Republika ng PilipinasKAGAWARAN NG KATARUNGAN

Department oj JusticeManila •

LML-L-lSJ12- ('luI(

18 September 2012

Director JESUS G. DOQUE IVDirector III, Legal ServiceDepartment of Interior and Local GovernmentEDSA cor. Mapagmahal St., Dilirnan, Quezon City

Dear Director Doque:

This refers to your request for a review of the Department ofInterior and Local Government (DILG) position, addressing continuousdisobedience of Local Government Units (LGUs), on patently void "localordinances and resolutions".

You state that "the DILG has been swamped with problems arisingfrom the implementation of ordinances which contain provisions thatclearly violate existing national laws, i.e. ordinances prohibiting open pitmining," when the national law) the Philippine Mining Act, does notprohibit such activity.

• Judicial remedy:

In this regard, your Legal Service made an extensive study on thelegal issues posed and came up with the following remedies, viz:

1) Declaratory Relief, a remedy which, you state, is not available to .the DILG, deemed not a real party in interest to bring action tocourt;

2) Declaration of Nullity of the assailed ordinance

• Administrative remedy:

1) Issuance of a Memorandum Circular directing review ofquestionable ordinance;

OPINJON NO. .--~J_._,S,-2Cf.ll

2) Memorandum of Agreement between the DILG and the Officeof the Ombudsman to address abuses of power of local officialshiding under the cloak of valid exercise of independent localautonomy; and

3) Filing of Administrative cases against erring local officials, onthe ground of: (1) grave abuse of authority or (2) gravemisconduct.

The Constitution, in Section IV, Article X, provides:

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"The President of the Philippines shall exercise generalsupervision over local governments. Provinces with respectto component cities, and municipalities with respect tocomponent barangays shall ensure that the actssof4their ;~component units are within the scope of their prescribedpowers and functions."

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Pagl! 2 or>

The "power of general supervision of the President over an localgovernment units was delegated to the DILG Secretary by virtue ofAdministrative Order No. 267 dated February 18, 1992. The President'spower of general supervision over local government units is conferredupon him by the Constitution. The power of supervision is defined as"the power of a superior officer to see to it that Iower officersperform their functions in accordance with Iaw-." This isdistinguished from the power of control or "the power of an officer toalter of modify or set aside what a subordinate officer had done in theperformance of his duties and to substitute the judgment of the formerfor the later.s"

The Supreme Court in Bito-Onon vs. Fernandez: held, viz:

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1 Emphasis ours.2 Bito-Onon vs. Fernandez, et.al, GR No. 139813. January 31, 2011.3 GR No. 139813. January 31, 201l.

"On many occasions in tne past, this court has had theopportunity to distinguish the power of supervision from the powerof control. In Taule vs. Santos, we held that the Chief Executivewielded no more authority than that of checking whether a localgovernment or the officers thereof perform their duties as providedby statutory enactments. He cannot interfere with localgovernments provided that the same or its officers actwithin the scope of their authoritys, Supervisory power,when contrasted with control, is the power of mere oversight overan inferior body; it does not include any restraining authority oversuch body. Officer in control lays down the rules in the doing of anact. If they are not followed, it is discretionary on his part to orderthe act undone or re-done by his subordinate or he may evendecide to do it himself. Supervision does not cover such authority.Supervising officers merely see to it that the rules are followed,buthe himself does not lay down such rules, nor does he have thediscretion to modify or replace them. If the rules are not observed,he may order the work done or re-done to conform to theprescribed rules. He cannot prescribe his own manner for the

.,,-;doing-ofthe act." . .~~

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Further, in Pimentel vs. Aguirre (G.R. No. 132988, 19 July 2000),the Court stated:

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"The Constitution vests to the President with the power ofsupervision, not control, over local government units (LGUs). Suchpower enables \him to see to it that LGUs and their officialsexecute their tasks in accordance with Iawse."

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Despite the foregoing constitutional mandate, the valid delegatedauthority, and jurisprudential pronouncements, you claim that a numberof LGUs have constantly violated the previous "advice or guidance",issued by your Office in regard "patently void ordinances, enacted, orcontain provisions that contravene national laws, policies, rules andregulations", hence, your request.

4 Emphasis ours,5 Emphasis ours.

()PINrON NO. ~_.IT._.~.S. 10 Jl-Subject to the discussion herein provided, we agree with your

position.

The tests of a valid ordinance are well established. A long line ofdecisions held that for an ordinance to be valid, it must not only bewithin the corporate powers of the local government unit to enact andmust be passed according to the procedure prescribed by law, it mustalso conform to the following substantive requirements: (1) must notcontravene the Constitution or any statute; (2) must not beunfair or oppressive; (3) must not be partial ordiscriminatory; (4) must not prohibit but may regulate trade;(5) must be general and consistent 'with public policy; and (6)must not be unreasonables.

Ordinances shall only be valid 'when they are not contraryto the Constitution and to the lawsz, The Ordinance must satisfytwo requirements: it must pass muster under the test of constitutionalityand the test of consistency with the prevailing laws. That ordinancesshould constitutionally uphold' the principle of the supremacy of theconstitution. The requirement that the enactment must not violate'existing law gives stress to the precept that local government units areable to legislate only by virtue of their derivative legislative power, adelegation of legislative power from the national legislature. Thedelegate cannot be superior to the principal or exercise powers higherthan those of the latter'',

This relationship between the national legislature and the localgovernment units has not been enfeebled by the new provisions in theConstitution strengthening the policy of local autonomy. The nationallegislature is still the principal of the local government units,which cannot defy dts will or modify or violate it9..

