PECO should look at the brighter side

JUDGE Daniel Antonio Gerardo Amular of the Regional Trial Court (RTC Branch 35, Iloilo City) has inhibited himself from rendering judgment on the expropriation case filed by MORE Electric and Power Corp. (MORE Power) against Panay Electric Co. (PECO) on the unexplained ground that whatever judgment he would render “would not be accepted by either the plaintiff or the defendant.”

The re-raffled case fell on RTC Branch 33, presided by Judge Ma. Theresa Gaspar – the fourth judge to handle the case in the span of eight months.

It boggles legal minds that it has taken that long and so many judges to preside a legal battle over a duly-passed law. Republic Act (RA) 11212, which granted a 25-year power distribution franchise in Iloilo City to MORE Power, should have been operational since March 1, 2019 or 15 days after President Duterte signed it on Feb. 14, 2019.

Methinks that instead of going to court, PECO, whose franchise expired on Jan. 19, 2019, should have agreed to iron out kinks with MORE Power on the negotiating table for a smooth transition by looking at the bright side of the provisions it had opted to assail, namely sections 10 and 17.

Section 10 covers the right of eminent domain authorizing MORE Power to expropriate “insofar as it may be reasonably necessary for the efficient establishment, improvement, upgrading, rehabilitation, maintenance and operation of its services… Provided, that proper expropriation proceedings shall have been instituted and just compensation paid.”

PECO questioned that provision, claiming it violates Section 1, Article 3 of the Philippine Constitution: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

There is no deprivation without due process here because of the “just compensation” that the new franchisee is willing to pay the previous one. Its franchise having expired, PECO would have no more profitable use for its facilities.

The Electric Power Industry Reform Act (EPIRA), in Section 23, specifies: “Distribution utilities may exercise the power of eminent domain subject to the requirements of the Constitution and existing laws.”

The Revised Rules of Court (Rule 67, Section 2) likewise speaks of the expropriating entity as having “the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court.”

MORE Power has deposited an escrow of P481,842,450 as “just compensation” at the Landbank. If PECO deems it insufficient, it could simply haggle for more.

By agreeing to accept the offered compensation, PECO could have appreciated what it stands to gain from Section 17 of RA 11212, specifying, “Panay Electric Co. (PECO) shall in the interim be authorized to operate the existing distribution system within the franchise area.”

That interim, akin to a relay run, refers to the transition period of two years or less as mandated by Section 11.

There is a catch to that provision, however, in its final sentence: “This franchise shall be deemed ipso facto revoked in the event that the grantee fails to operate continuously for two years” (italicized for emphasis).

If PECO is thinking of a “naughty” way to pave “revocation,” then it could only be in the form of legal maneuvers aimed at exhausting the two-year timeframe.

This writer hopes it’s not so. ([email protected]/PN)

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