Supreme Court asked to stop SLEX toll hike anew

MANILA, Philippines - The Supreme Court (SC) is again being asked to stop the increase in toll fees in the South Luzon Expressway (SLEX), which is set to take effect on Saturday.

In a second supplemental petition, lawyer Ernesto Francisco Jr. asked the High Court to stop through a temporary restraining order (TRO) the South Luzon Tollways Corp. (SLTC) from implementing a P3.02 per kilometer initial increase in SLEX.

The Court had already issued a TRO on the case earlier this year, which it lifted after it junked last Oct. 19 the first petition of Francisco as well as other similar petitions.

Francisco argued that the SLTC and Toll Regulatory Board (TRB) should not be allowed to hike toll fees since the SC ruling is not yet final and executory and that his appeal remains unresolved.

“If respondents (TRB and SLTC) are not restrained, grave and irreparable injury will be caused to petitioner and other motorists using the SLEX since their constitutional rights will be violated,” he added.

“Moreover, the constitutional issues raised in the instant petition are of paramount and transcendental importance to the national interest and will impact on a great number of the Filipino people,” he added.

Petitioner also reiterated his plea for the SC to reverse its ruling that upheld the validity of various Supplemental Toll Operation Agreements (STOA) forged by TRB with SLTC covering SLEX and other expressways.

He again assailed Section 3, paragraph (h) of PD No. 1112 (Toll Operation Decree) that unduly vested in the TRB the exclusive power of Congress to grant franchises for public utilities. The board had invoked this authority when it extended the 30-year franchise of the Philippine National Construction Corp. (PNCC) through a toll operation certificate.

Petitioner said this is “an encroachment on the legislative power of Congress and violative of Article VI Section 1 of the Philippine Constitution.”

He also argued that allowing TRB to sign the STOA for the construction, operation and maintenance of toll facilities while also having the power to adjudicate and approve or disapprove petitions for the increase in toll rates is “violative of the due process clause of the Constitution.”

“The TRB, being a party to the tollway contracts, is bound by the stipulated initial toll rates and periodic toll rate increases provided in the said contracts. Consequently, the TRB cannot be a fair and impartial tribunal to hear petitions for initial toll rates and toll rate adjustments,” he said.

“Under the STOA, the government will be in default if the initial toll rates or any periodic toll rate adjustment is not implemented for any reason whatsoever. Thus, any public hearing conducted before the TRB would be a moro-moro, so to speak, because the TRB, which is the agency mandated by law to conduct such public hearing, is a party and signatory to the STOA and bound by the same,” he explained.

“The tollway contracts should have undergone public bidding. However, there was no public bidding, no direct negotiation, and no unsolicited proposal before the TRB. The investors did not even undergo the process of pre-qualification before the TRB. The original investors in the tollway contracts were just handpicked,” he alleged.

Under the Automatic Toll Rate Adjustment Formula of the STOA, he said there would be toll rate increases every two years and interim increases in between. He said the formula made sure there would be no decreases or reductions in toll rates under any circumstance.

“The increased toll rates are simply too much and outright confiscatory. The foreign investors in the tollway contracts will make a killing so to speak, at the expense of the Filipino motorists. The SLEX toll rates will increase by 250 percent over the current rates. According to the Malaysian investor MTD Capital Berhad’s president and chief executive officer Datuk Azmil Khalid, the entire project would cost P11.8 billion while the expected pay-back period was six years,” he pointed out.

“This means that the Malaysian investor will be able to recoup its investment in six years and for the remaining 24 years of its STOA, not to mention a 30-year extension to which it is entitled, the Malaysian investor will just be raking in profits,” he added.

The STOA, according to Francisco, passes on to the motorists – not to the investors – the financing of the completion of the tollway projects by way of exorbitant toll fees.

In its ruling last month penned by Associate Justice Presbitero Velasco Jr., the High Court upheld TRB’s authority to grant “administrative franchise” for toll facility projects.

It held that the law “vested the TRB with sufficient power to grant a qualified person or entity with authority to construct, maintain, and operate a toll facility and to issue a corresponding toll operating permit (TOC).”

The constitutionality of the three decrees issued by the late President Ferdinand Marcos was also upheld by the High Court.