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POSITION
PAPER FOR
THE PETITIONERS
THE PETITIONERS respectfully submit this Position Paper, per instruction of
the City Council during the final mediation hearing held on October 8, 2012 at
10:00 AM:
PART I. – POSITION PAPER.
I.
NATURE
OF THE COMPLAINT
The petition seeks the administrative, political, rule-making power, the
LEGISLATIVE WISDOM, and the quasi-judicial intervention of the City Council,
pursuant to the Local Government Code of 1991, to find ways and means of
resolving, with wisdom and finality, the long-existing boundary dispute and related issues that have negatively affected
the territorial identity, administrative
operations, delivery of basic services, collection of revenues and fees, voters
registration, and other general welfare-related issues and concerns facing
the petitioner Barangay, resulting in unnecessary confusion in the minds of the
voters, constituents and enterprises voting, residing, located or doing
business within the territorial boundary of the petitioner Barangay and in the adjoining areas that were used to be
known as forming part of the territorial boundary and jurisdiction petitioner
Barangay for many decades now since it original creation.
These issues have been in
existence and have remained unresolved for the many decades now since the
1980s. It is time for
the City Council to settle, resolve, mediate, arbitrate, and adjudicate the
same with finality and in a comprehensive, wise, just, and fair manner, in the
interest of public service and the general welfare not only of the two (2) contending Barangays but of the City itself
as a whole.
II.
JURISDICTION
AND APPLICABLE LAWS
It will be noted that Sections
118 and 119 of the Local Government Code of 1991 provide for the specific
procedures for the SETTLEMEMNT OF BOUNDARY DISPUTE. Inter alia, the said provisions vest in the City Council the power
and authority to mediate, arbitrate, and adjudicate any and all boundary
disputes between and among all Barangays located within its territorial
jurisdiction. For instance, SECTION 118 of the Code provides that “boundary
disputes between and among local government units shall, as much as possible,
be settled amicably”. To this end, the provision states that “boundary disputes
involving two (2) or more barangays in the same city or municipality shall be
referred for settlement to the sangguniang panglunsod or sangguniang bayan
concerned”. It states that “in the event the sanggunian fails to effect an amicable settlement within sixty
(60) days from the date the dispute was referred thereto, it shall
issue a certification to that effect. Thereafter, the dispute shall be formally tried by the sanggunian
concerned which shall decide the issue within sixty (60) days from the date of
the certification referred to above”.
MEDIATION hearings were duly conducted by the City Council, acting thru
by the Hon. Xxx (ABC President), Hon. Xxx (Chair, Committee on Laws), and Hon. Xxx
(Chair, Comm. On Planning and Development), in the presence of 4 or 5
Councilors as observers. The Mediation process was officially terminated on October 8, 2012 at 11:00 AM in the
presence of all concerned.
It will be noted that Sections 7,
et. seq. of the Code provide for the CREATION AND CONVERSION, DIVISION AND
MERGER, ABOLITION, and PLEBISCITE REQUIREMENT, by way of general guidelines. SECTION 7 of the Code provides that “as
a general rule, the creation of a local government unit or its conversion from
one level to another level shall be based on verifiable indicators of viability
and projected capacity to provide services, to wit:
“(a) Income. — It must be
sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the
size of its population, as expected of the local government unit concerned;
(b) Population. — It shall be
determined as the total number of inhabitants within the territorial
jurisdiction of the local government unit concerned; and
(c) Land Area. — It must be
contiguous, unless it comprises two or more islands or is separated by a local
government unit independent of the others; properly identified by metes and
bounds with technical descriptions; and sufficient to provide for such basic
services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO), and the
Lands Management Bureau (LMB) of the Department of Environment and Natural
Resources (DENR).”
SECTION 8 of the Code provides that: “Division and merger of existing
local government units shall comply with the same requirements herein
prescribed for their creation: Provided,
however, That such division shall not reduce the income, population, or land
area of the local government unit or units concerned to less than the minimum
requirements prescribed in this Code: Provided, further, That the income
classification of the original local government unit or units shall not fall
below its current classification prior to such division”; and that “The
income classification of local government units shall be updated within six (6)
months from the effectivity of this Code to reflect the changes in their
financial position resulting from the increased revenues as provided herein”.