Anent the supervisory power of the President over the LGUs asexercised by the DILG Secretary, test of a valid ordinance and theprinciple of delegated legislative power by the legislature to the LGUs,asdiscussed above, it may be worth to take into consideration as well thesettled rule on the presumption of regularity in the performance ofofficialduties or actions, thus:

6 Emphasis supplied.City of Manila, et.al. vs. Perfecto Laguio, Jr., et. AI., GR No. 118127. 12 April 2005"

1Emphasis ours.8 City of Manila, et.al. vs. Perfecto Laguio, Jr., et.al., GR No. 118127, 12 April 2005.9 City of Manila, et.al. vs. Perfecto Laguio, Jr., et.al., GR No. 118127,12 April 2005.

y1- ''LOPINION NO~._-----,,$,- 20 .......

Rule 131, Section 3 of the Revised Rules of Court, reads:

"Sec. 3. Disputable presumptions. - the followingpresumptions are satisfactory if uncontradicted, but may becontradicted and overcome by other evidence:

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"(m) that official duty has been regularly performed

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To reinforce the above-quoted provisions, the Supreme Court said:

"...xxx to rebut the presumption of regularity in the performance ofthe official duties of respondents by affirmative evidence ofirregularity or failure to perform a duty. The presumption prevailsand becomes conclusive until it is overcome,by no less than clearand convincing evidence to the contrary. Ev~:ry reasonableintendment will, be made in support of the presumption and in caseof doubt as to an officer's act being lawful or unlawful, constructionshould be in favor of its lawfulness.'?"

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Clearly, matters involving question on the validity orconstitutionality of.a duly enacted ordinance may stand on its own andtherefore remain valid until judicially declared as null and void. Thus,judicial declaration of nullity of ordinance is an availableremedy.

.Browsing through the remedial acts and/ or administrative

sanctions proposed to be issued by DILG, this Office has no objectionthereto, as we see no constitutional, statutory or legal infirmities in suchproposals. Moreover, this Office defers to your Office's competence andexpertise not only because it has primary jurisdiction over the matter butalso possesses familiarity with the policy repercussions of the issues aswell as logical recognition of the lawful exercise of an authorityconferred to DILG bylaw.

IQ RE: Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of the Board/CEO of FH-G't:'1NMulti-Purpose and Transport Service Cooperative, against Hon. Juan Q. Enriquez, Jr., Hon. RamonM. Bato, Jr. and Hon, Fiorito S. Macalino, Associate Justices, Court of Appeals, En Bane, SupremeCourt En Bane [A.M. OCA IPI No. 11-184-CA-J. January 31, 2012.] citing, Bustillo vs. People of thePhilippines, G.R. No. 160718, may 12, 2010.

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Anent the remedy of declaratory relief, however, in Province ofCamarines Sur vs. CA, et.al., GRNo. 175064,September 18, 2009:

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"Declaratory relief is defined as an action by any personinterested in a deed, will, contract or other writteninstrument, executive order or resolution, to determine anyquestion of construction or validity arising from theinstrument, executive order or regulation, or statute; andfor a declaration of his rights and duties thereunder». Theonly issue that may be raised in such a petition is thequestion of construction or validity of provisions in aninstrument or statute=."

"The requisites of an action for declaratory relief are: (1)there must be a justiciable controversy between personswhose interests are adverse; (2) the pa.rtyseeking the relief i

has' a legal interest in the' controversy; and (3) the issue isl

ripe for judicial determination-s."

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Based on case law, an action for declaratory relief is properonly if adequate relief is not available through other existingforms of actions or proceedings. A petition for a declaratory reliefcannot be made a substitute for all existing remedies and should be usedwith caution. Relief by declaratory judgment is sui generis and notstrictly legal or equitable yet its historical affinity is equitable. Theremedy is not designed to supplant existing remedies».

As a final note, LGUs cannot arbitrarily hide under the cloak ofraison legitime "local autonomy" or "presumption of validity ofordinance" to circumvent the law or primordial compliance with the

II Section 1, Rule 63 (Declaratory Relief and Similar Remedies). the Rules of Court:Section 1. Who may file petition. - Any person interested uader a deed. ,\<;U.contract or otherwritten instrument, or whose rights are affected by a statute. executive order or regulation. ordinance.or any other governmental regulation may. before breach or violation thereof, bring an action in theappropriate Regional Trial Court to determine any question of construction or validity arising. and fora declaration of his rights of duties. thereunder.12 Atlas Consolidated Mining &: Development Corporation vs, Court of Appeals. G.R. No. 54305. 14February 1990. 182 SCRA 166, 177. cited in Almeda vs, Bathala Marketing Industries, Inc., GR No.150806, 28 January 2008, 54~ SCRA 470,480.13 See Galarosa vs. Valencia. G.a. No. 109455. 11 November 1993, 227 SeRA 729. 737.14 Mejia vs. Gabayan, et. al., GR No. 149765, April 12, 2005.

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well-entrenched test of valid ordinance, long established by theSupreme Court in various cases-e.

Please be guided accordingly.

Very truly yours,...

~~Secretary

15Solicitor General et aI. vs. !Metropolitan Manila Authority. GR No. 102782, December 11. 1991.Batangas CATV Inc. vs. CA, ~t al., GR No. 138810. September 29. 2004. City of Manila, et. a1. vs.Perfecto laguio, Jr., et aI., GR No. 118127. 12April 2005.