Pasig court won’t stop PPA collection

The Pasig Regional Trial Court (RTC) rejected yesterday a petition for the issuance of a restraining order against the collection of the controversial purchased power adjustment (PPA), but respondent National Power Corp. (Napocor) said it still has no cause for celebration.

"It will be a long way for us. The case will go on without the TRO (temporary restraining order). We have to go through hearings on the merits of a preliminary injunction," said lawyer Rainier Butalid, legal counsel of the state-run Napocor.

Although pleased with the ruling handed down by RTC Judge Alfredo Flores, Butalid said "the problem is still there."

He pointed out that Flores’ decision covered only the TRO plea, and not the motion for the issuance of a writ of preliminary injunction filed by 40 opposition groups identified with ousted President Joseph Estrada.

Flores set the hearing on the preliminary injunction on July 5.

"Rest assured though, that President Arroyo, the Napocor board and Energy Secretary Vincent S. Perez are doing their best to resolve the problem of the PPA," Butalid added.

Former Sen. Juan Ponce Enrile who has been identified with the opposition bloc in the Senate, along with leaders of militant groups opposed to the Arroyo administration, filed a class suit and asked the court to immediately issue an order stopping collection of the generally unpopular PPA fees.

The petitioners sought a nullification through a court order of Section 34 of Republic Act (RA) No. 9136 which authorized the Napocor and the Lopez-owned Manila Electric Co. (Meralco) to pass on to end-users the cost of unused electricity being charged by the so-called independent power producers (IPPs).

In its counter-motion to dismiss, Napocor said Section 34 was improperly invoked by the petitioners since it was not the provision that imposed the PPA.

Napocor maintained that the questioned provision was concerned with universal charge which has yet to be approved by the Energy Regulatory Commission (ERC).

Section 34 provided that a universal charge to be determined, fixed and approved by the ERC would be imposed on all electricity consumers within one year after RA 9136 took effect.

Napocor also cited lack of jurisdiction as a reason for the dismissal of the petition, saying since petitioners were contesting the PPA, it should be the ERC, not the RTC, that has exclusive jurisdiction over the case.

Napocor pointed out that Section 43 of RA 9136 stated that the ERC "shall have original and exclusive jurisdiction over all cases contesting rates, fees, fines and penalties imposed by the ERC."

"We respect the right of every Filipino to question the PPA, but it should be done before the proper forum, proper context and at the right time with appropriate cause of action," Butalid said.

It was clarified that the PPA was imposed pursuant to a decision by the ERC, then known as Energy Regulatory Board, made on Oct. 28, 1993 and Feb. 14, 1996.

In his three-page ruling, Flores clarified that the authority of the respondents to collect PPA charges was settled in 1986. He also cited a Supreme Court ruling promulgated on April 21, 1988 pertaining to the "Emmanuel Santos vs Meralco" case, upholding the validity of the PPA based on a PPA clause formula approved by the defunct Board of Energy.

"At this point (in) time, there exists no clear, unmistakable invasion of petitioners’ right vis-a-vis the imposition of PPA, which application is being presently opposed due to the increasing burden of paying, as well the stranded debts incurred by the respondents from the IPP contracts," Flores said.

He noted that the injury feared by the petitioners "is yet speculative in the absence of evidence that the imposition of PPA was not commensurate to the purpose of giving them the pleasure of using electricity without interruption."

Flores also indicated that there was no compelling reason to immediately issue a TRO since any damage to the public that may be caused by the continued collection of the PPA "could be qualified in terms of money for refund if it turns out later that the PPA charges were truly excessive which, unless declared confiscatory or unconstitutional, remains valid."

Arroyo vows to go after culprits in IPP deals

President Arroyo vowed yesterday to prosecute to the full extent of the law anybody found responsible for the highly irregular IPP contracts that brought about the PPA charges.

Admitting her dismay over the plunge of her popularity rating due to the PPA controversy, the President said the review of the IPP transactions would be completed before the end of the month.

"After this review, we shall know who to go after behind the anomalies in these IPP deals. No one is above the law," Mrs. Arroyo stressed.

She also gave assurances that consumers will start paying lower power bills next month as an offshoot of her order to bring down the PPA charge from P1.26 to 40 centavos per kilowatt-hour.

For his part, Perez hailed the RTC ruling, saying issuance of the TRO would have created a "massive financial disruption in the (power) industry."

"We do not consider it as a victory for the government. Rather, we consider it as a wake-up call for the Department of Energy to continue working for solutions to minimize the cost of electricity," Perez said in a statement.

"We fully understand and empathize with the consumers on the additional burden brought by the PPA, and indeed, we have to find ways to address this problem. The government is exerting all efforts to reduce the country’s electricity rates, particularly the PPA charges," the statement added.

Meanwhile, members of the militant Kilusang Mayo Uno (KMU) marched to the ERC to demand the junking of a Meralco petition for an increase in power rates.

KMU leader Lito Ustarez said other militant groups were mobilizing their forces to join a bigger protest action set on June 26.

On the other hand, the Sanlakas and the pro-Estrada People’s Movement Against Poverty (PMAP) have forged a tactical alliance to push what they called "common people’s issues such as hikes in the cost of power, water and fuel."

In a press briefing in Quezon City, PMAP spokesman Arnold Obina said his group is willing to work with Sanlakas and its allies on the public utility issues. — With Mayen Jaymalin, Marichu Villanueva, Romel Bagares