G.R. No. 197146 - Dissenting Opinion




G.R. No. 197146, December 6, 2016, ♦ Decision, Bersamin, [J] ♦ Dissenting Opinion, Leonardo-De Castro, [J] ♦ Dissenting Opinion, Brion, [J] ♦ Concurring Opinion, Leonen, [J] EN BANC [ G.R. No. 197146. December 06, 2016 ] HON. MICHAEL L. RAMA, IN HIS CAPACITY AS MAYOR OF CEBU CITY, METROPOLITAN CEBU WATER DISTRICT (MCWD), REPRESENTED BY ITS GENERAL MANAGER, ARMANDO PAREDES; THE BOARD OF DIRECTORS OF MCWD, REPRESENTED BY ITS CHAIR, ELIGIO A. PACANA; JOEL MARI S. YU, IN HIS CAPACITY AS MEMBER OF THE MCWD BOARD; AND THE HONORABLE TOMAS R. OSMEÑA, IN HIS CAPACITY AS CONGRESSIONAL REPRESENTATIVE OF THE SOUTH DISTRICT, CEBU CITY, PETITIONERS, VS. HON. GILBERT P. MOISES, IN HIS CAPACITY AS PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH 18, CEBU CITY; AND HON. GWENDOLYN F. GARCIA, IN HER CAPACITY AS GOVERNOR OF THE PROVINCE OF CEBU, RESPONDENTS. DISSENTING OPINION BRION, J.: Background The constitutional challenge before us springs from a single issue: who-between the Governor of the Province of Cebu and the Mayor of Cebu City-has the power to appoint the Board of Directors of the Metro Cebu Water District (MCWD). The MCWD is a Local Water District (LWD) created under Presidential Decree No. 198, otherwise known as the Provincial Water Utilities Act of 1973. The MCWD services the cities of Cebu, Mandaue, Lapu-Lapu, and Talisay, and the municipalities of Liloan, Compostela, Consolacion, and Cordova - all geographically located within the Province of Cebu. Since MCWD began its operations in 1975,1 the Mayor of Cebu City has always appointed the members of the MCWD Board of Directors. On July 11, 2002, Cebu Provincial Governor Pablo L. Garcia (Gov. Pablo) wrote MCWD a letter asserting his authority under Section 3 (b) of PD 198 (hereafter referred to as "Section 3 (b)") to appoint the members of the MCWD Board:2 x x x x (b) Appointing authority. The person empowered to appoint the members of the board of Directors of a local water district, depending upon the geographic coverage and population make-up of the particular district. In the event that more than seventy-five percent of the total active water 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, as the case may be; otherwise, the appointing authority shall be the governor of the province within which the district is located. x x x (emphasis and omissions supplied) In his letter, Gov. Pablo pointed out that since 1996, MCWD's active waterworks connections in Cebu City had gone below Sec 3 (b)'s 75% threshold, and that no other city or municipality under MCWD had reached the same threshold.3 Hence, he (Gov. Pablo) and not the Mayor of Cebu City has the power to appoint members to the MCWD board. Meanwhile, the terms of office of two MCWD Directors expired. To avoid a vacuum in the MCWD Board, Gov. Pablo and Cebu Mayor Tomas Osmeña jointly appointed the new Directors, one of whom was Atty. Adelino Sitoy (Atty. Sitoy).4 In May 2007, Atty. Sitoy was elected as Mayor of Cordova, Cebu, and, thus, had to vacate his post in the MCWD Board. Prompted by the vacancy left by Atty. Sitoy, then Cebu Provincial Governor, Gwendolyn F. Garcia (Gov. Gwendolyn), filed before the Regional Trial Court (RTC) an Action for Declaratory Relief5 against Mayor Osmeña and the MCWD to seek an interpretation of Section 3(b).6 Notwithstanding the pendency of the Action for Declaratory Relief, Mayor Osmeña appointed respondent Joel Mari S. Yu (Yu) as Atty. Sitoy's replacement.7 Viewing Yu's appointment as a breach on Mayor Osmeña's part, the RTC dismissed the Action for Declaratory Relief on May 20, 2008.8 On June 13, 2009, Gov. Gwendolyn filed before the RTC a complaint to annul Yu's appointment and impleaded Yu, the MCWD, the MCWD Board of Directors, and the City Mayor (petitioners) as defendants. In their defense, the petitioners claimed that Section 3(b) violates the due process clause and the equal protection clause, and that Section 3(b) had been superseded by Constitutional provisions on local autonomy and the Local Government Code of 1991 (LGC). They also argue that the Governor has no right to appoint the MCWD's board of directors because: (i) the Province neither invested nor participated in creating the MCWD; (ii) Cebu City is a Highly Urbanized City and, therefore, independent from the Province of Cebu; and (iii) the majority of MCWD's active water connections are located in Cebu city. In its November 16, 2000 decision, the RTC annulled Yu's appointment, and observed that Section 3(b) lodges the appointing power to the Provincial Governor in the event that 75% of the LWD's waterworks do not fall within any city or municipality.9 Since Cebu City accounts for only 61.28% of MCWD's total waterworks, the Governor of Cebu must appoint the members of the MCWD Board. The RTC likewise ruled that Section 3(b) does not violate the Constitution and the LGC because the Governor's appointing power does not amount to an intrusion into the affairs, nor threaten the autonomy, of Cebu City.10 The RTC also ruled that whether the Governor contributed to MCWD's creation is immaterial because Section 3(b) does not impose such condition.11 Dissatisfied, the petitioners moved for reconsideration,12 but the RTC denied their motion on March 30, 2011.13 Thus, on June 23, 2011, the petitioners filed directly to this Court a petition for certiorari claiming that the RTC resorted to impermissible shortcuts in dealing with the constitutional issues raised.14 They insist that Section 3(b) is unconstitutional and antiquated, and pray for the Court to issue an Order "declaring" that the appointing power should be lodged with the Mayor of the city or municipality: (i) which participated in the formation of the water district15 and (ii) where a *majority* of the LWD's water service connections lie.16 The Ponencia and my Dissent The ponencia granted the petition, and ruled that the RTC committed grave abuse of discretion. According to the ponencia, while the RTC *"discharged" its "duty to determine and (to) decide the