The Unconstitutionality of the Law Dividing Cagayan de Oro City

February 20, 2010

SCINTILLA: By Rogelio Bagabuyo

(Part 1)

Here are the arguments and corresponding legal remedies presented by Atty. Rogelio Bagabuyo in his Petition for Certiorari, Prohibition, Mandamus with Preliminary Injunction and TRO versus the law that now divides Cagayan de Oro into two legislative districts without consulting its constituents via a duly held plebiscite.

Atty. Bagabuyo’s petition is now docketed by the Supreme Court with GR. No. 176970. Recently, no less than the Supreme Court en banc has not just taken cognizance of his petition, but also, ordered the Solicitor General, the lawyer for respondents Commission on Elections, et.al, to submit an answer why the law now dividing Cagayan de Oro should not be declared unconstitutional.

Stay tuned for his reasons and proposals on what to do once the law dividing Cagayan de Oro is declared unconstitutional which might even have some significance in the coming 2010 Elections.

ARGUMENT #1 The instant case falls squarely on the settled exceptions in resorting Directly with this Honorable Court

Although not raised by the respondents of the case Commission on Elections, et. al., nevertheless petitioner states for the record that he has sufficient interest in the instant case and he even alleges, among others, that he is a taxpayer, a voter and a concerned citizen in the City of Cagayan de Oro.

In Macalintal vs. Commission on Elections[1], the Honorable Supreme Court reiterated the ruling that a taxpayer has sufficient standing to question the constitutionality of a law which requires the expenditure of public funds; and, in Francisco vs. House of Representatives[2], the Honorable Supreme Court ruled that concerned citizens, taxpayers and legislators had been given standing by the Supreme Court in cases of transcendental importance. The determinants of the transcendental issues are (1) the character of the funds or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional statutory prohibition by the instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. The issues raised in the petitions are of transcendental importance. All of which elements are present and attendant in the case at bar.

The judicial policy is and has always been that this Court will not entertain direct resort to it except when the redress sought cannot be obtained in the proper courts, or when compelling circumstances warrant availment of a remedy within and calling for the exercise of this Court’s primary jurisdiction[3].

We are not unaware that Batas Pambansa Blg. 129, as amended, grants original jurisdiction to the Regional Trial Court to petitions of this nature. However, it is without any doubt that this petition alleged circumstances and issues of transcendental importance to the public requiring their prompt and definite resolution and the brushing aside of technicalities of procedure. This is not even to mention the fact that Resolution No. 7837 of the COMELEC is not within the ambit of a Regional Trial Court. Further, it is too late in the day to remand this case.

Finally, while it is conceded that the elections of May 14, 2007 were conducted pursuant to the questioned law – R.A. 9371 and Resolution No. 7837 of the COMELEC En Banc, the election did not cure its constitutional and statutory defects. Without the scintilla of any doubt the dispute cries out for its final resolution; hence, justice demands that this Honorable Court resolves the same lest people would be mislead into believing that a litigation is a game of technicalities and not of substantial justice. And, that the Philippines has returned to the days prior to the 1987 Constitution where the vagaries of politics deprived the people of their sovereignty.

The instant petition deals with the blatant disregard of the Constitutional and Statutory mandate that in cases of dividing and/or converting or substantial alteration of a boundary of City a plebiscite is a condition sine qua non for the effectivity of the law, which is lacking in the questioned R.A. 9371 and its implementing Resolution No. 7837 of the COMELEC En Banc.

It is our submission that Section 10 of Article X of the 1987 Constitution and Sections 7, 8 and 10 of R.A. 7160 – The Local Government Code - shall not be circumvented by the mere technicality of increasing the number of a legislative district from one (1) to two (2) and the Sangguniang Panglungsod be divided from one district compose of 12 councilors to two (2) districts of eight (8) councilors each or a total of sixteen (16).

Although, petitioner is precluded to raise an issue not covered by his previous pleadings, substantial justice demands that he, as an officer of the court, should point out to the Honorable Court the undeniable fact that the questioned R.A. 9371 amended the Charter of the City of Cagayan de Oro, R.A. 521 of June 15, 1950, without conducting the required plebiscite pursuant to the said law.

It is the petitioner’s humble contention that the issues involved in this case warrant the setting aside of the technical defects, if any there be, so much so that this Honorable Court is duty bound to take primary jurisdiction over the petition at bar. One cannot deny that the issues raised here have potentially pervasive influence over all Local Government units; hence proper and just determination is an imperative need. This is in accordance with the well entrenched principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice.

Their strict and rigid application, which would result in techinicalities that tend to frustrate, rather than promote substantial justice, must always be aschewed[4].

In the case of Pimentel v. Aguirre[5] this Court ruled that when a petition seeks to nullify an act of the President of the Philippines that greatly affects all local government units, ( in the instant case, the President of the Philippines signed into law the questioned R.A. 9371) non-observance of the hierarchy of courts rule may be resorted to by this Honorable Court. Also, in the same case, this Court ruled that when an act of the legislative department is seriously alleged to have infringed the Constitution, settling the controversy becomes the duty of this Court. The same is true when what is seriously alleged to be unconstitutional is an act of the President, who in our constitutional scheme is coequal with Congress and this Court.

[1] 405 SCRA 614

[2] 415 SCRA 44

[3] Tano v. Socrates, 278 SCRA 154 (1997) citing Santiago v. Vazquez, 217 SCRA 633 (1993)

[4] Serrano v.Galang Maritime Services, et al. G.R. No. 151833, 7 August 2003

[5] G.R. No. 132988, July 19, 2000, En Banc, J. Panganiban

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Written by admin · Filed Under Butch Bagabuyo, Columnists