G.R. No. 158793 (James
Mirasol, Richard Santiago, et al., petitioners v.
The Department of Public Works and
Highways and the Toll Regulatory Board, Through the Office of the Solicitor
General, respondents.)
Promulgated:
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DISSENTING OPINION
Tinga, J.:
I dissent from the opinion which has
found favor with the majority holding that Department of Public Works and
Highways (DPWH) Department Orders Nos. 74, 215 and 123 are void for want of
authority on the part of the DPWH to promulgate them.
The fundamental question which seeks
an answer from this Court is which between the DPWH and the Department of
Transportation and Communications (DOTC) has the charge of implementing Republic
Act No. 2000, otherwise known as the Limited Access Highway Act. These two
departments have mutually exclusive functions in the general scheme of
government. The DPWH oversees the construction, maintenance and operation of
public works and infrastructure facilities, and administers the highway
system. The DOTC, on the other hand,
directs the nation’s transportation and communication network systems. To resolve this case, it is crucial for us to
determine within which sphere of functions the powers granted under the Limited
Access Highway Act fall, i.e., whether the Limited Access Highway Act
involves the administration of the highway system or the management of the
transportation network.
After tracing the evolution of the Department
of Public Works and Communications (DPWC) which was originally given the
authority under the Limited Access Highway Act to regulate, restrict or
prohibit access to limited access facilities, the ponencia
concludes that this authority was eventually bestowed upon the DOTC.
With due respect, I cannot share this
conclusion. I shall explain.
The Limited Access Highway Act
authorized the DPWC “to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use
wherever it is of the opinion that traffic conditions present or future, will
justify such special facilities…”[1] At the time of the enactment of the Limited
Access Highway Act in 1957, the Bureau of Public Highways (BPH) had already
been created as an office under the DPWC by RA 1192 in 1954.[2]
Under RA 1192, the Commissioner of
Public Highways was directly responsible for administering the Philippine
Highway Act of 1953;[3]
preparing long-range programs of highway development, improvement and
construction; formulating uniform practices for the physical design of highway
facilities; directing research in matters of highway planning, location,
design, construction and maintenance, including the testing of materials and
the proper and efficient use of highway equipment; promoting sane economy
in the expenditure of highway funds, utilization of supplies and materials,
preservation of property and equipment, and management operations; preparing annual
budgets of proposed expenditures for construction, reconstruction, and
improvement work; and supervising the signing of vouchers, orders for supplies,
materials, and any other expenditures.
The task of administering the
nation’s highways squarely fell on the shoulders of the Commissioner of Public
Highways as specified in RA 1192. Upon the enactment of the Limited Access
Highway Act in 1957, it was also the BPH, headed by the Commissioner of Public
Highways, which carried out the functions of establishing and regulating the
highways and streets to be used as limited access facilities.
It is significant to note that the
establishment of limited access facilities requires engineering expertise, for
which reason the Limited Access Highway Act specifically authorized the DPWC
“to divide and separate any limited access facility into separate roadways by
the construction of raised curbings, central dividing
sections, or other physical separations, or by designating such separate
roadways by signs, markers, stripes, and the proper land for such traffic by
appropriate signs, markers, stripes, and other devices.” The BPH, with its mandate to plan and
administer the national highway program and the Chief Highway Engineer[4] at
its disposal, was in the best position to establish and regulate limited access
facilities.
It is worth mentioning that even
under the Revised Philippine Highway Act[5]
passed in 1972, the BPH was designated as the agency of the DPWC “that has the
charge of the administration of highways.” The Revised Philippine Highway Act
primarily controls the disposition of the Highway Special Fund; the manner of
its apportionment and release; the selection and designation of highways or
highway projects to receive national aid; the expenditures for the
administration, maintenance, improvement, betterment and rehabilitation of
highway projects; and the classification of highways, widths, acquisition and
use of rights of way. However, it
also provides for the establishment of an integrated system of highways, and
vests in the Secretary of the DPWC the power to make rules and regulations and
make such recommendations as he may deem necessary to preserve and protect the
highways and insure traffic safety.[6] I submit that the duty of highway
administration and management vested upon the BPH and succeeded to by the DPWH
includes the duty to regulate the use and enjoyment thereof.
In 1974, the BPH was separated from
the Department of Public Works, Transportation and Communications (DPWTC). It was expanded and restructured into the
Department of Public Highways (DPH) by virtue of Presidential Decree No. 458
(PD 458).[7]
With the shift in the form of
government resulting from the amendment of the 1973 Constitution, national
agencies were renamed from departments to ministries. Thus, the DPWTC became the Ministry of Public
Works, Transportation and Communications (MPWTC) and the DPH became the
Ministry of Public Highways (MPH).
