Compiled Transcript

LocGov Transcript/Q&A Atty.
Alberto Agra CROMBONDS 2012-2013
Dec. 7 class
I LOCAL GOVERNMENTS
Nature of local government units
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: What are the elements of an LGU?

• A: (1) legal creation; (2) corporate name; (3) inhabitants; (4) place or territory
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.)
Q: Who has the power to create LGUs?

• A: The Congress can create LGUs. Barangays can be also be created by the sangguniang panlalawigan and
sangguniang panglungsod if they are authorized by Congress.
Q: Can the Congress dissolve a barangay created by a province?

• A: Yes. Congress exercises control. Congress is the principal and the local legislative body is a mere agent
of the Congress.
Autonomous regions
Q: How many autonomous regions are there in the Philippines?

• A: Only the Autonomous Region of Muslim Mindanao (ARMM) is an autonomous region.
• The 1987 Constitution also provides for the creation of an autonomous region in the Cordilleras, however,
in the plebiscite, only Ifugao province agreed to be included.
o Thus, the autonomous region in the Cordilleras was not incorporated. The Cordillera
Administrative Region (CAR) is NOT an LGU.
Q: How many Organic Acts do we have?

1. A: for the ARMM,
2. for the Cordilleras.
o However, the Organic Act for the Cordilleras was not ratified.
Q: Can we have a Bangsamoro Juridical Entity?

• A: According to the case of North Cotabato v. GRP Peace Panel, no we cannot.
Sharing is a good thing! 1

LocGov Transcript/Q&A Atty. Alberto Agra CROMBONDS 2012-2013
• 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: Is this a perpetual prohibition?

• A: Yes, unless the Constitution is amended.
Q: Can we have more than 2 autonomous regions in the Philippines?

• A:As the constitution stands NO. unless it is amended.
• Absent an amendment, only those identified in the Constitution may be incorporated as autonomous
regions.
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)
Q: Does ARMM have the power to legislate?

• A: Yes. However, it cannot go beyond the existing laws and the Organic Act.
Q: Can Congress, by legislation, reduce the power of legislation of the ARMM?

• A: No. The irreducible legislative powers of the ARMM are contained in Sec. 20, Art. X of the 1987
Constitution.
• Congress cannot reduce this by mere legislation. It can only be reduced by a constitutional amendment.
•
Creation of LGUs
Q: How are LGUs created?

• A: The requirements for the creation of LGUs are
o income,
o population and
o land area.
• Each kind of LGU has different specifics for each criterion. (See chart on pp. 11-12)
• However, Congress can provide for specific exemptions to these requirements in the charters which
create LGUs.
o Examples of LGUs with smaller are:
 City of San Juan and
 the Province of Dinagat Island
Q: What are the types of LGUs?

A: The Constitution specifies 5:
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: How many kinds of cities are there?

1. A: Highly-urbanized cities,
2. component cities,
3. independent cities.
Q: What makes a highly-urbanized city different from an independent city?

• A: An HUC has a higher income and population requirement.
Q: What makes an independent city different from a component city?

• A: Voters of independent cities are not eligible to vote for provincial officers, even if the independent city
is geographically within the province.
• Only the cities in Metro Manila are not within provinces. All other cities are geographically within
provinces.
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.
Other characteristics of LGUs
Q: People say that LGUs are double agents. Is this true?

• A: Yes. They are loyal to both their constituents and to the national government.
• They are agents of the State

o in the exercise of government or public powers

• And agents of the constituents
o in the exercise of proprietary or private powers
Q: In the exercise of governmental powers, is the LGU immune from suit?

• A: Under the 1983 LGC, yes. However, in the current 1991 LGC, there is no more distinction between
governmental and proprietary powers in terms of immunity from suit.
• The case of Municipality of San Fernando v. Firme was decided under the old 1983 LGC.
Q: Are there any other purposes for the distinction of powers?

• A: Yes. Governmental powers cannot be delegated. Propriety powers can be delegated.
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: Would you consider an LGU as a GOCC or a government instrumentality?

• A: An LGU is neither.
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)
• Public corporations can create another corporation.

o They are called subsidiaries.
• LGUs can also create subsidiaries.
o They are called quasi-municipal corporations.
• When we talk about public corporations in terms of geographical coverage, it can be
o national (ex. PAGCOR) or
o a specific area (ex. BCDA, which only converts places in Subic, Clark, etc.).
• In terms of powers, they can be
o broad or
o narrow.

• 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
Unitary not federal
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: What do you call this power delegated to the LGUs?

• A: Decentralization of power. This is present in both a unitary and a federal set up.
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: Can you refer to LGUs as sovereign units?

• A: No.
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: Do we have more cities than provinces?

• A: More cities. There are only 79 provinces.

Q: In a plebiscite for the creation of a new LGU, who should vote?

