Anakpawis Petition For Certiorari, Prohibition and Mandamus

Republic of the Philippines SUPREME COURT Manila REP. FERNANDO L.
HICAP, in his personal capacity and as representative of Anakpawis Partylist and Pambansang Lakas ng mga Mamalakaya ng Pilipinas, RAFAEL V. MARIANO, in his personal capacity and as representative of Kilusang Magbubukid Ng Pilipinas, ELMER C. LABOG, in his personal capacity and as representative of Kilusang Mayo Uno, and GLORIA G. ARELLANO in her personal capacity and as representative of Kalipunan ng Damayang Mahihirap, Petitioners, - versus G.R. NO. ______________ FOR: CERTIORARI, PROHIBITION, AND MANDAMUS
THE ENERGY REGULATORY COMMISSION, and THE MANILA ELECTRIC COMPANY (MERALCO) AND THE OFFICE OF THE EXECUTIVE SECRETARY, Respondents. x------------------------x
PETITION
PETITIONERS, by counsel, unto this Honorable Court most respectfully aver that:
PETITION FOR CERTIORARI, PROHIBITION AND MANDAMUS Page 2 of 48 ---------------------------
PREFATORY STATEMENT 1. JUSTICIA NEMINI NEGANDA EST - Justice is to be denied to none. 2. Petitioners opt to begin this pleading with this legal axiom because the Energy Regulatory Commission (ERC for brevity) decision that wantonly favors MERALCOs power rate hikes is a colossal injustice and abandonment of its mandate to protect the public, specifically, the electricity consumers from manipulated power rate increases. The legal aphorism is therefore apt and fitting especially since the Filipino people and the nation as a whole are still reeling from different calamities, highlighted no less by consecutive catastrophes as earthquake and super typhoon Yolanda; 3. Moreover, the daily realities, not to mention the controversy surrounding the pork barrel scam, should have already increased the knowledge and sensibility of the respondent ERC about the present plight of the vast majority of Filipinos. Just to name a few of their social and economic vicissitudes, they have to contend against unemployment, low wages, high prices of basic commodities and periodic increases of the prices of petroleum, in eking out a daily living. These alone already constitute an act injustice to them, even an act of systematic violence; 4. This systematic injustice is even aggravated by the fact that the government, which is supposedly sworn to protect their interests, does not have a sense of proportion in dealing with the poverty situation of the country. In times of economic crunch, such as the present times, it is the poor majority who are told by the government to make the sacrifice ostensibly to keep the economy afloat. Needless to say, they are making that ultimate sacrifice many times over even without the imploring of government; 5. In making these sacrifices daily, they are ranged against huge private monopolist entities. The equation in this situation is far from equal. In fact, with the monopoly nature of these private entities, the situation is one in which the private monopolist entities hold the poor majority in captivity. At the slightest market threats to their profits, these monopolist entities increase their prices and the majority helplessly pays. When they want to expand, they make the poor majority shoulder the cost of their expansion. In a word, it is the sacrifices of the poor majority which preserve the existence and the profits of these monopolist entities;
6. One of such entities is private respondent Manila Electric Company (Meralco), a private corporation that monopolizes the business of distributing electric power in Metro Manila and the immediate environs, affecting millions belonging to the poor majority. The unequal relations between Meralco and its consumers of poor majority can be seen in the fact that Meralco has for years been collecting one of the highest electric power rates in Asia. Without fear of contradiction, it can be stated that it operates its services holding the poor majority in captivity. Its disconnection notice to poor consumers who fail to pay their account in time speaks eloquently of the state of captivity of the poor majority, to wit: Otherwise, we will be constrained, much to our regret, to disconnect your electric service without any further notice. Forget the regrets. When Meralco disconnects as unerringly as it does, the poor majority neither even have a tribunal nor a forum for seeking succor to their helplessness; 7. Relative to the herein subject matter of petition, petitioners, along with likeminded groups, individuals, and the entire Filipino people, have fervently opposed and are continuously opposing the unjust big-time power rate hike brazenly approved recently by the ERC which excessively favored in the process the Meralco, the countrys biggest power distributor, by way of a staggering P4.15 per kilowatthour (kWh) increase effective beginning this December 2013; 8. Under the pain of being redundant, it is a must to state that this power rate hike is unreasonable and unaffordable for consumers especially at this time when the entire country is still reeling from the damaging effects of super typhoon Yolanda and other calamities. More importantly, it was issued with grave abuse of discretion amounting to lack or excess of jurisdiction; 9. Moreover, the issue of power rate increase has been subject of various controversies as it affects millions of Filipinos. Thanks but no thanks to the ERC that always grants the Meralco and other power distributors petitions to make adjustment to generation and system loss charges, at times, even without the benefit of a public hearing. There is therefore a need to nullify the issuance of the ERC as clearly it was issued without authority; 10. In the same vein, there is a need to examine the provisions of Republic Act 9136 of the Electric Power Industry Reform Act of 2001 as they are contrary to the provision of the 1987 Constitution not to mention that the said law is the very source of the high power rates imposed by power distributors like Meralco to its customers or the so-called captive
market and electricity end-users by RA 9136; 11. It is thus on this respect, that the petitioners are filing this petitition - to declare the the Decision/Order/Resolution of the ERC granting the request of Meralco to increase the power rate by increasing the generation charge cost null and void for having been issued with grave abuse of discretion; to permanently prohibit Meralco from collecting the adjusted/increased generation cost; to nulliy the Automatic Adjustment of Generation Rate and System Loss Rates by Distribution Utilities (Agra Rules); and to declare provisions of Republic Act 9136 unconstitutional. NATURE OF THE PETITION 12. This is an original action for CERTIORARI, PROHIBITION, and MANDAMUS under Rule 65 of the Rules of Court, seeking: 12.1. To ANNUL and SET ASIDE the Decision/Order/Resolution of the Energy Regulatory Commission (ERC) dated 09 December 2013 granting the request of private respondent Meralco to implement a generation charge of PhP 7.67/kWh in its December 2013 billing and add to its calculated generation charge for February 2014 billing the generation rate of PhP 1.00/kWh. The challenged Decision/Order/Resolution also provides that the balance on the deferred generation amount without any carrying cost shall be included in Meralcos generation charge for March 2014. Copy of the Decision/Order/Resolution of ERC is hereto atatched and marked as ANNEX A; 12.2. To DECLARE as unconstitutional section 6, section 29, section 34, section 43 (b) (ii) and section 43 (f) of Republic Act 9136 or the Electric Power Reform Act of 2001. 12.3. To PROHIBIT Meralco from collecting a generation charge of PhP 7.67/kWh in its December 2013 billing; 12.4. To PROHIBIT Meralco from adding to its calculated generation charge for February 2014 billing the generation rate of PhP 1.00/kWh. 12.5. To PROHIBIT Meralco from collecting the balance on the deferred generation amount for March 2014. 12.6. To COMPEL Meralco to refund the customers for the illegally imposed and collected increases;
12.7. To PROHIBIT the Executive Department and the ERC from enforcing sections 6, 29, 34 and 43 (b) (ii), and 43 (f) of RA 9136. 13. After hearing the merits of the case, petitioners pray to permanently prohibit and enjoin the respondents from implementing the challenged ERC Decision/Oder/Resolution that authorized the collection of Meralco of a generation charge of PhP 7.67/kWh in its December 2013 billing; add to its calculated generation charge for February 2014 billing the generation rate of PhP 1.00/kWh; and to collect the balance on the deferred generation amount without any carrying cost shall be included in its generation charge for March 2014; 14. Petitioners availed of this remedy because the ERC committed grave abuse of discretion amounting to lack or excess of jurisdiction in approving the requested request for increase in power rate by Meralco. Moreover, the ERC has issued the AGRA Rules with grave abuse of discretion amounting to lack or excess of jurisdiction. Furthermore, RA 9136 or its sections 6, 29, 34, and 43 (b) (ii) and (f), are the cause of the high electricity rates in the country. The law or the said sections of the also contravene the Constitution. Thus, they should be struck down; 15. Under the circumstances obtaining, petitioners have no plain, speedy, and adequate remedy in the ordinary course of law, which will promptly relieve them and the public from the injurious effects of the acts of the public and private respondents and the unconstitutional provisions of RA 9136. THE PARTIES The petitioners: 16. Petitioner FERNANDO Ka Pando L. HICAP, is of legal age, Filipino, married, and with office address at South Wing 608, House of Representatives, Batasan Hills, Quezon City. He is presently a member of the House of Representatives representing Anakpawis Partylist and the Chairperson of Pambansang Lakas ng mga Mamalakaya ng Pilipinas (Pamalakaya). He is filing this petition in his personal capacity and as representative of Anakpawis Partylist and Pamalakaya whose members are adversely affected by the challenged ERC Decision/Order/Resolution;
