‘DECEPTIVE’: MORE Power hits rival PECO on SC case; says CA ruling confirmed power of eminent domain, status as new DU for city

By: Francis Allan L. Angelo and Emme Rose Santiagudo

ILOILO CITY’S new distribution utility, More Electric and Power Corp. (MORE), insisted yesterday that a Court of Appeals (CA) ruling that confirmed its power of eminent domain under the law restructuring the country’s electricity power industry remains valid.

In a statement, MORE said it can still exercise the power of eminent via the Electric Power Industry Reform Act (Epira) despite a case being heard by the Supreme Court to determine if a Mandaluyong court’s ruling against the company’s power of expropriation as a congressional franchise-holder is constitutional or not.

In legal parlance, eminent domain is the power of government to take private property for “public use” so long as the government pays “just compensation.” The government can exercise its power of eminent domain even if the owner does not wish to sell his or her property.

This power is usually exercised through expropriation.

The ruling of the CA’s 18th Division issued on October 3, 2019 junked the petition of PECO to suspend or stop the expropriation case filed by MORE Power in an attempt to take over PECO’s assets.

The appellate court reiterated that it has no jurisdiction to restrain and/or enjoin the expropriation case.

The CA’s 18th Division also justified MORE Power’s legislative franchise under RA 11212, emphasizing that the franchise including the power of eminent domain is pursuant to the EPIRA Law or RA 9136.

“Considering that the passage of RA 11212 was done to carry out the 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 the WOP (writ of possession), were meant to carry out the EPIRA,” the ruling read.

MORE said that its rival firm, Panay Electric Co. (PECO), also deceived the public in its recent statement that the Supreme Court threatened MORE and the Iloilo City Regional Trial Court (RTC) with contempt in relation to Judge Yvette Go’s decision allowing the expropriation case against PECO to proceed.

PECO failed to renew its franchise which expired in January 2019 while MORE secured a congressional franchise via Republic Act 11212 which was signed by President Rodrigo Duterte on Feb 14, 2019.

MORE said the Supreme Court has yet to grant PECO’s petition to stop the Iloilo City RTC from proceeding with the expropriation case as it only directed the new distributor and the Iloilo City RTC to comment on PECO’s petition.

“To set the records straight, contrary to the claims of PECO that MORE and Judge Yvette Go of Iloilo were directed to show cause why they should not be declared in contempt of court, MORE and Judge Yvette Go were merely required to COMMENT on PECO’s urgent motion for issuance of show cause order,” MORE said.

The Razon-led firm also pointed out that “there is an ocean of difference between a court issuing a show cause order vis-à-vis a court issuing an order requiring a party to comment on the motion to issue show cause order.”

“Once again, it would appear that PECO mistakenly presumed that its motion was granted when the SC acted on its motion by requiring MORE and Judge Go to file their comments on the motion,” MORE added.

 

WRONG PRESUMPTION

The new Iloilo distribution utility added PECO was also wrong in claiming that the CA did not rule on anything because PECO had already filed a motion for withdrawal of its petition to stop the Iloilo City RTC expropriation case because the rules of court required formal action by the court on such a motion for withdrawal.

“Quite the contrary, it is elementary that a motion is not deemed to have already been acted upon by its mere filing. The petition not being withdrawn, the CA Resolution stands,” MORE said.

The CA’s October 3 ruling affirmed that the Supreme Court has exclusive jurisdiction over cases involving DUs under Republic Act No. 9136 or the Electricity Power Industry Reform Act (EPIRA).

As long as the SC has not issued any injunction against the expropriation proceedings, it can proceed, according to the CA’s decision penned by 18th Division Associate Justice Alfredo Ampuan.

More importantly, MORE said, the CA also affirmed the status of MORE as the new franchise holder under Republic Act No. 11212 and the power of eminent domain for utilities under EPIRA.

Since the issue pending before the Supreme Court is the validity of the Mandaluyong Regional Trial Court’s decision declaring as unconstitutional Sections 10 and 17 of RA 11212, “the CA ruling was significant as it affirmed that MORE, as a distribution utility (DU) granted a franchise by Congress under the same law has the power of eminent domain granted all DUs under RA 9136 or Epira law,” MORE stressed.

“Thus, far from being moot, the CA Resolution definitively ruled on the justiciable question of whether the expropriation case can proceed while the issue of constitutionality is pending. The answer is in the affirmative,” it pointed out.

Sec. 10 of RA 11212 authorizes MORE Power to exercise the power of eminent domain in so far as it may be reasonable and necessary for the efficient establishment, improvement, upgrading, rehabilitation, maintenance and operation.

Sec. 17 allows PECO to operate the existing distribution system within the franchise area until MORE Power establishes its own distribution system which shall not exceed two years from the grant of the franchise.

MORE said PECO cannot deny that it has been denied its franchise which Congress decided to give to MORE.

“PECO’s application for the renewal of its franchise has been resoundingly denied. No amount of argument can change these facts,” MORE stressed.

PECO is now only operating under a provisional Certificate of Public Convenience and Necessity (CPCN) which RA 11212 stated would expire when the transition to MORE’s takeover of Iloilo City’s electricity distribution system has been completed.

“MORE is confident that the truth will always prevail. Issuing deceptive statements to influence the perception of the public is an exercise in futility as this will not and cannot alter the established facts on record,” the company stated.

 

MOOT AND ACADEMIC

Earlier, PECO said the CA’s denial of its petition against rival firm MORE is already moot and academic since the case is already with the SC.

In a statement, PECO said that they already filed with the CA on Sept 24, 2019 a motion to withdraw its petition due to the fact that the case was already with the Supreme Court at that time.

“The CA cannot deny a petition that has already been withdrawn,” PECO said in the statement.

PECO also reiterated the decision of the Mandaluyong Regional Trial Court (RTC) Branch 209 declaring Sections 10 and 17 of RA No. 11212 (MORE Power’s congressional franchise) “void and unconstitutional for infringing on PECO’s rights to due process and equal protection of the law”.

“The Mandaluyong RTC already issued a decision on July 11, 2019 declaring as void and unconstitutional Sections 10 and 17 of RA 11212 ‘for infringing PECO”s rights to due process and equal protection of the law’ and ordering a permanent halting of the expropriation proceedings,” it added.