• A: All the registered voters of the proposed new LGU and those of the original “mother” LGU. The two
requirements are economic dislocation and plurality.
Q: LGUs are referred to as political and territorial subdivisions. Why?

• A: They are subdivisions because they still belong to the same unified government and are units of the
State.
• Their power and autonomy are limited to the territorial jurisdiction of the LGU.
Q: What is local autonomy?

• A: It means a more responsive and accountable local government structure through a system of
decentralization. (Sec. 3, Art. X of the Constitution; Sec. 2(a) of the 1991 LGC; Ganzon v. CA)
• It does not mean absolute self-governance, self-rule or self-determination.
Q: Responsive and accountable to whom?

• A: To its constituents and to the national government.
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
Q: How can the LGU become more responsive and accountable?

• A: Through the system of decentralization.
Q: Why use the word, “more?”

• A: Before the 1987 Constitution, LGUs did not have as much powers as now. Power was more centralized
in the national government.
Q: What are the two levels of decentralization according to Limbona v. Mangelin?

• A: Decentralization of administration; decentralization of power.
Q: What is the difference?

• A: Decentralization of administration involves the delegation by the national government of
administrative and regulatory powers to the LGUs.
• Decentralization of power involves an abdication of political power in favor of autonomous LGUs who are
free to chart its own destiny and shape its future with minimum intervention from the central
government.
o Decentralization of power is thus broader in scope.
Q: A province would enjoy what?

• A: Decentralization of administration.
• Decentralization of power can only be enjoyed by autonomous regions.

ARMM
Q: Does the ARMM enjoy the right of self-determination?

• A: Yes, but not absolute.
• It is limited because they are not entirely independent because the president still has supervision over it.
o The Constitution does not allow a state within a state.
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: Can an LGU issue a driver’s license?

• A: No. Only the LTO can issue driver’s licenses. It is not a devolved power given to LGUs.
Q: In the future, can LGUs be granted power to issue driver’s licenses?

• A: Yes, it can be devolved by a legislative enactment.
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: Who is the transferor? Who is the transferee?

• A: The national government is the transferor.
• The LGUs are the transferees.
Q: What is being transferred?

1. A: Regulatory powers,
2. responsibility to deliver basic services, personnel, assets.
Q: Is police power devolved power?

• A: When we talk of devolution, we refer to specific agencies.
• Police power does not refer to a specific agency but to the State itself.
• Therefore, police power exercised by LGUs is not a devolved power but a delegated power from the
national government.
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.
Q: Distinguish devolution from deconcentration.

• A: Devolution involved the transfer of certain powers from the national government to the local
governments.
• In deconcentration, power is retained by the relevant national government agencies, but these agencies
establish regional and field offices which are nearer to the LGUs.
Q: Why is this important?

• A: Deconcentration ensures greater access to services. It reduces the need to go to “Imperial Manila” to
avail of services. Thus, it allows LGUs to be more responsive to the needs of its constituents.
Q: Where do you find the list of devolved powers?

• A: The Local Government Code and other statutes.
Q: Where do you find the list of deconcentrated powers?

• A: From the national agencies themselves and the Revised Administrative Code of 1987.
Q: How do you distinguish delegation from devolution and deconcentration?

• A: In delegation, the transferor is the State itself.
• In devolution and deconcentration, the transferor is a national government agency.
• In both cases, the transferee is the local government.
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: President and Brgy. Guadalupe Viejo, Makati City.

• A: Indirect supervision.
Q: President over provinces.

• A: It depends.
o In general, direct supervision.
o For provinces within the ARMM, indirect supervision.
Q: Why is it important to distinguish between direct and indirect supervision?

A: It determines what the President or the other supervising authority can do with regard to the supervised unit.
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: Can the President suspend the mayor of Makati City?

• A: Yes. The power to suspend is an attribute of the power to discipline. They are not inconsistent.
• However, the President may not suspend barangay captains and mayors of municipalities and component
cities because he only has general or indirect supervision over them.
Q: Can the President review the ordinances of Makati City?

• A: Yes, because it is direct supervision. But the President may not review the ordinances of a barangay.
Q: Can the mayor suspend a barangay captain?

• A: Yes.
Q: Can the DILG review ordinances of the barangay?

• A: No. The LGC did not grant it that authority.
Q: Can the DENR review ordinances of a province concerning the environment?

• A: No
Q: Can the DOJ declare a tax ordinance of a city invalid?

• A: Yes. The LGC granted this power.
Congress control, and rules on local law
Q: Who has control over local government units?

• A: The Congress. However, this is not unbridled and unlimited.
• The Constitution limits the control of Congress over LGUs.
o Eg. Congress cannot take away the power of LGUs to levy taxes and create other sources of
revenue because this is a power directly and expressly granted by the Constitution [Sec. 5, Art.
X].
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: Can the President review the ordinances of Makati City?

• A: No, he cannot. There is no enabling law. Otherwise, that would amount to control.
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 governor review ordinances of barangays?

