By Janina C. Lim, February 14 2019; Business World
Image Credit to Philippine Star
THE Anti-Red Tape Authority (ARTA) will now allow government agencies claiming to be covered by special laws to be exempted from the timelines for processing transactions under the Ease of Doing Business (EODB) law.
Trade officials have said previously that the law allows no exemptions, citing the language of Republic Act (RA) 11032 or the EoDB Act of 2018 which said it covers “all government agencies including local government units.”
However, ARTA Officer-in-charge Director-General Ernesto V. Perez said Thursday that the agency will now allow for exemptions particularly for those agencies requesting waivers due to their being covered by special laws which provide for separate timelines in processing certain transactions.
The intention is to achieve a balance between due process and ensuring that government services are delivered promptly, according to Mr. Perez.
Agencies with quasi-judicial functions have raised concerns about the EoDB law, noting that the three, seven and 21-day processing rule respectively for transactions classified as “simple”, “complex” and “highly technical” do not suffice for the nature and magnitude of the cases they handle.
“As a general rule, everybody is covered. Now if you claim to be exempted because you are covered by a special law then you say so,” Mr. Perez said, noting ARTA is now writing to remind agencies to classify their transactions as “ simple”, “complex” and “highly technical” or whether they are claiming to be exempt from the EoDB law.
The classification will still have to be approved by ARTA’s director-general who has yet to be appointed by President Rodrigo R. Duterte. Meanwhile, those transactions not classified will be deemed “simple,” requiring completion within three days.
However, he said ARTA will not stipulate in the EoDB’s implementing rules and regulations (IRR) any exemption provisions.
“It should be treated on a case-to-case basis in order not to encourage agencies covered by special laws to claim exemptions. What we would like to highlight is the possibility of expediting processes through automation,” Mr. Perez added.
“If we highlight exemptions in the IRR, many might claim they are exempt,” he added.
Adding a provision to exempt some agencies may also highlight the “conflict” between a general law and a special law, rather than the essence of the law, which is to expedite government processes, according to Mr. Perez.
In principle, a general law supersedes a special law if the enactment of the former comes after the latter and if the special law is incompatible with provisions stated in the general law that followed it.
However, on Wednesday, during the news conference that followed the public consultation on the EoDB IRR in Pasay City, Mr. Perez said: “There is no question that RA 11302 is a general law. So that when there is a conflict between the general law and the special law covering a particular agency, then that special law will prevail.”
He added that the law “will really depend on the agency’s interpretation or study of their existing rules and regulations.”
Mr. Perez added that the preparations for the promulgation of the EoDB law, via the release of the IRR, complements ongoing efforts under Project Repeal.
Launched in 2016, Project Repeal aims to review old regulations and special laws which technological advances may have rendered irrelevant or replaceable by automation.
Since its launch in 2016, the project has reviewed 5,850 issuances, with 1,921 since repealed, 57 amended, 67 consolidated, 3,346 delisted; and 459 retained.
The most recent review resulted in recommendations for the repeal and amendment of 31 laws while 299 department/agency level issuances were proposed for repeal, amendment or consolidation.
Signed in May 2018, the EoDB law penalizes government officials who fail to meet its prescribed deadlines with suspensions and fines up to dismissal, perpetual disqualification from the service, and forfeiture of retirement benefits, depending on the number of times the law is violated.
The IRR will be promulgated once signed by the ARTA DG, whose appointment can be expected to be made official soon, Mr. Perez said.
But Mr. Perez, whose official appointment is as the Deputy Director General of the agency, encouraged another agencies to start moving and acting even without the IRR.
“Because the law says its already effective June 17, 2018, we are already encouraging all government agencies to do their own studies and evaluation of their existing rules and regulations without waiting for the promulgation,” he added. — Janina C. Lim