By: Limuel S. Celebria
THE continuing struggle for power distribution rights in Iloilo City between the old guard Panay Electric Company (Peco) and the new kid on the block More Electric and Power Corporation (More) appears just about ready for a final showdown – a do or die battle with the highest court of the land serving as center stage.
Recently, the Court of Appeals issued a ruling denying an appeal by Peco for a Temporary Restraining Order against the ruling of a local regional trial court which granted More its petition for Writ of possession. But Peco was quick to dismiss the CA ruling as moot, saying that, in fact, it has already filed with the appeals court a motion to withdraw its petition.
For the benefit of those who were born yesterday, here’s a brief summary. Peco, a Cacho-family owned corporation, has been Iloilo City’s power distributor for the last 96 years. However, its franchise expired in January this year and its application for renewal was rejected by Congress.
More, a hastily put up corporation led by so-called Container Terminals King Enrique Razon Jr., was granted the franchise to replace Peco under Republic Act 11212. This law also granted More the power of eminent domain, generally, the power of government to take over private property for public use.
Citing this provision of its franchise, More petitioned a local regional trial court for a Writ of Possession (WOP) against Peco’s properties. Meanwhile, Peco assailed the similar provision in a case filed with another regional trial court in Mandaluyong City.
Both petitions succeeded. The local RTC awarded More’s WOP petition while the Mandaluyong court declared Sections 10 and 17 of the More franchise under RA 11212 unconstitutional.
Peco filed an appeal with the CA against the WOP but withdrew the same after getting a favorable ruling from the Mandaluyong Court. On the other hand, More asked the Supreme Court to review on Certiorari the Mandaluyong ruling. And this is where everything now rests.
Where the wind will blow next might be impossible to tell. Perhaps we could say the same of the Supreme Court. However, there are incontrovertible facts, foremost of which is this: More is in possession of a valid franchise. Peco holds nothing – nada.
The recent CA ruling, while indeed moot, reveals a lot.
It said: Congress’ grant of a legislative franchise to More under RA 11212 is pursuant to its power under Section 22 and 27 of RA 9136 or the EPIRA law — the statute that provides the framework for the restructuring of the electric power industry. Considering that passage of RA 11212 was done to carry out EPIRA, More’s exercise of the powers granted to it under its legislative franchise, which includes the power of eminent domain, is also considered an implementation of the EPIRA. Otherwise stated, the expropriation case and the incidents thereon, particularly the application for the issuance of WOP were meant to carry out EPIRA.”
The CA further ruled: “The judgment of RTC Mandaluyong declaring sections 10 and 17 of RA11212 unconstitutional does not accord Peco any clear and unmistakable right. Judgment is not yet final. More has pending petition for review on certiorari with the SC.
“Besides, even if sections 10 and 17 would be voided with finality, the nullification does not involve the whole statute and pursuant to the separability clause therein, all other provisions that are not affected will remain valid. More will retain its status as a Distribution Utility. As long as more has a valid legislative franchise as a DU, it may exercise the power of eminent domain as provided for under Section 23 of the EPIRA.” ( Sec. 23 – functions of DU – distribution utilities may exercise the power of eminent domain subject to the requirements of the constitution and existing laws.)
The CA ruling not only declared Peco dead. It nailed its coffin shut when it said: Peco’s apprehension of its closing business is not attributable to the expropriation (by More) but instead to the non-renewal of its franchise. As for Peco’s fear of having Iloilo city plunged into darkness, suffice it to say that More is actually averting the same by pursuing its obligation as the grantee of a legislative franchise to operate as a DU in the area.”
I think this is clear enough. I doubt if the Supreme Court can rule otherwise.