• A: No. He only has indirect supervision.
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
III POWERS OF LOCAL GOVERNMENT

(Lecture only)
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,
• the DOJ when you talk about tax ordinances, and

• DBM when you talk about appropriations ordinances.
Other agencies cannot, on their own, absent any law, arrogate unto themselves the power to review ordinances.
• DENR and DILG don’t have this power anymore.
Question only law not wisdom or facts

But even if there is a law, like in the case of DBM and DOJ, their powers are also not unlimited. Their power
extends only to one question – only of law. It is not a factual question, or a question involving wisdom. They can
only declare whether an ordinance is valid or invalid, whether it is legal or illegal.
In the case of DOJ, DOJ can say that this ordinance is unlawfu, this particular tax imposed is contrary to law.
But it cannot say that this tax ordinance is excessive. It cannot also command to change the rate from one rate to
another, because that would amount to control. The executive branch has no control over local governments. A
national government agency cannot impose any limitation if there is no limitation imposed by law. The national
government cannot prohibit an act which is not prohibited by law.
A questionable application of supervision

If you go over one of the devolved powers of LGUs, it says there, that the DENR will have supervision and
control over community-based forestry projects.
• That provision has not been questioned.

• To my mind, that is questionable because it gives DENR the power of control, and the relationship
between the president and the alter egos to LGUs is limited by the constitution to that of supervision, not
control.
• It is only Congress, by way of legislation, which can impose limitations.
What can be done by a national agencies? LGUs?

Therefore, if we want to summarize the case doctrines from pp. 21 to 23, what can be done by a national
government agency, what can be done by an LGU, the summary is, what the law provides.
Therefore,

• 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,
• the powers of LGUs cannot be broadened or limited by implication.

• The DILG cannot also provide for tinkering or prescribe the tinkering caretaker government pending the
election of the officers of the National Liga ng mga Barangay
o because there is no law which gives DILG that authority,
o and that will amount to control.
Cockfighting Law,
The LGU cannot violate the Cockfighting Law, obviously.
• As agents of the state, they cannot rise above the script.
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.
PAGCOR and PCSO

PAGCOR, then, can put up casinos anywhere in the country, with or without the authority of the LGUs because the
charter of PAGCOR was not repealed by the 1991 LGC even if it was an earlier law. Because in this case, even if it
was an earlier law, it’s a special law. Same with PCSO.
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.
Congress Control of LGU

Congress has control over LGUs. And obviously this control is not absolute. The powers of Congress will be
limited by the Constitution. And therefore, can Congress take away the power to tax given to LGUs? No, that
cannot be done because the power to tax is now a constitutional power. Before, it was statutory. Can Congress say
that the Mayor will have a term for 5 years? Under the constitution, if the Mayor is an elected official, then the
term is 3 years.
Issues with the Mayor, elective v appointive officials.

Is it possible for Congress to say that the Mayor will henceforth be an appointed official? To my mind, yes,
because there’s no mention, there’s no list in the constitution of who are the local elected officials. (If) it were
determined to be a provincial/city/autonomous region/municipal elective official, then the term limits will apply.
Because Congress has been given the discretion to prescribe the term limits only insofar as barangay officials are
concerned. However, there is no limitation for Congress to prescribe the term for appointive officials.
Structure of the LGU

Who determines the structure of a LGU? Is it found in the constitution? It is not. It isn’t found in the
constitution. So can Congress provide for a Vice Mayor? Yes. Do we have a Vice Punong-Barangay? None at the
moment. Can Congress say the Councilors shall be elected via a party-list system? That can be done. Can Congress
say, we will have 2 Vice Mayors instead of 1—one to preside over the council, one to assist the Mayor or
Governor? Yes. Because Congress has control, and there’s no provision in the constitution which will be violated.
So Executive Supervision and Legislative Control. Obviously, both authorities are not absolute. For Congress, it is
limited by the constitution, and for the President and the higher, supervising LGU, it will be limited by law and if it’s
just supervision, then it will not amount to control.
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

Is the power to legislate (by LGUs) a constitutional power or is it statutory?
• People will argue, including myself, that it is constitutional.

• What provision in the constitution?
o When it says, there will be sectoral representatives in local administrative bodies? That
presupposes that there is local legislation. Otherwise how can you have sectoral reps in
local legislative bodies?
o But there’s no express provision that LGU can have the power to legislate. There’s no
such provision in the constitution.
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.’
Can Congress impose any limitation?

There’s a limitation to the limitation. Under the constitution, it says, ‘subject to such limitation, provided, it will be
consistent with the concept of local government.’ Is this constitutional power? Congress can impose limitations?
But not all limitations can be imposed. It must be consistent with local government.
Police power, General Welfare Clause

And in page 26, there are other ways of classifying governmental powers. Is police power a constitutional
power and/or a statutory power (of LGUs)?
• 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.
Valid exercise of powers

And all powers, there are certain requisites to determine whether or not a power was validly exercised or
legally exercised. Why is that important to know? Because if it is unlawfully exercised, then it can be reviewed by
the higher local government unit. And the higher LGU can declare that act unlawful.
One case, eminent domain.
• Municipality chose the property of X.

