Streamlining COVID-19 related regulations on the transport sector

By Atty. Eduardo T. Reyes III

 

A brewing transport strike had been reported last week as a form of protest by public utility jeepney drivers and operators fuelled by the planned imposition of hefty fines by the LTO and LTFRB for violation of the 1-meter social-distancing rule by their passengers to be imposed in October.

Pursuant to the LTO rule, a violator will be fined P1,078. This is apart from LTFRB’s imposition for breach of franchise which carries a penalty of P5,000. So if there will be a joint-operation by the two administrative agencies, that would total to P6,078 to be coughed-up by the floundering public utility jeepney driver.

But is it not that just a few months back, the LTO and LTFRB were also the ones which permitted public utility jeepneys to resume plying their routes provided they install plastic barriers in-between passengers? And now, would the jeepneys need to be reconfigured for the plastic barriers to suit the new directive? More importantly, is the former regulatory requirement of installing these barriers backed-up by scientific research or data or generally-accepted opinion of the experts given that passengers are already required to wear face-shields over face-masks and to pour alcohol into their hands as they board the jeepneys? And is the new directive of now enforcing a 1-meter distance between passengers predicated on scientifically-accepted data or information to begin with?

These questions are begging to be asked because while administrative agencies do enjoy wide latitude in implementing their mandate under Administrative Law; yet, like every law, rule or regulation, they ought to be founded on reason such that every absurdity must be avoided.

Indeed, all governments enjoy moral ascendancy but only because of their imbued power to govern.  To “govern” means “to exercise continuous sovereign authority over; esp: to control and direct the making and administration of policy” (Merriam Webster’s Collegiate Dictionary, Eleventh Edition). But history has taught that the inherent power to govern would easily be eroded when the government proves a dismal failure in delivering social services to its citizens.

By providing adequate social services, a full employment, ensuring a rising standard of living, and an improved quality of life for all; these are the core reasons why governments enjoy moral ascendancy.  These are also the same “policy considerations” found in the 1987 Philippine Constitution.

But life and living are as complex, diverse and unpredictable as the world where they are lived in. Thus, the government must be guided by a set of rules on how to best deliver social services. These rules must serve as the lodestar and yet should not be too rigid as to hamper efficiency.

The Constitution provides for the general framework of government. It is stable and firm. Yet, the delivery of social services in order to “improve quality of life for all” must always be in tune with the modern times. Therefore, dynamism could only be achieved when the government creates agencies and line bureaus that would address the constant changing of the times.

Administrative Law is the branch of public law that makes sense of it all, by regulating all the multifarious activities in life in order that the government can improve on them. In such process of regulation, friction between the governmental agency implementing the regulation and the private individual, or between or among the private individuals themselves would be created the resolution of which would be likewise incumbent upon the administrative agency. Should either party be unsatisfied with the decision, a resort to judicial courts can be had depending upon the rules provided by law.

For instance, rate fixing calls for technical examination and is thus a power cognizable by an  administrative body: the Energy Regulatory Commission or ERC.  Citing Republic v. MERALCO, the Court held that “rate-fixing calls for a technical examination and specialized review of specific details which the courts are ill-equipped to enter, hence, such matters are primarily entrusted to the administrative or regulating authority”. (Power Sector Assets and Liabilities Management Corporation v. Philippine Electricity Market Corp. and Manila Electric Company, G.R. No. 190199. March 11, 2020).

This is not to say however, that administrative agencies enjoy unbridled right or prerogative in issuing dictates on the business or activity they are regulating. The Supreme Court had on several occasions reined in administrative agencies when they have stepped beyond bounds in the exercise of their functions, thus: “While it is an established rule in administrative law that the courts of justice should respect the findings of fact of administrative agencies, the courts may not be bound by such findings of fact when there is absolutely no evidence in support thereof or such evidence is clearly, manifestly and patently insubstantial; and when there is a clear showing that the administrative agency acted arbitrarily or with grave abuse of discretion or in a capricious and whimsical manner, such that its action may amount to an excess or lack of jurisdiction”. (SERI SOMBOONSAKDIKUL v. ORLANE S.A.,  G.R. No. 188996   February 1, 2017).

Reverting back to the plight of the public utility jeepney transport sector, the labyrinthine regulations that both the LTO and LTFRB are imposing on it seems unmoored from the reasonableness requirement that every law or regulation must comply with. If everyone is flummoxed by the pandemic, jeepney drivers are most hard-hit as their industry has cratered starting from the first lockdown in March.  It should not be forgotten that the transport sector serves as an engine of sorts in the furtherance of the country’s economic cycle. So when the transport sector functions well, the iterative process of the economy, does well too.

Therefore, while governmental impositions to address the COVID-19 pandemic may indeed have a “Casus Belli” (reason which provides or is used to justify a war); waging it should never be at the expense of the jeepney drivers who are considered as a minority group from the inception. They need protection under the law, and not be subjected to arbitrary or unreasonable impositions of fines and penalties. The cumulative fines by LTO and LTFRB in the midst of all other pandemic-related regulations, have no resonance. These would only most likely result in arbitrary apprehensions because the 1-meter social distance rule inside a passenger jeepney is difficult if not impossible to implement. Passengers need to hop-in and alight at every stop. Movement inside the jeepney therefore cannot be avoided. And then there is the possibility that at one stop it is the LTO; and next, the LTFRB. Choking and hastily conceived regulations are least-needed in addressing pandemic-related concerns.

To be sure, these hefty, redundant and duplicitous fines to be imposed by LTO and LTFRB need to be reconsidered and streamlined given these considerations.

The public utility jeepney transport sector is again being afflicted with an equally deadly virus: arbitrary regulations.  Being an engine of growth it must be revved up to spur the economy and not turned-off to be permanently grounded.

 

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).