Resolving right of way
Eminent domain is the power of the State to take private property, without or against the owner’s consent, for public use with just compensation. The idea is that the public good overrides private rights. It is for the common interest and is a necessity in a functional society.
Private property is easily understood. There are a few cases when public use is debated or debatable. In the context of the infrastructure of roads, bridges, mass transport, airports and terminals, there is no argument on the nature of their use. If the owner agrees to be paid, the property to be expropriated is transacted on the agreed price.
Almost always, delays center on what is just in the compensation. The landowner watching out solely for his economic interest will charge a sky-high price (not based on current market value but on future market value) against a set budget from government. For a reasonable owner, the determination of what is the current or fair market value is not simple. To require appraisals will add more variables. This is gridlock of the first order.
A solution can be to provide option pricing of the lower, or higher, or average of a factor of the zonal value vis-a-vis the declared current market value of the owner, much like how transfer taxes on property are computed. Then allow for two cycles of offer and counter-offer within three months to close the deal.
But what is not evident is the other major cause of delay — the judicial procedure that necessarily comes with the expropriation proceedings when negotiation fails.
In cases where the owner cannot be identified or located, courts typically do not allow the deposit of the amount equivalent to the BIR zonal valuation of the property to the court but instead wait for the proper identification of the owner so that payment may be made directly to him. This begs the question as precisely the owner is not identified or cannot be located. The court will insist on the requirements of due notice to the owner and it is such a burden to monitor the amounts deposited.
When the owner is known, payment to him is difficult to comply with because there are no specific guidelines for expropriation cases where the property to be expropriated is currently under dispute; (ii) the owner of the property cannot immediately be determined; (iii) the owner, though known, cannot be located; and/or (iv) the property is yet to undergo extrajudicial or judicial settlement by the heirs.
The 2016 Right of Way Act addresses these issues by mandating the number of days to act and specifies the cases when payments can and are to be deposited in court. Despite these details, there is always the need for implementing circulars from the Supreme Court for clear, consistent and uniform implementation.
During the hearings, the courts are also constrained to hear expropriation cases where only a general description of the property is provided. There is limited or no available information with regard to the lot number, survey number, and technical description of the property even after extensive research by the government. This offends the judicial need for specificity and certainty.
Courts should be allowed to accept alternative descriptions of the property for purposes of the immediate issuance of the Writ of Possession in cases where such property lacks technical record or description.
On the timing of the payment, the law provides that the court shall determine the just compensation to be paid the owner within a fixed period from the date of filing of the expropriation case. This is to protect his right to property with the fixed assurance of payment. However, the Rules of Court also requires the appointment of three commissioners to determine the proper amount as just compensation which results in a longer period, more confusion, and further delays. Judges are not experts in judging economic values.
There is also a semantic delay. When the law and the rules call for the issuance of the Writ of Possession “immediately” and assign the operative value of seven days to this term, the ministerial nature of the writ is subject to different interpretations on the length of time.
The problems of right of way and its acquisition continue to hound public discourse. We experience congestion at its worst when highways abruptly narrow or stop, or when MRT lines are broken because of the lack of cooperation of individuals, the inefficiency and corruption of government, and the complicated nature of our laws and rules.
This discussion returns to the core advocacy that economic development requires as sine qua non, or at the very least to be in tandem and in sync with legal reforms. Economics is quantifiable and is focused on measurement; law is qualitative and answers to the precept of truth and justice. Each field has its own toolkit. Only with a working judicial system can resources be channeled to allow markets to function and for development to happen.
Child safety in motorized vehicles should apply to all
About two years ago, Republic Act 10666 or the Children’s Safety on Motorcycles Act took effect and placed conditions on small children riding as passengers on motorcycles — or two-wheeled motor vehicles. I support this law, but I do not understand why tricycles were seemingly exempted from it.
Under this law, children below 18 years old may “back-ride” as passengers only under the following conditions: feet can comfortably reach the standard foot peg of the motorcycle; arms can reach around and grasp the waist of the motorcycle driver; and, the use of standard protective helmet or gear.
A report on the law by online news website Rappler cited Philippine Statistics Authority figures that an average of 671 children died every year in road crashes in the Philippines from 2006 to 2014, mostly in the 5-9 years old and 10-14 range. It also noted that motorcycle injuries were responsible for 56% of road crash deaths nationwide.
I agree with the enactment of RA 10666, but I don’t understand why it seemingly exempted — inexplicably, in my opinion — motorcycles with sidecars and tricycles. I also support the seat belt law or RA 8750 and its prohibition on children in front seats (six years old and below). But, I also don’t understand why it is required only for front-seat passengers in public utility vehicles.
