Local Legislation

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Local Legislation

  1. 1. DILG Opinion No. 22, series 2009 – Authority of sangguniang to issue compulsory process of subpoena In the exercise of legislative power – sanggunian has no compulsory process to require persons to appear before it (Negros Oriental II Electric Cooperative vs. Sangguniang Panlungsod of Dumaguete City, 155 SCRA 421) Only in the exercise of quasi-judicial functions that sanggunian can compel appearance of any person pursuant to its subpoena powers
  2. 2. SANGGUNIAN SESSION – refers to a single meeting of the sanggunian (section 52, LGC) KINDS OF SESSIONS WITH BINDING LEGAL EFFECT: REGULAR SESSION – that which that has been earlier fixed as to date, time and place, through a Resolution passed by the sanggunian concerned on the 1st day of the session immediately following the election of its members. Minimum number of regular sessions – - Once a week for the sangguniang panlalawigan sangguniang panlungsod and sangguniang bayan - 2x a month for the sangguniang barangay
  3. 3. SPECIAL SESSION – that which may be called by the LCE or by a majority of the members of the sanggunian when public interest do demands. Requirements:  Written notice to members  Personal service at the member’s usual place of residence at least 24 hours before the special session is held
  4. 4. Note: (a) No 2 sessions, regular or special, may be held in a single day (b) unless otherwise concurred by 2/3 vote of the sanggunian members present, there being a quorum, no other matters maybe considered a t a special session EXCEPT those stated in the notice
  5. 5. • Session authorized under RA 8185 where the sanggunian, within 48 hours from the occurrence of a calamity, may call an emergency session for the purpose of determining and declaring a local state of calamity.
  6. 6. DILG Opinion No. 38, series of 2006 – Conduct among SB members • While in attendance at a session, a sanggunian member is expected to ensure his/her participation on matters presented in their session’s agenda, either by deliberating or voting thereon • Leaving the session hall during a session without justificable reason but for purposes of avoiding to participate – breach of internal discipline / administrative infraction
  7. 7. PRESIDING OFFICER (Section 49, LGC) Vice –Governor – for the sangguniang panlalawigan City Vice-Mayor – for the sangguniang panlungsod Municipal Vice-Mayor – for the sangguniang bayan Punong Barangay –for the sangguniang barangay
  8. 8. What are his/her duties as such? Shall preside the session • To guide the proceedings in the sanggunian • Maintain and preserve order and decorum during sessions • Shall vote only to break a tie
  9. 9. (DILG Opinion No. 91, series of 2008) – the Vice-Mayor cannot by himself defer the approval of certain measure already calendared for approval in the business for the day. He cannot impose his sole will upon the sangguniang bayan and overrule the decision of the majority of the members of the said sangguinan. As the presiding officer, the Vice-Mayor’s authority is merely to preside over session of the sangguinan in order to ensure orderly and harmonious conduct of the said sessions. However, it may happen that the decision of the Vice-Mayor is controlling. This takes place only in case of a tie in the voting of the members of the sangguniang bayan.
  10. 10. Remedy in case of absence or inability of the regular presiding officer to preside at a sanggunian session – members present and constituting a quorum shall elect from among themselves a temporary presiding officer: • Temporary presiding officer shall be subject to the same limitations as that of the presiding office, that is, can cast vote only to break a tie.
  11. 11. QUORUM – that number or proportion of the members of an organization who must be present at a particular meeting or session for it to legally transact business (Section 53, LGC0 What constitutes a quorum? Section 53 of the LGC: A majority of all the members of the sangguniang who have been elected and qualified
  12. 12. QUALIFIED MAJORITY SIMPLE MAJORITY Required the affirmative vote of a majority of ALL the members (e.g. Ordinance directing payment of money or creating liability) Approved by a majority of all the members present constituting a quorum (e.g. ordinary measures) DEFINITION OF MAJORITY: • 50% + 1 • More than half of any total (Avelino vs. Cuenco, 83 PHIL 80; Perez vs. dela cruz, 27 SCRA 603; Cua vs. COMELEC, 18 December 1987; Santiago and Tatad vs. Guingona and Fernan, GR No. 134577, 18 November 1998) .
  13. 13. What is the remedy where there is no quorum? 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 designating a member of the sanggunian, to be assisted by a member or members of the police force assigned in the territorial jurisdiction of the LGU concerned, to arrest the absent member and present him at the session.
  14. 14. What if there is still no quorum despite the above stated remedy? No business shall be transacted – the Presiding officer, upon proper motion duly approved by the members present, shall then declare the session adjourned for lack of quorum LEGISLATIVE PROCESS It involves two (2) aspects: 1. Substantive 2. Procedural
  15. 15. SUBSTANTIVE – Local ordinances and resolutions • Must be consistent with the Constitutions and national laws • Must be fair and not oppressive • Must be clear and not vague • Must not be discriminatory but may classify • Must not prohibit but may regulate trade • Must be reasonable • Must be consistent with public policy
  16. 16. SUBSTANTIVE ASPECT •Are presumed valid •May adopt a system of priorities •Cannot contain irreparable provisions •Must contain one general subject with germane provisions •Must not allow what is otherwise prohibited by law (Magtajas vs. Pryce, 20 January 1994) Just remember: General Rule – all ordinances enjoy the presumption of regularity / validity UNLESS declared otherwise by the proper court.