17. Petitioner RAFAEL V. MARIANO is of legal age, Filipino, married and with office address at Anakpawis Partylist, No. 2-J, Alley 23, Road 1, Project 6, Quezon City. He is filing this petition in his personal capacity and as the Chairperson and representative of Kilusang Magbubukid ng Pilipinas (KMP) and President of Anakpawis Partylist whose members are adversely affected by the challenged ERC Decision/Order/Resolution; 18. Petitioner ELMER C. LABOG is of legal age, Filipino, married and with office address at 63 Narra Street, Project 3, Quezon City. He is filing this petition in his personal capacity and as the Chairperson and representative of Kilusang Mayo Uno (KMU) whose members are adversely affected by the challenged ERC Decision/Order/Resolution; 19. Petitioner GLORIA G. ARELLANO is of legal age, Filipino, married, and with office address at 12-A Kasiyahan Street, Don Antonio Heights, Barangay Holy Spirit, Quezon City. She is filing this petition in his personal capacity and as the Chairperson and representative of Kalipunan ng Damayang Mahihirap (Kadamay) whose members are adversely affected by the challenged ERC Decision/Order/Resolution. The respondents: 20. The Public respondent ENERGY REGULATORY COMMISSION or ERC for brevity is an independent, quasi-judicial regulatory body created under Republic Act No. 9136 otherwise known as Electric Power Industry Reform Act of 2001 with office address at Pacific Center Bldg., San Miguel Avenue, Pasig City. It is impleaded herein as the Commission that unjustifiably, unabashedly, wantonly and shamelessly granted through its Decision/Order/Resolution dated 09 December 2013, the staggering power rate increase sought by the private respondent Meralco; 21. Private respondent MANILA ELECTRIC COMPANY or Meralco for brevity is a giant public utility and a monopoly corporation duly organized and existing under the laws of the Republic of the Philippines and authorized operator of electric light, heat and power system in the City of Manila and in several other cities and municipalities of Luzon with office address at Lopez Bldg., Meralco Ave., Pasig City. It is impleaded herein as the corporation and public utility that sought the unjustified increases and stands to solely benefit thereto:
22. The Office of the Executive Secretary is impleaded herein as party respondent being the office of the Executive Department in charge with the execution or implementation of the unconstitutional provisions of RA 9136. PETITIONERS STANDING 23. Petitioners have the legal standing to bring the present action in the light of the liberalized policy of this Honorable Court on locus standi. As stated in the case of Chavez vs. PCGG, 299 SCRA 744, to wit:
ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are of paramount public interest; and if they immeasurably affect the social, economic, and moral well-being of the people.;
24. Petitioners are concerned Filipino citizens, taxpayers, and customers of private respondent Meralco. They are bringing this action in their individual capacities and as representatives of their respective organizations whose membership comprise the farmers, workers, fisherfolks and urban poor who are also end-users and customers of private respondent Meralco; 25. Petitioners, moreover, have standing to sue because what is involved in this action are acts of the agency/instrumentality of the government and of a public utility, which is beyond doubt an issue of public interest and transcendental importance. Thus, pursuant to the doctrinal ruling of the Honorable Court in Chavez vs. PCGG, supra; Avelino vs. Cuenco, 83 Phil. 17; Basco vs. PAGCOR, 197 SCRA 52; Kapatiran ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 163 SCRA 371, the petitioners have legal standing to bring this action; 26. Further, petitioners have legal standing to bring this suit in their own behalf as Filipino citizen, taxpayer, and customers of private respondent, and in representation of the members of their respective organizations and the public in general as they will be directly and adversely affected by the acts of herein respondents; 27. Finally, petitioners submit that they have complied with the requisites for judicial review as there is an actual case or controversy calling for the exercise of judicial power and the question of
constitutionality in this petition is raised at the earliest opportunity and the very lis mota of the case. MATERIAL ANTECEDENTS AND FACTS OF THE CASE 28. On 08 June 2001, Republic Act 9136 entitled Electric Power Industry Reform Act or EPIRA was signed into law and become effective fifteen (15) days from its publication in two (2) newspapers of general ciruclation; 29. RA 9136 created the Energy Regulatory Commission. It is a regulatory and quasi-judicial body tasked among others, to enforce the implementing rules and regulations of this RA 91361. According to the law, the ERC is to establish and enforce a methodology for setting transmission and distribution wheeling rates and retail rates for the captive market of a distribution utility2. It also provides that ERC has the power to determine, fix, and approve, after due notice and public hearings the universal charge, to be imposed on all electricity end-users3; to determine return on rate base (RORB) and the cap on the recoverable rate of system loss; and take any other action delegated to it. The particular provisions alluded to are hereto reproduced, to wit:
Section 43. Functions of the ERC. - The ERC shall promote competition, encourage market development, ensure customer choice and discourage/penalize abuse of market power in the restructured electricity industry. Towards this end, it shall be responsible for the following key functions in the restructured industry: (a) Enforce the implementing rules and regulations of this Act; (b) Within six (6) months from the effectivity of this Act, promulgate and enforce, in accordance with law, a National Grid Code and a Distribution Code which shall include, but not limited to, the following: (i) Performance standards for TRANSCO O & M Concessionaire, distribution utilities and suppliers: Provided, That in the establishment of the performance standards, the nature and function of the entities shall be considered; and
1 2 3
Section 43 (a), RA 9136 Section 43 (f), ibid Section 43 (b) (ii), last paragraph, ibid
(ii) In consultation with the DOE and DOF, financial capability standards for the generating companies, the TRANSCO, distribution utilities and suppliers: Provided, That in the formulation of the financial capability standards, the nature and function of the entity shall be considered: Provided, further, That such standards are set to ensure that the electric power industry participants meet the minimum financial standards to protect the public interest. Determine, fix, and approve, after due notice and public hearings the universal charge, to be imposed on all electricity end-users pursuant to Sections 34 hereof; (f) In the public interest, establish and enforce a methodology for setting transmission and distribution wheeling rates and retail rates for the captive market of a distribution utility, taking into account all relevant considerations, including the efficiency or inefficiency of the regulated entities. The rates must be such as to allow the recovery of just and reasonable costs and a reasonable return on rate base (RORB) to enable the entity to operate viably. The rate-setting methodology so adopted and applied must ensure a reasonable price of electricity. The rates prescribed shall be non-discriminatory. To achieve this objective and to ensure the complete removal of cross subsidies, the cap on the recoverable rate of system losses prescribed in Section 10 of Republic Act No. 7832, is hereby amended and shall be replaced by caps which shall be determined by the ERC based on load density, sales mix, cost of service, delivery voltage and other technical considerations it may promulgate. The ERC shall determine such form of rate-setting methodology, which shall promote efficiency. In case the rate setting methodology used is RORB, it shall be subject to the following guidelines: (iii) In determining eligible cost of services that will be passed on to the end-users, the ERC shall establish minimum efficiency performance standards for TRANSCO and distribution utilities including systems losses, interruption frequency rates, and collection efficiency; (m) Take any other action delegated to it pursuant to this Act; (Underlining and emphasis supplied)
30. RA 9136 also provides, among others, for the following provisions:
Section 6. Generation Sector. - Generation of electric power shall be competitive and open. Upon the effectivity of this Act, any new generation company shall, before it operates, secure from the Energy Regulatory Commission a certificate of compliance pursuant to the standards set forth in this Act, as well as health, safety and environmental clearances from the appropriate government agencies under existing laws. Any law to the contrary notwithstanding, power generation shall not be considered a public utility operation. For this purpose, any person or entity engaged or which shall engage in power generation and supply of electricity shall not be required to secure a local or national franchise. Upon implementation of retail competition and open access, the prices charged by a generation company for supply of electricity shall not be subject to regulation by the ERC except as otherwise provided in this Act. Pursuant to the objective of lowering electricity rates to end-users, sales of generated power by generation companies shall be value added tax zero-rated. The ERC shall, in determining the existence of market power abuse or anti-competitive behavior, require from generation companies the submission of their individual pricing formulas as well as their financial statements. Section 29. Supply Sector. - The supply of electricity to the contestable market shall require a license from the ERC, except for distribution utilities and electric cooperatives with respect to their existing franchise areas. For this purpose, the ERC shall promulgate rules and regulations prescribing the qualifications of electricity suppliers which shall include, among other requirements, a demonstration of their technical capability, financial capability, and creditworthiness: Provided, That the ERC shall have authority to require electricity suppliers to furnish a bond or other evidence of the ability of a supplier to withstand market disturbances or other events that may increase the cost of providing service. Any law to the contrary notwithstanding, supply of electricity to the contestable market shall not be considered a public utility operation. For this purpose, any person or entity
