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MOISES appointing authority is to be the governors then the power to appoint

December 6, 2016| Bersamin, J. | shall rotate between the governors involved with the initial
Digester: Agustin, Chrissete appointments made by the governor in whose province the greatest
number of service connections exists.
SUMMARY: The main issue of the case is who has the authority to appoint the In July 2002, Cebu Provincial Governor Pablo L. Garcia wrote to the MCWD to
members of the Board of Directors of Metropolitan Cebu Water District the Cebu assert his authority and intention to appoint the members of the MCWD BoD
City mayor or the Province of Cebus governor. Petitioners (Mayor of Cebu, etc) argues o He stated in his letter that since 1996, the active water service connections
that Section 3(b) of P.D. 198 is unconstitutional as it is arbitrary and the granting of in Cebu City had been below 75% of the total active water service
authority to the Provincial Governor to appoint members of the Board of Directors of connection of the MCWD;
MCWD violates the principle of the local autonomy granted by the Constitution. The o that no other city or municipality under the MCWD had reached the
RTC ruled in favor of the Governors authority. The Court reversed. It struck down required percentage of 75%; and that, accordingly, he, as the Provincial
Section 3(b) as unconstitutional. Governor of Cebu, was the appointing authority for the members of the
DOCTRINE: It is accepted that the LGUs, more than the National Government itself, MCWD BoD pursuant to Section 3 (b)
know the needs of their constituents, and cater to such needs based on the particular Later on, the MCWD commenced in the RTC Cebu City its action for declaratory
circumstances of their localities. Where a particular law or statute affecting the relief seeking to declare Section 3(b) of P.D. No. 198 unconstitutional; or, should
LGUs infringes on their autonomy, and on their rights and powers to efficiently the provision be declared valid, it should be interpreted to mean that the authority
and effectively address the needs of their constituents, we should lean in favor of to appoint the members of the MCWD BoD belonged solely to the Cebu City
their autonomy, their rights and their powers. Mayor.
RTC: The RTC dismissed the action for declaratory relief without any finding and
FACTS: declaration as to the proper appointing authority for the members of the MCWD
On May 25, 1973, President Ferdinand E. Marcos issued Presidential Decree No. Board of Directors should none of the cities and municipalities reach 75% of the
198 (Provincial Water Utilities Act of 1973). total water service connections in the areas under the MCWD.
By virtue of P. D. No. 198, Cebu City formed the Metro Cebu Water District In the meanwhile, the terms of 2 members of the MCWD Board of Directors
(MCWD) in 1974. Thereafter, the Cities of Mandaue, Lapu-Lapu and Talisay, and ended, resulting in 2 vacancies. To avoid a vacuum and in the exigency of the
the Municipalities of Liloan, Compostela, Consolacion, and Cordova turned over service, Provincial Governor Gwendolyn F. Garcia and Cebu City Mayor
their waterworks systems and services to the MCWD. Tomas R. Osmea jointly appointed Atty. Adelino Sitoy and Leo Pacana to
Since then, the MCWD has distributed water and sold water services to said cities fill the vacancies. However, the position of Atty. Sitoy was deemed vacated upon
and municipalities. his election as the Municipal Mayor of Cordova, Cebu in the 2007 elections.
From 1974 to 2002, the Cebu City Mayor appointed all the members of the Consequently, Governor Garcia commenced an action for declaratory relief to seek
MCWD Board of Directors (BoD) in accordance with Sec. 3 (b) of P. D. No. 198. the interpretation of Section 3 (b) of P.D. No. 198 on the proper appointing
Section 3. Definitions. -As used in this Decree, the following words and terms authority for the members of the MCWD Board of Directors.
shall have the meanings herein set forth, unless a different meaning clearly It appears that on February 7, 2008, the Cebu Provincial Legal Office, upon being
appears from the context. The definition of a word or term applies to any of informed that Mayor Osmea would be appointing Joel Mari S. Yu to replace Atty.
its variants. Sitoy as a member of the MCWD BoD, formally advised in writing Cynthia A.
