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When TROs frustrate the objectives of PPPs


Public-private partnerships, even before the term PPP was coined, have long yielded benefits for our country. Collaboration between the government, which sets the vision, strategy and overall direction, and the private sector, which provides capital, expertise and technical know-how, enables projects to be implemented and operated more efficiently, ideally resulting in better service to our people. This is especially true for infrastructure projects in various sectors.

The Marcos administration has emphasized that PPPs are a good way to pursue our economic aspirations. PPPs drive economic growth because they set in motion a chain of events — job creation, income generation, technical transfer, upward mobility and economic activity. In the end, successful PPP projects feed into a virtuous cycle, because the more hospitable to investments the economic and regulatory environments are, the more investors will be attracted to participate.

A case in point is the Philippines’ goal to be digitally transformed, and to have technology power our government, our economy and our way of life. The digital age is upon us, and we have to optimize the use of technology to enhance the way the government performs its basic services, and to improve how businesses achieve operational efficiency. For the public sector, not only will technology bring efficient service delivery, but it will also allow greater government transparency. Technology, which limits human intervention, also narrows the window for undesirable acts that have marred the image of government for a long time.

Unfortunately, there is a way for these goals to be frustrated. Temporary restraining orders (TRO) have been used to challenge legitimate projects and other activities that are not to the liking or interest of certain litigants.

Of course, TROs exist for a purpose. Ideally, they are a means to stop a patent and grave injustice or irreparable injury to a party or a group of people. Thus, the grounds for the TRO must be established and the petitioner carries the burden of establishing its merits.

The Supreme Court itself laid down four conditions that must be satisfied for a TRO to be issued. One, there should be a clear and unmistakable right to be protected, that this right is directly threatened by an act sought to be enjoined, that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent serious and irreparable damage.

These conditions, however, are composed of big words that could be interpreted — even stretched — in many ways. As a result, some TROs are handed down by courts not necessarily to stop grave damage or injustice, but to advance or support, knowingly or unknowingly, the vested interests of some litigants.

The use of TROs as legal bombs against a target is not new. For many years, and to varying degrees of impunity and success, it has been used by some groups to stop legitimate and meritorious projects. It could be that they lost the bid and did not want to see another group succeed, or that their interests would be threatened, or existing benefits would be curtailed, even if the project in question was being implemented for the greater common good. Sometimes, seeking TROs is a matter of personal spite.

This practice had in fact become so common that in November 2000, then President Joseph Estrada approved a law that prevents TROs and other injunctions from being abused to stop strategically critical flagship projects and other initiatives that could otherwise serve the greater public. Despite this, however, TROs continue to be used to frustrate worthy initiatives and public-private partnership projects.

In August last year, the Supreme Court issued a TRO against the No Contact Apprehension Policy, which was meant to make the enforcement of traffic rules more efficient and less vulnerable to human intervention and bolster overall road safety.

This decision was in response to two petitions that had challenged the policy, notwithstanding the benefits that it had demonstrated across different local government units during the short period that it was allowed to be in place.

But who would not want the policy when it promises to foster efficiency and compliance with traffic laws? Whether one looks at it from an efficiency perspective or a governance perspective — imagine no more opportunities for extortion or bribery — the No Contact Apprehension Policy is the logically preferable option. Surely, only those who habitually break traffic rules, or those who choose to continue bribing traffic enforcers for the easy way out, would hesitate to acknowledge that the policy is something that we need.

In fact, a survey by Pulse Asia in September 2022 found that eight of 10 Filipinos agreed that the No Contact Apprehension Policy would instill driver discipline and improve road safety. Quantitative proof that the technology powered traffic enforcement system is well appreciated by our tech-savvy society.

Despite overwhelming popular support for the policy, the TRO remains even as the Office of the Solicitor General and Metro Manila Development Authority, based on compelling data on surges in traffic violations, have petitioned the Supreme Court to lift the TRO. The court has heard all the arguments, and a final decision is now pending.

Recent developments such as the No Contact Apprehension Policy case have prompted calls for more legislative and judicial measures. For example, RA 8975 could be revisited to include local government infrastructure projects and to provide guidance in evaluating the “constitutional issue” exception and in fixing the amount of the injunction bond. Penalties for violation of the law also need to be reevaluated given that it has been 23 years since it was passed.

For now, we have to drive the engines of our economy and use technology to achieve the objectives of good governance. Let us not demean the principle of TROs. Let us stop using TROs like legal missiles launched to destroy our common goal of achieving inclusive and sustained prosperity for our country.

Victor Andres “Dindo” C. Manhit is the president of the Stratbase ADR Institute.

Neil Banzuelo

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