Right of way in the way
Back in the 1990s, the foremost problem causing delays in the implementation of our infrastructure projects was right of way (along with illegal occupants) in project sites. One would think that, more than two decades later, we would have already found a way to deal with the issue and keep it from causing wasteful delays in public infrastructure projects.
No such luck. To date, right of way problems remain high on, if not at the top of, the list of obstacles to prompt implementation of projects under the government’s ambitious “Build, build, build” program. I’m told, for example, that the hugely important NLEx-SLEx connector road—the project that would directly link the North Luzon and South Luzon Expressways and thereby permit travelers between the north and south of Metro Manila to avoid the notoriously congested Edsa and C-5 roads—has hit a snag, because private property owners along the way have been holding out and are refusing to give way.
This should not be reason to hold up work on public projects indefinitely, here or in other instances. Government has the inherent power of eminent domain, defined as the right of a nation or sovereign state to take or authorize the taking of private property for public use, without the owner’s consent, subject to payment of just compensation. It should not be possible to delay a project, or stop it altogether, because the private property owner simply refuses to give way. Eminent domain says the owner has no choice, provided that just compensation is paid for the property taken over.
But herein lies the other problem, at least in the past. “Just compensation” had traditionally been determined by the government based on zonal valuation of properties determined by the Bureau of Internal Revenue. Owners of major expropriated properties invariably went to court to contest the compensation offered by the government, much like how numerous land owners forced by agrarian reform to give up their lands to their tenants went to court over the compensation offered under the law.
In the Marcos martial law years, the last kilometer stretch of Edsa between Taft Avenue and Roxas Boulevard could not be built for many years because private owners contested the compensation offered by the government. After years of protracted court litigation, the Supreme Court finally ruled in their favor, seemingly damning that last kilometer stretch of Edsa forever.
Former prime minister Cesar Virata recalls how the government found a way around the problem by having the Batasang Pambansa, our legislative parliament that he headed at the time, enact a law overriding the Supreme Court decision. In lawyer’s parlance, they enacted law to override or amend “case law,” or law set by a Supreme Court decision on a specific case.
It was already under the Cory Aquino administration that then Secretary Fiorello Estuar finally got to build that Edsa extension, and not without overcoming still more remaining legal hurdles. And the rest is history, so to speak.
Given the judicial system’s notoriety in taking years to settle civil and criminal cases, projects subject to right of way court disputes were either held up for many years, or canceled altogether. It would seem it was only with the passage of the Right-of-Way Act (Republic Act No. 10752) in 2016 that the law finally became clear on how the government can assert and operationalize its power of eminent domain, while avoiding long delays from lengthy court litigation.
Among other things, the law provides that the offer price for properties to be affected by public projects would be based on the current market price, as appraised by independent appraisers. If the property owner still won’t accept that, the implementing agency may resort to expropriation. Upon depositing the amount equivalent to the compensation for the land with the court, it will be authorized by the court to take possession of the land and proceed with the project.
End of story? Not quite. Now I’m hearing of further delays, because property owners are taking time to produce documents needed in the expropriation process. It seems Filipinos never run out of ways to make life harder for everyone else.
