S-2 Republic of the Philippines "THE" Law Firm Manila, Metro Manila, Philippines August 31, 2013

The Law Firm Senior Associate "THE" Law Firm 28th Building, 4th St., Mendiola, Manila

Dear Mr. Emilio Revilla This is in reference to your request for an opinion regarding the "Possible Reversal by the MMDA of their actions on the Southwestern Interim Public Terminal (SWIPT)" which was enacted last August 6, 2013. It appears that it is possible for the MMDA to reverse their actions.

I.

Unconstitutionality of the Acts

a. Impairment of Obligations and Contracts A franchise is a form of a contract. As a contract, in its nature, It shall be obligatory, in whatever form they may have been entered into, provided all the essential requisites for their validity are present.1

The Metropolitan Manila Development Authority (MMDA for brevity) implemented the SWIPT which bans provincial buses to enter the city proper and placing a terminal in the southwestern part of the Metro. Firstly, the MMDA has no power to implement acts such as the implementation of this scheme, for the reason that this agency is limited exercise only seven (7)
1

THE NEW CIVIL CODE OF THE PHILIPPINES, Art. 1356

powers which are to (1) development planning; (2) transport and traffic management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety. The basic service of transport and traffic management includes the following:

"(b) Transport and traffic management which include the formulation, coordination, and monitoring of policies, standards, programs and projects to rationalize the existing transport operations, infrastructure

requirements, the use of thoroughfares, and promotion of safe and convenient movement of persons and goods; provision for the mass transport system and the institution of a system to regulate road users; administration and implementation of all traffic enforcement operations, traffic engineering services and traffic education programs, including the institution of a single ticketing system in Metropolitan Manila;"2

In pursuant with the constitutional guarantee that obligations and contracts may not be impaired,3 but may be impaired by the exercise of police power. MMDA is merely an aid of the DOTC in reference to the SWIPT Scheme.4 Therefore, the MMDA, being an instrumentality of the government for the development of the Metropolitan Area, does not possess police power as it is not considered a political subdivision as based on its charter, furthermore, it does not possess legislative possess the power to make laws.
2

Section 3, par. 1, R. A. 7924, emphasis supplied in the case of MMDA v. BAVA, Inc. (G.R. No. 135962. March 27, 2000) 3 PHIL CONST. ART. III, 10. 4 Providing for the Establishment of Interim Transport Terminals in Preparation for the Integrated Transport System under Executive Order No. 67, 3, Administrative Order No. 40

b. Violation of the Non-Delegation of Powers The principle of delegata potestas non potest delegare translates to the non-delegation of powers, which would include the judicial power, executive power and the legislative power which is vested in them by the Constitution, not to be further delegated with the exception of the permissible delegation. The MMDA violated the principle by enacting the SWIPT Scheme without authority to do so. In the Executive No. 675, which creates the Inter-Agency Committee consisting of the Secretary of the DOTC as the Chairperson, the MMDA Chairperson as the Vice Chairperson and the Members consisting if the DPWH Secretary, DILG Secretary, DirectorGeneral of the NEDA, the LTFRB Chairperson and the Assistant Secretary of the LTO 6, which is responsible for the issuance of the implementing rules and regulations, procedures, guidelines and priority actions necessary to carry out provisions of this Executive Order. 7 The actions of the Chairman of MMDA, Mr. Francis Tolentino, are null and void as to the implementation because as stated in the Administrative Number 40,8 that the DOTC shall be the coordinating and lead agency in the implementation of this Order9, and that the duties of the MMDA under the said Order would be the development of the Southwest Interim Transport Termina10l, and such scope of duty does not include the enactment or implementation of guidelines, laws or any statute at all.

5 6

Providing for the Establishment of the Integrated Transport System supra, Executive Order No. 67, 6. 7 supra, Id., , 6 3 8 Providing for the Establishment of Interim Transport Terminals in Preparation for the Integrated Transport System under Executive Order No. 67 9 supra, 3 10 supra, 3 c

II.

