Can a Cabinet member 'order' Visayas LGUs to pass ordinances?
Does an appointed official have the authority to order elective officials?
Some think so. In a memorandum released Saturday, March 22, the office of Secretary Michael Dino, the Presidential Assistant for the Visayas, released a memorandum "ordering" local government units (LGUs) in the island group to pass an ordinance that would impose a 24-hour "curfew" for students and senior citizens to prevent the spread of the novel coronavirus.
The memorandum, which outlined the importance of subjecting to quarantine senior citizens 65 years old and above, "ordered" LGUs in the Visayas to execute their respective ordinances.
After all, it is this age group that's more susceptible to the coronavirus. On March 18, Cebu province reported its first novel coronavirus case – a 65-year-old patient who was already recovering. Nationwide, there are a total of 380 confirmed cases as of Sunday, March 22. (READ: Cebu province reports first coronavirus case)
Dino's memo came out after Cebu Governor Gwendolyn Garcia placed the elderly and students under a 24-hour "curfew," or indefinite home confinement. (READ: Cebu province orders 24-hour home quarantine for students, elderly)
Garcia – like most local executives in Cebu – is allied with Dino himself, President Rodrigo Duterte's appointee in the Visayas region.
Item 6 of the memo read: "In line with the foregoing guidelines all LGUs are hereby ordered to execute their respective ordinances, the effectivity of which should be no later than 22 March 2020 at 3 pm."
"The PNP and AFP to render full assistance to LGUs in the implementation of the respective ordinances in relation to the foregoing advisory," it further said. The memo ended with the phrase "for strict compliance."
But can Dino, a mere appointed official "order" LGUs – run by elected officials – to comply with directives via a memorandum? It would be no different from say, the head of the Metropolitan Manila Development Authority, ordering around the mayors of the metro.
Law professor and former Supreme Court spokesperson Theodore Te said a "non-elective official" does not have the jurisdiction nor the power to do so.
"Unelected Presidential Assistants cannot issue an 'advisory,' then use the word 'order,' impose a 24-hour curfew, command PNP and AFP, and then say the guidelines are for compliance until they are withdrawn," Te tweeted.
Unelected Presidential Assistants cannot issue an “Advisory”, then use the word “order”, impose a 24 hour curfew, command PNP and AFP, and then say the guidelines are for compliance until they are withdrawn. #VoidOnSoManyLevels— Theodore Te (@TedTe) March 21, 2020
Dino's memo certainly raised not a few eyebrows. Even DILG Undersecretary Jonathan Malaya said in a text message to Rappler: "Only the ES (executive secretary) or the SILG (secretary of interior and local government) as alter ego of the President on local government matters has the legal authority to direct or enjoin LGUs."
After a wave of criticism on Facebook, Dino's office was compelled to issue a clarification.
"Please be informed that LGUs are encouraged and enjoined to execute their respective community quarantine to curb the spread of COVID-19," Dino's office said, careful this time around to use "encouraged and enjoined" instead of "orders."
"[This is] all in line with national government policies and the aforementioned advisory on the imposition of a 24-hour curfew for [those] 65 year old and up, and students."
Following the clarification, the memorandum was also taken down from Dino's official Facebook page.
Talk about officials, who don't know the law, being put in their rightful place. – with a report from Rambo Talabong/Rappler.com
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