Sunday, September 30, 2007 Tom, Gwen agree on swift resolution to MCWD issue
AFTER clashes on several issues, Cebu Gov. Gwendolyn Garcia and Cebu City Mayor Tomas Osmeña agreed that there is no need to prolong the court proceedings to determine who has power to appointment board members of the water firm.
Garcia has filed a petition for declaratory relief so she can exercise her power to appoint members of the Metropolitan Cebu Water District (MCWD).
In her comment to the motion filed by Osmeña, the governor asked Regional Trial Court Judge Bienvinedo Saniel Jr. to come up with a decision based on the pleadings submitted.
Trial issue
Osmeña earlier argued that since the grounds raised are basically legal questions and to avoid a full trial, a hearing of their affirmative defense is needed.
An affirmative defense goes beyond the mere denial of the plaintiff’s allegations.
The governor’s motion, signed by Provincial Capitol legal officer Donato Villa Jr., said the issues involve “pure questions of law” so there is no need to hear all the parties’ allegations through trial.
Last May 2, Garcia asked the court to rule that the power to appoint the members of the MCWD board now belongs to her, considering that the total active water service connections of MCWD within Cebu City is now below 75 percent, as shown in the records of MCWD.
The governor cited Section 3 (b) of Presidential Decree 198 or the Provincial Water Utilities Act of 1973, which governs the creation and operation of MCWD.
The section provides that “in the event that more than 75 percent of the total active water service connections of a local water district are within the boundary of a city, 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.”
Osmeña, for his part, has asked the court to dismiss the petition.
Not proper remedy
In his answer, Osmeña said it is not the proper remedy and because only participating local government units can appoint MCWD board members.
The mayor said that under Rule 63 of the Rules of Court, declaratory relief is only proper before any alleged violation of the law is committed.
“It is clear that the provisions of the law do not apply to the instant case because the petitioner claims that the mayor has been violating the provisions of PD 198 since 1996,” read Osmeña’s reply.
He also argued that the law covers only local government units in the formation of the water district.
MCWD, which is also impleaded in the case, asked the court to dismiss the petition, it has no interest on who gets to appoint board members. (KNT)
