DOJ Opinion 87-2012 Upholding DILG Opinion

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


    Republika ng Pilipinas

    K W R N N K T RUN N

    epartment oj Justice


    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



    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


    against erring local officials, on

    the ground of: (1) grave abuse of authority or (2) grave


    The Constitution, in Section







    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.



    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


    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:


    v z






    B it o O n on v s. F er na nd ez

    G R N o. 1 398 13 . Janu ary 31



    G R N o.



    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



    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


    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:


    must not

    contravene the Constitution or any statute; 2 must not be

    unfair or oppressive; 3) must not be partial or



    must not prohibit but may regulate trade;


    must be general and consistent with public policy; and 6)

    must not be


    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 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, vs. Perfecto Laguio,


    et. AI., GR No. 118127. 12April 2005

    Emphasis ours.

    8 C ity o f


    e t a l vs Perfec to Laguio Jr e t a l GR No

    118127, 12




    C ity o f


    et al


    Pe rfec to La gu io J r e t a l G R No




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    y 1 L



    ._----- - 2

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

    Sec. 3. Disputable presumptions. - the following

    presumptions are satisfactory


    uncontradicted, but may be

    contradicted and overcomeby other evidence:


    (m) that officialduty has been regularly performed



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


    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


    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.


    RE: Verified Complaint of Engr. Oscar L. Ongjoco, Chairman of the Board/CEO of

    FH-G t: 1N

    Multi-Purpose and


    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



    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, GRNo. 175064,September 18,2009:



    Declaratory relief is defined as an action by any person

    interested in a deed,


    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:


    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


    ripe for judicial determination-s.

    x x x


    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


    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.


    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





    (Declaratory Relief and Similar Remedies). the Rules of Court:


    Who may file petition. -


    person interested uader a deed. ,\

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    OP N ON NO



    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


    al. GR No. 138810 September 29 2004 City of Manila et. a1. vs.

    Perfecto laguio Jr. et aI. GR No. 118127 12April 2005