The Supreme Court of Justice (SCJ) ruling ratifying the paralysis of the construction of Bavaro International Airport (AIB) is a polished piece that combines the Dominican legal tradition with novel aspects of administrative law, in keen reflection on the appellant’s arguments and the decision at the center of the appeal.
It also sets the precedent for clarifying the State’s responsibility regarding infrastructure works that are of public utility, such as airports, and the procedure to be followed in the interests of transparency and fair competition.
The rejection of the appeal brings together both the case law of the SCJ itself and the clarifications of the Constitutional Court, which adds consistency to the judicial resolution written by the president of the Third Chamber, Manuel Alexis Read, and approved unanimously. The court was also composed of Judges Manuel R. Herrera Carbuccia and Anselmo Alejandro Bello.
The ruling makes the decision by the Civil Aviation Institute (IDAC) res judicata, a decision that declares the permit to start construction on the AIB to be harmful to the public interest, based on a series of studies and documentation that were never satisfied. But it goes much further and analyzes the procedure followed for approval in the light of current law before revealing that it was riddled with administrative irregularities.
Failure to follow protocol
In the expansion of the arguments, the ruling unquestionably established that the authorizations and licenses for the AIB failed to follow the due administrative procedure. Indeed, the competent authority to approve the construction of an airport is IDAC and not the Airport Commission, whose recommendation was the starting point for Executive Decree 270-20 of July 24, 2020.
That decision by then-President Danilo Medina approved the construction of the AIB and, in turn, granted it a staggered contract. By stating that the Executive Branch exceeded its powers in issuing this decree, the ruling, in the opinion of qualified jurists, is an express mandate for its repeal and lays the basis to invalidate the state contract in favor of the AIB. Textually, the ruling states:
“Under article 26 (r) of Act No. 491-06 on Civil Aviation, the legal authority of the head of the Executive Power in this matter is to approve or reject IDAC’s decision to establish an airport in a particular place, and therefore, by directly determining who will be the beneficiary company of its construction and operation, as well as authorizing the signing of a contract with the Dominican State in decree no. 270-20, dated July 21, 2020, it exceeds its jurisdiction.”
The illegality of the AIB is also established by another consideration by the SCJ when referring to the procedure. For airport infrastructures, the ruling prescribes “the bidding procedure established in Law No. 340-06 of August 18, 2006, on Purchases and Contracting of Goods, Services, Works and Concessions, and its amendments, to guarantee the constitutional principles of transparency, publicity, and equality.”
One of the arguments of the appellant, the AIB, focuses on the fact that the analysis of the declaration of harmfulness, the decision by the court (Superior Administrative Court) was riddled with alleged flaws for lack of reasoning, false application of the law and contradiction between the grounds of fact and law.
Supplementary reasons
In refuting the presupposition, the Third Chamber of the SCJ resorts to “surrogacy or substitution of reasons”, a measure that is appropriate when, despite the existence of an erroneous or insufficient motivation, “the correct decision has been adopted so that the court may complement substitute ex officio the pertinent reasons to maintain the decision adopted in the contested ruling. This is a technique accepted by Dominican jurisprudence and doctrine, which has been implemented by the Supreme Court of Justice and incorporated by the Constitutional Court”.
Armed with this instrument, the supreme judges develop a solid argument that establishes the mandatory nature of requesting bids for infrastructures that, although private, are of public utility. The ruling states that, based on Law 47-20 on Public-Private Partnerships already in force when the illegal permits were granted to the AIB, it is up to the State to “find the balance in the search for profits from private activity with counterparts and considerations appropriate to the public interest and to the satisfaction of the general interest”.
The fact that the approval of the AIB failed to adhere to the legislation on Public-Private Partnerships, the path to follow when understanding the various judicial resolutions on the case, calls into question the contract granted by the Executive Branch under the last government. It is precisely this law that protects contracts such as the one signed between the State and the AIB and there is no point in the Supreme Court ratifying the ban on building the airport.
Minimum Effect
The appeal having been rejected, one aspect of the ruling under appeal is fully valid: the petty amount in potential damages suffered by the promoters of the AIB under the ban.
The court says: “In this case, the respondent maintains that nothing of the appellant’s was destroyed, that no type of construction has begun, and that the regulations relating to the accreditation of property titles, by Act No. 923/2020, letter I, had not been complied with, which implies, in this regard, that granting the initial authorization could not be put into effect; In addition, this makes it much easier to weigh up the principle of proportionality, as has been said, insofar as the damage caused to those affected by the future annulment in the courts is minimal, while the benefits for national and aeronautical security are obvious”.
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