• 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.
Specific Cases regarding exercise of powers

Can a LGU declare a bus terminal a nuisance? Therefore effect its demolition?
• No that cannot be done, because while there might be a lawful subject—to ease traffic—the means will
be unreasonable.
But can a LGU demolish the terminal?

• Not under police power but under another power, eminent domain.
• You pay just compensation.
This is what happened in the case of Ermita-Malate v. Mayor of Manila.

• City of Manila enacted an ordinance ordering the closure of certain establishments—
o beerhouses, and such, gay bars, etcetera—
• If they do not close down, they’re directed either to shift their business to legitimate businesses, or they
move to another place.
• Supreme Court said that while the subject is lawful, to curb prostitution, the method was unlawful and
unreasonable.
• The latter part of the decision said that it cannot be done via police power, but it can be done via eminent
domain, by paying just compensation.
• In that case, is there compensable taking? Yes, because, simple definition of when there’s compensable
taking, if somebody else can use the property.
• If it’s total deprivation, then no need to pay because there’s no compensable taking.
• If somebody else can use the property, then you must compensate the private owner.
• And just compensation is determined by the Regional Trial Court, not by the MTC.
o This is not dependent on the value of the property because, as held by the SC, this is incapable of
pecuniary estimation because the power is not based on the value, but is based on the existence
of the power of the local government unit.

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.
Branches of the General Welfare clause

There are two branches to the general welfare clause.
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,
(1) local autonomy

(2) general welfare,
(3) residual powers,
(4) second branch of general welfare clause.
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
• because that power is exclusively given to NTC.
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?
• To issue the business permit.

• More of issues regarding space. And follow the national building code, the electric code, the easement in
terms of roads. Again, all of these must be followed and these will be the basis for issuance of a business
permit.
Can a LGU order the closure of a bank?
• 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
First requirement: it must be for a public purpose.

• Therefore, if either road is constructed using public funds via eminent domain and only private citizens,
those who belong to a subdivision, use that road, therefore that will be an invalid exercise of the power of
eminent domain because it is not for a public purpose.
• There are 2 agencies, 2 institutions, that can declare this unlawful:
(1) the higher LGU, because it is not for public purpose, and
(2) the courts.
What should happen first, the ordinance for eminent domain or the expropriation case? The ordinance.
• What happened in Mandaluyong was the reverse.

• Expropriation case, then ordinance.
• Why is that important? What would be the contents of the ordinance? I will not ask you to draft the
ordinance… (Class: *laughter*) On second thought… (Class: *laughter*).
What can be the contents of the ordinance? Yan, let’s see.
Resolution v Ordinance
(This is actually a TANGENT see below: “ eminent domain continued” for the rest of the requirements)
Why ordinance? Why resolution?

Why should it be ordinance form and not resolution form? In the subsequent portion of the reviewer, there’s a
distinction the two.
• The resolution does not confer or provide for a positive act.

• It is just an expression of a sentiment, an opinion.
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)
(3) Another one would be procedure.

o As a rule ordinances must go through 3 readings.
o When you talk about resolutions, as a general rule, has to go to 2 readings.
 Underscore the statement "as a rule": because there are ordinances that can go through
only 2 readings - if there is a consensus among all the members of that sanggunian.
 In the same way resolutions can go through 3 readings as an exception. So when the law
say "ordinance" - ordinance ; in substance and title.
Eminent domain continued ..
The next requirement is genuine necessity,

• so if you look at the enabling ordinance you must check first the title "ordinansiya bilang."
• Another thing you will look at - the public purpose: housing, agriculture, government offices.
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?
• Because there was already another sports facility nearby,

• therefore there was no genuine necessity.
• Therefore the body of the ordinance must prove and state the purpose and the purpose must be public.
• It must also authorize the mayor to file the expropriation case.

Can the mayor not file? Yes –

• by not signing the ordinance or vetoing it.
• Because if he signs the ordinance he is estopped.
o Similar to one case. The mayor signed, did not veto, now comes the voucher but he will not sign
the voucher - but he can be compelled to sign it. If he did not want to sign the voucher he should
not have signed the ordinance.
• So in the ordinance there must be an authority given to the mayor to file the expropriation case but the
mayor cannot be forced.
What should be in the contents of the ordinance or requirements?