(a) Act. This is the Provincial Water Utilities Act of 1973. Barrit, the MCWD Board Secretary, to defer the submission of the list of nominees
(b) Appointing authority. The person empowered to appoint the to any appointing authority until the RTC rendered its final ruling on the issue of
members of the board of Directors of a local water district, the proper appointing authority.
depending upon the geographic coverage and population make-up of On February 22, 2008, however, Mayor Osmea appointed Yu as a member of
the particular district. In the event that more than seventy-five the MCWD Board of Directors.
percent of the total active water service connections of a local RTC: Dismissed the action for declaratory relief on the ground that declaratory
water district are within the boundary of any city or relief became improper once there was a breach or violation of the provision.
municipality, the appointing authority shall be the mayor of On June 13, 2008, Governor Garcia filed a complaint to declare the nullity of the
that city or municipality, as the case may be; otherwise, the appointment of Yu as a member of the MCWD Board of Directors alleging that
appointing authority shall be the governor of the province the appointment by Mayor Osmea was illegal; that under Section 3(b) of P.D. No.
within which the district is located. If portions of more than one 198, it was she as the Provincial Governor of Cebu who was vested with the
province are included within the boundary of the district, and the
authority to appoint members of the MCWD BoD because the total active water authority were dismissed without any definitive declaration or ultimate
service connections of Cebu City and of the other cities and municipalities were determination of the merits of the issue. The issue festers. Hence, the Court needs
below 75% of the total water service connections in the area of the MCWD. She to decide it now, not later.
impleaded Mayor Osmea, the MCWD, and Yu as defendants.
RTC: On November 16, 2010, rendered the assailed judgment and the Whether the issue is a political question NO
appointment of Yu as ILLEGAL and VOID PETITIONERS: The RTC did not explain why it held Section 3(b) of P.D. No.
o Section 3(b) needs no interpretation, it is clear 198 to be not violative of the constitutional provision on local autonomy and
o The active water service connections of Cebu City in the MCWD is at HUCs, and why it only opined that the question of constitutionality of the
61.28%, below the required 75% for the city mayor to have authority to provision should be left to Congress; that it did not determine whether the
appoint members of the BoD requisites for raising the constitutional issue had been met; that it did not discuss
o Power is vested with the governor even if he had not participated in the the reasons for holding that the issue about Section 3(b) of P.D. No. 198 was a
organizing MCWD nor did the Province invest in establishing waterworks political question; that no political question was involved because what was being
in the city inquired into was not the wisdom of the provision but its validity; and that because
o Sec. 3(b) does not violate Constitution authority of governor to appoint it did not perform its constitutional duty of reviewing the provision, its judgment
is not intrusion into the affairs of the HUCs/CCs nor a threat to their was void.
autonomy COURT: Records show that the RTC fully discharged its duty. (See November 16,
o Defendants have already recognized appointing authority of previous 2010 Decision). Nonetheless, the petitioners rightly contend that the RTC
appointments (Mr. Pacana and Atty. Sitoy) improperly regarded the matter about Section 3(b) as a political question it is
o Doubts should be resolved in favor of constitutionality NOT. Case at bar is a justiciable one as Courts have the power to pass upon
Mayor Osmea and Yu filed MR. Denied. Hence, this petition for certiorari constitutionality of treaty, agreement, or law [Art X, Sec 2(2)]

RULING: WHEREFORE, we GRANT the petition for certiorari; ANNUL and SET Whether Section 3(b) of P.D. 198 is already superseded YES
ASIDE the decision rendered in Civil Case No. CEB-34459 on November 16, 2010 by Whether Section 3(b) is unconstitutional YES, for being repugnant to the local
the Regional Trial Court, Branch 18, in Cebu City; and DECLARE as autonomy granted by the 1987 Consitution to the LGUs and being inconsistent
UNCONSTITUTIONAL Section 3(b) of Presidential Decree No. 198 to the extent with RA 7160 (1991 LGC) and related laws on local government
that it applies to highly urbanized cities like the City of Cebu and to component cities PETITIONERS:
with charters expressly providing for their voters not to be eligible to vote for the Section 3 (b) of P.D. No. 198 was unconstitutional on its face for being
officials of the provinces to which they belong for being in violation of the express unreasonable and arbitrary because the determination of who would exercise
policy of the 1987 Constitution on local autonomy, the 1991 Local Government Code the power to appoint the members of the MCWD Board of Directors was
and subsequent statutory enactments, and for being also in violation of the Due Process thereby made to depend on the shifting number of water users in the water
Clause and the Equal Protection Clause. ACCORDINGLY, the Mayor of the the City district's component LGUs;
