I. Introduction and Legal Basis. The power of local government units (LGUs) to enact ordinances is a delegated authority emanating from the Constitution and statutory law. The 1991 Local Government Code (Republic Act No. 7160) is the primary source of this power, granting LGUs the authority to enact ordinances for the general welfare of their constituents. This power, however, is not absolute and must be exercised within the confines of the Constitution, statutes, and established jurisprudential requisites to ensure validity.
II. Requisite 1: Must Not Contravene the Constitution or Any Statute. An ordinance is void ab initio if it conflicts with higher law. This includes conflicts with the Constitution, Republic Acts, and substantive administrative rules and regulations issued by national agencies. An ordinance cannot prohibit what the law expressly permits, nor permit what the law expressly prohibits. It operates only in a subordinate sphere.
III. Requisite 2: Must Not Be Unfair or Oppressive. The ordinance must be reasonable in its terms and operation. It should not be unduly burdensome, confiscatory, or discriminatory in its application. The test of reasonableness examines whether the means prescribed are reasonably necessary for the accomplishment of a legitimate public purpose, and not arbitrarily oppressive.
IV. Requisite 3: Must Not Be Partial or Discriminatory. An ordinance must apply equally to all persons, properties, and businesses under similar circumstances. Classifications, if made, must be based on substantial distinctions, germane to the purpose of the ordinance, and apply equally to all members of the same class. It must not favor some while unfairly prejudicing others.
V. Requisite 4: Must Not Prohibit but May Regulate Trade. As a general rule, LGUs may regulate, but cannot absolutely prohibit, lawful trades, occupations, or businesses. A prohibition is permissible only when the activity is inherently pernicious, injurious to public health, morals, or safety, or when a compelling public welfare reason exists, and regulation is insufficient to abate the nuisance or danger.
VI. Requisite 5: Must Be General and Consistent with Public Policy. The ordinance must align with declared national and local policies. It should be general in character and application, not singling out specific individuals for regulation or penalty. It must promote, not undermine, the general welfare as defined by law.
VII. Requisite 6: Must Not Violate Due Process. The due process clause requires that the ordinance be sufficiently clear and definite so that persons of ordinary intelligence are not forced to guess at its meaning. It must provide adequate guidelines to prevent arbitrary enforcement. Furthermore, substantive due process demands that the ordinance is a legitimate exercise of police power for a lawful end.
VIII. Requisite 7: Must Be Published and Posted as Required by Law. For effectivity, the Local Government Code mandates specific procedures. Under Section 59 of R.A. 7160, a certified copy of the approved ordinance must be posted in a conspicuous place in the provincial capitol, city, municipal, or barangay hall for a minimum of three consecutive weeks. Publication in a newspaper of general circulation is required for ordinances with penal sanctions. Non-compliance renders the ordinance ineffective.
IX. Practical Remedies. A party aggrieved by an allegedly invalid ordinance may: (a) File an administrative appeal with the Sanggunian concerned within the prescribed period; (b) Seek declaratory relief or file a petition for prohibition or certiorari with the Regional Trial Court having jurisdiction, questioning the ordinance’s validity on constitutional or statutory grounds; (c) Raise its invalidity as a defense in any criminal or civil case filed for its violation; (d) File a complaint with the Office of the Ombudsman if the enactment involves bad faith, abuse, or corrupt practices by local officials; and (e) In cases of grave abuse of discretion, elevate the matter via a petition for review to the Court of Appeals or directly to the Supreme Court under its certiorari jurisdiction. Timeliness is critical, as laches or estoppel may bar a belated challenge.
