The Truth About the P80 Million Bulan Bus Terminal Mandamus

By Luisito Panelo

    BULAN, SORSOGON, 04 February 2008 – The euphoria of Mayor Rosa De Castro’s much-heralded “dismissal” of the Petition for Mandamus filed by certain Bulan residents ended today with the filing of a motion for reconsideration by Gogolin, et. al. with the Regional Trial Court (RTC) of Bulan in Sorsogon City.

     The motion for recon pointed to certain “errors” in the Order of Judge Adolfo Fajardo of RTC’s Branch 65 and the “lack of legal basis” on the latter’s “conclusions” dismissing the Petition for being “prematurely filed”.

     Atty. Redentor Guyala, counsel for the petitioners, assailed in his motion the court’s reasoning when it said that de Castro “is not prevented at all from adopting some latitude of discretion in the performance of such duties under RA 6718” or the law requiring the mayor to disclose information and grant full access to official records, documents and papers pertaining” to the Bulan Bus Terminal project.

     Atty. Guyala pointed out that the “arguments or reasons advanced by the court are flawed and untenable and CONTRARY to earlier decisions of the Supreme Court, as well as to the facts cited in the Petition.

     The petitioners’ lawyer wrote, “A cursory reading of the provision quoted by the court in its Order showed that Mayor de Castro do not have the kind of ‘latitude of discretion’ in performing her duties under Sec. 11 (d) of RA 6718.” He then added that Mayor de Castro is, in fact, given only a time frame of 15 days from receipt of the letter request to act and she is specifically directed to ACT PROMPTLY, IMMEDIATELY and EXPEDITIOUSLY on requests covered by RA 6718.

     “The language of RA 6718 is too plain and unambiguous for anyone to miss out on the law’s stated imperative”, the motion pointed out.

      “It is unfortunate that the court, in advancing its argument that the respondent mayor ‘is not prevented from adopting some latitude of discretion. . .’ only opted to take short excerpts of Section  8 and 11, par. D of RA 6718 failing to note that the said provisions of law referred only to one type of public document, the Statement of Assets and Liabilities (or SAL) required of public officers or those employed in the government and that said provisions are not applicable to the documents requested by the petitioners.

     “The sections cited by the court, have NO application to petitioners’ requested information and access to official records, documents and papers pertaining to the official acts, transaction or decision of Mayor de Castro concerning the Bulan Bus Terminal Project.”

     Guyala’s Motion also assailed the court’s second argument as erroneous. It provided

     “The court argued that the petition ‘failed to state the legitimate reason for such a request’, but yet failed to cite any law or rule that would require petitioners to first state a ‘legitimate reason’ BEFORE the respondent mayor would recognize the constitutionally guaranteed right to information and access to public records, documents and papers pertaining to the mayor’s bus terminal project and perform her mandated duty under RA 6718.

     “The fact is, there is NO LAW or RULE that requires petitioners to state a reason and settled jurisprudence distinctly held no such requirement. Obviously, this court’s argument stemmed from a misconception of the nature and character of petitioners’ right to information and access to public documents. This misconception is apparent from the court’s equally fallacious (third) argument that ‘the petition failed to show clearly that petitioners have a well defined, clear and certain right to warrant the grant of mandamus’, and its untenable (fifth)  argument that mandamus will not issue in this case ‘where there is NO SPECIFIC RIGHT to be enforced’.

     Refuting these arguments, Atty. Guyala explained that the petitioners request for information and access to public records, documents and papers on the mayor’s project was, verbally and in writing, made to Mayor de Castro on June 28, 2007 during a so-called “Consultative Conference” and in the course of a discussion with her, where the majority of those in attendance were asking to be enlightened about the Project’s “raison d’ etre”, and about certain aspects of the Project which would allow the people of Bulan “to determine whether those to whom they have entrusted the affairs of government are honestly, faithfully and competently performing their function as public servants”, as elucidated in the analogous case of Chavez vs. PCGG (299 SCRA 539).

     Those in attendance, particularly the petitioners, were anxious to verify the truth of the reported violations of the Procurement Law and bidding rules, the Anti-Graft and Corrupt Practices Act, the Comprehensive Agrarian Reform Act, even the National Building Code and Environment Laws and Regulations, which supposedly attended the implementation of the Project.

     “Viewed against this backdrop”, Atty. Guyala further explained, “the ‘purity of intention’ and ‘legitimacy of the motive’ of petitioner  former Vice Mayor Albino G. Guyala III and, as the court put it, ‘his cohorts’ in making their request could not be doubted or questioned. The place where, and the spontaneity in which the said request was made, if anything else, should be sufficient to assure the mayor, and even the court, of petitioners’ good faith in so making it. After all, in law and in everyday life, good faith, rather than malice, is always to be presumed. Malice always needed proof to be believed. An allegation, however, of ‘perennially losing an election’ is never an evidence of malice or bad faith, although unmistakably it is an indication of a decadent and juvenile mindset of the party alleging it.”

     On the right of petitioners to ask the court to compel Mayor de Castro to grant them access to information and public records, the Motion characterized the Right as SELF-EXECUTORY CONSTITUTIONAL RIGHT. It is afforded and guaranteed to any citizen of this country under Art. III Section 7 of the 1987 Constitution. According to Constitutionalist Joaquin Bernas’ “The Constitution of the Philippines: A commentary”,

     “The right, moreover, is a public right where the real parties in interest are the people. Hence, every citizen has a “standingto challenge any violation of the right and may seek its enforcement by mandamus.” (2003 Ed, p. 371).

