DILG-CAR OPINION NO.

03-50
Series of 2003

27 August 2003

ATTY. RONALDO B. PEREZ

City Secretary II
Sangguniang Panlungsod
Baguio City

THRU: CD JOSE O. RAPANUT

DILG City Office
Baguio City

Dear Atty. Perez:

Mabuhay!

This is in connection with your letter-query of 21 August 2003 received at our level on
even date relative to the following issues as hereunder quoted, viz:

1. Is Trancoville Barangay Tax Ordinance No. 01-02, series of 2003, deemed

approved?

2. Can a barangay ordinance be deemed approved even if it is not consistent

with existing laws and ordinances?

3. Does the 30-day period stop to run when a barangay ordinance is referred to
a committee or to another office for study, comments and recommendation?
Is there failure to act on the part of the City Council when the committee or
office does not submit its comments and recommendation?

4. What is the effect of transmitting the barangay ordinance of Trancoville

Barangay enacted on 13 January 2003 to the City Council on 09 June 2003
considering that barangay ordinances are supposed to be transmitted within
10 days from its enactment to sangguniang panlungsod concerned?

5. Whether or not barangays can impose tax rates higher than that imposed in
the Tax Ordinance of the City of Baguio.

As represented in your letter and as indicated in the attachments, Tax Ordinance No.
01-02, s. 2003 of Trancoville Barangay was approved on 13 January 2003. The
Sangguniang Panlungsod (City Council) of Baguio was only furnished a copy through
the Office of the City Secretary with the above-stated ordinance only on 09 June 2003.
On the following day or on 10 June 2003, the said Office of the City Secretary
transmitted the subject ordinance to the Committee on Laws. During the Regular
Session held on 11 June 2003, the City Council interposed no objection to the referral of
matters on review of barangay ordinance to the Committee on Barangay Affairs.

Subsequently, during the Regular Session of the City Council on 13 August 2003, the
Committee on Barangay Affairs submitted for deliberation of the City Council its
Committee Report regarding the subject barangay ordinance with the recommendation
that the above matter be NOTED considering that under Sec. 57 (b) of the Local
Government Code of 1991 (RA 7160), the 30-day period provided therein had already
lapsed, and thereby, deemed ipso jure approved. Hence, you were tasked by the
Honorable Body to seek this legal opinion.

First Query: We answer in the AFFIRMATIVE. Please be informed that if no action has
been taken by the sangguniang panlungsod within thirty (30) days after submission to
it of barangay ordinance for review, the same shall be deemed approved by the
barangay concerned (Section 57 [b], Local Government Code of 1991). Apparently, the action
being referred to under the Code that should be taken within 30 days is the return of
the barangay ordinance with comments and recommendations for adjustment,
amendment or modification thereof, if any, to the barangay concerned (Section 57 (c),
Ibid.).

Please take note that the 30-day period has to be reckoned from receipt of such
ordinance by the sangguniang panlungsod (Sec. 57 [b], ibid.), which, in the instant case is
on 09 June 2003. Such reglementary period should be construed as mandatory, in
accordance with the established rules of statutory construction that when the time is
specified for the execution of an official act and such time was designated in order to
limit the power or authority of the officer or body, such time is considered mandatory
(Black on Interpretation of Laws, pp. 544-552). Consequently, upon the lapse of the mandatory
prescribed period, or on 09 July 2003, the ordinance had already become fully effective.

The word “approved” as used under Section 57 (b), supra, is in essence a misnomer. It
must not be confused as approval or disapproval for such power essentially belongs to
the sangguniang barangay upon approval by the majority of all its members and upon
the affixing of the signature by the punong barangay (Section 54 (c), ibid.).

Second Query: There are well-established tests of a valid ordinance and these are: (a)
It must not contravene the Constitution or any statute; (b) It must not be unfair or
oppressive; (c) It must not be partial or discriminatory; (d) It must not prohibit but may
regulate trade; (e) It must be general and consistent with public policy; and, (f) It must
not be unreasonable (Magtajas vs. Pryce Properties Corporation, Inc., 234 SCRA 255, reiterated in
Tano vs. Socrates, 278 SCRA 154). While a barangay may adopt ordinances upon subjects
covered by law or ordinance of higher sanggunian, such barangay ordinances should be
in accordance with and not repugnant to the law or ordinance of higher sanggunian.
Otherwise, such barangay ordinance is invalid and without force and effect.

However, since the mandatory prescribed period within which the SP would exercise its
review power had already lapsed, the ordinance enacted by lower local legislative
bodies enjoys the presumption of validity and any question as to its substantive validity
is threshable only by the courts upon proper judicial action. In view of this, no
provision thereof should be enforced until after a ruling from the court, regarding the
subject ordinance, has been obtained (DILG Opinion No. 140 S. 1999).

Third Query: We so hold in the NEGATIVE. It is very clear under Section 57, supra, that
the action must be done within the mandatory 30-day period. The referral to a
committee does not in any manner suspend the said period. As to the follow-up
question, there is failure of action on the part of the City Council. As stated, the review
power is vested in the whole sanggunian and not in the committees.
Fourth Query: In the absence of an express provision in the Code, it is our considered
view that the non-observance by the barangay secretary to furnish the Sangguniang
Panlungsod a copy of the barangay ordinance within the 10-day period has no effect
whatsoever on its validity, legality and effectivity. At the most, the nonfeasance on the
part of the barangay secretary will only subject her to disciplinary action.

Fifth Query: We again opine in the NEGATIVE. Barangays cannot impose a tax rate
higher than that imposed in the Tax Ordinance of the City of Baguio. Section 152,
supra, defines the scope of taxing powers of the barangay. It includes inter alia, the
power to collect fees for clearances issued by the barangay for business and activity
located or conducted in the barangay. Such necessarily accrue to them and the only
test thereto is whether they are reasonable or not. However, if such fee or revenue
collected by the barangay is also the subject of collection by the city, such collection
made by the barangay must be consistent with and must not go beyond the rates as
provided for under the city ordinance. Otherwise, such barangay ordinance is rendered
superfluous, as it is beyond the barangay to issue, much less to collect.

We hope to have enlightened you on the matters at issue. Our opinion, however, is
without prejudice to a contrary opinion of a higher authority or ruling by a competent
body or tribunal.

Warm regards.

Very truly yours,

EVERDINA ECHALAR-DOCTOR
Regional Director

/opinion 03-50