January 25, 2018

Hon. Barangay Captain Marietta R. Bucao

and the Hon. Councilors of
Barangay San Isidro, Talisay City,
Cebu Province 6045

Dear Sirs and Madams:

May this please you well.

I am writing this letter in relation to my experience at our Barangay Hall yesterday. When I
applied for a Barangay clearance, I was asked if I was a registered voter of Barangay San Isidro
because if not, I have to talk to the Councilor on duty before I'd be issued one.

When I did talk to the Councilor on duty, he informed me that as a matter of practice, our
Barangay will not issue a clearance if the applicant is not a registered voter in our Barangay pursuant to
the order of a DILG. A colleague of the Councilor clarified that matter that it was not an order but an
encouragement from the DILG not to issue a clearance unless the applicant becomes a registered voter
in the Barangay. I had to explain to them that I took my law studies in Dumaguete that is why I
transferred my registration there. After some discussions, I was issued a Barangay clearance.

Being a lawyer, one of my primary duty is to uphold the law as we are considered by our Code
of Ethics as fellow administrators of justice of the courts. As a resident of our beloved Barangay, it is
also my personal duty to help my Barangay officials, who were elected by popular vote, in any way I
can as they perform their mandate and lawful tasks and duties.

In this regard, may I offer my legal opinion as to the matter of the issuance of Barangay
clearance in the hopes that this help you form a concrete policy regarding this matter. Please note that
this is just my personal legal opinion of the matter at hand, voluntarily given, and is not in any way
reflecting the position of the government or any of its subdivisions.

Yours sincerely,

Atty. Abel C. Montejo

LEGAL OPINION IN RE: ISSUANCE OF BARANGAY CLEARANCES TO
BARANGAY RESIDENTS OF SAN ISIDRO, TALISAY CITY, CEBU
Atty. Abel C. Montejo

EXECUTIVE SUMMARY:

Being a non-registered voter in our Barangay is not a ground for the denial of a resident's
application for a Barangay clearance. Should the Barangay choose to impose this requirement,
the Barangay Sanggunian must first enact an ordinance specifically requiring an applicant to
first register as a voter in our Barangay as a pre-requisite for the issuance of a Barangay
clearance.

DISCUSSIONS:

In order to present a concise, understandable flow of the issue, this legal opinion will discuss, in
the following order, the topics below:

1. Statutory basis of the issuance of Barangay clearances;

2. Nature of the Barangay clearance;
3. Grounds for its issuance and its denial;
4. Suggested actions to be taken by the Barangay Sangguinian.

I. Statutory basis of the issuance of Barangay clearances

The legal basis for the issuance of Barangay clearances is found in Book II, Title I, Chapter II,
Article IV, Section 152 (c) of R.A. 7160, or otherwise known as the Local Government Code, which
reads:

Section 152. Scope of Taxing Powers. - The Barangays may levy taxes, fees, and charges, as provided in this
Article, which shall exclusively accrue to them:

xxx xxx xxx

(c) Barangay Clearance. - No city or municipality may issue any license or permit for any business or activity
unless a clearance is first obtained from the Barangay where such business or activity is located or
conducted. For such clearance, the sangguniang Barangay may impose a reasonable fee. The application for
clearance shall be acted upon within seven (7) working days from the filing thereof. In the event that the
clearance is not issued within the said period, the city or municipality may issue the said license or permit.

xxx xxx xxx

Based on the above provision, our Barangay may levy taxes which will exclusively accumulate
to its account.

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 II. Nature of the Barangay clearance

It is important to note that the provision relating to the issuance of a Barangay clearance is
placed under Local Taxation and Fiscal Matters, relating to the specific provisions on the taxing and
other revenue-raising powers of the Barangay. In other words, the Barangay clearance is essentially a
fee. It is an exercise of the taxing powers of the Barangay which were given by our Local Government
Code in order that the Barangay may raise funds to sustain its operations. This is also the interpretation
of the Department of the Interior and Local Government in DILG Opinion 94 Series of 2010.

Thus, the nature of the Barangay clearance is that it is a fee to regulate any and all businesses
who intends to operate within our jurisdiction. Such that, no city or municipality may issue a business
permit to an entity without first securing a Barangay clearance.1 Because of its regulatory nature, a
Barangay may deny the issuance of a Barangay clearance, subject to some lawful exceptions.
Unfortunately, our Local Government Code did not specify the grounds upon which the application for
Barangay clearance may be denied.

This is where the confusion lies.