In 1979, President Marcos issued
Executive Order No. 546 (EO 546)[8]
creating a Ministry of Public Works (MPW) which assumed the public works
functions of the MPWTC and was charged with the “construction, maintenance and
repair of port-works, harbor facilities, lighthouses, navigational aids, shore
protection works, airport buildings and associated facilities, public buildings
and school buildings, monuments and other related structures, as well as
undertaking harbor and river dredging works, reclamation of foreshore and
swampland areas, water supply, and flood control and drainage works.”[9]
EO 546 also created a Ministry of
Transportation and Communications (MOTC) declared as the “primary policy,
planning, programming, coordinating, implementing, regulating and
administrative entity of the executive branch of the government in the promotion,
development, and regulation of a dependable and coordinated network of
transportation and communication systems…”[10]
The ponencia
correctly noted that the MPW took over the public works functions of the
MPWTC. However, it omitted mention of the fact that even as these new
ministries were created, the MPH continued to exist and exercise the powers
vested in it by RA 1192, including those under the Limited Access Highway
Act. Because of the MPH’s
continued existence, at no time were these functions ever transferred to or
exercised by the MPW or even the MOTC. I
vigorously reiterate that the creation of these two ministries did not affect
the existence of the MPH or result in the transfer of the functions of the MPH
to the MPW and the MOTC. The MPH continued
to exist as a distinct entity with clearly-delineated functions, including the
duty of highway administration.
The MPW and the MPH were later
abolished by EO 710[11]
which, instead, created a Ministry of Public Works and Highways (MPWH) and
transferred to the latter the functions of the abolished ministries. The MPWH is now known as the DPWH, the
government’s primary engineering and construction arm, responsible for the
planning, design, construction and maintenance of infrastructures such as
roads, bridges, flood control systems, water resource development projects and
other public works.
The foregoing history of the DPWH,
which has evolved from its predecessors, the BPH, DPH, MPH and MPWH, I submit,
supports my view that it is the DPWH, and not the DOTC, which has inherited the
functions previously exercised by the BPH, including those granted by the
Limited Access Highway Act.
The Limited Access Highway Act
confers the authority to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use under
Sec. 3 thereof, and the powers to design, regulate, restrict, or prohibit
access to these limited access facilities under Sec. 4. Although they appear in different sections of
the law, the clear and unmistakable intent was for all of these powers to be integrated
in and exercised by just one entity, the DPWC.
Instead of continuing with the
integration of the mandate under the Limited Highway Act, the ponencia essentially dichotomizes these
functions covered by the mandate. While it appears to concede that the functions
of the DPWH includes the planning, design, construction, maintenance and
operation of infrastructure facilities, which should also include limited
access facilities, in the same breath it posits that the powers to regulate,
restrict or prohibit access thereto have been devolved to the DOTC. This is obvious from the way the ponencia focuses on the regulatory power of
the DOTC under the Administrative Code in furtherance of the view that
the DPWH does not have the authority to
regulate, restrict or prohibit access to limited access facilities, and sidesteps a discussion on the
powers conferred under Section 3
of the Limited Access Highway Act which, by their very nature, can only be exercised by the DPWH. I
submit that this approach is
inconsistent with the intent of the law for the powers conferred therein to be
exercised by only one entity.
Justice Carpio
asserts that as the DOTC is empowered to administer and enforce all laws, rules
and regulations in the field of transportation and communications, so is it
granted authority over limited access facilities. I beg to differ.
The authority of the DOTC over land
transportation is exercised by the Land Transportation Office (LTO) and covers
the inspection and registration of motor vehicles, issuance of licenses and
permits, enforcement of land transportation rules and regulations, and
adjudication of traffic cases. These
functions have remained the same despite the changes in the names of the LTO
and the reorganizations it underwent.
The predecessor of the
LTO is the Land Transportation Commission (LTC) created in 1964 by RA 4136.[12]
RA 4136 was amended by RA Nos. 5715 and 6374, PD Nos. 382, 843, 896, 1057,
1934, 1950 and 1958, and BP Blg. 43, 74 and 398, and
is now known as the Land Transportation and Traffic Code. Its provisions control the registration and
operation of motor vehicles and the licensing of owners, dealers, conductors,
drivers, and similar matters.
The powers and duties of
the former LTC Commissioner, now exercised by the LTO, are as follows:
(1) With the approval of the Secretary of Public Works and
Communications, to issue rules and regulations not in conflict with the
provisions of this Act, prescribing the procedure for the examination,
licensing and bonding of drivers; the registration and re-registration of motor
vehicles, transfer of ownership, change of status; the replacement of lost
certificates, licenses, badges, permits or number plates; and to prescribe the
minimum standards and specifications including allowable gross weight,
allowable length, width and height of motor vehicles, distribution of loads,
allowable loads on tires, change of tire sizes, body design or carrying
capacity subsequent to registration and all other special cases which may arise
for which no specific provision is otherwise made in this Act.
