EN BANC

 

 

G.R. No. 166471      ---           Tawang Multi-Purpose Cooperative, Petitioner, versus La Trinidad Water District, Respondent.

 

                                                 Promulgated:

                  

                                                      March 22, 2011

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CONCURRING OPINION

 

ABAD, J.:

 

          On October 9, 2000 petitioner Tawang Multi-Purpose Cooperative (TMPC), a registered cooperative established by Barangay Tawang, La Trinidad residents for the purpose of operating a domestic drinking water service, applied with the National Water Resources Board (the Board) for a Certificate of Public Convenience (CPC) to maintain and operate a waterworks system within its barangay. 

 

But respondent La Trinidad Water District (LTWD), a government-owned corporation[1] that supplied water within La Trinidad for domestic, industrial, and commercial purposes, opposed the application.  LTWD claimed that its franchise was exclusive in that its charter provides that no separate franchise can be granted within its area of operation without its prior written consent.  Still, the Board granted TMPC’s application on July 23, 2002, resulting in the issuance of a five-year CPC in its favor.

 

          LTWD contested the grant before the Regional Trial Court (RTC) of La Trinidad which, after hearing, rendered judgment setting aside the Board’s decision and canceling the CPC it issued to TMPC.  The RTC denied TMPC’s motion for reconsideration, prompting the latter to come to this Court on petition for review.

 

          The Court has previously held in Metropolitan Cebu Water District v. Adala[2] that Section 47[3] of P.D. 198,[4] is unconstitutional for being contrary to Article XIV, Section 5 of the 1973 Constitution and Article XII, Section 11 of the 1987 Constitution.  Some in the Court would, however, have its above ruling reexamined based on the view that Section 47 does not actually provide for an exclusive franchise which would violate the Constitution.

                                      

          The Court’s conclusion and ruling in the Adala case read:

 

            Since Section 47 of P.D. 198, which vests an “exclusive franchise” upon public utilities, is clearly repugnant to Article XIV, Section 5 of the 1973 Constitution, it is unconstitutional and may not, therefore, be relied upon by petitioner in support of its opposition against respondent’s application for CPC and the subsequent grant thereof by the NWRB.

 

            WHEREFORE, Section 47 of P.D. 198 is unconstitutional. 

 

          Paragraph 2, Article 7 of the New Civil Code provides that “when the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.”

 

Since the Court, exercising its Constitutional power of judicial review, has declared Section 47 of P.D. 198 void and unconstitutional, such section ceased to become law from the beginning.   The Supreme Court’s power of review does not permit it to rewrite P.D. 198 in a subsequent case and breathe life to its dead provisions.  Only Congress can. 

 

Besides, such course of action is unwise.  The Court will be establishing a doctrine whereby people and the other branches of government will not need to treat the Court’s declaration of nullity of law too seriously.  They can claim an excuse for continuing to enforce such law since even the Court concedes that it can in another case change its mind regarding its nullity.

 

          I fully subscribe to the majority opinion, penned by Justice Antonio T. Carpio that there exists no justification for abandoning the Court’s previous ruling on the matter. 

 

I vote to GRANT TMPC’s petition for review and SET ASIDE the decision of the trial court.

 

 

 

                                                                   ROBERTO A. ABAD

                                                                       Associate Justice       


[1]  Created pursuant to Presidential Decree (P.D.) 198, also known as the Provincial Water Utilities Act of 1973.

[2]  G.R. No. 168914, July 4, 2007, 526 SCRA 465.

[3]  Sec. 47.  Exclusive Franchise.  No franchise shall be granted to any other person or agency for domestic, industrial or commercial water service within the district or any portion thereof unless and except to the extent that the board of directors of said district consents thereto by resolution duly adopted, such resolution, however, shall be subject to review by the Administration.

[4]  “Declaring a National Policy Favoring Local Operation and Control of Water Systems; Authorizing the Formation of Local Water Districts and Providing for the Government and Administration of such Districts; Chartering a National Administration to Facilitate Improvement of Local Water Utilities; Granting said Administration such Powers as Are Necessary to Optimize Public Service from Water Utility Operations, and for Other Purposes.”  This took effect upon its issuance by then President Marcos on May 25, 1973.