EXPLAINER: Cebu Provincial Board ordinance requires national agencies to consult Capitol on national projects and secure PB’s prior approval. Sec. 27 of Local Government Code explicitly supports LGU power. Problem could be bigger than DOJ chief Remulla first thought.

File photos
File photos

CEBU PROVINCIAL BOARD ORDINANCE #2023-02, approved last month and promptly criticized by Justice Secretary Remulla, would penalize national government agencies that implement projects and policies in Cebu province without coordinating with and securing prior approval of the Provincial Government.

Officers and employees of national agencies, including government-owned and-controlled corporations, who violate the ordinance will be fined P5,000 per violation or face imprisonment of one year. Violators may also face administrative charges. .

WHAT EXACTLY IS PUNISHABLE. The ordinance prohibits the implementation of any “policy, program or project” in the territory of Cebu Province by any national agency or GOCC unless it is approved by Provincial Board resolution.

Before giving its approval, the national agency or GOCC concerned shall first submit to the PB “all pertinent documents related to the policy, program or project” it will implement.

DOJ OPINON, CAPITOL REACTION. A legal opinion of Justice Secretary Jesus Crispin Remulla, published Sunday, May 14, 2023, said Cebu was “mistaken” in enacting the ordinance, saying the Bureau of Animal Industry (BAI) under the Department of Agriculture (D.A.) does not need prior consultation and approval from the Cebu Provincial Government on the African Swine Fever (ASF) issue as it is “within the national agency’s territorial jurisdiction.”

His opinion in a way lectured on the grant of local autonomy and the edict on the powers of the national government over LGUs, laid down by the Supreme Court in Pimentel Jr. vs. Aguirre (GR #132988 of July 19, 2000). In sum, Remulla said, “policy-setting for the entire country still lies in the President and Congress.” The national government has not relinquished completely all its powers over LGUs, including autonomous regions. The grant of local autonomy, Remulla said, quoting the SC ruling, “should remain bounded by national policy objectives.”

DEFERRED UNTIL IRR, CONSULTATIONS. Last Monday, May 15, 2023, Gov. Gwen Garcia announced she has deferred enforcement of the ban on national agencies and GOCCs until she will have consulted the agencies concerned, starting with regional officials of the Department of Public Works and Highways (DPWH) and an IRR, or implementing rules and regulations, will have been adopted.

The governor said the justice secretary may have relied on wrong information. One Capitol lawyer, Atty. Rory Jon Sepulveda, said the DOJ opinion proceeded on the wrong premise, that it was a reaction to the controversy with BAI over the culling of Cebu hogs suspected of ASF infection.

The Remulla opinion dated April 24, 2023 was addressed to an undersecretary of the Presidential Management Staff, a copy of which was received by Department of Interior & Local Government (DILG) on May 4, 2023.

CAPITOL LAWYERS’ BASIS. Saying the PB ordinance was not the product of bright minds at the Capitol, defenders of the ban cited provisions of the Local Government Code of 1991 (Republic Act n#7160) as legal support or basis of the ban.

The first three provisions talk of “consultation,” “coordination,” and “participation in planning and implementation.” The said provisions don’t mention prior approval of the LGU before any national program, policy or project is implemented, thus:

[] Section 2 (c) -- "It is likewise the policy of the state to require all national agencies and offices to conduct PERIODIC CONSULTATIONS with appropriate local government units, non-governmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions."

[] Section 25 (b) -- "National agencies and offices with project implementation functions shall COORDINATE with one another and with the local government units concerned in the discharge of their functions. They shall ensure the PARTICIPATION of local government units both in the PLANNING and IMPLEMENTATION of said national projects.

[] Section 26 -- It shall be the duty of a national agency or GOCC involved in the planning or implementation of a project that “may cause pollution, climate change, depletion of non-renewable resources or loss of crop land, range land or forest cover, and extinction of animal or plant species," to CONSULT with the LGU, and other sectors and EXPLAIN the said project and its impact on them.

It’s only in Section 27, the fourth provision cited by Capitol, that specifies prior approval of the project, thus:

"Section 27. Prior consultations required. No project or program shall be implemented by government authorities unless (a) the CONSULTATIONS mentioned in Sections 2 (c) and 26 hereof are complied with, and (b) and PRIOR APPROVAL of the Sanggunian concerned is obtained."

I supplied the caps on certain words to stress their importance in the provisions. While the requirement of Provincial Board (or town or city Sanggunian) is mentioned only in one section, Section 27, the said section covers explicitly Sections 2 (c) and 26, and impliedly, the earlier other sections.

UNMISTAKABLE LEGISLATIVE INTENT. Legislative intent is unmistakable. The Local Government Code doesn’t just require consultation and coordination in planning a national policy, program or project; prior approval of the local Sanggunian is also required.

The Cebu PB and Governor Garcia apparently have raised an issue of far-reaching significance to most of the local governments.

BUT HOW WOULD IT WORK? Looks good on paper to advocates of local autonomy but how would it actually work. How much delay would it cause in shaping and implementing national policy or in acting on a disaster of country-wide proportion? There are situations when national thrust should come from one direction -- the president and Congress -- and not from numerous LGUS zealous over their respective powers. (But then, in this case, Congress enacted and the president signed the Local Government Code.)

DOJ chief Remulla may need to ponder more on the issue: It could be bigger than he first thought when he issued his opinion on Cebu’s “mistake.” Imagine a few more Gwen Garcias, LGU leaders rising and asserting rights of local governments across the country.

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