False mandate

When the government insists on taking over the running of a business that is best left to professionals, trouble is expected to follow.

The inordinate effort of the state-owned Public Estates Authority Tollways Corp. (PEATC) to wrestle control of the Manila-Cavite Expressway (Cavitex) is a classic example of a poor appreciation of the state’s role in the current infrastructure buildup.

The policy of President Ferdinand “Bongbong” Marcos Jr. is defined in the Public-Private Partnership (PPP) with heavy stress on the government staying away from involvement in running a business.

PEATC Officer-In-Charge Dioscoro Esteban Jr., who launched the campaign to take control of Cavitex, is in hot water with the Office of the Government Corporate Counsel (OGCC) for bypassing the government after he hired a private lawyer to engage in the legal tussle with Metro Pacific Tollways Corp. (MPTC).

Chief Government Corporate Counsel Rogelio Quevedo wanted Esteban to turn over all the information and documents to the OGCC since government interest is involved and not the private concerns of Esteban.

Quevedo censured the PEATC OIC over his rushed decision to end the OGCC’s legal services last January.

Quevedo’s point was that even with private counsel, the outcome of the legal battle could significantly affect PEATC’s finances and would have an effect on the operations of other agencies such as the Philippine Reclamation Authority (PRA) and the Toll Regulatory Board (TRB).

“Ultimately, it is the government that will be placed in a disadvantageous position if the OGCC would agree to PEATC’s unilateral termination,” Quevedo said.

Quevedo cited Memorandum Circular 9 of the Office of the President which directed state firms to bring all legal matters to the OGCC, forbidding them from referring these matters to the Office of the Solicitor General (Solgen), private lawyers, or law firms.

Quevedo also cited a Supreme Court decision which stated that while GOCCs are allowed to hire private lawyers only in “exceptional cases,” this requires the approval of the Solgen, OGCC, and the Commission on Audit.

Esteban is also facing multiple charges filed by MPTC subsidiary, Cavitex Infrastructure Corporation (CIC), for perjury, usurpation, slander and violation of the Anti-Graft Law following his filing of a petition for mandamus with the Court of Appeals and his public statements attacking CIC.

CIC caught the OIC misrepresenting himself under oath when he claimed to be the duly authorized representative of PEATC.

PEATC does not have a board of directors to back up Esteban’s posturing that he had the authority to file for a writ of mandamus or a petition transferring Cavitex control to PEATC.

CIC also wants Esteban to answer for making false accusations against the MPTC unit. Esteban is liable for usurpation of authority in claiming to be authorized when he is not, the CIC complaint with the Ombudsman noted.

The PEATC OIC was doing the government a disservice by hindering the realization of a deal that would ultimately benefit the public, particularly motorists.

The Department of Finance was exploring ways to allow MPTC’s proposal to buy out the government in the Cavitex joint venture, “except the PRA (Philippine Reclamation Authority) is not under the DoF,” a finance official said.

The official said that negotiations and not a government takeover was the best way to resolve the question of control.

“There’s the price consideration… then there’s the efficiency aspect [but] PRA’s mandate is not really on tollways… anyway, it has to be valued as a whole,” the official added.

The government must not intervene where the private sector is better off running complex operations such as a tollway business.

It should instead make sure that the operator is remitting the correct fees which are needed in the rendering of public service.