of Cebu is declared to be the appointing authority of the Members of the Board of The provision on the authority of the Provincial Governor to appoint in cases
Directors of the Metro Cebu Water District. where the water connections of any of the water water district's cities or
municipalities were below 75% was arbitrary for not distinguishing whether or
Whether Yus expiration of term rendered the case moot and academic NO not the province had contributed any waterworks to the water district; The
Yu's term as a member of the MCWD BoD expired on December 31, 2012. provision did not consider whether a city or municipality comprised the
The case should still be decided because public interest is involved, and because the majority or more of the water consumers;
issue is capable of repetition yet evading review. The provision was irrational as it gave the Provincial Governor the power to
The appointment by the proper official of the individuals to manage the system of appoint regardless of whether the province had participated in the organization
water distribution and service for the consumers residing in the concerned of the water district or not;
cities and municipalities involves the interest of their populations and the The assailed provision was void on its face for violating the constitutional
general public affected by the services of the MCWD as a public utility. provision on local autonomy and independence of HUCs under Article X of
Moreover, the question on the proper appointing he cities and municipalities have the 1987 Constitution;
at least 75% of the water consumers will not be definitively resolved with finality if The provision unduly interfered with the internal affairs of Cebu City, and
we dismiss the petition on the ground of mootness. It is notable that the two cases diminished the autonomy of the LGUs;
for declaratory relief filed for the purpose of determining the proper appointing
The provision undermined the independence of HUCs; Hence, all matters relating to its administration, powers and functions were
Office of the Government Corporate Counsel and the OSG: have opined that exercised through its local executives led by the City Mayor, subject to the
because Cebu City was an HUC, the City Mayor of Cebu City should retain the President's retained power of general supervision over provinces, HUCs, and
right to appoint the members of the MCWD Board of Directors; independent component cities pursuant to and in accordance with Section 25 of
The chief executive of the LGU having the majority of water consumers was the 1991 LGC a law enacted for the purpose of strengthening the autonomy of the
in the best position to exercise the discretion of choosing the most competent LGUs in accordance with the 1987 Constitution. Article X of the 1987
persons who could best serve the constituents; Constitution guarantees and promotes the administrative and fiscal autonomy of
Because the largest number of water consumers were in Cebu City, any the LGUs.
intrusion on the City Mayor's power to appoint would violate its independence The foregoing statutory enactments enunciate and implement the local autonomy
and autonomy; that the Province of Cebu could not exercise powers that provisions explicitly recognized under the 1987 Constitution.
affected the constituents of HUCs; To conform with the guarantees of the Constitution in favor of the autonomy of
Providing water to constituents was the sole responsibility of the concerned the LGUs, therefore, it becomes the duty of the Court to declare and pronounce
LGU; that the water utility of the LGU was a patrimonial property that was Section 3(b) of P.D. No. 198 as already partially unconstitutional.
not for public use; that as such, the operation, ownership and management of o We note that this pronouncement is also advocated by the National
the public utility should belong to the LGU; Government, as shown in the comment of the Solicitor General.
In Navarro v. Ermita, the Court has pointed out that the central policy
COURT: considerations in the creation of local government units are economic viability,
The Court opines that Section 3(b) of P.D. No. 198 should be partially struck down efficient administration, and capability to deliver basic services to their constituents.
for being repugnant to the local autonomy granted by the 1987 Constitution to These considerations must be given importance as they ensure the success of local
LGUs, and for being inconsistent with R.A. No. 7160 (1991 Local Government autonomy.
Code) and related laws on local governments. It is accepted that the LGUs, more than the National Government itself, know the
The enactment of P.D. No. 198 on May 25, 1973 was prior to the enactment on needs of their constituents, and cater to such needs based on the particular
December 22, 1979 of Batas Pambansa Blg. 51 (An Act Providing for the circumstances of their localities. Where a particular law or statute affecting the
Elective or Appointive Positions in Various Local Governments and for Other LGUs infringes on their autonomy, and on their rights and powers to
Purposes) and antedated as well the effectivity of the 1991 Local Government efficiently and effectively address the needs of their constituents, we should
Code on January 1, 1992. lean in favor of their autonomy, their rights and their powers.
