Clearing the way
I wrote last week of how right-of-way (ROW) issues continue to be a top source of delays for our major infrastructure projects, and it has been so for decades. And this is in spite of the state’s inherent power of eminent domain, that is, to take over private properties for public use, even without the owner’s consent, with just compensation.
It seems that the law was never clear on how government can exercise this power without leading to lengthy court litigation that delayed projects, sometimes endlessly. Some say it was a lack of political will to assert the power. For others, it was more of a cost issue.
In some projects, ROW costs turned out to be so high as to negate the financial viability of the project. Such was the case, for example, with an alternate road leading from the National Highway into the University of the Philippines campus in Los Baños, Laguna (UPLB), that was planned back in the 1990s. As chair and host of the Asia-Pacific Economic Cooperation (Apec) leaders’ meeting in 1996, the country had committed the establishment of the Apec Center for Technology Exchange and Transfer for Small and Medium Enterprises (ACTETSME) within the UPLB campus. The proposed road, which was to run alongside the railroad tracks toward where the International Rice Research Institute is located, would reduce the congestion along the existing main road into UPLB, thereby also easing access to ACTETSME.
The ACTETSME building got built, but the alternate road into UPLB never did. The reason? The public works department reportedly determined that the ROW costs were going to be too prohibitive and push costs way beyond budget. The ACTETSME building never found its intended use, and difficulty of access was surely a factor, among others.
When our country hosted Apec again in 2015, our officials deliberately kept tight-lipped about what would have been our main tangible contribution to Apec since the first time we chaired it, but has instead turned into a national embarrassment.
That and other similar cases led the National Economic and Development Authority and the interagency Investment Coordination Committee of the Neda Board to adopt in the late 1990s a new policy on costing infrastructure projects. ROW and squatter relocation costs were henceforth to be incorporated by proponent agencies into the budgeted costs for projects, thereby permitting a more complete assessment of their financial and economic viability. This had not been the case in the past; ROW and relocation were considered ancillary costs that someone else (usually the Office of the President) had to worry about.
While that policy change took care of the budget barrier associated with ROW issues, it didn’t address the other facets of the problem, such as issues of a legal/judicial, operational and tactical nature, and the transparency and integrity of the process. The Right-of-Way Act (Republic Act No. 10752) sought to ease traditional legal delays by basing compensation on current market price, as appraised by independent appraisers. If still disputed by the property owner, the implementing agency may deposit the compensation with the court, which would then authorize it to take possession of the land and proceed with the project.
Yet, ROW delays persist to this day. Former public works secretary Fiorello Estuar wrote in response to my last article on the issue: “A major cause of these ROW problems is the diffusion of the effort to many agencies and entities, resulting in the lack of a concerted effort to address the multifaceted causes of the problem. At the moment, ROW issues are handled separately by the many agencies requiring ROWs.”
He recommends consolidation of efforts under a focused ROW task force or center, which can be either a separate entity or part of the Public-Private-Partnership Center already tasked with project preparation. Given the multifaceted causes of the problem, we will also need multiskilled staff with competence in the various problem areas involved.
With ROW issues compromising the prospects for the “Build, build, build” program, we need such a focused mechanism to clear the way through right-of-way.