     “In asserting their right, which is a PUBLIC right”, Atty. Guyala further clarified, “petitioners are not duty-bound to first explain their motive or the legitimacy of their purpose to Mayor de Castro whose mandated duty under RA 6718 is to recognize petitioners’ right to information, to act promptly on their letter request, and to make accessible and readily available for inspection within reasonable hours all public documents so requested. To vanish all doubts and misgivings about petitioners’ right and standing to bring this suit for mandamus, Justice Irene Cortez’s ponencia in Legaspi vs. Civil Service Commission, is quoted, viz:

     In the case before Us, the respondent takes issue on the personality of the petitioner to bring this suit. It is asserted that, the instant Petition is bereft of any allegation of Legaspi’s actual interest in the civil service eligibilities of Julian Sibinghanoy and Mariano Agas. At most there is a vague reference to an unnamed client in whose behalf he had allegedly acted when he made inquiries on the subject (Petition, Rollo, p.3). xxx

     “But what is clear upon the face of the Petition is that the petitioner has firmly anchored his case upon the right of the people to information on matters of the public concern, whom, by its very nature, is a public right. It has been held that:

     * * * when the question is one of the public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws * * * (Tanada et. al. vs. Tuvera et. al., G. R. No. L-63915, April 24, 1985).

     From the foregoing, it becomes apparent that when a Mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general ‘public’ which possesses the right.

     * * * ‘Public is a comprehensive, all-inclusive term. Properly construed, it embraces every person. To say that only those who have a present and existing interest of a pecuniary character in the particular information sought are given the right of inspection is to make an unwarranted distinction. * * * (Subido vs. Ozaeta, supra at p.387)’

     The petitioner, being a citizen, who as such is clothed with personality to seek redress for the alleged obstruction of the exercise of the public right. We find no cogent reason to deny his standing to bring the present suit.

     Atty. Guyala’s Motion also find the court’s argument as untenable and erroneous when the latter advanced the arguments that “within the machinery of the LGU”, an administrative remedy is available to the petitioners, like the filing of an administrative complaint citing in support the case of Militante vs. Honorable Court of Appeals.

     “There are basic fundamental factual differences between this instant (Gogolin’s) petition and that of Militante’s, such that the general principle of exhaustion of administrative remedies finds NO application in this petition”, Guyala’s motion for reconsideration pointed out.

     “In the Militante case, petitioner sought the implementation of a private right, that is, a demolition order which was not directly addressed to the respondent, nor was it respondent’s mandated duty to act on it. And significantly, in the Militante case, there were other administrative officers superior to her who could grant the relief prayed for, as those superior officers could act instead, or substitute, or overturn respondent’s act. Respondent Carandang was a mere department manager in the National Housing Authority (NHA) whose General Manager is Gaudencio Tobias. On the other hand, in the instant petition, petitioners are asserting a PUBLIC RIGHT, a constitutional self-executory PUBLIC right. And unlike respondent Carandang in the Militante case, Mayor de Castro is not a subordinate, but the ‘top Indian’ in the totem pole of the local government unit (LGU) of the town of Bulan. No one can substitute for, or reverse her decision, or can the respondent be legally compelled to do her mandated duty under RA 6718 by anyone, except only by the court. The respondent mayor is the CHIEF EXECUTIVE of her political, territorial domain, the LGU of Bulan. Consequently, unlike in the Militante case, the suggested administrative remedy of the court is impractical and unrealistic, and it is not PLAIN, SPEEDY and ADEQUATE remedy. An administrative complaint as suggested by the court ‘within the machinery of the LGU’ will certainly not be adequate, even if it would result in respondent mayor being censured, reprimanded or suspended, which, under our political culture and the local dispensation are well nigh impractical and unrealistic.”

     Atty. Guyala’s Motion for Reconsideration outlined to the court the instances where the law itself provided for exceptions to the applicability of the doctrine of exhaustion of administrative remedies. He wrote:

    1.    Where there is unreasonable delay or official inaction that will irretrievably prejudice the petitioners.

    2.    Where to exhaust administrative review or remedies is impractical and unreasonable.

    3.    When no administrative review is expressly provided by law.

    4.    When there is urgent need for judicial intervention or when strong public interest is involved.

    5.    When the only question involved is one of law.

     In summary, Guyala’s Motion stressed that, what is challenged before the court is Mayor de Castro’s “unreasonable and continuing inaction on, albeit refusal to grant, petitioners’ verbal and written request for information and “access to official records, documents ad papers pertaining to official acts, transaction or decision” of Mayor de Castro and her predecessor in office, Guillermo de Castro, relative to the Bulan Bus Terminal Project being undertaken by her in Barangay Fabrika, Bulan, Sorsogon”.

       The mayor’s inaction or refusal to grant petitioners the desired information and access, according to the Motion, constituted a violation of petitioners’ right to information and access to official records, etc. under Art. III, Section 7 (Bill of Rights) of the 1987 Constitution. And the filing of the Petition for Mandamus was intended to compel Mayor de Castro to disclose the information and to grant the access requested.

     By way of an epilogue, the Motion for Reconsideration concluded:

         “Of late, the Philippines has earned the notoriety of being dubbed the “most corrupt country” in Asia. As citizens of this country, petitioners, like other Filipinos, are uneasy and uncomfortable with such an appellation. Wide-spread as graft and corruption are perceived by many to be in this country, petitioners are just as anxious and prayerful as others, that such a notoriety will not visit their hometown, notwithstanding that already a large number of Bulan residents, rightly or wrongly, believe that the “plague” (or is it a “pillage”) has long come to Bulan, as early as 1995. Petitioners though, still cherish the hope, that with this court’s help, and in their small way, they can still forestall the spread in epidemic proportion of such a plague or pillage in Bulan. Heaven forbids! This motion for reconsideration, therefore, as with the earlier filing of this petition, is made purely in that light, hope and faith, surely “with malice towards none and charity to all”.

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