But now comes a newer law — Republic Act 1129 or the Child Safety in Motor Vehicle Act — that raised the limit on front-seat prohibition to all children 12 years old and below and shorter than five feet tall. The new law also now requires the use of child safety restraints or child safety seats in cars.
I am all for child safety in motor vehicles. I can even be swayed to adjust the limit to nine years old from six. But, 12 years old? Also, if the intent of the new law is to promote child safety in motor vehicles — regardless of type and ownership of vehicle — then its guidelines should ensure that all types of conveyances will be required to use child safety seats. No exemptions. But, I guess, this will not be the case.
By making child safety seats a requirement, rather than an option, there is the implication that motor vehicles, in general, as they come out of the production lines, are generally unsafe for children 12 years and below. If so, should they then still be sold to families with young children? Or, why do we then allow them to be sold as presently configured, if such configuration is implied to be unsafe for our young?
Moreover, if the issue is safety, and the implication is that as presently configured, vehicles are unsafe for children 12 years and below, then the legal requirement for child safety restraints should cover all child passengers in both private and public vehicles. Type of ownership and use should not be an issue. Even franchised vehicles should be included.
I am a father and I have a son who just turned nine. Soon, with the new law, I can no longer drive him to and from school — or anywhere else, for that matter, unless I have a government-approved child safety seat suited and appropriate for a child his age. In fact, he cannot board and ride any other privately owned car without the required safety seat.
Will the same rule also apply to all school vans, jeepneys, taxis, Grab Cars, and public buses? If the intent of this new law is child safety in motor vehicles, it should not single out privately owned vehicles while some other motor vehicles, including motorcycles, are exempt from the requirement. There are child safety seats available for motorcycles and bicycles, but two-wheelers are not required locally to use them.
In the case of car rentals, will they also be required to supply child safety seats to customers with children 12 years and below? How about hotels cars, airport cars and taxis, and other commercial vehicles like small delivery vans of small private businesses? Can they allow children to ride without the appropriate child safety seat?
What if I am an entrepreneur with a small business and all I could afford to buy was a single-cab pickup truck or a small delivery van. The same truck or van allows me to bring my son to and from school, and my wife to and from work. Then, I use the same vehicle for small deliveries for my business during the day.
Since it is a single-cab truck, or a delivery van with front seats only, can my son still ride in front? Will the use of a suitable child car seat suffice, despite the fact that the child seat will be in “front”? If the vehicle was registered as a commercial vehicle because it is also used for deliveries, will the law requiring a child safety seat still apply to me?
What if it were a for-hire van and I drive it as a UV Express or a Grab Car (Large), will the child safety seat requirement still apply to me? If I am out with my son and I flag down a taxi or order a Grab Car, do we have to bring our own safety seat? What if we ride the jeepney or the bus or a tricycle, will they have safety seats for children?
If not, then what was intended to make children safe will actually limit their options for safer conveyances. Car owners without child safety seats will be forced to make their young children ride other vehicles that may not be required to use car seats, like taxis, Grab cars, and other public vehicles or vehicles for hire.
Children who go to school in carpools driven by parents will no longer have this option unless car seats are provided for each of the young children in the pool. Cars that used to comfortably seat three children to a row will now have to settle for two, considering the space required by child safety seats. The same goes for families with two or more small children. Safety seats must be bought for all of them.
Incidentally, there are hundreds if not thousands of electric bikes and electric scooters now on our streets — used for delivery, for going to work, for bringing children to school, for making short trips from home — and all these are unlicensed, unregulated, and general unsafe to be on our roads. Some young children ride their bikes on public roads. And yet, there is no law to cover them. Maybe we should look into legislation that will regulate them as well.
We required the purchase of Early Warning Devices (EWDs) that practically nobody uses; we required the purchase of Compulsory Third Party Liability Insurance (CTPL) that only some actually claim; we have a seat belt law and a law against distracted driving (or the use of mobile devices) that are difficult to enforce and that many motorists largely ignore; and, we have a child safety on motorcycle law that is easily circumvented simply by the purchase and use of a helmet. Now, we have a new law requiring child safety seats, probably only for privately owned cars.
I accept the fact that there is no going around this new law on child safety. And that is precisely the reason why, since birth, my son has had a car seat. We were lucky enough to borrow one for him early on, and, later on, buy a bigger one that can be used until he’s 12 years old. I removed the seat some years back, after he turned six. Luckily, I kept it. Now, it is back in the car — as required by this new law.
But what about the hundreds of thousands of other car owners with small children, or give rides to children? They all have to buy child safety seats, I guess. Relatives and friends with young children can no longer share or hitch a ride unless they bring their own safety seats. Well, they always can opt for less-safe public vehicles that are probably going to be exempt from this new law, anyway.
Marvin A. Tort is a former managing editor of BusinessWorld, and a former chairman of the Philippines Press Council
matort@yahoo.com