Dissenting opinions on Amari case lauded

Italian-Thai Development Co. Ltd (Ital-Thai) lawyer Francis Lim said yesterday that the recent Sup-reme Court decision that scrapped the land deal between Ital-Thai partner, Cyber Bay (formerly Amari) and the Philippine Estates Authority "lays a bad precedent for foreign investors."

Expressing fears that the Philip-pines may lose out to other coun-tries fiercely competing for foreign investments, Lim, however, said that the dissenting opinions of the five other justices appear to be "a ray of hope to thousands of Cyber Bay investors, big or small."

Voting 8-5, the SC voided the deal between Cyber Bay and PEA citing, among others, that re-claimed lands cannot be sold to private enterprises. Justice Anton-io Carpio penned the SC decision and seven other justices agreed with him. Four of the five justices who disagreed with him, however, separately wrote their reasons for dissenting. Justice Renato Co-rona also disagreed with Carpio, but did not write an opinion.

Justice Reynato S. Puno: "Since time immemorial, we have al-lowed private corporations to re-claim lands in partnership with government. On the basis of age-old laws and opinions of the exe-cutive, they entered into contracts with government similar to the contracts in the case at bar and they invested huge sums of mo-ney to help develop our economy.

"Local banks and even inter-national lending institutions have lent their financial facilities to sup-port these reclamation projects which government could not un-dertake by itself in view of its scant resources. For them to lose their invaluable property of rights when they relied in good faith on this unbroken stream of laws of Congress passed pursuant to our 1935, 1973 and 1987 Constitutions and executive interpretations is a disquieting prospect.

"We cannot invite investors and then decapitate them without due process of law."

Puno cited other jurisprudence which allowed private firms to re-claim lands, notable of which were the presidential decrees signed by former President Ferdinand Marcos which were recognized by former Presidents Corazon Aquino and Fidel V. Ramos.

Lim said that these were the laws that Cyber Bay and other developers relied on when they sunk their money into the joint venture. "And because of them, they now are in great danger of losing their investments."

Justice Josue Bellosillo who also dissented pointed out that Carpio did not account for the "right of others who are not even involved in the instant case," arguing that "if we refer to reclaimed lands as lands of the public domain inalienable except to individual persons, then it is time to end all reclamation projects because…no individual person would have the capital to undertake it himself."

Justice Angelina Sandoval Gutierrez explained this further: "When a government decides to reclaim the land… it reserves title only to the roads, bridges and spa-ces allotted for government buil-dings. The rest is designed, as ear-ly as the drawing board stage, for sale and use as commercial, indus-trial, entertainment or services-oriented ventures. The idea of sel-ling lots and earning money for the government is the motive why the reclamation was planned and implemented in the first place. It would be most unfair and a viola-tion of procedural and substantive rights to investors to encourage them, both Filipinos and foreign, to form corporations, build infra-structures, spend money and ef-forts only to be told that the invita-tion to invest is unconstitutional or illegal with absolutely no indication of how they could be compensated for their work."

Puno noted:"Our decision is si-lent as a sphinx whether these ex-penses should be reimbursed. Needless to say, the obligation should easily double or triple when the other firms’ claims start pouring in."

Justices Bellosillo and Consuelo Ynares-Santiago said that a cash-strapped administration must pay so steep a price is "the most deplo-rable consequence of ivory-tower and unaccountable interventio-nism at its worst by a high court perched upon our lofty seat in the heights of Olympus."