Can a Local Government Unit Enact an Ordinance Prohibiting Gambling in its City?

Can a Local Government Unit Enact an Ordinance Prohibiting Gambling in its City?

This article talks about whether a local government unit, through its sanggunian, enact an ordinance to prohibit gambling within its jurisdiction.

 

Gambling is a controversial activity that solicits negative and positive reactions from members of society. Some denounce it as immoral. However, certain forms of gambling are allowed by law. In this context, can a local government unit (LGU), through an ordinance, prohibit gambling in its city?

The answer is – it depends.

It must be noted that local government units enjoy local autonomy pursuant to Art. X, Sec. 2 of the Constitution. Local autonomy means “a more responsive and accountable local government structure instituted through a system of decentralization” (Art. X, Sec. 2, Constitution). In adherence to the general welfare clause enunciated in Section 16 of Republic Act No. 7160, otherwise known as the Local Government Code, LGUSs can enact ordinances to safeguard its constituents. Specifically, Sec. 458 of the Local Government Code empowers the Sangguniang Panlungsod to enact ordinances intended to prevent gambling and other prohibited games of chance.

However, this power of the LGUs is not absolute. In the case of In Re Search Warrant Seizure of Slot Machines vs. NBI, G.R. No. L-18899, 31 March 1964, the Supreme Court held that gambling is not illegal per se, but only if and when prohibited by statute.

In Magtajas vs. Pryce Properties, G.R. No. 111097, 20 July 1994, the Supreme Court ruled that a local government unit cannot prohibit PAGCOR from operating a casino within its city. Although the city has local autonomy, it cannot enact ordinances that contravene national laws. Since PAGCOR was mandated by law to regulate games of chance, a local ordinance cannot supplant a national law. Thus, the Supreme Court held in this wise:

“The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do not sit to resolve the merits of conflicting theories. That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicability of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice.

x x x

In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general.

The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute.

x x x

We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law.

Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void.”

Pertinently, in the case of Lina vs. Paño, G.R. No. 129093, 30 August 2001, the Supreme Court struck down a local resolution which prohibited the operation of lotto in its province since a local resolution or ordinance cannot disallow what the national law expressly allows. Thus, it was held:

“As a policy statement expressing the local government’s objection to the lotto, such resolution is valid. This is part of the local government’s autonomy to air its views which may be contrary to that of the national governments. However, this freedom to exercise contrary views does not mean that local governments may actually enact ordinances that go against laws duly enacted by Congress. Given this premise, the assailed resolution in this case could not and should not be interpreted as a measure or ordinance prohibiting the operation of lotto.

The game of lotto is a game of chance duly authorized by the national government through an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42, is the law which grants a franchise to the PCSO and allows it to operate the lotteries. X x x

This statute remains valid today. While lotto is clearly a game of chance, the national government deems it wise and proper to permit it. Hence, the Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue a resolution or an ordinance that would seek to prohibit permits. Stated otherwise, what the national legislature expressly allows by law, such as lotto, a provincial board may not disallow by ordinance or resolution.

In our system of government, the power of local government units to legislate and enact ordinances and resolutions is merely a delegated power coming from Congress. As held in Tatel vs. Virac,  ordinances should not contravene an existing statute enacted by Congress.” 

Thus, although the local government unit, through its respective sanggunian, can enact ordinances to protect its constituents, it cannot prohibit forms of gambling that are allowed by national laws.

 

About Nicolas and De Vega Law Offices

 

If you need assistance in administrative, civil and criminal litigation, or dealing with local government units, we can help you. Nicolas and de Vega Law Offices is a full-service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com.

 

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