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TRO-exempt Build, Build, Build projects raise constitutional doubts

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PHILIPPINE STAR/MICHAEL VARCAS

A BILL that would insulate flagship infrastructure projects from temporary restraining orders (TROs) issued by most courts has raised questions about the emergency powers that will trigger the proposed TRO exemption, legal experts and opposition politicians said.

Lawyer and Ateneo Policy Center research fellow Michael Henry Ll. Yusingco said House Bill 5456, which will become the Flagship Emergency Act of 2019 if passed, could contain provisions that violate the 1987 Constitution.

“The first problem of the bill is that the emergency powers of the President under the Constitution can only be exercised when there is a national emergency,” he said in an e-mail Thursday.

“What is the national emergency? I think this matter has not been established as a fact yet. So there is still no justification for the exercise of the President’s emergency powers.”

He added that the provision could also be seen as a “diminution” of the powers of the Supreme Court to establish the rules of procedure for the lower courts it supervises, which may also be unconstitutional.

HB 5456, filed by Representative Jose Ma. Clemente S. Salceda of Albay’s second district, proposes to grant the President special powers that allow his infrastructure projects to not be hindered by TROs from most courts.




The bill proposes to empower the President to “urgently utilize necessary government resources, exercise police power, and employ executive actions and measures,” to implement projects.

Mr. Salceda, who is the chamber’s Ways and Means Committee chairman, said in the explanatory note that the completion of key government projects, known as “Build, Build, Build” (BBB) in this administration, will complement economic and social legislation in Congress.

Senate Minority Leader Franklin M. Drilon, who questioned the slow progress of “Build, Build, Build” earlier this week, said the real issue is government agencies’ ineffective spending, and not the need for emergency powers.

Kung nangangailangan ka ng 2,000 engineers sa DPWH (Department of Public Works and Highways), hindi kailangan ang emergency powers… to make sure that you spend the money allotted on time (If the DPWH needs 2,000 engineers, emergency powers are not needed and will not cause that department to spend the money allotted on time)” he told reporters in a briefing Thursday.

Mr. Drilon called “Build, Build, Build” a “dismal failure” earlier this week, claiming that the government has only started building nine of 75 flagship projects. The government has since revised its list of projects to 100, including those initiated by the private sector.

Section 11 of the bill prevents the courts, except the Supreme Court, from TROs or preliminary injunctions that would restrain project implementation.

The measure designates the chairman of the Bases Conversion Development Authority as the Flagship Program Manager to oversee the management and implementation of the program. The Flagship Program Manager is authorized to engage in direct contracting and direct negotiation of contracts.

The President’s spokesperson Salvador S. Panelo responded positively to the bill, saying that a common hurdle to the timely implementation of key projects is the need to acquire right of way.

Sa tingin ko maganda yan yung kay (I think that is a good proposal of) Congressman Salceda because one of the reasons why bumabagal ang projects (projects are slow) is because of the right of way. Yung ibang owners kasi ayaw pumayag, yung iba nag-TRO (Some landowners don’t grant it while others file for TROs),” he said in a briefing Thursday.

Mr. Panelo’s statement comes after Albay Second District Representative Joey S. Salceda filed House Bill 5456 on Wednesday, which grants the President “special powers” in order to create policies and reorganize his office to implement the BBB better.

On Wednesday, Presidential Adviser for Flagship Projects Vivencio B. Dizon said that the government is not satisfied with the infrastructure program but clarified that 35 projects are currently under construction, contrary to Mr. Drilon’s count of nine, not including other projects that have been completed.

The program involves government spending on construction equivalent to 5.5% of GDP last year.

The total cost of the infrastructure program is P8.2 trillion. — Gillian M. Cortez and Charmaine A. Tadalan

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