IRR: Legal sabotage

The Mother of all crimes and legal sabotage has been under our noses but no one seems to have paid much attention to it. Perhaps now is the opportune time for everyone to do so. The controversial GCTA law became a legal “Frankenstein” after revisions and additions were made through its IRR. For the longest time people have lamented the fact that the Philippine Clean Air Act of 1999 was rendered useless because of revisions or insertions made through its IRR. I’m sure that if Congress actually began the audit of laws and included the subsequent IRRs, they will be shocked at how many laws have been bastardized, twisted or compromised through IRRs influenced by groups with vested interests.

The Philippine Congress meaning both House of Representatives and the Senate regularly crafts bills that pass into law once given the seal of approval by the President. But, as we have discovered with the GCTA law, the best of intentions can lead to a disaster. While everyone is putting blame on Nic Faeldon et al or his minions at the BuCor and Bilibid, no one has asked “Who let the dogs out?” or left the door open in the first place. The fact of the matter is that IRRs or Implementing Rules and Regulations are formulated or written not by the legislators but by government officials mostly under the executive department.

The presumption is that these government officials are more familiar with the operational realities and day-to-day details associated with the implementation of rules and policies associated with a law. In fact many laws are initially crafted based on the suggestion or drafts of concerned government officials and agencies and are endorsed to legislators who in turn improve, disapprove or pass such proposals into bills. Here’s the catch: often times the drafts, the IRRs, and the implementation of policies are all done not by high ranking executives but by lower rank personnel mostly at the division chief or supervisory levels many of whom are now under suspicion or investigation. It is also at this level where the corruption begins. Time and again I have heard of how lobby groups have reached out to “Head of Legal”, EAs, or division chiefs upon whom department heads and cabinet secretaries rely for data and recommendations. Let’s not get too tough on Faeldon for using his “I rely on our legal officer” defense because it is a fact of life in government.

Given that and the fact that the formulation of IRRs can criminally undermine and ruin good legislations, both Senate and the House should now act on the inclusion of a process that subjects any and all IRRs to both Congressional and public scrutiny. Had the GCTA IRR been submitted to Congress, the media and the public before its implementation, I have no doubts that there would have been more than a howl of protest from the victims and their family, the legislators who crafted the law and the judiciary.

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“Damned if you do – damned if you don’t”

I recently heard that MMDA General Manager / USec. Jojo Garcia was issued a show cause order to determine if he should be slapped with a Contempt of Court or not. The MMDA and the Provincial Bus Operators are currently before the court concerning the proposed ban on provincial buses along EDSA. As a consequence of the case, all parties are prevented from discussing the matter in public. Meanwhile, Senator Grace Poe and associates decided to tackle the Provincial Bus ban “in aid of legislation.” Word is Garcia informed Poe that there is an on-going case and he could be cited for contempt. But that was not enough of an excuse and Garcia was advised to respond to the Senate inquiry. As expected, Garcia was issued a show cause order for violating the court order. The sad part according to my MMDA insider is that Garcia got no sympathy from Poe et al just some ribbing from the senators who treated the matter like it was just a practical joke. Garcia is now left on his own to explain to the court.

In the very same week, the same sort of scenario played out where Senators required a witness to respond to a Senate inquiry in spite of the fact that the witness stated that he has an ongoing case before the Court of Appeals. Hopefully, the Justices at the Court of Appeals would be more understanding because if not, another Senate resource person is going to get a show cause order. Two years ago, I witnessed how a couple of Congressmen pressured and cajoled a witness to divulge the contents of a Non-Disclosure Agreement, particularly the terms and amounts involved in a settlement between a citizen and a private corporation. The Non-Disclosure agreement had no relevance to the subject matter but the Congressmen pressed on. The witness tried to explain that he was bound by the agreement but the Congressmen insisted that the witness had immunity. Regardless of the views of the Congressmen, that does not stop the filing of a civil complaint or the discomfort of being hauled to court to explain the circumstance. On the flip side the corporation was placed at risk legally and financially concerning future complaints or pending cases.

A respected retired magistrate recently shared his opinion that the GCTA in its current form and implementation intrudes or trespasses on the sole authority of the courts and the judicial branch to determine prison sentences. Now we have this issue of the senate being dismissive of Sub Judice or legal cases or contracts. A word of caution: respect constitutional boundaries lest we end up in a constitutional crisis.

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