The Mmda Is An Administrative Agency Created By R.docx

MMDA Traffic Enforcers: Bribery as the Operational Code

I.

Introduction

The MMDA is an administrative agency created by R.A. 7924. It is tasked, under the Republic Act, in general with planning, monitoring and coordinating the delivery of metro wide services in Metro Manila. In particular it is responsible for development planning for projects, traffic management, solid waste disposal, flood control and sewer management, urban planning, health and sanitation, and public safety in Metro Manila. This paper however will focus on the traffic management aspect of the MMDA in relation to RA 3019, RA 6713, and RA 1379, particularly the Traffic Enforcement Personnel, also known as the Traffic Enforcers or Traffic Constables, regarding the differences between the Laws and Implementing Rules covering their transactions with motorists regarding fines and what actually transpires during the ordinary course of business. It is our opinion that the 3 R.A.s listed above, while providing for appropriate penalties, are rendered almost defunct by the practices used by the Traffic Enforcers. The pertinent provisions of the above laws are as follows R.A. 3019 also known as the Anti Graft and Corruption Act defines those covered, Public Officers, under Section 2 (B) as any, “elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government ....” Relevant to the topic of this paper, under this Republic Act it shall be unlawful for any public officer to (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. Or (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. The penalties to be meted out for transgressions of the above are listed down in Section 9 of the same R.A. which is reproduced as follows.

Sec. 9. Penalties for violations. - (a) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than one year nor more than ten years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the value of such thing. Additionally according to Section 8 of RA 3019, if under RA 1379, if the public official, “whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal.” Under RA 6713 It shall be unlawful for Public Officials to solicit or accept any gift or faor in the course of their official duties (d) Solicitation or acceptance of gifts. — Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. The pertinent provision under RA 1379 is Section 2 Section 2. Filing of petition. Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired. The Solicitor General, upon complaint by any taxpayer to the city or provincial fiscal who shall conduct a previous inquiry similar to preliminary investigations in criminal cases and shall certify to the Solicitor General that there is reasonable ground to believe that there has been committed a violation of this Act and the respondent is probably guilty thereof, shall file, in the name and on behalf of the Republic of the Philippines, in the Court of First Instance of the city or province where said public officer or employee resides or holds office, a petition for a writ commanding said officer or employee to show cause why the property aforesaid, or any part thereof, should not be declared property of the State: Provided, That no such petition shall be filed within one year before any general election or within three months before any special election.

The resignation, dismissal or separation of the officer or employee from his office or employment in the Government or in the Government-owned or controlled corporation shall not be a bar to the filing of the petition: Provided, however, That the right to file such petition shall prescribe after four years from the date of the resignation, dismissal or separation or expiration of the term of the office or employee concerned, except as to those who have ceased to hold office within ten years prior to the approval of this Act, in which case the proceedings shall prescribe after four years from the approval hereof. The thesis of this paper is that the regulations and fail-safes against graft and corruption by and large implemented by both law and rules in the Philippine setting, specifically regarding the performance of the duties of Traffic Enforces, do not conform to international standards. Scrutinizing the area of reporting actual violations the implementing rules, the nature of the bribe, and indeed the very nature of the job of a traffic enforcer preclude actual reports on bribery from being filed, we put forth the theory that the procedure as promulgated by the MMDA is insufficient in protecting both the government and motorist from practices of graft and corruption by Traffic Enforcers. Hence it is the proposal of this paper that the rules and regulations of the MMDA regarding fines be amended as suggested by Reisman in the article “Myth System and Operational Code.” “..there may be a point wherein the discrepancy between the myth system and the operational code becomes so great that either part of the myth system changes, belief in it wanes or crusades for the reassertion of the myth burst forth.” Reisman in the article, “Myth System and Operational Code” talks exactly about that, a Myth system which is the ideal of law or flow of behaviour which ought to be followed, and the operational code, the code of conduct actually applied within members of a specific community. The Metropolitan Manila Development Authority’s myth system is governed by the above laws and their internal rules and regulations, however in practice , as Reisman said in the article, the same is not fully followed, that there are discrepancies in the myth system and the actions taken to implement the same. If we look at the above laws the code of conduct required by the present laws are very strict and violation will include a fine or a permanent ban from the offender from holding public office. Yet there are many instances wherein the myth system is not followed despite harsh penalties which may follow. Applied, it is more likely that a different code of conduct will be followed, that is an individual convincing the officer to accept a bribe or that the officer himself will entice the motorist to bribe him. Indeed most of the times, based off of personal experience the officer himself will be the one to broach the subject of the bribe. For research purposes I committed a traffic violation to get the attention of an MMDA traffic officer. Subsequently he pulled me to the side of the road to discuss the said violation. He informed me of the nature of the violation, the relevant penalty and the fact that he would have to confiscate my license for the fact, all which which are part and parcel of how the MMdDA officer should conduct themselves according to the MMDA Traffic Enforcement Personnel Work Instructions

Document1, excepting that the offense committed did not warrant confiscation of the license2. Then the officer subsequently asked me, “Anong gagawin natin dito? Yung fine 1000 pesos tapos kailangan mong pupunta sa office para kunin ulit license mo.” He then slid over a green plastic drivers license holder and said “Baka pwede mong bayaran ngayon ng 500 pesos lng para di ka na ma-hassle.” The above is not an isolated event. Based on interviews with drivers the above situation is actually very common. So much so that the MMDA Operations Manual of 20163 and the Work Instruction Document4 are almost completely useless regarding implementation of fines. The same are also almost useless when it regards procedure for implementing said fines. According to the the MMDA Operations Manual, a traffic enforcer/constable is required to follow the following procedure in case of apprehending traffic violators VI. OPERATING PROCEDURES, Number 5, Apprehension Procedure: 5.1 Call the attention of the traffic violator and ask the driver to move the vehicle to the outermost lane so as not to obstruct flow of vehicles passing through the area; 5.2 Courteously inform the driver of his/her violation; 5.3 Request for the drivers’ license, vehicle registration and other pertinent documents; 5.4 Avoid arguing with the drivers and accomplish the UOVR immediately within the hearing distance of the passengers and in full view of passing motorists. 5.5 Issue the driver his copy of the UOVR(Unified Ordinance Violation Receipt) and inform him/her where and when to pay the fine. 5.6 In case of an accident, the Traffic Constable shall prepare a sketch of the collision; confiscate the license of the driver and then issue the traffic ticket (UOVR); 5.7 Turn over sketch to the traffic investigator upon his arrival or to the Traffic Bureau as the case may be; 5.8 The confiscated license of the driver involved in the accident and the corresponding UOVR shall be submitted to the Traffic Ticket Management Division to be released only upon submission by the driver of the following: Clearance from the Traffic Investigation Officer and in case of damage to government property , proof of payment of damages. 5.9 In case of the need for impoundment of the vehicle, the same is brought either to the ULTRA Impounding or the Tumana Impounding facility; 1

http://www.mmda.gov.ph/images/pdf/Transparency/qms/traffic-enforcement-personnel.pdf Ibid 3 http://www.mmda.gov.ph/images/pdf/Transparency/qms/MMDA-operations-manual-2016.pdf 2

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5.10 Apprehending Officers shall submit the copies of all issued UOVR to the TTMD(Traffic Ticket Management Division), within 24 working hours, if the apprehension involved the confiscation of the driver’s license or license plate and/or in case of the impoundment of the vehicle. If the apprehension did not require confiscation of the traffic ticket, the apprehension report and the copy of the ticket shall be remitted to TTMD within three (3) days. The apprehending officer must also submit a summary of apprehensions on a daily basis to their respective units for the consolidation of the unit’s weekly apprehension report submitted to the Office of the Director IV. Notice however there was a bribe transaction and what was actually performed was drastically different from what is purported above. The enforcer will indeed call the motorists attention and signal the same to move to the outermost lane. The enforcer will also inform the motorist of the said violation. However at this point the enforcer or motorist will almost invariably induce the other to accept or receive a bribe, and no ticket or fine will issue. Since there were no other witnesses to the act the officer may freely offer such a transaction without fear of repercussion. II.

Analysis

To further analyze the effectivity of the anti graft and corruption practices of the MMDA we shall cross reference the effective laws vis- a-vis existing framework for anti-graft and corruption practices. The framework to be used in this paper was developed by the accounting firm Earnest and Young, an international accounting firm. The framework was constructed to make a guideline for companies to adhere to the FCPA(Foreign Corrupt Practices Act) and the UK Bribery Act, which most global companies are using as the standard for their anti-corruption programs. The steps to implementing the framework are as follows: 1. 2. 3. 4. 5. 6. 7.

Conduct a Corruption Risk Assessment Setting the Tone by Developing a Corporate Anti-Corruption Policy Implement specific anti-corruption policies and controls based on risk Implement anti-corruption financial controls Conduct anti-corruption compliance training Monitor the program Incorporate anti-corruption procedures into mergers and acquisitions and joint venture due diligence (Not Really Applicable to government agencies) 8. Periodically reassess risk and modify the program Conduct a Corruption Risk Assessment According to William T. Henderson, the writer of the article, ”Dangerous World”, the risk assessment process should include a review of the company’s existing compliance program,

including its governance and reporting structure, adequacy of resources, whistleblower response and internal investigations process. Assess whether the program structure is effectively resourced and positioned to address identified corruption risks and, if not, what steps need to be taken to meet those risks. Particular attention should be paid to the whistleblower response and internal investigations process, as these are key components of aneffective anti-corruption program, and a failure in this area could undermine the credibility of the whole program. Applied, the MMDA’s current program mandates that every officer in the month of January submit their SALN(Sworn Statement of Assets, Liabilities and Net Worth) pursuant to Section 7 of RA 3017 which is reproduced below: Section 7. Statement of assets and liabilities. Every public officer, within thirty days after the approval of this Act or after assuming office, and within the month of January of every other year thereafter, as well as upon the expiration of his term of office, or upon his resignation or separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials and employees thereof, with the Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: Provided, That public officers assuming office less than two months before the end of the calendar year, may file their statements in the following months of January. Additionally there is an Accounting Division whose job as whole is to keep account of the cash inflow and outflow. It also keeps track of the salaries of the officers and ensures that the same comply with the law, before forwarding the same to the BIR. The Chief Accountant in particular supervises the accurate and timely preparation of periodic financial reports and consolidated financial statements of the Authority in accordance with the Electronic New Government Accounting System and ensures the correct and timely recording of financial transactions and proper maintenance of the required books of accounts. That being said aside from the aforementioned there is no internal monitoring system currently in place to specifically crack down on the bribes accepted by the traffic enforcers. They, the MMDA, seem to rely more on whistleblowers for infringements of the traffic enforcers of the Anti Graft and Corruption Act. Accordingly the procedure is set up as follows5: a. Complaints may be filed verbally or in written form to the Office of the TDO Director IV; b. The complaint is referred to the TDO(Traffic Discipline Office) Technical Committee on Complaints which evaluates the same and calls the concerned officer/personnel for clarification and/or explanation; 5

http://www.mmda.gov.ph/images/pdf/Transparency/qms/MMDA-operations-manual-2016.pdf

c. The Head of the Complaints Unit submits its findings and recommendation on the course of action to the Director IV, TDO thru the Head of the Administrative Unit; d. Depending on the decision of the Director IV, the case is either settled or referred to the MMDA Administrative Service and the Legal and Legislative Staff Service The same is understandable given that the officers act in a similar way as field personnel6 outside of the control of the authority. They cannot really be monitored either as their guidelines state that it is also prohibited for MMDA traffic enforcers to clump together in groups unless there is a specific reason for the same under the MMDA Operations Manual. Setting the Tone By Developing a Corporate Anti Corruption Policy According to the article, companies should design and implement an anti-corruption policy based on the requirements of the FCPA and the UK Bribery Act. The policy should be a clear and unambiguous statement of the company’s position that both governmental and commercial bribery on any scale or level will not be tolerated. It also should discuss the company’s commitment to accuracy in reporting and recording transactions and having in place internal controls for proper control, accountability and safeguarding of shareholder assets. While the MMDA does not seem to have an internal monitoring system, there is actually a very clear policy that bribery is in no way shape or form accepted. Accepting or inducing a bribe is automatic cause from dismissal from service. Do not engage in extortion or any other illegal activity. Mulcting motorists/pedestrians is an offense with a punishment of dismissal from the service.(Taken from the MMDA operations Manual) Implement specific anti-corruption policies and controls based on risk Applicable to the current situation the Implementation of specific anti-corruption policies and controls based on risk is the hiring of a third party, agents or consultants for the purpose of monitoring the employees who are at risk of performing illegal acts. While understandably expensive as it involves hiring of experts and/or appropriate field personnel, outside of the primary functions of the Authority, the same would be invaluable lessening corruption and the accepting of bribes by traffic enforcers. As of the writing of this paper, the MMDA Traffic Division office does not employ outside consultants employed under the definition stated above. Implement Anti-Corruption Financial Controls In this step, aside from the normal auditing done by the accounting division in a company, the article recommends a stricter control from the employers, going so far as to demand bank accounts to reconcile the same with the wages actually given to the employee. This is to monitor the actual cash flow of the employees to detect whether or not there was an illegal disbursement of funds, or whether or not the employee was taking substantial bribes. Besides the SALN

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Article 82 of the Labor Code, field personnel shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty

requirement and the auditing done by the Accounting Division in the normal course of its duties, there is no other Financial Control currently exercised by the MMDA. Conduct Anti-Corruption Compliance Training This step is geared towards informing employees that bribery should not be tolerated. It focuses on highlighting the company’s position that it does not tolerate corruption, explain its anti-corruption policies for compliance with the requirements of the FCPA and UK Bribery Act, discuss potential red flags or problem situations, and provide guidance for employees to get help. The MMDA Basic Training Module7does not seem to actually focus on this aspect but the same is touched upon in Module 3 of the course, called, “Law Enforcement Actions : Traffic Violation Detection Apprehension and Ticketing Prosecution and Adjudication & Penalization” which is about the proper procedure to be utilized in case of apprehending a traffic violator. Monitor the Program This step focuses on monitoring the program already in place by ay of internal audits to ensure that the program is being complied with. This audit could also unearth new problems or situations not previously covered originally by the anti-graft and corruption program implemented by the company. This step also includes a proper handling of the whistleblower handling procedure. In most cases the corruption is unearthed by a fellow employee who speaks up about the corrupt practices, however there is a danger that such testimony may handled incorrectly in that the testimony is blown off in cases of the accused being a “Star employee” or that the individual who steps forwarded becomes indentified. As stated previously there is a way for whistle blowers to be heard. The complaint is addressed to the technical committee who will handle the dispute. The procedure herein is that the technical committee will receive the complaint. During this stage the Committee may schedule hearings or summon the parties. Next is the investigation proper at the end of which they will submit their recommendation. The recommendation then will be transferred to the Legal and Legislative Affairs Staff if there should be an administrative sanction.8 Periodically Reassess Risk and Modify the Program The article states that risks change over time, comprehensive corruption risk assessments should be conducted periodically to make sure that the anti-corruption program is evolving to meet new risks posed by the changing business and external environment. They also recommend that the re-assessment should be done every 3-5 years. Since there is no program yet implemented by MMDA towards internally monitoring corruption the MMDA also fails this step.

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http://www.mmda.gov.ph/course-offering/registration-form/39-itm/1836-traffic-management-course-for-trafficlaw-enforcement-officers-leos-of-local-government-units-basic-course 8 https://www.mmda.gov.ph/images/Home/TDO-Citizen-Charter/Technical-Committee-on-Complaints.pdf

III.

Conclusion

As may be seen from the frame work, the MMDA’s position on curtailing bribery is very weak. While indeed its officers are subject to the various laws punishing acts of graft and corruption by public officers9 actually implementing the law is problematic as there is no internal monitoring program dedicated to rooting out corruption within the MMDA’s ranks. Furthermore the actual job of the traffic enforces enables them, the enforcers, to be away from the inquisitive eyes of their superiors whom may be watching out for such graft and corruption. It is also our opinion that based on the above framework and processes already in place, complaints against the traffic enforcers is also mere lip service to the law. One of the most reliable ways as stated in the article, Dangerous World, on unearthing corruption is by way of a whistleblower, one who informs on the violations of the employee, or in this case officer in question. If however the person is complicit in the act of giving or inducing the enforcer to recieiving the bribe, there would be no reason for the individual to report the same. If the individual however wished to report the enforcer who was trying to exhtort a bribe, it would be the word of the motorist against the word of the enforcer. In cases such as that, jurisprudence will tell us that there is a presumption of legality with the enforcer, hence they would not be held liable. That being said it would seem to behove the MMDA into creating internal policies and programs, based on the above framework especially regarding the program formation and training, which will see that corruption is considerably lessened if not altogether rooted out so that the myth system may be more encompassing and curb the unlawful tendencies present under the current operational code.

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R.A. 3017 (The Anti Graft and Corruption Act), R.A. 6713 (AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES) and R.A. 1379 (AN ACT DECLARING FORFEITURE IN FAVOR OF THE STATE ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE AND PROVIDING FOR THE PROCEEDINGS THEREFOR.)

IV.

Bibliography  R.A. 3019  R.A.6713  R.A. 1379  W.T. Henderson. ‘Dangerous world:Practical steps for global companies to evaluate and address corruption risk’. http://www.ey.com/Publication/vwLUAssets/EY-DangerousWorld/$FILE/EY-FIDS-Dangerous-World.pdf (accessed 5/27/2017)  D. Stulb. ‘The UK Bribery Act: Developing an anti-corruption compliance framework’. http://www.ey.com/Publication/vwLUAssets/UK_Bribery_Act__Developing_an_anticorruption_compliance_framework/$FILE/EY_UK_Bribery_Act__Developing_anticorruption_compliance_framework.pdf (accessed 5/27/2017)  http://www.mmda.gov.ph/images/pdf/Transparency/qms/traffic-enforcementpersonnel.pdf (accessed 5/27/2017)  W.M. Reisman. ‘Myth System and Operational Code’. ‘https://docs.wixstatic.com/ugd/5f747f_7c4f6151e0214e7e81178c72ccad7c2e .pdf’ (accessed 5/26/2017)  MMDA Operations Manual. http://www.mmda.gov.ph/images/pdf/Transparency/qms/MMDA-operationsmanual-2016.pdf. (accessed 5/28/2017)