issue of constitutionality,"17 the RTC nevertheless "skirt[ed] the duty of judicial review"18 by improperly treating Section 3(b) as a "political question."19 As for the petitioners' constitutional challenge, the ponencia* ruled that Section 3(b) had been superseded by the LGC and the constitutional provisions on local autonomy which granted highly urbanized cities, such as Cebu City, independence from the province.20 The ponencia likewise ruled that Section 3(b) violates the due process and the equal protection clause. According to the ponencia, while Section 3(b) was initially valid when enacted in 1973, the intervening reclassification of Cebu City into a highly urbanized city, and the subsequent enactment of the 1991 Local Government Code rendered Section 3(b)'s continued application unreasonable and unfair.21 The ponencia noted that 61.28% of MCWD's water connections are located in Cebu City, whereas the province's component cities and municipalities only account for 16.92% of MCWD's water connections.22 Thus, to continuously uphold the validity of Section 3(b)-which grants the Governor the appointing power - is no longer germane to PD 198's objective, which is to provide adequate, quality, and reliable water services to local communities and their growing populations.23 I disagree with these positions; hence, this dissent. In my opinion, the present petition must be dismissed because: *first,* the petitioners disregarded the hierarchy of courts; *second,* the RTC did not commit grave abuse of discretion; *and third,* Section 3(b) does not violate the Constitution, nor was it superseded by the Local Government Code, or by Cebu City's reclassification as a highly urbanized city. I. The Petitioners disregarded the Hierarchy of Courts. Section 5(2)(a), Article VIII of the 1987 Constitution states: SECTION 5. The Supreme Court shall have the following powers: x x x x (2) *Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide,* final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (omissions and emphases supplied) x x x x Unquestionably, this Court has the original jurisdiction to issue writs of certiorari against final judgments resolving the constitutionality or validity of laws, including presidential decrees. However, this Court's certiorari jurisdiction is not exclusive. No less than the Constitution states that this Court's power to revise, reverse, or modify final judgments on certiorari is subject to what "the law or the Rules of Court may provide." Section 9 of Batas Pambansa 129, otherwise known as the Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7902,24 also grants the Court of Appeals (CA) original jurisdiction to issue writs of certiorari whether or not in aid of its appellate jurisdiction: Section 9. Jurisdiction. The Court of Appeals shall exercise: 1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction; x x x x Thus, this Court's original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus , quo warranto, habeas corpus, and injunction) is not exclusive. Its jurisdiction is concurrent with that of the CA and, in proper cases, with the RTCs.25 However, such concurrence of jurisdiction does not give a party the absolute freedom to file his petition with the court of his choice.26 Parties must observe the principle of judicial hierarchy of courts before they can seek relief directly from this Court. The principle of judicial hierarchy ensures that this Court remains a court of last resort. Unwarranted demands upon this Court's attention must be prevented so that the Court may devote its time to more pressing matters within its exclusive jurisdiction.27 Thus, petitions for the issuance of extraordinary writs against first level (inferior) courts should be filed with the RTC, and those against the RTC with the CA.28 In this case, since the petitioners insist on filing a Petition for Certiorari, they should have done so before the CA. Hence, I vote to dismiss the petition. Neither do I find anything special or important in this case to invoke the Court's original certiorari jurisdiction. Neither the petitioner nor the respondent allege that MCWD's operations has been, or will be paralyzed, simply because the appointing power has shifted from one government official to another. At any rate, what is clear to me is that MCWD's operations are not hampered by the existence of the constitutional issues presented before us, and that the CA is more than capable of resolving the present petition. II. The RTC did not commit grave abuse of discretion. In any case, I am of the view that the RTC did not commit grave abuse in the exercise of its discretion. Courts have the power to determine the constitutionality of statutes. This power, aptly named as the power of judicial review, is incidentally also a duty and a limitation. It is a *duty* because it proceeds from the Court's expanded power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.29 It is also a *limitation* because Courts can only exercise the power of judicial review if: (1) the case presents an actual case or justiciable controversy; (2) the constitutional question is ripe for adjudication; (3) the person challenging the act is a proper party; and (4) the issue of constitutionality was raised at the earliest opportunity and is the very litis mota of the case.30 Lower courts share this duty and limitation.31 Consequently, a refusal on the lower court's part to engage in judicial review, whenever warranted, is a virtual refusal to perform a duty32 correctible by a petition for certiorari. Certiorari, however, is not synonymous with appeal. Appeal is the proper remedy where the error is one of fact and/or of law.33 Certiorari, on the other hand, is a remedy designed to correct of errors of jurisdiction and not errors of judgment.34 As a rule, erroneous conclusions are correctible by way appeal and not by certiorari. Thus, certiorari cannot be used to review a decision's wisdom or legal soundness.35 However, mere abuse of discretion still does not merit the issuance of a writ of