doj opinion 87-2012 upholding dilg opinion

8/10/2019 DOJ Opinion 87-2012 Upholding DILG Opinion

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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

doj opinion 87-2012 upholding dilg opinion

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