At the time of the enactment of P.D. No. 198, Cebu City was still a component Water and its efficient supply are among the primary concerns of every LGU.
city of Cebu Province. Section 328 of B.P. Blg. 51 reclassified the cities of the Issues that tend to reduce or diminish the authority of the boards of directors to
Philippines based on well-defined criteria. Cebu City thus became an HUC, which manage the water districts are imbued with public interest.
immediately meant that its inhabitants were ineligible to vote for the officials of Bearing this in mind, and recalling that the MCWD had been established from the
Cebu Province. erstwhile Osmea Waterworks Systems (OWS) without any investment or
In accordance with Section 12 of Article X of the 1987 Constitution, cities that contribution of funds and material from the Province of Cebu towards the creation
are highly urbanized, as determined by law, and component cities whose charters and maintenance of OWS and the MCWD, and considering that it had always been
prohibit their voters from voting for provincial elective officials, shall be the City Mayor of the City of Cebu who appointed the members of the MCWD
independent of the province, but the voters of component cities within a province, Board of Directors regardless of the percentage of the water subscribers, our
whose charters contain no such prohibition, shall not be deprived of their right to pronouncement herein rests on firm ground.
vote for elective provincial officials.
Later on, Cebu City, already an HUC, was further effectively rendered independent Whether Section 3(b) of P.D. 198 violates due process and equal protection No
from Cebu Province pursuant to Section 29 of the 1991 Local Government but eventually, YES. The reclassification of City of Cebu into an HUC and the
Code, viz.: enactment of 1991 LGC rendered the continued application of Sec. 3(b) unreasonable
Section 29. Provincial Relations with Component Cities and Municipalities. - and unfair
The province, through the governor, shall ensure that every component city PETITIONERS:
and municipality within its territorial jurisdiction acts within the scope of its Sec. 3(b) being unfair, violated substantive due process; that Governor Garcia
prescribed powers and functions. Highly urbanized cities and independent could not determine the water needs of each of the LGUs within the MCWD; that
component cities shall be independent of the province. (Emphasis supplied) the provision allowed inequality of treatment of the cities and municipalities in
relation to the province, and thus violated the Equal Protection Clause of the o WHEREAS, local water utilities should be locally-controlled and
Constitution; that the provision unduly deprived Cebu City of the power to managed, as well as have support on the national level in the area of
determine the membership in the MCWD Board of Directors despite Cebu City technical advisory services and financing;
having the majority of the water service connections; that the Province of Cebu Verily, the decree was enacted to provide adequate, quality and reliable water and
was given unreasonable and unwarranted benefit despite Cebu City being waste-water services to meet the needs of the local communities and their growing
independent from the Province of Cebu; that Section 3(b) of P.D. No. 198 did not populations. The needs of the communities served were paramount.
distinguish whether the province contributed any resource to the water district or Hence, we deem it to be inconsistent with the true objectives of the decree to still
not; that under the provision, if two or more provinces contributed to the water leave to the provincial governor the appointing authority if the provincial governor
district, they were not subject to the 75% requirement to avail of the power of had administrative supervision only over municipalities and component cities
appointment, indicating that the power to appoint devolved only in the provinces; accounting for 16.92% of the active water service connection in the MCWD.
that this violated the guarantee of equality of treatment in favor of the participating In comparison, the City of Cebu had 61.28% of the active service water
LGUs; that the provision created a privileged class (the provinces) without any connections. There is no denying that the MCWD has been primarily serving the
justification in reason; and that "the classification is not germane to the purpose of needs of Cebu City. Although it is impermissible to inquire into why the decree set
the law and is not based on substantial distinctions that make real differences." 75% as the marker for determining the proper appointing authority, the provision
has meanwhile become unfair for ignoring the needs and circumstances of Cebu
COURT: City as the LGU accounting for the majority of the active water service
Substantive due process: requires that the law itself, not merely the procedures by connections, and whose constituency stood to be the most affected by the
which law would be enforced, is fair, reasonable,a nd just. What to be determined decisions made by the MCWD's BoD.
