REPUBLIC OF THE PHILIPPINES | DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condominium I EDSA cor. Mapagimahal St Diliman, Quezon City OFFICE OF THE SECRETARY BILG GPINGN WO 109s. 200.2... 23 November 2007 MS. CYRIL F. DELA CRUZ | Sangguniang Bayan Member Calatrava, Romblon Dear Madam: | This is in response to your letter requesting for the Department's legal opinion on the following queries, viz: 1. “Whether or not the total number of members present is the basis in determining two third votes (2/3) in suspending the three (3) reading rules of the Sangguniang Bayan in favor of the approval of the matter at hand that is in the absence of any existing internal rules, procedures and by-laws. 2. Whether or not the resolution/ordinances passed during the suspension of three reading rules are still effective, considering the fact that only five (5) members out of ten (10) regular members voted for the suspension of three (3) reading rules. 3. Whether or not the Local Government Units (LGUs) can implement/exercise resolutions/ordinances when its legal basis was in question and under p 4. Whether or not violation or non-compliance of Sec. 59 (b) of RA 7160 is an ample ground for the revocation of the approval of resolutions/ordinances.” In reply to your first query, allow us first to explain the simple majority vote and the qualified majority vote of the Sanggunian. With respect to the simple majority vote, this refers to the vote of the majority of those present members there being a quorum. On the other hand, with respect to the qualified majority vote, this refers to the vote of the majority or 2/3 of all the members of the Sanggunian, as the case may be, regardless of whether some or all are present. The voting requirement is reckoned from the entire membership of the Sanggunian and not merely on those present. The rule is - business transactions in the Sanggunian are approved by a simple majority vote except when the Local Government Code or other laws would expressly require a qualified majority vote with respect to certain matters. At this point, however, may we tackle a more important matter than the mere voting requirement in suspending the 3-reading rule in enacting-2 ordinances. While nowhere in the Local Government Code can we find a relevant provision requiring that there should be 3-reading rule enacting ordinances by the Sanggunian, Article 107 of the Implementing Rules and Regulations (IRR) of the Local Government Code, however, provided for the procedure in the passage of ordinances, which included the 3-reading rule requirement. It bears to stress that implementing rules and regulations issued by competent authority by authority of law have the force and effect of a law and they are binding on all persons subject to them, and the court will take judicial notice of them (Philippine Association of Service Exporters vs. Torres, 225 SCRA 417). Therefore, with this in mind, therefore, the Sanggunian cannot suspend the applicability and requirement of a law or its IRR. What it can suspend are only those matters not governed by| law but only by their Adopted Internal Rules. Since the 3-reading rule is a requirement of law, there is no moment that the Sanggunian can suspend such requirement. In the case of Malonzo vs. Zamora (311 SCRA 224), the Supreme Court ruled that since nowhere in the Local Government Code is it required that the 3-reading rule be done on three separate days, then the 3-reading rule in enacting anordinance can be done in one day. This Supreme Court Pronouncement is clear in imparting that the 3-reading rule cannot be dispensed with as it is a requirement under the IRR of the Local Government Code, but all the three readings can be done in one day. In reply to your second query, the same|need not anymore be answered considering that as stated in the immediately preceding discussion, the 3-reading rule cannot be dispensed with or suspended by the Sanggunian as it is a requirement under the IRR In reply to your third query, it bears to emphasize that ordinances and resolutions enjoy the presumption of validity, Hence, until invalidated by a court, an ordinance is presumed valid and should be implemented notwithstanding any legal defect imputed against| it. This legal defect, however, can be used as a ground to go to court in questioning the validity of the ordinance In reply to your fourth query, Section 59 (b) of the Local Government Code provides that the Secretary to the Sanggunian concerned shall cause the posting of an ordinance or resolution in the bulletin board at the entrance of the provincial capitol and the city, municipal or barangay hall in at least two conspicuous places in the local government unit concerned not later than five days after approval thereof. In this regard, it may be wise to point out that Section 59 (a) provides for the effectivity of ordinances and resolutions and that it mandates that ordinances and resolutions shall take effect after 10 days from the date a copy thereof is posted in a bulleting board at the entrance of the provincial capitol and city, municipal or barangay hall, as the case may be. It bears to stress that validity and effectivity are not the same. While an ordinance is valid in all respects, it cannot as yet be implemented if the same is not yet effective. In your query, however, you pointed out non-compliance of Section 59 (b) of the Local Government Code. Said provision dealt on the duty of the Secretary to the Sanggunian to post approved ordinances. Hence, if the ordinance was nonetheless posted in accordance with Section 59, but the posting was done not by the Secretary to the Sanggunian, we believe that there is substantial compliance of the requirement to make ordinances effective, without prejudice, however, to the possible administrative liability of the Secretary to the Sangguian in failing to cause the posting of the approved ordinance. On the other hand, if what you meant by your query is that no posting was at all made, then the ordinance is not yet effective for failure to comply with the said Section 59 of the Code. You, however, intimated as to whether or not you can revoke the approval of ordinances for failure to comply with Section 59 (b) of the Code. The issue here is not revocation but rather, it is the power of the Sanggunian to enact an ordinance and repeal the same if it so desires. Hence, you do not revoke the approval as there is no legal basis in doing so, but you can repeal such approved ordinance and the repeal can be made at anytime, whether the same is already effective or not. Hope we have enlightened you on the matter. Very truly yours, ATTY. MARI oo CORPUS Acting Secretary ow Legal:09:43/La cc: Director Rolando L. Rafaet DILG Region 1V-B Santos & Sons Bldg., Aurora Bivd. Cubao, Quezon City