OSG asks SC to reverse order on P3-B payment to Piatco

The government asked the Supreme Court yesterday to reverse its Dec. 20, 2005 ruling ordering the Philippine government to pay P3 billion to the Philippine International Air Terminals Co. (Piatco), which built the Ninoy Aquino International Airport Terminal 3 (NAIA-3), before it can take over the facility.

In a 42-page motion for reconsideration, the government said the high court’s decision will further delay, if not virtually foreclose NAIA-3.

"Contrary to the expectations of the majority, its decision dated Dec. 20, 2005, may have just dealt the death blow to the only real chance for the government to complete, open and operate the terminal," Solicitor General Alfredo Benipayo said in the government motion.

He added it would also be a grave injustice to the government and other lawful claimants of just compensation as there were pending claims filed by Japanese companies Takenaka and Asahikosan, the actual builders of the terminal, and Fraport AG, Piatco’s German investor.

Benipayo disclosed that on Dec. 29 last year, Takenaka and Asahikosan told the government that if they were not paid for the materials and services rendered, they would not be able to complete the terminal.

The two Japanese firms — and not Piatco or Fraport AG — hold the key to completing the terminal and making it operational, he added.

"Piatco cannot complete nor operate the terminal since it can only claim responsibility for the construction of the terminal by virtue of an engineering, procurement and construction contract with Takenaka and Asahikosan Corp., which would turn over the terminal to Piatco upon its completion and acceptance on a turnkey basis," Benipayo said.

He also said that NAIA-3 was just a building and could not be operational as an airport facility unless the basic features were in place including a parallel taxiway, concrete apron, loading bridges, baggage handling systems, passenger information systems, airline offices, passenger lounges, government service areas, control tower, transportation linkages and fuel systems.

"Without the completion of work to be undertaken by Takenaka and the software and other systems, NAIA-3 will never see the day of operation," Benipayo said.

A London court recently awarded Takenaka and Asahikosan $82 million, which represents part of their claims against Piatco.

The two Japanese firms have also asked the Pasay City regional trial court to order any sum paid as compensation for NAIA-3 to be deposited at the RTC until the court determines which companies are entitled to compensation.

Benipayo said that if Piatco was paid directly, it was not certain that the companies that had helped build NAIA-3 would be properly compensated.

He said Piatco’s lawyer Liwayway Vinzons-Chato had publicly stated that Piatco would not be responsible for payments made to Takenaka.

"The situation that the government is now facing is that if any part of its P3.02-billion deposit is released directly to Piatco and Piatco does not wish to settle its obligations with Takenaka, Asahikosan and Fraport AG, the government may end up having expropriated a terminal with liens and claims far in excess of its actual value. The liens remain unextinguished while Piatco ends up with P3 billion in its pocket gratuitously," Benipayo said.

But the net amount due to Piatco from the just compensation the government will be required to pay could end up less than the P3 billion because of the amounts due to its creditors, he said.

"The only way to prevent serious and irreparable loss to petitioners is to allow the P3 billion to remain intact until it is ascertained that they will not have to assume liens more burdensome than the amount of compensation," Benipayo said, adding that the actual amount of compensation could not be determined with reasonable certainty because Piatco and Takenaka barred the government from entering the facility to conduct inspections and determine the structural safety and integrity of its system.

Voting 11-4, the High Tribunal on Dec. 20 upheld the Jan. 4, 2005, resolution of the Pasay City RTC Branch 117 presided over by the late Judge Henrick Gingoyon, and ordered him to determine within 60 days from the finality of the decision the exact amount that should be paid to Piatco by the government.

Republic Act 8974 provides that before the government can take possession of the property to be expropriated, the deposit of an amount equivalent to the assessed value of the property for taxation purposes is sufficient until the conclusion of the court proceedings in which both parties have made their claims and the court has made a factual determination of the property value.