CAPÍTULO V: ANÁLISIS Y DISCUSIÓN
5.1 ANÁLISIS DESCRIPTIVO:
21, LGC]
What roads are subject, those within jurisdiction of LGU
(1) Local road (2) Alley (3) Park (4) Square
189
Permanently close or open
(1) Ordinance: Vote of at least 2/3 of all members of the Sanggunian
(2) When necessary, an adequate substitute for the public facility should be provided (3) Make provision for public safety
(4) If permanently withdrawn from public use (5) May be used or conveyed for any purpose
for which other real property belonging in LGU may be lawfully used or conveyed (6) Freedom park: must have provision for
relocation to new site Temporary close or open
(1) Ordinance (2) May be done:
During actual emergency
Fiesta celebrations
Public rallies
Agricultural or industrial fairs
Undertaking of public works and highways, telecommunications, and waterworks projects
(3) Duration specified in written order by local chief executive
(4) If for athletic, cultural, or civic activities:
must be officially sponsored, recognized, or approved by LGU.
Temporary closure and regulation of any local street, road, thoroughfare, or any other public place
By any city, municipality, or barangay
Where shopping malls, Sunday, flea or night markets, or shopping areas may be established
Where goods, merchandise, foodstuffs, commodities, or articles of commerce may be sold
Illustrations
A public street is property for public use hence, outside the commerce of man. It may not be the subject of lease or other contract. Such leases are null and void for being contrary to law. The right of the public to use the city street may not be bargained away through contract. The authorization given for the use of the city street as a vending area for stallholders who were granted licenses by the City Government contravenes the general law that reserves city streets and roads for public use. It may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve. [Dacanay vs Asistio (1992)]
The provincial council has the authority to determine whether or not a certain property (in this case a provincial road) is still necessary for public use [Cabrera vs CA (1991)]
The power of the LGU to enact zoning ordinances for the general welfare prevails over the deed of restrictions. [Sangalang vs IAC(1989)]
The closure of roads under police power is not eminent domain. No grant of damages is awarded.
[Cabrera vs CA (1991)]
Effect: The determination of the location of the camino vecinal through an ordinance will defeat the testimonies of witnesses as to the location of said passageway. [Pilapil vs CA (1992)]
The MMDA does not have police power, but the LGUs do. There should have been an ordinance by the LGU to effect an opening of roads. [MMDA vs Bel Air (2000)]
5. Legislative Power [Secs. 48-59, LGC]
Exercised by:
(1) Sangguniang panlalawigan for the province (2) Sangguniang panlungsod for the city (3) Sangguniang bayan for the municipality (4) Sangguniang barangay for the barangay
[Sec. 48, LGC]
Presided by:
(1) Vice-governor or vice-mayor or punong barangay will vote only in case of a tie because he is not a member of the Sanggunian. [Perez vs Dela Cruz (1969)]
(2) The incumbent local chief executive acting as the chief executive may not preside over the sessions of the Sanggunian. Why? To ensure better delivery of public services and provide a system of checks and balances between the executive and legislative. [Gamboa vs Aguirre, supra]
In case of inability of the above: members present and constituting a quorum shall elect from among themselves a temporary presiding officer who shall certify within 10 days from the passage of the ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided [Sec. 49, LGC]
Internal Rules of Procedure
Adopted/update on the 1st regular session following election of its members- within 90 days
Provides for:
- Organization of the Sanggunian and the election of its officers
- Standing Committees
- Creation (Including the committees on appropriations, women and family, human rights, youth and sports development, environmental protection, and cooperatives; the general jurisdiction of each committee
- Election of the chairman and members of each committee
Order and calendar of business for each session
Legislative process
190
- Parliamentary procedures (including the conduct of members during sessions)
- Discipline of members for disorderly behavior and absences (without justifiable cause for 4 consecutive sessions)
- Penalty: censure, reprimand, or exclusion from the session, suspension for not more than 60 days or expulsion - Suspension or expulsion: requires
concurrence of at least 2/3 vote of all Sanggunian members
- A member convicted by final judgment to imprisonment of at least 1 year for any crime involving moral turpitude shall be automatically expelled from the Sanggunian
- Other rules as the Sanggunian may adopt [Sec. 50, LGC]
Quorum
Majority of all members of the Sanggunian who have been elected and qualified
If a question of quorum is raised: the presiding officer shall immediately proceed to call the roll of the members and announce the results.
