Page last updated at 12:08 UTC, Thursday, 12 January 2012 PH
The completion of the Southern Luzon Expressway (SLEX) project has significantly improved the ease of both passenger and cargo traffic in CALABARZON. Savings in costs of fuel and manhours could very well amount to billions of pesos in a year after all the separate segments of the SLEX have been opened in the last few months. I have also heard reports of how real estate prices in Alabang, Sta. Rosa, Cabuyao, Canlubang, Calamba and Sto. Tomas, among others, have jumped in the last few months because of the dramatic improvement in traveling conditions. This is another example of how crucial is the rapid execution of national infrastructure projects to achieve sustained and inclusive economic growth.
For many years I had been lamenting the turtle pace at which the extension of the STAR highway from Calamba to Sto. Tomas proceeded. My readers may remember how that highway had been inaugurated five times by three Presidents. It took very long to complete because of the inability of the National Government to implement with dispatch the constitutional principle of eminent domain, which is one of the most legitimate applications of the "greatest good for the greatest number" (in matters not involving absolute truths). Private property owners have no right to prejudice the common good by blocking the construction of roads that will go through their properties. There are ways of making private property rights compatible with achieving the common good. As the present Government tries to increase the rate of investment in infrastructure from the very low 2% of GDP of the last ten years to the average in East Asia of 5 to 7%, it is indispensable that the Aquino Administration demonstrates the strongest political will to expropriate private property needed for road construction projects.
I am proud of the fact that colleagues of mine at the University of Asia and the Pacific put up a private consulting firm that is assisting both public agencies and private corporations in accelerating national government infrastructure projects. Among their recent initiatives was to come out with a memorandum entitled "Streamlining Court Proceedings in the Acquisition of Right-of-Way (ROWA) for National Government Infrastructure Projects." First, they tracked some horror stories of delays due to the following reasons: non-issuance of the Writ of Possession (WOP) in cases where the owner/s cannot be identified or located; long intervals of hearings and retirement or filing of a leave of absence (LOA) of the hearing judge; insistence on technical records/descriptions of properties by the hearing judge; delay in the issuance of the WOP without just cause; and delay in the determination of just compensation without just cause.
There are specific recommendations to address these court-level bottlenecks which unduly delay infrastructure projects. A short-term strategy is the issuance of a Memorandum Circular by the Court Administrator. This Memorandum Circular aims to serve as a "tickler" on right-of-way procedures for judges--a document that collates all relevant guidelines on ROWA involving national government infrastructure projects and is issued for the purpose of bringing these matters to the timely attention of concerned judges. In so doing, the Circular is able to immediately address some of the bottlenecks that continue to plague right-of-way cases in courts. Briefly, the Circular may contain provisions that:
- Allow the expropriating agency to deposit the BIR zonal valuation of the property in courts for the immediate issuance of Writs of Possession where: (a) the property to be expropriated is currently under dispute; (b) the owner of the property cannot immediately be determined ("John Doe" owners); the owner, though known, cannot be located; (d) the property is yet to undergo extrajudicial or judicial settlement by the heirs; and (e) other analogous cases. Stating further that notice shall be served in accordance with Sections 6, 7, 11 and 14 of Rule 14 of the 1997 Rules of Civil Procedure.
- Allow the courts to accept alternative descriptions of the property for purposes of the immediate issuance of the WOP in cases where such property or lot is devoid of any technical record or description. The description may either utilize adjacent properties to estimate the meters and bounds of the lot in question, and/or the assertions of claimants as preliminary markers;
- Remind judges that the duty to issue the Writ of Possession is ministerial in nature, and hence must be executed immediately. Stating further that undue delay without just cause will render such judges liable to administrative sanctions in accordance with procedures provided under Rule 140 of the 1997 Rules of Civil Procedure.
- Remind judges that the sixty (60) day deadline for determining just compensation remains to be an ideal and enforceable timetable, and that undue delay without valid cause will be sanctioned in accordance with procedures provided under Rule 140 of the 1997 Rules of Civil Procedure.
- Direct judges to allot a specific day in a week for the hearing of ROWA cases for national government infrastructure projects;
- Direct concerned judges to include in their monthly status of cases report submitted to the Office of the Court Administrator, updates of all expropriation cases in their sala involving the acquisition of right-of-way for national government infrastructure projects, which will contain: (a) the date of filing of the expropriation case; (b) the date of compliance by the implementing agency of all requisite documents for the issuance of the WOP; (c) the date of issuance of the WOP; (d) the dates when the amount of just compensation was determined and paid; and (e) other information material and relevant to the proceedings; and
- Remind judges of the existence of RA No. 8975, which prohibits lower courts from issuing temporary restraining orders (TROs), preliminary injunctions, or preliminary mandatory injunctions.
The issuance of the proposed Memorandum Circular will significantly reduce the possibility of infrastructure projects becoming hostage to tedious and time-consuming court processes, as it now allows the deposit to the court of the amount required for the issuance of the WOP without necessarily having to wait for the resolution of ownership-related disputes in court. The proponents of the Memorandum studied the table of ROWA cases for major national government infrastructure projects. They estimated that the Memorandum can unclog some 100 to 120 worth of cases, which have suffered at least six months worth of chronic delay.
Since the Philippines has a long way to go to catch up with our more progressive neighbors in the construction of infrastructures, there must be also a long-term strategy to avoid unnecessary delays in the construction schedule. As a long-term strategy, it is suggested that the Supreme Court issue a Memorandum Order which will provide for the following:
· A concrete timeframe (example: 7 days) for the issuance of the Writ of Possession;
· A clarification of its ruling in Republic vs Gingayan (regarding the timeframe to be enforced in determining the just compensation to be awarded to owners of expropriated properties);
· Concrete guidelines for cases where, even after extensive research and ground work, no records are found to be available as to the lot information (log numbers, survey numbers, technical descriptions, title numbers);
· Guidelines governing the expeditious assignment of pairing judges who have similar experience/background in adjudicating ROW case in situations where the hearing judge retires or takes a leave of absence (LOA).
Since only the Supreme Court can lay down concrete policy statements on court procedures, the abovementioned measures cannot be issued by the Court Administrator at his own level of authority. The proposed Supreme Court Memorandum Order, therefore, is expected to sustain and improve on the guidelines established for the Memorandum Circular to be issued by the Court Administrator.
It is hoped that our legal experts will seriously consider these proposals so that the needed 5 to 7 percent of GDP of infrastructure investments in the next ten years can be achieved. We must have the political will to enforce the very democratic principle of eminent domain contained in our Constitution. Private property has a social function. It should be limited whenever its continued use by private individuals can damage the public good. For comments, my email address is firstname.lastname@example.org.