Above The Law?

The United BF Homeowners’ Association has filed a petition in the Office of the Ombudsman, claiming that it was unconstitutional and unlawful for City Mayor of Parañaque to disburse public funds of the City of Parañaque for the clearing, repair and maintenance of the existing sidewalks of BF Homes Parañaque Subdivision. The sidewalks are private property of BF Homes, Inc. Hence, the city government could not use public resources on them. In undertaking the project, therefore, respondent allegedly violated the constitutional proscription against the use of public funds for private purposes as well as Sections 335 and 336 of RA 7160 [Local Government Code of 1991] and the Anti-Graft and Corrupt Practices Act.

Undoubtedly, the respondent city mayor, through his legal adviser, is invoking the Supreme Court’s 1991 decision in justifying the project [including the construction of a two-story Barangay Hall at the Aguirre Park], as follows:

“When [a strip of land] was withdrawn from the commerce of man as the open space required by law to be devoted for the use of the general public, its ownership was automatically vested in the [LGU] and/or the Republic of the Philippines, without need of paying any compensation to [the developer], although it is still registered in the latter’s name. Its donation by the owner/developer is a mere formality.” [193 SCRA 765]

But the 1991 White Plains ruling was modified by the Supreme Court in 1998, holding that subdivision streets belonged to the owner until donated to the government or until expropriated upon payment of just compensation. [297 SCRA 547]

Under subdivision laws [PD-957, 1216], lots allotted by subdivision developers as road lots include roads, sidewalks, alleys and planting strips. Thus, what is true for subdivision roads or streets applies to subdivision sidewalks as well. Ownership of the sidewalks in a private subdivision belongs to the subdivision owner/developer until it is either transferred to the government by way of donation or acquired by the government through expropriation.

The Court has laid down the test of validity of a public expenditure: it is the essential character of the direct object of the expenditure which must determine its validity and not the magnitude of the interests to be affected nor the degree to which the general advantage of the community, and thus the public welfare, may be ultimately benefited by their promotion. Incidental advantage to the public or to the State resulting from the promotion of private interests and the prosperity of private enterprises or business does not justify their aid by the use of public money. [Pascual v. Secretary of Public Works, 110 Phil. 331 (1960)]

Section 335 of RA 7160 is clear and specific that no public money or property shall be appropriated or applied for private purposes. This is in consonance with the fundamental principle in local fiscal administration that local government funds and monies shall be spent solely for public purposes.

Therefore, the use of LGU funds for the improvement of privately-owned sidewalks [and the construction of the Barangay Hall] in BF Homes Parañaque Subdivision is unlawful as it directly contravenes Section 335 of RA 7160.

The case filed by the homeowners association is hardly moving, if at all, thanks to the mayor’s influential legal adviser. How can the validity of the challenged appropriation and expenditure be determined if the Ombudsman prosecutor sits on the case?