What are the instances upon which our Barangay can deny an applicant the issuance of his or
her Barangay clearance? Is being a “non-registered voter in a Barangay where he/she is applying for a
clearance” (but was able to previously register in another Barangay), sufficient reason to deny such
application?

III. Grounds for its issuance and its denial

The law and jurisprudence are silent and jurisprudence. However, in the same DILG Opinion 94
S. 2010, the DILG opined that it is their consistent view that if there is a national law or a local
ordinance that is violated, the Punong Barangay cannot (sic) issue a Barangay clearance. Stated
differently, if an applicant, whether an individual or business entity, have violated a national law or
local ordinance, his or her application for Barangay clearance may be validly denied.

We shall now direct our attention to the issue at hand. Is being a “non-registered voter in a
Barangay where he/she is applying” a violation of a national law or local ordinance so as to justify the
denial of one's application for a Barangay clearance? To answer this question, we shall look at the
pertinent laws relating to voter registration.

On the necessity to register as a voter:

The necessity of a Filipino citizen to register before he or she can exercise the right to vote is
well entrenched in our law. Section 99 of R.A. 6388, or otherwise known as the Election Code of 1971,

1 However, this is subject to the exception found in the last sentence of the same provision that
the city or municipality may issue a business permit if there was no Barangay clearance issued within
seven (7) days from application. This is subject, of course, to the internal rules of our beloved city.

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provides that “(i)n order that a qualified voter may vote in any regular or special election or in any
plebiscite, he must be registered in the permanent list of voters for the city, municipality or municipal
district in which he resides: Provided, That no person shall register more than once without first
applying for cancellation of his previous registration.” The same justification is found in Section 3 of
Presidential Decree 1187, Section 115, Article XII of Batas Pambansa (BP) 881, or otherwise known as
the Omnibus Election Code, and in Section 10 of R.A. 8189, or otherwise known as the Voter's
Registration Act of 1996.

On whether or not being a “non-registered voter in the Barangay he/she is applying” constitutes a
violation of a national law or local ordinance:

There is no need to discuss whether being a “non-registered voter in a Barangay” is in violation

of a local ordinance because our Barangay has not enacted any ordinance penalizing this matter. Thus,
we shall only discuss if said non-registration is in violation of a national law.

A thorough perusal of the relevant laws reveal that there is no law that penalizes a Filipino
citizen for being a “non-registered voter in a Barangay where he/she is applying” for a clearance.
The closest penal provision relating to this issue is found in Section 261 (y) (1) of the Omnibus
Election Code which punishes a person who “fails to register” as a voter. Said provision reads:

(1) Any person who, having all the qualifications and none of the disqualifications of a voter, fails without
justifiable excuse to register as a voter in an election, plebiscite or referendum in which he is qualified to vote.

If a qualified person is found guilty of failing, without justifiable reasons, to register as a voter
in an election, he/she shall be fined one hundred pesos and is disqualified to run for public office in the
next succeeding election following his conviction or be appointed to a public office for a period of one
year following his conviction.2 Take note that this provision punishes those who fails to register and not
those who are not registered voters of the Barangay (but was able to register elsewhere) where he or
she is applying for a clearance.

However, Section 261 (y) (1) has been repealed by Executive Order (EO) No. 134 Series of
1987 which expressly provides that:

SEC. 17. Repealing clause. – All laws or parts of laws inconsistent herewith are hereby deemed repealed or
modified accordingly. The provisions on failure to register and to vote under Section 261, paragraph
(y), sub-paragraph No. 1 and paragraph (z), sub-paragraph No. 1 of the Omnibus Election Code of
the Philippines are hereby repealed.

Hence, as of this writing, failure to register is no longer considered an election offense.

To recapitulate, failure to register as a voter is no longer considered a violation of our

election laws. It stands to reason, therefore and all the more, that a person who is applying for a
Barangay clearance who is “not a registered voter in the Barangay he/she is applying”, but is in
fact a resident of such Barangay, does not violate any national law so as to justify the denial of
his/her application.
2 Section 264, BP 881 (Omnibus Election Code)

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 IV. Suggested actions to be taken by the Barangay Sanggunian

If our beloved Barangay indeed wishes to impose upon its constituents the additional burden of
registering as a voter as a precondition to the issuance of a Barangay clearance, the Barangay
Sanggunian must have a clear legal basis and due process must be followed.

