Loose cannons

The last acrimonious political battle had barely settled down. But here we are again being subjected to another political spectacle in the form of another expose of an alleged scam dubbed as the "child of Amari" in apparent reference to the PEA-Amari deal which has been labeled as the "mother of all scams" because of the enormous amount involved. The political angle cannot just be discounted here because politicians are in the forefront. Both of them ran in the last senatorial elections; one managed to return to the halls of the Senate (where she is now making noises) by hitching a ride on the ticket of the administration (which she is now implicating in the alleged scandal); and the other, a two-time loser in his Senatorial bid who has concededly been fairly successful in his legal adventures at the Supreme Court personifying the "taxpayer" in his attempts to be heard.

When politicians are involved, the notion that there are some ulterior, self-serving motives behind their moves is hard to erase. Politicians have only themselves to blame for such a perception since the alleged irregularities they are exposing are not clear cut and are not firmly based on incontrovertible, undisputed facts and squarely applicable laws.

In the Senate expose of the alleged anomaly in the NHA-RII Builders, the PEA-Amari ruling is being invoked. The scam supposedly consists in the sale made by the NHA of the reclaimed lands in the smokey mountain area. According to our Senator, these are lands of the public domain, and under the SC ruling in the PEA-Amari deal, though they are alienable, they cannot be sold to private corporations since section 3, Article XII of the 1987 Constitution expressly prohibits such sale. The SC ruling distinguishes the patrimonial from the alienable lands of the public domain owned by the government. The SC said that only patrimonial lands may be disposed. And it can be sold only to private individuals under a legislative authority which may be contained in the charter of the government agency or corporation concerned. This is a ruling made on a difficult and controversial point of law. It was handed down only on July 9, 2002. Yet it is being made to apply to the NHA-RII Builders transaction which was consummated and became a fait accompli way back on October 7, 1994. At that time there was yet no authoritative ruling that the deal was un-constitutional. The issue was still unsettled and highly controversial, so that any interpretation would have assumed a semblance of validity. The people calling the shots then believed there was nothing unconstitutional about the transaction. It is therefore unfair to conclude now that the transaction is irregular because the SC subsequently says it is unconstitutional. Maybe our good Senator should be reminded that the SC itself has ruled that "a judicial declaration of invalidity... may not necessarily obliterate all the effects and consequences of a void act occurring prior to such declaration.... So also, even as a practical matter, a situation that may aptly be described as fait accompli, may no longer be open for further inquiry, let alone be unsettled by a subsequent declaration" of its un-constitutionality (Republic vs. Court of Appeals, G.R. 79732, Nov. 8, 1993).

To be sure, there are really "facts" in this case which have yet to be established. There is still a lot of controversy on whether the reclaimed lands involved here are already patrimonial lands which the NHA can validly dispose of under its charter in accordance with the PEA-Amari ruling. R-II builders are even claiming that no reclaimed lands have been transferred to them. These are factual questions that the SC cannot at the first instance determine as it is not a trier of facts. The unsuccessful aspirant for the Senate who filed the case before the Supreme Court has therefore ignored the very basic principle of hierarchy of the courts which simply means that the lower courts, not the SC are the ones which entertain cases involving factual issues. Filing his petition at the wrong venue only betrays the existence of motives that are far from promoting public interest.

As long as we have politicians with loose cannons and others of similar ilk, it is wishful thinking for us to expect investors, local or foreign, to put their money in our benighted shores. Government commitments in contracts done in good faith and with due diligence remain in a state of uncertainty. They are the ones badly hit in the targeting political foes and advancing hidden political agenda. During these times when we need to attract investments to fuel our economy, we need this kind of politicians like we need a hole in the head. Now it has been confirmed even more who are to blame for the economic mess we are in.

* * *

E-mail: [email protected]