Autonomy
means a more responsive and accountable localgovernment structure instituted through a system ofdecentralization
does not contemplate making mini-states out ofLGUs
LGUs xxx form part of the whole. Regional autonomy is the degree of self-
determination exercised by the LGU vis--vis the centralgovernment.
Autonomy is either decentralization of administrationor decentralization of power.
Decentralization comes in two forms:deconcentration and devolution.
Decentralization simply means the devolution ofnational administration, not power, to LGUs.
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2. Local Autonomy
AdministrativeDecentralization
PoliticalDecentralization
Deconcentration Devolution
Transfer of Functions:National to Regional
Transfer of Powers:Central to Local
Administrative Powers, Responsibilitiesand Resources
LGC: Section 528 LGC: Section 17
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2. Local Autonomy
Decentralization ofAdministration
Decentralization of Power
Delegation of AdministrativePowers Regulatory Powers
and Basic Services
Abdication of Political Power
Relieves State from Burden ofManaging Local Affairs
Free to Chart own Destiny
Executive Supervision Executive Supervision Minimal
State InterventionAccountability to
Central GovernmentAccountability to the
Constituency; Self-Immolation
Provinces, Cities,
Municipalities and Barangays
Autonomous Regions
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2. Local Autonomy
Areas Delegation Devolution
What istransferred?
State Powers Power of NGA
Basis ofTransfer
Law; Congress Congress (orPresident)
Effectivity of
Transfer
Immediate; law
effectivity
NGA facilitates
actual transferExamples 3 Fundamental
PowersDSWD; DENR;HLURB; LTFRB
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2. Local Autonomy
Congress retains control of the localgovernment units although in significantly reduceddegree xxx
The Constitution confines the President's powerover the LGUs to one ofgeneral supervision.This provision has been interpreted to exclude thepower of control.
The President can only interfere in the affairs andactivities of a local government unit if he or she
finds that the latter has acted contrary to law.
The matter being peculiarly local in nature, themunicipal council alone is in a better positionxxx (Principle of Subsidiarity; Municipal DimensionRule)
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2. Local Autonomy
Executive Supervision: Overseeing Ensure that supervised unit
follows law/ rules Allows interference if
supervised unit actedcontrary to law
Over actor and act There must be a law (Yes -
DOJ, DBM; None - DILG,
DENR) Only involves questions of
law (declare legal or illegal)
Control: Lays down rules in doing of
an act Impose limitations when
there is none imposed by
law Decide for subordinate or
change decision Alter wisdom, law-
conforming judgment or
exercise of discretion Discretion to order actundone or re-done
Prescribe manner by whichact is done
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2. Local Autonomy
Executive Supervision
1. Review of Orders andOrdinances
2. Disciplinary Action3. Integration of Plans/
Zoning
4. Boundary Disputes5.
Leaves/ Resignation/Vacancies
6. Augmentation of BasicServices
Legislative Control
1. Structure2. Elective and
Appointive Officials
3. Powers4. Qualifications5. Manner of Selection6. Taxes7. IRA/ National Wealth8. Creation
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2. Local Autonomy
Paradoxically, local governments are still subject toregulation, however limited, for the purpose ofenhancing self-government.
National concern cannot be subjected tofragmented concepts of management policieswhere xxx local government units exercise exclusivedominion over specific portions xxx (NationalDimension Rule; Integration/ Centralization)
The Local Government Code xxx directs executiveofficials and employees of the municipality tofaithfully discharge their duties and functions asprovided by law.