SECTION 10 of the Code provides that: “No creation,
division, merger, abolition, or
substantial alteration of boundaries of local government units shall take
effect unless approved by a majority of the votes cast in a plebiscite called
for the purpose in the political unit or units directly affected. Said
plebiscite shall be conducted by the Commission on Elections (Comelec) within one hundred twenty (120) days from
the date of effectivity of the law or ordinance effecting such action, unless
said law or ordinance fixes another date”.
Sections 38sss and 386 of the Code are important provisions. They provide
for the MANNER OF CREATION of and the CONSOLIDATION PLAN for Barangays, thus:
“SECTION 38sss.
Manner of Creation. — A barangay may be created, divided, merged, abolished, or its boundary substantially altered, by
law or by an ordinance of the sangguniang panlalawigan or panglunsod, subject
to approval by a majority of the votes cast in a plebiscite to be conducted by
the Comelec in the local government unit or units directly affected within such
period of time as may be determined by the law or ordinance creating said
barangay. In the case of the creation of barangays by the sangguniang
panlalawigan, the recommendation of the sangguniang bayan concerned shall be
necessary.”
“SECTION
386. Requisites for Creation. — (a) A barangay may be
created out of a contiguous territory which has a population of at least two thousand (2,000) inhabitants
as certified by the National Statistics Office except in cities and municipalities within Metro Manila and other
metropolitan political subdivisions or in highly urbanized cities where such
territory shall have a certified population of at least five thousand (sss,000) inhabitants: Provided, That the
creation thereof shall not reduce the population of the original barangay or
barangays to less than the minimum requirement prescribed herein.
x x x.
(b) The territorial
jurisdiction of the new barangay shall be properly
identified by metes and bounds or by more or less permanent natural boundaries.
The territory need not be contiguous if
it comprises two (2) or more islands.
(c) The governor or city mayor
may prepare a consolidation plan for
barangays, based on the criteria prescribed in this Section, within his
territorial jurisdiction. The plan shall
be submitted to the sangguniang panlalawigan or sangguniang panglunsod
concerned for appropriate action.
In the case of municipalities within the Metropolitan Manila Area and other metropolitan political
subdivisions, the barangay consolidation
plan shall be prepared and approved by the sangguniang bayan concerned.
X X X.”
III.
STATEMENT
OF FACTS
Based on the
documents so far gathered by the petitioner from the records of the City
Government, on April 3, 1978, former
Pres. Ferdinand Marcos issued the following Presidential Decrees (PD), which created Barangay xxx, Barangay xxx,
Barangay xxx, and Barangay xxx, out of then existing “Barangay xxx”, copies
of which were attached to the Petition as Annex
“A” to Annex “D”, to wit:
a. PD No. 133sss (Annex “A”). – Barangay xxx.
b. PD No. 1336 (Annex “B”). – Barangay xx.
c. PD No. 1337 (Annex “C”). – Barangay xxx.
d. PD No. 1338 (Annex “D”). – Barangay xxx.
Pursuant to PD No. 1338 (Annex “D”,
supra), which created in 1978 the
petitioner Barangay xxx, “the following subdivisions known as xxx, xxx HOMES, xxx,
xxx, and xxx in Barangay xxx” were
“detached and separated therefrom to form and constitute into a distinct and
independent barangay which is created to be known as Barangay xxx without
affecting in any manner the legal existence of the mother Barangay xxx.” (emphasis
supplied).
Many years back, in the early or middle part of the 1990s during the
tenure of the former Chairman of petitioner Barangay xxx, the herein petitioner
Barangay xxx had formally submitted to the City Council a POSITION PAPER, a
copy of which is attached as Annex “H”
hereof. It was submitted to a committee of the City Council which was then
conducting a hearing on respondent Barangay Sss Uno’s letter-complaint that it
had filed with the City Council on the matter of the boundary dispute between
it and the herein petitioner Barangay xxx. It
appears that the City Council at that time did not take a final action or
determination thereon by way of an ordinance or a resolution. In his
aforecited position paper, Chairman xxx argued that:
·
In 1991 respondent Barangay xxx passed Barangay Resolution No. 22, Series of 1991, “for the purpose of claiming jurisdictional powers over areas where
Barangay xxx exercises jurisdictional powers”.
·
Respondent xxx installed signboards “over certain areas in xxx
xxx giving the impression that it is xxx who has jurisdiction over these areas”.
