19 May 2010
– Arguing that the Power Sector Assets and Liabilities Management Corp. (PSALM) acted with grave abuse of discretion when it conducted the bidding of the Angat hydro-electric power plant (HEPP) in secrecy and in disregard of the people’s right to information, right to water and in violation of its mandate and the Constitution, various cause-oriented groups today filed a petition before the Supreme Court to safeguard the people’s right to water and to access information on government matters involving public interest.
In the 58-page petition, the groups asked the Supreme Court to permanently prohibit PSALM from disposing of the Angat HEPP through privatization, nullify the bidding process initiated by PSALM on January 2010 for the privatization of the Angat HEPP, and issue a preliminary injunction and/or temporary restraining order (TRO) from proceeding with the next steps in the bidding process, specifically the issuance of a notice of award for the winning bidder.
Petitioners are Edgardo Ligon of the Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, Inc.), Rebecca Malay of the Freedom from Debt Coalition (FDC), Loretta Ann Rosales of the Akbayan Citizen’s Action Party, Daniel L. Edralin of the Alliance of Progressive Labor (APL), and, Akbayan Rep. Walden Bello.
Respondents to the case are the Power Sector Assets and Liabilities Management Corp. (PSALM), Metropolitan Waterworks and Sewerage System (MWSS), National Irrigation Administration (NIA), Korea Water Resources Corporation (K-Water), First Gen Northern Energy Corporation, San Miguel Corporation (SMC), SN Aboitiz Power-Pangasinan, Inc., Trans-Asia Oil and Energy Development Corporation, and DMCI Power Corporation.
In a press briefing, Milo Tanchuling, FDC secretary general, explained the impact of privatizing an important water source such as the Angat Dam.
“Angat Dam is the single-most important water source of Metro Manila as it provides 97 percent of the water needs of at least 12 million residents of the country’s capital,” Tanchuling said, adding that the dam also “irrigates some 31,000 hectares of farms across 20 towns and municipalities in Bulacan and Pampanga.”
Under Republic Act 9136 or the Electric Power Industry Reform Act (EPIRA), PSALM is mandated to privatize all the assets of the National Power Corporation, including the Angat HEPP.
On April 28, the Korea Water Resources Development Corp. (K-Water), a utility wholly-owned and controlled by the Republic of South Korea, submitted the highest bid, amounting to $440.8 million, among six qualified bidders. PSALM, the agency responsible for the sale of Angat hydro-electric power plant, has yet to announce the winning bidder.
The groups claimed that as the process of privatization moves on, violations of constitutionally guaranteed rights of the people in its execution unfold, as revealed in the ongoing privatization of the Angat HEPP.
Lawyer Maribel Arias, counsel to the petitioners, explained that the petition is presented before the Supreme Court “to call for the exercise of its constitutionally declared power to determine whether or not grave abuse of discretion amounting to lack or excess of jurisdiction has been committed by the PSALM in the conduct of the Angat HEPP bidding.”
In the petition, the groups claimed that PSALM acted with grave abuse of discretion amounting to lack of excess of jurisdiction when it:
- Commenced the bidding process for the Angat hydro-electric power plant without having previously released to the public critical information pertinent to the sale of the public asset such as the terms and conditions of the disposition, the parties qualified to bid and the minimum price, among others, in violation of PD 1445, EPIRA, and jurisprudence;
- Refused to divulge information related to the bidding being conducted – including significant information concerning the terms and conditions of the sale, safeguards to the public interests involved, the identity and qualifications of the bidders, especially of the supposed successful bidder – in violation of Article III, Section 7 and Article II, Section 28 of the 1987 Constitution and jurisprudence relating to the right to information on matters of public concern and the policy of full public disclosure of all government transactions involving public interest;
- Pursued a bidding process that is not open and transparent and one that discriminatorily limited participation therein to private sectors, in violation of the EPIRA;
- Overstepped its mandate and jurisdiction in unilaterally undertaking the public bidding and sale of Angat hydro-electric power plant and in not offering the sale to MWSS and NIA as an ingenious mode transferring power generation asset, in violation of the Civil Code of the Philippines and EPIRA;
- Allowed a foreign state-owned corporation to participate in the bidding process (and declared such corporation to be the winning bidder), in contravention of Article XII, Section 2 of the 1987 Constitution, the Water Code of the Philippines and the EPIRA; and,
- Conducted the bidding process (A) in the absence of effective safeguards for water security, and (B) in a context characterized by lack/denial of access to information concerning water, undermining petitioners’ right to water and in violation of Article II, Sections 2 and 11 of the 1987 Constitution in relation to Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights, Article III, Section 1 of the 1987 Constitution, PD 1067 and EPIRA and its implementing rules and regulations.
Because of these reasons, the groups wanted the High Court to issue a TRO or a Writ of Preliminary Injunction “to prevent grave and irreparable injury to the Filipino people.” (30)NOTES:
PETITION FOR CERTIORARI AND PROHIBITION
With application for a Temporary Restraining Order and/or Writ of Preliminary Injunction
- Under Rule 65 of the Rules of Court, Certiorari is a petition that asks the Court to nullify or modify the acts of a public officer on the ground that the latter either abused his authority or acted without authority.
- Prohibition, on the other hand, is a petition asking the Court to make an order prohibiting a public or private person or entity from continuing on its proceedings or actions because the latter either abused its authority or is acting without authority.
- A Preliminary Injunction is an order from the Court while the case is still being heard. It requires a party to refrain from doing certain acts which would result in prejudice to the other party while the case is still pending. The order is effective until the Court gives a final decision on the case.
- A Temporary Restraining Order (TRO) is similar to a Preliminary Injunction. The only difference is that it is effective only for 20 days and it is issued by the Court only in cases where stopping certain acts is of urgent importance in order to prevent any injustice.