certiorari. The petitioner must amply demonstrate grave abuse of discretion since the jurisdiction of the court, no less, will be affected.36 Jurisprudence37 has defined grave abuse of discretion in this wise: Grave abuse of discretion is defined as capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. Thus, to determine whether the RTC committed grave abuse of discretion, the Court must go beyond the present petition, and determine whether the RTC resolved the constitutional issues framed by the parties before it. In other words, we should determine how the petitioners attacked Section 3(b)'s constitutionality before the RTC, and from this prism, determine if the RTC's resolution of the constitutional questions, or the lack thereof, consists of grave abuse of discretion. The petitioners' arguments before the RTC The petitioners argued before the RTC that Section 3(b) is unconstitutional for violating substantive due process and the equal protection clause. The petitioners' substantive due process argument is based on two points: First, the power to appoint the MCWD Board is Cebu City's proprietary function because most of MCWD's waterworks originated from the Osmeña Waterworks System (OWS) - a water district organized and owned by the City of Cebu.38 Thus, they argue that Section 3(b) violates substantive due process because it allows the Province of Cebu-an LGU which did not participate in MCWD's creation, and whose component cities and municipalities have a minority of MCWD's water connections-to deprive Cebu City of its proprietary right; and Second, Section 3(b)'s 75% threshold is arbitrary.39 To stress their point, the petitioners asked the RTC why PD 198 set the threshold at 75%, and not "80%, 85%, 90%," "30% or 40%."40 They blame the Section 3(b)'s numerical sloppiness on the martial law days, when anything signed by the President became law.41 *As for their equal protection argument,* the petitioners claim that Cebu City is a highly urbanized city and is therefore, a co-equal of the Province of Cebu. Thus, the Province of Cebu has no right to interfere with, or exercise its power of supervision over Cebu City insofar as the MCWD is concerned.42 The RTC's ruling on the Constitutional Issues. A reading of the RTC's eight-page decision43 shows that the presiding judge had considered all of the parties' arguments, and limited the issues into three: a) Who has the authority to appoint the members of the Board of Directors of the [MCWD] under [PD 198; b) The constitutionality of Section 3(b) of PD 198; and c) Whether or not the Province of Cebu is a participant in the operation, management and organization of MCWD.44 As I discussed at the beginning of this dissent, the RTC resolved the first issue. As for the second and third issues, the presiding judge wrote: As to the constitutionality of the questioned provision, the Court finds that Section 3, of PD 198 does not violate the Constitution or the Local Government Code. Vesting the authority in the governor to appoint a member of the board of directors of a water district is not intruding into the affairs of the Highly Urbanized Cities and component cities which comprise the district and neither is it a threat to their autonomy. It does not interfere with their powers and functions and neither can it be considered an exercise of the provincial government's supervisory powers. At most it is simply giving the authority to appoint to the head of the government unit (the governor) where all the members of the water district are geographically located, and only when none of these cities and municipalities has the required 75% of the active water connections. Nevertheless, the issue is not whether the governor took part in organizing the water district or has contributed to its formation, but that by law, she has been made the appointing authority even if she has no participation or involvement in the cooperative effort of the members of the water district. This may not be the most expedient and appropriate solution, but still, it is not illegal. As to why this is so is a question only our lawmakers could answer. (emphasis supplied). While the presiding judge had devoted only one paragraph to address the second and third issues, he emphasized three observations: *first,* Section 3(b) is not an intrusion into Cebu City's autonomy; *second,* the issue is not whether the governor participated in organizing the water district, but whether the law granted him the power to appoint the LWD's board of directors; *and third,* granting the power appoint to the governor may not be the most appropriate solution but it is not illegal. I find that the above observations satisfactorily addressed the petitioners' constitutional challenge. In fact, no less than the petitioners themselves admitted in their December 30, 2010 motion for reconsideration before the RTC that they (petitioners) "fully [appreciate] the extensive effort made by the Court in arriving at its conclusions for its decision."45 If there is any flaw in the RTC's decision at all, it would be the lack of a more detailed discussion. Despite this flaw, however, I disagree with the ponencia's conclusion that the RTC gravely abused its discretion because it improperly relied on the political question doctrine to skirt the duty of judicial review.46 To my mind, albeit not exhaustively, the RTC exercised its power of judicial review and, therefore, did not commit grave abuse of discretion. The November 16, 2010 decision does not patently show that the RTC *arbitrarily, capriciously, or whimsically* withheld the power of judicial review. On the contrary, as the ponencia itself noted, "the RTC, which indisputably had the power and the duty to determine and decide the issue of constitutionality of Section 3(b) of P.D. 198, discharged its duty."47 Admittedly, the presiding judge's writing style which did not address the constitutional issues point-by-point may have resulted in a poorly written draft. Still, the draft's poor quality does not amount to grave abuse of discretion