Vice Mayor Shirlyn L. Bañas-Nograles Privilege Speech In the Matter of the City MTFRB’s Granting of Franchises To Tricycles


11 September 2012

 

Sangguniang Panlungsod Session Hall

9:12 A.M.

 

Privilege Speech

IN THE MATTER OF THE CITMTFRBGRANTING 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

16tSangguniang 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 16tSanggunian, 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 troubleAnd 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.”

 

End quote.

 

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.”

 

End quote.

 

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;”

 

End quote.

 

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  supervisionand  excludes  for  all  other  purposes  the  exercise  of discretionwhich, 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.

 

 (Sgd.)

SHIRLYN L. BAÑAS-NOGRALES

 


This post was written by JP C. Bitalac

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