(2) To compile and arrange all applications, certificates,
permits, licenses, and to enter, note and record thereon transfers,
notifications, suspensions, revocations, or judgments of conviction rendered by
competent courts concerning violations of this Act, with the end in view of
preserving and making easily available such documents and records to public
officers and private persons properly and legitimately interested therein.
(3) To give public notice of the certificates, permits,
licenses and badges issued, suspended or revoked and/or motor vehicles
transferred and/or drivers bonded under the provisions of this Act.
(4) The Commissioner of Land Transportation, with the
approval of the Secretary of Public Works and Communications, may designate as
his deputy and agent any employee of the Land Transportation Commission, or
such other government employees as he may deem expedient to assist in the
carrying out the provisions of this Act.
(5) The Commissioner of Land Transportation and his
deputies are hereby authorized to make arrests for violations of the provisions
of this Act in so far as motor vehicles are concerned; to issue subpoena and
subpoena duces tecum to
compel the appearance of motor vehicle operators and drivers and/or other
persons or conductors; and to use all reasonable means within their powers to
secure enforcement of the provisions of this Act.
(6) The Commissioner of Land Transportation or his
deputies may at any time examine and inspect any motor vehicle to determine
whether such motor vehicle is registered, or is unsightly, unsafe, overloaded,
improperly marked or equipped, or otherwise unfit to be operated because of
possible excessive damage to highways, bridges and/or culverts;
(7) The Philippine Constabulary and the city and municipal
police forces are hereby given the authority and the primary responsibility and
duty to prevent violations of this Act, and to carry out the police provisions
hereof within their respective jurisdictions: Provided, That all
apprehensions made shall be submitted for final disposition to the Commissioner
and his deputies within twenty-four hours from the date of apprehension.
(8) All cases involving violations of this Act shall be
endorsed immediately by the apprehending officer to the Land Transportation
Commission. Where such violations necessitate immediate action, the same shall
be endorsed in the traffic court, city or municipal court for summary
investigation, hearing and disposition, but in all such cases, appropriate
notices of the apprehensions and dispositions thereof shall be given to the
Commissioner of Land Transportation by the law-enforcement agency and the court
concerned.
Notation of such dispositions shall be
entered in the records, and a copy shall be mailed to the owner and to the
driver concerned.
Nowhere in this list of functions is
there any indication that the LTO has the authority to establish and regulate
limited access facilities. The traffic rules and regulations which the LTO is
tasked to enforce pertains to traffic rules enumerated in the Land
Transportation and Traffic Code, including speed limit and keeping to the
right, overtaking and passing a vehicle and turning at intersections, right of
way and signals, turning and parking, reckless driving, right of way for police
and other emergency vehicles, tampering with vehicles, hitching to a vehicle,
driving or parking on sidewalk, driving while under the influence of liquor or
narcotic drug, obstruction of traffic and duty of driver in case of accident.[13]
Significantly, even as it codified
all laws relative to land transportation and traffic, the Land Transportation
and Traffic Code, as amended, makes no mention of or reference to the
establishment and regulation of limited access facilities, a tacit recognition
of the DOTC’s lack of authority on the matter.
Justice Carpio’s
pronouncement that the Administrative Code of 1987 (Administrative Code)
confers upon the DOTC the authority to establish and regulate limited access
facilities is an inference based on an erroneous reading of the law. The Administrative Code does provide,
among others, that the DOTC shall administer and enforce all laws, rules and
regulations in the field of transportation and communications, and establish
and prescribe the corresponding rules and regulations for enforcement of laws
governing land transportation. I submit,
however, that if we were to interpret these provisions correctly and apply them
to the instant case, it is imperative that a distinction be drawn between the
power to regulate transportation and the power to regulate highways, the former
being a DOTC prerogative, and the latter an authority unquestionably belonging
to the DPWH.
Transportation is defined as the
movement of goods or persons from one place to another by a carrier.[14] And so it is that the powers vested in the
DOTC refer to its authority over transportation carriers and utilities
and makes no mention at all of highways as clearly demonstrated by the Reply’s
enumeration of the DOTC’s powers under the
Administrative Code.
In contrast, the Administrative Code
makes several references to the DPWH’s authority over
highways, defined as roadways laid out or constructed to accommodate modes of
travel and other related purposes.[15] It provides:
Sec.
