Legality of Barangay Ordinance Imposing P50.00 Fee on Excess Tables of Bars and Restaurants along White Beach

DOJ OPINION NO. 049, s. 2015 June 22, 2015 Ms. Mailyn Reyla Yangco Petitioner Thru: Atty. John Paul P. Nabua, J.D.Counsel for Ms. Yangco NABUA Law Firm Fairways Tower Fifth Avenue cor. McKinley Road Bonifacio Global City, Taguig City Dear Ms. Yangco : This refers to your Petition for Review dated 22 May 2015, filed before this Department, the sole relief of which "prays of this Honorable Office that Barangay Ordinance No. 2014-02 1 dated 19 March 2014 issued by the Sangguniang Barangay of San Isidro, Puerto Galera be declared NULL and VOID for being contrary to the provisions of the Local Government Code of 1991". 2 Your petition alleges, inter alia, that the subject barangay ordinance is a revenue measure, as it charges or imposes an additional fee of P50.00 per table for excess tables that will be placed or put up by restaurant and bar owners along the beachfront of White Beach located in the aforementioned barangay ;that the amounts collected as a consequence of the additional table charges shall be used to fund for the services of the barangay police (tanod) and health workers, and the installation of closed-circuit television (CCTV) system; that the said imposition is not germane to the purpose of the ordinance, an anti-tourist measure, and the amount is unjust, excessive, oppressive, and confiscatory; that the imposed amount is beyond the scope of the taxing powers of the barangay, as enumerated under Section 152 of the said Code; that on 19 March 2014, the subject barangay ordinance was approved without the benefit of public hearings, in violation of what is mandated by the said Code; and that the subject ordinance allegedly took effect on 4 May 2015, as authorized by Resolution No. 2015-043 issued by the Sangguniang Bayan of Puerto Galera. AcICHD With much regret, we cannot give due course to your petition. First. The Secretary of Justice does not pass upon the validity or constitutionality of a duly enacted ordinance since said matter properly belongs to the courts (Victoria Milling Co., Inc. vs. Municipality of Victorias, Negros Occidental, 25 SCRA 192). The Secretary of Justice is authorized to act only on appeals questioning the constitutionality or legality of a tax ordinance or revenue measure filed within thirty (30) days from the effectivity thereof (Sec. 187, Local Government Code [R.A. 7160]) 3 Indubitably, this is the situation contemplated in this case, as can be gleaned in the specific relief expressly prayed for in your petition. Second. The bare assertion in the petition that the subject ordinance will be implemented effective 4 May 2015 is not substantiated by evidence on record. The subject barangay ordinance indicates that it was approved by the Sangguniang Barangay of San Isidro on March 19, 2014. Resolution Nos. 008-2015 4 and 2015-043 5 passed by the Sangguniang Bayan of Puerto Galera, which reviewed the questioned ordinance in accordance with Section 447 of the said Code, did not categorically show the effectivity date of the subject ordinance. It is basic in the rule of evidence that bare allegations, unsubstantiated by evidence, are not equivalent to proof. In short, mere allegations are not evidence. 6 Third. Assuming, however, that the controverted barangay ordinance is a tax legislation, which took effect on the alleged date afore-cited (4 May 2015),and we treat your petition as an appeal on the said measure, still, the appeal must fail for being time-barred. As you have correctly cited in your petition, the applicable law on this matter is Section 187 of the aforementioned Code, which reads: SEC. 187. Procedure for Approval and Effectivity of Tax Ordinance and Revenue Measures; Mandatory Public Hearings. The procedure for the approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof. Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and accrual and payment of the tax, fee or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings. (Emphasis supplied) The afore-cited law requires that an appeal of a tax ordinance or revenue measure should be made to the Secretary of Justice within thirty (30) days from effectivity of the ordinance and even during its pendency, the effectivity of the assailed ordinance shall not be suspended. In this case, and applying the aforesaid provision of law, an aggrieved party is given thirty (30) days from the effectivity of the ordinance, or until 3 June 2015, in your case, within which to appeal, to assail its validity or constitutionality, to the Secretary of Justice. Per our records, however, we observe that you filed the appeal only on 8 June 2015. Clearly, the present appeal is dismissible for being time-barred. The periods stated in Section 187 of the Local Government Code are mandatory. Thus, it is essential that the validity of revenue measures is not left uncertain for a considerable length of time. Hence, the law provided a time limit for an aggrieved party to assail the legality of revenue measures and tax ordinances. 7 The right to appeal is neither a natural right nor is it a component of due process. It is a mere statutory privilege, and may be exercised only in the manner and in accordance with the provisions of law. 8 TAIaHE Please be guided accordingly. Very truly yours, (SGD).LEILA M. DE LIMA Secretary Footnotes 1. Entitled "Isang Kautusang Nagtatakda ng Regulasyon sa Paglalagay ng mga Mesa sa Dalampasigan ng White Beach, Barangay San Isidro, Bayan ng Puerto Galera, Lalawigan ng Silangang Mindoro" approved on 19 March 2015. 2. Republic Act (R.A.) No. 7160. 3. Sec. of Justice Op. Nos. 28 & 17, s. 2013; Nos. 95, 49 & 18, s. 2012. 4. Entitled "A Resolution Remanding Kautusang Pambarangay Blg. 2014-01, 2014-02, and 2014-03, All Series of 2014 of Brgy. San Isidro, Puerto Galera, Oriental Mindoro Subject to the Herein Set Forth Conditions". 5. Entitled "A Resolution Remanding the Implementing Rules and Regulations (IRR) of Barangay San Isidro for the Implementation of Kautusang Pambarangay Blg. 2014-02 Entitled 'Isang Kautusang Nagtatakda ng Regulasyon sa Paglalagay ng Mesa sa Dalampasigan ng White Beach, Barangay San Isidro, Puerto Galera, Lalawigan ng Silangang Mindoro". 6. Real v. Belo, G.R. No. 146224, January 26, 2007. 7. See, Hagonoy Market Vendor Association v. Municipality of Hagonoy, Bulacan, G.R. No. 137621, February 6, 2002. 8. See, Boardwalk Business Ventures, Inc. v. Villareal, G.R. No. 181182, April 10, 2013.