I’M NOT a fan of the Governor but in this instance I find this Department of the Interior and Local Government (DILG) executive humbug, acting like he possesses the power of control over a local government unit.
The President through his alter ego, the DILG Secretary (not a mere Undersecretary) has supervision NOT CONTROL over local government units.
Officers in control lay down the rules in the performance or accomplishment of an act. Whereas, those with mere power of supervision, DO NOT HAVE such authority. Supervising officials do not create rules over the instrumentalities they supervise. Their rules are effective only within their Department but not beyond. The DILG, therefore, can merely oversee that valid rules for LGUs are being followed. But DILG officials cannot prescribe the manner of execution of an act like the one at bar because they don’t have discretion on the matter. (See Pimentel vs. Aguirre, G.R. 132988, July 19, 2000)
The law on nuisance in the Civil Code is comprehensive enough. It already prescribes the manner of and named the actors on abatement of nuisances per se or per accidens, including road clearing operations. Unlike in other laws, Congress did not delegate to anybody, not even to the DILG the power to promulgate implementing rules and regulations on the Civil Code’s Title on Nuisance.
Hence, this memo is ultra vires and appears to be an exercise of control and not of supervision over the LGUs.
Can DILG indeed direct LGUs to recall permits that the latter have issued? (See DILG Memorandum Circular: 2019-121) (By Atty. Benjamin Cabrido)