  17. 17. DILG Opinion No. 69, series of 2009 – since the subject Provincial Ordinances, which imposed the different taxes, fees, and charges as represented, had already been passed and approved in accordance with the procedural requirements set by the Local Government Code of 1991 (RA procedural requirements set by the Local Government Code of 1991( RA 7160), and, in fact, are being implemented for almost a year now, they therefore enjoy the presumption of validity and remain to be enforceable.
  18. 18. What if the LCE believes that the ordinances suffer from legal infirmity, what is his remedy? He must question it to the proper court and ask for a restraining order so that in the meantime, he can be legally justified in not implementing the ordinance
  19. 19. PROCEDURAL ASPECT – Ordinances are enacted similarly as national laws The local legislative process is broken down to five (5) states/ parts: 1. Filing of Bills / sponsorship –the parts of a bill are: Title / Preamble/ Whereas/ Principles, Clause, Text / Substance, and Date of Effectivity 2. First Reading – Reading of title and number of bill then referral to the appropriate committee 3. Committee Hearings – Deliberation, approval with or without amendments, substitution or consolidation, and preparation of committee report
  20. 20. 4. Second Reading – Period of debate (reading, sponsorship, interpellation), period of amendments (committee and individual amendments), and approval 5.Third Reading – Distribution in printed form, and approval/ roll call/vote; and 6. The legislative process and order and calendar of business must be set on the first session day of the new council and embodied in the IRP. However, other matters may be taken upon the first session day aside from adopting the IRP of the sangguniang (Malonzo vs. Zamora, GR No. 137718, 27 July 1999)
  21. 21. 3 READING RULE Congress – 3 readings must be done on 3 separate dates Sanggunians – can undertake the 3 reading procedure even in 1 day (Malonzo vs. Zamora, GR No. 137718, 27 July 1999 – the SC ruled that the LGC did not require that the 3 reading rule must be conducted in 3 separate dates)
  22. 22. APPROVAL OF ORDINANCES – every ordinance enacted by the sangguniang (except barangay) – shall be presented to the LCE concerned for approval (Section 54, LGC) 3 ways by which an enacted ordinance can be considered an approved ordinance: 1. When the Mayor or Governor affixed his signature thereto as approved; 2. When the mayor failed to act within the reglementary period for him to approve the same and the period for him to approve the same and the period already lapsed; 3. When the Mayor originally voted the ordinance and the sangguniang already override the veto by 2/3 vote of all its members, the ordinance is considered approved as if he signed by him.
  23. 23. Ordinances enacted by the sangguniang barangay shall, upon approval by the majority of all its member, be signed by the punong barangay. DILG Opinion No.52, series of 2009 – the requirement on the part of the Punong Barangay to affix his signature is only a ministerial one, meaning the Punong barangay cannot refuse in affixing his signature once the majority of the members of the sangguniang barangay has already approved the barangay budget. In the event that said Punong Barangay refuses to affix his signature, we are of the view that the barangay budget as approved by the Sangguniang Barangay may already be forward to the Sanguniang Panlungsod in accordance with Section 333 (a) of the Local Government Code of 1991
  24. 24. ORDINANCE RESOLUTION - Intended to permanently direct and control matters applying to persons or thins in general - Merely expressive of an opinion of a legislature which have only a temporary effect - Providing a permanent rule of conduct - A statement or verdict, not a laws but is a mere expression of a opinion, or merely the form in which the legislative body expresses an opinion and used whenever the legislative body passing it wishes merely to express an opinion concerning some given matter or thing - Need to go through the 3 reading rule - Ned not go through the 3-reading rule, UNLESS the sanggunian so agree - All enacted ordinance are to be submitted to the LCE concerned for approval - General Rule: All enacted resolutions need not be submitted to the LCE concerned for approval - Exception: resolutions approving local development plan and public investment
  25. 25. VETO POWER OF THE LOCAL CHIEF EXECUTIVE (SEC. 55, LGC) ENTIRE VETO ITEM VETO • Veto power of the mayor as ordinance, against ordinary ordinance-the mayor CANNOT veto any item but should veto the ordinance in its entirety • With respect to appropriations ordinance, resolutions approving local development plans and public investment programs – the mayor may exercise item veto • Ordinary ordinances must contain one general subject with germane provisions • Every section of an appropriation ordinance is not interrelated with each other
  26. 26. Item Veto is allowed only on 3 occasions: 1. Appropriations ordinance 2. Resolution approving public investment program 3. Resolution approving local development plan Grounds for the exercise of the veto power of the LCE • Ordinance is ultra vires • Ordinance is prejudicial to the public welfare
  27. 27. DILG Opinion NO. 48, series of 2008 – The veto power of the City Mayor is complete and duly exercised when he communicated his written veto message to the Sanggunian coupled with the act of returning the proposed ordinance unsigned. The Local Government Code or its implementing Rules and regulation does not require that the word veto be written in the original copy of the proposed ordinance, as precisely a veto message is a separate document communicated to the Sanggunian, together with the unsigned proposed ordinance, that would guide the Sanggunian in proceeding whether to override the veto or not.
