What are a freeport locator’s rights? A court answer to that simple question can settle turmoil in the sprawling economic zone. Perhaps assuage restive workers.
Cargo handler Amerasia International Terminal Services is a pioneer at Subic Bay Freeport. It petitions the Olongapo Court for “declaratory relief.” Such plea seeks “an authoritative statement of rights and obligations of parties.”
On a definition of rights depends Amerasia’s operation, capital and workers. Its case “is not to settle issues arising from an alleged breach [of rights and obligations, but] may be entertained before the breach or violation of contracts.”
Dire events prompted the court petition. In 2021 the Supreme Court 3rd Division upheld the Olongapo judge’s kicking Amerasia and fellow pioneers out of Subic. Although the five magistrates were split 3 to 2, the case was not raised to the en banc.
Thus, newcomer Harbour Centre Port Terminal Inc. is set to replace the pioneers, based on issues questioned 13 years ago.
The SC is not a trier of facts; it determines constitutionality, legality and procedural validity. So it’s back to the lower court for a factual declaration.
One of two respondents is Subic Bay Metropolitan Authority (SBMA). The other naturally is Harbour Centre.
Since June 2023 Amerasia has been asking SBMA about its plans, given that previous chairmen, administrators and board members resisted Harbour Centre’s entry. Present SBMA chairman-administrator Jonathan Tan and director Jose Mari Ponce were mum. SBMA simply issued Harbour Centre notices of award and to proceed.
Foreign and domestic investors are closely monitoring the case outcome. They need proof of sanctity of Philippine contracts.
Other Subic pioneers, high-tech port developers Mega Subic Terminal Services and Subic Seaport Terminals, are watching too. Same with their thousands of employees who fear job losses.
Since 1994 Amerasia, Mega Terminals and Subic Seaport Terminals have contributed P2.7 billion to SBMA revenues. Suppliers who installed P1 billion in machineries and shops added more.
All now worry about being eased out. Unknown is how many of 145-thousand workers and entrepreneurs from surrounding provinces will also be adversely affected.
Harbour Centre in November 2009 unsolicitedly had proposed to operate Subic Freeport for P6.4 billion. By February 2010 the outgoing SBMA administrator signed a joint venture – stating only P200-million Harbour Centre investment over three years.
The three-month “evaluation” surprised locators. The joint venture came ahead of publication and conduct of competitive challenge, a breach of 2008 guidelines. It was also done during the 2010 election ban on government contracting.
Deadline was set on April 22, 2010 for submission of counter-proposals. SBMA received none, precisely because of the prohibition that insulates state projects from political partisanship.
The National Economic and Development Authority hadn’t studied the legal, financial and technical viability. The President as NEDA chairman and Cabinet secretaries in the board did not approve the deal. In July 2011 NEDA invalidated it for procedural breaches.
Still the Olongapo judge affirmed the joint venture. The Court of Appeals in 2013 reversed the lower court, and the Supreme Court 3rd Division in 2021 in turn reversed the CA.
Amerasia’s new case exhibits its 2007 Lease Agreement with SBMA over part of the freeport for 25 years. The cargo handling lease precedes the 2010 SBMA deal with Harbour Centre.
Amerasia further presents SBMA’s 2015 Amendment extending the 25-year lease by eight more. This shows that SBMA recognized Amerasia as cargo handler instead of the 2011 Joint Venture with Harbour Centre.
Another exhibit: SBMA’s issuance to Amerasia of Certificate of Registration and Tax Exemption in December 2021. This upholds Amerasia as a Subic Freeport cargo handler, in conflict with the concession granted to Harbour Centre.
The Olongapo Court must clarify the facts fast. From there Amerasia, Mega Terminals, Subic Seaport Terminals, SBMA and Harbour Centre can plot their next moves. Same with other foreign and domestic investors.
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