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2. Local Autonomy(Conflict Resolution)
LGU Triumphed vs. DENR (ordinance) DBM (allowance, budget
officer) COA (RATA) DENR (oil depots)
DOJ (tax ordinance) Higher LGU (review) DAR (reclassify, expropriation) DILG (barangay liga) OP (IRA) DOF (RPC/ LGC) BOI (6-year exemption) MMDA (subdivision, driverslicenses, natl dumpsite;
terminals; review ordinances) NAPOCOR (voltage cables) DSWD (devolved personnel) Congress (IRA, amend Organic
Act)
National Victorious vs. LGUs DENR (forestry laws) LTO/ LTFRB (licensing) HLURB (national projects) COA (additional allowance)
NTC (cable TV franchise) DAR (conversion) GAB (jai alai frontons) LLDA (fishpens, dumpsite) BCDA (creation of Zone) PAGCOR (casinos)
PCSO (lotto outlets) PRC (profession) LWUA (water districts) DPWH (city engineer) CSC (dismissal) OP (discipline) Congress (jai alai franchise)
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2. Local Autonomy
In favor of NGA/ GOCC if: Integration Centralization Avoid fragmentation
Mandate exclusive underCharter/ law Implied repeals not favored Instrumentalities of the
State National or cross-boundary
concerns are bestaddressed by NGAs/ GOCCs
National Dimension Rule
In favor of LGU if: Local autonomy Local concern/ issue Isolated issue
No law will be violated Amounted to control Beyond powers of NGA/
GOCC Local concerns are best
addressed by LGUs(Principles of Subsidiarityand Stewardship)
Local/ MunicipalDimension Rule
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3. Powers of LGUs
LGUs not possess inherent powers LGUs have constitutional and statutory
powers
Powers interpreted in favor of LGUs (localautonomy; fiscal autonomy; National vs.Local)
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3.1 Police Power
Delegated to all LGUs Basis of Police Power: General Welfare
Clause
Reason for Delegation: Dual Agency 2 Requisites: Lawful Subject (equalprotection; public interest requiresinterference) andLawful Method (due process;reasonable means = purpose)
2 Branches: General Legislative and PolicePower Proper
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3.1 Police Power
Can or Cannot be Done?
1. Prohibit establishment of PAGCOR casinos2. Prohibit setting up of PCSO lotto outlets3.
Regulate Jai Alai frontons
4. Regulate professions regulated by PRC5. Operate dumpsites in violation of environmental
standards
6. Issue drivers licenses7. Register motor vehicles8. Regulate or Tax jueteng
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3.1 Police Power
9. Prohibit the operation or establishment of massageparlors, beerhouses, motels, etc. in a certain area/road or conversion to other businesses without justcompensation
10.Order the closure of a bank not performing illegalactivities for non-payment of taxes
11. Padlocking of an establishment without accordingowner due process
12.Allow 3 cockpits13. Declare a bus terminal a nuisance per se and orderits closure14. Demolition of a building without court order15. Declare a gas station as nuisance per se
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3.1 Police Power
16. Ban Rallies17. Lease of public plaza18. Wanton denial of issuance of mayors permit19. Mayor not remove oil terminals per ordinance20. Mayor not release funds when appropriations
approved
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3.2 Eminent Domain
Definition: Taking, Private Property, PublicPurpose, Just Compensation
Compared to Police Power: Taking (transfer ofbusiness; portion for indigent - ED; zoning - PP)
Not Inherent; Delegated; Inferior Domain Limitations: Observance of due process and
Payment of just compensation (strict construction)
Foundation: genuine public necessity (otherswilling to sell; other facilities available)
Enabling Measure: Ordinance (Not Resolution)
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3.2 Eminent Domain
LGU Branch: Legislative and Executive Reason stated in Ordinance Ordinance before Expropriation case
RTC has jurisdiction Valid and definite offer Comply with Constitution and Statutes (e.g.
UDHA)
Immediate Entry: Sufficiency in Form &Substance and Provisional Deposit;Determination of public purpose not required
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3.2 Eminent Domain
Role of Higher-Reviewing LGU: Question ofLaw - Within Scope, Followed Procedure, NotChoice of Property
Role of Courts (RTC): Necessity, Choice ofProperty, Just Compensation, Requirements,Compel Execution/ Payment
Role of NGAs: DA/ DAR approval not required(agricultural land)
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3.2 Eminent Domain
EminentDomain
Zoning Reclassify Conversion
Taking Police Power Administrativ Administrativ
Change ofOwner
No Change No Change No Change
Any Land Any Land Agri toNon-Agri
Agri toNon-Agri
Change inUse of Land
No ActualChange
No ActualChange
Change inUse of Land
All LGUs (P)/C/M C/M DAR
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4.1 Fiscal Autonomy
Local autonomy includes both administrative andfiscal autonomy. Fiscal autonomy means that local governments
have the power to create their own sourcesofrevenue in addition to their equitable share in the
national taxes released by the national government,as well as the power to allocatetheir resources inaccordance with their own priorities.
