A GROUP of lawyers led by Joel Butuyan of the Center for International Law (CentreLaw) yesterday asked the Supreme Court (SC) to declare as unconstitutional the Ninoy Aquino International Airport (NAIA) concession agreement.
Joining Butuyan in the petition for certiorari with urgent prayers for the issuance of a temporary restraining order and/or writ of preliminary injunction or status quo ante order are fellow CentreLaw lawyer Roger Rayel, former undersecretary of the Department of Environment and Natural Resources and former Ateneo Law dean Antonio Gabriel La Viña, and law deans Ma. Soledad Deriquito-Mawis (Lyceum College of Law) and Jose Mari Benjamin Francisco Tirol (University of San Agustin College of Law).
Named respondents are Executive Secretary Lucas Bersamin, the Department of Transportation, the Manila International Airport Authority, the Pre-Qualification Bids and Awards Committee of the NAIA Public Private Partnership Project, the PPP Governing Board and the New NAIA Corporation.
To recall, the National Economic and Development Authority (NEDA) approved the Public Private Partnership (PPP) proposal for the operation of NAIA in June 2023.
The contract was bidded out in December 27, 2023 and awarded to the New NAIA Infra Corporation (NNIC) on February 2024, which was followed by the signing of the concession agreement on March of the same year.
The petitioners said the government, in its haste to draw up and bid the concession agreement, failed to safeguard the interest of the public.
“It would soon become evident just how quickly and easily a PPP project could be drawn up, approved, peddled, bid out, awarded and a concession agreement for it signed if absolutely none of the government officials overseeing it cared about following the law or safeguarding the public’s interest”, the petitioners said, adding that the bidding did not comply with and was in violation of the provisions of the new PPP Code signed into law on December 5, 2023 and took effect before the bidding on December 23, 2023.
They pointed out that the Office of the Solicitor General (OSG) and the Office of the Government Corporate Counsel (OGCC) have both advised the Manila International Airport Authority (MIAA) that the bidding and award of the NAIA project is covered by and must comply with the PPP Code.
But instead of going back to the drawing board and secure the necessary approvals required under the new law, the petitioners said MIAA still proceeded with the awarding of the concession agreement.
“It seems MIAA could not be bothered by it nor deterred by mere opinions from the legal counsels of government bodies and instrumentalities,” they said.
What is worse, according to the petitioners is that the bidding proceeded without the terms being clear about how the concessionaire will be compensated.
The MIAA charges fees, rentals and other charges to users of its facilities which will be paid by the passengers and consumers.
From the income from these fees and charges will come the compensation for the concessionaire.
The petitioners argued that the fees and charges must still undergo a ladderized rate-fixing approval process which includes public participation as an integral process.
“This component of the constitutional right to due process of the law was not followed and was, in fact, done away with for future increases,” they said.
They also pointed that the Revised Administrative Order No. 1 governing the fees, rentals and charges were only approved in September 2024, or more than six months after the award of the project to NNIC and more than five months after the signing of the concession agreement.
“Anomalously, the Revised Administrative Order No. 1 was adopted and passed without any changes as the draft that was first issued on December 4, 2023. This, notwithstanding the objections and clarifications from relevant stakeholders which made the public hearing held therefor a mere formality,” the petitioners also said.
They said that despite the absence of the compensation mechanism as of bidding date on December 27, 2023, NNIC managed to bag the contract by promising to pay MIAA 82 percent of the revenues on top of the P2 billion annual payments and the P30 billion performance bond for the 15 years contract.
“Respondent agencies managed to secure the profits to be made by the concessionaire from the project but not the benefits to be obtained by the public,” they said, noting that all the fees and charges at NAIA increased significantly since October 1, 2024.
Aircraft parking rates for the first half hour up to 50,000 kilograms have also increased by 1,444 percent from $2.04 to $31.50 for international operations and by 1,433 percent from P26.52 to P406.75 for domestic operations.
Aircraft tacking fees also rose by 60 percent from $36.99 to $59.18 per hour for narrow-bodied aircraft, and by the same percentage from $55.55 to $88.88 per hour for wide-bodied aircraft.
They said landing and take-off fees for aircraft have increased by around 220 percent, while the passenger service charge is set to increase on September this year from P400 to P950 or by 72.73 percent for every departing international passengers, and from P190 to P390 or by 95 percent for every departing domestic passenger.
“All those increases in fees and charges are already being implemented even as the concessionaire merely took over an already existing NAIA, and the concessionaire has yet to erect a single significant structure at NAIA or to introduce any big-ticket equipment or to make any substantial operational improvement,” they said.
In asking the SC’s intervention, the petitioners said if the concession agreement is allowed, it will open the floodgates to an open and institutional connivance between the government and business conglomerates to partner in operating public utilities, government monopolies, and government facilities for maximum business profit for the government and the private entity.
“Such an arrangement will be tantamount to a quasi-bribery, because the award of government concession agreements will be decided on the basis of who can guarantee maximum financial gain to the government, at the expense of an unsuspecting public,” they added.
MIAA, on a statement, refused to comment on the petition.
“We have not received a copy of the petition and it would be premature for us to comment at this time,” it said.
It added that “while we respect their right to avail of judicial remedies and reliefs, we maintain that the entire process has been transparent and in accordance with law.”
