A very hot potato

By Limuel S. Celebria

The expropriation case filed by MORE Power against Panay Electric has become hotter than the proverbial hot potato. This after a third judge – Regional Trial Court (RTC) Branch 33 Presiding Judge Ma. Theresa Enriquez-Gaspar – inhibited herself from the case barely a week after it was raffled off to her sala.

In an order dated January 24, 2020, Judge Gaspar cited close personal relations with at least two members of the Cacho family which owns Peco. The judge also said a clerk assigned to handle Civil Cases in her court is the husband of a MORE department head.

Last Monday, the case was raffled off anew and RTC Branch 29 Judge Gloria Madero became the 4^th lottery winner of this electrifying case.

In March last year, the expropriation case was filed by MORE in consonance with the eminent domain provision of its franchise granted by Congress and signed by the President. The case originally fell to Judge Marie Yvette Go who granted the application in an order dated Aug. 14, 2019.

In brief, Judge Go said, “This Court finds the Complaint for Expropriation sufficient in form and substance. In expropriation cases, the sufficiency in form and substance of the complaint (is) to be determined by mere examination of the allegations of the complaint. It finds too that the deposit (in the amount of P481,842,450) made by the plaintiff is equivalent to the assessed value of the properties subject of the expropriation,” according to the order.

But even before Judge Go can issue this order, Peco was able to secure a decision from a Regional Trial Court in Mandaluyong which, in a July 2019 Order, declared the eminent domain proviso of the MORE franchise to be unconstitutional. This decision, however, has been struck down by the Court of Appeals citing the Electric Power Industry Reform Act (EPIRA) as the fundamental law that enables the grant of eminent domain power in a franchise. The case is now under consideration by the Supreme Court.

This could be the reason why, right after issuing the ruling, Judge Go inhibited herself from the case.

The case was raffled off and it fell into Judge Daniel AG Amular’s hands who initially voiced the opinion that the case should be better tried outside Iloilo. Later, he expressed that thought that the case should rather wait for the Supreme Court decision on the matter of the constitutionality of the eminent domain proviso. Amular’s hemming and hawing and his publicized views which are apparently aligned with that of Peco’s prompted MORE to file an administrative case against Amular.

Last January 15, Amular inhibited himself from the case saying, “Notwithstanding that the Presiding Judge performs his duties in accordance with the conscientious dictate of his conscience and the applicable provisions of law, it has come to a point that whatever judgment the Presiding Judge would render in the case would not be accepted by either the plaintiff or the defendant or maybe tainted with bias.” Amular also blamed the glare of public attention on the case and described it as “too politicized.”

Amular’s argument is silly. Given the adversarial nature of this case (or most other court cases for that matter), it is to be expected that, in his own words, “whatever judgment the Presiding Judge would render in the case would not be accepted by either the plaintiff or the defendant or maybe tainted with bias.” Duh. Whatever. It is well and good that he has finally inhibited himself after 5 months of indecision.

Now, it is interesting to know what Judge Madero will do. Offhand, Judge Madero is an experienced judge and is well-known to be a tough judge who will not be easily cowed.  She is nearing retirement, however. Who knows what’s on her mind these days?

But this game of passing the hot potato in the RTC cannot continue – must not be allowed to continue interminably. The interest of the long-suffering Ilonggo power consumer is at stake here. Public interest must be served immediately.

The case for Writ of Possession on the basis of the grant of eminent power is simple enough. Judge Go has already ruled the application to be sufficient in form and substance. What is lacking is an Order for Execution so that the WOP can be fully effected. The issue of Just Compensation is concomitant but it can follow or can be adjudged after possession is granted.

As to the issue of constitutionality, the Supreme Court has already ruled in relation to this case that the decision of the Mandaluyong Court now pending final resolution before it, cannot be used or cited in reference to the WOP case. Clearly, the SC has taken cognizance of the legitimacy of MORE Power’s franchise and the urgency of its taking over Peco’s facilities in order to fulfill the mandate vested upon it by both the Executive and Legislative branches of government.

Peco’s death as a power distributor came last year when its franchise expired in January 2019. It continues to operate only at the mercy of the Department of Energy and the Energy Regulatory Commission – which gave a temporary Certificate of Public Convenience and Necessity, so that a seamless transition from Peco to MORE can be put into effect.