is wheteher the law has a valid governmental objective, like the interest of public as Indeed, the classification has truly ceased to be germane or related to the main
againt a particular class. objective for the enactment of P.D. No. 198 in 1973
Equal protection: In order for classification to be valid, it must: (1) rest on The RTC gravely abused its discretion in upholding Section 3(b) of P.D. No. 198.
substantital distinctions; (2) germane to the purpose of the law; (3) not limited to It thereby utterly disregarded the clear policies favoring local autonomy enshrined
existing conditions only; (4) apply equally to all members of the same class in the 1987 Constitution and effected by the 1991 Local Government Code and
Althoug Section 3(b) of P.D. No. 198 provided for substantial distinction and was related subsequent statutory enactments, and for being violative of the Due Process
germane to the purpose of P.D. No. 198 when it was enacted in 1973, the Clause and the Equal Protection Clause of the 1987 Constitution.
intervening reclassification of the City of Cebu into an HUC and the subsequent
enactment of the 1991 Local Government Code rendered the continued application
of Section 3(b) in disregard of the reclassification unreasonable and unfair.
Clearly, the assailed provision no longer provided for substantial distinction DISSENTING OPINION, Brion, J.
because, firstly, it ignored that the MCWD was built without the (Sorry mahaba pero mahaba talaga discussion nya and may part na wala sa main opinion)
participation of the provincial government; secondly, it failed to consider
In my opinion, the present petition must be dismissed because: first, the petitioners
that the MCWD existed to serve the community that represents the needs of
disregarded the hierarchy of courts; second, the RTC did not commit grave abuse
the majority of the active water service connections; and, thirdly, the main
of discretion; and third, Section 3(b) does not violate the Constitution, nor was it
objective of the decree was to improve the water service while keeping up
superseded by the Local Government Code, or by Cebu City's reclassification as a
with the needs of the growing population.
highly urbanized city.
The Whereas Clauses of P.D. No. 198 essentially state the raison d'etre of its
enactment, to wit: Hierarchy of courts
o WHEREAS, existing domestic water utilities are not meeting the
Petitions for the issuance of extraordinary writs against first level (inferior) courts
needs of the communities they serve; water quality is unsatisfactory;
should be filed with the RTC, and those against the RTC with the CA. In this case,
pressure is inadequate; and reliability of service is poor; in fact, many
since the petitioners insist on filing a Petition for Certiorari, they should have done
persons receive no piped water service whatsoever;
so before the CA.
o WHEREAS, conditions of service continue to worsen for two apparent
reasons, namely: (1) that key element of existing systems are deteriorating Neither do I find anything special or important in this case to invoke the Court's
faster than they are being maintained or replaced, and (2) that they are original certiorari jurisdiction. Neither the petitioner nor the respondent allege that
not being expanded at a rate sufficient to match population growth; MCWD's operations has been, or will be paralyzed, simply because the appointing
and 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 never invested in the OWS, or in the MCWD, the Governor has no right to
constitutional issues presented before us, and that the CA is more than capable of appoint the members of the MCWD Board.
resolving the present petition. I disagree with this view as the City of Cebu has no proprietary right over MCWD's
waterworks. Without any property right over MCWD's waterworks (see History
RTC did not commit grave abuse of discretion below), the City of Cebu cannot claim that Section 3(b) operates to deprive it of
Presiding judge emphasized three observations: first, Section 3(b) is not an any property right without due process of law. Accordingly, the City of Cebu lacks
intrusion into Cebu City's autonomy; second, the issue is not whether the governor the requisite standing to question Section 3(b)'s constitutionality under the due
participated in organizing the water district, but whether the law granted him the process clause
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 History of City of Cebu, MCWD and PD 198
illegal. I find that the above observations satisfactorily addressed the petitioners' In the early part of the 20th century, the Municipality of Cebu's water supply was
constitutional challenge. In fact, no less than the petitioners themselves admitted in provided and maintained by the Osmea Waterworks System (OWS).
their December 30, 2010 motion for reconsideration before the RTC that they In 1934, CA No. 58 transformed the municipality of Cebu into a city. In 1964, the
(petitioners) "fully [appreciate] the extensive effort made by the Court in arriving at City's Revised Charter placed the exclusive ownership, control, direction and
its conclusions for its decision." supervision of the OWS to the City of Cebu.