If there is NO quorum:
(1) The presiding officer may declare a recess until such time as a quorum is constituted OR a majority of the members present may adjourn from day to day and may compel the immediate attendance of any member absent without justifiable cause by arresting the absent member and present him at the session
(2) No business shall be transacted [Sec. 53, LGC]
Sessions
Regular sessions: fixed by resolution on 1st day of the session immediately following the election of its members
Minimum numbers of regular sessions: once a week (panlalawigan, panlungsod, bayan) and twice a month for the Sangguniang Barangay
Special session: may be called by the local chief executive or by a majority of the members of the Sanggunian-cause: when public interest demands
Written notice: served personally at the member‘s usual place of residence at least 24 hours before the session
Unless otherwise concurred in by 2/3 vote of the Sangguniang members present, there being a quorum, no other matters may be considered except those stated in the notice
Sessions are open to the public, UNLESS a closed-door session is ordered by:
(1) an affirmative vote of a majority of the members present (there being a quorum)
(2) In the public interest or for reasons of secrecy, decency or morality
No 2 sessions may be held in a single day.
Each sanggunian shall keep a journal and record of its proceedings which may be published upon resolution of the Sanggunian concerned [Sec. 52, LGC]
How many votes required
GENERAL RULE: Majority of the members constituting a quorum
Exception: When the enactment itself specifies the number of votes required, such requirement will govern over the general rule specified in the charter or the LGC, when such enactment is to be amended.
Why? Because the municipal authorities are in a better position to determine the votes required.
[Casino vs CA (1991)]
Approval, Veto and Review of Ordinances
Every ordinance shall be presented to the governor or mayor, as the case may be
Approves: affix his signature on each and every page
Disapproves: veto it and return the same with his objections to the Sanggunian
- Override: 2/3 vote of all its members making the ordinance effective even without the approval of the local chief executive concerned
- Veto communicated to the Sanggunian within 15 days in the case of a province, and 10 days in the case of a city or a municipality; otherwise, the ordinance shall be deemed approved Veto power: The local chief executive may veto any ordinance on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons for writing
Right to veto may be exercised only once
Local chief executive (except the punong barangay) has the power to veto any particular item or items of an
- Appropriations ordinance
- Ordinance or resolution adopting a local development plan and public investment program
- Ordinance directing the payment of money or creating liability
In such a case, the veto shall not affect the item/s which are not objected to. The vetoed item/s shall not take effect unless the sanggunian overrides the veto;
otherwise, the item/s in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted.
Review of (Component) City or Municipal Ordinances
Within 3 days after approval, the secretary shall forward to the Sangguniang Panlalawigan for review,
191
copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils
Within 30 days after the receipt of copies, the Sangguniang Panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for examination.
The provincial attorney or prosecutor shall, within 10 days from receipt, inform the Sanggunian in writing of his comments or recommendations.
If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken.
If no action has been taken by the sangguniang panlalawigan within 30 days after submission, the ordinance or resolution shall be presumed consistent with the law and therefore valid.
Any attempt to enforce any ordinance or any resolution approving the local development plan and public investment program, after the disapproval, shall be sufficient ground for the suspension or dismissal of the official or employee. [Sec. 58, LGC]
Review of Barangay Ordinances by Sangguniang Panlungsod or Bayan [Sec. 57, LGC]
Ordinance enacted by the Sangguniang barangay shall upon approval by the majority of all its members, be signed by the punong barangay.
Within 10 days after its enactment, the sangguniang barangay shall furnish copies of all barangay ordinances to the sangguniang panlungsod or sangguniang bayan concerned for review.