in the absence of arbitrariness or personal hostility on the part of the trial judge. This Court must not allow litigants to directly resort to certiorari petitions simply because they think the presiding judge lacked the skill to close out all arguments presented before the trial court. In any case, I find that the petitioners not only made the mistake of filing their petition for certiorari with the wrong court, they also made the mistake of filing with this Court a wrong petition. Notably, appeals from the RTC, in the exercise of its original jurisdiction, where only questions of law are raised or are involved, are filed directly with this Court via a Petition for Review on Certiorari under Rule 45 of the Rules of Court.48 Thus, had petitioners simply stuck with the constitutional issues instead of filing a baseless petition for certiorari, they could have appealed directly to the Court on pure questions of law. This, in my view, is the petitioners' more plain, speedy, and adequate remedy. III. Section 3(b) is Neither Unconstitutional Nor Antiquated. Procedural niceties aside, I still vote to dismiss the petition on the merits. A close analysis of the petitioners' due process position shows that they do not have the requisite standing to question Section 3(b)'s validity based on the due process clause. Neither do I agree with the ponencia that Section 3(b) is unconstitutional for violating the equal protection clause, or that it has become antiquated with the advent of the Local Government Code. Petitioners have no Locus Standi. Section 1, Article III of the 1987 Constitution states that "no person shall be deprived of life, liberty or property without due process of law." Due process consists of two broad aspects: the procedural and the substantive.49 Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property.50 Procedural due process concerns itself with the established process the government must adhere to before it intrudes into the private sphere.51 Succinctly, procedural due process is the person's "right to be heard." If due process were confined solely to its procedural aspects, the government can resort to arbitrary action provided it follows the proper formalities.52 Substantive due process completes the protection by inquiring whether the government has sufficient justification to deprive a person of life, liberty, or property.53 Whether in its procedural or substantive aspect, the due process clause is mainly concerned with governmental policies that deprive a person's life, liberty, and property.54 Incidentally, one of the requisites of judicial review is that the person who challenges a statute's constitutionality must have locus standi. The rationale for the requirement of locus standi is by no means trifle. Not only does it assure the vigorous adversarial presentation of the case; more importantly, it must suffice to warrant the Judiciary's overruling the determination of a coordinate, democratically elected organ of government.55 To have locus standi, one must show that he has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or the act complained of.56 In other words, locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.57 The acceptable degree of standing, however, varies between private suits, on one hand, and public suits, on the other. In public suits, the plaintiff who asserts a "public right" in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a "citizen," or "taxpayer."58 I wish to emphasize, however, that insofar as the due process challenge is concerned, the petitioners are not suing on behalf of their constituents. Instead, the City of Cebu questions Section 3(b)'s arbitrariness from a private standpoint. To repeat, the petitioner Cebu City claims that the operation of LWDs, such as the MCWD, is a patrimonial property of the local government unit it serves.59 In support of this view, the City points out that MCWD's assets originated from the Osmeña Waterworks System (OWS) - a waterworks system previously operated and maintained by the City of Cebu. They argue that since the Province of Cebu never invested in the OWS,60 or in the MCWD, the Governor has no right to appoint the members of the MCWD Board. I disagree with this view as the City of Cebu has no proprietary right over MCWD's waterworks. The History of the City of Cebu, PD 198 and the MCWD To determine whether the petitioners' argument has merit, we must briefly trace the history of the City of Cebu, PD 198, and the MCWD. In the early part of the 20th century, the Municipality of Cebu's water supply was provided and maintained by the Osmeña Waterworks System (OWS).61 In 1934,62 Commonwealth Act No. 58 transformed the municipality of Cebu into a city. In 1964, the City's Revised Charter63 placed the exclusive ownership, control, direction and supervision of the OWS to the City of Cebu.64 Acknowledging the lack of water utilities and the poor water quality in provincial areas,65 President Ferdinand Marcos issued PD 198 on May 25, 1973. PD 198 seeks to provide quality, adequately pressured and reliable water service by encouraging LGUs to form local water districts, and to transfer thereto existing water supply and wastewater disposal facilities on a local option basis.66 In turn, the National Government promises LGUs support in the areas of technical advisory, service, and financing.67 To create LWDs, PD 198 authorized LGUs to form water districts by enacting Resolutions for the purpose, and by filing copy/ies of the resolution/s to the Local Water Utilities Administration (LWUA) - an office attached to the office of the president.68 Once formed, the districts shall become government-owned and - controlled corporations (GOCC)69 and will NO longer be under the jurisdiction o(any political subdivision.70 Under these terms, the City of Cebu, through the then mayor Engr. Eulogio Borres, approved on May 9, 1974 Resolution No. 873 creating the MCWD.71 Thereafter, *the City of Cebu transferred all of OWS' assets* and facilities (approximately worth P25.4 million