(1) There must be a valid and definite offer to the private party and the offer must be complete –
o in one case they called the private owner, did not mention the purpose, did not mention that if
you do not sell to us we will file an expropriation case.
o When is there a valid offer? " I am offering to buy your property for an X amount."
 And this must be part of the whereas clause, or even in the body of the ordinance,
pertaining to the value.
(2) The order must also show the LGU followed all other laws.
o One such law will be the Urban Development Housing Act,
o the purpose of the expropriation would be to provide for socialized housing and under the
UDHA which is a later law, expropriation is held as one of the last priorities.
o What the UDHA provides is a hierarchy of priorities, you have to go through priority one, then
two, you cannot skip to five.
Power of the courts over expropriation
• would be to determine just compensation, necessity, public purpose.
Can the government enter the property? Yes provided:

1. They have filed the expropriation case,
2. a writ of possession has been issued, the basis of which is the four corners of the petition
o The judge need not call a hearing for the determination won the purpose is public.
o All that is needed is that 4 corners of the petition shows that all the requirements have been
fulfilled.
o Then the writ of possession will be issued as a matter of court
3. they have deposited the 15% of the market value.
Remedies against an LGU for not paying after the court has decided just compensation:
1. file for mandamus to pay the remainder.

a. In one case, the court said the just compensation was 10M, however the ordinance only
authorized a maximum of 5M. Mandamus was found proper.
Reclassification and Conversion

Reclassification to change the nature of the use of the property from "agri" to "non-agri." Non-agri or non
agricultural being: residential, commercial or industrial - similar to zoning.
• When you talk about zoning, you talk about ordinances,

• but when you talk about reclassification; it is from one type of use: agri, to another type of use: non-agri.
The difference between the reclassification and conversion is that:

• conversion is the change in the actual use of the property,
• in reclassification there is no change yet in actual use.
• So, after reclassification you have to go through conversion, which is the second phase.
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.
What’s the rule with contracts with filing of cases?

• Must the Mayor seek the approval of the sangguinan before he can sign a contract? YES. The law say
“prior authorization”
• but if you speak of law suits; litigation, no need for approval, because the prior authorization rule only
applies to contracts.
Assuming there is no prior authorization? Is the contract void or unenforceable?

• Only unenforceable. Therefore it can become enforceable when there is express ratification on the part of
the council or when there is implied ratification.
When is there implied ratification?

1. Acquiescence or failure to refute
2. When the LGU and the inhabitants already benefited from the contact
Readings and Voting

• Can members of the council vote on a particular measure outside a session? NO.
• Can a LGU conduct 3 readings in 1 day? YES. There is no law against it.
o For congress they cannot do that – because it is in the constitution.
Can a LGU cite a person in contempt?

• Admin law, no there must be a law which gives them that authority.
• To date there is no such law.
• So what is their option? Same as the option for AAs: go to court.
o On their own, they cannot.
Double Majority Rule

As a rule all ordinances must follow the double majority rule (for quorum and voting). However there are certain
measures in the local government code, where 2/3 vote is what is required. Can a local council say that all its
ordinances will follow the 2/3 rule? No that would be unlawful.
• Remember, general rule: majority,

• unless the law provides otherwise.

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.
The Principle of Integration.
3 Laguna Lake cases

There are 3 cases between the Laguna Lake authority and the lakeshore municipalities.
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.
Who appoints officials to the LGU?

• it depends: If the position is in the vice-governor's or the sanggunian's office then it would be the vice-
governor
• for other branches it would be the governor.
What is the appropriate remedy to question an ordinance?

• Declaratory relief and the explanation is in page 47.
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.
LGUs no longer have immunity from suit

• because there is now statutory waiver under Sec. 22; LGU can sue and be sued.
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.
4. LOCAL AUTONOMY AND LOCAL SOURCES OF FUNDS
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 :
• Constitutional sources (Sections 5,6 and 7 Article X)

1. Share in national taxes
2. Share in proceeds of the utilization and development of national wealth
3. Local taxes
4. Fees and charges
5. Other sources of revenues
• Statutory sources ( LGC mostly)
1. Loans
2. Donations and grants
3. Float bonds
4. Exercise of proprietary functions
5. Credit-financing schemes such as Build-operate-transfer (BOT) schemes (RA 7718)
How do LGUs get their “share in national taxes?”
• Through the internal revenue allotment

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.
How about local taxes, what is this all about?
• This is simply the mode wherein LGUs collect their own taxes from their territorial jurisdiction.
Utilization and development of natural wealth
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.
What is the breakdown of the shares of national wealth?
• The host province: 20%

• Component municipality/ city: 45%
o If highly urbanized or independent city: 65%
• Barangay: 35%
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?
• Just Quezon province since it is the source.
There is a source of oil being exploited outside the legal territorial jurisdiction of Laguna. Can
they get a share?
• No. You can only get a share if it is in your territorial bounderies.
OTHER sources of revenue
The constitution has a list of sources of revenue. Is this a finite list of sources?
• No, sec 5 Art. X mentions other sources of revenue.
What is the importance of that clause “and other sources of revenue ?“
• The SC said it is the basis for the grant of fiscal autonomy.
Does the constitution contain and EXPRESS grant of fiscal autonomy?
• No. It is merely implied in Sec. 5 Art. X. “other sources.”

