Republika ng Pilipinas

KAGAWARAN NG KATARUNGAN
Department oj Justice
Manila

LML-L-lSJ12- ('luI(

18

September

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.
In this regard, your Legal Service made an extensive study on the
legal issues posed and came up with the following remedies, viz:
Judicial remedy:
1) Declaratory Relief, a remedy which, you state, is not available to
the DILG, deemed not a real party in interest to bring action to
court;
2) Declaration of Nullity of the assailed ordinance
Administrative remedy:
1) Issuance

of a Memorandum
questionable ordinance;

Circular

directing

review of

OPINJON NO.

.--~J_._,S,-2Cf.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 actss of4their ;~
component units are within the scope of their prescribed
powers and functions."

xxx

xxx

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 with 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, viz:
xxx

1
2

xxx

Emphasis ours.

Bito-Onon vs. Fernandez, et.al, GR No. 139813. January 31, 2011.

No. 139813. January 31, 201l.

3 GR

Pagl! 2 or>

"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. If they are not followed, it is discretionary on his part to order
the act undone 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. If 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." .

xxx

xxx

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

the Court stated:

xxx

xxx

"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."

xxx

:xxx

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.

4
5

Emphasis ours,
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 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 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 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. 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.
6

'L

y1OPINION NO~ ._-----,,$,20 .......

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 overcome by other evidence:

"xxx

xxx

"(m) that official duty 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.'?"

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.

Page 5 of ..

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OPINION NO ... __~._._,S.20
Anent the remedy of declaratory relief, however, in Province of
Camarines Sur vs. CA, et.al., GR No. 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.rty seeking the relief
has' a legal interest in the' controversy; and (3) the issue is
ripe for judicial determination-s."

xxx

xxx'

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 generis 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
raison legitime "local autonomy" or "presumption of validity of
ordinance" 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 other
written 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 the
appropriate Regional Trial Court to determine any question of construction or validity arising. and for
a declaration of his rights of duties. thereunder.
12 Atlas Consolidated
Mining &: Development Corporation vs, Court of Appeals. G.R. No. 54305. 14
February 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.

Page 6 of.,.

..

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OPINION NO.

I~
. 2{):.,~

~J.
I _, ...." S
........ _ ..............

well-entrenched test of valid ordinance, long established

Supreme Court in various cases-e.

by the

Please be guided accordingly.

Very truly
yours,
...

~~

Secretary

15 Solicitor 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. 12 April 2005.