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Can emergency powers solve traffic mess?

Photo by Macjanry Imperio

President Rodrigo Duterte’s violent war on drugs may be hogging all the headlines barely two months into his administration, but the pervading crisis Metro Manila dwellers have to deal with everyday remains the continually worsening traffic situation.

In his first State of the Nation Address, President Rodrigo Duterte asked for emergency powers to solve the country’s paralyzing transportation state; and following this pronouncement, the Senate began deliberations on several measures granting the executive branch special powers to address the traffic mess.

Great power = fiscal responsibility

Senate Bills No. 11 and 154, filed respectively by Senate President Pro-Tempore Franklin Drilon and Sen. Joseph Victor Ejercito, grant the President the authority to go around standard bidding and procurement procedures for the construction, repair, rehabilitation, and the improvement or maintenance of transportation projects. If passed, the bills exempt the executive department from compliance with restrictions imposed by law on purchase of supplies. The proposed measures also prohibit restraining orders against transportation projects unless issued by the Supreme Court.

During the Senate hearing with transport officials, Senate Public Services Committee Chair Grace Poe emphasized the importance of the proposed emergency powers to be Freedom of Information (FOI)-compliant, warning that such powers could be easily abused since power would be concentrated in one person.

“We may allow you to take shortcuts for as long as they do not shortchange the taxpayers. There must be no hidden costs, or undeclared conditional debts that will be passed on to several generations,” Poe said.

“We will not go for vague powers or blank checks. I assure you, there will be elbow room and wide latitude given, but not wide enough for thieves to sneak in.”

Department of Transportation Secretary Arthur Tugade, who also pointed out the need to redistribute flights out of the Ninoy Aquino International Airport, vowed that all projects implemented through emergency powers will be completely transparent and will not last longer than two years.

“I give you my word, whatever we do, not only in relation to the emergency power, we shall be FOI-compliant,” Tugade said. I stand on the spirit of accountability and transparency. It shall be done.”

In an interview in ABS-CBN’s Headstart a day after the hearing, Poe said that she sees emergency powers being granted “hopefully before we adjourn in December,” while also pointing out that the Transportation Department has yet to give them a detailed plan of the extent of the powers.

“They haven’t even identified the specific roads, how many kilometers of train. They have to be able to give us all of these specifics before we can actually deliberate on the extent of the emergency powers,” the senator said.

FOI concerns

Last July 23, Duterte signed the executive order (EO) implementing FOI in the executive branch—an order that grants public “access to information, official records, public records, documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data and used as basis for public document.”

The order covers all government agencies under the executive branch, as well as government-owned or controlled corporations and state universities and colleges.

The public lauded Duterte’s signing of the FOI just 24 days into his presidency, even if it only covers the executive branch, particularly because it was a measure that languished during the previous administration’s six years.

But lawyer, broadcaster and law professor Mel Sta. Maria warned, “the devil is in the details,” writing in an Interaksyon.com article that “close scrutiny of the EO provides its own causes for infectivity.”

Section 7 of the EO provides that “While access to information, public records and official records, responsible officials shall afford full protection to the right to privacy of the individuals as follows: Each government office per Section 2 shall ensure that personal information in its custody or under its control is disclosed or released only if it is material or relevant to the subject matter of the request and its disclosure is permissible under this order, or existing law, rules or regulations.”

Sta. Maria pointed out that one “existing law” in relation to personal information is the Data Privacy Act of 2012, which he writes, “essentially provides that, as a general rule, the personal information of individuals shall not be revealed and cannot be printed, recorded, used and disseminated by others. This is applicable both to private people and government officials except that, in case of the latter; information can be obtained relating to their positions and functions in the government.”

What this means, according to Sta. Maria, is that the National Privacy Commission can determine whether the release of information will be harmful to public interest or national security, and therefore can control what can and cannot be revealed.

“And so pursuant to the unnamed “existing law” (which inevitably includes the Data Privacy Act of 2012) referred to by the EO, secrecy, not transparency is the governing and general rule when it comes to the private lives of government officials. And this ‘existing law’ can always be used as a scapegoat for non-disclosure by executive officials. It can always say that the “existing law” ties their hands,” Sta. Maria wrote.