G.R. No. 197146 - Dissenting Opinion




G.R. No. 197146, December 6, 2016, ♦ Decision, Bersamin, [J] ♦ Dissenting Opinion, Leonardo-De Castro, [J] ♦ Dissenting Opinion, Brion, [J] ♦ Concurring Opinion, Leonen, [J] EN BANC [ G.R. No. 197146. December 06, 2016 ] HON. MICHAEL L. RAMA, IN HIS CAPACITY AS MAYOR OF CEBU CITY, METROPOLITAN CEBU WATER DISTRICT (MCWD), REPRESENTED BY ITS GENERAL MANAGER, ARMANDO PAREDES; THE BOARD OF DIRECTORS OF MCWD, REPRESENTED BY ITS CHAIR, ELIGIO A. PACANA; JOEL MARI S. YU, IN HIS CAPACITY AS MEMBER OF THE MCWD BOARD; AND THE HONORABLE TOMAS R. OSMEÑA, IN HIS CAPACITY AS CONGRESSIONAL REPRESENTATIVE OF THE SOUTH DISTRICT, CEBU CITY, PETITIONERS, VS. HON. GILBERT P. MOISES, IN HIS CAPACITY AS PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH 18, CEBU CITY; AND HON. GWENDOLYN F. GARCIA, IN HER CAPACITY AS GOVERNOR OF THE PROVINCE OF CEBU, RESPONDENTS. DISSENTING OPINION LEONARDO-DE CASTRO, J.: I concur fully with the Dissenting Opinion of Justice Arturo D. Brion. For brevity, I submit with due respect, the serious flaws in the conclusions reached by the majority opinion. Firstly, I disagree with the majority opinion that Section 3(b) of Presidential Decree No. 198 should be partially struck down for being repugnant to the local autonomy granted by the 1987 Constitution to local government units (LGUs), and for being inconsistent with Republic Act No. 7160 (1991 Local Government Code) and related laws on local government. There is no impairment of the local autonomy provided by the 1987 Constitution and its implementing legislations for the following reasons: The decision to form a local water district is lodged upon the legislative body of any city, municipality or province itself, which can do so by enacting a resolution to form or join a district. An LGU is free to decide to join or not a local water district based on its own assessment of whether or not it will redound to its benefit to be covered by Presidential Decree No. 198, which provides, among others, for a package of powers, rights and obligations. Specifically, the local water district is assured of support on the national level in the area of technical advisory services and financing (Fifth Preambulatory Clause of Presidential Decree No. 198), guarantee of exclusive franchise for domestic water service within the district (Section 46), and exemption from income taxes under Section 45 which provides: SEC. 45. Exemption from Taxes. A district shall (1) be exempt from paying income taxes, and (2) shall be exempt from the payment of (a) all National Government, local government and municipal taxes and fees, including any franchise, filing, recordation, license or permit fees or taxes and fees, charges or costs involved in any court of administrative proceeding in which it may be a party and (b) all duties or imposts on imported machinery, equipment and materials required for its operations. Moreover, the LGU joining a local water district does not surrender any of its powers under the Constitution or the Local Government Code to another LGU vested with the power to appoint the members of the Board of the local water district since Presidential Decree No. 198 expressly provides that a district once formed shall not be under the jurisdiction of any political subdivision. The local water district has a separate juridical personality which is independent of the LGUs. It is governed by its Board of Directors pursuant to Section 17 which reads: Sec. 17. Performance of District Powers. - All powers, privileges, and duties of the district shall be exercised and performed by and through the board: Provided, however, That any executive, administrative or ministerial power shall be delegated and redelegated by the board to officers or agents designated for such purpose by the board. Hence, the power to appoint the members of the Board of Directors of the local water districts, which is vested upon the LGU determined in accordance with the formula or rule prescribed by Presidential Decree No. 198, does not impair the autonomy of the other LGUs included in the District. If a province can join a local water district and be subjected to the provisions of Presidential Decree No. 198, there is no cogent reason why the change of status of a component city of a province, which would later on become a highly urbanized city, should affect its powers, rights and obligations under Presidential Decree No. 198. A province which enjoys local autonomy may join a local water district and be subject to the provisions of Presidential Decree No. 198 pursuant to Section 6 of said Decree, which is quoted as follows: SEC. 6. Formation of District. - This Act is the source of authorization and power to form and maintain a district. Once formed, a district is subject to the provisions of this Act and not under the jurisdiction of any political subdivision. To form a district, the legislative body of any city, municipality or province shall enact a resolution containing the following: (a) The name of the local water district, which shall include the name of the city, municipality, or province, or region thereof, served by said system, followed by the words "Water District." (b) A description of the boundary of the district. In the case of a city or municipality, such boundary may include all lands within the city or municipality. A district may include one or more municipalities, cities or provinces, or