11 September 2012
Sangguniang Panlungsod Session Hall
IN THE MATTER OF THE CITY MTFRB’S GRANTING OF FRANCHISES TO TRICYCLES
Remarks to the 105th Regular Session of the 16th Sanggunian
By Shirlyn L. Bañas-Nograles
City Vice-Mayor and Presiding Officer
16th Sangguniang Panlungsod
Ladies and gentlemen of this August Hall, good morning!
It’s been quite sometime ago since I last spoke before you inside this Plenary Hall. If I could still recall correctly, it was way back in the middle of January this year, when I discussed about global warming along with the underlying issues involved in the process.
Today, I stand before you, once again, to report about a significantly critical policy issue which we’ve been able to find out while we’re in the midst of conducting the 72nd en banc hearing of our now on-going Codification Project. This, I presume, has already become a long- been-pervading but disguised error, which has the capability of rendering — as void ab initio— all past as well as forthcoming regulatory orders that this Local Government Unit would have intended to enforce upon public utility tricycles in the city since the time the Sannguniang Panlungsodenacted City Ordinance No. 08, series of 1993, otherwise known as “An Ordinance Creating the Motorized Tricycle Franchising and Regulatory Board (MTFRB).”
Honorable colleagues of this 16th Sanggunian, I specifically point to the city’s Motorized Tricycle Franchising and Regulatory Board or MTFRB and its continued granting of franchises, motu proprio, to tricycles without the express approval of this Sanggunian, as the most fearful controversy that’s been potentially hounding this Local Government Unit to trouble. And I would like to say, loudly, that if this Local Government chooses not to take any action aimed at resolving this lapse to avert imminent danger, this may, later on, also tend to cause our very own integrity — as the city’s highest policy-making body — to be besmirched unreasonably.
Ladies and gentlemen of this August Hall, I would like to inform you that while we’re reviewing and discussing about City Ordinance No. 08, series of 1993, as amended, in relation to City Ordinance No. 10, series of 2011, it came to our knowledge that the city MTFRB has been doing a function that it wasn’t authorized to perform all along —- one which partakes of the very nature of a Police Power delegated upon by no less than the Congress of the Philippines only to Local Government Units by way of Republic Act Numbered Seventy-One Hundred and Sixty, otherwise known as The Local Government Code of 1991, for their respective local policy-making bodies to exercise exclusively —- a sheer legislative function that no one else within this Local Government Unit has the power to lawfully carry out other than this August Body itself.
My dear colleagues, I have the honor to state before you the relevant provisions of The Local Government Code of 1991 and its Implementing Rules and Regulations, which I quote as follows:
1.SUB-PARAGRAPH (vi), PARAGRAPH (3), SECTION 458, RA 7160 (POWERS, DUTIES, FUNCTIONS AND COMPENSATION OF THE SANGGUNIANG PANLUNGSOD). – “Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city.”
2.SUB-PARAGRAPH (vi), PARAGRAPH (3), ARTICLE 99 OF THE RULES AND REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE OF 1991 (POWERS, DUTIES, AND FUNCTIONS OF THE SANGGUNIANG PANLUNGSOD). – “Subject to the guidelines prescribed by the Department of Transportation and Communications, regulate the operation of tricycles and grant franchises for the operation thereof within the territorial jurisdiction of the city.”
Further, I would also like to state before you the pertinent provision of the guidelines issued for by the Department of Transportation and Communications, which took effect on 01 July
1992, relative to the foregoing statute and rules, which I quote, as follows:
GUIDELINES TO IMPLEMENT THE DEVOLUTION OF LTFRB’S FRANCHISING AUTHORITY OVER TRICYCLES-FOR-HIRE TO LOCAL GOVERNMENT UNITS PURSUANT TO THE LOCAL GOVERNMENT CODE (R.A. ACT NO. 7160). – “In lieu of the Land Transportation Franchising and Regulatory Board (LTFRB) in the DOTC, the Sangguniang Bayan/Sangguniang Panlungsod (SB/SP) shall perform the following:
a) Issue, amend, revise, review or cancel MTOP and prescribe the appropriate terms and conditions therefor.”
