A National Compensation Circular by the Department of Budget and Management cannot nullify the authority of municipalities to grant allowances to judges authorized in the 1991 Local Government Code. The Circular prohibits the payment of representation and
transportation allowances from more than one source – from national and local governments. G. Self-Determination
“Self-determination refers to the need for a political structure that will respect the autonomous peoples' uniqueness and grant them sufficient room for self- expression and self-construction. (Disomangcop v.
Secretary of Public Works and Highways, GR 149848, 11.25.2004)
H. Decentralization
A necessary prerequisite of autonomy is decentralization. Decentralization is a decision by
the central government authorizing its subordinates, whether geographically or functionally defined, to exercise authority in certain areas. It involves decision-making by subnational units. It is typically a delegated power, wherein a larger government chooses to delegate certain authority to more local governments. Federalism implies some measure of decentralization, but unitary systems may also decentralize. Decentralization differs intrinsically from federalism in that the sub-units that have been authorized to act (by delegation) do not possess any claim of right against the central government. Decentralization comes in two forms — deconcentration and devolution.
Deconcentration is administrative in nature; it involves the transfer of functions or the delegation of authority and responsibility from the national office to the regional and local offices. This mode of decentralization is also referred to as administrative decentralization.
Devolution, on the other hand, connotes political
decentralization, or the transfer of powers, responsibilities, and resources for the performance of certain functions from the central government to local government units. This is a more liberal form of decentralization since there is an actual transfer of powers and responsibilities. It aims to grant greater autonomy to local government units in cognizance of their right to self-government, to make them self-reliant, and to improve their administrative and technical capabilities.”
(Disomangcop v. Secretary of Public Works and Highways, GR 149848, 11.25.2004)
“Decentralization simply means the devolution
of national administration, not power, to local governments. Local officials remain accountable
to the central government as the law may provide.”
(Pimentel v. Aguirre, GR 132988, 07.19.2000)
Q: Are autonomy and decentralization the same? A: Not really. Autonomy is either decentralization of administration or decentralization of power.
There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of governmental power an in the process to make local governments more responsive and accountable and ensure their fullest development as self-reliant communities and make them mote effective partners in the pursuit of national development and social progress. At the same time it relieves the central government of the burden of managing local affairs and enable it to concentrate on national concerns…
Decentralization of power on the other hand,
involves an abdication of political power in favor of local government units declared to be autonomous. In that case the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central government authorities. According to a constitutional author, decentralization of power amounts to “self- immolation,” since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency. (Limbona v. Conte Miguelin, 1989 citing Bernas, Brewing the Storm Over Autonomy)119
I. President’s General Supervision
Section 4. The President of the Philippines shall exercise
general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays, shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.
1. Power of General Supervision
The power of general supervision is the power of a superior officer to see to it that the lower officers perform their functions in accordance with law. It does not include the power to substitute one’s judgment for that of a lower officer in matters where a lower officer has various legal alternatives to choose from.120
“Consistent with the doctrine that local government does not mean the creation of imperium in imperio or a state within a State, the Constitution has vested the President of the Philippines the power of general supervision over local government units. Such grant of power includes the power of
discipline over local officials, keeping them
accountable to the public, and seeing to it that their acts are kept within the bounds of law. Needless to say, this awesome supervisory power, however, must be exercised judiciously and with utmost circumspection so as not to transgress the avowed constitutional policy of local autonomy.” (Malonzo
v. Zamora, GR 137718, 07.27.99)
“Hand in hand with the constitutional restraint on the President's power over local governments is the state policy of ensuring local autonomy. xxx
119 Bernas Primer at 414 (2006 ed.) 120 Bernas Primer at 418 (2006 ed.)
Paradoxically, local governments are still subject to regulation, however limited, for the purpose of enhancing self-government.” (Pimentel v. Aguirre, GR 132988, 07.19.2000)
Q: When Section 187 of the Local Government
Code authorizes the Secretary of Justice to pass judgment on the constitutionality or legality of tax ordinances or revenue measures, does he not exercise the power of control?
A: No. He does not thereby dictate the law should
be but merely ensures that the ordinance is in accordance with law. (Drilon v. Lim)
Q: Petitioner challenges the right of the President,
through the Secretary of Interior to suspend him on the ground that the removal of the phrase “As may be provided by law” from unconstitutional provision has stripped the President and legislature of the power over local governments. Corollarily, he argues that new Constitution has effectively repealed existing laws on the subject. Decide.
A: The power of general supervision of the
President includes the power to investigate and remove. Moreover, Section 3 itself of this Article provides that the Local Government Code (LGC) may provide for “removal” thus indicating that laws on the subject are not out of the compass of the legislature. Autonomy does not transform local governments into kingdoms unto themselves. (Ganzon v. CA, 1991)
Q: May the Secretary of the local Government
annul the election of officers of a federation of barangay officials?
A: No. Such annulment would amount to control and
therefore in excess of executive supervisory powers. (Taule v. Secretary Santos, 1991)121
2. Supervisory Structure in the Local Government System
The President has general supervision over all LGUs. But his direct supervisory contact is with autonomous regions, provinces, and independent cities. The rest follow in hierarchal order as indicated in Section 4.
J. Local Autonomy and Legislative Control
“The Constitution did not, however, intend, for the sake of local autonomy, to deprive the legislature
of all authority over municipal corporations, in
particular, concerning discipline. The change in constitutional language did not exempt local governments from legislative regulation provided regulation is consistent with the fundamental premise of autonomy.” (Ganzon v. CA, GR 93252,
08.05.91)
This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here confirm that Congress retains
control of the local government units although in significantly reduced degree now than under
our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. xxx By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it.”
