1- Basic Principles and Elements of Local Government.pdf

BASIC PRINCIPLES AND ELEMENTS OF LOCAL GOVERNMENT I. Basic Principles of Local Government Local Government Defined - The United Nations (UN) defines local government as “political subdivisions of a nation or state” and “as parts of the government with subordinate st...

BASIC PRINCIPLES AND ELEMENTS OF LOCAL GOVERNMENT I. Basic Principles of Local Government Local Government Defined - The United Nations (UN) defines local government as “political subdivisions of a nation or state” and “as parts of the government with subordinate status which are below the central of senior government” (UN, 1962; Largo, 2020). - The elements of subordination, therefore, appears in any definition of local government for by the nature, local governments are subordinate entities, having no inherent powers and must look up to the higher government level for delegation of authority. - Section 15 of the Local Government Code of 1991 (RA 7160) defined local government as “body politic and corporate endowed with powers to be exercised by it in conformity with laws. - Local government is defined as a “political subdivision of a nation or state which is constituted by law and has substantial control of local affairs” (MMDA v. Bel-Air Village, 2000) - “Local Governance” simply means the management of political, economic, and administrative affairs of the territorial and political subdivision of the State. Elements of Local Government (Tapales, 1995) 1. Subordination – Local governments are subordinate agencies distinguish from sovereign states. Since local government are subordinate, they have no inherent powers, only receive delegate powers and authority from higher governments, and only possess legal authority constituted by law. 2. Territorial boundary of governance – Local government have power only in defined geographical subdivisions defined by law and deal with matters which concerns people living in them. Features and Distinctions of Local Governments (Tapales, 1995) 1. Local governments are made up of layers of authority. Hierarchy of authority varies according to factors such as geographical, population, number of basic units or degree of centralization. Usually the layers can be comprised by the following units: a. Intermediate units. Larger areas which supervise units. b. Basic units. Group of people living together in communities for whom services are performed. c. Lower units. Smaller groups of people. *Lower units are designed to achieve degree of people participation. Higher units are designed for the delivery of more technical services, coordination of units and linkage with central government. 2. Field organizations of the central government are distinguished. Central government may have field units working in local government boundaries but not part of local government. Field offices work in designated areas to perform specific functions while local governments are territorial areas of jurisdiction which have some political power. 3. Local governments are “general purpose” authorities. Local government perform multiple functions, classified into: a. Political powers (i.e. legislative, executive, judicial);  b. Administrative power (i.e. management and direction of affairs); and c. Government power (i.e. pertaining to delivery of services). 4. Local governments are corporate entities. They are created by states and therefore are given personality by virtue of such. Local governments are constituted by the incorporation of inhabitants of a territory and established by law. *Corporation* - A corporation is an artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence (Section 2, RA 11232). - It is a legal institution devised to confer upon individuals of which it is composed of powers, privileges, and immunities which they would not otherwise possess, the most important of which are continuous legal identity or unity, and perpetual or indefinite succession under the corporate name, notwithstanding successive changes, by death or otherwise, in the corporates or members (Dillon, 1890). Municipal Corporation - A municipal corporation is a body politic or corporate established by law to assist in the civil government of the state, with delegate authority to regulate and administer the local or internal affairs of a city, town, or district which is incorporated (McQuillin, 1909). Elements of Municipal Corporation (Largo, 2020) 1. Legal Creation/Incorporation. This refers to the law creating or authorizing the creation or incorporation of a municipal corporation. 2. Corporate Name. This refers to the name of the municipal corporation by which it is incorporated and known and in which all corporate acts are done. 3. Inhabitants. This refers to the natural persons, the constituents, who compose the municipal corporation. 4. Territory. This refers to the land mass where the inhabitants reside, together with the waters, and the air space above the land and water. The territory also corresponds to the jurisdiction of the municipal corporation in the discharge of its power and function, subject to constitutional and statutory limitations. Dual Nature and Functions of Municipal Corporations (Section 15, RA 7160) 1. Government function (public or political). It involves the administration of the power of the local government and promoting the public welfare of its residents. 2. Proprietary function (private, patrimonial or corporate). It is exercised for the special benefit and advantage of the community and for the attainment of their collective agenda and needs. As municipal corporations, local governments also have the following functions (Largo, 2020; RA 7160). 1. Police power 2. Power to generate and apply resources 3. Eminent domain 4. Reclassification of lands 5. Closure and opening of roads  6. Corporate powers 7. Authority to negotiate and secure grants Local Police Power - Police power is one of the inherent powers of the State to regulate conduct for the promotion of the general welfare. 