It extends to the preparation of their budgets,and local officials in turn have to work within the
constraints thereof. They are not formulated at thenational level and imposed on local governments,whether they are relevant to local needs andresources or not.
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4.1 Fiscal Autonomy
The only way to shatter this culture of dependenceis to give the LGUs a wider role in the delivery ofbasic services, and confer them sufficient powersto generate their own sources for thepurpose. (no local autonomy without fiscalautonomy and vice-versa)
The important legal effect of Section 5 (of Article Xof the 1987 Constitution) is that henceforth, ininterpreting statutory provisions on municipal
fiscal powers, doubts will have to be resolved infavor of municipal corporations. NGA cannot impose limitation when law imposes
none. (allowance of judges, RATA)
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4.2 Power to Tax
Nature of Grant: Constitutional (not merelystatutory); Not Inherent (subject to congressionalcontrol)
Object:Widen tax base of LGUs Tax Exemption:limited and restrictive nature ofthe tax exemption privileges under the Local
Government Code is consistent with the State policyto ensure autonomy of local governments; One ofthe most significant provisions of the LGC is the
removal of the blanket exclusion of instrumentalitiesand agencies of the national government from thecoverage of local taxation. (pre and post-LGC)
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4.3 Internal Revenue Allotment
Alvarez 1996:IRA part ofincome Pimentel 2000:Withholding of IRA amounted to control
and infringed on fiscal autonomy; Requirements underLGC not followed (executive withholding)
Batangas 2004:Placement of IRA in Local GovernmentSpecial Equalization Fund violative of fiscal autonomyand automatic release provision (legislativewithholding)
ACORD 2005:Earmarking of IRA in UnprogrammedFunds does not conform with automatic releaseprovision; GAA cannot amend LGC (legislativewithholding)
CSC 2005:No Report, No Release policy runscounter to automatic release provision (executive
withholding)
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4.4 Other Sources of Funds
Constitutional Equitable Share in Utilization and Development of
National Wealth Fees and Charges Other SourcesStatutory Loans Grants Private Sector Participation Bonds and Debentures
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5. Local Legislation
Characterization
Delegated Authority Subordinate Legislation
Denominated Legislation Derivative LegislationPresumptions
Presumed Valid and Constitutional (substance) Sanggunian presumed to have acted with regularity
(procedure)
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5. Local Legislation
Local Legislative Bodies Collegial Body (in a session; verbal concurrence) Quorum (all elected and qualified) Voting Requirement (Majority, exception) Integrity of Procedure (parole evidence, oral
testimony, burden of proof) 1st day of Session (IRP; Other Matters) Readings (3 readings in 1 day) No Coercive Powers Tax Ordinances: Notice and Public Hearing On Contracts: Prior authorization (ratification)
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5. Local Legislation
Ordinances Resolutions
Equivalent to Law Expression of Sentimentor Opinion
Public or Governmental Private or Proprietary
More or Less Permanent Temporary
GR: undergo 3 readings GR: undergo 2 readingsAll subject to Veto
and Review
Only Some subject toVeto and Review
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5. Local Legislation
Why Distinguish?
