Night market to go on despite legal question

CEBU, Philippines - Despite the pronouncement of the Department of Public Works and Highways that the closure of Colon Street at night time is illegal, the Cebu City government continues to hold the night market.

Mayor Michael Rama said the night market will continue to operate and vowed not to allow "underprivileged" vendors to be displaced.

"Kun ang ilang (DPWH) huna-huna is fighting me, we are not going anywhere. The night market is only in the evening, gamay ra nga negosyo sa mga pobre," he said, adding that this kind of activity is also practiced in Hong Kong and Amsterdam.

The mayor claimed to have the support of DPWH Secretary Rogelio Singson in effort to revitalize Colon Street, the oldest road in the country, by holding night market, among others.

At least P5 million was earmarked by the city this year for the conversion and commercialization of Colon Street. The project, Rama said, is pursuant to the city's objective "to protect the interest and promote the general welfare of its inhabitants" as well as raise revenues through permits.

However, DPWH legal counsel Brando Ray Raya, in a 43-page position paper addressed to the Cebu City Council, said the proposed revitalization of Colon Street would entail its closure and withdrawal of its use as a public road; the demolition of the present road infrastructure facility and the subsequent construction, placing, erection or installation of a shopping center; and the conversion of its use from a public road into a night market or shopping center.

This would permanently result to restriction or substantially divest the State of the beneficial use of the said street.

Being a national road, Raya said public street is property for public use thereby it is deemed as a "property of public dominion and outside the commerce of man and it may not be the subject of lease or others contract."

 "The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect" Raya said.

"In fact, local governments have no authority whatsoever to even control or regulate the use of public properties unless specific authority is vested upon them by Congress," he added.

Furthermore, Raya said the closure and conversion of Colon Street into a market is a violation of Section 23 of PD No. 17, which prohibits any person to use for private purposes any public highway, bridge, wharf or trail.

He pointed out that the conversion of a road's use by the local government unit only applies to local roads. Under the provision, any person offending the law shall be punished by a fine of not more than P1,000 or by imprisonment not exceeding six months.

Section 5 of the Executive Order revitalizing Colon Street reportedly contravenes other existing laws like the E.O. No. 292 or Administrative Code of 1987 as it intends to place boundary markers and enhancing the aesthetic value of the street by employing glamorous and elegant styles, such as captivating lights, decorative arts and crafts.

It also encroaches upon the power and function of DPWH as provided for under Section 1 of E.O. No. 292.

On top of the violation, the conversion of Colon Street from a public road to a "walk way" prohibiting the entry of public utility jeepneys is also in contravention with Section 3 of E.O. No. 292.

 "…it has apparently now become imperative that it be reminded that the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. As delegates of the Congress, the local government unit cannot contravene but must obey at all times the will of their principal," the position paper read.

Raya also pointed out that the EO lacks an approved ordinance to confer the validity of permits to be issued upon the occupation of shops, stores, restaurants, fast foods, stall or booths.

"Here, a scrutiny of the relevant provisions of the subject EO would reveal that there is similarly no provision unto which the issuance of the permits to the locators in Colon Street may be grounded. Thus, in the absence of an ordinance for the regulation of said locators, the permit intended to be issued to said locators would similarly be deemed to be infirm," he said.— (FREEMAN)