The executives, American national Robert Tober, president and chief executive officer, Marino Abes, corporate secretary, Leonilo Alfonso, treasurer, and Cornelio Peralta, former president and current consultant, are accused of passing off the company as Filipino-owned, so it could apply for six permits from the National Water Resources Board to extract and use ground water for industrial purposes at its plant in San Pedro, Laguna.
Under Section 14 of Republic Act 1067, "only citizens of the Philippines or corporations 60-percent of whose capital are owned by Filipinos may apply for a water permit and the privilege of appropriating and using water resources."
Article 91, Paragraph C of the same law penalizes misrepresentation of citizenship to qualify for a water permit with a fine of P6,000 to P10,000 or imprisonment of six years and one day to 12 years.
But the University of the Philippines (UP)-Likha, an environmental student organization at the state university which brought the landmark criminal suit to court, said the corporation, one of the country’s biggest manufacturers of disposable diapers, napkins, tissue paper and other bathroom products, is 87-percent owned by Kimberly Clark-USA as indicated by records of the corporation and the Securities and Exchange Commission.
"The company was able to secure the water permits through misrepresentation," said Mary Catherine Foronda, secretary general of the organization and a resident of San Pedro, Laguna.
According to her, UP-Likha got wind of the violations of the law during a congressional hearing by the House Committee on Ecology on April 5 last year when NRWB executive director Hector Dayrit testified under oath that his office had granted six water permits to Kimberly Clark Philippines.
She said sometime in 1990, the corporation applied for six water permits through Domingo Gevana, who was mill manager until his death on June 10, 1998. The applications were notarized by Abes, the corporate secretary.
The NRWB, the government body in charge of regulating the use of water resources, issued five water permits in the name of Kimberly Clark on Feb. 10, 1995. A sixth permit, also in the name of the multinational giant, was issued on July 15, 1997. The permits allowed Kimberly Clark to draw water in commercial quantities for use as "process water" at its milling plant. Water reportedly comprises 60-percent of the raw materials needed by the plant’s manufacturing processes.
Article 92 of the Water Code provides that if the offense is committed by a corporation, the penalty shall be imposed on its president, general manager and other guilty officers. If the officer is a foreigner, he shall be deported after serving the sentence without further proceedings.
The company has defended its continued use of the permits by saying that the waters drawn from the ground under its plant are private in nature under the Civil Code and the Old Spanish Code.
Foronda however said provisions on water resources found in the Civil Code – the codified law that replaced the Old Spanish Civil Code – have been repealed by the Water Code and the 1987 Constitution. The Constitution, she said, also expressly provides in Article XII, section 2 that only Filipino citizens or corporations, at least sixty percent of whose capital stock is owned by Filipinos, may enter into a joint venture agreement with the government for the use of natural resources.
The company executives also said they were not guilty of the offense because it was Gevana who applied for the water permits without their knowledge – a lame defense according to UP-Likha because the NRWB itself issued the permits in the name of Kimberly Clark.
A complaint for violation of the Water Code was filed against the officers with the Quezon city Prosecutor’s Office last August 1. On Nov. 8, 2000, prosecutors issued a resolution finding probable cause to charge the executives in court for six violations of Article 91, paragraph C of the Water Code.
Charges against the executives were subsequently filed in court, with bail for the temporary liberty of the accused set at P24,000 each. The case was raffled off to Branch 83 Judge Estrella Estrada. Warrants of arrest were issued last Dec. 13 against the accused. Five days later, the Special Operations Group of the Makati police arrested the four executives at their Makati office.
They have since posted bail for their temporary liberty. They also have a pending petition for review with the Department of Justice questioning the resolution of Assistant City Prosecutor Raymond Jonathan Lledo to prosecute them. Up to now, the company cntinues to use the NRWB permits to draw water for its milling plant, despite the pending case, according to UP-Likha.