Aguirre agrees with DOJ panel findings vs. BuCor-TADECO deal

Justice Secretary Vitaliano Aguirre II has backed the findings of his fact-finding panel that found the land deal between the Bureau of Corrections (BuCor) and banana exporter Tagum Agricultural Development Company Inc. (TADECO) illegal.

"It is only the recommendations of the DOJ (Department of Justice) that I have to study further. No problem with the findings," Aguirre said in a text message to GMA News Online on Thursday.

Asked if he was supporting the findings of the panel, Aguirre said, "Yes."

Aguirre said the recommendation of the DOJ panel was for parties to amend the contract to make it compliant with the law.

"Hindi katanggap-tanggap [yung recommendation] kasi hindi mo maaayos ang null and void na contract. Gusto ko makausap 'yung nag-recommend baka naman meron siyang dahilan bakit siya nag-recommend ng ganun," the Cabinet official told reporters.

Aguirre said he would study whether the DOJ or the BuCor is the proper body to move for the invalidation of the contract.

"Yun pa ang pag discussan namin, kung ano ang recommendation na gagawin namin," he said.

Since the land in question is an inalienable land of public domain, it cannot be subject to any joint venture agreement, such as the deal entered into by the BuCor and TADECO, the panel said in a report forwarded to House Speaker Pantaleon Alvarez.

"The Public Land Act (Commonwealth Act 141) delimits the disposition of the DPPF reservation. It requires a presidential act to declare the land as alienable and disposable before any agreement over the same may be allowed," the panel said.

The transaction covers the lease of 5,308.36 hectares of the Davao Prison and Penal Farm (DPPF) in Panabo City for TADECO's banana plantation.

The agreement was signed in 1969. It was extended for 25 years in 1979, and again for another 25 years on May 21, 2003.
 
Even if a joint venture agreement (JVA) is allowed involving the property, the BuCor-TADECO deal could not be classified as one, the DOJ panel said.
 
The agreement failed to comply with legal requirements to be valid, meaning there is no community of interest in the business by both parties, according to the panel.

The agreement also has no categorical indication of a "true and realistic" sharing of the profits and losses and the BuCor’s participation in the operation and management of the banana plantation is "substantially minimal," the panel said.

The JVA does not even include a BuCor representative to the TADECO management team, the panel noted.

The report also said the deal does not contain provisions required to ensure government control over the land.

The present contract area of 5,308 hectares, the panel said, is more than five times the allowable area (1,000 hectares) of public agricultural land that can be leased to a private corporation under the 1973 and 1987 Constitutions.
 
The panel found that the present BuCor-TADECO agreement and earlier agreements since 1969 were never subjected to any public auction or bidding in violation of the Public Land Act. 

The agreements, covering 1969 to 2029, is also 10 years more than the maximum 50 years allowed under the law.

"Thus assuming that the DPPF Reservation lands were leased and disposed of to TADECO under the JVA in accordance with the 1,000-hectare constitutional limit and through public bidding as required by CA 141, the current JVA for beneficial use of the land by TADECO should expire in 2019, not 2029, without any more renewal option," the panel said.

It agreed with the contention developed by Alvarez that the agreement was "grossly disadvantageous" to the government, since it was based on the "low lease rates."
 
“Under the BuCor-TADECO JVA, the production and profit share of the BuCor in 2016 amounted to only P44,854,726.00, or a rate of P8,449.83 per hectare per year," the panel said.

"Compared to the prevailing lease rates of P10, 000-P18,000 per hectare per year of Tanglaw and Cooperative leaseback rates located in the general area where the DPPF lands are located, the BuCor-TADECO JVA appears to be disadvantageous in terms of per hectare rate," it added.

The DOJ panel is headed by Chief State Counsel Ricardo Paras III.

Its members include Director Maria Charina Buena Dy-Po (vice chairman, technical staff), State Counsel Precious Pojas (legal staff), State Counsel Melvin Suarez (legal staff), State Counsel Noel Adriatico (technical staff), and Atty. Catherine Angela Maralit (technical staff).

The findings echoed the legal opinion of Solicitor General Jose Calida who said the JVA violated the Constitution and the Public Land Act. — VDS/KBK, GMA News