which shall engage in the supply of electricity to the contestable market shall not be required to secure a local or national franchise. The prices to be charged by suppliers for the supply of electricity to the contestable market shall not be subject to regulation by the ERC. Electricity suppliers shall be subject to the rules and regulations concerning abuse of market power, cartelization, and other anti-competitive or discriminatory behavior to be promulgated by the ERC. In its billings to end-users, every supplier shall identify and segregate the components of its supply charge, as defined herein. Section 33. Distribution Utilities Stranded Contract Costs Recovery. - Stranded contract costs of distribution utilities shall refer to the excess of the contracted cost of electricity under eligible contracts of such utilities over the actual selling price of such contracts in the market. Such contracts shall have been accredited by the DOE or NPC and approved by the ERB as of the effectivity of this Act. Within one (1) year from the start of open access, any distribution utility that intends to seek recovery of stranded contract costs shall file notice of such intent with the ERC together with an estimate of such obligations, including the present value thereof and such other supporting data as may be required by the ERC. Any distribution utility that does not file within the date specified shall not be eligible for such recovery. Any distribution utility which opts to recover stranded cost shall have a duty to mitigate its potential stranded contract costs by making reasonable best efforts to: (a) reduce the costs of its existing contracts with IPPs; and (b) submit to an annual earnings review by the ERC and use its earnings above its authorized rate of return to reduce the book value of contracts until the end of the stranded cost recovery period. Other mitigating measures which are reasonably known and generally accepted within the electric power industry shall be utilized. The ERC shall not require the distribution utility to take a
loss to reduce stranded contract costs or divest assets, unless the divestiture is imposed as a penalty as provided herein. The relevant distribution utility shall submit to the ERC quarterly reports showing the amount of stranded costs recovered and the balance remaining to be recovered. The ERC shall verify the reasonable amounts and determine the manner and duration for the full recovery of stranded contract costs as defined herein: Provided, That the duration for such recovery shall not be shorter than fifteen (15) years nor longer than twenty-five (25) years. The ERC shall, at the end of the first year of the implementation of stranded cost recovery and every year thereafter, conduct a review to determine whether there is under-recovery or over recovery and adjust (true-up) the level of stranded cost recovery charge accordingly. Section 34. Universal Charge. - Within one (1) year from the effectivity of this Act, a universal charge to be determined, fixed and approved by the ERC, shall be imposed on all electricity end-users for the following purposes: (a) Payment for the stranded debts and stranded contract costs of NPC and qualified distribution utilities resulting from the restructuring of the industry; (b) Missionary electrification; (c) The equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis--vis imported energy fuels; (d) An environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (P0.0025/kWh), which shall accrue to an environmental fund to be used solely for watershed rehabilitation and management. Said fund shall be managed by NPC under existing arrangements; and (e) A charge to account for all forms of cross-subsidies for a period not exceeding three (3) years. The universal charge shall be a non-bypassable charge which shall be passed on and collected from all end-users on a monthly basis by the distribution utilities. Collections by the distribution utilities and the TRANSCO in any given month shall be remitted to the PSALM Corp. on or before the fifteenth (15th) of the succeeding month, net of any amount due to the distribution utility. Any end-user or self-generating entity not connected to a
distribution utility shall remit its corresponding universal charge directly to the TRANSCO. The PSALM Corp., as administrator of the fund, shall create a Special Trust Fund which shall be disbursed only for the purposes specified herein in an open and transparent manner. All amounts collected for the universal charge shall be distributed to the respective beneficiaries within a reasonable period to be provided by the ERC. (Underlining and emphasis supplied)
31. On 27 February 2002, the Implementing Rules and Regulations of Republic Act No. 9136 was approved; 32. Through the passage of the Electric Power Industry Reform Act (EPIRA) in 2001, the national government relinquished total control over the power industry and energy development, from generation, transmission, distribution, and supply to profit-oriented private businesses. The role of the government - through the ERC and the Departmern of Energy (DOE) - was merely limited to the approval of power rate adjustment of a distribution utility like the Meralco; 33. And on 13 October 2004, the ERC issued the Automatic Adjustment of Generation Rate and System Loss Rates by Distribution Utilities (AGRA Rules); 34. Throughout the years, the government's energy policies, liberalized, deregulated, and privatized the entire electric power industry and effectively removed the ownership, management, and control of the State in the power industry; 35. According to Ibon Foundation, only five companies control 80% of power capacity in the country: Cojuangco/San Migues Corporation (22%), Aboitiz (20%), Lopez (18%), Ty (12%) and Consunji (8%). These same firms own the plants with allegedly coordinated forced outages including Ilijan (Cojuangco/SMC), San Lorenzo (Lopez) and Calaca (Consunji); the other two plants are GN Power (Ayala) and Masinloc (AES). STATEMENT OF THE CASE 36. In a Letter dated December 5, 2013, respondent Meralco informed public respondent ERC that the total cost of generation to be passed on to its almost 5 million captive customers amounted to P22.64 Billion, equivalent to a generation charge for December 2013 billing of
P9.1070 per kwh. This will result to an increase of P4.15 per kWh for residential customers. Copy of the letter is hereto attached and marked as ANNEX B; 37. In the same Letter, MERALCO claimed that the abrupt increase in the generation cost was the supposed maintenance shutdown of the Malampaya facility that supplies natural gas to three (3) major power plants Ilijan, San Lorenzo and Sta Rita which supply an aggregate capacity of 2700 MW electricity to its franchise area. It also said that the shutdown of Malampaya coincided with the scheduled maintenance of two (2) other plants, Pagbilao 2 and Sual 1, which also collectively contribute over 950 MW to its requirements; 38. To supposedly mitigate the effects of this unprecedented increase in the generation cost, Meralco proposed to ERC a staggered rate hike to be distributed in the months of December 2013 and February 2014. However, since deferring the second tranche to February 2014 would result to incurring a carrying cost, Meralco further proposed that it be allowed to recover the carrying cost attendant to the deferral; 39. Meralco then requested clearance from the ERC to: (i) Collect a generation charge of P7.90 per kwh in its December 2013 billings to its customers; and (ii) Defer to February 2014 the recovery of Php 3 Billion, representing a portion of the generation costs for the supply month of November 2013 not passed on to customers in December 2013, subject to inclusion of the appropriate carrying charge; 40. On 09 December 2013, the ERC, despite the strong public opinion of various sectors and stakeholders opposing the power rate hike, in a closed door meeting, unabashedly approved Meralco's proposal to implement the power rate increase in its franchise areas in three installments; 41. The ERC Decision/Order/Resolution was stated in a letter to Meralco dated 9 December 2013 which provides, among others, to wit:
Accordingly, MERALCO is authorized to implement a generation charge of PhP 7.67/kWh in its December 2013 billing and add to its calculated generation charge for February 2014 billing the generation rate of PhP 1.00/kWh. The balance on the deferred generation amount without any carrying cost shall be included in MERALCOs generation charge for March 2014. Should MERALCO seek to recover its carrying costs on the entire deferred amount, it shall file a formal application for this.
The foregoing should not in any way be construed as a confirmation of MERALCOs generation costs incurred in November 2013, which shall remain subject of the confirmation and post-verification proceedings in accordance with the applicable ERC resolution on the matter.
42. Consequently, the ERC had authorized Meralco to collect the P4.15 per kWh increase in power rates, including a P3.44/kWh increase in generation charge in the following installments: December (P2.41/kWh), February (P1/kWh), and March (P0.44/kWh). The said increases will be reflected on the billings of Meralco customers starting December 2013; 43. The increase will affect Meralcos more than 5 million customers in 33 cities and 78 municipalities; 44. In a hearing at the Committee on Energy at the House of Representatives on December 10, 2013, Meralco justified the sudden increase by averring that the same was due to two (2) main incidents: the scheduled shutdown and maintenance of Malampaya Natural Gas Plant that supplies natural gas to three power plants in Luzon (1,200-MW Ilijan, 1,000-MW Sta. Rita and 500-MW San Lorenzo) and the shutdown and maintenance of other power plants; 45. With Malampayas shutdown, the three power generation companies resorted to more expensive diesel fuel to run their plants. In all, these power plants provide 40 percent of the electricity needs of Luzon; 46. The scheduled, forced and extended outages of several power generating plants allegedly led to tighter supply and higher prices at the Wholesale Electricity Spot Market (WESM), the countrys trading floor for electricity, which sold electric power to as much as P33.22 per kWh; 47. With the outage of the Malampaya and other plants, Meralco allegedly purchased approximately 11.5 percent of its power supply needs from WESM during the supply month of November 2013 that will be reflected in the December 2013 billing; 48. In November, Meralcos generation charges already increased by P0.98 per kWh. Other bill components also increased: transmission charge (P.07 per kWh), VAT and local franchise tax (P.08 per kWh) and system loss charge (P0.11 per kWh) for an overall power rate increase of P1.24 per kWh.
