TRO on Uber, GrabTaxi has flimsy legal basis

THE TEMPORARY restraining order on new accreditations for vehicles under popular sharing apps Uber and GrabTaxi weakly invokes legal form over substance. An unelected judge with a caveman’s perspective should not singlehandedly hijack our democracy’s most important transport regulation debate.

The TRO was initiated through lawyer David Erro by a federation of drivers and transport operators named “Stop & Go” or “Angat Tsuper Samahan ng mga Tsuper at Operator ng Pilipinas Genuine Organization Transport Coalition.” It stopped the Land Transportation Franchising and Regulatory Board (LTFRB) from implementing Department Order No. 2015-011.

This order, issued on May 28, 2015, created a flexible framework that legalizes “transport network companies” (TNCs) formally defined as providers of “prearranged transportation services for compensation using an Internet-based technology application or digital platform technology to connect passengers with drivers using their personal vehicles.”

The LTFRB previously suffered intense public criticism for threatening to shut down Uber and GrabTaxi. TNCs provide safer, more convenient and more courteous service than taxis. In “Uber: clash of law vs common sense” (Opinion, 11/13/14), I lamented holdups, sexual assault, chloroform in air-conditioning, seats reeking of sweat, rejection of passengers with impunity, and abrupt swerves and stops.

I concluded: “Regulation realizes a net benefit when its benefits exceed its costs…. If self-regulated Uber produces far better service, the LTFRB necessarily produces a negative social benefit. When we discard our bar-exam- and memory-oriented legal education and stop being enamored with enforcing law for its own sake, common sense tells us that we could abolish the LTFRB tomorrow and society would be better off.”

The LTFRB relented and issued Order No. 2015-011, the first of its kind in the world. It was a democratic solution. Government responded to the clamor of the metropolis with the world’s worst traffic, as declared by Waze last October.

Indeed, yuppies in the Makati/Fort area, ground zero for TNCs, can function without owning a car despite the lack of reliable public transport.

In belatedly issuing a TRO, Judge Santiago Arenas of Quezon City RTC Branch 217 short-circuits this critical policy debate and democratic experiment.

Stop & Go’s petition was legally atrocious. It opens with blatantly inapplicable doctrine. The first section asserts “standing,” the right to bring a constitutional case. Indeed, Stop & Go’s Facebook page curiously proclaims the unconstitutionality of Uber and GrabTaxi.

However, Stop & Go invokes no constitutional provision. Thus, it failed to even establish a right to sue. Such basic incompetence would normally get one thrown out of a freshman law class, but here, it resulted in a TRO that panicked Manila.

This gaffe and the use of words such as “presto” in a legal pleading aside, Stop & Go invokes Commonwealth Act No. 146, passed in 1936, which prohibits a transport company from operating without a “certificate of public convenience” (CPC). It simply decries how LTFRB accreditation for Uber and GrabTaxi was called something else. It is an annoying form-over-substance argument.

Commonwealth Act No. 146 grants broad authority to issue CPCs to operators who “promote the public interest in a proper and suitable manner.” Thus, the TRO becomes baseless if the LTFRB issues procedures to grant TNCs accreditation specifically called CPCs.

The TRO is thus based on a belabored, literal interpretation and a freshman procedural error.

Beyond this dubious legal basis, there are many other reasons to immediately rescind the TRO.

First, a TRO is a weighty legal step to protect the status quo while a judge hears a case. For example, a TRO preserves a building in case a judge rules against its demolition.

Stop & Go argues a TRO is urgently needed to prevent “grave and irreparable injury” from Uber and GrabTaxi. Where is the urgency given TNCs have been operating for over a year?

Second, a judge should not reduce a complex policy debate into a simplistic legal question. The law does not require just CPCs, but sensible regulation over TNCs, which the LTFRB has already enacted and should continue to have breathing room to experiment with.

A judge’s intervention cuts short a rich, ongoing discussion that may well produce a wiser law. For example, technology blurs the line between public and private. We do not impose public operator liabilities on a person who casually offers to drive friends home. What about someone who is an Uber driver for just one or two hours a day? What about electronically organized carpools?

Third, curiously, Stop & Go seeks to impose the extensive requirements for traditional CPCs on Uber and GrabTaxi instead of making the requirements for taxis more flexible.

Law cannot be a troglodyte blocking the march of science. No government would ban computers to save jobs in typewriter factories. If Uber and GrabTaxi render the old taxi model obsolete, then law must uphold what makes the consuming public better off.

Stop & Go’s invocation of an 80-year-old law against innovation highlights how law schools must emphasize pragmatism when it comes to commerce, instead of making a virtue of following rules for the sake of following rules.

A hearing on Dec. 8 will decide whether the TRO will become permanent. It deserves as much public scrutiny as the LTFRB hearings. We must emphasize that judicial policy is just as accountable to the public as any other.

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Please watch me discuss Sen. Grace Poe’s disqualification on “Talkback with Tina Palma,” tonight (Monday, December 7) at 7 o’clock. on ANC.

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React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.