If there is any flaw in the RTC's decision at all, it would be the lack of a more Acknowledging the lack of water utilities and the poor water quality in provincial
detailed discussion. Despite this flaw, however, I disagree with the ponencia 's areas, President Ferdinand Marcos issued PD 198 on May 25, 1973. PD 198 seeks
conclusion that the RTC gravely abused its discretion because it improperly relied to provide quality, adequately pressured and reliable water service by encouraging
on the political question doctrine to skirt the duty of judicial review. LGUs to form local water districts, and to transfer thereto existing water supply
To my mind, albeit not exhaustively, the RTC exercised its power of judicial review and wastewater disposal facilities on a local option basis.
and, therefore, did not commit grave abuse of discretion. The November 16, 2010 In turn, the National Government promises LGUs support in the areas of technical
decision does not patently show that the RTC arbitrarily, capriciously, or advisory, service, and financing. To create LWDs, PD 198 authorized LGUs to
whimsically withheld the power of judicial review. On the contrary, as the ponencia form water districts by enacting Resolutions for the purpose, and by filing copy/ies
itself noted, "the RTC, which indisputably had the power and the duty to determine of the resolution/s to the Local Water Utilities Administration (LWUA) - an office
and decide the issue of constitutionality of Section 3(b) of P.D. 198, discharged its attached to the office of the president.
duty." Once formed, the districts shall become GOCC and will NO longer be under
Admittedly, the presiding judge's writing style which did not address the the jurisdiction of any political subdivision.
constitutional issues point-by-point may have resulted in a poorly written draft. Under these terms, the City of Cebu, through the then mayor Engr. Eulogio
Still, the draft's poor quality does not amount to grave abuse of discretion in the Borres, approved on May 9, 1974 Resolution No. 873 creating the MCWD.
absence of arbitrariness or personal hostility on the part of the trial judge. This Thereafter, the City of Cebu transferred all of OWS assets and facilities to MCWD.
Court must not allow litigants to directly resort to certiorari petitions simply Soon after, the City Councils of Mandaue and Lapu-Lapu, and the municipal
because they think the presiding judge lacked the skill to close out all arguments governments of Compostela, Consolacion, and Cordova, all located within the
presented before the trial court Province of Cebu, approved concurring resolutions turning over their respective
waterworks to MCWD.
Section 3(b) is netiher unconstitutional nor antiquated
Based on the above facts, I see no merit in Cebu City's claim that it retains
Petitioners have no locus standi. I wish to emphasize, however, that insofar as proprietary rights over MCWD's waterworks.
the due process challenge is concerned, the petitioners are not suing on behalf of
The MCWD is a separate and distinct entity from the LGUs it serves,
their constituents. Instead, the City of Cebu questions Section 3(b)'s arbitrariness
including the City of Cebu. Neither can the City of Cebu claim that it retains
from a private standpoint.
ownership, or that it has a better right, over MCWD's waterworks than any
To repeat, the petitioner Cebu City claims that the operation of LWDs, such as the other LGU. That the City of Cebu had transferred all of OWS' waterworks to
MCWD, is a patrimonial property of the local government unit it serves. the MCWD, to my mind, is beyond question.
In support of this view, the City points out that MCWD's assets originated from
the Osmea Waterworks System (OWS) - a waterworks system previously operated LWDs are GOCCs that are independent from any political subdivision. All powers,
and maintained by the City of Cebu. They argue that since the Province of Cebu privileges, and duties of the LWD are exercised and performed by and through the
LWD's board of directors, and not by any LGU official.
Accordingly, neither the LGUs, which created the LWD, nor the LGU official, to over LWDs and, therefore, violates the constitutional and statutory provisions on
whom the appointing power resides, can countermand the LWD should it decide local autonomy. This is simply not the case.
to expand its services, regardless if the expansion dilutes or increases the city's or All laws including PDs issued by President Marcos enjoy the presumption of
municipality's waterworks connection below or above the 75% threshold. In fact, constitutionality. Both the 1986 Freedom and the 1987 Constitutions recognize the
PD 198 expressly prohibits LGUs from "dissolving, altering or affecting" the validity of PDs unless and until they are amended, repealed, and revoked.