1. General Welfare Clause. Police power is based on legal maxims of: ▪ Salus populi est suprema lex (the welfare of the people is the supreme law) ▪ Sic utere ut alienum non laedas (use your own property in such a manner not to injure that of another) - Police power is essentially legislative in character and inherently vested in the Congress of the Philippines. It is inherent in the State, but not in municipal corporations. Before local governments may exercise such power, there must be a valid delegation of power by the Congress. - Requisites of exercising local police power: 1. Must not contravene with the Constitution or any statutes; 2. Must not be unfair or oppressive; 3. Must not be partial or discriminatory; 4. Must not prohibit but may regulate trade; 5. Must be general and consistent with public policy; and 6. Must not be unreasonable. - Interpretation of Local Police Power and local general welfare clause 1. Liberal Interpretation – While local police power is a delegate power, it must however be interpreted liberally. Section 5(c) of RA 7160 explicitly mandates that the general welfare provision “shall be liberally interpreted to give more powers to the local government units in accelerating economic development and upgrading the quality of life for the people of the community”. 2. Presumption of Constitutionality – Like statutes. Ordinances enjoy the presumption of constitutionality. However, this presumption may be rendered naught by a clear demonstration that the ordinance is irreconcilable with a constitutional or legal provision, that it prohibits trade, or that it is oppressive, discriminatory, or unreasonable. 3. Territorial Limitation – Local police power is usually limited by its territorial boundaries. But in many instances, for the preservation of the public health, local governments is granted police power beyond its boundaries. II. Local Autonomy and Decentralization Autonomy – (greek: autonomiya – freedom/independence) literally self-rule. It refers to the arrangement for self-government of a territory or region within a nation-state with degree of freedom depending on the range of powers devolved and functions decentralized (Atienza, 2006). Local autonomy signifies “a more responsive and accountable local government structure instituted through a system of decentralization” (Largo, 2020). The grant of autonomy is intended to break up the monopoly of the national government over the affairs of local government, but not to end the relationship and partnership between the central government and local government units” (De Leon v. Esguerra, 1987). Role of Democratization towards Decentralization Democratic decentralization- is the development of reciprocal relationships between central and local governments and between local governments and citizens. It addresses the power to develop and implement policy, the extension of democratic processes to lower levels of government, and measures to ensure that democracy is sustainable. First wave of de-Democratization (1922–42) Principle of Subsidiarity – A principle which expressed a preference of governance at the most local level consistent with achieving government’s purpose justifies the grant of local autonomy (Quadragesimo Anno, 1931 Papal Encyclical of Pope Pius XI). Decentralization, Devolution, and Deconcentration Decentralization – it refers to the transfer of planning, decision making, or administrative authority form the central government to its field organizations, local governments, or non- government organization (Atienza, 2006). Legal Mandates of Autonomy and Decentralization 1. Philippine 1987 Constitution a. Article II, Section 25. “The State shall ensure the autonomy of local governments.” b. Article X, Section 2. “The territorial and political subdivisions shall enjoy local autonomy.” 2. Local Government Code of 1991 (RA 7160) a. Section 2. “… t is hereby declared the policy of the State that 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. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units.…” Systems of Decentralization 1. Devolution – also known as “political decentralization”; it means transfer of powers from the national government to local government units (Atienza, 2006). 2. Deconcentration – also known as “administrative decentralization”; it involves the redistribution of administrative responsibilities only within the central government, primarily through its field offices. (Atienza, 2006). 3. Fiscal Decentralization – also known as “local fiscal autonomy” means that local government units have the power to create their own resources in addition to their just share in the national taxes released by the National Government (Rodriguez, 2003). References: ▪ Atienza, M. L. (2006). Local Governments and Devolution in the Philippines. N. Morada & T. Tadem, Philippine Politics and Governance: An Introduction (pp. 415-437). Quezon: University of the Philippines' Department of Political Science. ▪ De Leon v. Esguerra, 153 SCRA 603 (1987) ▪ Dillon, J.F. (1890) Commentaries on Law of Municipal Corporations, Vol 1 (5 TH Edition) ▪ Largo, D. B. (2020). The Essentials of Local Government Law in the Philippines. Manila: REX Bookstore Inc. ▪ McQuillin, E. (1909). The Law on Municipal Corporation. Sec. 107, Vol. 1. ▪ Metropolitan Manila Development Authority (MMDA) v. Bel-Air Village Association, Inc., 328 SCRA 836 (2000) ▪ Quadragesimo Anno, 1931 Papal Encyclical of Pope Pius XI ▪ RA 11232. The 2018 Revised Corporation Code of the Philippines. ▪ Rodriguez, R. (2003) - Local Government Code of 1991 Annotated. Manila: REX Bookstore Inc. ▪ Tapales, P. D. (1995). Devolution and Empowerment: The Local Government Code of 1991 and Local Autonomy in the Philippines. In Proserpina D. Tapales, Nestor N. Pilar and Leonora D. Romblon (eds.). Public Administration by the Year 2000: Looking Back into the Future. (pp.395-408). Quezon City: University of the Philippines College of Public Administration ▪ United Nations (1962) Decentralization for National and Local Development. New York: United Nations Division for Public Administration Prepared by Kurt Zeus L. Dizon Faculty-in-charge