3. Powers and Functions.—The Department, in order to carry out its
mandate, shall:
(1) Provide technical services for the planning, design, construction, maintenance, or operation of infrastructure facilities;
(2) Develop
and implement effective codes, standards, and reasonable guidelines to ensure
the safety of all public and private structures in the country and assure
efficiency and proper quality in the construction of public works;
(3) Ascertain
that all public works plans and project implementation designs are consistent
with current standards and guidelines;
(4) Identify,
plan, secure funding for, program, design, construct or undertake
prequalification, bedding, and award of contracts of public works projects with
the exception only of specialized projects undertaken by Government corporate
entities with established technical capability and as directed by the President
of the Philippines or as provided by law;
(5) Provide
the works supervision function for all public works construction and ensure
that actual construction is done in accordance with approved government plans
and specifications;
(6) Assist
other agencies, including the local governments, in determining the most
suitable entity to undertake the actual construction of public works projects;
(7) Maintain
or cause to be maintained all highways, flood control, and other public
works throughout the country except those that are the responsibility of other
agencies as directed by the President of the
(8) Provide an integrated planning for highways, flood control and water resources development systems, and other public works;
(9) Classify roads and highways into national, regional, provincial, city, municipal, and barangay roads and highways, based on objective criteria it shall adopt; provide or authorize the conversion of roads and highways from one category to another;
(10) Delegate, to any agency it determines to have adequate technical capability, any of the foregoing powers and functions; and
(11)
Perform such other functions as may be provided by law.
The foregoing references to the DPWH’s power over highways, and the concurrent absence of
any such reference in the DOTC, to my mind, are unmistakable indications of the
Administrative Code’s intention to recognize and acknowledge the DPWH’s exclusive competence and jurisdiction in matters of
highway administration and management.
Parenthetically, I should like to
point out that the ponencia leaned
heavily on the premise that EO 546 devolved the authority to regulate limited
access highways to the DOTC. Justice Carpio merely took off from my reference to the
Administrative Code to support his view that the DPWH does not have the power
to regulate access to limited access facilities since this is not a function
specified by the Administrative Code.
Apart from emphasizing yet again that
the creation by EO 546 of the MPW and MOTC did not affect the existence of and
functions exercised by the MPH, I also accentuate the fact that the
Administrative Code did not repeal the Philippine Highway Act of 1953, as
amended. Even as the Administrative Code
codified the powers and functions of the departments of the executive branch
including the DPWH and the DOTC, the authority to administer the nation’s
highway system, which, I submit, includes the power to establish and regulate
limited access facilities, remained to be a function of the DPWH. To reiterate, there is nothing in the
Administrative Code which vests in the DOTC the administration of the
Finally, since the DPWH has
traditionally exercised the power and authority to establish and regulate
limited access facilities to the exclusion of and without objection from other
government agencies including the DOTC, I submit that we grant judicial
imprimatur to its jurisdiction absent any unequivocal conferment of authority
on the DOTC.
A parallelism can be drawn between
this case and another in which an administrative agency has maintained its own
interpretation of a particular statute.
In Saxbe v. Bustos,[16] for
example, an administrative construction of the Immigration and Naturalization
Act classified a worker who lives in
Similarly, in this case, the
questioned department orders were issued between 1993-2001. Through all these
years, and even earlier in the case of Administrative Order No. 1 issued in
1968, the DPWH has been exercising the functions under the Limited Access
Highway Act. Judicial deference should
be accorded this long-standing practice consistently acquiesced to and
recognized by the other executive departments, including the DOTC.
FOR THE FOREGOING REASONS, I cannot concur
with my colleagues in their judgment. I
vote for the dismissal of the petitions.
DANTE
O. TINGA
Associate Justice
[1]Incidentally,
in 1951, the DPWC was already reconstituted as the Department of Public Works,
Transportation and Communication (DPWTC).
[2]An Act
to Create the Bureau of Public Highways, Abolishing the Division of Highways of
the Bureau of Public Works approved on
[4]Under Sec. 4 of RA 1192, the Chief Highway Engineer was directly responsible for: (1) coordinating the various phases of planning, location, design, construction and maintenance of public highways; (2) coordinating matters of line and grade with the services on design of bridges and railroad crossings; (3) coordinating matters of research and specifications with other highway services; (4) checking and passing on final awards of contracts; and (5) reviewing and passing on highway budgets prepared by the corresponding division or service.
[7]Amending
Presidential Decree no. 1 Dated
[8]Creating
a Ministry of Public Works and a Ministry of Transportation and Communications
dated
[12]An Act
To Compile The Laws Relative To Land Transportation And Traffic Rules, To
Create A Land Transportation Commission And For Other Purposes.