Local Government Code

Congress enacts a local government code which shall provide for a more responsive and accountable local government
structure instituted through a system of decentralization, and to allocate among the different local government units their
powers, responsibilities, and resources, and to provide all other matters relating to the organization and operation of the
local units. (Sec. 3, Art. X, Const.) Under such mandate, Congress enacted a new Local Government Code of 1991. (RA 7160)
The local government shall be entitled to an equitable share in the proceeds of the utilization and development of the
national wealth within their respective areas, in the manner provided by law. (See Sec. 7, Art. X, Constitution)

Local government is a political subdivision of a nation or state which is constituted by law and has substantial control of
local affairs. (Basco v. Pagcor, 197 SCRA 52)

Local autonomy is a more responsive and accountable local government structure instituted through a system of
decentralization. Autonomy, however, is not meant to end the relation of partnership and interdependence between the
central administration and local government units, or otherwise, to usher in a regime of federalism. (Ganzon v. CA, 200
SCRA 271)

Devolution is the transfer to local government units of the records, equipment, and other assets and personnel of national
agencies and offices corresponding to the devolved powers, function and responsibilities. (17, LGC)

Powers

The President of the Philippines exercises general supervision over local government units. (Sec. 4, Art. X, Const.) This power
carries with it the power to impose disciplinary authority over locally elected officials. (Ganzon v. CA)

Powers of municipal corporations:

1. Public/governmental/sovereign functions

This is exercised in administering the powers of the State and promoting the public welfare and they include the legislative,
judicial, public and political. The municipal corporations exercise these rights springing from sovereignty and while in the
performance of the duties pertaining thereto, their acts are political and governmental. (See Mun. of San Fernando v. Firme,
195 SCRA692)

Police power

Police power is inherent in the State but not in municipal corporations. For a municipal corporation to exercise police power,
there must be a legislative grant which necessarily also sets the limits for the exercise of the power. In the Philippines, the
grant of authority is embodied in Sec. 2238 of the Revised Administrative Code, otherwise known as the general welfare
clause. Chartered cities are granted similar authority in their respective charters. (Balancuit v. CFI-Agusan del Norte, 163
SCRA 182)

The local government unit is empowered to exercise police power under the LGC, thus: Every local government unit shall:

a. Exercise the power expressly granted.

b. Those necessarily implied therefrom, as well as powers necessary, appropriate, or or incidental for its efficient and
effective governance.
c. Those which are essential to the promotion of the general welfare. (Sec. 16, LGC)
Yet, this power does not include the power to prohibit the establishment of businesses which are not per se illegal. Local
government units can only regulate but cannot prohibit xxx. (De la Cruz v. Paras, 123 SCRA 569)

The police power of a municipal corporation is broad, and has been said to be commensurate with, but not to exceed, the
duty to provide for the real needs of the people in their health, safety, comfort and convenience as consistently as may be
with private rights.

Public purpose is not unconstitutional merely because incidentally benefits a limited number of persons. The drift is towards
social legislation, the promotion of general welfare, social justice as well as human dignity and respect for human rights.
The support for the poor has long been accepted exercise of police power in the promotion of common good. (Binay v.
Domingo, 210 SCRA 503)

The Laguna Lake Development Authority (LLDA) is mandated to promote the development of the Laguna Lake area,
including the surrounding Province of Rizal, with due regard to the prevention of pollution. Thus, it is mandated to pass
upon and approve or disapprove all projects proposed by local government offices within the region. (LLDA v. CA, 231 SCRA
292)

Eminent Domain

A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of
eminent domain for public use, or purpose, or welfare for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and pertinent laws. (Sec. 19, LGC) One of the conditions
required for the proper exercise of power of eminent domain by municipal corporations is a valid and definite offer must
first be made to the owner. In Moday v. CA, 107916, Feb. 20, 1997, the Supreme Court held that the disapproval by the
Sangguniang Panlalawigan of Agusan del Sur of Municipal Resolution No. 43-89 of the Mun. of Bunawan, same province, is
an infirm action which does not render said resolution null and void. The Sangguniang Panlalawigan was without the
authority to disapprove the said Municipal Resolution because the municipality clearly has the power to exercise the right
of eminent domain. It will be noted that under Sec. 56 of the LGC, the ground for the Sangguniang Panlalawigan to declare
an ordinance or resolution of the Sangguniang Bayan or Sangguniang Panlungsod to be invalid is only that it is ultra vires or
beyond the power conferred upon the lower sanggunians. On the other hand, there are two grounds provided by law in
Sec. 55 for a local chief executive to veto an ordinance of the sanggunian concerned, namely, that it is ultra vires or
prejudicial to the public welfare.