49. Meralco said the maintenance shutdown of large power plants was the main factor of the rate hike, such as: Malaya 2 (350 MW: December 15, 2012 October 30, 2013); Pagbilao 2 (350 MW: August 31 - November 28, 2013); Sual 1 (600 MW: September 14 - October 21, 2013); and Sta. Rita Module 20 (250 MW: October 23 - 28, 2013). In addition, the following plants were on forced outage: San Lorenzo Module 60 (250 MW: May 28, 2013 March 16, 2014); Masinloc 1 (300 MW: September 25 28, 2013); Calaca 2 (300 MW: September 29 October 1, 2013); QPPL (460 MW: October 5 6, 2013); and Sual 1 (600 MW: October 22 26, 2013). GROUNDS OF THE PETITION I. SECTIONS 34 AND 43 (b) (ii) OF RA 9136 THAT EMPOWERS THE ERC TO DETERMINE, FIX, AND APPROVE THE UNIVERSAL CHARGE TO BE IMPOSED ON ALL ELECTRICITY END-USERS IS UNCONSTITUTIONAL. II. SECTION 43 (F) THAT EMPOWER THE ERC TO FIX SYSTEM LOSS FOR RECOVERY BY POWER DISTRIBUTION UTILITY IS UNCONSTITUTIONAL. III. SECTION 6 AND 29 OF RA 9136 WHICH PROVIDES THAT POWER GENERATION OR SUPPLY OF ELECTRICITY TO CONTESTABLE MARKET SHALL NOT BE CONSIDERED A PUBLIC UTILITY OPERATION AND THAT ANY PERSON OR ENTITY ENGAGED OR WHICH SHALL ENGAGE IN POWER GENERATION AND SUPPLY OF ELECTRICITY SHALL NOT BE REQUIRED TO SECURE A LOCAL OR NATIONAL FRANCHISE AND THAT THE PRICES THEY CHARGED SHALL NOT BE SUBJECT TO REGULATION BY THE ERC IS UNCONSTITUTIONAL. POWER GENERATION AND SUPPLY OF ELECTRICITY ARE CERTAINLY A PUBLIC UTILITY OPERATIONS. THE PRICES CHARGED BY A POWER GENERATION OR POWER SUPPLY ENTITY MUST BE SUBJECT TO REGULATION BY THE ERC. IV. THE ERC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE GUIDELINES
FOR THE AUTOMATIC ADJUSTMENT OF GENERATION RATE AND SYSTEM LOSS RATES BY DISTRIBUTION UTILITIES (AGRA RULES). V. THE ENERGY REGULATORY COMMISSION (ERC) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE 09 DECEMBER 2013 DECISION/ORDER/RESOLUTION THAT APPROVED THE STAGGERED HUGE POWER RATE INCREASES REQUEST OF MERALCO. VI. THE ERC COMMITTED GRAVE ABUSE OF DISCRETION IN APPROVING MERALCOS MOVE TO PASS ON TO CONSUMERS THE INCREASES IN THE GENERATION COST FOR NOVEMBER 2013. ARGUMENTS/DISCUSSION I. SECTIONS 34 AND 43 (b) (ii) OF RA 9136 THAT EMPOWERS THE ERC TO DETERMINE, FIX, AND APPROVE THE UNIVERSAL CHARGE TO BE IMPOSED ON ALL ELECTRICITY END-USERS IS UNCONSTITUTIONAL. 50. Petitioners are not unaware that the Honorable Court has already resolved and decided these issues in the case Gerochi vs. Department of Energy, G.R. No. 159796, July 17, 2007. But the petitioners hereto beg the indulgence of the Honorable Court to revisit the decision in the said case given the fact that the electricity consuming public had been hit, for several times, by the illegal and unconscionable power rate increases by Meralco which was made possible, acquiesced to, and ordered, illegally, and with grave abuse of discretion by the ERC; 51. In the Gerochi case, the Honorable Court said that the universal charge is not a tax. The rationale of the decision is that the imposition of the universal charge is an exercise of police power of the state and not the taxing power. According to the Honorable Court, the purpose of the universal charge is not to raise revenue but to regulate and ensure the viability of electric power industry. The Honorable Court also stated that there was no undue delegation of legislative power to ERC
when it was authorized by RA 9316 to determine and fixed the rate if universal charge; 52. To that ruling of the Honorable Court, the petitioners humbly beg to digress. The Universal Charge is a Tax 53. Taxation is the act of levying the tax, i.e., the process or means by which the sovereign, through its law-making body, raises income to defray the necessary expenses of the government. It is merely a way of apportioning the cost if the government among those who in some measures are privileged to enjoy its benefits and, therefore, must bear its burdens. (71 Am Jur. 2nd 342; 1 Cooley 72-73). While Tax is defined as an enforced proportional contribution levied by the law making body of the state to raise revenue to support the indispensable and all the necessary expenses of the government; 54. From the said definition, one can deduce the following elements of tax: enforced as it involves the mandate of the law so that its imposition is mandatory to those covered by it; proportional as theoretically, tax is proportioned upon a taxpayers ability to pay; to raise revenue or to earn income for the government; to support the expenses of the government which is related to public purpose of the imposition of taxation; 55. In the case of the universal charge under by RA 9136, its imposition is mandatory to the end-users of electricity. Supposedly, it is proportioned upon the end-users capacity to pay but which is not the case in the universal charge. The purpose for which it was collected is not for purposes of regulation but to raise revenue for the payment of the items enumerated in section 34 of RA 9136. In fact, universal cost as defined by the law refers to the charge, if any, imposed for the recovery of the stranded cost and other purposes; 56. Thus, a universal charge imposed by RA 9136 under section 34 and section 43 (b) (ii) is therefore a tax and not a mere regulatory imposition. It is in the nature of a special tax imposed by the state to all end-users or the electricity consuming public for (a) the payment of the stranded debt of NPC and qualified distribution utilities resulting from the restructuring of the industry; for missionary electrification; (c) for the equalization of the taxes and royalties applied to indigenous or renewable sources of energy vis--vis imported energy fuels; (d) for an environmental charge equivalent to one-fourth of one centavo per kilowatt-hour (P0.0025/kWh), which shall accrue to an environmental
fund to be used solely for watershed rehabilitation and management; and for a charge to account for all forms of cross-subsidies for a period not exceeding three (3) years; 56. The fact that the universal charge is a tax is bolstered by the provision that it is a non-bypassable charge which shall be passed on and collected from all end-users on a monthly basis by the distribution utilities. And the collections in any given month shall be remitted to the PSALM Corp or directly to the TRANSCO. The fund shall also be administered by the PSALM Corp and a Special Trust Fund is created which shall be disbursed only for the purposes specified in RA 9136; 57. Moreover, the universal charge is onerous and burdensome to the electricity consuming public. It is not even based on their capacity to pay but is uniformly applied to each and everyone and exacted from everyone regardless of income, financial standing, or status in life. There is invalid delegation of legislative power to ERC 58. Since the universal charge is essentially a tax collected from the electricity end-users, the ERC has no authority to determine and impose the rate of the charge; 59. For under section 28 (1), Article VI of the Constitution, the Congress shall evolve a progressive system of taxation. This means that only Congress has the power to enact tax measures which enactment necessary includes the rate of tax to be imposed to the public; 60. Moreover, section 28 (2), Article VI provides:
The Congress may, by law, authorize the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.
61. In the present case, the power to fix the rate of the imposition was delegated to the ERC. Hence, there was an improper delegation of legislative power. The delegation also runs counter to the afore-cited specific provision of the Constitution;
Section 34 and section 43 (b) (ii) failed to comply with the standards for valid delegation of legislative power 62. With due respect, section 34 and section 43 (b) (ii) of RA 9136 which delegated to the ERC the power to determine, fix, and approve the rate of universal charge are invalid for failing to comply with the test for valid delegation of legislative power; 63. The said sections failed to comply with Completeness Test the law must be complete in all its essential terms and conditions when it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except to enforce it4. It also failed to comply with the Sufficient Standard Test; 64. In the present case, universal cost as defined by the law refers to the charge, if any, imposed for the recovery of the stranded cost and other purposes. This other purposes was not even defined by the law. It could be anything under the sun, which the ERC may deem appropriate;
65. It may be said that section 34 enumerated the other purposes for the imposition of the universal charge. But, the law did not provide on the manner by which the ERC would determine the charge for those purposes stated thereof. And it is up for the ERC to make such determination without any guidelines set by the law on how to fix the amount and the rate. There is also no showing as to when the ERC could fix the universal charge and whether it can impose the charge for all of the said purposes at the same time or for only one or two of such purposes in a given time. The imposition of Universal Charge violates the equal protection clause of the Constitution.
66. Granting for the sake of argument that the universal charge is not a tax but a regulatory imposition, which is an exercise of police power of the state, still there is an invalid exercise of police power as the said section of the law violates the equal protection clause of the Constitution; 67. Section 1, Article III of the Constitution mandates that nor shall any person be denied equal protection of the law;
4
U.S. vs. Ang Tang Ho, 43 Phil. 1
68. For a law not to infringe on the equal protection clause of the Constitution, it must be based on substantial distinction; 69. In the present case, the law does not make distinction of the end-users of electricity. It imposes a uniform universal charge to all without regard to the income, financial status, or capacity to pay of the electricity consuming public; 70. It may be said that the imposition of the universal charge is based on the electricity consumed. But that does not constitute a valid basis for distinction. For a rich family may consume less electricity than a poor family but they are both required to pay a uniform rate of universal charge. However, a hundred peso is negligible to a rich man but is already of considerable value to a poor man. II. SECTION 43 (f) THAT EMPOWER THE ERC TO FIX SYSTEM LOSS FOR RECOVERY BY POWER DISTRIBUTION UTILITY IS UNCONSTITUTIONAL. There is invalid delegation of legislative power. 71. Like the imposition of universal charge, the grant to the ERC the power to impose systems loss charge to the end-users of electricity under section 43 (f) constitute an invalid delegation of legislative power. There is also no standard to guide the ERC on how to fix the system loss. As a matter of fact, RA 9136 did not define what constitutes system loss; 72. In such a situation, the ERC had all the power and authority to consider anything under the sun, so to speak, as system loss to the detriment of the electricity consuming public. As a matter of fact, the public even up to now does not know what constitutes system loss; 73. Consequently, the public is at the mercy, whims, and caprices of the power distribution firm and the ERC in the imposition of the system loss charge. On this vein petitioners submit that the grant of authority to ERC to fix system loss should be nullified for being an invalid delegation of legislative power. There is also violation of equal protection clause.
