Inconsistent findings

The Philippines’ bid to improve the ease of doing business by reducing, if not eliminating, red tape in government transactions just recently took a big hit.

This was after the Office of the Ombudsman ordered the dismissal from office and worse, perpetual disqualification from holding public office, forfeiture of benefits, and cancellation of civil service eligibility of five officials of the Anti-Red Tape Authority (ARTA) who were simply performing their duties under the law.

Last June, the Office of the Ombudsman found these officials, led by ARTA director general Jeremiah Belgica, guilty of grave misconduct, gross neglect of duty, and conduct prejudicial to the best interest of the service, for ordering the automatic approval of an application filed by Now Telecom which had been pending with the National Telecommunications Commission (NTC) for almost 10 years.

Under the Ease of Doing Business Act of 2007 or Republic Act 9485, as amended by RA 11032, which also created ARTA, if a government office or agency fails to approve or disapprove an original application or request for issuance of license, clearance, permit, certification, or authorization within the prescribed processing time, said application or request shall be deemed approved provided all required documents have been submitted and all required fees and charges have been paid.

The same law provides that all applications or requests submitted shall be acted upon by the assigned officer or employee within the prescribed processing time stated in the Citizen’s Charter which shall not be longer than three working days for simple transactions, seven working days for complex transactions, and no longer than 20 working days for those involving activities posing danger to public health, public safety, public morals, public policy, and highly technical applications.

As amended, the law applies to all government offices and agencies, including local government units, GOCCs and other government instrumentalities whether located here or abroad that provide services covering business and non-business related transactions as defined in the law.

The Ombudsman acted on a complaint filed by Dito Telecommunity which claimed that the telecom frequencies directed by ARTA to be given by NTC to Now Telecom are subject of pending litigation and had already been assigned to Dito.

Dito also contended that ARTA gave Now Telecom unwarranted benefits, advantage, and preference through manifest partiality, evident bad faith, and gross inexcusable negligence when it issue the March 2021 resolution that declared Now’s application for provisional authority to operate in the 1970 to 1980 megahertz frequency range paired with 2160-2170 MHz and 3.6 to 3.8 gigahertz as complete.

Meanwhile, the respondents led by Belgica asserted that the function of ARTA was to determine only the completeness of an application warranting an automatic approval by operation of law, and not the rights and obligations of the parties, and that they were merely performing their official duties in good faith.

They added that there was no injury to the government and to Dito as its interests over the contingent frequencies (after it was selected as the country’s third telco or new major player) are merely conditional and that Dito had no actual right over said contingent frequencies.

Belgica said they are appealing the Ombudsman’s decision in the administrative case before the Court of Appeals.

Unfortunately, the Ombudsman’s ruling was largely based on a resolution issued by the Office of the Secretary of Justice (OSJ Case 01-2020) in another case pending before the OSJ (Newsnet vs NTC) which held that proceedings before the NTC are quasi-judicial in character and not within the contemplation of the automatic approval clause under the Ease of Doing Business Act. ARTA appealed the said OSJ resolution before the Office of the President (OP) but was denied.

The Ombudsman noted that the respondents’ clear intent to violate the law and flagrant disregard of established rules were obvious when ARTA issued the disputed resolution despite knowledge of the denial of their appeal before the OP.

The Ombudsman’s ruling however totally ignored the July 20, 2022 and March 28, 2023 decisions rendered by the Court of Appeals on the said Newsnet vs NTC case which ruled that ARTA has jurisdiction over the NTC.

Here, the NTC questioned an ARTA directive issued Feb. 12, 2020 ordering it to issue a certificate of public convenience to Newsnet in the 25.35-26.35 GHz frequency range after Newsnet’s application was considered deemed approved for NTC’s failure to act on it within the period prescribed under the Ease of Doing Business Act.

NTC then referred to DOJ the issue of whether the provisions of RA 9485 as amended are applicable to NTC’s authority to administer the radio frequency spectrum.

In OSJ Case 01-2020, the DOJ resolved that ARTA had no jurisdiction over the NTC when performing a quasi-judicial function and therefore, ARTA’s declaration of completeness and order of automatic approval should be set aside. ARTA appealed to the OP but was denied for lack of jurisdiction.

On June 17, 2022, ARTA had no option due to the DOJ resolution but to abandon its Feb. 2020 order declaring Newsnet’s application deemed automatically approved.

However, on July 20, 2022, the CA held that ARTA has jurisdiction over the NTC, whether the said body is performing a quasi-judicial or an administrative function as clearly provided in the Anti Red Tape Act.

The CA also noted that ARTA’s Feb. 12, 2020 order automatically approving Newsnet’s application is already final and executory and rights have been vested to the winning party, which can compel performance after the NTC filed an alleged compliance to the directive instead of filing an appeal to the OP.

Meanwhile, the CA likewise explained that the DOJ resolution was issued pursuant to NTC’s referral of the matter under PD 242 which provides that all disputes between or among agencies of the national government arising from interpretation and application of statutes, contracts, shall be administratively settled or adjudicated.

However, since the case does not involve only NTC and ARTA but Newsnet which is a private party, then PD 242 does not apply and the DOJ’s resolution does not bind the court, the CA said.

The CA ordered NTC to comply with the ARTA order for the automatic approval of Newsnet’s application.

Meanwhile, on March 28, 2023, the CA denied the motion for reconsideration filed by NTC. In this decision, the appellate court emphasized that with the finality of the Feb. 12, 2020 order of the ARTA, it is perplexed as to how ARTA could reverse or abandon the same via its July 17, 2022 using only the DOJ resolution when it had previously and vigorously opposed the said DOJ findings.

To summarize, if the DOJ ruling in the Newsnet case which was cited by the Office of the Ombudsman in the case involving ARTA and Now Telecom had no leg to stand on and ARTA had jurisdiction over the NTC, then shouldn’t it follow that the ARTA officials were just doing their job in implementing the provisions of the Ease of Doing Business Act and therefore should not be punished for what they did in the Now Telecom case?

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