By: Francis Allan L. Angelo
MORE Electric and Power Corp. (MORE Power) nixed reports that it was scolded by the Supreme Court for forum shopping and that it has lost its bid to take over the power distribution services in Iloilo City.
The Enrique Razon-led firm said that rival firm Panay Electric Co (PECO) is practically committing suicide by questioning the legality of the law that granted the former the franchise to distribute electricity in Iloilo City.
In a comment submitted to Iloilo RTC Branch 35 on Sept. 25, 2019, MORE Power clarified some reports emanating from the September 2, 2019 order of the SC which denied its prayer for a Temporary Restraining Order (TRO) and/or writ of preliminary injunction against the decision of the Mandaluyong Regional Trial Court (RTC) Branch 209.
MORE Power submitted the comment after PECO also filed an urgent motion asking for the deferral of the expropriation case pending with RTC Branch 35 which is presided by Judge Daniel Antonio Gerardo S. Amular
The TRO and injunction pleas are part of the petition for certiorari filed by MORE Power against the Mandaluyong RTC’s decision that declared as “void and “unconstitutional” provisions of Republic Act (RA) 11212, which granted MORE Power the congressional franchise to distribute electricity in Iloilo City.
A certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency.
The Mandaluyong RTC’s decision favored PECO which is fighting to keep power distribution services in the city.
Right after the SC decision was publicized on Sept 24, reports claimed that the High Court rebuked MORE Power for “continuously defying the court when it pursued an expropriation case to take the assets of PECO, while having filed a separate appeal against a lower court’s decision that partially declared its government franchise as unconstitutional.”
MORE Power said the SC order “did not scold, chide or rebuke MORE Power” but it only quoted the allegations of PECO in an urgent motion it filed with the High Tribunal.
“The Supreme Court merely required MORE Power and Judge (Yvette Marie) Go to comment on the Urgent Motion for a Show Cause Order filed by PECO where it alleged that the conduct of MORE Power constituted an ‘insidious form of forum shopping.’ These are the words of PECO and not of the Supreme Court. Please note that the Supreme Court did not issue a show cause order against MORE Power or Judge Go, the High Court merely required them to file a comment on the urgent motion of PECO,” the Razon-led firm said.
Judge Go of RTC Branch 37 granted MORE Power’s application for a writ of possession against PECO’s assets but she inhibited from the case which was re-raffled to Judge Amular’s sala.
EXPRO CASE STILL ALIVE
MORE Power also shot down reports that its expropriation case against PECO pending with the RTC in Iloilo City is in jeopardy because of the SC decision.
The reports indicated that the “SC’s September 2 notice also ordered MORE Power and Judge Yvette Marie Go of the Regional Trial Court (RTC-Branch 37) in Iloilo City to explain why the expropriation case proceeded with Go issuing a writ of possession in favor of MORE Power last month.”
But MORE Power said there was no such order from the SC.
“Again the Supreme Court did not order MORE Power and Judge Yvette Marie Go to explain why the expropriation case proceeded. The Supreme Court merely required MORE Power and Judge Go to comment on the Urgent Motion for a Show Cause Order filed by PECO.”
The new power distributor added that the two cases are independent and there is nothing that prevents MORE from pursuing the expropriation case.
“The fact that the Order of the Mandaluyong Court is appealed to the Supreme Court means that the Order is not final and executory. Moreover the Order of the RTC Mandaluyong cannot be binding on the RTC Iloilo which is a co-equal Court.”
While the SC denied the TRO against the Mandaluyong RTC, it still required PECO to comment on the Petition for Certiorari which is the main case filed by MORE Power.
To recall, the Mandaluyong court ruled that Sections 10 and 17 of RA 11212, which gives MORE Power authority to expropriate PECO’s assets and takeover operations, have infringed on PECO’s rights.
But the Razon-led firm said the Electric Power Industry Reform Act or EPIRA Law itself granted distribution utilities like MORE Power the power to expropriate all assets necessary for the conduct of their business.
“Even assuming that section 10 of RA 11212 is unconstitutional, MORE can still rely on section 23 of the EPIRA. PECO cannot rely on the power granted under the EPIRA because it has no franchise,” MORE Power said.
‘SUICIDE’
MORE Power said PECO is practically committing suicide by questioning the legality of the law that granted the former the franchise to distribute electricity in Iloilo City.
It cautioned PECO that it continues to serve Iloilo City, although in a temporary basis, because of the provisions of RA 11212.
It also slammed PECO officials for accusing them of stealing the latter’s business (agaw negosyo).
“PECO has no franchise to operate the distribution system in Iloilo. Its latest application was rejected by the House Committee on Franchises. The temporary certificate of public convenience and necessity (CPCN) of PECO is actually based on Section 17 of RA 11212. As it is, if Section 17 of RA 11212 is declared unconstitutional, there is also no legal basis for the interim CPCN granted to PECO. It is not ‘agaw negosyo’ because without a franchise, PECO has no legal authority to operate a business of the distribution of electricity in Iloilo City.
Granting that Section 17 of RA 11212 is indeed unconstitutional, PECO should be held liable for doing business in an illegal manner.
“PECO is now only relying on its temporary CPCN granted by the Energy Regulatory Commission (ERC) which was issued only on the basis of Section 17 of RA 11212, the same section that the RTC Mandaluyong declared as unconstitutional. Therefore, PECO should also be cited in contempt for using the CPCN which was issued by virtue of a supposedly unconstitutional provision of law.”
MORE Power said PECO is using the judicial process to “cherry pick from the provisions of RA 11212 and uphold only those, which are favourable to it which is contrary to the legislative intent as seen in the passage of RA 11212 and in the rejection of the franchise renewal of PECO.”
