Republic of the Philippines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condominium il Bldg, EDSA corner Mapagmahal St., Diliman, Quezon City OFFICE OF THE UNDERSECRETARY FOR LOCAL GOVERNMENT DILG OFINGN NO._19__s, 200g" > 28 April 2009 ENGR. ERNESTO L. NATIVIDAD City Mayor City of Gapan, Nueva E Dear Mayor Natividad: This has reference to your earlier letter asking this Department's legal opinion as to the legal status of City Ordinance No. 02, series of 2008, entitled, “An Ordinance Regulating the Establishment, Classification, Administration and Operation of Government Owned/Operated Public Markets in the Local Government of Gapan otherwise known as the Market Code of Gapan”. Per your letter, you stated that you approved City Ordinance No. 02, series of 2008 or the Market Code of Gapan on 01 September 2008. The same was thereafter published in a newspaper of local circulation. On 16 September 2008, the Secretary of the Sangguniang Panlungsod forwarded to the Sangguniang Panlalawigan a copy of the aforesaid Ordinance and, according to you, the Sangguniang Panlalawigan did not signify any objection or comment thereto until on the first week of November 2008 or almost two (2) months from receipt thereof. You averred that members of the Sangguniang Panlungsod were then summoned to appear before the Sangguniang Panlalawigan regarding the alleged complaint of several vendors in Gapan Public Market as to the propriety of the subject Ordinance. You stated finally that Vice-Mayor Christian U. Tinio, at his own instance, withdrew the subject Ordinance from the Sangguniang Panlalawigan and started conducting proceedings to repeal and/or amend the same. In view of the foregoing, you are now seeking for enlightenment on the following: 1) _ Whether or not Ordinance No. 02, series of 2008 or the Gapan Public Market Code has become effective $0 days after it22. was received by the Sanggunang Panlalawigan on 16 September (2008; and 2) Whether or not said Ordinance can now be implemented by the City Mayor despite subsequent actions taken by the Sangguniang Panlungsod, particularly that of withdrawing said Ordinance from the Office of the Sangguniang Panlalawigan and conducting proceedings to amend and/or repeal some provision thereol, We deem it proper to answer your queries jointly since they pertain to one subject matter. In reply thereto, we find it imperative to make a distinction on the terms “effectivity” and “validity” as mentioned and used under the Local Government Code of 1991 (RA 7160). Please be informed that these terms are not the same. They are two (2) 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 i: 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 capitol 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 Local Government Code, an ordinance of a local government unit or that of a Sangguniang Panlungsod in particular, becomes effective as of the date the framers of such ordinance would like it to be effective and in 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 city hall and in at least two (2) other conspicuous places in the local government unit concerned. With respect to ordinances with penal sanctions, publication of the same in a newspaper of general circulation within the province where the local legislative body belongs is further required.eae Ordinance No. 02, series of 2008 or the Market Code of Gapan has an “Effectivity Clause” under Section 79 thereof which provides that “(T)his Ordinance shall take effect upon its approval, fifteen (15) days after its publication in a newspaper of local circulation.” Let it be noted, however, that it is not clear therein on whose approval is being referred to. Nonetheless, in the absence of any specific reference, it can be safely presumed that the “approval” referred to under Section 79 of City Ordinance No. 02, series of 2008 or the Market Code of Gapan is the approval by the City Mayor of the enacted ordinance pursuant to Section 54 of the Local Government Code. Accordingly, upon your approval of City Ordinance No. 02, series of 2008 or the Market Code of Gapan and after compliance with the publication requirement, said City Ordinance shall, as a matter of course, be already given legal effect and implemented even if the same is still pending review by the Sangguniang Pantalawigan. Thus, the withdrawal of City Ordinance No. 02, series of 2008 or the Market Code of Gapan made by Vice-Mayor Christian U. io from the Sangguniang Panlalawigan will not, in any way, affect the effectivity of said Ordinance. Such withdrawal can be considered only as a mere mechanical act of withdrawing a copy of City Ordinance No. 02, series of 2008 and did not operate to suspend the effectivity of such legislative measure. Validity, on the other hand, refers to the substantive requirement of an ordinance, whether the same is consistent with the Constitution and laws. When the Sangguniang Panlalawigan reviews City Ordinance No. 02, series of 2008 or the Market Code of Gapan pursuant to Section 56 of the Local Government of 1991, which we quote hereunder for easy referenc “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 panlalawigan 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 no action has been taken by the sangguniang panlalawigan within thirty (30) days after submission of such an_ordinance or resolution, the same shall be presumed consistent with law and therefore valid.” (Emphasis Supplied) the subject matter of the review dwells on the validity only of an ordinance, and not to its effectivity. Please be reminded that, 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. Along this line, may we stress that per the abovequoted Section 56 of the Local Government Code of 1991, the Sangguniang Panlalawigan is required to take action on the ordinance on review within thirty (30) days after its submission. This Department had consistently opined that the phrase “take action” should be construed as either approval or disapproval of the ordinance and not just any other action of the reviewing sanggunian, such as referral to a committee. After the lapse of such period, and no official and/or formal document, such as a resolution which shall contain the findings of the Sangguniang Panlalawigan on review of the Sangguniang Panlungsod Ordinance, was issued by the Sangguniang Panlalawigan, it can be validly stated that the Sangguniang Panlalawigan failed to act within thirty (30) days and the ordinance or resolution under review can be presumed consistent with law and therefore valid. Please be informed that this Department has consistently opined that when a power is given, and that the power is to be exercised within a prescriptive period, then such prescriptive period is considered a limitation to such power. This is consistent with the principle that “where a statute prescribed 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-5- 5 limitation on the power of the officer” (50 Am Jur, 23, p. 46, cited by Alcantara, Samson in his book Statutes, 1990 Ed.) Our interpretation as to the mandatory character of the 30-day period to take action is also impelled by public policy. Sangguniang Panlungsod Ordinances should attain stability at a given point in time. Otherwise, it would render Sangguniang 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. Finally, may we respectfully point out that laws, including the subject City Ordinance No. 02, series of 2008, are amended or repealed only by the enactment of subsequent ones. They are not repealed, nor their violation nor nonobservance excused by disuse or customs and practice to the contrary. In the case of the City of Manila vs. Reyes [99 Phil 986 (1956)], the Supreme Court held that the change in condition and circumstances after the passage of a law, which necessitated the enactment of a statute to overcome the difficulties brought about by such change does not operate to repeal the prior law, nor make the fatter statute so inconsistent with the prior act as to repeal it. We hope that we have addressed your concern accordingly. Very truly yours, Chk AUSTERE A. P? Undersecretary e~ Legak2017