As the basic political unit, the Barangay serves as the primary planning and implementing unit
of government policies, plans, programs, projects, and activities in the community, and as a forum
wherein the collective views of the people may be expressed, crystallized and considered, and where
disputes may be amicably settled.3 Being so, the Barangay Sanggunian has the power to enact
ordinances within its jurisdiction provided that these ordinances do not contradict our Constitution,
national laws, or is contrary to our good morals and customs. This power is embedded in Section 54
(c), Book I, Chapter III, Title II, of RA 7160, which reads:

(c) Ordinances enacted by the sangguniang Barangay shall, upon approval by the majority of all its members,
be signed by the punong Barangay.

In other words, the Barangay Sanggunian must pass an ordinance specifically requiring an
applicant to be a registered voter in our Barangay first, before he or she can be issued a Barangay
clearance. Should the Sanggunian resolve to do so, a copy of the ordinance must be posted in in a
bulletin board at the entrance of the Barangay hall, as the case may be, and in at least two (2) other
conspicuous places in the Barangay.4

HOWEVER, clear, legal, and equitable reasons must be cited in order for this ordinance
to stand the scrutiny of constitutionality. May I remind my beloved leaders that you may be held
administratively accountable should you wish to impose such burden without clear, legal, and equitable
reasons.

To further clarify my warning, may propose the following guidelines:

Grounds for issuance:

1. Bonafide resident of our Barangay for at least six (6) months from the time of application;
2. The applicant has not violated a national law or local ordinance;
3. The applicant has no standing warrant of arrest;
4. Payment of a reasonable processing fee;
5. Other reasonable criteria which the Sanggunian may choose to impose

Grounds for denial:

1. Applicant is not a resident of our Barangay for at least six (6) months from the time of
application;
2. Applicant has violated a national law or local ordinance;
3. Applicant has a standing warrant of arrest;
4. Applicant has not paid the processing fee;
5. Applicant failed to pass other reasonable criteria which the Sanggunian have chosen to impose.
3 Section 384, RA 7160 (Local Government Code)
4 Ibid., Section 59 (a).

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Grounds for further clarification:

If the applicant's purpose for applying for the Barangay clearance is other than proof of
residency, I suggest that the Punong Barangay ask the applicant to produce necessary documents to
substantiate the purpose for which the clearance is applied for. For example, if the applicant wishes his
Barangay clearance to state that he is a resident of good standing, and has never been arrested, nor was
there ever a case filed against him, the Punong Barangay should at least ask the applicant to produce an
NBI Clearance before the application for Barangay clearance is granted. This is to ensure that the
person is, to a certain extent, not an offender. Likewise, if an applicant is a business entity wishing to
conduct business within our Barangay, the Punong Barangay should at least request the applicant to
produce the necessary documents such as Environmental Clearance (if applicable), SEC Registration
(if corporation), DTI Registration(If sole proprietor), and other applicable documents, before the
application is granted.

To close, may I urge my beloved leaders to carefully craft the reasons for the policies and
regulations they wish to implement within our Barangay, knowing full well that poorly crafted policies
and regulations will not only result in inconvenience, but denial of the fundamental rights of a Filipino
citizen, fiercely protected by our Constitution.

Yours sincerely,

Atty. Abel C. Montejo

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 References

The author has read helpful articles found in the following websites:
1. http://www.dilg.gov.ph/PDF_File/issuances/legal_opinions/DILG-Legal_Opinions-2012925-
5d47f6a343.pdf;
2. http://www.dilg.gov.ph/PDF_File/issuances/legal_opinions/DILG-Legal_Opinions-201131-
11b159c92a.pdf;
3. http://www.philstar.com/cebu-news/2016/03/05/1559733/purok-system-ordinance-invalid-
court-declares;
4. http://lente.ph/election-offenses-on-registration-of-voters/#note-825-4;
5. http://lente.ph/introduction-to-election-offenses/;

All the laws cited herein were lifted from the following websites:
6. http://www.chanrobles.com;
7. http://www.lawphil.net;
8. http://www.officialgazette.gov.ph.

Note: I am giving this legal opinion to the Barangay Officials of Barangay San Isidro with the intention
to help them craft policies with sound legal basis and is not intended for any other purpose. This legal
opinion may not be used for any illegal or criminal purpose, nor may be the basis of any illegal,
criminal, or unofficial actions of any persons, be they a Barangay official or not.

Further, this legal opinion is my property and a product of my research. From its conception, this legal
opinion is protected by the Intellectual Property Code of the Philippines. No part of this legal opinion
may be published, quoted, or reprinted, or otherwise reproduced, in any manner, whether be it in print,
digital, photographic, or any form of visual or aural medium, without my express consent. All sources
not cited or not properly cited, if any, is a result of inadvertent error and is not intentional. The author
will update this opinion with proper references once notified of such error.

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