Tuesday, May 27, 2008 Judge dismisses Capitol suit By Jujemay G. Awit Sun.Star Staff Reporter
THE REGIONAL Trial Court (RTC) has dismissed a Capitol suit questioning the authority of Cebu City Mayor Tomas Osmeña to appoint members of the Metropolitan Cebu Water District (MCWD) board of directors.
But RTC Judge Bienvenido Saniel Jr. of Branch 20 did not rule on the propriety of Osmeña continuing to exercise the questioned authority.
Provincial Attorney Marino Martinquilla said Capitol will file a motion for reconsideration.
In his ruling, Saniel said a complaint for declaratory relief should be filed before a contract, statute or right has been breached, otherwise it won’t prosper.
Saniel quoted Dean Willard B. Riano’s Civil Procedure, 2007: “Where the law or contract has already been contravened prior to the filing of an action for declaratory relief,
the court can no longer assume jurisdiction over the action.”
Gov. Gwendolyn Garcia filed the petition for declaratory relief in 2006 claiming that Osmeña has made “illegal appointments” since 1996, usurping her authority to appoint members of the MCWD board.
Osmeña, in his answer, claimed that declaratory relief is only proper before any alleged violation of the law is committed.
He went on to appoint Joel Mari Yu, head of the Cebu Investment Promotions Center, as member of the MCWD board early this year.
This prompted Garcia to file another case against Osmeña and MCWD, this time for indirect contempt considering that the court has not ruled yet on who has authority to appoint MCWD members.
Avoidance
“Under such circumstances, inasmuch as a cause of action has already accrued in favor of one or the other party, there is nothing for the court to explain or clarify short
of a judgment or final order,” the three-page ruling said.
What the petitioner should do is file the appropriate civil action in order that the law may properly be applied, the ruling added.
But Capitol lawyers asked where they should file such a petition.
“We will study the matter, but technically, I will take a personal and professional position that, if you look between the lines, the judge shirked from his responsibility to resolve the issue by reason of simple technicality,” Capitol consultant Rory Jon Sepulveda said.
Martinquilla was also “disturbed” by the decision that to him seemed to avoid meeting the issue “head on.”
“Kung nay bakante mo-appoint na man sad na si Mayor Osmeña, so magkalalis lang gihapon. Nganong dili naman lang gyud resolbahon (if there is another vacancy, Mayor Osmeña will again appoint a member provoking another verbal exchange. So why not resolve the case)?” Sepulveda asked.
Both lawyers said they can cite “authorities and laws” that would support their stand that complaints for declaratory relief are proper even if there is already breach or even before a breach.
They mentioned Governor Garcia’s declaratory relief petition against the Commission on Audit (COA), which had argued that she cannot enter into contracts without prior authorization from the Cebu Provincial Board (PB).
COA made the comment when it audited the contracts for P102 million worth of projects that Garcia entered into in 2004 without PB resolutions authorizing her to do so.
Judge Geraldine Faith Econg ruled two years later that the governor does not have to go through the PB for contracts that already have appropriation ordinances.
Authority
The question on who has the legal personality to appoint members of the MCWD board cropped up in 2002 when MCWD filed a petition for declaratory relief against then
governor Pablo Garcia.
In 2005, RTC Judge Simeon Dumdum denied MCWD’s petition stating that it is not a party to the case because, whether or not it is the governor or the mayor who appoints members, it will not be affected.
The older Garcia had signified his interest then to take over the appointments, alleging that only 64.3 percent of Cebu City households were served by MCWD.
Section 3b of Presidential Decree 198 or Provincial Water Utilities Act of 1973 states:
“In the event that more than 75 percent of the total active water districts are within the boundary of any city or municipality, the appointing authority shall be the mayor of the 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.”
The younger Garcia is asserting now that only 61.28 percent of Cebu City households are MCWD consumers.
But Osmeña argued in his motion to dismiss Capitol’s petition for declaratory relief, that the figure is not constant considering the continued acceptance of new concessionaires and the expansion of coverage of the district.
“It therefore creates a constant friction over two local government units on who should exercise the authority of appointment should the figures of water consumers would swing either way,” he said.
“This is not conducive of harmonious intergovernmental relations, and should be nipped in the bud,” he added in his motion.
