The government’s aim of legally taking over the operations of the Manila-Cavite Expressway (Cavitex) through the PEA Tollway Corp. (PEATC) is bound to take plenty of time and a lot of legal arguments as the Cavitex Infrastructure Corp. (CIC), a subsidiary of Metro Pacific Infrastructure Corp., has taken the PEATC officer-in-charge president to court.
The Cavitex Infrastructure Corp. has filed a criminal complaint against Dioscoro Esteban Jr., officer-in-charge of the state-owned PEATC over the alleged unauthorized filing of a petition seeking to remove CIC’s right to manage and operate the Manila-Cavite Expressway.
In a 35-page complaint filed before the Office of the Ombudsman on May 6, CIC Legal Services head Criselda Funelas, representing the corporation, charged Esteban with violation of Section 3 (e) of Republic Act 3019 or the Anti-Graft and Corrupt Practices Act as well as of perjury, usurpation of authority and slander as defined and penalized under Articles 183, 177 and 358 of the Revised Penal Code, respectively.
Earlier, Dioscoro Esteban filed a petition for a writ of mandamus dated March 15, 2024 before the Court of Appeals praying for the full transfer of the operation and maintenance as well as the collection of toll in CAVITEX to PEATC from the CIC.
Esteban, in his petition, also prayed to the court to require the CIC to transfer to PEATC all other contract services related to CAVITEX operations such as the CIC’s utility contracts with Meralco, Maynilad, PLDT and Smart.
According to Esteban himself, along with PEATC spokesman Ariel Inton, such filing of the petition with the CA has the full support of Alex Lopez, chairman of the Philippine Reclamation Authority (PRA) which is the mother corporation of the PEATC, along with the PRA Board of Directors. The group of Esteban has conducted two press conferences to explain to the media and the public the position of the government corporation on the Cavitex issue.
Joint Venture Agreement
The CIC, a subsidiary of the Manny Pangilinan-led Metro Pacific Tollways Corp., holds the concession to operate and maintain CAVITEX through a joint venture agreement (JVA) entered with the Philippine Reclamation Authority (PRA) and its unit, PEATC in December 1994.
In the petition, Esteban, representing the PEATC, said the CIC’s authority to operate the CAVITEX has already expired and that the government is bound to lose billions of pesos in revenues if the CIC is allowed to continue to operate the tollway.
Esteban added that the government had lost around P2.4 billion in 2023 to CIC.
Replying with its own complaint, however, the CIC said Esteban filed the petition for writ of mandamus without the approval of the PEATC’s parent agency, the PRA and the Office of the Government Corporate Counsel (OGCC).
The CIC said OGCC, which must represent the legal interests of state-owned firms like the PEATC in court proceedings, in fact “vehemently objected” with the filing of the petition.
“Respondent (Esteban), under the pretense of official position, acted without proper legal authority in: (a) filing the Petition; (b) purporting to terminate the legal services of OGCC; (c) engaging private legal counsel to represent PEATC in the Petition without the written conformity of both OGCC and COA (Commission on Audit,” the CIC’s complaint read.
The CIC said Esteban’s statement in the petition as well as his recent interviews with the media, were also slanderous, imputing corruption on the part of the CIC without any evidence.
“In this case, CIC is being accused of rampant corruption in its operations, without any basis or evidence whatsoever. The fact that it is PEATC employees who are the ones collecting cash militates against Respondent’s accusation,” the complaint read.
The CIC also slammed the PEATC’s demand to shift from the current 90 percent–10 percent revenue sharing in favor of the CIC to 90 percent–10 percent in favor of the PEATC in connection with the CAVITEX operation.
The CIC said the demand lacked any legal basis as Clause 3.2 of the JVA states that the 90 percent–10 percent revenue sharing scheme shall only take effect upon the completion of Phase 1 of the CAVITEX project and the repayment in full of the loans, interest costs, advance costs and capital investments of both the CIC and PRA.
“However, these conditions have not been met. Phase 1 of the Project has yet to be completed as the C-5 Link remains unfinished,” the CIC’s complaint read.
“Further, PEATC has not presented any proof whatsoever that CIC has already recouped its investments in the Project, which is why it engaged in a fishing expedition through its demand letter dated 7 February 2024 wherein it required CIC to produce and submit the financial statements of the Project,” it added.
PEATC ready with answers
PEATC spokesperson Ariel Inton said they are ready to defend their acting chief from any “malicious and unfounded” allegations.
“At the outset, this criminal complaint is just a useless attempt on the part of CIC to divert the real issue, and that is to recover the operation and collection of fees that rightfully belongs to PEA Toll Corporation,” Inton said.
The Public Estates Authority Tollways Corp. said the mandamus case filed before the Court of Appeals (CA) for the return of the Manila–Cavite Expressway back in the hands of the government has no basis and should be dismissed.
PEATC Legal Manager, lawyer Sylvester Golez said the mandamus case was filed as the PEATC is not part of the joint venture agreement (JVA) and toll operations agreement (TOA) among the MPTC-led CAVITEX Infrastructure Corporation (CIC), the PRA, and the Toll Regulatory Board.
Thus, the PEATC is not part of an arbitration agreement between CIC and the government, he said.
“Since PEATC is not a party or privy to the contract, there is no option or remedy in the ordinary course of law. There is no plain, speedy, adequate remedy so this is the remedy that we need to pursue to restore to the PEATC its mandate to collect. This was also stated in the articles of incorporation naming,” Golez said.
A mandamus case, he said, is a special civil action under Rule 65 of the Rules of Court used in situations where a corporation or officer unlawfully excludes another from the performance of their right.
“The petitioner may ask the court to issue an order commanding the respondent to perform the act or bring back the right that was encroached or violated,” he said.
He noted that the CIC’s attempts to appear as the aggrieved party have no basis since the government has yet to collect the 60-40 revenue-sharing agreement that was supposed to have been in effect in 2022 after the CIC’s operations and maintenance agreement (OMA) expired on Aug. 25, 2021.
“According to the JVA, once the project’s phase 1 is complete, repayment of loans, and return of equity—when they have earned their money back—it is proper to shift to a revenue sharing of 60-40 [in favor of the government],” he said.
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