Fepubc ofthe Phigeines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT DILG-NAPOLCON Contr, EDSA corer Quezon Aone, West Trang, Quezon Cty hw c.g DILG OPINION NO. 6 VICE MAYOR GUILLERMO R. ROCHA 5 JAN 2018 Municipality of Magdiwang Province of Romblon Dear Vice-Mayor Rocha: ‘This has reference to your letter dated 16 August 2017 requesting for this Department's legal opinion, whether or not Municipal Ordinance No. 2, $.2017, entitled “An Ordinance Approving the Waterworks in the Municipality of Magdiwang and Creating the Magdiwang Waterworks Department (MWD) and Providing Funds Thereof” has become effective 30 days after it was received by the Sangguniang Panlalawigan on 18 May 2017. Based on your letter, Municipal Ordinance No. 2, $.2017 was received by the Sangguniang Panlalawigan of Romblon on 18 May 2017. However, the same was only acted upon on 4 July 2017, more than 30 days had already elapsed. Hence, your instant request. First and foremost, a distinction between the terms “effectivity” and “validity” of an ordinance should be made as they are two different things, Effectivity is the time by which an ordinance is made effective and can already be implemented and given full force and effect. Effectivity is governed by Section 59(a) of the Local Government Code of 1991, thus: ‘Section 59. Effectivity of Ordinances or Resolutions. - (a) Unless otherwise stated in the ordinance or the resolution approving the local development plan and public investment program, the same shall take effect after ten (10) days from the date a copy thereof is posted in a bulletin board at the entrance of the provincial capital or city, municipal, or barangay hall, as the case may be, and in at least two (2) other conspicuous places in the local government unit concerned.” Based on Section 59(a) of the LGC, an ordinance of a local government unit becomes effective as of the date the framers of such ordinance would like it to be effective and in s. 2018,the absence of such effectivity clause, the same shall take effect after ten (10) days from the date a copy thereof is posted in a bulletin board at the entrance of the municipal hall and in at least two (2) other conspicuous places in the local government unit concerned. Accordingly, as a matter of course, Municipal Ordinance No. 2, $.2017 shalll already be given its legal effect and implemented even if the same is still pending review by the Sangguniang Panlalawigan. Validity on the other hand, refers to the substantive requirement of an ordinance, whether the same is consistent with the Constitution and laws. The pertinent provision of the LGC provides that: “Section 56. Review of Component City and Municipal Ordinances or Resolutions by the Sangguniang Panlalawigan. (a) Within three (3) days after approval, the secretary to the sanggunian panlungsod or sangguniang bayan shall forward to the sangguniang panlalawigan for review, copies of approved ordinances and the resolutions approving the local development plans and public investment programs formulated by the local development councils. (b) Within thirty (30) days after the receipt of copies of such ordinances and resolutions, the sangguniang panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the provincial prosecutor for prompt examination. The provincial attorney or provincial prosecutor shall, within a period of ten (10) days from receipt of the documents, inform the sangguniang pantalawigan in writing of his comments or recommendations, which may be considered by the sangguniang panlalawigan in making its decision. (c) If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken. (d) If rx tic been taken by the sangguniang panlalawigan withir thirty (30) days after submission of such an ordinance or resolution, the same_shall be presumed consistent with law and therefore val (Emphasis supplied) Relative to your queries, it was noted by this Department that it pertains to the question of validity only of an ordinance and not to its effectivity. As discussed above,pending review by the Sangguniang Panlalawigan, the Ordinance under review is already effective and can be given full force and effect upon the arrival of the time provided for in the effectivity clause of the ordinance.* May we also emphasize that per the above quoted Section 56 of the LGC, the Department has been consistent with its opinion that the phrase “take action” in Section 56(d) should mean that the Sangguniang Panlalawigan, within 30 days upon receipt of the copy of the ordinance, should have issued its legislative action in the form of a Resolution containing their disapproval in whole or in part any ordinance or resolution submitted to them for review. It is not enough that they be deliberated, debated and voted on the measure ought to be reviewed because what is required of them is the enactment of a legislative document to formally and finally put to rest a given measure or issue. This document enacted is imbued with public interest, so much that it shall be the basis of the general public to rely upon in performing their respective obligations