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Friday, September 23, 2005
Talisay to CA: Drop ‘political’ lawsuit
By Garry C. Cabotaje
Sun.Star Staff Reporter
The Talisay City Government formally asked the Court of Appeals (CA) yesterday to dismiss the petition to nullify the cityhood of Talisay.
Talisay wants the petition nullified, saying it lacks cause of action, that it is a political question the court has no jurisdiction over, and that it is “procedurally infirm.”
In a 23-page prayer, signed and prepared by Talisay City Legal Officer Aurora Econg, the petition of Cebu City Mayor Tomas Osmeña also “miserably failed to meet the four requisites in order for the court to exercise its power of judicial review.”
Talisay, a former town in Metro Cebu, became a component city in 2001 by virtue of Republic Act (RA) 8979 sponsored by
Rep. Eduardo “Eddiegul” Gullas (Cebu, 1st district).
Osmeña, however, questioned the legality of the cityhood, saying Talisay failed to comply with the statutory requirements of income, land area or population as provided for under the 1991 Local Government Code.
Evidence
In its prayer, the Talisay City Government asked what would be the legal basis of the court to nullify RA 8979.
“Not even an iota of evidence is shown in the petition that law RA 8979 is infirm or is violative or in conflict with the Constitution,” Talisay City said.
Talisay City raised a similar contention about the move enjoining the Department of Budget and Management to desist from releasing its Internal Revenue Allotment (IRA) share.
It said there is no legal basis at all for the court to direct the Talisay City Government to pay back the IRA share it received since it became a city in 2001.
As to the enactment of RA 8979, Talisay City said the matter should have been raised during the deliberations in Congress.
It said that even Sen. Serge Osmeña III, mayor Osmeña’s older brother, was one of the proponents of the “questioned law” in the Senate.
It said the Talisaynons have given their mandate, and that questioning the law creating the cityhood is already beyond the court’s jurisdiction.
“The petition, therefore, should be dismissed because it involves a political question and the court will not take cognizance of it,” Talisay City said.
It said Osmeña’s petition showed that it failed to implead Talisay City as a party to the case, which it described as a procedural error.
Violation
Instead, Fernandez was impleaded in his official capacity, which is “distinct from the juridical personality of Talisay City.”
It cited Section 3 of Rule 46 of the Revised Rules in Civil Procedure, which states that failure of the petitioner to comply with any of the requirements shall be sufficient ground for the dismissal of the petition.
Talisay City also noted that Osmeña’s counsels who signed the petition are just legal consultants of Cebu City, not the legal officer, as required in Section 48 1(3i) of RA 7160, the Local Government Code.
“This act of petitioner is a blatant violation of the law and is another procedural infirmity of the petition,” Talisay City said.
It said that only the city legal officer can represent the Local Government Unit in any lawsuit, adding that this is another basis for the court to dismiss the petition.
Also, the petition allegedly failed to comply with four basic requisites for the court to decide on the validity of RA 8979: that there shall be an actual case or controversy that is ripe for judicial review; the constitutional question must be raised by the proper party; the constitutional question must be raised at the earliest possible opportunity; and the decision of the constitutional question must determine the case itself.
Speculative
As to the first requisite, it said Osmeña’s main reason to file the petition is “the illegal participation of Talisay City in the rank of qualified cities to a large extent, prejudices the income of Cebu City as it effectively decreases its IRA share in national taxes.”
Talisay City’s prayer, however, described this as highly speculative because 26 other towns all over the country were also converted into component cities when Talisay town became a city in 2001.
It said that there has been no evidence showing that Cebu City suffered financially with the enactment of RA 8979.
As to the population issue, the National Statistics Office (NSO) confirmed that Talisay qualified and passed the 150,000-population requirement.
Also, questioning the validity of the law should have been done earlier, it said.
“Subsequent events establishing the regularity of the enactment of RA 8979 had already rendered the issues raised in the petition as moot and academic,” it said.
On the last requisite, Talisay City said, “It is imperative that the case itself can be decided or resolved without having to rule on the constitutionality of the case.”
“Thus, it is not applicable for the court to exercise its power of judicial review in this instant case,” Talisay City said.
(September 23, 2005 issue)
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