74. Like the universal charge, the system loss charge is imposed to all the end-users of electricity, uniformly, regardless of income, financial status, or capacity to pay of the electricity consuming public. The rate of charges is based on the percentage of electricity consumed; 75. Again, there is no valid and reasonable standard in the imposition of the system loss charge. As such, section 43 (f) of the law that grants the power to ERC to fix system loss charge for recovery by the power distributor should be struck down as unconstitutional. The imposition of system loss charge also violates section 9, Article II; section 1, Article XII; and section 1, Article XIII of the Constitution. 76. Section 9, Article II of the Constitution provides: Section 9. The State shall promote a just and dynamic
social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all. (Underlining and emphasis supplied)
77. provides:
Meanwhile, section 1, Article XII of the Constitution
The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. (Underlining and emphasis supplied)
78.
And section 1, Article XIII of the Constitution provides:
Section 1. The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.
79. In the case of RA 9136, it was doing the reverse of what were mandated by the Constitution;
80. System Losses are part and parcel of doing business. It is a loss that should be wholly and fully shouldered by the entity that does the business; 81. In the present case, however, the law allows the power sector businesses to pass on their consumers and ends-users of electricity this loss. This is on top of the RORB to which they are entitled; 82. The net effect of this scenario is such that the power sector businesses will not incur any loss at all. For everything that they will consider a loss may be considered system loss that can be passed on the electricity consuming public. And during the whole period of their operation, they will just rake in considerable profit as in the case of respondent Meralco. On the otherhand, the public is saddled with high electricity rates because of this unreasonable imposition of the law; 83. Clearly, the law gives full benefit to the power sector businesses by giving them the opportunity to maximize their profits at the expense of the public; 84. It is public knowledge that more than majority of the Filipinos are poor. They live below the poverty line. They can hardly make both ends meet, so to speak; 85. While they are suffering from poverty, the law did not look on their favor but the power sector businesses. The law did not free them from poverty contrary to the mandate of Section 9, Article II of the Constitution that the State shall promote a just and dynamic social order and free the people from poverty through policies that provide adequate social services, and an improved quality of life for all. On the contrary, the law imposed upon them the burden of shouldering the system loss of the power sector business, which should have been rightfully charged on their income; 86. The law likewise contravenes the mandate of section 1, Article XII of the Constitution that provides for a more equitable distribution of opportunities, income, and wealth. For in a situation where even the system loss is passed on to the electricity consumers, the persons or entities comprising power sector businesses become richer while the poor and impoverished consumers become poorer; 87. Also as a result of this law, the right of the people to human dignity, the reduction of social and economic inequality and the diffusion
of wealth will never be realized. Thus, the law also contravenes section 1, Article XIII of the Constitution. There is also taking without due process of law and payment of just compensation 88. When the public is ordered to pay for the system loss of a power sector business, his money, which is a private property within the protection of the due process clause under section 1, Article III of the Constitution as well as section 9, Article III thereof, is being taken from him without due process and without payment of just compensation. 89. Again, the public does not know what constitutes system loss under the RA 9136. But, the law charges them for such loss. They have no opportunity, as they law did not give them the right, to challenge the said imposition. On this regard, their right to due process was violated; 90. In the same vein, since they public receive nothing from the power sector businesses for the imposition of this system loss, it thus follows that their money, a private property, has been taken without corresponding payment of reasonable, equivalent, and just compensation in whatever form it may be. On this score, RA 9136 should be declared unconstitutional. III. SECTION 6 AND 29 OF RA 9136 WHICH PROVIDES THAT POWER GENERATION OR SUPPLY OF ELECTRICITY TO CONTESTABLE MARKET SHALL NOT BE CONSIDERED A PUBLIC UTILITY OPERATION AND THAT ANY PERSON OR ENTITY ENGAGED OR WHICH SHALL ENGAGE IN POWER GENERATION AND SUPPLY OF ELECTRICITY SHALL NOT BE REQUIRED TO SECURE A LOCAL OR NATIONAL FRANCHISE AND THAT THE PRICES THEY CHARGED SHALL NOT BE SUBJECT TO
REGULATION BY THE ERC IS UNCONSTITUTIONAL. 91. Section 6 and 29 of the EPIRA should be stricken out as unconstitutional. The provisions state: SEC. 6. Generation Sector. Generation of electric
power, a business affected with public interest, shall be competitive and open.
xxx
Any law to the contrary notwithstanding, power generation shall not be considered a public utility operation. For this purpose, any person or entity engaged or which shall engage in power generation and supply of electricity shall not be required to secure a national franchise. Upon implementation of retail competition and open access, the prices charged by a generation company for the supply of electricity shall not be subject to regulation by the ERC except as otherwise provided in this Act. Xxx (Emphasis supplied)
SEC. 29. Supply Sector. The supply sector is a business affected with public interest. Except for distribution utilities and electric cooperatives with respect to their existing franchise areas, all suppliers of electricity to the contestable market shall require a license from the ERC. xxx
Any law to the contrary notwithstanding, supply of electricity to the contestable market shall not be considered a public utility operation. For this purpose, any person or entity which shall engage in the supply of electricity to the contestable market shall not be required to secure a local or national franchise.
The prices to be charged by suppliers for the supply of electricity to the contestable market shall not be subject to regulation by the ERC. Xxx (Emphasis supplied) 92. Power generation and supply of electricity are certainly public utility operations. The prices charged by a power generation or power supply entity must be subject to regulation by the ERC.
93. Jurisprudence provides that power generation companies, including but not limited to power generation companies contracted by Meralco and other local power distribution companies to supply power in their markets and those selling in WESM, are public utilities and must be considered as such, thus subject to franchise requirement and supply/price regulation. 94. The determination of whether or not one is a public utility is a matter of judicial, not legislative determination. The EPIRA declaration that power generation while impressed with public interest, is not a public utility operation and therefore the prices it charges to the public are not subject to regulation by the ERC is not controlling to the courts. 95. Thus in North Negros Sugar Co. v. Hidalgo5 the Honorable Court stated:
Whether or not a given business, industry, or service is a public utility does not depend upon legislative definition, but upon the nature of the business or service rendered, and an attempt to declare a company or enterprise to be a public utility, where it is inherently not such, is, by virtue of the guaranties of the federal constitution, void whenever it interferes with private rights of property or contract. So a legislature cannot by mere fiat or regulatory order convert a private business or enterprise into a public utility, and the question whether or not a particular company or service is a public utility is a judicial one, and must be determined as such by a court of competent jurisdiction. (Emphasis retained. Footnotes and citations removed)
96. In this case, the very nature of the power generation sector put in within the framework of a public utility. In the case of JG Summit Holdings Inc.6, the Honorable Court explained the nature of a public utility, thus:
A public utility is a business or service engaged in regularly supplying the public with some commodity or service of public consequence such as electricity, gas, water, transportation, telephone or telegraph service. To constitute a public utility, the facility must be necessary for the maintenance of life and occupation of the residents. However, the fact that a business offers services or goods that promote public good and serve the interest of the public does not automatically make it a public utility. Public use is not synonymous with public interest. As its
5
63 Phil. 664 (1936), cited in the Dissenting Opinion of Justice Tinga in the case of JG Summit Holdings Inc. v. CA, GR No. 124293, September 24, 2003. 6 JG Summit Holdings Inc. v. CA, GR No. 124293, September 24, 2003
name indicates, the term public utility implies public use and service to the public. The principal determinative characteristic of a public utility is that of service to, or readiness to serve, an indefinite public or portion of the public as such which has a legal right to demand and receive its services or commodities. Stated otherwise, the owner or person in control of a public utility must have devoted it to such use that the public generally or that part of the public which has been served and has accepted the service, has the right to demand that use or service so long as it is continued, with reasonable efficiency and under proper charges. Unlike a private enterprise which independently determines whom it will serve, a public utility holds out generally and may not refuse legitimate demand for service. Thus, in Iloilo Ice and Cold Storage Co. vs. Public Utility Board, this Court defined public use, viz: Public use means the same as use by the public. The essential feature of the public use is that it is not confined to privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it its public character. In determining whether a use is public, we must look not only to the character of the business to be done, but also to the proposed mode of doing it. If the use is merely optional with the owners, or the public benefit is merely incidental, it is not a public use, authorizing the exercise of jurisdiction of the public utility commission. There must be, in general, a right which the law compels the owner to give to the general public. It is not enough that the general prosperity of the public is promoted. Public use is not synonymous with public interest. The true criterion by which to judge the character of the use is whether the public may enjoy it by right or only by permission.
97. Thus, when RA 9136 predetermined and stated that power generation and supply of electricity are not public utility operations, it encroached upon the domain of the judiciary to make such determination. 98. As a result, the players in the power sector specifically the generation and supply sectors have escaped accountability by virtue of these provisions of RA 9136 which dictates that these sectors are beyond the regulating power of the ERC. Due to this provision, the generation and supply sector, especially since they are not considered public utilities under Section 6 and 29 of the law are emboldened in manipulating the market and colluding with one another in order to jack up electricity rates. The ERC on the basis of this provision is also emboldened in approving rate increases including highly irregular and unjust rate increases.
