The importance of Arta (2)

To make it more confusing, Dito Telecommunity, another telco, complained to the Ombudsman claiming they had the right to the assigned frequencies. They claimed that the Anti-Red Tape Authority (Arta) officials gave undue favor to NOW Telecom by issuing the frequencies that were supposed to be for Dito.

In response, the Ombudsman preventively suspended Arta director general Jeremiah Belgica together with four of his top officials from the legal department, effectively crippling the day-to-day resolution of cases filed before Arta. But Arta has no authority, or role, in assigning frequencies. It’s the National Telecommunications Commission (NTC) that does that. And, as far as I can tell, NTC still hasn’t assigned the frequencies to anybody.

What I don’t understand is why the Ombudsman suspended Arta officials when it was NTC that created the mix-up. Arta just followed the law.

What is even more peculiar is that, at the request of NTC, the Department of Justice (DOJ) stepped in. The DOJ ruled that Arta had no jurisdiction over NTC as the latter is a quasi-judicial entity and the law exempts quasi-judicial entities from Arta’s oversight. If, like me, you didn’t know what a quasi-judicial entity is, it’s just about every agency we deal with—the BOC, FDA, DENR, SSS, BI, LRA, SEC, OMB, BAI, PCC, NCIP, GSIS—everyone who adjudicates in order to decide whether to grant someone something.

This is not what the law intended. The law was authored by Senate President Migz Zubiri who intended this law to give us a rapid, simple, incorruptible process for obtaining government approvals. As he said, the application of the Ease of Doing Business (EODB) law must be observed by all agencies. In this case, that includes automatic approval.

The DOJ seems to have based its decision on the original law of 2007, which did exclude quasi-judicial functions from coverage of the law. But Republic Act No. 11032, the Ease of Doing Business and Efficient Government Service Delivery Act of 2018, reversed this and specifically included quasi-judicial entities in coverage by Arta. This was further confirmed in bicameral committee deliberations.

The case was brought up to the Court of Appeals (CA) by Newsnet. The CA heeded the new law and agreed with Arta. Quasi-judicial entities were specifically included in the coverage of the EODB law. The CA went further in pointing out that the DOJ decision is not applicable in this case because Newsnet is a private corporation only needing a certificate of authority from the NTC, not a franchise as required by a company providing public service.

The CA recognized the importance of Arta’s role when it went further and said, “The EODB Act imposes civil, administrative and criminal sanctions against public officials who violate the same, however, it is wanting on the remedies or the measures regarding the implementation of the Arta’s directive of automatic approval. Hence, the issuance of the instant writ of mandamus (an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion) is judicious to promote the government’s drive to reduce red tape and expedite business and nonbusiness transactions in the government, otherwise, the purpose of the law will be rendered inutile or meaningless.” The CA directed the NTC to faithfully and immediately comply with Arta’s order.

Zubiri followed that up with a public statement, thanking the CA for its decision. In that statement, he said: “We are sending a strong message to all government agencies to listen to Arta, follow Arta’s directives. In this way, we can effectively serve our people and promote the Ease of Doing Business. The Ease of Doing Business, by the way, is a recurring theme whenever we meet with local investors, foreign investors who want to do business in the Philippines.”

I presume, given the CA’s order and the support of the Senate, that the Ombudsman will recognize that this was just a simple error and that he now corrects it by addressing its concerns to the NTC where the failure clearly lies. To repeat, Arta’s only role was to confirm the documents were complete, and the requisite fees paid, which they did. So the automatic approval demanded by the law kicked in. Let Arta get back to work and continue to improve the ease of doing business with the government. Let the DOJ sort out in arbitration who should get the frequencies because the DOJ has no power to decide on the frequencies. It is now with the courts where a decision can be made.

The Ombudsman has vast powers. He can accept all kinds of complaints, covering corruption and poor performance in all branches of the government. He can also impose penalties such as preventive suspension on erring officials. There’s much else he can do. Arta can’t do any of it, its role is strictly limited to a certain niche of government service: Doing business with the government, and finding ways to make it easier. It helps the Ombudsman do his job by reducing the work he has to do. He should be welcoming and working with this assistance.

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