Wednesday, February 21, 2007
Cebu City can legally do what it has done
By Karlon N. Rama
Sun.Star Staff Reporter
CAN the Cebu City Government stop Ciudad?
Under the general welfare clause of the Local Government Code, it can.
Local government units (LGUs), says the law, exercise all the powers “necessary, appropriate, or incidental” for “efficient and effective governance.”
Efficient and effective governance, according to Section 16 of Republic Act 7160, includes the “promotion of the general welfare” and, with it, the preservation of “the comfort and convenience of their inhabitants.”
“The City can do it through a resolution or, if there are penal provisions or impositions, through an ordinance,” a lawyer said on condition of anonymity as his office works closely with the Provincial Government.
“The resolution will guide the local chief executive in the implementation of existing rules, including the issuance of permits and clearances,” said a court official, who also requested that his name be withheld.
But the two, both of whom teach law, agreed in separate interviews that this does not mean that the Provincial Government is without a remedy.
The Province, they said, can argue that Ciudad does not negatively affect the general welfare of the city and its inhabitants and proceed with satisfying the requirements for a mayor’s permit.
And it can go to court if the City Government makes the mistake of granting permits to any another development firm with a project in the Banilad-Talamban area.
Both sources said LGUs have the authority to enact resolutions and ordinances but coming out with something that targets Ciudad specifically is class legislation and violates the equal protection clause of the Bill of Rights under the Constitution.
Moreover, they said, the Capitol can attempt to secure all the permits required in the issuance of mayor’s permit and, if all papers are complete, petition the Regional Trial Court (RTC) to issue an order of mandamus against the Office of the Cebu City Mayor.
“The issuance of permits is a mechanical act. This being so, the ministerial duty can be compelled by judicial action,” the court official said.
The Cebu City Council last week passed a resolution directing the City Planning Development Office to study, in coordination with City Traffic Operations and Management, Department of Engineering and Public Works and other government and nongovernmental organizations, the traffic problem on the Banilad road.
While the study is ongoing, the planning office will withhold the approval of the construction of malls, schools and other similar developments in the Banilad-Talamban areas.
Observers said the move was too obvious an attempt at blocking Ciudad, a land development venture between the Provincial Government and a private contractor, in order to compel the Provincial Government to agree to a land swap deal with the City.
Still, the government lawyer said it is allowed, obvious or not.
The Supreme Court has upheld the strength of the general welfare clause in many rulings.
Among the more recent is the 2003 Roberto A. Edillo vs. Court of Appeals, the City of Cebu and the City Council of Cebu City decision. The ruling delved on the legality of an ordinance banning the selling of masiao tip sheets.
“Thus, as far as public policy is concerned, there can be no better policy than what has been conceived by the government of the City of Cebu,” the Third Division of the High Tribunal said.
For Bisaya stories from Cebu. Click here. (February 21, 2007 issue)
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