BCDA: SM Aura not off the hook

BCDA: SM Aura not off the hook
SM interpreted the Deed of Conveyance between BCDA and Taguig according to their own benefit, says BCDA

The Bases Conversion and Development Authority (BCDA) has refuted claims that the controversial SM Aura Premier mall was built legally based on a Deed of Conveyance (DOC) between BCDA and Taguig, with the state-run agency asserting that the DOC is in accordance with Republic Act 7917, which requires that the land be used for a civic center.

The newly opened mall in Bonifacio Global City (BGC) has been met with public scrutiny and criticism recently, after the BCDA revealed that the land where the mall stands had been stipulated by law to be dedicated for civic purposes. BCDA originally donated the land to Taguig City under then-mayor Freddie Tinga to be developed into the Taguig Civic Center. But instead, the local government leased the land to SM, which developed the property into a lavish upscale mall.

As concern over the issue grew, with netizens weighing in via Facebook and Twitter, a few pundits have cited the Deed of Conveyance between BCDA and Taguig as basis for the legality of the SM Aura development. Paragraph 5, Section 2 of the Deed of Conveyance states that the BCDA, upon signing the agreement, shall not place any restrictions on the use of the land.

DOC is in accordance with R.A. 7917

But BCDA President and CEO Arnel Paciano D. Casanova explained that the stipulations of the Deed of Conveyance were drafted and agreed upon in accordance with R.A. 7917. Section 1 of Republic Act 7917 provides that “Approximately forty hectares (40) of land in Fort Bonifacio shall be retained as national and local government centers, sports facilities, and parks.”

“What Section 2 of the Deed of Conveyance means is that the BCDA is not questioning the use of the land as long as it complies with R.A. 7917, and is within the parameters of civic use,” Casanova said.

“As long as they use the land either for national or local government centers, sports facilities or parks, we will not place restrictions. But what they did was use the land for a mall, which is a clear violation of the law,” he added.

The Office of the Government Corporate Counsel (OGCC) had the same interpretation of the said Deed of Conveyance in its Opinion No. 017 dated January 21, 2011, stating that “Firstly, basic is the doctrine that laws are deemed incorporated in each and every contract […] Thus, the restrictions imposed by Sec, 1, R.A. 7917 overrides paragraph 5, Sec. 2 of the DOC.”

AFP deprived of funds

Casanova added that the BCDA is not the one that would have gained from this land, nor is it the one losing out on the land’s misuse. “The people of Taguig have been robbed of a community center. What good can this ultra high-end mall do for them, if they have been deprived of a place that provides basic care and services?” he asked.

“Furthermore, the men and women of our armed forces, instead of benefitting from remittances from the land being put up for bidding, are losing out on modernization funds because the land was turned into a mall,” Casanova added.

“Many people complain about the AFP being weak, especially in light of the pressing security concerns our country is facing today. But how can the AFP undergo modernization and ably defend our countrymen if they are losing out on valuable funding?” he remarked.

The land occupied by SM Aura is valued at approximately P5 billion.

‘Why only now?’

Casanova also responded to critics who said that BCDA acted too late in questioning SM Aura, pointing out that as early as 2009, the Bonifacio Estate Services Corporation (BESC), which is in charge of BGC’s upkeep, rejected SM Prime Holdings Inc.’s Outline Application for the proposed Community and Retail Complex  on the grounds that: (i) The proposed land uses are inconsistent with  Section 8(d) of Republic Act No. 7227, as amended, since the same is limited to “national government and local government centers, sports facilities and parks.”

While a BESC permit is necessary to engage in construction activities in BGC, SM was able to commence building by getting a permit from Taguig City Hall.

Casanova added that SM avoided declaring the official purpose of the development, and this loophole allowed them to continue with the building.

“Many people were kept in the dark on what that huge structure being built along C5 was. There were no signages, no advertisements, nothing. The structure was virtually completed when SM officially announced that it was a mall. It is a building that was completely done in bad faith,” Casanova noted.

‘Not a fight between national and local governments’

The BCDA chief also stressed that this issue is not a tug-of-war between the national and local government, nor a proxy war between private companies. “As an instrumentality of the government, it is our duty to uphold the law, especially with regards to property that was turned over by the BCDA for an important civic purpose,” Casanova said.

“All our actions and reactions are done in complete adherence to the rule of law. Thus, we wish to work with the current administration of Taguig in resolving this issue in accordance with the law—and in bringing to justice those who have grossly violated it.”

Casanova concluded that “the BCDA will not rest until we find a solution to this problem that is legally justifiable and morally acceptable to our shareholders,” referring to the AFP, the national government, and the general Filipino public.