  28. 28. DILG Opinion No. 94, series of 2008 – A 2/3 vote of all Sangguniang Panlalawigan members is required for the overriding of the veto by the Provincial Governor. If the actual membership of the Sangguniang Panlalawigan, including the Provincial Vice Governor, is thirteen (13) members, the same shall be the basis in the computation of the 2/3 votes. This is the proper interpretation of the phrase “two-thirds (2/3) vote of all its members”. Hence, a 2/3 vote of 13 members will give us a mathematical result of eight point sixty-seven (8.67). Let it be noted however that a fraction cannot be considered as one whole vote since it is physically and legally impossible to count or divide a person, even his vote into a fractional part. Neither can we go down to eight (8) because definitely, it is less than 2/3 of the Sangguniang membership. Thus, the voting requirement to muster two-thirds vote of all of the thirteen-membership Sanggunian shall be nine (9). Let it be noted, however, that in the nine (9) votes required to muster the 2/3 vote, the nine(3) votes should be coming from the floor, that is, excluding the Presiding Officer, because the latter can vote only to break a tie pursuant to Section 49 of the Local Government code.
  29. 29. Review of component city and municipal ordinances or resolution by the Sangguniang panlalawigan Review of Barangay Ordinances by the sangguniang panlungsod or Sangguniang Bayan Within 3 days after approval the secretary to the sangguniang panlungsod or sangguniang bayan shall forward to the sannguniang panlalawigan copies of approved ordinances and resolutions approving local development plans and public investment program. Within 10 days after its enactment, the sangguniang barangay shall furnish copies of the barangay ordinances to the sangguniang panlungsod or sangguniang bayan as to whether the ordinance is consistent with law and city or municipal ordinances 2 modes of review: - Within 30 days after receipt, the sangguniang panlalawigan shall examine the component city or municipal ordinances and resolutions and within the same period make its decision - Within 30 days after receipt, the sangguniang panlalawigan may refer the legislative measure to the provincial attorney or in his absence, the provincial prosecutor, for review, comments and recommendations. If the sangguniang panlungsod or sangguniang bayan finds the barangay ordinance inconsistent with law or city or municipal ordinances – return the ordinance with its comments and recommendations to the sangguniang barangay for adjustment amendment or modification.
  30. 30. Review of component city and municipal ordinances or resolution by the Sangguniang panlalawigan Review of Barangay Ordinances by the sangguniang panlungsod or Sangguniang Bayan Take note: Either way, the SP shall finish and submit its review within 30 days from receipt of the ordinance or resolution, otherwise, the ordinance or resolution shall be presumed consistent with law and therefore valid. In the foregoing, the effectiviity of the barangay ordinance is suspended until such time as the revision called for is effected If no action has been taken by the sangguniang panlalawigan within 30 days after submission – the same shall be presumed consistent with law and therefore valid If the sangguniang panlungsod or sangguniang bayan fails to take action on barangay ordinances within 30 days from receipt thereof the same shall be deemed approved 30-day period has to be reckoned from the receipt of ordinance or resolution 30 –day period has to be reckoned from receipt of ordinance or resolution. Take note : Only 1 ground for declaring and ordinance or resolution invalid – when it is beyond the powers conferred upon the sangguiang panlungosd or Sangguniang bayan to enact. Absolutely no other ground is recognized by law (Moday v. CA, 268 SCRA 586, February 1997)
  31. 31. DILG Opinion No. 60, series of 2008 – Review Power of the Sangguniang Panlalawigan: • The 30-day period within which the Sangguniang Panlalawigan shall review the ordinances ore resolutions approved by either the Sangguniang Panlungsod or Sangguniang Bayan is ABSLUTE and not interrupted by the intervening actions taken in between by the body such as referrals to committee meetings, hearings, public hearings, period of debates, amendments, etc. • Phrase “take action” on the part of the Sanggunian within the prescribed period fixed by law should be construed as either approval or disapproval of the ordinance • Referral to DILG – not interrupt the period
  32. 32. Ordinance or resolution – effective and binding even pending review by the higher Sanggunian (Section 57, LGC) • Review of an ordinance would involve validity and not effectivity of an ordinance • Ordinance shall take effect as of the date the same is made effective by the Sanggunian pursuant to Section 59, LGC. That would explain why under Section 57, LGC, once it is disapproved by the Enforcement of disapproved ordinances or resolutions – sufficient ground for suspension or dismissal of the official or employee concerned (Section 58, LGC) Effectivity of ordinances or resolutions – unless otherwise stated in the ordinance or the resolution approving the local development plan and public investment program, the same shall take effect after 10 days from the data copy thereof is posted in a bulletin board at the entrance of the provincial capitol and in at least 1 other conspicuous places in the LGU concerned (Section 59, LGC) Who shall cause the posting? Secretary to the sanggunian concerned not later than 5 days after approval thereof

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