DAVAO CITY Mayor Sara D. Carpio appeared irritated by the slow action of the leadership of the Davao office of the Bureau of Customs (BOC) to two resolutions of the City Peace and Order Council and the City Tourism Council to have the mothballed P250-million x-ray machine in the Sasa Port reopened and used to enhance the security and safety of the city from terrorist attacks, aside from the facility’s vital role in preventing smuggling, graft and corruption and entry of illegal drugs and all other contraband goods, which are given priority by the Duterte administration.
“Our point with the CPOC (City Peace and Order Counccil) is to use the x-ray machine because of the urgency of the security threat,” Mayor Sara told a reporter in a text message.”Ambot land pud nganong dili nila gusto gamiton ang x-ray. Nothing surprises me anymore sa Customs. Naa silay kaugalingon na world, (I don’t know why they don’t like to use the x-ray. Nothing surprises me anymore in Customs. They seem to have their own world.)”
The lady city mayor reportedly made the remarks after learning that acting Davao customs collector Erastus Sandino Austria had stated he was not inclined to reopen the Designated Examination Area (DEA) where the x-ray machine is installed arguing that it cannot be done because of an old opinion of a former Solicitor General that the contract between the BOC and businessman Rodolfo Reta, owner of the Aquarius Container Yard (ACY) where the DEA is located, had already been terminated.
ACY owner Reta had earlier filed several cases against the BOC for the sudden closure of the DEA in February, 2010. As a result of his administrative and criminal complaints, the Ombudsman dismissed from the service lawyer Anju Nereo Castigador, the acting Customs collector responsible for the questionable closure of the DEA.
Reta also fought in court the stand of the BOC that the memorandum of agreement (MOA) between him and the bureau had been terminated. After Reta’s winning in the regional trial court and the Court of Appeals, the case over the claimed MOA termination is now pending with the Supreme Court.
In a press conference last week, Collector Austria bared his plan to transfer the x-ray machine out of Reta’s container yard, in effect stalling the request of the CPOC headed by Mayor Carpio to have it used again as part of the urgent measures for the security and safety of the city against terrorist elements and all other trouble-makers.
A similar resolution, this time passed by the City Tourism Council, also asked the authorities to reopen the x-ray machine which has been a white elephant for more than seven years from the first quarter of 2010 up to yesterday, Oct. 3, 2017 after its controversial closure.
Austria’s stand that the BOC contract with businessman Reta had been terminated was contradicted by Ateneo de Davao Law dean Manuel Quibod, lead counsel of Reta.
Quibod said that the pronouncements of the acting customs collector about the DEA “are not correct.”
“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 pronouncements made by Collector Austria as regard the status of the ACY,” Quibod said.
He 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.
Just an opinion
For one, Dean Quibod said the OSG opinion 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 (now Supreme Court Associate Justice Francis) 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.
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.
“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,” Quibod said.
“They made a second attempt to get that x-ray machine out, but 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, Dean Quibod bared.
Compromise settlement
However, 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.
Mayor Sara herself said that the ACY operator (Reta) is willing to compromise and allow the use of the x-ray under litigation.