On the other hand, I Have the honor to state, once again, before the honorable members of this August Hall the applicable provisions of City Ordinance No. 10, series of 2011, which I guess — without meaning any offense at all — was inadvertently misunderstood and misapplied, by the Executive Department to have covered, inter alia, the power to grant franchises to tricycles, and I quote:
o SECTION 1, ORDINANCE NO. 10, SERIES OF 2011 – “SECTION 1.
Creation. – There shall be created in General Santos City the Motorized Tricycle Franchising Regulatory Board (MTFRB) primarily to serve as policy-making body and shall supervise the franchising and/or regulation of the operation of public utility tricycles.”
o SECTION 3, PARAGRAPH (a) AND (c), ORDINANCE NO. 10, SERIES OF 2011 – “SECTION 3. Duties and Responsibilities. –
a. Supervise the franchising and regulate the operation of all public utility tricycles throughout the city;
c. Receive, process and accept/deny applications for issuance of franchise and recommend for approval or disapproval of the same to the MTFRB Chair;”
Now then, with the foregoing statements of applicable laws and rules pertaining to the grant of franchises to tricycles, which I have just made mention about, it’s absolutely doubtless that the authority conferred upon by the sanggunian to the city MTFRB is limited to rulemaking only, and not otherwise to lawmaking —- rulemaking being legally understood to include nothing more than plain supervision, and excludes for all other purposes the exercise of discretion, which, according to the thought of the renowned author — Justice Isagani A. Cruz — “ought to be coupled with the duty to be performed by the one exercising it to, thus, carry it out independently through the instrumentality of his own judgment and not through the intervening mind of another.” Please take note of the words “SUPERVISE” as mentioned twice in Sections 1 and 3of said Ordinance No. 10, series of 2011 which, clearly, was meant to restrict the role and functions of the city MTFRB to be so likened. Let me then state it clearly, my dear colleagues of this August Body, for the information of all concerned, that we never have meant to transfer the exercise of discretion in the approval of tricycle franchises to any body else in this Local Government Unit.
Therefore, putting the verbs of City Ordinance No. 10, series of 2011 into lawful application, for instance, would have simply meant that the cityMTFRB should, plainly, have acted as a Technical Working Group for this Sanggunian insofar as the grant of tricycle franchises were concerned. I understand that we’ve ideally constituted the city MTFRB to assist this Sanggunian in the proper discharge of its legislative discretion by simply processing applications for tricycle franchises submitted before it for consideration. As such, its functions were supposed to be confined only to checking or examining the details of each application for tricycle franchise to determine whether these details were complete in its face and, thus, have conformed to the specifications required for by various laws, rules and regulations. And then, have such application be submitted and recommended for approval by this Sanggunian through the subsequent passage of a Resolution by the Sangguniang Panlungsod to this effect. Upon receipt of these applications, however, the sanggunian, by the way, while applying appropriate legislative procedures, had yet to pass decision whether to ultimately approve, defer or deny these applications. Just like the case of applications for the development of subdivisions in the city, wherein the Development Control Committee chaired by the City Planning and Development Coordinator does the technical job involved in the process and, after finding such applications to be in order, submits and recommends these for approval by virtue of aSangguniang Panlungsod Resolution duly passed thereby.
So why did we come to think and mean, then, that the law had allowed the city MTFRB or any other technical working committee of thesanggunian, for any matter at all in aid of legislation, to possess and exercise only such rulemaking functions?
My colleagues of the 16th Sanggunian, let’s all direct our query to that basic legal maxim in Political Law and Constitutional Law which declares: “Potestas Delegata Non Delegare Potest,” which means: “What has been delegated cannot be delegated any further,” which, I assume, we all were aware about very well since the time we’ve set our feet into this Plenary Hall. And we also knew that this was the very tenet upon which policymakers before us adhered to when they’d come together to conceptualize on how legislative power ought to be bounded since the time our very own democratic government came into being. Further, we also understand that delegation of Police Power, practically, is abhorred under our Constitution as well as by our democratic tradition: Except, only in the case of the Congress delegating its Police Power in favor of Local Government Units —- the jurisprudential interpretation of this process was first enunciated by the Supreme Court en banc in the landmark case ofRubi v. Provincial Board (G.R. No. L-14078. March 7, 1919) as well as by other succeeding court decisions that were taken up to delve especially on this matter.