Legality (expropriation; reclassification)Applicable Procedure (veto and review)
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5. Local Legislation
Tests of Valid Ordinance: Ordinances must NOT: contravene Constitution be inconsistent with Statutes discriminate be unreasonable be contrary to public policy prohibit trade[void legislative act xxxdoesnot confer any right
nor vest any privilege to xxx]
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5. Local Legislation
Veto Review
Intra-LGU Inter-LGU
Local Chief Executive Higher Sanggunian
Ultra Vires or Prejudicial toPublic Welfare
Ultra ViresQuestion of Law
Province: 15 daysCity/ Municipality: 10 30 days
Reversal by Override Reversal by Judicial Action
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5. Local Legislation
Local Chief Executive Vice-Local Chief Executive/Sanggunian
Executive; Ministerial toImplement; Veto or Approve
LegislativeEnact, Amend or Repeal
Appoint Employees ofExecutive Branch
Appoint Employees of Sanggunian/Office provided Appropriation of
Sanggunian
Approves Disbursement Vouchers,Payments, Sign Warrants,
Purchase Orders for Operation ofExecutive Departments
Approves Disbursement Vouchers,Payments, Sign Warrants,
Purchase Orders for Operation ofSanggunian
Appropriations: Veto; If Approved,release of Public Funds authorized
Passage of AppropriationsOrdinance
Cockpits: Business Permit Enabling Ordinance: License
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5. Local Legislation
Role of NGAs: When there is a Law andonly on Questions of Law (i.e. DOJ, DBM,not DENR)
Role of Courts: Declare Invalid, Illegaland Unconstitutional (declaratory relief)
Contracts: Prior authorization(unenforceable; may be ratified acquiescence and benefit e.g. recognition;specific and current appropriation)
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6. Public Accountability
2 Levels: Corporate and Personal 2 Capacities: Governmental and Proprietary faithfully discharge their duties and functions as
provided by law
Accountable Public Officers Real Party in Interest (dismissal and
appointment)
Loyalty/ 1-Office Rule Performance ofConstitutional and StatutoryDuties (i.e. midnight appointments, termination ofbarangay treasurer)
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6. Public Accountability
Subject to Disciplinary Action (part ofSupervision; Types of Offenses administrativeand penal)
2 Authorities: Disciplining and Investigation
Enjoys Fixed Term; Has Term-Limit Subject to Several Jurisdictions Effect ofRe-Election on cases Rule on Succession (Acting Capacity,
Ranking, Last Vacancy, 2nd placer)
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6. Public Accountability
Term of Office
Municipality converted to a City (or barangay inmunicipality later converted to a city)
6 Conditions:
Elected to the PositionFully Served the TermNo Actual BreakImmediate ReelectionRegular ElectionsInvoluntary
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6. Public Accountability
Disciplinary Action:Violation of
1. 1991 Local Government Code2.
Anti-Graft and Corrupt Practices Act3. Revised Penal Code and other Penal Laws
4. Omnibus Election Code5. Other Special Laws
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6. Public Accountability
Offenses:Examples1. Usurpation of Authority (mayor under preventive
suspension)2. Reliance on Subordinates (exception)3. Technical Malversation (use diverted)4. Unwarranted Benefits (salary to dismissed employee)5. Financial or Pecuniary Interest (license to cockpits)6. Moral Turpitude (fencing)7. Bad Faith (signing of voucher)8. Illegal Dismissal (corporate vs. personal liability)9. Grossly disadvantageous contract10. COA-approved Disbursements11. Partial Restitution of Cash Shortage (misappropriation)12. Onion-skinned Officials
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6. Public Accountability
Procedure in Administrative Cases Constitutional Rights of Accused Procedural Due Process Form of Complaint Substantial Evidence Notice of Session not required Decisions when final and executory Stay of Execution Rule on Exhaustion of Administrative Remedies When appeal Effect of filing of Motion for Reconsideration
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6. Public Accountability
Penalty
Removal by Courts only(exception)
Each administrativeoffense, 6 months
Preventive Suspension
Prerequisites (andexceptions)
Grounds supported byevidence
Period (Higher LGU/Sandiganbayan: 60 days;Ombudsman: 6 months
MR with Higher LGUbefore Courts
Authority of President/Ombudsman
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6. Public Accountability
Recall
No PRA, only Popular Petition (RA 9244)
Loss of Confidence a political questionAnother Petition if Official succeeds to
another office
1-Year Ban refers to Recall Election
Meaning ofRegular Recall Election