99. Applying the criterion above, it is plain that power generation companies, are public utilities. Power generation companies, including but not limited to power generation companies contracted by Meralco and other local power distribution companies to supply power and those selling in WESM are public utilities. Section 6 and 29 of RA 9136 on the provision that power generation and supply of electricity are not public utility operations thereby exempting the prices imposed by entities engaged in said activities run counter to section 9, Article II; section 1 and 6, Article XII; and section 1, Article XIII of the Constitution. 100. The contested provisions of RA 9136 clearly run afoul of the 1987 Constitution, primarily Article XII, on the National Economy and Patrimony; 101. Sections 6 and 29 provides for States abandonment of its power to regulate the excessive impositions of power generators and suppliers. It provides for States abandonment of its mandate to promote a just and dynamic social order and free the people from poverty through policies that provide adequate social services, and an improved quality of life for all7. It also allows States neglect of its duty to provide for a more equitable distribution of opportunities, income, and wealth8 and the duty of the State to promote distributive justice and to intervene when the common good so demands9; 102. Also it deprive the people of the right to the reduction of social and economic inequality and the diffusion of wealth as the same will not be for the common good of the Filipinos, the consumers particularly; 103. Thus, sections 6 and 29 of RA 9136 condemn the people to poverty instead of freeing them from this scourge and results in a dismal quality of life due to the prohibitive cost of electricity;
7 8
section 9, Article II, Constitution section 1, Article XII, ibid 9 section 6, Article XII, ibid
104. It is high time for this Honorable Court to revisit the EPIRA Law and finally save the consumers from the unreasonable and unjust burden that this law has cost the Filipino people; 105. The EPIRA law promised to deliver quality, reliable, secure and affordable supply of electricity for the public. But the exact opposite happened; 106. Domestic power rates have doubled since the EPIRA law was implemented. The Philippines now has one of the most expensive power rates in Asia-Pacific. The EPIRA law and high power rates impacted heavily on power consumers and on the national development; 107. The EPIRA law is an anti-consumer, pro-corporation law that only strengthened the monopoly and control of a handful of private companies on the power industry sector. Despite the current high cost of power, consumers are expected to pay more for electricity in the coming years; 108. For the past twelve years that the EPIRA law had been in effect, electric power consumers and businesses throughout the country endured high power rates. Without any public hearings or consultations, automatic monthly adjustments in power rates were imposed by Meralco and other private firms that have been the regular thing under EPIRA law; 109. Under the EPIRA law, power consumers are at the mercy of private power distributor like Meralco, the power generator like the National Power Corporation (Napocor), the National Grid Corporation of the Philippines (NGCP), the National Transmission Company (Transco), independent power producers (IPPs), and the power suppliers that impose frequent and automatic rate adjustments and pass-on charges to consumers. 110. Consumers cannot anymore bear high electricity rates. The current minimum wage of P466 in the National Capital Region (NCR) is far from enough to cover for the increasing daily cost of living now pegged at more than P1,000 for a family of five. Prices of other commodities and services are also increasing - food products, petroleum, fare, water rates, etc.. IV. THE ERC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE GUIDELINES FOR THE AUTOMATIC ADJUSTMENT OF GENERATION RATE AD SYSTEM LOSS RATES BY DISTRIBUTION UTILITIES (AGRA RULES). 111. On 13 October 2004, the ERC issued the Automatic Adjustment of Generation Rate and System Loss Rates by Distribution Utilities (AGRA Rules). AGRA Rules allow for automatic adjustment of the generation rate and system loss by distribution utilities; 112. However, nowhere from the provision of the EPIRA law that gives the power to the ERC to grant an automatic rate adjustment to the power distribution firms. Moreover, the said rules would deprive the ERC and the public the right to contest the basis for the adjustment. In effect, there is violation of public right to due process of law the right to be notified and be heard on the matter of the automatic rate adjustment. V. THE ENERGY REGULATORY COMMISSION (ERC) COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE 09 DECEMBER 2013 DECISION/ORDER/RESOLUTION THAT APPROVED THE STAGGERED HUGE POWER RATE INCREASES REQUEST OF MERALCOS. The Meralco letter is a mere scrap of paper for failure to comply with the requirements for a petition for rate adjustment. 113. Section 4 (e), Rule 3 of the Implementing Rules and Regulation of the EPIRA Law (Republic Act No. 9136) provides for the requisites before an application for rate adjustment must be acted upon. It states:
Any application or petition for rate adjustment or for any relief affecting the consumers must be verified, and accompanied with an acknowledgment of receipt of a copy thereof by the LGU Legislative Body of the locality where the applicant or petitioner principally operates together with the certification of the notice of publication thereof in a newspaper of general circulation in the same locality. The ERC may grant provisionally or deny the relief prayed for not later than seventy five (75) calendar days from the filing of the application or petition, based on the same and the supporting documents attached thereto and such comments or pleadings the consumers or the LGU concerned may have filed within thirty (30) calendar days from receipt of a copy of the application or petition or from the publication thereof as the case may be. Thereafter, the ERC shall conduct a formal hearing on the application or petition, giving proper notices to all parties concerned, with at least one public hearing in the affected locality, and shall decide the matter on the merits not later than twelve (12) months from the issuance of the aforementioned provisional order. xxx (Sec. 4(e), Rule 3) 114. Clearly, the letter of Meralco is a mere scrap of paper that should not have been acted upon by ERC for it violated the requirements that the petition must be verified; there must be acknowledgement receipt of the application by the LGU Legislative Body of the locality where Meralco principally operates; there must be notice of publication of the application in a newspaper of general circulation in the same locality; there must be formal hearing conducted where all the parties concerned were given proper notices; 115. Meralco has not complied with the requirements imposed by RA 9136. But despite that obvious fact, the ERC blindly approved its request for the rate adjustment. The public was denied due process 116. On 05 December 2013, Meralco wrote a letter to the ERC for rate adjustment. Four (4) days later, on 09 December 2013, the ERC approved Meralcos request. Clearly, the public was denied due process. They were not even notified of the increase and were just shocked to know of the said rate increase.
117. Basic requirements of due process are the rights to notice and hearing. In the present case, there was no such notice. Consequently, no hearing happened when ERC granted Meralcos request to increase the power rate. The Honorable Court has previously invalidated ERCs orders, which were also issued without compliance with the requirements and without due process. 118. ERC could not claim ignorance of the requirements for the approval of rate adjustments. In fact, it should have been put on guard because for several instances, its act of approving Meralcos petition for rate adjustment has been annulled and set aside by the Honorable Court. 119. In Freedom From debt Coalition vs. ERC, G.R. No. 161113, June 15, 2004, the Honorable Court declared void and set aside the order of the ERC granting provisional rate increases to the Meralco. It also directed ERC to comply with Section 4 (e), Rule 3 of the Implementing Rules and Regulations of RA 9136, particularly the publication and comment requirements therein. The Honorable Court said:
What makes the challenged Order particularly repugnant is that it involves a blatant and inexcusable breach of the very rules which the ERC is mandated to observe and implement. The violated provision which is Section 4(e), Rule 3 of the IRR specifies how the ERC should exercise its power to issue provisional orders pursuant to Section 44 in relation to Section 80 of the EPIRA. Since the IRR was issued pursuant to the EPIRA, Section 4(e) of Rule 3 as part of the IRR has the force and effect of law and thus should have been complied with. In view of the infirmities which attended the issuance of the November 27, 2003 Order, particularly: (1) the failure of MERALCO to publish its Application or at least a summary thereof; (2) the failure of the ERC to resolve the Motions for Production of Documents filed by the oppositors to MERALCOs Application before acting on the motion for provisional rate adjustment; and (3) the failure of the ERC to consider the arguments raised by the oppositors in their respective pleadings prior to the issuance of the assailed Order; the Court declares void the November 27, 2003 Order of the ERC for having been issued with grave abuse of discretion.
One final word. The character of the infirmities which taint the challenged Order is such that it precludes the remand of the case to the ERC without invalidating the Order. The defect of the notice as published is deemed of so serious a nature as to negate the notice altogether and forestall the ERCs assumption of jurisdiction over MERALCOs Application and its prayer for provisional rate increase. Similarly, the ERCs failure to consider the oppositions and motions already on record in issuing the challenged Order and to act upon other relevant motions has such grave due process implications that render the Order void, independently of its breach of its own rules. Thus, should the case be simply remanded to the ERC without further action by the Court, the defects would not be cleansed and they would retain their potency and still serve as solid basis to nullify the challenged Order and all other issuances of the ERC which would be infected by the infirmities. Indeed, such a denouement would be inescapable once the application is elevated again to this Court in connection with the infirm issuances. Clearly then, a remand is not in the best interest of MERALCO and the ERC. Rather, it is to their advantage, same as with the consumers, that they begin again on a clean slate.
120. Also in NASECORE vs. ERC, G.R. No. 163935, February 2, 2006, the Honorable Court nullified ERCs order approving the increase of respondent Meralcos generation charge from P3.1886 to P3.3213 per kWh for having been issued with grave abuse of discretion. Said the Honorable Court:
Contrary to the stance taken by the respondents, the amended application of respondent MERALCO for the increase of its generation charge is covered by Section 4(e), Rule 3 of the IRR of the EPIRA. For clarity, the said provision is quoted anew: (e) Any application or petition for rate adjustment or for any relief affecting the consumers must be verified, and accompanied with an acknowledgement of receipt of a copy thereof by the LGU Legislative Body of the locality where the applicant or petitioner principally operates together with the certification of the notice of publication thereof in a newspaper of general circulation in the same locality.
