By: Emme Rose Santiagudo
ILOILO City Administrator Atty. Hernando Galvez questioned the criminal and administrative cases filed by Metro Iloilo Water District (MIWD) against the City government.
Galvez said the cases filed before the Ombudsman have no cause of action and personality.
Ang MIWD they have no more cause of action. Dapat ang cause of action mapakita ka nga you are an injured party. Amo na siling nila, sa sini nga hagna ano ang injury sang MIWD? Galvez said.
The case stemmed from the decision of the Iloilo City Council to grant a water distribution franchise to the Villar-led Prime Water Infrastructure Corp.
Galvez also emphasized that the power to grant such franchise is not exclusive to any agency.
Ang exclusive contract has long been abrogated by the Supreme Court. Wala sang exclusivity. Libre na ta tanan. It would be different kon exclusive sila. Nobody could say nga sila lang kay nasiling ta na, wala na sang exclusivity nga contract subong, he said.
MIWD filed criminal and administrative charges against Mayor Jose Espinosa III, and eight city councillors R Leone Gerochi, Eduardo Peñaredondo, Liezl Joy Zulueta-Salazar, Lyndon Acap, Candice Tupas, Mandrei Malabor, Plaridel Nava, and Joshua Alim who all voted in favour of the franchise.
The criminal charges include usurpation of official functions and graft and corruption practices while the administrative charges are for culpable violation of the constitution, grave abuse of authority, gross negligence, grave misconduct and acts contrary to the law.
In their complaint, MIWD cited that the ordinance enacted by respondents was ultra vires or against the law, as it arrogates unto the city of Iloilo the power to control and regulate water resources which pertains to the National Water Resources Board (NWRB) by virtue of the Water Code.
Accordingly, the respondents have acted beyond their power and performed functions that properly pertains to the national government to be performed and exercised through the NWRB.
MIWD also questioned the SPs power to grant franchise.
Apparently, from the wording of the Constitution, the grant of franchise is essentially a congressional act. In the case of the respondents and the SP of Iloilo City, nothing in the Water Code of the Philippines provides for the power to grant license or franchise with respect to water resources can be construed to have been delegated to the LGUs, the MIWD complaint said.
The privilege, authority or license with respect to use, utilization and development of water resources, which can only be exercised by the National Water Resources Board (NWRB) under the Water Code of the Philippines, MIWD stressed.
The water firm also cited the erroneous exercise of police power of the city government.
The respondents cannot claim and hide under the contention that they only acted in the valid exercise of police power. Since LGUs exercise delegated police power as agents of the State, it is incumbent upon them to act in conformity to the will of their principal, the State. Necessarily, therefore ordinances enacted pursuant to the general welfare clause may not subvert the States will by contradicting national statutes, the complaint stated.
On December 11, 2018, the Sangguniang Panglungsod with eight affirmative votes, five abstentions and one objection approved the first and final reading of an ordinance granting franchise to the Villar-led, Prime Water Infrastructure Corp. to establish, operate, and maintain a water supply system in Iloilo City during its regular session
Despite varying legal opinions, Councilor Plaridel Nava, committee on public utilities chair, insisted on the SPs authority to grant the franchise.
He emphasized that the city government, through the SP, has the authority to grant franchise to Prime Water in accordance with Republic Act 7160 (The Local Government Code of 1991) particularly Section 458, that enumerates the powers, duties, and functions of SP.
It states that the SP 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 pursuant to Section 16 of the Code and in the proper exercise of the corporate powers of the city shall enact ordinances granting franchises and authorizing the issuance of permits or licenses, he explained.
Nava added that it is well within the powers and authority of the SP to pass and approve an ordinance granting franchise to Prime Water because the granting of the franchise is a valid exercise of the local government units police power under the general welfare clause.
Under the Code, for such purposes intended to promote the general welfare of the inhabitants of the city and pursuant to the legislative authority shall grant a franchise to any person, partnership, corporation or cooperative to do business within the city upon approval by a majority vote of all the members of the SP, he said.
Nava also debunked the claims of the Department of Interior and Local Government (DILG) in Opinion No. 18 Series of 2018 which said that local governments are bereft of authority to grant water and sanitation franchise.
Nava said the DILG stand was off tangent.
Opinion varies depending on the circumstances. If the Supreme Court and other courts can disturb a settled jurisprudence, how much more opinion. Opinion is not part of the law of the land. Nobody can say nga there is such an opinion and I will comply with the opinion, he emphasized.
DILG Undersecretary Austere Panadero cited Presidential Decree 1076 otherwise known as the Water Code of the Philippines as the law, which governs ownership, appropriation, utilization, exploitation, development, conversation and protection of water resources and said that the granting of water permits is within the competence of the National Water Resources Board (NWRB) in the opinion issued by DILG in its website on March 21, 2018.
Without speck of doubt, Prime Waters objective to construct, establish, commission, operate and maintain a water supply system in the City of Iloilo is noble and laudable, Nava concluded.
According to Galvez, there is a confusion between the authority of franchise granted by the council vis a vis the authority of the NWRB.
Kon kaisa, may confusion man abi kon ano ang nature sang franchise nga ihatag between sa autoridad sa pag-isyu sang ordinansa vis-à-vis sa awtoridad sang NWRB. Ang siyudad wala gahum nga mag-authorize sa isa ka tawo nga mangutkot sang tubig because ang ina nga authority naga-require sang permiso sa NWRB in accordance sa aton Water Code. Wala na iya gasiling nga kon nahatagan ka prangkisa diri sa siyudad libre ka na, nga indi ka na magkuha permit sa NWRB, he explained.
Galvez believes that the increasing number of water franchise would solve the water shortage problem in the city.
Kon madamo di ya ang ganegosyo diri sa Iloilo, the better kay ti bal-an man sang tanan kulang ang tubig ta. Kon may major concern man ang officials sang siyudad, abi-abihun naton, he said.
As of Friday, Galvez said he has yet to receive copies of the complaint filed by MIWD with the Office of Ombudsman-Visayas.
As of now, waay pa kita sang nabaton nga copy sang dokumento sa Ombudsman, Galvez said.
Prime Water, which is one of the bulk water suppliers of MIWD alongside FLO Water Resources Inc. of the Florete family, followed the move of South Balibago Resources Inc. (SBRI) in securing a water distribution franchise through the City Council.
To recall, the approval of SBRIs franchise also prompted MIWD to file two cases against the firm and the government.
The first is the case against the city government and SBRI that seeks to nullify the franchise ordinance; second is the case against SBRI and the National Water Resources Board (NWRB) to revoke the certificate of public convenience that the latter granted to the former.