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Last
week an organization that claims a membership of 89
similarly predisposed groups filed a class-action suit
against the Manila Electric Co. (Meralco) and the Energy
Regulatory Commission (ERC). Visible among the
organization’s movers is a competent and highly
respected lawyer who I have had, on one occasion, the
privilege to meet and interact with.
Leonardo
de Vera has been on the good side of the fight against
injustices and has been an advocate of well-meaning
causes, many, if not all, of which I support. He is not
cowed by leviathan powers and his skill at drawing
support comes not so much from his charms and powers of
articulation, but from the substance of his advocacies.
To
advocate a cause, one must stand firmly on one side of a
line differentiating ideological positions. This is
necessary when institutions blur against ever-changing
gusts that constantly change direction as issues become
more complex and vague.
Unfortunately, there is one aspect of advocacies that
remains certain. By drawing lines, diverse protagonists
are created and fair play cannot be guaranteed.
Unfairness, even underhandedness, turns into potent
arsenals inflicted upon facts and truth.
I am
certain that de Vera has had his share of dirty tricks
thrown his way—all par for the course where politicians
stand on the opposite of lines drawn. I am also certain
the same has been inflicted on those now subjects of
constant innuendo and falsehoods.
The
class-action suit filed by the Refund Energy Fees
Unjustly Debited Movement (Refund) includes the
Volunteers Against Crime and Corruption and, reportedly,
the National Association of Electricity Consumers for
Reforms (Nasecore).
While
Nasecore is well-equipped and knows what it is doing,
all demand a quick response against what they claim are
“unjustly imposed and oppressively collected electric
rates” guised under the whole spectrum from universal
charges spawned from generation fees, to purchase power
adjustments, to transmission charges, and, eventually,
to system losses and distribution metering charges.
From
that alone we see the chemistry of costs emanates from
different sources in the electricity industry and is
merely collected at the distribution end.
For some
within Refund, intervention running from policy creation
to its implementation has been constant. At the policy
levels, electric cooperatives have substantial
representation through a party-list that installed two
lawmakers, one of whom is a member of the Joint
Congressional Power Commission.
Nasecor,
on the other hand, is a veteran of quasijudicial
hearings. In the case of its encounters at the ERC,
Nasecore has constantly prosecuted its advocacies, and,
with the Freedom from Debt Coalition (FDC), even once
won a landmark case.
Now,
curiously, without the support of the FDC, filing its
case before the Makati Regional Trial Court (RTC),
Refund is asking the RTC to intervene in a profoundly
technical issue. Never mind that it is a matter covered
by Chapter IV, Section 38 of the Electric Power Industry
Reform Act (Epira), where subsection (u) specifically
states that “[t]he ERC shall have the original and
EXCLUSIVE jurisdiction over all cases contesting rates,
fees, fines and penalties imposed by the ERC in the
exercise of [its] powers, functions and responsibilities
over ALL CASES involving disputes between and among
participants or players in the energy sector.”
(Capitalization supplied)
Set
against the filing at the Makati RTC of a complaint
against various market players, Section 41 further
reinforces by specifically empowering that, “The ERC
shall handle consumer complaints and ensure the adequate
promotion of consumer interests.”
Refund
is demanding that the court order Meralco to return P13
billion. The demand includes the “opening of the
corporate books of Meralco and Napocor [National Power
Corp.], [the] compel[ling of] the ERC and Napocor to
provide copies of all documents related to power-rate
increases, as well as costs of electricity SOLD TO
Meralco and [the] conduct[ing of] audit and accounting
procedures on all charges being billed by Meralco to all
its subscribers.” (Capitalization supplied)
The
charge includes the gamut of contractual counterparties,
but only Meralco is asked to refund the amount.
Refund
is also asking the Makati RTC for a “temporary
restraining order [TRO]” on system-loss charges. Never
mind that this is allowed at 9.5 percent where the
parameter is a performance standard in the ambit of the
ERC under Epira’s Chapter IV, Section 43-b.(i). This
details the scope of the ERC and is sustained by Section
43-f and f(iii) that specifically empower the ERC to set
system losses within pricing methodology. By asking the
ERC for an issuance ending the collection for system
losses and a speedy refund, we might as well be asking
the ERC to amend the law.
Refund,
likewise, asks the Makati court for a TRO on the
government’s imposition of the value-added tax (VAT)—a
matter correctly charged upon the finance department
more than Meralco, as the latter might also question the
imposition.
Finally,
Refund wants to stop the collection of meter deposits
and the inclusion within operating expenses of employee
pensions, a practice normal to corporations and
government-owned or -controlled corporations. Never mind
that Section 43-f (iii) allows the ERC to determine the
eligible costs that comprise tariffs.
The
applicable statutes are matters of fact and need no
commentary on its merits. However, by raising charges
before the Makati RTC rather than the ERC, they compel a
critical response. After all, the ERC is the exclusive
and proper venue for such matters.
Against
the ERC, Refund charges the quasi-judicial regulator,
together with Napocor and Meralco, for “collusion and
indispensable cooperation” in the pricing, assessment
and collection of electric bills, including system
losses. It is perhaps this charge that underlies filing
in a second forum other than the statutorily mandated
courthouse of the ERC.
Unfortunately, to include the ERC in the class suit is
to charge it with criminal collusion. This is a serious
accusation directed at the industry’s justice system.
Collusion must be shown on a prima facie basis, or else
we risk wholesale witch-hunting, fishing expeditions and
attacking the institution and integrity of those in the
ERC who remain undeniably reputable. |
