Lawyer quits Fraport case

MANILA, Philippines -  Public interest lawyer Jose Bernas gave up his bid to hold German Fraport AG and its local partner, Philippine International Air Terminals Co. (Piatco), liable for the sloppy construction of the Ninoy Aquino International Airport Terminal 3 (NAIA-3).

Bernas lamented the lack of government support on the anti-trust charges he filed against the firms.

Bernas filed a manifestation with the Court of Appeals (CA) that had dismissed his petition.

He said he has decided to leave the prosecution of the case up to the Office of the Solicitor General and the Department of Justice.

The CA earlier junked his appeal for lack of legal standing against Fraport and Piatco. Bernas accused the two firms of excluding competitors to monopolize the operation and services at NAIA-3. He submitted the supposed addendum in the contract, but was nullified by the Supreme Court.

Bernas, however, maintained his belief that there were obvious violations of the anti-trust law and stressed the prosecution of the case is now with the OSG and DOJ.

He expressed dismay over the long undue delay in prosecution of the anti-dummy charges he filed along with another anti-trust case almost 10 years ago.

Bernas admitted getting disappointed over the lack of aggressiveness and resolve of the government to prosecute anti-dummy charges even as the Washington-based International Center for Settlement of Investment Disputes (ICSID) had dismissed Fraport’s compensation claim for violation of the host country’s anti-dummy law.

The International Chamber of Commerce (ICC) in Singapore had earlier ruled out the payment claims of Piatco on this same ground.

Bernas said Philippine government lacks the determination to prosecute related local cases as shown by failure to present evidence used at the ICSID and ICC on the basis of a confidentiality rule.

He said it was ironic that instead of ejecting Fraport and Piatco from the government property where they illegally built the facility, the Philippine government filed expropriation case aimed at paying the contractor.

He said the filing of the expropriation action placed the burden on the government to chase Piatco to agree to payment when it should be made to work for payment.

After the ICC ruled the anti-dummy law results in forfeiture, there was no reason for government to maintain the expropriation case.

Bernas said the information against Piatco and Fraport shareholders should have not been withdrawn because he seasonably filed a motion for reconsideration with the Department of Justice.

To date, the DOJ’s resolution on Sept. 11, 2006 ordering the withdrawal of information has not gained finality, he said.

Bernas said concerted acts, which restrict trade and endanger the national economy especially if these pertain to an international airport, should be presented or prosecuted for national interest.

The law intends to punish the mere conspiracy or combination at which it is aimed.

The addendum dated July 6, 1999 executed between Piatco and Fraport provides that PAGS (Philippine Airport and Ground Services) and/or its designated affiliates shall be exclusively authorized to provide ground handling, catering and fueling services, construct and operate a warehouse for air-cargo handling and related services within the site.

These provisions in the contract, Bernas pointed out, are in violation of Article 186 of the Revised Penal Code, which punishes monopolies and combinations in restraint of trade.

The contract was modified with addition of five words: “As the law may allow,” Bernas added.

Records showed a local court granted the withdrawal of the information and dismissed the case instead of proceeding with the determination of probable cause and culpability of the respondents.

The DOJ had consequently also ordered the public prosecutors who filed the information with the MTC to withdraw the same. The court also approved the move.

But Bernas decided to pursue the case and won in the regional trial court, which granted his appeal and overruled the MRTC since it did not evaluate the evidence to determine whether probable cause exists and instead merely adopted the findings of the Office of the City Prosecutor dated Sept. 20, 2004, contrary to prevailing jurisprudence.

When elevated to the CA, however, the case was dismissed due to lack of legal standing of Bernas.

The OSG has taken the position of Bernas that there was probable cause to prosecute the anti-trust complaint and that Bernas has the personality to pursue the case.

But the appellate court did not consider OSG’s comment due to alleged late submission.

The CA, in effect, also expunged Bernas’ claim to legal standing to prosecute the anti-dummy case even after it granted the lawyer’s motion for reconsideration that there were indeed violations of the Anti-Trust Law.

Bernas argued that there was no reason to expunge the comment of OSG because the comment was already filed when the appellate court decided not to grant the solicitor general an extension.

Bernas said the OSG’s comment was expunged because the solicitor general sided with him and was in opposition to the position taken by the DOJ to withdraw the information.