Pesos72) to MCWD.73 Soon after, the City Councils of Mandaue and Lapu-Lapu, and the municipal governments of Compostela, Consolacion, and Cordova, all located within the Province of Cebu, approved concurring resolutions turning over their respective waterworks to MCWD.74 Section 3(b) does not deprive The City of Cebu of any proprietary right. Based on the above facts, I see no merit in Cebu City's claim that it retains proprietary rights over MCWD's waterworks. The MCWD is a separate and distinct entity from the LGUs it serves, including the City of Cebu. Neither can the City of Cebu claim that it retains ownership, or that it has a better right, over MCWD's waterworks than any other LGU. That the City of Cebu had transferred all of OWS' waterworks to the MCWD, to my mind, is beyond question. Without any property right over MCWD's waterworks, the City of Cebu cannot claim that Section 3(b) operates to deprive it of any property right without due process of law. Accordingly, the City of Cebu lacks the requisite standing to question Section 3(b)'s constitutionality under the due process clause.75 In these lights, I cannot but disagree with the ponencia's conclusion that since "it had always been the City Mayor of the City of Cebu who had appointed the members of the MCWD Board of Directors regardless of the percentage of the water subscribers, [the ponencia's] pronouncement herein rests on firm ground."76 Nothing in PD 198 implies that the power to appoint the members of the LWD's Board of Directors is a right that can be acquired or vested thru time. On the contrary, and as I will discuss further, PD 198 designed the appointing power to shift depending on the circumstances. Section 3(b) does not violate the equal protection clause. The equal protection clause guarantees the legal equality of all persons before the law.77 The equality guaranteed, however, is not a disembodied equality, and does not deny the State the power to recognize and act upon factual differences between individuals and classes.78 Accordingly, the equal protection of the law is not violated by a legislation based on reasonable classification. To be reasonable, the classification: (1) must rest on substantial distinctions; (2) must be germane to the law's purpose; (3) must not be limited to existing conditions only; and (4) must equally apply to all members of the same class.79 The City of Cebu claims that Section 3(b) violates the equal protection clause because it gives the province the unreasonable and unwarranted benefit of appointing the MCWD's Board of Directors. The ponencia agreed with the petitioners, and ruled that while the substantial distinctions espoused by Section 3(b) were germane to PD 198's purpose at the time of its enactment, the City of Cebu's intervening reclassification into a Highly Urbanized City and the subsequent enactment of the Local Government Code rendered Section 3(b)'s continued application unreasonable.80 Hence, the ponencia opines that Section 3(b) is invalid because it: (i) ignores the province's lack of participation in creating the MCWD; (ii) fails to consider the needs of the majority; (iii) runs counter to PD 198's objective to improve the water service connection while keeping up with the needs of the growing population.81 I again disagree with this position.1aшphi1 To my mind, the ponencia missed out on one of PD 198's main purposes. PD 198's purpose is to expand the LWD's services without being hampered by any LGU. One of PD 198's purposes is to extend reliable and economically viable and sound water supply and wastewater disposal systems82 to meet the need of communities, including those who receive no piped water service whatsoever.83 To enable LWDs to expand its services, PD 198 allows LWDs to Annex and De-Annex (and whenever necessary exclude) territories.84 To this end, LWDs can enter into contracts,85 acquire and construct waterworks,86 and exercise the power of eminent domain.87 To reiterate, LWDs are GOCCs that are independent from any political subdivision. *All powers, privileges, and duties of the LWD are exercised and performed by and through the LWD's board of directors,88 and not by any LGU official.* Accordingly, neither the LGUs, which created the LWD, nor the LGU official, to whom the appointing power resides, can countermand the LWD should it decide to expand its services, regardless if the expansion dilutes or increases the city's or municipality's waterworks connection below or above the 75% threshold. In fact, PD 198 expressly prohibits LGUs from "dissolving, altering or affecting" the LWDs they created.89 PD 198's purpose in this aspect is not difficult to appreciate. By ensuring their independence, LWDs are freed from the political strings of the LGUs that created them, thus enabling LWDs to expand and serve the country's increasing populace. Section 3(b) contains a Reasonable classification. With PD 198's purpose in mind, I find that Section 3(b) contains a reasonable classification. One substantial distinction between provinces, on one hand, and cities (whether component, highly urbanized, or independent) and municipalities, on the other, is the land areas they cover. Under the Local Government Code, a province must have a contiguous territory of at least two thousand (2,000) square kilometers.90 On the other hand, a city or a municipality must have a contiguous territory of at least one hundred (100), and fifty (50) square kilometers, respectively.91 By giving the Governor the power to appoint, Section 3(b) entrusts the appointing power to the highest local official who oversees the largest geography where the LWD may expand its operations. However, Section 3(b) also realizes that confining the appointing power to the Governor loses its relevance where the LWD operates almost entirely within a single city or municipality. Thus, as an alternative, Section 3(b) lodges the appointing power with the Mayor of the City or Municipality where 75% or 3/4 of the LWDs water connections are located. Neither was the 75% threshold created to favor Governors, as specific class, over Mayors; nor is it limited to conditions existing at the time PD 198 was enacted, or at the time an LWD is created. *The phrase "In the event* that more than seventy-five percent of the total active water service connections of a local water district are within the boundary of any city or municipality" *signifies that the appointing power may shift at any time depending on the circumstances.