A local government unit may likewise, through its head acting pursuant to a resolution of its sanggunian and in accordance
with existing law and the provisions of this Code, close any barangay, municipal, city or provincial road, street, alley, park
or square. No such way or place or any part thereof shall be closed without indemnifying any person prejudiced thereby. A
property thus withdrawn from public use may be used or conveyed for any purpose for which other real property belonging
to the local unit concerned might be lawfully used or conveyed. (Sec. 10, LGC) Thus, a property withdrawn from public use,
it falls within the commerce of man and may be used or conveyed for any lawful purpose. However, no freedom park shall
be closed permanently without provision for its transfer or relocation to a new site. (21, LGC) In COACO v. Berceles, 66 SCRA
481, it was held that the City of Cebu could close a street and sell it thereafter. Nonetheless, in Macasiano v. Diokno, 212
SCRA 464, the lease of public streets as authorized by the city ordinance was declared void, since public streets are reserved
for public use and are outside the commerce of man. Likewise, in City of Angeles v. CA, 97882, August 28, 1996, the Court
held that “open space” donated by the subdivision owner to the municipality or city devoted to parks, playground and
recreational areas is not alienable public land and the operation of a drug rehabilitation center on the land is a violation of
Sec. 31 of PD 957, as amended, which provides that a subdivision owner is legally bound to donate to the city or municipality
the open space exclusively allocated for parks, playground and recreational use.
To collect the balance of judgment in expropriation proceeding, as stated in Tan Toco v. Mun. Counsel of Iloilo, 49 Phil. 52,
the landowner may levy on patrimonial properties of the municipality. If it has no patrimonial properties, in accordance
with the Municipality of Makati v. CA, 190 SCRA 206, the remedy is to file a petition for mandamus to compel the
municipality to appropriate the necessary funds to satisfy the judgment.

Taxation

The Local Government Code provides for the exercise by local government units of their power to tax, the scope thereof or
its limitations, and the exemptions from taxation. The “taxes, fees or charges” referred to in Sec. 133(o) are “of any kind”;
hence, they include all of these, unless otherwise provided by the LGC. The term “fees” means charges fixed by law or
ordinance for the regulation or inspection of business or activity, while “charges” are pecuniary liabilities such as rents or
fees against persons or property. Among the “taxes’ enumerated in the LGC is real property tax, which is governed by
Section 232. The power to tax is primarily vested in Congress; in our jurisdiction, it may be exercised by local legislative
bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Sec. 5, Art.
X of the Constitution.

Tax exemptions or incentives granted to or presently enjoyed by natural or judicial persons, including government-owned
and controlled corporations, are withdrawn upon the effectivity of the LGC (Jan. 1, 1992), except those granted to local
water districts, duly-registered cooperatives, non-stock and non-profit hospitals and educational institutions, and unless
otherwise provided in the LGC (Sec. 193)

Every municipal corporation may sue and be sued, (Sec. 22,LGC) even in the performance of governmental functions. Also,
local government units and their officials are not exempt from liability for death or injury to persons or damages to property.
(Sec. 24, LGC)

2. Municipal or private functions

This is exercise for the special benefit and advantage of the community and include those which are ministerial, private,
proprietary and corporate.

Local Legislative Assembly

Local political subdivisions are able to legislate only by virtue of a valid delegation of legislative power from the national
legislature (except only that the power to create their own sources of revenue and to levy taxes is conferred by the
Constitution itself). They are mere agents vested with what is called the power of subordinate legislation.

Requisites for a validity of an ordinance enacted by local government:

1. Must not contravene the Constitution and statute.

2. Must not be unfair.
3. Must not be partial or discriminatory.
4. Must not be unreasonable.
5. Must be general and consistent with public policy.

Under Sec. 335 of the Local Government Code, no public money shall be appropriated for private purposes.

An ordinance is valid requiring owners, administrators, or tenants of buildings and premises to keep and maintain them in
sanitary condition and provides that should they fail to do so, the municipality shall cause them to be cleaned and the cost
shall be assessed against the owner, administrator or tenant and shall be a lien against the property. (See Sec. 149[Kk] of
the Code) Under Sec. 149(c) of the Code, however, the penalty for the violation of a municipal ordinance cannot exceed a
fine of P 1,000 or imprisonment for 6 months, or both at the discretion of the court.

Under Sec. 55(a) of the Code, the local chief executive may veto an ordinance on the ground that is ultra vires or prejudicial
to the public welfare. The local legislative assembly can override the veto of the local chief executive by 2/3 vote of all its
members. If the veto by the local executive has been overridden by the local legislative assembly, a second veto will be void.
The local chief executive may veto an ordinance only once. Pursuant to Sec. 54(b) of the LGC, an ordinance vetoed by the
local chief executive shall be deemed approved if he does not communicate his veto to the local legislative assembly within
15 days in the case of a province and 10 days in the case of a city or municipality.

