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Bohol Judiciary Takes Spotlight in City Square Trial
« on: September 05, 2009, 05:02:13 PM »
Bohol Judiciary Takes Spotlight in City Square Trial   

Precious Thoughts Column
(The Bohol Standard)

The high profile case filed to cancel the “questionable” contract for the rehabilitation of the former Agora Public Market into what is now a modern commercial complex called City Square could blow up to one of the hottest courtroom battles in recent history of Bohol.

Apart from putting at stake a multi-million deal between the city government and a private business consortium, the case pits Tagbilaran City Mayor Dan Lim against the “People of Tagbilaran” as complainants in the civil class suit lodged by top caliber lawyers Victor de la Serna, Alexander Lim and Zotico Ochavillo.

Regardless the outcome, the legal tussle could surely go down as one for the ages. How the designated judge would pen her ruling on the case, could become a landmark decision that will be used by law students and professors alike in their case studies.

As a backgrounder, since the case was filed sometime in November last year, five judges in the Regional Trial Court (RTC) have inhibited from hearing the complaint filed by the three lawyers which sought to nullify the City Square rehabilitate-operate-transfer (ROT) contract. Each of the five judges had their individual reasons for staying away from the controversy. These RTC judges were Fernando Fuentes III, Baudillo Dosdos, Suceso Arcamo, Achilles Melicor and Teofilo Baluma.

Quite understandably, no judge in his right mind would get himself embroiled in a fray which could get the ire of the sitting city mayor who is notoriously known for his fiery outbursts that excuses no one (not even his closest friends or relatives).

Well, as everyone may have already realized by now, only one of the five judges (Judge Baluma) have openly declared in public that he does not have close ties with the city’s chief executive and he is not receiving any allowances from City Hall, which his peers continue to enjoy as RTC judges assigned here in the city. This in fact caused more trouble for this daring judge as the city government exploited his spat with the city mayor as a reason for him to inhibit from the case.

Thus, it took 10 long months for the case to finally be assigned another judge to hear the class suit against the city mayor and the private developers of the City Square. This, despite the urgency in the complainant-lawyers’ plea that a TRO should be promptly issued “to stop the injustice and financial disadvantage of the ROT contract which the taxpayers and residents of Tagbilaran will have to bear,” thus said Atty. De la Serna.

But, starting last Friday, the enormous wheels of justice have finally been turned as the newly-designated judge – the Honorable Patsita Sarmiento-Gamutan of Branch 51 in Carmen – conducted the summary hearing for the TRO petition.

At the very least, it is a good start. Although the judiciary has taken a very slow action on the charges filed against the city mayor and the developers of the former public market, there is hope that Judge Gamutan will act for the speedy disposition of the case.

As De la Serna said, the case will be a showcase of judicial independence as the main respondent is a sitting mayor who can use his title, position, power, resources and prerogatives to influence the outcome of the proceedings in court.

Early into the summary hearing for the complainant’s petition for a temporary restraining order (TRO) to be issued against the City Square, a legal question is already posed by City Hall’s legal counsel, Atty. Doni Piquero, as to the propriety of allowing the lower courts to handle the case.

If Piquero’s argument is to be taken at face value, a government project such as the City Square could not be subjected to delays with the issuance of a TRO or an injunction by the courts, unless the court order emanates from the Supreme Court which is given the sole power to do so.

I had to do some research regarding this national law which the city government is using as its defense.

Regular courts had the predilection, pending the outcome of the main case, to issue temporary restraining orders (TROs) and preliminary injunctions (PIs) involving implementation of national government infrastructure projects and national programs.

The effect of the proliferation of TROs on national programs and projects is obviously detrimental. A stalled bidding or averted project derail the implementation of the project. Any delay caused by a 20-day TRO, and its extension by way of PI, without a doubt creates operational and market uncertainties, and disrupts the delivery of basic services.

While awaiting the lifting by the court of the PI or reversal by the higher court, fiscal projections could become stale. Foreign and domestic funding sources may dry up, prices of goods could increase, technologies may become irrelevant, national priorities could change, and winning bidders may lose interest. So as not to hamper the pursuit of national development projects, this indiscriminate practice must be discontinued or, at the very least, regulated.

Congress devised ways of correcting this wrong. Laws were enacted barring the imposition of TROs on certain activities. The Secretary of Labor and Employment cannot be prevented by lower courts from implementing enforcement orders protecting the health and safety of workers, and from assuming jurisdiction over labor disputes. Congress also ensured that no court shall have the authority to grant an injunction to restrain the collection of any national internal revenue tax imposed by the National Internal Revenue Code. Similarly, the Bases Conversion Development Authority cannot be stopped from converting military reservations, while the Power Sector Assets Liabilities Management cannot be enjoined from selling energy assets, save only a TRO issued by the Supreme Court.

Aside from specific restrictions, Congress also came up with a general ban on TROs and PIs. A judge who violates this ban may be held administratively liable. Republic Act 8975 imposed a broad limitation on the injunctive power of Court of Appeals, Regional Trial Courts and Municipal/ Metropolitan Trial Courts.

Under the law, no court—except the Supreme Court—shall issue any TRO, PI or preliminary mandatory injunction against the government, or any of its subdivisions, officials or any person or entity—whether public or private—acting under the government’s direction, to restrain, prohibit or compel the acquisition, clearance and development of the right-of-way and/or site or location of any national government project; and bidding, awarding or commencement of a contract/ project of the national government on infrastructure, engineering works, service contracts, and build-operate-transfer projects.

This, however, does not mean that government agencies have unlimited authority to do what they please. The ban on issuance of provisional relief is not absolute. An aggrieved party may seek a TRO or PI from the Supreme Court. While lower courts are prohibited from issuing TROs and PIs, they are not restricted from hearing the main case seeking the issuance of a permanent injunction. If, after due hearing, the court finds that the award of the contract is null and void, the court may award the contract to the qualified and winning bidder, or order a rebidding of the same, without prejudice to any liability that the guilty party may incur under existing laws.

The “no TRO/ PI rule” on lower courts admits of one exception. Under the law, a lower court may issue a TRO when the matter is of extreme urgency and involves a constitutional issue, and, unless a TRO is issued, grave injustice and irreparable injury will arise. In such case, the party seeking the TRO must post a bond.

As a rule, government projects must be pursued unhampered by delays and court TROs. There can be no sea of change in society without public-private partnerships being realized within the soonest possible time. However, like any lasting and real transformation, the ban on TROs must not be used for shortcuts, detours and transactions that are unmindful of constitutional and legal requirements. Courts and government agencies alike must constantly balance the interests of all.  :o


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