or asserting their rights in a given territory. Absent this document, all local legislative debates are left as silent records, thus, unenforceable as against third persons. ‘Thus, after the lapse of such 30-day period, and no Resolution which shall contain the findings of the Sangguniang Panlalawigan on review of the municipal ordinance was issued by the Sangguniang Panlalawigan, it can be validly stated that the Sangguniang Panlalawigan failed to act within 30 days and the ordinance under review can be presumed consistent with law and therefore Our interpretation as to the mandatory character of the 30-day period to take action is also impelled by public policy. Sangguniang Bayan/Panlungsod Ordinances should attain stability at a given point in time. Otherwise, it would render Sangguniang Bayan/Panlungsod Ordinances unstable and may even result to the subservience of the lower sanggunian to the higher sanggunian considering that the latter can invalidate the ordinance on review at any time it pleases and may even arbitrarily or whimsically disapprove an ordinance which has already been implemented for quite a long time. Moreover, ordinances are presumed valid until the contrary is decreed by the reviewing authority or the courts. Further, in the case of Acaac vs. Azcuna®, the Supreme Court held that: “Ie, however, bears to note that more than 30 days have already elapsed trom the time the said ordinance was submitted to the latter for review by the SB, hence, it should be deemed approved and valid pursuant to Section 56 (d) above.” It is settled that when a power is given, and the power is to exercise within a prescriptive period, then such prescriptive period is considered a limitation to such power, " DILG Legal Opinion No. 19, $2009 dated 28 April 2009 *G.R. No. 187378, 30 September 2013,this is consistent with the principle that “where a statute prescribes a time within which a public officer is to perform official acts affecting the rights of others, it is directory as to the time, unless from the nature of the act, the designation of time must be considered a limitation on the power of the officer"® Nonetheless, relative to issue numbers two to four, this Department deemed it Proper to tackle them for purposes ofacademic discussion. Your attention is invited to Legal Opinion No. 30, $.2017 issued by the Department on 6 November 2017, which states that: “sox if what is contemplated is for the LGUs to impose schedule of water rates, this level is of the view that LGUs are stripped of authority to impose water rates as the same is tantamount to interfering with the internal as well as, external dealings of the water company.” ‘The above-quoted legal opinion is supported by the provision of Presidential Decree No. 198, dated 25 May 1973, to wit: “Section 37. Rates and Charges Water. - A district may sell water under its control, without preference, under uniform schedules of rates and charges to any all water users within the district. Said schedule may Provide for differential rates for different categories of use and diferent quantity blocks. The district, so fur as practicable, shall fix such rates and charges for water as will result in revenues which will: (@) Provide for reimbursement from all new water customers for the cost of installing new services and meters; (6) Provide for revenue from all water deliveries and services performed by the district; (©) Pay the operating expenses of the district; (@) Provide for the maintenance and repairs of the works; (©) Provide a reasonable surplus for replacement extension and improvements; and © Pay the interest and provide a sinking or other fund for the payment of debts of the district as they become due.” Premises considered, it appears that Municipal Ordinance No. 2, $. 2017 has ignored the above-mentioned provision of law. ® DILG Legal Opinion No, 13, $:2015 dated 21 May 2015Be that as it may, we would like to inform you that issues involving the validity and legality of an ordinance, the Department, in its previous legal opinions, has already opined that inasmuch as the ordinance has undergone the procedural proc under the Local Government Code, the same is considered valid unless declared otherwise by our courts of justice. Any issues or questions thereon as to the substantive validity and enforceability of an ordinance should be threshed out by filing a special civil action for declaratory relief before the proper court in accordance with Section 1 and Section 4, Rule 63 of the Revised Rules of Court, to wit: ce: oS “Section 1, Who may file petition. — Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by @ 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 or duties, thereunder.” “Section 4. Local government ordinances. — In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard, If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.” We hope to have assisted you accordingly. Very truly yours, By Authogity of the Secretary: AUSTERE A. PANADERO Undersecretary Sangguniang Panlalawigan of Romblon trough the Secretary to the SP ess for its enactment