No action for 30 days from receipt: ordinance shall be deemed approved
If the sangguniang panlungsod or sangguniang bayan finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within 30 days from receipt, return the same with its comments and recommendations to the sangguniang barangay for adjustment, amendment, or modification
Effectivity: suspended until such time as the revision called for is effected
Summary of review of ordinances See Annex B.
Effectivity of Ordinances or Resolutions
GENERAL RULE: the same shall take effect after 10 days from the date a copy is posted
EXCEPTION: unless otherwise stated in the ordinance or the resolution approving the local development and public investment program
Ordinances with penal sanctions: gist shall be published in a newspaper of general circulation within the province where the local legislative body concerned belongs
Absence of any newspaper: posting shall be made in all municipalities and cities of the province where the sanggunian of origin is situated.
Highly urbanized and independent component cities: the main features of the ordinance or resolution in addition to being posted, shall be published in a local newspaper of general circulation within the city
Absence of local newspaper: any newspaper of general circulation [Sec. 59, LGC]
Full disclosure of Financial and Business Interests of Sanggunian Members
Every sanggunian member shall, upon assumption of office, make a full disclosure of:
(1) His business and financial interests
(2) Professional relationship or any relation by affinity or consanguinity within the fourth civil degree which he may have with any person, firm, or entity affected by any ordinance or resolution which relationship may result in conflict of interest including:
(a) Ownership of stock or capital, or investment, in the entity or firm to which the ordinance or resolution may apply
(b) Contracts or agreements with any person or entity which the ordinance or resolution under consideration may affect conflict of interest. [Sec. 51, LGC]
Conflict of interest: One where it may be reasonably deduced that a member of a sanggunian may not act in the public interest due to some private, pecuniary, or other personal considerations that may tend to affect his judgment to the prejudice of the service or the public
Jurisprudence
The LGC does not mandate that no other business may be transacted on the first regular session except to take up the matter of adopting or updating rules.
All that the law requires is that ―on the 1st‖ regular session, the sanggunian concerned shall adopt or update its existing rules or procedures‖. Until the completion of the adopted or updated rules, the rules of the previous year may be used. [Malonzo v Zamora (1999)]
Disclosure shall:
Be made in writing and submitted to the secretary of the sanggunian
192
Form part of the record of the proceedings and shall be made in the following manner:
- Made before the member participates in the deliberations on the ordinance or resolution under consideration
- If the member did not participate during the deliberations, the disclosure shall be made before voting on the ordinance or resolution on second and third readings
- Made when a member takes a position or makes a privilege speech on a matter that may affect the business interest, financial connections, or professional relationship
Updated rules, the rules of the previous year may be used.
The signature of the mayor is not a mere ministerial act, but involves the exercise of discretion on the part of the local chief executive. [Delos Reyes v Sandiganbayan (1997)]
Incidents of Law-Making (Legislative) Power Posting and Publication of:
(1) Tax ordinances and Revenue measures
Within 10 days after approval
Certified true copies of all provincial, city, or municipal tax ordinances or revenue measures
Published in full for 3 consecutive days
In a newspaper of local circulation - Where no such newspaper: posted
in at least 2 conspicuous and publicly accessible places [Sec.
