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Republika ng Pilipinas
K W R N N K T RUN N
epartment oj Justice
Manila
LML-L-lSJ12- luI
18September 2012
Director JESUS G DOQUE IV
Director III, Legal Service
Department of Interior and Local Government
EDSA cor. Mapagmahal St., Dilirnan, Quezon City
Dear Director Doque:
This refers to your request for a review of the Department of
Interior and Local Government DILG) position, addressing continuous
disobedience of Local Government Units LGUs), on patently void local
ordinances and resolutions .
You state that the DILG has been swamped with problems arising
from the implementation of ordinances which contain provisions that
clearly violate existing national laws, i.e. ordinances prohibiting open pit
mining, when the national law) the Philippine Mining Act, does not
prohibit such activity.
Judicial remedy:
In this regard, your Legal Service made an extensive study on the
legal issues posed and came up with the following remedies, viz
Declaratory Relief, a remedy whi h you state, is not available to .
the DILG, deemed not a r l p rty in int r st to bring action to
court;
2
Declaration of Nullity of the assailed ordinance
Administrative remedy:
Issuance of a Memorandum Circular directing review of
questionable ordinance;
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O P N O N NO . ~ J _ . _ S
C f ll
2 Memorandum of Agreement between the DILG and the Office
of the Ombudsman to address abuses of power of local officials
hiding under the cloak of valid exercise of independent local
autonomy; and
3 Filing of Administrative
cases
against erring local officials, on
the ground of: (1) grave abuse of authority or (2) grave
misconduct.
The Constitution, in Section
IV
Article
X
provides:
xxx
xxx
The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect
to component cities, and municipalities with respect to
component barangays shall ensure that the actssof4their ;~
component units are within the scope of their prescribed
powers and functions.
xxx
xxx
Pagl or>
The power of general supervision of the President over an local
government units was delegated to the DILG Secretary by virtue of
Administrative Order No.
267 dated
February
18, 1992.
The President s
power of general supervision over local government units is conferred
upon him by the Constitution. The power of supervision is defined as
the power of a superior officer to see to it that Iower officers
perform their functions in accordance w t Iaw-.
This is
distinguished from the power of control or the power of an officer to
alter of modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former
for the later.s
The Supreme Court in
Bito Onon vs Fernandez:
held,
v z
xxx
xxx
Emphasis
ours.
2
B it o O n on v s. F er na nd ez
et.al
G R N o. 1 398 13 . Janu ary 31
2011.
3
G R N o.
139813.
January
31, 201l.
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On many occasions in tne past, this court has had the
opportunity to distinguish the power of supervision from the power
of control. In Taule vs Santos we held that the Chief Executive
wielded no more authority than that of checking whether a local
government or the officers thereof perform their duties as provided
by statutory enactments. He cannot interfere with local
governments provided that the same or its officers act
within the scope of their authoritys Supervisory power,
when contrasted with control, is the power of mere oversight over
an inferior body; it does not include any restraining authority over
such body. Officer in control lays down the rules in the doing of an
act. they are not followed, it is discretionary on his part to order
the act un one or re-done by his subordinate or he may even
decide to do it himself. Supervision does not cover such authority.
Supervising officers merely see to it that the rules are followed,but
he himself does not lay down such rules, nor does he have the
discretion to modify or replace them.
the rules are not observed,
he may order the work done or re-done to conform to the
prescribed rules. He cannot prescribe his own manner for the
.,,-;doing-ofthe act. . .~~
Further, in Pimentel vs Aguirre G.R. No.
132988 19
July
2000
the Court stated:
The Constitution vests to the President with the power of
supervision, not control, over local government units LGUs . Such
power enables \him to see to it that LGUs and their officials
execute their tasks in accordance with Iawse.
Despite the foregoing constitutional mandate, the valid delegated
authority, and jurisprudential pronouncements, you claim that a number
of LGUs have constantly violated the previous advice or guidance ,
issued by your Office in regard patently void ordinances, enacted, or
contain provisions that contravene national laws, policies, rules and
regulations , hence, your request.
Emphasis ours,
5 Emphasis ours.
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P INrON N O ~ _ I T _ ~ 10
J l
Subject to the discussion herein provided, we agree with your
position.
The tests of a valid ordinance are well established. A long line of
decisions held that for an ordinance to be valid, it must not only be
within the corporate powers of the local government unit to enact and
must be passed according to the procedure prescribed by law, it must
also conform to the following substantive requirements:
1
must not
contravene the Constitution or any statute; 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
unreasonables.
Ordinances shall only be valid when they are not contrary
to the Constitution and to the lawsz, The Ordinance must satisfy
two requirements: it must pass muster under the test of constitutionality
and the test of consistency with the prevailing laws. That ordinances
should constitutionally uphold the principle of the supremacy of the
constitution. The requirement that the enactment must not violate
existing law gives stress to the precept that local government units are
able to legislate only by virtue of their derivative legislative power, a
delegation of legislative power from the national legislature. The
delegate cannot be superior to the principal or exercise powers higher
than those of the latter ,
This 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. The national
legislature s still the principal of the local government units,
which cannot defy dts
w ll
or
modify
or violate it9.