·
The territorial jurisdiction of Barangay xxx is “NOT LIMITED
TO THE AREAS COVERED BY THE SUBDIVISIONS enumerated in P.D. No. 1338 (x x x)”
because “Barangay xxx’s jurisdiction
extends to areas contiguous to these
subdivisions over which xxx presently exercise(s) jurisdiction by way of
delivering essential public services x x x.”
·
The aforecited position of Barangay xxx, according to
Chairman xxx, was buttressed by (a) PD
No. 1338, (b) Local Government Code of 1991, (c) Cadastral Map of xxx prepared
by the Bureau of Lands, (d) Location of Voting Precincts by the Comelec, (e)
Recognition By The Candidates For Barangay xxx
Who Resided Outside of the Five (5) Subdivisions Enumerated in PD No.
1338, and (f) Services Rendered by Barangay xxx to Residents Outside of the
Five (5) Subdivisions Enumerated by PD No. 1338 who Sought Services in xxx.
·
Chairman xxx cited Section
7 © of the Local Government Code (in relation to Section 2 of PD No. 1338,
on the requirement that the land area of a Barangay must be “CONTIGUOUS” and
“PROPERLY IDENTIFIED BY METES AND BNOUNDS WIOTH TECHNMICAL DESCRIPTIONS” and
“SUFFICIENT TO PROVIDE FOR SUCH BASIS
SERVICES AND FACILITIES TO MEET THE REQUIREMENTS OF ITS POPULACE”.
·
PD No. 1338 did not describe the METES AND BOUNDS of Barangay
xxx but merely enumerated the five (sss) subdivisions.
Simultaneously with the
submission of his Position Paper, Chairman xxx also submitted therewith to the
City Council a CADASTRAL MAP of Barangay xxx prepared by the Land Management
Bureau, wherein it appeared that the
total area of the said Barangay in 1991 was 271.819sss hectares, which included the above-mentioned five (sss)
subdivisions and the AREAS CONTIGUOUS
THERETO.
Chairman xxx cited Sec. 6 of
the Code as the source of the power of the City Council to alter substantially
the boundaries of Barangays within its jurisdiction by way of an Ordinance
adopted for the purpose. He stressed, thus: “In the case of xxx, it is prayed that the attached Cadastral Map be
made the basis for fixing its territorial jurisdiction”. (See: Page 4 of the Position Paper of
Chairman xxx).
The Comelec had allowed
voters living in the areas contiguous
to the five (sss) subdivisions enumerated in PD No. 1338 to register and vote in
the precincts that it had created and installed in Barangay xxx, i.e., recognizing the residence/domicile of
the said voters as being officially located within the territory of Barangay xxx.
Comelec had allowed two (2)
Kagawads of Barangay xxx at that time, in the persons of xxx (a resident of xxx
Homes) and xxx (a resident of xxx Homes), to
vote and be voted upon as Kagawads of Barangay xxx.
Barangay xxx had
administered the provisions of the Barangay Justice Law of the Local Government
Code to the parties/litigants who lived in the areas contiguous to the five (sss)
subdivisions enumerated in PD No. 1338 who had sought such justice-related
services of Barangay xxx.
For purposes of the instant
petition, the herein petitioners (who are incumbent Kagawads of petitioner
Barangay xx have recently adopted a POSITION PAPER, a copy of which is attached
as Annex “I” of the Petition,
substantially adopting the legal and
factual arguments of Chairman xxx, supra.
In a LETTER, dated February sss,
2012, a copy of which is attached as Annex
“J” of the Petition, the Barangay Council of Barangay xxx wrote the City
Mayor, Hon. xxx, to PROTEST the actions apparently being taken by the City
Council to reduce the land area of Barangay xxx to favor the claim of
respondent Barangay xxx. They cited various legal, factual, and administrative
grounds in support of their Letter. They prayed that the current Cadastral Map/Survey prepared by the Department of
Environment and Natural Resources, a copy of which was attached to the said
Letter and submitted to the City Mayor, be made as the basis to affirm the
current territorial boundaries of Barangay xxx as recognized and practiced for
many decades. They also attached to their Letter copies of petitions that had
been submitted to them by the constituents of Barangay xxx in support of their
position.