(Magtajas v. Pryce Properties, GR 111097, 07.20.94)
III. Local Government Code Principal Guidelines Given to Congress Effectivity of LGC
Scope of Application Declaration of Policy Rules of Interpretation
Section 3. The Congress shall enact a local government code
which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.
A. Principal Guidelines Given to Congress
The principal guidelines given to Congress for structuring LGUs are:
1.
That the structure must be “responsive and accountable” and “instituted though a system of decentralization.”2.
The structure must be both sensitive to the needs of the locality, accountable to the electorate of the locality, and freed as much as possible from central government interference.122Q: The 1973 Constitution contained a provision
which said that “No change in the existing form of government shall take effect until ratified by a majority of the votes cast in a plebiscite called for the purpose.” Why was this not retained?
A: The provision was considered too limitive of the
power of Congress.123
B. Effectivity of LGC
January 1, 1992, unless otherwise provided
herein, after its complete publication in at least one newspaper of general circulation (RA 7160, Section 536)
122 Bernas Commentary, p 1081 (2003 ed). 123 Bernas Primer at 417 (2006 ed.)
C. Scope of LGC’s Application
The Code shall apply to all provinces, cities, municipalities, barangays and other political subdivisions as may be created by law, and , to the extent herein provided, to officials, offices or agencies of the National Government (RA 7160, Section 536)
D. Declaration of Policy (Section 2)
1.
The territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals;2. Ensure accountability of local government units through the institution of effective mechanisms of recall, initiative and referendum; and
3. 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.
E. Rules of Interpretation
1. Any provision on a power of local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the local government unit. 2. Any tax ordinance or revenue measure shall
be construed strictly against the local government unit enacting it and liberally in favor of the taxpayer. Any tax exemption, incentive or relief granted by any local government unit shall be construed strictly against the person claiming it.
3. The general welfare provisions shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community. 4. Rights and obligations existing on the date of
effectivity of this Code and arising out of contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of said contracts or the law in force at the time such rights were vested.
5.
In the resolution of controversies arising under this Code where no legal provision or jurisprudence applies, resort may be had tothe customs and traditions in the place where the controversies take place.124
(See page 676-697 of Jack’s Compendium(2006)) IV. General Powers and Attributes of LGUs Powers in General
Governmental Powers Corporate Powers
Section 5. Each local government unit shall have the power to
create its own sources of revenues and to levy taxes, fees and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments.
Section 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically released to them.
Section 7. Local governments 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, including sharing the same with the inhabitants by way of direct benefits.
A. Powers in General 1. Sources
1. Article II, Section 25: “The Sate shall ensure the autonomy of local governments.”
2. Article X, Sections 5,6, & 7. 3. Statutes (e.g., RA 7160) 4. Charter (particularly of cities)
2. Classification
1.
Express , implied, inherent (powers necessary and proper for governance, e.g., to promote health and safety, enhance prosperity, improve morals of inhabitants)2.
Public or governmental; Private or proprietary3.
Intramural , extramural4.
Mandatory , directory; Ministerial, discretionary.Governmental Powers Corporate Powers
1. General Welfare 2. Basic Services and Facilities
3. Power to Generate and Apply Resources 4. Eminent Domain 5. Reclassification of Lands 6. Closure and Opening of Roads 1. To have continuous succession in its corporate name. 2. To sue and be sued 3. To have and use a corporate seal 4. To acquire and convey real or personal property
124 Antonio Nachura, Outline on Political Law, 561 (2006)
7. Local Legislative Power 8. Authority over Police Units 5. Power to enter into contracts 6. To exercise such other powers as are granted to corporations, subject to the limitations provided in the Code and other laws. 3. Execution of Powers
1. Where statute prescribes the manner of exercise, the procedure must be followed;
2.
Where the statute is silent, local government units have discretion to select reasonable means and methods of exercise.125B. Governmental Powers
1. General Welfare (RA 7160, Section 16) 2. Basic Services and Facilities (RA 7160, §17) 3. Power to Generate and Apply Resources (RA
7160 §18; Article X, §§5-7) 4. Eminent Domain (RA 7160, § 19) 5. Reclassification of Lands (RA 7160, § 20) 6. Closure and Opening of Roads (RA 7160, §
21)
7. Local Legislative Power (RA 7160, §§ 48-59) 8. Authority over Police Units (See Article XVI,
Section 6; PNP Act)
1. General Welfare
RA 7160, Section 16: Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of general welfare. Within their respective territorial jurisdiction, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among its residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
Police power. The general welfare clause is
the statutory grant of police power to local government units.
“The general welfare clause has two
branches.
(1) General legislative power, authorizes the municipal council to enact ordinances and make regulations not repugnant to law, as may be necessary to carry into effect and discharge 125 Antonio Nachura, Outline on Political Law, 562 (2006)
the powers and duties conferred upon the municipal council by law.
(2) Police power proper, authorizes the municipality to enact ordinances as may be necessary and proper for the health and safety, prosperity, morals, peace, good order, comfort, and convenience of the municipality and its inhabitants, and for the protection of their property.” (Rural Bank of Makati v.
Makati, GR 150763, 07.02.2004)
“As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a concurrence of a
lawful subject and lawful method.” (Lucena Grand Central v. JAC, GR 148339 02.23.2005)
Limitations on the exercise of powers under this clause: