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By William B. Depasupil, Reporter
THE Department of Transportation and
Communications (DOTC) cannot, on its own, purchase additional light
rail vehicles or trains under its emergency relief measure without
prior consultation with the Metro Rail Transit Corp. (MRTC),
according to the Department of Justice.
Justice Secretary Raul Gonzalez, in a three-page
legal opinion, said the Transport department and Metro Rail should
meet first and have an intensive discussion before acquiring
additional trains, which the latter also needs to address because of
the sudden surge in the volume of passengers during the peak
operating hours of the Metro Rail Transit-3 that traverses EDSA. The
rail line is owned by Metro Manila and operated by the Transport
department.
The Transport department sought the Justice
department’s legal opinion after Metro Rail failed to act on time
on the former’s proposal to acquire additional trains.
The Transport department asked whether it can
proceed with the procurement of additional trains under its
emergency relief measure on the basis of Section 5.2 of the
Build-Lease-Transfer agreement (BLT), and its own initiative and
prerogative being the rail system’s operator.
It also asked “whether or not, on the basic
statutory principle on Mutuality of Contracts [Article 1308, New
Civil Code], and the Principle of Obligatory Force of Contracts
[Article 1159, New Civil Code] and the express and unambiguous
revisions of Section 5.2 of the agreement, Metro Rail by its action
have already waived their right of first refusal on the procurement
of the trains, and that they have unreasonably withheld their
consent in contravention of the agreement.”
The Transport department also claimed that Metro
Rail on May 8 “categorically stated its reservations to give
consent on the proposed procurement as well as its reservations on
the right of its first refusal to supply the LRVs [light rail
vehicles].”
No period of time
Gonzalez explained that while Section 5.2 of the
agreement failed to provide a period of time within which Metro Rail
may exercise it rights of first refusal, or may signify its
intention to waive such right, “such absence does not give either
party the unilateral right to determine the period within which the
other party must exercise the right or may be deemed to waive the
same.”
“Reason and fair play demands that both DOTC
and MRTC must agree on a period certain and meet to settle any issue
arising from the BLT agreement,” he added.
He also pointed out that under 20.1 of the
agreement discussion states “parties hereto agree that in that
event that there is any dispute, controversy or claim arising out of
or relating to any provisions of this agreement or the
interpretation, enforceability, performance, breach, termination or
validity hereof [each such dispute, controversy, claims or matters a
dispute], they shall meet in an effort to resolve such a dispute by
discussions between them but, failing such resolution, the secretary
of the DOTC and the chief executive of the Metro Rail shall meet to
resolve such disputes and their joint declaration shall be binding
upon the parties.”
The Transport department is planning to acquire
70 new trains to meet growing passenger demand for the EDSA rail
system, which now accommodates over four million passengers a day.
The alarming increase in the rail system’s
commuters has been attributed to soaring fuel pump prices, forcing
car owners to use public transportation.
Gonzales added that given the circumstances, it
would be appropriate for both parties to prescribe a 30-day period
of time where the Transport department and Metro Rail should meet to
resolve the present dilemma.
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