SC affirms validity of govt’s Smokey Mountain contract

The Supreme Court on Wednesday unanimously affirmed the validity of the multi-billion contract entered by the government with a private consortium for the development and reclamation of the Smokey Mountain dumpsite to be used for the government's low-cost housing project. In an 82-page en banc decision penned by Associate Justice Presbiterio Velasco, the Supreme Court denied for lack of merit the petition of lawyer Francisco Chavez assailing the 1993 Joint Venture Agreement (JVA) between the National Housing Authority and construction firm R-II Builders, Inc (RBI), Harbour Centre Port Terminal, Inc. The high tribunal said the project met all three requirements for a legal and valid reclamation project - approval by the President, favorable endorsement granted by Public Estates Authority (PEA) and the reclamation was undertaken by either by PEA or by national government agency authorized under its charter to reclaim lands subject to consultation with PEA. The high court said that while PEA under Presidential Decree 1084 has the power to reclaim land and under Executive Order 525 is primarily responsible for integrating, directing, and coordinating reclamation projects, such authority is not exclusive and such power to reclaim may be granted or delegated to another government agency or entity or may even be undertaken by the national government. Thus, the NHA "had more than enough authority" to reclaim the lands under existing laws, the Court held. "The respondents had no reason to think that their agreements were unconstitutional or even questionable, as in fact, the concurrent acts of the executive department lent validity to the implementation of the Project," the Supreme Court ruled. It said the Department of Environment and Natural Resources is deemed to have granted NHA the authority to reclaim the dumpsite. "Based on the issues raised in this petition, we find the JVA between NHA and RBI and the SMDRP embodied in the JVA, the subsequent amendments to the JVA and all other agreements signed and executed in relation to it, including, but not limited to, the September 26, 1994 Smokey Mountain Asset Pool Agreement and the agreement on Phase I of the Project as well as all other transaction which emanated from the project, have been shown to be valid, legal, and constitutional. Phase II has been struck down by the Clean Air Act," the Court said. The Supreme Court, however, granted Chavez's petition for the issuance of a writ of mandamus by allowing him access to all public documents and official records relative to the project. Among the documents that Chavez sought to scrutinize were the March 19, 1993 Joint Venture Agreement (JVA) between the NHA and RBI, and the subsequent agreements related to the JVA, the revisions over the original plan and the additional works incurred on, and the transactions made with respect to the project. Also impleaded in the case was RBI owner, construction magnate Rhegis Romero II. On August 27, 2003, the NHA and RBI executed a memorandum of agreement to terminate the JVA and other subsequent agreements. "We find although petitioner did not make any demand on the NHA to allow access to information, we treat the petition as a written request or demand. We order the NHA to allow petitioner access to its official records, documents, and papers relating to official acts, transactions, and decisions that are relevant to the said JVA and subsequent agreements relatives to the Smokey Mountain Development and Reclamation Project (SMDRP)," the Court said. Court records showed on March 1 1988, then President Corazon Aquino issued Memorandum Order No. 161, which approved the implementation of the Comprehensive and Integrated Metropolitan Manila Waste Management Plan. Pursuant to MO 161, the NHA prepared the feasibility studies of the Smokey Mountain low-cost housing project, which resulted in the formulation of the SMDRP that aimed to convert the dumpsite into a habitable project. President Aquino subsequently issued MO 415 authorizing the implementation of the SMDRP plus the reclamation of the area across R-10. When former President Ramos assumed office, he issued Proclamation No. 39 covering the 21-hectare dumpsite and the 40-hectare commercial-industrial area, and Proclamation No. 465 increasing the area of foreshore and submerged lands of Manila Bay to be reclaimed from 40 to 79 hectares. On March 19, 1993, the NHA and RBI entered into a JVA for the development of the Smokey Mountain dumpsite and reclamation of the area across R-10 based on Presidential Decree No. 757, which mandated NHA to undertake physical and socio-economic upgrading and development of lands of the public domain identified for housing. On June 23, 1994, the Legislature passed the Clean Air Act. The Act made the establishment of an incinerator illegal and effectively barred the implementation of the planned incinerator project under Phase II. Thus, the off-site disposal of the garbage at the Smokey Mountain became necessary. In his petition for prohibition and mandamus with prayer for the issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction, Chavez contended that that RBI cannot acquire the reclaimed lands because there was no law authorizing their sale. The former solicitor general noted that NHA has no legislative authority to sell and reclaim land since such power belongs to the PEA . Chavez said that R-II Builders, being a private corporation is prohibited by the Philippine Constitution to acquire lands of the public domain. He noted that Harbour Centre, being a private corporation whose majority stocks are owned and controlled by Romero’s corporations, is disqualified from being a transferee of public land. The Smokey Mountain dumpsite is bounded on the north by the Estero Marala, on the south by the property of national government, on the east by the property of B and I Realty Co., and on the west by Radial Road (R-10). The land reclamation was completed in August 1996. All Supreme Court magistrates concurred in the ruling, but Associate Justices Antonio Carpio and Ruben Reyes did not participate in the deliberations. - GMANews.TV