Anent the supervisory power of the President over the LGUs as
exercised by the DILG Secretary, test of a valid ordinance and the
principle of delegated legislative power by the legislature to the LGUs,as
discussed above, it may be worth to take into consideration as well the
settled rule on the presumption of regularity in the performance of
officialduties or actions, thus:
Emphasis supplied.
City of Manila, et.al. vs. Perfecto Laguio,
Jr
et. AI., GR No. 118127. 12April 2005
Emphasis ours.
8 C ity o f
Manila,
e t a l vs Perfec to Laguio Jr e t a l GR No
118127, 12
April
2005.
9
C ity o f
Manila,
et al
vs.
Pe rfec to La gu io J r e t a l G R No
118127,12
April
2005.
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y 1 L
PINION
NO~
._----- - 2
Rule 131, Section 3 of the Revised Rules of Court, reads:
Sec. 3. Disputable presumptions. - the following
presumptions are satisfactory
if
uncontradicted, but may be
contradicted and overcomeby other evidence:
xxx
(m) that officialduty has been regularly performed
xxx
xxx
To reinforce the above-quoted provisions, the Supreme Court said:
...xxx to rebut the presumption of regularity in the performance of
the official duties of respondents by affirmative evidence of
irregularity or failure to perform a duty. The presumption prevails
and becomes conclusive until it is overcome,by no less than clear
and convincing evidence to the contrary. Ev~:ry reasonable
intendment will be made in support of the presumption and in case
of doubt as to an officer s act being lawful or unlawful, construction
should be in favor of its lawfulness. ?
Page 5 of
Clearly, matters involving question on the validity or
constitutionality
of a
duly enacted ordinance may stand on its own and
therefore remain valid until judicially declared as null and void. Thus,
judicial declaration of nullity of ordinance is an available
remedy.
Browsing through the remedial acts and/ or administrative
sanctions proposed to be issued by DILG, this Office has no objection
thereto, as we see no constitutional, statutory or legal infirmities in such
proposals. Moreover, this Office defers to your Office s competence and
expertise not only because it has primary jurisdiction over the matter but
also possesses familiarity with the policy repercussions of the issues as
well as logical recognition of the lawful exercise of an authority
conferred to DILG bylaw.
IQ
RE: Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of the Board/CEO of
FH-G t: 1N
Multi-Purpose and
Transport
Service Cooperative, against Hon. Juan Q. Enriquez, Jr., Hon. Ramon
M. Bato, Jr. and Hon, Fiorito S. Macalino, Associate Justices, Court of Appeals, En Bane, Supreme
Court
En
Bane [A.M. OCA IPI No. 11-184-CA-J. January 31, 2012.] citing, Bustillo vs. People of the
Philippines, G.R. No. 160718, may 12, 2010.
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i - L
OPINION NO... __~._._,S.20...~
Anent the remedy of declaratory relief, however, in P rovince of
C am arines Sur vs C A
et.al., GRNo. 175064,September 18,2009:
xxx
xxx
Declaratory relief is defined as an action by any person
interested in a deed,
will,
contract or other written
instrument, executive order or resolution, to determine any
question of construction or validity arising from the
instrument, executive order or regulation, or statute; and
for a declaration of his rights and duties thereunder. The
only issue that may be raised in such a petition is the
question of construction or validity of provisions in an
instrument or statute=.
The requisites of an action for declaratory relief are:
(1)
there must be a justiciable controversy between persons
whose interests are adverse; (2) the pa.rtyseeking the relief
has a legal interest in the controversy; and (3) the issue i s
l
ripe for judicial determination-s.
x x x
xxx
Page 6 of. ,.
Based on case law, an action for declaratory relief is proper
only if adequate relief is not available through other existing
forms of actions or proceedings
A
petition for a declaratory relief
cannot be made a substitute for all existing remedies and should be used
with caution. Relief by declaratory judgment is sui g n ris and not
strictly legal or equitable yet its historical affinity is equitable. The
remedy is not designed to supplant existing remedies.
As
a final note, LGUs cannot arbitrarily hide under the cloak of
r ison l gitim local autonomy or presumption of validity of
ordinance to circumvent the law or primordial compliance with the
Section
1
Rule
63
(Declaratory Relief and Similar Remedies). the Rules of Court:
Section
Who may file petition. -
Any
person interested uader a deed. ,\
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OP N ON NO
~J
I~
S 2{ :. ~
_ .
well-entrenched test of valid ordinance long established by the
Supreme Court in various
cases e
Please be guided accordingly.
Very truly yours
~~
ecret ry
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