188, LGC]
(2) Ordinance with penal sanctions
At prominent places in the provincial capitol, city, municipal or barangay hall
Minimum period: 3 consecutive weeks
Publication in a newspaper of a general circulation w/in territorial jurisdiction, except barangay ordinances
Effectivity: unless otherwise provided on the day following its publication or at the end of period of posting, whichever is later
Violation by public officer or employee - May be meted administrative
disciplinary action
- Without prejudice to filing of appropriate civil or criminal action
Duty of Secretary of Sanggunian:
- Shall transmit official copies to the chief executive of Official Gazette - Within 7 days following approval of
ordinance
- Purpose for publication
- If with penal sanction: for archival and reference purposes [Sec. 511, LGC]
Judicial Intervention
Actions involving the validity of a local government ordinance:
Prosecutor or attorney of the LGU involved shall be notified and entitled to be heard;
Alleged to be unconstitutional: Solicitor General shall also be notified and entitled to be heard. [Sec. 4, Rule 63]
The failure of the SolGen to appear in the lower court to defend the constitutionality of an ordinance is not fatal to the case. The determination of the question of WON the SolGen should be required to appear ―in any action involving the validity of any treaty, law, executive order, rule or regulation‖ is a matter left to the discretion of the Court. Inasmuch as the said requirement is not mandatory, but discretionary, noncompliance therewith affected neither the jurisdiction of the trial court nor the validity of the proceedings. [Homeowner’s Association of the Phil. Inc. v Municipal Board of Manila (1968)]
Requisites for Valid Ordinance
For an ordinance to be valid exercise of police power, it must:
(1) Not be contrary to the Constitution and/or statute
(2) Not be unfair or oppressive
(3) Must not be partial or discriminatory (4) Not prohibit but may regulate trade
(5) Be General and consistent with public policy (6) Not be unreasonable [Tatel v. Mun. of Virac
(1992)]
Local Initiative and Referendum Definition
NOTE: Both a resolution and an ordinance may be the proper subjects of an initiative or a referendum.
[Garcia v COMELEC (1994)]
(Based on LGC Sec. 120-127 and RA 6735: AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND REFERENDUM)
Initiative: legalprocess whereby the registered voters of a LGU may directly propose, enact, or amend any ordinance.
Referendum: legal process whereby the registered voters of the LGUs may approve, amend or reject any ordinance enacted by the sanggunian.
Who may exercise — all registered voters of the provinces, cities, municipalities and barangays Requirements
Referendum or initiative affecting a resolution or ordinance passed by the legislative assembly of a province or city:
(1) petition must be signed by at least 10% of the registered voters in the province or city,
(2) of which every legislative district must be represented by at least 3% of the registered voters therein;
193
(3) Provided, however, that if the province or city is composed only of 1 legislative district, then at least each municipality in a province or each barangay in a city should be represented by at least 3% of the registered voters therein.
Referendum or initiative on an ordinance passed in a municipality: petition must be signed by at least 10% of the registered voters in the municipality, of which every barangay is represented by at least 3%
of the registered voters therein
Referendum or initiative on a barangay resolution or ordinance: must be signed by at least 10% of the registered voters in said barangay
Procedure
Not less than 1,000 registered voters in case of provinces and cities, 100 in case of municipalities, and 50 in case of barangays, may file a petition with the local legislative body, respectively, proposing the adoption, enactment, repeal, or amendment, of any law, ordinance or resolution
If no favorable action thereon is made by local legislative body within 30 days from its presentation, the proponents through their duly authorized and registered representative may invoke their power of initiative, giving notice thereof to the local legislative body concerned
2 or more propositions may be submitted in an initiative
Proponents shall have 90 days in case of provinces and cities, 60 days in case of municipalities, and 30 days in case of barangays, from notice to collect the required number of signatures
The petition shall be signed before the Election Registrar, or his designated representative, in the presence of a representative of the proponent, and a representative of the regional assemblies and local legislative bodies concerned in a public place in the LGU
If the required number of signatures is obtained, the COMELEC shall then set a date for the initiative for approval of the proposition within 60 days from the date of certification by the COMELEC in case of provinces and cities, 45 days in case of municipalities, and 30 days in case of barangays [Sec. 122, LGC]
Effectivity of Local Propositions
If the proposition is approved by a majority of the votes cast, it shall take effect 15 days after certification by the COMELEC. [Sec. 123, LGC]
Limitations on Initiatives
(1) The power of local initiative shall not be exercised more than once a year.
(2) Initiative shall extend only to subjects or matters which are within the legal powers of the local legislative bodies to enact.
(3) If at any time before the initiative is held, the local legislative body shall adopt in toto the proposition presented, the initiative shall be cancelled. However, those against such action may, if they so desire, apply for initiative in the manner herein provided.
[Sec. 124, LGC]
LimitationsUpon Local Legislative Bodies Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall:
LimitationsUpon Local Legislative Bodies Any proposition or ordinance or resolution approved through the system of initiative and referendum as herein provided shall: