CORDILLERA CAREER DEVELOPMENT COLLEGE

College of Law
Buyagan, La Trinidad, Benguet

A Position Paper on the

“Legality of Night Market situated along National Road”

for the subject

Law on Property

Prepared by:

Freddie B. Abanilla, JD-2

A Position Paper on the Legality of Night Market situated along National Road 1
Freddie Abanilla – JD 2
 Legality of Night Market situated along National Road

INTRODUCTION:
Baguio City is the sole chartered city in the Cordillera Region. It is made known to
many as the “Summer Capital of the Philippines” and the “City of Pines” for its cool
mountain weather and abundant pine trees. Besides, it serves as a tourist hub in the
Cordillera Region, serving as a gateway to other tourist spots in the rest of the region.
Baguio City showcases different tourist spots and activities that are readily
available for both locals and tourists. You may enjoy a walk in the Burnham Park in the
morning and feel the cold breeze and the scents of pine trees. A food feast to the famous
restaurant, one of which is “Good Taste Restaurant”, in the city to satisfy your tummy in
the afternoon. Shopping and eating street foods at one of the most popular night markets
in the country, which is located along the portion of Harrison Road at night. These are
some of the activities that you can enjoy when staying in Baguio.
The night market remains one of the top tourist attractions that Baguio may offer.
Wide variety of products are being displayed and plied along the portion of Harrison Road,
these include brand new and second-hand clothing, shoes, pasalubong items, cultural
products, among others. Tourists enjoy their experience in going to Baguio’s night market
despite of the crowded space for the reason that most of the products being offered
thereat are cheap but of quality. For locals, this is a place where they bond and meet their
friends and family. After the long and tiring shopping experience, there were stalls that
offer wide variety of sumptuous and mouth-watering foods to satisfy everybody’s craves.
In sum, the night market in Baguio City offers all what you ask for a convenient shopping
experience, a night market may offer.
BACKGROUND:
Night Market is a trading place during the evening, where small businesses offered
variety of cheap products and cooked food. Huang, Liou and Tzeng (2009) On the other
hand, night markets is a “street markets operating at night, mainly in urban or suburban
areas that generally tend to have more leisure, shopping, and eating areas”. Lee et al.
(2008) As defined by Khalilah (2010), night market is a “temporary weekly event that
usually takes place at an available open space and on roads or parking lots that are
temporary closed to allow for their operations.”
Way back in 2011, then Mayor Mauricio G. Domogan conducted an experimental
night market at the Baguio Athletic Bowl for a period of sixty days or two months, but there
were only few buyers. In the same year, to address this problem, the city government set
up the night market along Harrison Road in Baguio City, where location was aptly to
attract more buyers. The establishment of night market to its new location begun with 500
vendors belonging to different associations, but it could accommodate more or less 1,000
vendors. The half-kilometer of the right side of Harrison road near the Melvin Jones
grandstand are being occupied by the vendors in designated area so they will no longer

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Freddie Abanilla – JD 2
constrict the city’s sidewalks, streets and even the market area during the day. Every
vendor is assigned a 1.5× 1.5 meter space clearly numbered and marked in paint on the
road.
THE LEGALITY OF SETTING UP NIGHT MARKET ALONG HARRISON ROAD
The night market which is located along a one-half-kilometer stretch of Harrison
Road, is a national road that is closed to vehicular traffic daily from 9:00 p.m. to 2:00 a.m.
of everyday which is accommodating up to 1,000 vendors. The night market along
Harrison Road has continued until March 2020, thereafter night market operation has
halted as the whole of Luzon was put in Enhanced Community Quarantine due to the
raising numbers of people being infected with COVID-19.
As one of the revenue generation of the City Government of Baguio, data obtained
last 2018 that the city government generates an income of more or less P1,500,000.00
monthly from regulatory fees paid by the night market vendors. Besides, the City Treasury
Office has confirmed that income generated from night market stalls along Harrison Road
is higher than income generated from market stalls which is located at public market.
Every night market stall costs P350.00 per week which is paid to the local government.
In December 11, 2020, the city government has restarted its night market operation
from 8 months of being idle. New polices and parameters has been observed to coincide
with the minimum health standards set forth by COVID-19 Inter-Agency Task Force. This
resulted in the cutting down of market stalls to 352 and shorter operational time, from 8:00
PM to 11:30 PM, and reduction of shoppers.
As stated earlier, the location of the well-known night market not only in the
Cordillera Region but in the country, occupies a part of the national road, along the stretch
of Harrison Road in Baguio City. The property of provinces, cities and municipalities is
divided into property for public use and patrimonial property (Art. 423, Civil Code). As to
what consists of property for public use, Article 424 of Civil Code states:
“ART. 424. Property for public use, in the provinces, cities and
municipalities, consists of the provincial roads, city streets, the squares, fountains,
public waters, promenades, and public works for public service paid for by said
provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall be
governed by this Code, without prejudice to the provisions of special laws.”
It is worthy to note that properties of the local government which are devoted for
public and are under the absolute control of Congress (Province of Zamboanga del
Norte v. City of Zamboanga, L-24440, March 28, 1968, 22 SCRA 1334). This only
means that local governments have no authority in controlling and regulating the use of
public properties, but with exception if Congress vested local governments specific
authority to do so.