Can the cong ress limit the LGU power to tax?
• Congress can provide guidelines.

o But that power to limit is not unbridled. It must be consistent with the basic policy of local
autonomy.
Levying Taxes
Who has the power to levy/collect income Tax?
• The Bureau of Internal Revenue.
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

Quarry Resources • Business Tax on Banks

• Professional Tax • Business Tax on Peddlers
• Amusement Tax • Business Tax on all other Businesses
• Annual Fixed Tax for Every Delivery Truck or • Community Tax Real Property Tax
Van of Manufacturers or Producers, • Special Education Fund Levy
Wholesalers of, Dealers, or Retailers in, Certain • Ad Valorem Tax on Idle Lands
Products • Special Levy on Land Benefited by Public Works
• Business Tax on Manufacturers Business Tax
on Wholesalers, Distributors, or Dealers
• Business Tax on Retailers
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)
Who determines what taxes can be levied by a particular LGUs etc?

• Congress possesses the taxing power.
Can congress reconfigure this?

• Yes subject to constitutional limitations on the basic policy of fiscal autonomy.
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.
Why is it important to know what type of taxes can be levied by agency?

• To prevent double taxation
Shares in Taxes
Can Local Governments have a share in national taxes?

• Of course, by express mandate of the constitution

But can the National Government have a share of local taxes?

• No they cannot. The constitution says local taxes shall “…accrue exclusively to the local governments.”
(Sec 5. Art X)
The role of the DOJ
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
Can the DOJ say that a tax ordinance is unconstitutional or illegal?

• Yes. But the secretary cannot amend, modify or repeal the tax measure or declare it excessive,
confiscatory or contrary to public welfare.
Why can’t the DOJ declare a tax ordinance oppressive ?

• That would amount to control
Can you go to the courts directly?
• No that would be a violation of the “non-exhaustion rule.”

• There are however exceptions ( to see them review your admin law )
o One ex : During auctions – your property is going to be sold already and rather than losing your
property, since you need to act fast, you can go to the courts directly. That is one recognized
exception. Because there will be undue injury.
Internal Revenue Allotment
What is the internal revenue allotment?

• When the constitution (sec. 6 Art X) says that the LGUs shall have a just share, as determined by law, in
the national taxes which shall be automatically released to them. The IRA is the “just share.”
What are national taxes?

• Taxes collected nationally by the BIR, Bureau of Customs.
What is the importance of the clause “as determined by law?”

• It means Congress can determine what their just share constitutes.
• And as you will see from the next two questions, it means that congress can prevent them from getting a
share from taxes of the Bureau of Customs (or any other national tax for that matter, as long as they still
get a “just share” from other national taxes).
o Sir however argues that the constitutionality of such prevention is questionable.
They get a share from national taxes, collected by what agency?

• BIR
Can the LGUs collect from the Bureau of Customs?

• No they cannot. But this is just a statutory limitation. The congress may change this in the future.
• Sir however argues that the constitutionality of such prevention is questionable.
Share of LGUs in the IRA
What is the share of LGUs in the IRA?
• LGUs get a 40% share in the national internal revenue taxes

o The 40% is broken down further :
 Provinces and cities: 23%
 Municipalities: 34%
 Barangays: 20%
Can Congress say that the 40% will be reduced to 5%?
• No, that would be unconstitutional. That wouldn’t be just at all.

o Remember they are entitled to a JUST share.
• But if they were to reduce it to 20% -- It’s hard to say for sure.
Can the president reduce the share to 35%?
• 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).
Can the president withhold 10% of the IRA?

• 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?
• No they cannot. It violates the automatic release laws.

• Also in the case of Province of Batangas v. Romulo, the non-release provisions were actually riders.
o A rider is a provision that is not germane to the rest of the law
 This was where it was snuck it : General Appropriation Act creating the Local
Government Special Equalization Fund
o In this case you have a general appropriations law amending a substantive law ie. The LGC.
Can the COA make a no-report no release rule?
• SAME. Automatic nga e.
Local Autonomy has 2 parts Namely?
• 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?
Prior Mandatory Consultation.

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?
1. Prior consultation with the affected local communities

2. Prior approval of the project by the appropriate sanggunian.
What are the programs that are covered by this (section 27)?
• Projects and programs whose EFFECTS are :

(1) may cause pollution;
(2) may bring about climatic change;
(3) may cause the depletion of non-renewable resources;
(4) may result in loss of crop land, rangeland, or forest cover;
(5) may eradicate certain animal or plant species; and
(6) other projects or programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented.
• In short :
o project that affects the environmental and ecological balance of local communities
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.
Local Special bodies
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?
• Go to the development council or the health board

• But they will just recommend to the sanggunian.
The recommendations were ignored by the sanggunian, what else can the Planeteers do?
Initiative and referendum
How will they utilize their power of initiative?
• Initiative is resorted to by the people directly either because :

o The law making body fails or refuses to pass a law, ordinance, resolution or act or
o They want to amend or modify one already existing.
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
When is this applicable?