Jurisprudence a. MMDA v. Bel-Air Village Association, Inc.11

In this case, the reiteration of the scope of powers and duties of the MMDA are laid down, in pursuant with Republic Act 7924, Section 5, paragraph 5.12 To wit, this shall include only the Metro-wide services which shall be to do the following: (1) development planning; (2) transport and traffic

management; (3) solid waste disposal and management; (4) flood control and sewerage management; (5) urban renewal, zoning and land use planning, and shelter services; (6) health and sanitation, urban protection and pollution control; and (7) public safety.

11 12

G.R. No. 135962. March 27, 2000 Sec. 5. Functions and powers of the Metro Manila Development Authority .The MMDA shall: (a) Formulate, coordinate and regulate the implementation of medium and long-term plans and programs for the delivery of metro-wide services, land use and physical development within Metropolitan Manila, consistent with national development objectives and priorities; (b) Prepare, coordinate and regulate the implementation of medium-term investment programs for metro-wide services which shall indicate sources and uses of funds for priority programs and projects, and which shall include the packaging of projects and presentation to funding institutions; Esmsc (c) Undertake and manage on its own metro-wide programs and projects for the delivery of specific services under its jurisdiction, subject to the approval of the Council. For this purpose, MMDA can create appropriate project management offices; (d) Coordinate and monitor the implementation of such plans, programs and projects in Metro Manila; identify bottlenecks and adopt solutions to problems of implementation; (e) The MMDA shall set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the implementation of all programs and projects concerning traffic management, specifically pertaining to enforcement, engineering and education. Upon request, it shall be extended assistance and cooperation, including but not limited to, assignment of personnel, by all other government agencies and offices concerned; (f) Install and administer a single ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and regulations, whether moving or non-moving in nature, and confiscate and suspend or revoke drivers licenses in the enforcement of such traffic laws and regulations, the provisions of RA 4136 and PD 1605 to the contrary notwithstanding. For this purpose, the Authority shall impose all traffic laws and regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic enforcers of local government units, duly licensed security guards, or members of non-governmental organizations to whom may be delegated certain authority, subject to such conditions and requirements as the Authority may impose; and (g) Perform other related functions required to achieve the objectives of the MMDA, including the undertaking of delivery of basic services to the local government units, when deemed necessary subject to prior coordination with and consent of the local government unit concerned.

It also specifically stated that the policy-making body of the MMDA shall be the Metro Manila Council composed of the 12 city mayors and municipal mayors. But in the question raised, the policy-making body for the Southwestern Interim Public Terminal Scheme shall be the DOTC, therefore the implementation made by the Chairperson of the MMDA, be null and void. b. MMDA v. Garin13

In this case, it stated that MMDA is not a local government unit or a public corporation endowed with legislative power, and, unlike its predecessor, the Metro Manila Commission, it has no power to enact ordinances for the welfare of the community, therefore not allowed or not vested with police power. Also, police power, as an inherent attribute of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same.14

In relation to this, during the creation of the MMDA, it specifically stated that, The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila, without diminution of the autonomy of the local government units concerning purely local matters.15

Therefore, in connection to this case, the MMDA shall only have the power and duty to enforce existing laws and regulations set forth by a valid agency

13 14

G.R. No. 130230. April 15, 2005 supra, no. 11 15 supra, no. 13

which is vested with the power to create laws, be it subordinate legislation or the exercise of the legislative department of the legislative power.

III.

Conclusion In sum, the MMDA shall not have the power to enact or create laws as it is not a political subdivision, nor does its charter include the power to do so. In fact, the MMC shall be its policy-making body, therefore laws, implementing rules and regulations, or guidelines passed by the MMDA shall be null and void, therefore no binding effect.

In conclusion, the reversal of the actions of the MMDA is allowed and that the Administrative Order 40, Executive Order 67 and its rules and regulations shall be supreme over the MMCs decision.

For your reference and guidance.