The NBI recommendation, dated July 28, reached the office of Chief State Prosecutor Jovencito Zuño only on Aug. 16. In the July 28 letter, the NBI said officials of Piatco and the other groups involved in the controversial NAIA-3 project violated the anti-dummy law.
It was not clear why it took so long for the NBI’s recommendation to reach the DOJ or why the issue was not raised in the recent legal wranglings over NAIA-3.
The STAR tried to get the side of Zuño but he was not available as of press time.
Also facing possible criminal liability are officials of Philippine Airport and Ground Services (PAGS), Philippine Airport and Ground Services Terminal Inc. (PTI), Philippine Airport and Ground Services Terminal Holdings Inc. (PTH) and the People’s Air Cargo and Warehousing Co. Inc.
NBI deputy director for special investigation Victor Bessat recommended criminal charges against Cheng Yong, president of Piatco; Peter Henkel, Fraport senior vice president; Jason Cheng, Jefferson Cheng, Rita Bonifer, S. Samin Aydin, Lilia Cheng, Hachiman Yokoi, Gil Camacho, Katherine Agnes Arnaldo, Jorge Seyffart, Marife T. Opulencia, Mary Antonette Manalo, Ricardo Castro Jr., Hans Arthur Vogel, Dietrick F. R. Stiller and Noemi Dacanay.
Bessat said the firms, which had interlocking sets of directors and officials, had violated the anti-dummy law when they acquired more than 40 percent of the airport project.
"In view of the grave danger and the adverse cascading and rippling effects of these violations to the national interest, the immediate investigation and prosecution of the instant case is not only warranted but also imperative," Bessat said.
Documents submitted to the DOJ included a five-page NBI legal evaluation and a 25-page complaint-affidavit from Melanio Elvis Balayan, convenor and executive director of the Concerned Lawyers for Moral and Effective Leadership (Clamor).
Balayan said the anti-dummy law and Republic Act 7042, the Foreign Investment Act of 1999, limit foreign ownership of utilities to 40 percent.
"Fraport directly owns 30 percent and indirectly controls, through the respondents PAGS, PTH and PTI, 31.44 percent of respondent Piatco, giving Fraport a 61.44 interest in Piatco," Balayan said in his affidavit.
He said Fraport had even flaunted its direct and indirect ownership of Piatco in its request for arbitration filed with the World Bank in Washington, DC.
"Fraport’s investments have been both directly in Piatco and indirectly through the cascade companies that hold interests in Piatco. Fraport directly and indirectly owns 61.44 percent of Piatco," Balayan said.
He said that another foreign investor, Nissho Iwai Corp., has equity in Piatco equivalent to 10 percent of its total outstanding capital stock.
"Thus, the total participation by foreigners in Piatco is 71.44 percent or close to three-fourths of Piatco, which is a public utility," Balayan said.
Allowing a foreign investor, supposedly with minority stake, to manage the enterprise and prepare all economic viability studies is also a form of dummy relationship, Balayan said citing the DOJ opinion.
"All the foregoing badges of dummy relationship are present in the instant case," Balayan said.
He said Fraport had earlier admitted that it extended loans and payment guarantees to Piatco, PAGS, PTH and PTI and Piatco’s lenders and contractors.
He said Piatco was granted financing by Fraport in the form of credit facilities against which Piatco could draw the amount needed to pay its creditor banks, contractors and other parties.
"Fraport also guaranteed the obligations of Piatco when the latter entered into a bank loan agreement with Dresdner Bank, Kreditanstalt Fur Wiederaufbau and Landesbbank Hessen-Thuringern Gironzentrate," Balayan said.
He said a Fraport loan to the Cheng family, one of Piatco’s stockholders and the majority shareholder of Paircargo, had enabled the family to make capital contribution to Piatco.
"The extent of its (Fraport) authority becomes more manifest in the light of the fact that Piatco enters into its long-term loans only upon Fraport’s recommendation and endorsement, sometimes even over the serious reservations of the other stockholders of Piatco about the accomplishment of the conditions precedent attendance to such loans," Balayan stated.
The government took control of NAIA-3 early this month after agreeing to pay P3 billion in compensation to its builders. The takeover came after weeks of legal squabble that ended only when the Court of Appeals lifted its temporary restraining order on the release of the P3 billion initial compensation for Piatco.