BAGUIO CITY – The Regional Trial Court (RTC) Branch 5 here issued a writ of preliminary junction prohibiting the Hotel and Restaurant Association of Baguio (HRAB) and the City Government from conducting a month-long Christmas bazaar in the Melvin Jones grandstand purposely to generate additional funds for the local organizers to be able to defray the huge expenses to be incurred during the visit of some 24 contestants of the Miss Universe to the city on January 18, 2017.
In a 6-page order, Judge Maria Ligaya V. Itliong Rivera ordered petitioner Elena Lao to post an additional bond of P2,000,000 over and above the P50,000 it posted for the issuance of the restraining order to make the writ of preliminary injunction operative until January 1, 2017.
The court stated Resolution No. 294, series of 2016 allowing the conduct of the Christmas bazaar in Melvin Jones violates the provisions of Ordinance No. 13, series of 2012 wherein Section 2 states that it is declared policy of the City of Baguio to regulate trade fairs in the city by allowing the conduct of trade fairs for a period not exceeding 15 days in suitable private places only and to totally disallow the conduct of trade fairs and other similar activities in all city-owned or city-managed public parks, including government-owned and controlled properties and facilities that promote agricultural, industrial, indigenous and commercial products, crafts and other merchandise through inter-regional trading that will foster better livelihood opportunities, enhance local tourism, and help advance economic development.
While the trade fair ordinance does not define what a trade fair is, the court claimed no less than the persons who crafted the ordinance referred to the Christmas bazaar as a trade fair during their deliberations on November 21, 2016 when they approved the request of the HRAB to conduct the said activity.
“The court pointed out the Christmas bazaar violates Executive Order (EO) No. 695, Executive Order No. 224 dated February 10, 1995 issued by then President Fidel V. Ramos for the administration, management, maintenance and operation of the whole Burnham Park reservation, including all the activities, facilities and improvements to the city.
The decision added EO 695 further gave the city full control and further development of the park but the city’s full control is subject to the limitations embodied in Sections 4 and 5 which state that the city shall not encumber, mortgage or alienate any portion of the Burnham Park unless approved by the Secretary of Tourism while all revenues and collections generated from Burnham park shall accrue to the treasury of the City of Baguio and shall first be used for the operation, management and maintenance of the park and any net profit not needed for management, operation and maintenance of Burnham Park shall be shared equally by the city and the Philippine Tourism Authority (PTA).
According to the court, the intended bazaar is definitely an encumbrance on a portion of Burnham Park which is not approved by the Secretary of Tourism and the income to be generated from the specific use is not in accordance to EO 695.
The court stated first and foremost, it was the City Council that approved the trade fair ordinance, thus, they must be the first to uphold it and if the rare opportunity of hosting the visit of the Miss Universe will be used to disregard the law, there would be disorder.
As to the personality of the petitioner to file the case, the court found and so holds that she has sufficiently established her locus standi, thus, as a general rule, a party is allowed to raise a constitutional question when he can show that he will personally suffer some actual or threatened injury because of the alleged illegal conduct of the government; the injury is fairly traceable to the challenged action and the injury is likely to redressed by a favourable action.
As a taxpayer, the court argued the petitioner may not have, in its strict sense, the lucus standi to file the present case since a taxpayer’s suit may prosper only if public funds derived from taxation is disbursed illegally since the funds to be raised from the Christmas bazaar is not from taxation, however, it should become part of public funds as mandated by Section 5 of EO 695 and to be disbursed in accordance therewith.
On the propriety of issuance of an injunctive writ, the court asserted it is settled that to be entitled thereto, petitioner must show that there exists a clear and unmistakable right to be protected; this right is directly threatened by an act sought to be enjoined; the invasion of the right is material and substantial and there is an urgent and paramount necessity to prevent serious and irreparable damage.
The petitioner claimed she stands to lose business opportunities if the Christmas bazaar or trade fair is allowed to proceed and that she and all the residents of Baguio and visiting tourists will be deprived of the use of the place as a public park, a damage not quantifiable by any monetary consideration.
On the other hand, HRAB contended that the loss adverted to by petitioner is merely contingent which does not warrant the issuance of an injunction.
The court explained the Christmas bazaar is not among the purposes mentioned in the foregoing and that the contention of HRAB that petitioner’s loss of business opportunity is a mere expectancy, maybe true, but it cannot be denied that it is during the Christmas season that businesses thrive and this could be the reason why HRAB chose to have the Christmas bazaar.
The court revealed that it is not unmindful of the difficult situation that HRAB is in but it emphasized, however, that there are rules and ordinances which govern us that even the highest official of the land ought to follow and which the courts are duty-bound to uphold.
Earlier, HRAB and the local government questioned the personality of the petitioner to bring the action to court and insisted that the Christmas bazaar does not involve any illegal expenditure of money raised from taxation as it is only intended to raise funds to defray the cost of hosting by the city of the visit of the Miss Universe contestants; that petitioner does not stand to suffer any eminent danger or direct injury as a result of the conduct of the Christmas bazaar; the activity does not violate the trade fair ordinance because it does not fall within its ambit, especially since the ordinance does not define what a trade fair is and it is co-sponsored by the city, that the money to be raised from the event will not redown to the benefit of HRAB but will be used to defray the hosting of the Miss Universe visit and other incidental expenses for the pageant; that HRAB and the elective officials of Baguio represent a sizable population of Baguio whose interest must be balanced against the personal interest of petitioner; that the activity will redown to the public good and is valid and legitimate; that there is no urgent and paramount necessity for the issuance of the writ; that there are available remedies to the petitioner which is adequate and speedy by filing a motion for reconsideration before the city council or office of the city mayor or she may sue for damages and that HRAB has more to lose if the Christmas bazaar is stopped.
By HENT