LWDs they created. 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
Section 3 (b) contains a Reasonable classification. complete, coherent, and intelligible system.
One substantial distinction between provinces, on one hand, and cities (whether As I discussed above, the appointing power has NO control over the LWD.
component, highly urbanized, or independent) and municipalities, on the other, is Since the appointing power has no control over the LWD, Section 3(b) does
the land areas they cover. not create a link between the LGU where the appointing power sits, and the
Under the Local Government Code, a province must have a contiguous territory of LGUs served by the LWD.
at least 2000 square kilometers. On the other hand, a city or a municipality must As applied to this case, reposing the appointing authority on the Governor of
have a contiguous territory of at least 100, and 50 square kilometers, respectively. Cebu does not grant the provincial government control or supervision over
By giving the Governor the power to appoint, Section 3(b) entrusts the appointing Cebu City or over the other LGUs where the LWD operates.
power to the highest local official who oversees the largest geography where the In the same way, the Mayor of Cebu -during the period he/she exercised the
LWD may expand its operations. appointing power -never exercised control or supervision over the other LGUs
However, Section 3(b) also realizes that confining the appointing power to the served by MCWD,( i.e., Mandaue City, Lapu-Lapu City, Talisay City, etc)
Governor loses its relevance where the LWD operates almost entirely within a In short, the shift of the appointing power to the Governor does not infringe
single city or municipality. Thus, as an alternative, Section 3(b) lodges the on the autonomy that Cebu City enjoys as a highly urbanized city.
appointing power with the Mayor of the City or Municipality where 75% or of While the LGC mandates and empowers the Sangguniang Panlalawigan, Panlunsod
the LWDs water connections are located. and Bayan "to enact ordinances, approve resolutions, and appropriate funds" for
Neither was the 75% threshold created to favor Governors, as specific class, over "the establishment, operation, maintenance, and repair of an efficient waterworks
Mayors; nor is it limited to conditions existing at the time PD 198 was enacted, or system," the LGC explicitly states the LGU's can only exercise such power "subject
at the time an L WD is created. to existing laws." Indisputably, one of these existing laws is PD 198.
The phrase "In the event that more than seventy-five percent of the total active Following the principle of harmonization of laws, the LWDs created under PD
water service connections of a local water district are within the boundary of any 198 -such as the MCWD -are still governed by PD 198 as a special law.
city or municipality" signifies that the appointing power may shift at any time Accordingly, these LWDs remain independent from the political
depending on the circumstances. subdivisions they serve, and their subsisting relations with the proper
To illustrate this dynamic, while the province of Cebu now enjoys the appointing appointing official, as provided for in PD 198, must be respected.
power, a future increase in MCWD's water connections within Cebu City may re-
shift the appointing power to the Mayor. The Court should not resort to judicial legislation
Finally, do I not see anything wrong in applying the 75% threshold to all cities, I wish to address the petitioners' prayer for this Court to "declare" that the
regardless of their respective status as a component, independent component or appointing power should be lodged with the Mayor of the city or municipality
highly urbanized. which participated in the L WD's formation and where a majority of the LWD's
Ironically, what would consist of discrimination is to treat highly urbanized and water connections lie.
independent component cities differently from component cities on the supposed First and foremost, this Court cannot resort to judicial legislation even if it declares
reason that the former enjoys autonomy over its territory. The authority to a law unconstitutional. Second, the petitioners are mistaken in implying that
appoint, as I will discuss below, does not equate to control over the other legislative fiat will result if this Court declares Section 3(b) void. Section 10 of PD
LGUs serviced by an LWD. 198 empowers the majority of the incumbent directors to fill vacancies in the board
should the appointing power fail to make an appointment. Lastly, there is simply no
Section 3 (b) is not superseded by the Local Government Code. constitutional provision or principle that provides for the so-called doctrine of
The main flaw in the petitioners' argument and corollary, in the ponencia's majority rule. In fact, modern legal principles (such as the social justice principle)
conclusions, is the misconception that PD 198 grants the appointing power control focus less on numerical superiority and, instead, ensures that the less privileged
have more in law.
While the majority opinion claimed to have partially struck down Section 3(b) of
DISSENTING OPINION, J. Leonardo-De Castro P.D. 198, it had practically nullified too the last sentence of said Section 3(b ),
Firstly, I disagree with the majority opinion that Section 3(b) of P.D. No. 198 which did not apply the threshold of 51% or majority rule in case more than one
should be partially struck down for being repugnant to the local autonomy province are included in the local water district. In this case, Section 3(b) of P.D.
granted by the 1987 Constitution to LGUs, and for being inconsistent with No. 198 provides that the appointing authority among the provinces is determined
Republic Act No. 7160 (1991 LGC) and related laws on local government. by rotation.
There is no impairment of the local autonomy provided by the 1987 Constitution Assuming that Section 3(b) of P.D. 198, as argued in the majority opinion, is no
and its implementing legislations. longer in keeping with the recent developments in the status, socio-economic and
The decision to form a local water district is lodged upon the legislative body of political conditions of the LGUs comprising a local water district, the remedy is
any city, municipality or province itself, which can do so by enacting a resolution to legislative amendment.
form or join a district. An LGU is free to decide to join or not a local water district It is not for this Court to prescribe another rule or formula to determine who
based on its own assessment of whether or not it will redound to its benefit to be shall have the authority to appoint the Board of Directors of a local water
covered by P.D. No. 198, which provides, among others, for a package of powers, district.
rights and obligations. Specifically, the local water district is assured of "support on
the nation on the national level in the area of techincal advisory services and CONCURRING OPINION, J. Leonen
financing guarantee of exclusive franchise for domestic water service within the Section 3(b) of Presidential Decree No. 198 is unconstitutional because it violates
district (Sec. 46), and exemption from income taxes under Section 45. the local autonomy of cities and municipalities covered by MCWD. It interferes
Moreover, the LGU joining a local water district does not surrender any of its with the cities' and municipalities' power and duty to conduct their own affairs,
powers under the Constitution or the Local Government Code to another particularly with regard to the delivery of basic services.
LGU vested with the power to appoint the members of the Board of the local Presidential Decree No. 198 allows provinces to interfere with this duty of
water district since Presidential Decree No. 198 expressly provides that a municipalities and cities when it empowered the governor to appoint MWCD
district once formed shall not be under the jurisdiction of any political directors in case none of the cities and municipalities covered by MCWD reached
subdivision. the 75% requirement.
The local water district has a separate juridical personality which is Since MCWD's polices are created by MCWD's Board ofDirectors,21 the
independent of the LGUs. It is governed by its Board of Directors pursuant to appointment of directors is the only means by which local government units may
Section 17. exercise control over the policies that will be implemented by MCWD. Any
Hence, the power to appoint the members of the Board of Directors of the local exercise of this appointment power entails great consideration not only of the
water districts, which is vested upon the LGU determined in accordance with the needs of the most affected but also judgment as to whose decisions could best
formula or rule prescribed by Presidential Decree No. 198, does not impair the determine and serve the needs of the local community. The person who could
autonomy of the other LGUs included in the District. make such judgment is not the governor but the mayor of the most number of
If a province can join a local water district and be subjected to the provisions of barangays served by MCWD. It is that city o municipality that will be most affected
P.D. No. 198, there is no cogent reason why the change of status of a component by the decisions and policies of the board of directors of MCWD.
city of a province, which would later on become a highly urbanized city, should The presumption of constitutionality accorded to legislative acts by the Congress
affect its powers, rights and obligations under P.D. No. 198. should not equally apply to presidential decrees. Separation of powers, as well as
A province which enjoys local autonomy may join a local water district and be the principle of checks and balances, were limited during the martial law.
subject to the provisions of Presidential Decree No. 198 pursuant to Section 6 of
said Decree
Secondly, the majority opinion indulged itself in constitutionally
objectionable judicial legislation by effectively amending Section 3(b) of
Presidential Decree No. 198
The majority opinion criticized the 75% threshold prescribed by Section 3(b) of
P.D. No. 198 to vest an LGU with the power to appoint the members of the Board
of Directors of the local water district, and in doing so, framed it within the
supposed violation of the due process clause and equal protection of the laws.