• Supreme Court asked to rule on SM case

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    THE state-owned Bases Conversion and Development Authority (BCDA) has challenged a resolution by the Supreme Court (SC) Special Third Division declaring that the unsolicited proposal of SM Land Inc. (SMLI) to develop the 33.1-hectare Bonifacio South Pointe government property should be subjected to a “Swiss Challenge” instead of a competitive “public” bidding.

    Arnel Paciano Casanova, BCDA president and chief executive, said on Thursday government now stands to lose some P13 billion worth of prime asset when it disposes of the 33.1-hectare Bonifacio South Pointe through a Swiss challenge as compelled by the SC Third Division.

    “The government cannot be compelled to sell prime asset at an approximate P13 billion loss,” Casanova said.

    In its Third Motion for Reconsideration filed last December 1, 2015, the BCDA asked the SC to rule en banc on the said case.

    The Bonifacio South lot is located in Bonifacio South in Taguig City, between Newport City and McKinley West. It  and is composed of lands occupied by the Army Support Command and Special Services Unit of the Army, the Bonifacio Naval Station and the Marine Corps of the Navy.

    Casanova explained that selling the lot at a huge loss in the billions of pesos is grossly disadvantageous to the interests of the Filipino people.

    “In our laws, it is a crime.  The huge loss that government may suffer merits a review by the Supreme Court En Banc. Furthermore, this is an Executive decision that the 3rd Division cannot encroach upon,” he said.

    “Our Constitution upholds the separation of powers. Economic decisions are vested with the president which the Supreme Court must uphold,” he added.

    Casanova reiterated that it was President Benigno Aquino 3rd, in the exercise of his constitutional power of control over the executive departments, bureaus and offices, who instructed the BCDA to terminate the competitive challenge and instead subject the privatization and development of the Bonifacio South Pointe property to open competitive bidding.

    He pointed out that President Aquino made the decision out of good governance and sound business and financial considerations after a thorough analysis and consultation with the country’s legal and economic managers.

    Casanova further stated, “The basis for canceling the original bidding and going for an open bidding was the order of the president. This order has never been questioned nor has it ever been declared unlawful or irregular by the Supreme Court.”

    Casanova also cited Section 3, Rule 2 of the Internal Rules of the Supreme Court, which provides that cases on presidential orders and instruction, raising novel questions of law, and matters that have huge financial impact on business and welfare of the community are matters and cases for the court en banc.

    The pleading states, “The angle of national security which is a matter of public interest was never touched upon by the majority members of the Third Division which is worthy to re-plead in this third motion for reconsideration.” The Armed Forces of the Philippines Modernization Program stands to benefit from said disposition, the pleading said.

    Dissenting opinion

    Associate Justice Marvic Mario Victor Leonen and Associate Justice Martin Villarama Jr., likewise found infirmities in the decision.

    In a dissenting opinion, Leonen stated that “these provisions in the Guidelines only indicate that there is no consummated contract yet between the parties prior to the approval of the Head of government entity. The government entity concerned may still approve or disapprove the proposal of the successful proponent regardless of the completion of the competitive challenge proced ure. In other words, the above provisions provide government with a procedural exit through the Head of the government entity’s rejection of the proposal even after the issuance of a Certification of Successful Negotiation. There is no reason why this cannot be done before an original proponent’s proposal is subjected to a completed competitive challenge.”

    Leonen added that “insisting on the completion of the competitive challenge procedure will only be a costly exercise of futility if the government entity has, in the middle of the process, already decided to terminate the procedure. It will only unduly delay the disposition process and the receipt of intended benefits by the beneficiaries.”

    Leonen concluded that the second Motion for Reconsideration should be elevated to the court en banc. “Had this case been elevated to this court En Banc, the Second Motion for Reconsideration could have been granted,” Leonen said.

    Leonen and Villarama had also earlier issued dissenting opinions on the final ruling of Associate Justice Velasco that denied BCDA’s first Motion for Reconsideration (MR).

    Leonen previously stated in a separate dissenting opinion that “The public interest involved in this case is the 13 billion (approximation) that the government stands to lose if it is forced to dispose respondent BCDA-administered property at the price proposed by petitioner SMLI . . . The figures above show that competitive challenge would not be the most beneficial in this case. Proceeding with the less advantageous procedure would diminish the benefits that may be obtained for legitimate government purposes.”

    Justice Leonen further said, “These are matters and concerns that could have been acted upon by this court En Banc. Rule 2, Section 3 of the Internal Rules of the Supreme Court provides that this court En Banc shall act on matters involving “huge financial impact on businesses or [affecting]the welfare of a community[.]”

    Further, the importance of maximizing revenues is emphasized by the Department of National Defense and Armed Forces of the Philippines’ attempt to intervene in this case when they filed their Motion for Leave to File Comment-in-Intervention and their Comment-in-Intervention on February 21, 2013.

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