portions thereof. (c) A statement of intent to transfer any and all waterworks and/or sewerage facilities owned by such city, municipality or province to such district pursuant to a contract authorized by Section 31(b) of this Title.1aшphi1 (d) A statement identifying the purpose for which the district is formed, which shall include those purposes outlined in Section 5 above. (e) The names of the initial directors of the district with the date of expiration of term of office for each. (f) A statement that the district may only be dissolved on the grounds and under the conditions set forth in Section 44 of this Title. (g) A statement acknowledging the powers, rights and obligations as set forth in Section 36 of this Title. Nothing in the resolution of formation shall state or infer that the local legislative body has the power to dissolve, alter or affect the district beyond that specifically provided for in this Act. If two or more cities, municipalities or provinces, or any combination thereof, desire to form a single district, a similar resolution shall be adopted in each city, municipality and province. *Secondly,* the majority opinion indulged itself in constitutionally objectionable judicial legislation by effectively amending Section 3(b) of Presidential Decree No. 198, which provides: SEC. 3. Definitions. - x x x. x x x x (b) Appointing authority. - The person empowered to appoint the members of the board of Directors of a local water district, depending upon the geographic coverage and population make-up of the particular district. In the event that more than seventy-five percent of the total acting water service connections of a local water district are within the boundary of any city or municipality, the appointing authority shall be the mayor of that city or municipality, as the case may be; otherwise, the appointing authority shall be the governor of the province within which the district is located. If portions of more than one province are included within the boundary of the district, and the appointing authority is to be the governors then the power to appoint shall rotate between the governors involved with the initial appointments made by the governor in whose province the greatest number of service connections exists. The majority opinion criticized the 75% threshold prescribed by Section 3(b) of Presidential Decree No. 198 to vest an LGU with the power to appoint the members of the Board of Directors of the local water district, and in doing so, framed it within the supposed violation of the due process clause and equal protection of the laws. We only need to underscore the legislative process that each LGU should go through to become a part of a local water district and to be subject to the provisions of Presidential Decree No. 198. It is a conscious and deliberate decision reached by an LGU through its legislative body or Sanggunian which should follow the procedure prescribed by law for the enactment of a resolution. It is for the said legislative body to evaluate the advantages and disadvantages, if any, of joining a local water district. Furthermore, for this Court to say that there was a denial of substantive due process of law and equal protection of the law, it must first closely scrutinize not only one provision of Presidential Decree No. 198 but all of its other provisions, particularly those pertaining to the power, rights and obligations of the component LGUs of the local water district. This the majority opinion failed to do. Moreover, it partially struck down Section 3(b) of Presidential Decree No. 198 taking into account only the particular situation of the City of Cebu. The majority opinion substituted its own rule or formula with that provided by Presidential Decree No. 198 to identify the appointing authority of the Board of Directors of the local water district by reducing the threshold of 75% of total active water service connections within the boundary of any city or municipality to a majority of said water connections, meaning, at least 51%, based on a supposed majority rule which has no basis in law. While the majority opinion claimed to have partially struck down Section 3(b) of Presidential Decree No. 198, it had practically nullified too the last sentence of said Section 3(b), which did not apply the threshold of 51% or majority rule in case more than one province are included in the local water district. In this case, Section 3(b) of Presidential Decree No. 198 provides that the appointing authority among the provinces is determined by rotation. Assuming that Section 3(b) of Presidential Decree No. 198, as argued in the majority opinion, is no longer in keeping with the recent developments in the status, socio-economic and political conditions of the LGUs comprising a local water district, the remedy is legislative amendment. It is not for this Court to prescribe another rule or formula to determine who shall have the authority to appoint the Board of Directors of a local water district. I join Justice Brion who, with clarity, extensively expounded on this issue to support the view which was early on tritely expressed in the appealed decision of the Regional Trial Court, particularly, that the question or issue on the situs of the appointing authority is for our lawmakers to address. In view of the foregoing, I join Justice Brion in voting to DENY the petition. The Lawphil Project - Arellano Law Foundation