• When there is loss of confidence.
o The power of recall or the power to remove a local elective official for loss of confidence shall be
exercised by the registered voters of an LGU to which the local elective official subject to such
recall belongs (Section 69,1991 LGC).
Does the loss of confidence have to arise from a criminal offense?

• Not necessarily. Loss of confidence as a ground for recall is a political question.

The Mayor signed an ordinance that you did not like. Can you recall the mayor?
• Yes
Can your reason be questioned?
• No, it is a political question.
What is this 1 year ban regarding recall?
• 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?
• To date there is none.

• Despite that our constitution states that there should be elected sectoral reps
Jan. 11, 2013

5 LOCAL GOVERNMENT OFFICIALS
Q: Would you find the words, “governor,” “mayor,” etc. in the Constitution?
• A: No. Those are only found in the Local Government Code.
Q: What can Congress do and not do?

• A: Congress can determine the structure of the LGU.
• It can also provide for the
o qualifications, election,
o term,
o appointment and removal,
o salaries, and
o powers and functions and
o duties of local officials. (Sec. 3, Art. X, Consti)
• Since the specific positions are not enumerated in the Constitution, Congress has the power to define
such.
TERM

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: Can a mayor hold office for 5 years?

• A: If Congress provides that mayors are appointed, then they can hold office for 5 years.
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: Vice-mayor becomes mayor. Would that be considered as a term as mayor?

• A: No. When a vice mayor succeeds as mayor, it is by operation of law. There was no voluntary
renunciation of his position as vice mayor. However, his tenure as mayor wouldn’t be considered as
part of the 3-term limit since he was not elected to the post.
Q: Would that be considered as a term as vice-mayor?

• A: No. According to the case of Montebon v. COMELEC, there are 2 conditions which must concur for
the 3-term rule to apply:
1. the official concerned has been elected for three consecutive terms in the same local
government post; and
2. he/she has fully served three consecutive terms.
• So, in this situation, it will not be considered as a term for mayor because he wasn’t elected (first
requirement). It will also not be considered as a term for vice mayor because he didn’t fully serve (2nd
requirement).
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
Q: How about preventive suspension?

• A: Yes. It does not involve an effective interruption of the term.
• It merely involves the temporary incapacity to perform the service than an elective office demands
(Aldovino, Jr. v. COMELEC).
1. The obiter in Borja was superseded by this case.
Q: Are suspension and preventive suspension the same?

• A: No. Preventive suspension is imposed not as a penalty but as a precautionary measure (in an
administrative proceeding)
o to prevent the officer from harassing witnesses,
o tampering with evidence, or
o using his power to impede the process.
• Suspension is a penalty.
Q: Are there due process requirements when we talk of preventive suspension?

• A: Yes. The pre-requisites are:
1. the issues must be joined, i.e. the respondent has filed an answer;
2. when the evidence of guilt is strong;

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.
Dual positions of 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)
Q: Can the mayor hold another position?

• A: Yes, in his ex officio capacity.

• 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)
The Governor and Vacancy
Q: What happens if the governor dies?

• A: The vice governor succeeds in a permanent capacity.
• The #1 board member becomes the vice-governor.
• There is then a vacancy in the sanggunian.
o The President, through the executive secretary, appoints a replacement who belongs to the
same political party as that of the councilor who became vice-governor.
 This is to maintain party equilibrium in the sanggunian.
Q: When a member of Congress (congressman or senator) dies, what happens?

• A: A special election is held. The second placer to the position cannot succeed.
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.
Immunity from suit
Q: Are local governments immune from suit?

• A: No, because of the statutory waiver in the LGC.
• Its consent is not needed before they can be sued.
Q: Are local governments immune from liability?

• A: No. The 1991 LGC removed the distinction between governmental and proprietary powers. Thus,
LGUs are not anymore exempt from liability for death or injury to persons or damage to property.
(Sec. 24, LGC)
Q: Who is liable for illegal dismissal of a local government employee?

• 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: What is the relationship between the province and a component city/municipality?

• A: Direct supervision.
Q: Province and barangay?

• A: General supervision
Q: President and barangay?

• A: General supervision.
Q: President and province?

• A: It depends. If the province is outside the autonomous region, direct supervision. If within the
autonomous region, general 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: What is the manifestation of supervision over the action?

• A: The power to review ordinances,
• integrate zoning ordinances,
• approve resignations,
• approve leaves.
Q: What is the manifestation of supervision over the actor?

• A: The power to discipline.
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: Can the investigating authority discipline?