* To illustrate this dynamic, while the province of Cebu now enjoys the appointing power, a future increase in MCWD's water connections within Cebu City may re-shift the appointing power to the Mayor. Finally, do I not see anything wrong in applying the 75% threshold to all cities, regardless of their respective status as a component, independent component or highly urbanized. Ironically, what would consist of discrimination is to treat highly urbanized and independent component cities differently from component cities on the supposed reason that the former enjoys autonomy over its territory. *The authority to appoint, as I will discuss below, does not equate to control over the other LGUs serviced by an LWD.* Section 3(b) is not superseded by the Local Government Code. The main flaw in the petitioners' argument and corollary, in the ponencia's conclusions, is the misconception that PD 198 grants the appointing power control over LWDs and, therefore, violates the constitutional and statutory provisions on local autonomy. This is simply not the case. All laws including Presidential Decrees issued by President Marcos enjoy the presumption of constitutionality. Both the 1986 Freedom92 and the 198793 Constitutions recognize the validity of PDs unless and until they are amended, repealed, and revoked. Hand in hand with the presumption of validity, this Court must first attempt to harmonize Section 3(b) with other laws on the same subject matter so as to form a complete, coherent, and intelligible system.94 In other words, the Court must exercise every effort to harmonize seemingly conflicting laws. It is only when harmonization is impossible that the Court must choose which law to uphold. As I discussed above, the appointing power has NO control over the LWD. *Since the appointing power has no control over the LWD, Section 3(b) does not create a link between the LGU where the appointing power sits, and the LGUs served by the LWD.* As applied to this case, reposing the appointing authority on the Governor of Cebu *does not* grant the provincial government control or supervision over Cebu City or over the other LGUs where the LWD operates. In the same way, the Mayor of Cebu - during the period he/she exercised the appointing power never exercised control or supervision over the other LGUs served by MCWD, i.e., Mandaue City, Lapu-Lapu City, Talisay City, and the municipalities of Liloan, Compostela, Consolacion and Cordova. In short, the shift of the appointing power to the Governor does not infringe on the autonomy that Cebu City enjoys as a highly urbanized city. Neither do I subscribe to the view that the power to appoint is a form of indirect control over the appointee. In this jurisdiction, it is not a novel setup to grant the appointing authority to a person who, after making the appointment, renounces complete control over the appointee. For instance, while the President has the power to appoint the commissioners of the Constitutional Commissions,95 judges,96 and even the members of this Court,97 the President does not exercise any degree of control over the appointee. While the appointing power may enjoy his appointee's loyalty, such circumstance does not reduce the latter's independence; loyalty and lack of independence may amount to an ethically and legally objectionable situation. In these lights, I cannot but disagree with the ponencia's conclusion that Section 3(b) was superseded by the constitutional provisions on local autonomy, as implemented by the Local Government Code.98 At any rate, I find nothing irreconcilable between Section 3(b) and the Local Government Code. On the contrary, a reading of the law shows that Congress created the Local Government Code with PD 198 in mind. While the Local Government Code mandates and empowers the Sangguniang Panlalawigan,99 Panlunsod100 and Bayan101 "to enact ordinances, approve resolutions, and appropriate funds" for "the establishment, operation, maintenance, and repair of an efficient waterworks system," the Local Government Code explicitly states the LGU's can only exercise such power "subject to existing laws." Indisputably, one of these existing laws is PD 198. Following the principle of harmonization of laws, the LWDs created under PD 198 - such as the MCWD - are still governed by PD 198 as a special law. Accordingly, these LWDs remain independent from the political subdivisions they serve, and their subsisting relations with the proper appointing official, as provided for in PD 198, must be respected. The Court should not resort to judicial legislation. As a final note, I wish to address the petitioners' prayer for this Court to "declare" that the appointing power should be lodged with the Mayor of the city or municipality which participated in the LWD's formation and where a majority of the LWD's water connections lie.102 Citing Judge Learned Hand, the petitioners argue that while Courts cannot engage in judicial legislation, they must fill the gaps in the law.103 The petitioners argue that by making such declaration, the Court will not be creating a policy but will merely enforce the "constitutional doctrine of majority rule."104 I have serious difficulty in accepting this argument. First and foremost, this Court cannot resort to judicial legislation even if it declares a law unconstitutional. Second, the petitioners are mistaken in implying that legislative fiat will result if this Court declares Section 3(b) void. Section 10 of PD 198 empowers the majority of the incumbent directors to fill vacancies in the board should the appointing power fail to make an appointment.105 Lastly, there is simply no constitutional provision or principle that provides for the so-called doctrine of majority rule. In fact, modern legal principles (such as the social justice principle) focus less on numerical superiority and, instead, ensures that the less privileged have more in law. For all these reasons, I vote to deny the petition. Footnotes 1 Executive Summary of COA 2014 Report on MCWD. http://www.coa.gov.ph/phocadownloadpap/userupload/annual_audit_report/GOCCs/2014/COA-Regional-Office/Region-VII/MetropolitanCebuWD-R7_ES2014.pdf, last accessed December 6, 2016. 