[UPDATED WITH MORE DETAILS] THE Office of the Cebu City Prosecutor (OCCP) has dismissed the usurpation of authority case against Metropolitan Cebu Water District (MCWD) chairman Jose Daluz III and two others “due to lack of merit.”
This was what Daluz said in a press conference on Monday, April 15, 2024.
But in fact, the complaint was dismissed without prejudice on the ground of prematurity, without delving on the merits of whether usurpation of authority was present, because the OCCP said there were issues that it believed were beyond its jurisdiction to rule.
“We just received the order of the fiscal resolution (that) this was dismissed for lack of merit,” Daluz said in the press conference.
On January 31, 2024, MCWD board members Earl Bonachita and Danilo Ortiz charged Daluz, Miguelito Pato and Jodelyn May Seno with usurpation of authority for allegedly continuing to conduct business despite being removed from their positions.
On October 31, 2023, Cebu City Mayor Michael Rama had replaced Daluz, Pato and Seno with Melquiades Feliciano, Nelson Yuvallos and Aristotle Batuhan.
But on October 17, 2023, the Local Water Utilities Administration (LWUA), in a letter, had said that “local executives have no authority to remove the chairperson and members of the board of directors of a water district” after the Cebu City Legal Office requested a certificate of no objection to its recommendation to terminate the three members of the MCWD board.
Daluz’s camp used the letter to legitimize the Daluz-led board.
Yet, the City Government argued that they were legally fired, saying the power of the mayor to appoint MCWD board members also carries with it the power to remove them.
Weighing the evidence presented by both parties, the OCCP found the need to interpret relevant provisions of Presidential Decree (PD) 198, the law that governs the creation of a water district, before Daluz and the two others may be held criminally liable for usurpation of authority.
According to the Resolution dated March 7, 2024 by the OCCP, “Wherefore, for the reasons above-mentioned, without delving on the merits whether or not Usurpation of Authority or Official Functions under Article 177 of the Revised Penal Code is present, as it is premature at this stage, the two (2) complaints against the respondents, Jose C. Daluz III, Miguelito G. Pato and Jodelyn May G. Seno, are dismissed, without prejudice.”
Not its turf
The OCCP said it believed that its office was not in the position to shed light on the provisions of PD 198, particularly on the power to remove board members.
The OCCP said disputes between government agencies and offices shall be administratively settled or adjudicated whether by the secretary of Justice, solicitor general, or the government corporate counsel under PD 242, which prescribes “the procedure for administrative settlement or adjudication of disputes, claims and controversies between or among government offices, agencies and instrumentalities, including government-owned or controlled corporations, and for other purposes.”
The OCCP also believed that both parties have opposing stances on some provisions of PD 198, which became the source of their squabble on who composes the duly constituted members of the board of directors.
Citing Section 3 (b) of PD 198, the OCCP said it believed that the power to appoint was expressly established.
“In the event that more than 75 percent of the total active service connections of a local water district are within the boundary of any city or municipality, the appointing authority shall be the mayor of that city or municipality,” the provision states.
However, as to who has the power to remove, PD 198 did not expressly state where it belongs, the OCCP said.
“Directors may be removed for just cause only, subject to review and approval of the administration,” states Section 11 of PD 198.
The word “administration” refers to the LWUA, the OCCP said.
The OCCP said the absence of an explicit provision regarding who has the power to remove the members of the board has been the crux of the controversy between the opposing camps. (AML)
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Editor's Note: This article was updated with more details added (third and 11th paragraphs) to clarify that the case was dismissed "without prejudice on the ground of prematurity" as pointed out by Atty. Luis Vera Cruz Jr. in a letter to SunStar on April 18, 2024, and not "due to lack of merit" as announced by Daluz.