On March 27, 2012, the Barangay Council of petitioner Barangay xxx
adopted BARANGAY RESOLUTION NO. 10-12, Series of 2012, a copy of which is
attached as Annex “K” of the Petition, authorizing the creation of an ad hoc Committee to conduct general
consultations with the people of Barangay xxx, commencing the institution of
the proper legal actions against
respondent Barangay Sss Uno, and empowering its Chairman, xxx and its
External Legal Counsel, to represent the said Barangay in respect of such legal
actions at the formal attorneys-in-fact thereof.
Various homeowners associations
and/or residents/voters as w ell as civic and religious leaders of xxx and
suburbs and its Parish (xxx Parish Church) living in the five (5)subdivisions
and in the areas outside thereof but are contiguous thereto have recently submitted
to the petitioner Barangay xxx their respective written mass petitions in
support of the position of the petitioners, as
well as their respective e MOTIONS TO INTERVENE in the instant case (See
MOTIONS TO INTERVENE filed with the City Council by various persons and
associations)::
·
Annex “L”, Petition. – Board Resolution No.
2011-04, dated August 27, 2011, adopted
by the xxx –B HOMEOWNERS ASSOCIATION, INC., which contains the signatures of
its directors and officers, as well as its mass membership.
·
Annex “M”, Petition. – Mass Letter-Petition,
dated January 13, 2012, from the
directors, officers and mass membership of the UNITED xxx (xxx SUBDIVISION)
NEIGHBORHOOD ASSOCIATION, INC. addressed to the City Mayor.
·
Annex “N”, Petition. – Mass Letter-Petition,
dated January 13, 2012, from the directors, officers and the mass membership of
the xxx.
·
Annex “O”, Petition. - Mass Letter-Petition,
dated January 1sss, 2012, from the directors, officers and mass membership of
the SAMAHANG xxx NEIGHBORHOOD ASSOCIATION, INC. (xxx).
·
Annex “P”, Petition. - Mass Letter-Petition,
dated January 1sss, 2012, from the directors, officers and mass membership of
the DONA xxx SUBDIVISION HOMEOWNERS ASSOCIATION, INC.
IV.
RELIEFS
PRAYED FOR BY PETITIONERS
The Petitioners
invoked the LEGISLATIVE WISDOM of the City Council, as the local Congress of
the City and as the VOICE OF THE PEOPLE of the City, to wit:
“WHEREFORE, premised considered, it is
respectfully prayed that:
1.
This
petition be given DUE COURSE by the City Council and the Respondent be summoned
to file its formal ANSWER thereto to formally join the issues in this case;
2.
This
petition be referred to the proper Committees of the City Council for (a)
MEDIATION (amicable settlement) and for (b) ARBITRATION/ADJUDICATION of this
pending case by the City Council (i.e., after the proper presentation of
evidence and witnesses by the parties and clarificatory examination/interpellation
by the investigating Committee members), in the event of failure of the parties
to arrive at a compromise, as mandated by the Local Government Code of 1991;
3.
Independent/neutral
expert witnesses, resource persons and/or technical consultants from the
concerned Departments, Bureaus, and/or Agencies of the National Government and
the City Government of xxx be identified and invited by the City Council to
appear during the Committee hearings for consultation and clarificatory
examination by the investigating Committees, with the parties being allowed to
conduct cross-examinations in the interest of justice;
4.
A new,
comprehensive and updated/current land
survey of Barangay xxx and Barangay xxx be ordered by the City Council to form part of the evidence of this
case for consideration by the investigating Committees thereof, which land
survey shall include as part and parcel of petitioner Barangay xxx all the
areas which are outside of the five (5) subdivisions listed in PD No. 1338 but
which are CONTIGUOUS thereto and which have been recognized for many decades
now as part and parcel of petitioner Barangay xxx;
5.
An opinion survey/poll be conducted by the
City Council among the residents/voters of the areas which are outside the five
(5) subdivisions enumerated in PD No. 1338 but which are CONTIGUOUS thereto and
which have been traditionally recognized for many decades as part and parcel of
petitioner Barangay xxx to aid the investigating Committees in their
appreciation of the pulse of the affected voters/residents in the said areas;
6.
A
BARANGAY CONSOLIDATION PLAN be adopted by the City Council, subject to a
PLEBISCITE, as mandated by the Local Government Code, to formally recognize the
current territory of Barangay xxx, that is, to
include the areas outside of the five (5) subdivisions listed in PD No. 1338
but which are CONTIGUOUS thereto and which have been traditionally recognized
as part and parcel of petitioner Barangay xxx for many decades now;
7.