And if I were to recall furthermore my learning back at the academe, we’ve been repeatedly told that the exercise of Police Power by the state is inherently absolute…so great…so broad…so extensive and, at times, too violently repressive. And that, in almost all cases, enforcement of Police Power by the state had to encroach upon lives, property, and freedom. So that it needed to be lodged only unto a responsibly accountable collegiate body which ought not to use it: Except, only through such lawful means and upon such lawful subjects, in order to ensure that its forceful application shall, at all times, be immune from the vicissitudes of partisan politics or the whimsical thoughts or decisions of individuals.
In line with the foregoing thought, we’re, therefore, no less than this so-called responsibly accountable collegiate body being referred to by the Constitution, by the Local Government Code of 1991, by the Supreme Court, and by our democratic tradition, my distinguished colleagues. We’re among those “small republics from which the great one derives its strength.” And among our delegated powers lies the approval of tricycle franchises. We alone are meant to possess and exercise this powerful responsibility. So that no one else within this Local Government Unit, but this Sanggunian shall ultimately resolve and decide — after conducting appropriate legislative procedures — whether to grant, defer or deny such franchises.
But for one reason or another none of us know ‘til now, we’ve been seeing the city MTFRB carry out, on its own, the exercise of discretion pertaining to the granting and approval of tricycle franchises — which must have been inherently and exclusively legislative — when it opted to issue franchises to tricycles and even, to some extent, implemented some policy actions without the express consent and approval by thisSanggunian. This being the case, we’ve got to assume, my distinguished colleagues of this August Hall, that no single tricycle in the city is now being run legally, pursuant to Sub-Paragraph (vi), Paragraph (3), Section 458, of RA 7160 and Sub-Paragraph (vi), Paragraph (3), Article 99 of its Implementing Rules and Regulations, since no single tricycle operator in the city now holds any single lawful franchise to operate tricycle which has been duly issued by the Sangguniang Panlungsod, City of General Santos.
Again, I would like to reiterate for the information of all the people concerned: That no single tricycle in the city now runs legally since no single tricycle operator in the city now holds any single lawful franchise to operate tricycle which has been duly issued by the Sangguniang Panlungsod, City of General Santos.
Now, therefore, given the gravity of this policy issue that I’ve just disclosed before your attention, I’m strongly urging this Sanggunian, most particularly the members of our very own Committee on Rules as well as the Committee on Transportation, Communications, and Franchises to start thinking about the most efficient and effective remedial means whereby we could have this very troubling error rectified, once and for all, for the best interest of the Local Government Unit of General Santos City and the transportation sector in particular, and the welfare of the riding public in general.
Likewise, I’m especially calling on the Honorable Remus P. De Claro to, very urgently, bring this matter to his legislative attention — his incumbent representation, as the Chairperson of the Committee on Transportation, Communications, and Franchises being the voice of the local transportation sector in this Sanggunian — so that we could, all together, come up with a more concerted, more balanced, and a more partisan-free resolution of the issue at hand.
Let me advise all of you further, that we just couldn’t afford to let this policy issue past our common action, taking into consideration the compelling legal and technical infirmities that needed to be addressed and remedied at once by this Sanggunian. Or else, we all shall be held remiss of our bounden duty to take action upon policy questions which were passed upon, by the people in their sovereign capacity, unto this local legislative body to decide wisely on their behalf.
For my part, let everyone know that I shall be sending a formal communication to the city’s Local Chief Executive to inform her Honor about this mistake, so she could also be able to officially respond to this problem in whatever manner she would deem best for the Executive Department to take.
Thank you very much and God Bless!
END. 9:33 A.M.
SHIRLYN L. BAÑAS-NOGRALES