Local initiative is the legal process whereby the registered voters of a local government unit may directly propose, enact or
amend any ordinance. (Sec. 120, LGC); while, a local referendum is the legal process whereby the registered voters of the
local government units may approve, amend or reject any ordinance enacted by the sanggunian. The former is initiated by
the people directly because the law-making body fails or refuses to enact the law, ordinance, resolution or act that they
desire or because they want to amend or modify one already existing. The latter is where the law-making body submits to
the registered voters for approval or rejection, any ordinance or resolution which is duly enacted or approved by such law-
making body. (SBMA v. Comelec, 125416, Sept. 26, 1996)

The legal requisites for the validity of a contract to be entered into by the municipality which involves the expenditure of
public funds:

1. The contract must be within the power of the municipality.

2. The contract must be entered into by the proper officer, i.e., the Mayor, upon the resolution of the Sangguniang Bayan.
3. There must be an appropriation of the public funds and a certificate of availability of funds issued by the Municipal
Treasurer.
4. The contract must conform with the formal requisites of written contracts prescribed by law.

Province, City and Municipality

A province, city or municipality can only be created, merged or abolished or their boundaries substantially altered by an act
of Congress. The creation of a barangay, however, has been sub-delegated by Congress to either the Sangguniang
Panlalawigan or Sangguniang Panlungsod where the barangay is located. In both cases, the creation, etc. is subject to the
approval by a majority of the votes cast in a plebiscite in the political units directly affected. A municipality created by an
EO before the ruling in Pelaez v. Auditor General (the power to create municipalities is essentially legislative) is later
impliedly recognized and its act are accorded legal validity, its creation can longer be questioned. Sec. 442 (d) of the Local
Government Code of 1991 (LGC) provides that “municipalities existing as of the time of the effectivity of this Code shall
continue to exist and operate as such”. Since it attained de facto status at the time of the 1987 Constitution took effect, it
is not subject to the plebiscite requirement as this applies only to new municipalities created for the first time under the
Constitution.

Criteria whenever a local government unit is to be created is based on verifiable indicators of viability and projected capacity
to provide services, like:

a. Income
b. Population
c. Land Area

AREA INCOME POPULATION

(at least) (at least)
Barangay (Contiguous) – 2,000 up
5,000 up (HU)
Municipality (50 sq. Km.) 2.5 M 25,000 up
City – Highly Urbanized 50 M 200,000 up
100 sq. Km.
– Component 20 M (either 150,000 pop. or 100 sq. Km.)
Province 20 M (either 250,000 pop. or 2,000 sq. km.)

Internal Revenue Allotment (IRA’s) form part of the income of local government units. Income under the LGC includes all
revenues and receipts collected or received forming the gross accretions of funds of the local government unit. The IRA
regularly and automatically accrue to the local treasury without need of any further action on the part of the local
government unit. Sec. 450 (c) of the LGC provides that “the average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring income.”

A component city may be converted into a highly urbanized city if it shall have met the minimum requirements for a highly
urbanized city, and it shall be the duty of the President to declare it as such upon:

a. Proper application
b. Ratification in a plebiscite by the majority registered voters therein. (Sec. 453, LGC)

The corporate existence of a new local government unit commences upon the election and qualification of its chief
executive and a majority of the members of the Sanggunian, unless some other time is fixed therefor by the law or ordinance
creating it. (Sec. 14, LGC)

A private attorney cannot represent a province or municipality in a lawful suit. (Mun. of Pililla, Rizal v. CA, 233 SCRA 484)
Only the provincial fiscal, attorney or municipal attorney should represent a municipality in its lawsuit. Private lawyers may
not do so even in collaboration with authorized government lawyers. There are, however, exceptions as follows:

1. When original jurisdiction of case involving the municipality is vested in the Supreme Court.

2. When the municipality is a party adverse to the provincial government or to some other municipality in the same
province.

