The pronouncements of acting Davao customs collector Erastus Sandino Austria about the status of a Designated Examination Area (DEA) with P250-million x-ray machine sought to be reopened by the Davao City government “are not correct.”
This was the statement of lawyer Manuel Quibod, dean of the Ateneo de Davao University school of law, in reaction to the pronouncements of Austria about the x-ray machine inside the Aquarius Container Yard owned by businessman Rodolfo Reta of Sasa, Davao City.
Quibod is the lead counsel of Reta in his cases against the Bureau of Customs. The BOC and Reta had a contract signed in 2009 on the use of Reta’s container yard as designated examiner area (DEA) wherein a state-of-the-art x-ray machine was installed to screen cargoes suspected to be smuggled, wrongly declared or suspected to be contraband.
Erring collector dismissed
Sometime in 2010, then BOC acting Davao collector Anju Nereo Castigador suddenly padlocked the DEA with the x-ray machine alleging that Reta refused to do his functions as container yard operator. Reta denied Castigador’s accusation. He questioned the sudden padlocking, alleging that Castigador had no authority to close the facility and that he did it to hide an attempt to smuggle in thousands of sacks of rice from Thailand worth millions of pesos. As a result of administrative cases, the Ombudsman ordered the dismissal from service of Castigador and also penalized three of his cohorts with dismissal and suspension. The criminal cases are still pending in court.
Reta also questioned the stand of the bureau that the contract between him and the BOC had been deemed terminated. After losing this case in the Regional Trial Court and the Court of Appeals, the BOC raised the case with the Supreme Court where it is currently pending.
CPOC, tourism resolutions
Early last August, the City Peace and Order Council (CPOC) headed by City Mayor Sara D. Carpio passed a resolution seeking the reopening of the DEA with x-ray machine ,` saying that the facility will be very useful in the urgent task of preventing smuggling, graft and corruption, and specially entry of arms and ammunition by terrorist elements.
The City Tourism Council also passed a resolution in July or August with a similar tenor, according to City Tourism Operations Chief Generose Tecson.
Sometime last week, or a lapse of more than one month after the resolutions had been passed and forwarded to the Davao Customs Office, acting collector Austria bared in a press conference that he was inclined to have the x-ray machine transferred out ACY container yard of Reta and place it somewhere else, together with another x-ray machine that will arrive in Davao City soon.
MOA not revoked?
After acknowledging the two resolutions and the offering of Aquarius Container Yard of the use of its land for free as “good idea,” Austria claimed that the problem is that former Solicitor General now Supreme Court Associate Justice Francis D. Jardeleza has opined that the memorandum of agreement (MOA) has already been revoked and it is there of no force or effect in law.”
In his statements to the media, Austria mentioned the word “revocation” four times and the word “revoked” thrice.
When sought for his reaction, Dean Quibod said “For the record, we would like to make this declaration in behalf of our client, Mr. Reta, the operator of the Aquarius Container Yard, because we have to answer and refute the pronouncement made by Collector Austria as regard the status of the ACY.”
“The pronouncements made by Collector Austria are not correct,” Quibod said. “Hindi tama yong kanyang sinabi. Infact it is a deception, in fact parang niloloko niya ang mga tao sa kanyang mga pronouncements, kasi ypng mga bagay na sinabi ay hindi totoo. Hindi siya alinsunod sa mga nangyari sa kaso. And I think kulang siya ng mga konkretong impormasyon or the correct information as regards the case. So an gaming pananaw ngayon, hindi tama yon. Parang niloloko niya ang mga tao at gusto naming e-correct yan,” he added.
OSG stand just an opinion
For one, as regards the OSG opinion, that is only an opinion. That is not controlling . Infact, there is no judicial pronouncement at the moment. That OSG opinion, that was way back during the time of then Solicitor General Jardeleza.
He said that “when we were dealing with the previous collectors, they never invoked that OSG opinion because that opinion will always be the position of the government , but that is not a controlling view insofar as this case is concerned.”
Quibod said several years ago, the OSG filed a case in Manila for a judicial confirmation of the termination of the contract. Unfortunately the case was dismissed already by the Court of Appeals because of the pendency of the case in Davao. “They could not invoke that the contract has already been terminated precisely because there was a case filed against the Bureau of Customs .”
He reiterated that the OSG’s view is just an opinion against which Mr. Reta can also file a contrary opinion. “We have to wait for the court to make a pronouncement, whether they are correct or not.”
Collector warned of sub judice
Quibod also said the collector should be very careful of his pronouncements because there such a legal principle called sub judice.
“He should not make a comment as regards the merits of the case insisting on the OSG opinion because the lawyers had never invoked that opinion. We were surprised why that opinion is being invoked now. One, the lawyers of OSG did not invoke that. Two, the collectors before him did not invoke that opinion because they were aware that it is only an opinion, it will not control anybody. In fact, we are not bound by that opinion.”
Quibod said that the transfer of the X-ray machine is not legally permissible, adding it cannot be done at the moment. He said the OSG attempted twice to have that x-ray removed from the container yard of Mr. Reta but failed in both attempts.
2 failed attempts
When they filed a motion to have that removed from Mr. Reta’s container yard, we opposed that so their motion to have the machine relocated was not granted.
They made a second attempt to get that x-ray machine out. Again this was disallowed because we discovered that the x-ray machine was included in a long list of ceased items that they want recovered.
Open to settlement
As to the eventual settlement of the disputes between Reta and the customs bureau, Quibod said that the legal panel of the ACY owner believes that there is no legal impediment to such a positive development in the case.