122. The Honorable Court further stated that:

Section 4(e), Rule 3 of the IRR of the EPIRA speaks of "any application or petition for rate adjustment" without making any distinctions. Hence, any application or petition that would
result in the adjustment or change in the total price (retail rate) paid by the end-users, whether this change or adjustment is occasioned by the adjustment or change in the charges for generation, transmission, distribution, supply, etc., falls within its contemplation. In any case, that respondent MERALCOs amended application is covered by the said provision is mandated by the fact that the relief prayed for therein clearly affects the consumers as it results in the increase of the costs of their electricity consumption. In Freedom from Debt Coalition v. ERC,27 the Court outlined the requirements of Section 4(e), Rule 3 of the IRR of the EPIRA as follows: (1) The applicant must file with the ERC a verified application/petition for rate adjustment. It must indicate that a copy thereof was received by the legislative body of the LGU concerned. It must also include a certification of the notice of publication thereof in a newspaper of general circulation in the same locality. (2) Within 30 days from receipt of the application/petition or the publication thereof, any consumer affected by the proposed rate adjustment or the LGU concerned may file its comment on the application/petition, as well as on the motion for provisional rate adjustment. (3) If such comment is filed, the ERC must consider it in its action on the motion for provisional rate adjustment, together with the documents submitted by the applicant in support of its application/petition. If no such comment is filed within the 30-day period, then and only then may the ERC resolve the provisional rate adjustment on the basis of the documents submitted by the applicant. (4) However, the ERC need not conduct a hearing on the motion for provisional rate adjustment. It is sufficient that it consider the written comment, if there is any. (5) The ERC must resolve the motion for provisional rate adjustment within 75 days from the filing of the application/petition. (6) Thereafter, the ERC must conduct a full-blown hearing on the application/petition not later than 30 days from the date of issuance of the provisional order. Effectively, this provision limits the lifetime of the provisional order to only 12 months.
Among the important requirements introduced under the foregoing process are: first, the publication of the application itself, not merely the notice of hearing issued by the ERC, in a newspaper of general circulation in the locality where the applicant operates and; second, the need for the ERC to consider the comments or pleadings of the customers and LGU concerned in its action on the application or motion for provisional rate adjustment. The Court reasoned that the publication and comment requirements are in keeping with the avowed policies of the EPIRA, to wit: [T]o protect the public interest vis--vis the rates and services of electric utilities and other providers of electric power, to ensure transparent and reasonable prices of electricity in a regime of free and fair competition and full public accountability for greater operational and economic efficiency, to enhance the competitiveness of Philippine products in the global market, and to balance the interests of the consumers and the public utilities providing electric power through the fair and nondiscriminatory treatment of the two sectors. Clearly, therefore, although the new requirements are procedural in character, they represent significant reforms in public utility regulation as they engender substantial benefits to the consumers. It is in this light that the new requirements should be appreciated and their observance enforced.30 The lack of publication of respondent MERALCOs amended application for the increase of its generation charge is thus fatal. By this omission, the consumers were deprived of the right to file their comments thereon. Consequently, the assailed Order dated June 2, 2004 issued by the ERC, approving the increase of respondent MERALCOs generation charge from P3.1886 to P3.3213 per kWh effective immediately, was made without giving the consumers any opportunity to file their comments thereon in violation of Section 4(e), Rule 3 of the IRR of the EPIRA. Indeed, the basic postulate of due process ordains that the consumers be notified of any application, and be apprised of its contents, that would result in compounding their economic burden. In this case, the consumers have the right to be informed of the bases of respondent MERALCOs amended application for the increase of its generation charge in order to, if they so desire,
effectively contest the same. The following pronouncements are quite apropos: Obviously, the new requirements are aimed at protecting the consumers and diminishing the disparity or imbalance between the utility and the consumers. The publication requirement gives them enhanced opportunity to consciously weigh the application in terms of the additional financial burden which the proposed rate increase entails and the basis for the application. With the publication of the application itself, the consumers would right from the start be equipped with the needed information to determine for themselves whether to contest the application or not and if they so decide, to take the needed further steps to repulse the application. On the other hand, the imposition on the ERC to consider the comments of the customers and the LGUs concerned extends the comforting assurance that their interest will be taken into account. Indeed, the requirements address the right of the consuming public to due process at the same time advance the cause of people empowerment which is also a policy goal of the EPIRA along with consumer protection. It has also been stated that: The requirement of due process is not some favor or grace that the ERC may dole out on a bout of whim or on occasion of charity. Rather, it is a statutory right to which the consuming public is entitled. The requirement of publication in applications for rate adjustment is not without reason or purpose. It is ancillary to the due process requirement of notice and hearing. Its purpose is not merely to inform the consumers that an application for rate adjustment has been filed by the public utility. It is to adequately inform them that an application has been made for the adjustment of the rates being implemented by the public utility in order to afford them the opportunity to be heard and submit their stand as to the propriety and reasonableness of the of the rates within the period allowed by the Rule. Without the publication of the application, the consumers are left to second-guess the substance and merits of the application.
At this point, it should be stated that the Court is not convinced by respondent MERALCOs argument that to require it to comply with Section 4(e), Rule 3 of the IRR of the EPIRA would be a violation of its right to due process because it would be subjected to a long and tedious process of recovering its fuel and purchased power costs. In Freedom from Debt Coalition, the Court categorically upheld the ERCs power to grant provisional adjustments or power of interim rate-regulation. Such power is intended precisely for the ERC to, as Mr. Justice Reynato S. Puno in his Concurring and Dissenting Opinion succinctly put it, "be able to swiftly and flexibly respond to the exigencies of the times." He elucidated further on the raison detre of the power of interim rate-regulation particularly in the context of our countrys economic history: Our economic history teaches us that the Philippines is vulnerable to the rapid fluctuations in the exchange rate. In recent years, we saw how numerous industries failed to survive the Asian financial crises fueled by the uncertainties of exchange rates. All these have had adverse financial impact on public utilities such as Meralco in terms of skyrocketing costs of debt servicing, and maintenance and operating expenses. A regulator such as the ERC should have sufficient power to respond in real time to changes wrought by multifarious factors affecting public utilities.
There is no basis for the rate adjustment. In fact, evidence shows that collusion led to the increase of power generation cost allegedly sustained by Meralco. 121. Section 25 of RA 9136 provides:
Section 25. Distribution Retail Supply Rate. - The rates charged by distribution utilities for the supply of electricity in their captive market shall be subject to regulation by the ERC based on the principle of full recovery of prudent and reasonable economic costs incurred, or such other principles that will promote efficiency as may be determined by the ERC. Every distribution utility shall identify and segregate in its bills to end-users the components of the distribution retail supply rate, as defined in this Act. (emphasis and underlining supplied)
122. The law is clear. Before Meralco is entitled to rate adjustment is must first show that that it has incurred reasonable economic loss. In the present case, none was even presented by Meralco but ERC approved its request for rate increased; 123. In the present case, likewise, Meralco claimed that the abrupt increase in the generation cost was the supposed maintenance shutdown of the Malampaya facility that supplies natural gas to three (3) major power plants Ilijan, San Lorenzo and Sta Rita which supply an aggregate capacity of 2700 MW electricity to its franchise area. It also said that the shutdown of Malampaya coincided with the scheduled maintenance of two (2) other plants, Pagbilao 2 and Sual 1, which also collectively contribute over 950 MW to its requirements; 124. However, the private investors who control Meralco are the same investors that control the power plants as well as the traders in the WESM. The Sta. Rita and San Lorenzo power plants are owned by First Gas Power Corporation of the Lopez Group of Companies, which also has a 3.9%-stake in Meralco. Power plants associated with the Lopez group also account for around 18% of the capacity registered at WESM; 125. Factly, only five companies control 80% of power capacity in the country: Cojuangco/San Migues Corporation (22%), Aboitiz (20%), Lopez (18%), Ty (12%) and Consunji (8%). These same firms own the plants with allegedly coordinated forced outages including Ilijan (Cojuangco/SMC), San Lorenzo (Lopez) and Calaca (Consunji); the other two plants are GN Power (Ayala) and Masinloc (AES); 126. Various stakeholders raised strong concerns and suspicion on the simultaneous shutdown of power generating plants. It is very likely that power companies deliberately colluded to shutdown in order to cause artificial tight energy supply and increase generation charges. And the Department of Energy (DoE) admitted that they are conducting investigation on the possible collusion of power companies. In an environment wherein the power industry is monopolized by only few players, collusion is expected. VI. THE ERC COMMITTED GRAVE ABUSE OF DISCRETION IN APPROVING MERALCOS MOVE TO PASS ON TO CONSUMERS THE INCREASES IN THE GENERATION COST FOR NOVEMBER 2013.
