Lawyer Jose Bernas, legal counsel for Ilocos Sur Rep. Salacnib Baterina, said in an interview that the government stands to be the loser in the expropriation of the NAIA-3 because aside from paying P3 billion proffered value to Piatco, the government will also have to pay just compensation to be set by the Singapore-based International Chamber of Commerce (ICC).
Bernas said there is also a disparity between the turnkey contracted cost due to the Japanese firm Takenaka, the actual builder of the terminal, amounting to $320 million, plus the $500 million Fraport AG allegedly remitted to Piatco for the NAIA-3 project.
He said the proper way to settle the NAIA-3 controversy is to reimburse Piatco only the actual cost that it has incurred for the construction of the terminal.
"The reimbursement would have to be adjusted for defects, under-specifications and amendments such as the deleted underground tunnel. Piatco would not be entitled to the market value or replacement value as compensation because such values exceed construction cost and to pay such values would recognize that Piatco acquired rights from illegal acts or from the profits it anticipated to earn from the contracts that were declared void," Bernas explained.
In choosing expropriation, the government has essentially conceded liability to the ICC in Singapore, Bernas said. "The government will be unable to use evidence of fraud and corruption to show bad faith and will not be confined to merely reimbursing Piatco for costs because bad faith and illegalities are irrelevant in expropriation," he said.
Bernas also filed a motion seeking more time within which to file an opposition for the application for a temporary restraining order (TRO) and a writ of preliminary injunction.
In a hearing last Sept. 5, Bernas told the Court of Appeal’s eighth division chaired by Associate Justice Renato Dacudao that the Manila International Airport Authority (MIAA) has no financial capability to pay P3 billion to Piatco to enable it to operate the facility.
"How can MIAA pay (the total amount of) P17 billion to expropriate NAIA-3 when its charter says that it can only borrow P5 billion?" Bernas asked.
MIAA’s revenues started to decline from P1 billion in 2001 to P6 million in 2005.
Meanwhile, the Office of the Solicitor General (OSG) yesterday withdrew in open court its motion to lift the TRO issued earlier by CA on the expropriation proceedings of NAIA-3.
Assistant Solicitor General Marilyn Cartula said they have already filed a petition for certiorari before the Supreme Court assailing the CA’s issuance of a TRO.
Bernas said that lifting the TRO only prolonged the resolution of the expropriation proceedings. He assailed the propriety of the OSG’s move to withdraw the motion to lift the TRO, saying that the government is effectively engaged in forum shopping because the issue pending before the CA has not yet been deliberated upon.
"They should have waited for the Court of Appeals to grant their motion to withdraw before they file a petition before the Supreme Court," Bernas said.
AEDC lawyer Perfecto Yasay, a guest of the weekly Newsmakers Forum at the Manila Pavilion hotel in Ermita, said he started talks with Piatco and Takenaka to explore the possibility of entering into an agreement to end the controversy.
He explained that there are four existing cases involving the NAIA-3 facility — the case pending before the CA, which seeks to stop the expropriation proceedings; the arbitration case pending before the World Bank filed by Fraport AG and Piatco; the just compensation case before the International Chamber of Commerce in Singapore; and the pending case filed by Baterina before the SC against the Pasay City regional trial court for junking his petition to be an intervenor in the case.
Yasay said that the expropriation of NAIA-3 is an impeachable offense against President Arroyo.
"NAIA-3 is definitely owned by the government and it is not owned by Piatco. You cannot expropriate a public property. You can only expropriate private property for purposes of public use," he explained.
The AEDC, he said, wants to buy the shares of Piatco but the proposal is not acceptable to the owners of Piatco.