CAPITOL will not hesitate to elevate its motion to the Supreme Court (SC) if the Regional Trial Court (RTC) will reject anew its appeal relative to the controversial appointment the Metropolitan Cebu Water District (MCWD) board of directors.
If he has his way, lawyer Rory Jon Sepulveda, Capitol consultant on information, also said he will file a declaratory of nullity seeking to “directly attack” the appointment of Joel Mari Yu as member of the MCWD board.
Discussion
However, Sepulveda said that such matter is still to be discussed with Provincial Legal Office chief lawyer Marino Martinquilla.
Sepulveda arrived at such legal option after sensing that RTC Judge Bienvenido Saniel Jr. of Branch 20, who had dismissed the complaint, “is not inclined to rule on the issue.”
To recall, Cebu Gov. Gwendolyn Garcia filed the petition for declaratory relief in 2006 claiming that Cebu City Mayor Tomas 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.
The mayor went on to appoint Yu, head of the Cebu Investment Promotions Center, as member of the MCWD board.
Garcia filed 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.
Opinion
RTC Judge Bienvenido Saniel Jr. of Branch 20, however, threw out the case, saying that 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.”
The Capitol consultant slammed Judge Saniel for junking the case based only on technicality.
“Now that there is an appointment, the proper remedy is to declare null and void (the appointment) of Yu and make (Yu), MCWD board and (Cebu City Mayor) Tomas (Osmeña) as respondents,” Sepulveda told reporters.
Sepulveda said the Provincial Government actually filed a declaratory relief before the appointment Yu as member of the MCWD board.
Relief
However, Sepulveda said that Osmena still appointed Yu as member of the water district board pending the resolution of the declaratory relief.
Under the law, Sepulveda said that Judge Saniel should have treated their motion as ordinary action instead of dismissing it based on a simple technicality.
He maintained that the power to appoint members of the MCWD board still belongs to the governor. (GMD)