3. When, in case involving the municipality, he or his wife, or child, is pecuniarily involved, as heir, legatee, creditor or
otherwise. (Enriquez, Sr. v. Gimenez, 107 Phil. 932)

Local Officials

Under Sec. 39 of the LGC, providing for qualifications of local elective officials, it is with respect to the residency and age
requirement that the law expressly prescribes the reckoning time for compliance, that is, one year residency immediately
preceding the day of election and a minimum age attained as of the date of election. The law is silent as the reckoning date
of the citizenship requirements, and the Court ruled that it should be the date of proclamation. (See Frivaldo v. Comelec,
120295, June 28, 1996)

RA 8524 enacted in 1998 changed the term of office of barangay officials and members of the Sangguniang Kabataan from
3 to 5 years, amending for the purpose Sec. 43 of the LGC. Under Sec. 424 of the LGC, the maximum age of member in the
Katipunan ng Kabataan (KK) is 21 years old. There is no further provision as to when the member shall have turned 21 years
of age. On the other hand, Sec. 428 of the Code provides that the maximum age of an elective SK official is 21 years old on
the day of his election. Thus, the member may be more than 21 years of age on election day or on the day he registers as
member of the KK. The elective officials, however, must not be more than 21 years old on the day of election. The Code
itself provides more qualifications for an elective SK official than for a member of the KK. (Garvida v. Sales, Jr., 271 SCRA
767)

When the governor, city or municipal mayor or punong barangay is temporarily incapacitated to perform his duties for
physical or legal reason such as but not limited to, leave of absence, travel abroad, and suspension from office, the vice-
governor, city or municipal vice-mayor shall automatically exercise the powers and duties of the local chief executive
concerned. However, the acting governor, city or municipal mayor, however, cannot exercise the power to appoint, dismiss
or suspend employees, except when the temporary incapacity exceeds 30 working days.

When the incumbent local chief executive is traveling within the country but outside his territorial jurisdiction for a period
not exceeding 3 consecutive days, he may designate in writing the officer-in-charge of the said office. (Sec. 46, LGC)

Sec. 45(c) provides: “In case the permanent vacancy is caused by a sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person to fill
the vacancy.” In cases, where the permanent vacancy is caused by a sanggunian member belonging to a political party is
concerned, nomination and certification of the political party to which the member who caused the vacancy belonged is
required. The next preceding paragraph (a) provides that, “Permanent vacancies in the sanggunian where automatic
successions do not apply shall be filled by appointment in the following manner:

1. The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the sanggunian
panglungsod of highly urbanized cities and independent component cities.

2. The governors, in the case of the sangguniang panglungsod of component cities and the sangguniang bayan.

3. The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation of the sangguniang
barangay concerned.”

The position of City Administrator, Engineer, among others, belongs to the career service and the occupant is entitled to
the security of tenure guaranteed by the Constitution and civil service laws.

Recall is a process of terminating the official relations of a locally elective official on ground of loss of confidence. The latter
is defined as the withdrawal by an electorate of their trust in a person’s ability to discharge his office previously bestowed
on him by the same electorate. It is a political question where only the people are the sole judge.

Recall may be either initiated by:

1. Preparatory Recall Assembly (PRA)

A majority of the PRA member (Provincial – All mayors, vice-mayors, and sangguniang members of cities and municipalities;
City/Municipality – All punong barangay and sangguniang barangay members) may convene in session in a public place and
initiate a recall proceeding against any elective official in the local government concerned. It shall pass a resolution adopted
by a majority of all the members of the PRA and filing a valid resolution for recall with the appropriate office of the COMELEC,
which shall set the date of the election on recall.

2. A Petition of at least 25 % of the total number of registered voters in the local government unit concerned.

It shall be filed with the appropriate office of the COMELEC, which shall cause the publication of the petition in a public and
conspicuous place for a period of not less than 10 days nor more than 20 days, for the purpose of verifying the authenticity
and genuineness of the petition and the required percentage of votes. Then, the Comelec shall set the date of the election
on recall. The law does not state that the petition must be signed by at least 25% of the registered voters; rather, the
petition must be filed, not by one person only, but by at least 25% of the total number of registered voters. While the
initiatory recall petition may not yet contain the signatures of at least 25% of the total number of registered voters, the
petition must contain the names of at least 25% of the total number of registered voters in whose behalf only one person
may sign the petition in the meantime. The signing of the petition is statutorily required to be undertaken “before the
election registrar or his representative, and in a public place in the municipality.” (Angobung v. Comelec, 269 SCRA 245)

The official sought to be recalled shall automatically be considered as a duly registered candidate to the pertinent position
and, like other candidates, shall be entitled to be voted upon. (70-71, LGC)

Any of the locally elective officials may be recalled only once during his term of office. No recall can take place within one
year from the date of the official’s assumption to office or one year immediately preceding a regular local election. (74,
LGC) In Paras v. Comelec, 123169, Nov. 4, 1996, it held that a Sangguniang Kabataan (SK) election cannot be considered a
“regular local election” for purposes of recall. Under the law, the SK includes the youth with ages ranging from 15 to 21.
Accordingly, they include many who are not qualified to vote in a regular election, viz.; those from ages 15 to less than 18.
SK is nothing more than a youth organization, and although fully recognized in the LGC and vested with certain powers and
functions, its elective officials have not attained the status of local elective officials.