2 Rollo, p. 151. 3 Page 3 of the Ponencia. 4 Id. 5 Id. This was the Second Action for Declaratory Relief filed. The first was filed by MCWD after it received Governor Pablo Garcia's letter. The case was dismissed without pronouncement on Section 3(b)'s constitutionality. 6 Rollo, p. 152. 7 On February 22, 2008; id. at 96. 8 Id. at 153. 9 Id. at 74. 10 Id. at 79. 11 Id. 12 Id. at 189. 13 Id. at 6. 14 Id. at 26. 15 Id. at 65. 16 Id. 17 Page 8 of the Ponencia. 18 Id. at 10. 19 Id. at 9. 20 Id. at 12. 21 Id. at 17. 22 Id. 23 Id. at 17-18. 24 An Act Expanding The Jurisdiction Of The Court Of Appeals, Amending For The Purpose Section Nine Of Batas Pambansa Blg. 129, As Amended, Known As The Judiciary Reorganization Act Of 1980. 25 Cruz v. Gingoyon, G.R. No. 170404, September 28, 2011, 554 SCRA 50, citing Ouano v. PGTT International Investment Corp., 434 Phil 28, 34 (2002). 26 Id., Cruz v. Gingoyon. 27 Id. 28 Id. 29 SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. x x x x Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. 30 Funa v. Villar, G.R. No. 192791, April 24, 2012, 670 SCRA 579, 593. According to Black's Law Dictionary (Ninth Edition), lis motais "means [a] dispute that has begun and later forms the basis of a lawsuit." 31 This Court's power to "review, revise, reverse, modify or affirm on appeal or certiorari" final judgments and orders of lower courts in cases involving the constitutionality of statutes means that the resolution of such cases may be made in the first instance by the lower courts. See Ynot v. Intermediate Appellate Court, G.R. No. 74457, March 20, 1987, 148 SCRA 659, 660. 32 Grave abuse of discretion is defined as capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility. Marcelo G. Ganaden, et al. v. The Hon. Court of Appeals, et al., G.R. Nos. 170500 and 170510-11, June 1, 2011, sc.judiciary.gov.ph. 33 Vios v. Pantangco, Jr., G.R. No. 163103, February 6, 2009, 578 SCRA 129. 34 Id. 35 Id. 36 People v. Nazareno, G.R. No. 168982, August 5, 2009, 595 SCRA 438, 452-453. 37 Supra note 31. 38 The petitioners argued in the court below that [MCWD] is a government corporation, whose existence emanates from the patrimony of local governments, particularly Cebu City's Osmeña Waterworks, which maintains and services the majority of water consumers within the district. They are paid only through an annual in-lieu shares with restrictions; thus the exercise of the authority of appointment to the governing body of MCWD is not a political power but a proprietary right. Rollo p. 122. 39 Id. at 184. 40 Id. 41 Id. 42 Id. at 121. 43 Id. at 73-80. 44 Id. at 74. 45 Id. at 189. 46 As such, the political question doctrine was improperly relied upon by the RTC to skirt the duty of judicial review. Page 10 of the Ponencia. 47 Id. at 8. 48 Section 2(c), Rule 41 of the Rules of Court. 49 Santiago, Miriam, Constitutional Law, Volume 2, Bill of Rights, 2002 ed., p. 227. 50 Lopez v. Director of Lands, 47 Phil. 23, 32 (1924). 51 White Light Corporation v. the City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416. 52 Id. at 419. 53 Id.; See City of Manila v. Hon. Laguio, Jr., G.R. No. 118127, April 12, 2005, 455 SCRA 308 citing CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523 (2002). 54 Supra note 49. 55 Galicto v. Aquino, III, G.R. No. 193978, February 28, 2012, 667 SCRA 150, 172. 56 Anak Mindanao Party-List Group v. The Executive Secretary, G.R. No. 166052, 531 SCRA 583, citing Agan, Jr. v. Phil. International Air Terminals Co., Inc., 450 Phil 744 (2003). 57 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 893 (2003). 58 LAMP v. Secretary of DBM, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 375, citing David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489, and 171424, May 3, 2006, 489 SCRA 160. 59 Rollo, p. 54. 60 Id. at 11. 61 Id. at 73. 62 https://www.cebucity.gov.ph/index.php/home-new/cebu-city-charter, last accessed December 6, 2016. 63 Republic Act No. 3857. 64 Id., Section 31(30) To provide for the establishment and maintenance and regulate the use of public drains, sewers, latrines, and cesspools; to regulate the construction and use of private sewers, drains, cesspools, water closets and privies; to provide for the establishment and maintenance of waterworks, for the purpose of supplying water to the inhabitants of the city, and for the purification of the source of water supply and places through which the same passes, and to regulate the consumption and use of the water; to fix and provide for the collection of rents therefore, and to regulate the construction, repair, and use of hydrants, pumps, cisterns and reservoirs. Any and all waterworks systems, including the Osmeña Waterworks System, provided for or undertaken by the city government shall exclusively belong to it, such that the city shall have the exclusive control, direction and supervision over the same, and all laws and executive orders and circulars issued by the Office of the President making reference to the ownership, possession, control and operation of waterworks and sewers shall not be applicable to the City of Cebu. 65 PD 198 "whereas" clauses of the law explain the need to establish local water districts. 66 Section 2, Title I, Presidential Decree No. 198. 67 WHEREAS, local water utilities should be locally-controlled and managed, as well as have support on the national level in the area of technical advisory services and financing; Presidential Decree No. 198. 