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Freddie Abanilla – JD 2
 While it is true that under the Local Government Code of the Philippine or RA 7160,
particularly section 48 thereof, Congress, vested by the Constitution with the power to
legislate, delegated to the different Sanggunians the power to legislate their local
ordinances. This is in consonance with the power to close roads as provided in Section
10, Chapter II of the same code which states:
“SEC. 10. Closure of roads. — A local government unit may likewise,
through its head acting pursuant to a resolution of its sangguniang and in
accordance with existing law and the provisions of this Code, close any barangay,
municipal, city or provincial road, street, alley, park or square. No such way or
place or any part thereof shall be closed without indemnifying any person
prejudiced thereby. A property thus withdrawn from public use may be used or
conveyed for any purpose for which other real property belonging to the local unit
concerned might be lawfully used or conveyed.”
Further, guidelines and instances that allow the closure of roads is enunciated
under Section 21, Chapter II of the Local Government Code, which states:
Section 21. Closure and Opening of Roads.
(a) A local government unit may, pursuant to an ordinance, permanently or
temporarily close or open any local road, alley, park, or square falling within its
jurisdiction: Provided, however, That in case of permanent closure, such ordinance
must be approved by at least two-thirds (2/3) of all the members of the sanggunian,
and when necessary, an adequate substitute for the public facility that is subject
to closure is provided.
(b) No such way or place or any part thereof shall be permanently closed without
making provisions for the maintenance of public safety therein. A property thus
permanently withdrawn from public use may be used or conveyed for any purpose
for which other real property belonging to the local government unit concerned may
be lawfully used or conveyed: Provided, however, That no freedom park shall be
closed permanently without provision for its transfer or relocation to a new site.
(c) Any national or local road, alley, park, or square may be temporarily closed
during an actual emergency, or fiesta celebrations, public rallies, agricultural or
industrial fairs, or an undertaking of public works and highways,
telecommunications, and waterworks projects, the duration of which shall be
specified by the local chief executive concerned in a written order: Provided,
however, That no national or local road, alley, park, or square shall be temporarily
closed for athletic, cultural, or civic activities not officially sponsored, recognized,
or approved by the local government unit concerned.
(d) Any city, municipality, or barangay may, by a duly enacted ordinance,
temporarily close and regulate the use of any local street, road, thoroughfare, or
any other public place where shopping malls, Sunday, flea or night markets, or

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Freddie Abanilla – JD 2
 shopping areas may be established and where goods, merchandise, foodstuffs,
commodities, or articles of commerce may be sold and dispensed to the general
public.
Since such power is only delegated, it can never arise above congress. This was
reiterated by the Supreme Court in its decision on the case of Magtajas vs. Pryce
Properties, Inc. (G.R. No. 111097, July 20, 1994), that an ordinance must not be
contrary to the Constitution and the national laws.
On the contrary, it is elementary to statutory construction that special laws prevail
over general laws, regardless of their dates of passage and the special is to be considered
as remaining an exception to the general. At some point, general law and special law with
have similarity on its subject are statutes in pare materia and should, accordingly, be read
together and reconciled.
In this case, where a special law (RA 7160) contravenes with the general law (Civil
Code). The City Government allows the setting up of Night Market along the stretch of
Harrison Road, which is a national road, devoted for public use. While it is true that the
local governments have been authorized by Congress through RA 7610 to close a road,
permanently or temporarily. It is a well settled rule of the Supreme Court that legal
provision which gives authority to local government units to close roads and other similar
public places should be read and interpreted following basic principles already
established by law. These basic principles have the effect of limiting such authority of the
province, city, or municipality to close a public street or thoroughfare.
Article 424 of the Civil Code lays down the basic principle that properties of public
dominion devoted to public use and made available to the public, in general, are outside
the commerce of man and cannot be disposed of or leased by the local government unit
to private persons. Aside from the requirement of due process which should be complied
with before closing a road, street, or park, the closure should be for the sole purpose of
withdrawing the road or other public property from public use when circumstances show
that such property is no longer intended or necessary for public use or public service.
When it is already withdrawn from public use, the property then becomes patrimonial
property of the local government unit concerned (Article 422, Civil Code; Cebu Oxygen,
etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is
axiomatic that public domain is outside the commerce of man unless the same has been
withdrawn from public use which converts it to a patrimonial property. That’s the only time
a political subdivision may use or convey them for any purpose for which other real
property belonging to the local unit concerned might be lawfully used or conveyed.
CONCLUSION
In one case, Department of Public Works and Highways (DPWH) has challenged
the operation of night market along Harrison Road wherein it issued a directive through
the City Buildings and Architecture Office, for the relocation of night market operations
situated along Harrison Road since it is “beyond the commerce of man.” Despite the

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Freddie Abanilla – JD 2
directive, the City Government still allows authorized market vendors to ply their trades
along the stretch of Harrison Road. Accordingly, the need to continue the night market
operations is prevailing as it is the source of livelihood of over 1,044 vendors participating
in the nightly activity and contributes to the city government's income. Hence, the primary
question is, “What is controlling, the welfare of the people or the law of the land?”
The city mayor posits that at some point, the operation of the night market along
the national road is unlawful, but a livelihood for more than 1000 vendors is at stake. The
continuous operation of the night market is a big help to the vendors to earn, though not
big, an income that can sustain their family needs. Thus, the city mayor suggests that
continuous operation of the night market along the national road is prevailing.
On the other hand, 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, in which the city government under a legal obligation to protect.
Putting up a night market per se is not unlawful. What makes it unlawful is setting
it up along the national road, which is a public domain and dedicated primarily for public
use. Relocation of the night market can be reconsidered because there are still some
places that may be utilized for the same purpose. As what the city mayor wants, for the
welfare of all vendors who might be affected, is the continuation of night market operation
as this is the only source of livelihood for more than 1000 vendors. If I may suggest that
the stalls being utilized by night market vendors to display their products be given to them
for free and not to be a subject of a contract, because after all the place where the night
market is situated remains a public dominion. Hence, outside the commerce of man.

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Freddie Abanilla – JD 2