Pendente lite, the officers of the respondent Barangay xxx
be ordered to maintain the STATUS QUO ANTE LITIS MOTAM and that it be
RESTRAINED AND ENJOINED from making any act or effort or activity that would
tend to undermine or prejudice or weaken the current exercise of jurisdiction
by petitioner Barangay xxx over the areas
outside of the five (5) subdivisions listed in PD No. 1338 but which are
CONTIGUOUS thereto and which have been traditionally recognized as part and
parcel of petitioner Barangay xxx for many decades now;
FURTHER, the petitioners respectfully pray
for such and other reliefs as may be deemed just and equitable in the premises”.
PART II – EXPRESS ASSURANCES
BY THE CITY COUNCIL
During the last mediation hearing held on
October 8, 2012 at 10:00AM at the City Council, the 3 chairmen of the assigned
committees thereof, namely, Hon. xxx, Hon. xxx, and Hon. xxx, made the
following PUBLIC AND EXPRESS ASSURANCES AND DECLARATIONS TO THE PARTIES:
·
That
they thank the Petitioners for awakening the City Council on the legal,
factual, and socio-political issues contained in their Petition;
·
That the
City Mayor, Hon. xxx, and the City
Council shall soonest adopt a macro/comprehensive review, study, and plan for
the total restructuring and reordering of the confusing and problematic boundaries
of ALL BARANGAYS IN THE CITY;
·
That the
DENR HEAD OFFIC E had assured the City of financial and technical support to
achieve the foregoing plan;
·
That the
City Planning and Development Officer shall soonest finish the final plan and
map/survey plan showing the revised/new
boundary system for all barangays in the
City;
·
That
once the Mayor shall have soonest submitted the final plan with technical
descriptions to the City Council, the latter shall soonest adopt the necessary ORDINANCE to fund and
implement the same;
·
That the
PLEBICITE for the purpose shall be held simultaneously with the May 2013 midterm elections;
·
That the wish, desire and intention of the
Mayor and the City Council, as recommended by the City Planning and Development
Officer, is to fix the revised boundary of xxx from the CREEK adjacent to the
current TRICYCLE TERMINAL of xxx Ave.. near the xxx Road from the North (as the
beginning of xxx boundary) up to the
CREEK of xxx Ave. to the South near/to cover xxx (as the end of the xxx boundary). The concept
follows the NATURAL BOUNDARY SYSTEM in geology and geodetic engineering.
During the final mediation
hearing on October 8, 2012 at 10:00AM, the Petitioners, thru Counsel, suggested
to ARCHIVE their Petition in the meantime that the Mayor, the City Council, the
City Planning and Development Officer, and the DENR Head Office are completing
the final technical plans/surveys of the new boundary system of all barangays
of the City and while the City Council is adopting a new Ordinance for the
purpose in time for the Plebiscite in May 2013. The 3 assigned committee chairmen xxx, xxx and xxx and the other
councilors of the City Council then present agreed to the idea. The adverse parties did not object thereto. The OIC City Legal Officer likewise did not object to the idea.
PART III – MOTION TO ARCHIVE
Based
on the foregoing premises and assurances of the City Council, the Petitioners
reiterate their motion/suggestion to ARCHIVE their Petition, pending the final
adoption by the City Council of the necessary and relevant ORDINANCE described
above.
POSTSCRIPT –
WHAT THIS PETITION IS NOT ABOUT
This
petition is NOT ABOUT THE DECLARATION OF NULLITY OF PD 1338 creating
Brgy. xxx. Only the JUDICIARY can do
that.
This
petition is about the exercise of the LEGISLATIVE WISDOM of the City Council to
effect a RE-ORDERING AND REORGANIZATION OF THE CONFUSING AND CHAOTIC BOUNDARY
SYSTEM OF ALL BARANGAYS IN THE CITY in
order to promote peace, order,
development, unity, and GOOD GOVERNANCE in the City.
FOR THE RECORD.
Las Pinas City, October 15, 2012.
LASERNA CUEVA-MERCADER LAW OFFICES
Counsel
for Petitioners
Unit 1sss, Star Arcade, C.V Starr Avenue
Philamlife Village, Las Pinas City 1740
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