A: No. The power to discipline cannot be delegated.
Q: Can the power to investigate be delegated?

• A: Yes.

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: What are the grounds for disciplining a local elective official?

• A: Sec. 60 of the 1991 LGC provides:
1. Disloyalty to the Republic of the Philippines
2. Culpable violation of the Constitution
3. Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty
4. Commission of any offense involving moral turpitude or an offense punishable by at least prision
mayor
5. Abuse of authority
6. Unauthorized absence for 15 consecutive days (except in the case of sanggunian members)
7. Application for, or acquisition of, foreign citizenship or residence or the status of an immigrant of
another country
8. Other grounds as may be provided in the 1991 LGC and other laws
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?
Administrative and Criminal Liability
Q: What is the difference between administrative liability and criminal liability?

• A: Administrative liability can be condoned when the official is re-elected. Criminal liability cannot.
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: The purpose of administrative proceedings is what?

• A: To protect the public service.
Q: What is the purpose of criminal liability?

• A: The punishment of crime by imposing a penalty
Q: Rigging of a bidding. Would the local official responsible be held liable?

• A: Yes, for both criminal and administrative liability.
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.)
Liable? Not Liable?
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: Preventing vendors from occupying market stalls. Liable? Not Liable?

A: Not liable. A municipal mayor is not guilty for violating Sec. 3(e) of RA 3019 in issuing a Memorandum
preventing vendors with questionable lease contracts from occupying market stalls where the said
Memorandum applies equitably to all awardees of lease contracts, and did not give any unwarranted benefit,
advantage, or preference to any particular private party (People v. Sandiganbayan, on p. 67)
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: Can the President remove from office a governor?

• A: No. Only the courts can remove public officials based on Sec. 60 of the 1991 LGC.
Q: Can the President, in the future, be given that power to remove?

• A: Yes, provided that Congress amends the LGC.
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.
Q: Can you not argue that that amounts to constructive dismissal?

• A: (This issue was actually raised in Salalima, but the SC said that they were not ready to discuss such
issue. Thus, it was allowed.)

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LocGov Transcript/Q&A Atty.

Alberto Agra CROMBONDS 2012-2013

Nature of local government units

Q: What are the elements of an LGU?

Q: Who has the power to create LGUs?

Q: Can the Congress dissolve a barangay created by a province?

Q: How many autonomous regions are there in the Philippines?

Q: How many Organic Acts do we have?

Q: Can we have a Bangsamoro Juridical Entity?

Sharing is a good thing! 1

Q: Is this a perpetual prohibition?

Q: Can we have more than 2 autonomous regions in the Philippines?

Q: Does ARMM have the power to legislate?

Q: Can Congress, by legislation, reduce the power of legislation of the ARMM?

Q: How are LGUs created?

Q: What are the types of LGUs?

Sharing is a good thing! 2

Q: How many kinds of cities are there?

Q: What makes a highly-urbanized city different from an independent city?

Q: What makes an independent city different from a component city?

Other characteristics of LGUs

Q: People say that LGUs are double agents. Is this true?

Sharing is a good thing! 3

o in the exercise of government or public powers

Q: In the exercise of governmental powers, is the LGU immune from suit?

Q: Are there any other purposes for the distinction of powers?

Q: Would you consider an LGU as a GOCC or a government instrumentality?

• Public corporations can create another corporation.

Sharing is a good thing! 4

Unitary not federal

Q: What do you call this power delegated to the LGUs?

Q: Can you refer to LGUs as sovereign units?

Q: Do we have more cities than provinces?

Sharing is a good thing! 5

Q: In a plebiscite for the creation of a new LGU, who should vote?

Q: LGUs are referred to as political and territorial subdivisions. Why?

Q: What is local autonomy?

Q: Responsive and accountable to whom?

Q: How can the LGU become more responsive and accountable?

Q: Why use the word, “more?”

Q: What are the two levels of decentralization according to Limbona v. Mangelin?

Q: What is the difference?

Q: A province would enjoy what?

Sharing is a good thing! 6

Q: Does the ARMM enjoy the right of self-determination?

Q: Can an LGU issue a driver’s license?

Q: In the future, can LGUs be granted power to issue driver’s licenses?

Q: Who is the transferor? Who is the transferee?

Q: What is being transferred?

Q: Is police power devolved power?

Sharing is a good thing! 7

Q: Distinguish devolution from deconcentration.

Q: Why is this important?

Q: Where do you find the list of devolved powers?

Q: Where do you find the list of deconcentrated powers?

Q: How do you distinguish delegation from devolution and deconcentration?

Sharing is a good thing! 8

Q: President and Brgy. Guadalupe Viejo, Makati City.

Q: President over provinces.

Q: Why is it important to distinguish between direct and indirect supervision?

Q: Can the President suspend the mayor of Makati City?

Q: Can the President review the ordinances of Makati City?

Q: Can the mayor suspend a barangay captain?