68 Section 49, PD 198, as amended by Section 21, PD 768. 69 The PD originally reads: "For purposes of this Act, a district shall be considered a quasi-public corporation x x x." However, in the 1991 case of Davao City Water District et al. vs. CSC et al., the Supreme Court ruled that LWUs are government-owned and -controlled corporations. 70 Section 6, PD 198. 71 Executive Summary of COA 2014 Report on MCWD http://www.coa.gov.ph/phocadownloadpap/userupload/annual_audit_report/GOCCs/2014/COA-RegionalOffice/Region-VII/MetropolitanCebuWD-R7_ES2014.pdf, last accessed December 6, 2016. 71 https://www.cebucity.gov.ph/index.php/home-new/cebu-city-charter, last accessed December 6, 2016. 72 Executive Summary of COA 2014 Report on MCWD. http://www.coa.gov.ph/phocadownloadpap/userupload/annual_audit_report/GOCCs/2014/COA-Regional-Office/Region-VII/MetropolitanCebuWD-R7_ES2014.pdf, last accessed December 6, 2016. 73 Rollo, p. 129. 74 Id. at 11 and 134-141. 75 Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. This requirement of standing relates to the constitutional mandate that this Court settle only actual cases or controversies. Supra note 55. 76 See pp. 15-16, Ponencia. 77 Bernas, Joaquin, the 1987 Constitution of the Republic of the Philippines, a commentary. 2009 ed., p. 139, citing II Schwartz, The Right of the Person, 487-8 (1968). 78 Bernas, Joaquin, the 1987 Constitution of the Republic of the Philippines, a commentary. 2009 ed., p. 139. 79 People v. Cayat, 68 Phil. 12, 83, 90 (1951). 80 Page 17 of the Ponencia. 81 Id. 82 See Section 2, Title I, PD 198. 83 WHEREAS, existing domestic water utilities are not meeting the needs of the communities they serve; water quality is unsatisfactory; pressure is inadequate; and reliability of service is poor; in fact, many persons receive no piped water service whatsoever; 84 By filing the appropriate resolutions to, and after hearing conducted by, the LWUA; See Sections 42 and 43 of the PD 198, as amended by PD 768. 85 Section 31 of PD 198. 86 Id., Section 26. 87 Id., Section 25, as amended by Section 4, PD 1479. 88 Section 17, of PD 198. 89 Section 6, PD 198 states that "Nothing in the resolution of formation shall state or infer that the local legislative body has the power to dissolve, alter or affect the district beyond that specifically provided for in this Act." 90 Section 461 of the Local Government Code. 91 Id., Sections 450 and 442, respectively. 92 Section 1, Article IV of the Freedom Constitution states that "All existing laws, decrees, executive orders, proclamations, letters of instruction, implementing rules and regulations, and other executive issuances not inconsistent with this Proclamation shall remain operative until amended, modified, or repealed by the President or the regular legislative body to be established under a New Constitution." 93 Section 3, Article XVIII of the 1987 Constitution states that "All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked." 94 Dreamwork Construction v. Janiola, G.R. No. 184861, June 30, 2009, 591 SCRA 466, citing R.E. Agpalo, STATUTORY CONSTRUCTION 97 (4th ed., 1998), pp. 269-270. 95 Section B, 1(2); C, 1(2); D, 1(2), Article IX, Constitution. 96 Section 9, Article VIII, Constitution. 97 Id. 98 Page 15 of the Ponencia. 99 Section 468. Powers, Duties, Functions and Compensation. (a) The sangguniang panlalawigan, as the legislative body of the province, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the province and its inhabitants x x x and shall: x x x x (4) Approve ordinances which shall ensure the efficient and effective delivery of basic services and facilities as provided for under Section 17 of this Code, and, in addition to said services and facilities, shall: x x x x (ii) Subject to applicable laws, facilitate or provide for the establishment and maintenance of waterworks system or district waterworks for supplying water to inhabitants of component cities and municipalities; x x x (omission and emphasis supplied) 100 Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants x x x and shall: x x x x (5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall: x x x x (vii) Subject to existing laws, establish and provide for the maintenance, repair and operation of an efficient waterworks system to supply water for the inhabitants and to purify the source of the water supply; x x x. 101 Section 447. Powers, Duties, Functions and Compensation. - (a) The sangguniang bayan, as the legislative body of the municipality, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the municipality and its inhabitants x x x and shall: x x x x (5) Approve ordinances which shall ensure the efficient and effective delivery of the basic services and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities, shall: x x x x (vii) Subject to existing laws, provide for the establishment, operation, maintenance, and repair of an efficient waterworks system to supply water for the inhabitants; x x x. (omission and emphasis supplied) 102 Rollo, p. 65. 103 Id. at 47. 104 Id. 105 Section 10. Nominations. - On or before October 1 of each even-numbered year, the secretary of the district shall conduct each known organization, association, or institution being represented by the director whose term will expire on December 31 and solicit nominations from these organizations to fill the position for the ensuring term. One nomination may be submitted in writing by each such organization to the secretary of the district on or before November 1 of such year: This list of nominees shall be transmitted by the Secretary of the district to the office of the appointing authority on or before November 15 of such year and he shall make his appointment from the list submitted on or before December 15. In the event the appointing authority fails to make his appointments on or before December 15, selection shall be made from said list of nominees by majority vote of the seated directors of the district constituting a quorum. x x x. (emphasis and omission supplied) The Lawphil Project - Arellano Law Foundation