THE country's major banana player, the Tagum Agricultural Development Company (Tadeco), cannot hide its disgust and surprise over initial findings issued by the Commission on Audit (COA) that was partly the basis of the Department of Justice (DOJ) to issue a legal opinion against the joint venture agreement (JVA) between the Bureau of Corrections and Tadeco, a subsidiary of Davao-based company and Floirendo-owned Anflo Management and Investment Corp.
Tadeco, through its president and chief executive officer Alex Valoria, declared the basis of these findings as the erroneous application of laws and constitutional provisions.
In a press statement, the Tadeco head disputed point by point the grounds cited by COA and DOJ, through the Office of the Solicitor General (OSG), in declaring the Tadeco-Bucor JVA illegal.
"With all due respect to the COA and the OSG, the provisions they had cited as bases for calling out the supposed violations committed under the Tadeco-BuCor agreement cannot be applied to this case," Valoria pointed out.
He also made it clear that since the JVA was signed in 1969, its primary purpose is to assist in the rehabilitation of inmates at the Davao Prison and Penal Farm (DPPF) and the "goal of making profits is only secondary."
This has been recognized by Bucor, which admitted Tadeco's invaluable contributions to inmates' rehabilitation program.
In its 2013 year-end list of accomplishments, Bucor cited that with its agreement with Tadeco. At least 800 inmates at Dapecol have received expert training on banana growing. Each inmate-farm worker has been receiving an average stipend of P7,664 per month. Also, many inmates who had already completed their sentence and released have been re-hired by Tadeco.
Reports have it that the fact-finding committee created by the DOJ to investigate and review the controversial land deal between Tadeco and Bucor has found the agreement illegal. But no details on the findings and recommendations were immediately made available as of Monday. Chief State Counsel Ricardo Paras III led the probe, ordered by the DOJ upon the request last March 30 of House Speaker Pantaleon Alvarez.
Alvarez insisted the deal should be voided for "lack of basis and authority," and "grossly disadvantageous to the government" and urged the DOJ to annul the contract which converted the vast 5,308-hectare Dapecol located in Panabo, Davao Del Norte into a banana plantation.
In its findings, the COA identified the contract as leasehold and tenancy agreement governed by Republic Act 1199 when the agreement cannot be classified as such, Valoria said.
"No one would argue that the land where the Davao Penal Colony stands, which is under the BuCor, is a government reservation. Thus, it is inalienable land and cannot be the subject of a lease agreement as stated under RA 1199," Valoria explained.
They also know for a fact that BuCor and Tadeco are prohibited under the Public Land Act (Commonwealth Act 141) from entering into a lease arrangement.
Besides, Tadeco cannot be identified as a tenant of the Bucor land because it is a juridical entity and not a person capable of performing the actual cultivation of the land, which is essential in a leasehold and tenancy agreement.
So where's the violation when under both the 1935 and 1973 Constitutions, the government can enter into joint venture arrangements involving inalienable lands like the Dapecol?
"In fact, under the 1987 Philippine Constitution, there is now an express provision allowing joint venture arrangement involving exploration, development, and utilization of natural resources. Natural resources include inalienable public lands like the Davao penal farm," Valoria further explained.
Another COA finding that has been described as an erroneous legal interpretation is its claim that the JVA violates the Constitution because the BuCor allowed Tadeco to develop 5,308 hectares of the penal farm, which in excess of the 1,000-hectare limit stated under Section 3, Article XII of the 1987 Constitution.
Under Section 88 of the Public Land Act, the land developed by Tadeco inside the Davao penal farm is considered an "inalienable public land," thus, the constitutional provision cited by COA does not apply because it pertains to "alienable lands of the public domain."
"The 1,000-hectare limit would not apply because the 2003 BuCor-Tadeco agreement is a joint venture agreement and not a lease agreement. As I have pointed out, joint venture agreements for the exploration, development, and exploitation of natural resources is expressly allowed under the 1987 Constitution," Valoria insisted.
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