127. Even before the ERC granted its request for rate adjustment, Meralco has already adjusted and collected generation charges for November 2013. It was only on 05 December 2013 that it requested the ERC, through an unverified letter, to adjust its generation charge; 128. Again, RA 9136 mandates that there must be proof of losses before the power rate could not adjusted. Moreover, the law and its implementing rules provides for the requirements before such increase could be made; 129. Furthermore, Meralco's claim that generation charge increase is only a pass on charge and it will not profit from rate hike is totally false. In fact, Meralco is raking in multimillions in profits by imposing high power rates. As a matter of statistics, in 2011, Meralco posted a consolidated core net income of P14.9 billion, that was up by 22% compared to 2010. Meralco's consolidated revenues reached P254 billion for 2011 or a 6% year-on-year increase. Meanwhile, in 2012, Meralco posted a 9% increase on its consolidated core net income to P16.3 billion; 130. On the otherhand, the ERC, despite strong public opinion of various sectors and stakeholders opposing the power rate hike, in a closed door meeting last December 9, 2013, unabashedly approved Meralco's proposal to implement the power rate increase in its franchise areas in three installments; 131. The ERC is required under Section 43 of RA 9136 or the EPIRA law to promote competition xxx penalize abuse of market power in the restructured electricity industry; 132. The ERC, considering the suspiciously sudden and simultaneous shutdown of various power plants to coincide with the announced Malampaya turnaround, should not have hastily approved the Meralco proposed rate increase barely four (4) days from its submission. This hasty decision violates various provisions in the EPIRA law including: a) Section 43 (d) which requires the ERC to enforce rules and regulations governing the operations of the electricity spot market, and the activities of the spot market operator and other participants in the spot market, for the purpose of ensuring greater supply and rational pricing of electricity;
b) Section 2 (f) which declares the policy intent of RA 9136 to protect public interest as it is affected by the rates and services of electric utilities and other providers of electric power. 133. The ERC not only has the mandate but also the power to investigate these highly irregular shutdowns, which led to the rate increase proposed. Notably, Section 43 (p) grants the ERC the power to inspect premises, records and accounts in the exercise of its quasi judicial function for purposes of determining the existence of anticompetitive behavior or market power abuse xxx; 134. The ERC, however, blatantly reneged on its duty to protect public from anti-competitive practices and market abuse when it approved the P4.15 increase despite clear indications of irregularity in the simultaneous planned and unplanned shutdowns, the hefty spike of electricity prices in WESM and the unprecedented increase that Meralco is asking for; 135. The DOEs decision to investigate the suspected collusion of electricity industry players and price manipulation should have also compelled the ERC to stop the implementation of Meralcos decision of P4.15/kwh power rate hike and disapprove Meralcos request for staggered increase; 136. It is really mind boggling that the ERC hastily approved Meralcos letter request for staggered increase and at the same time order the investigation of the suspected collusion or violation of law of electricity generators and distributor; thus, making us believe that the ERC is also in collusion with vested oil interests in their profiteering activities; 137. Meanwhile, this ERC decision that shamelessly favor the MERALCO is a big injustice to all Meralco power users/consumers, majority of whom are the poor Filipinos. It is because of this injustice that petitioners opt to have recourse to this Honorable Court, to seek justice by way of invoking the powers of parens patriae reposed on its office, in order to tilt the balance in favor the poor majority; 138. Such decision of the ERC was made despite widespread opposition from the power consumers and other stakeholders. Henceforth, this immediately sparked widespread protests from different groups. This even prompted both legislative chambers from conducting an inquiry.
PRAYER WHEREFORE, premises considered, petitioners humbly and respectfully pray from the Honorable Court to: 1. GIVE DUE COURSE to this Petition;
2. DECLARE sections 34, 43 (b) (ii) of RA 9136 that empowers the ERC to determine, fix, and approve the universal charge to be imposed on all electricity end-users unconstitutional; 3. DECLARE section 43 (f) that empowers the ERC to fix system loss for recovery by power distribution utility unconstitutional. 4. DECLARE section 6 and 29 of RA 9136 which provides that power generation or supply of electricity to contestable market shall not be considered a public utility operation and that any person or entity engaged or which shall engage in power generation and supply of electricity shall not be required to secure a local or national franchise and that the prices they charged shall not be subject to regulation by the ERC unconstitutional; 5. DECLARE that the ERC committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the guidelines for the automatic adjustment of generation rate and system loss rates by distribution utilities (AGRA Rules). 6. NULLIFY/SET ASIDE the AGRA Rules;
7. DECLARE that the ERC committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the 09 December 2013 decision/order/resolution that approved the staggered huge power rate increases request of Meralco. 8. NULLIFY/SET ASIDE the 09 December 2013 ERC decision/order/resolution; 9. DECLARE that ERC committed grave abuse of discretion in approving Meralcos move to pass on to consumers the increases in the generation cost for November 2013;
10. NULLIFY/SET ASIDE and ORDER the refund of the generation cost that Meralco passed on to the consumers for November 2013; 11. PERMANENTLY ENJOIN and PROHIBIT the ERC and Meralco from adjusting the rate of generation charge in the instant case; 12. ORDER the Executive Department to refrain from implementing the unconstitutional provisions of RA 9136. OTHER RELIEF, just and equitable under the premises, is likewise prayed for. Quezon City for Manila, 27 December 2013.
SENTRO PARA SA TUNAY NA REPORMANG AGRARYO
Counsel for the Petitioners 28-B Matiyaga St. corner Matimpiin, Pinyahan Quezon City, 1101 Tel. No. 4352383/E-mail: sentraphil@yahoo.com By: JOBERT ILARDE PAHILGA PTR No. 1700281/01-25-2013/Navotas IBP No. 932139/02-28-2013/Antique Roll No. 48289 MCLE IV-0013069/2-28-2013
Copy furnished via registered mail with return card: ENERGY REGULATORY COMMISSION Pacific Center Bldg., San Miguel Avenue, Pasig City MANILA ELECTRIC COMPANY Meralco Bldg. Meralco Avenue Pasig City EXPLANATION Copy of the foregoing was served the respondents via registered mail due to distance and lack of manpower to cause personal service.
JOBERT I. PAHILGA
AFFIDAVIT OF SERVICE Republic of the Philippines) City of Manila ) s.s. I, ATTY. JOBERT I. PAHILGA, of legal age, Filipino, under oath, depose and say that: 1. On 27 December 2013, I served copy of the instant petition by registered mail with return card to the ENERGY REGULATORY COMMISSION with address at Pacific Center Bldg., San Miguel Avenue, Pasig City; the Office of the Executive Secretary, Malacanang Palace, Manila; and to the MANILA ELECTRIC COMPANY with address at Meralco Bldg. Meralco Avenue, Pasig City IN WITNESS WHEREOF, I have hereunto affixed my signature this 27th day of December 2013 at City of Manila. JOBERT I. PAHILGA Affiant SUBSCRIBED AND SWORN to before me this 27th day of December 2003 in the City of Manila, affiant exhibited to me his IBP ID with Roll No. 48289 as proof of his identity. NOTARY PUBLIC Doc. No.______; Page No._______; Book No._______; Series of 2013
Republic of the Philippines) City of Manila
)s.s.
VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, FERNANDO HICAP, as representative of Anakpawis Partylist in the 16th Congress and as Chairperson of Pambansang Lakas ng mga Mamamalakaya ng Pilipinas (PAMALAKAYA), of legal age, Filipino, married, and with office address at South Wing 608, House of Representatives, Batasan Hills, Quezon City, after having been duly sworn in accordance with law, hereby depose and state: 1. I am the representative of Anakpawis Partlyist and Pamalakaya who are co-petitioners in this case; 2. I have caused the preparation of the above Petition; have read and understood the contents thereof; and that the same are true and correct of my personal knowledge and based on authentic records; 3. I hereby certify that I or my co-petitioners have not commenced any other action or proceeding involving the same case in the Supreme Court, the Court of Appeals or any other tribunal or agency; and that to the best of my knowledge, no such action or proceeding is pending therein. Furthermore, should I thereafter learn that a similar action or proceeding has been filed or is pending, I undertake to report such fact within five (5) days from knowledge therefrom to the Honorable Court. IN WITNESS WHEREOF, I have hereunto set our hands this ____ day of December 2013 at City of Manila.
FERNANDO L. HICAP Affiant SUBSCRIBED AND SWORN to before me this __ day of December 2013 in the City of Manila, affiant exhibited to me his ID Card ____________ with number and valid until as proofs of his identity. Doc. No. ____; Page No. ____; Book No. ____; Series of 2013
Republic of the Philippines) City of Manila )s.s. VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, RAFAEL V. MARIANO by himself and as Chairperson of Kilusang Magbubukid ng Pilipinas (KMP) and President of Anakpawis Partylist, of legal age, Filipino, married and with office address at Anakpawis Partylist, No. 2-J, Alley 23, Road 1, Project 6, Quezon City, after having been duly sworn in accordance with law, hereby depose and state: 1. I am one of the petitioners and at the same time the representative of KMP and Anakpawis who are also petitioners in this case; 2. I have caused the preparation of the above Petition; have read and understood the contents thereof; and that the same are true and correct of my personal knowledge and based on authentic records; 3. I hereby certify that I or my co-petitioners have not commenced any other action or proceeding involving the same case in the Supreme Court, the Court of Appeals or any other tribunal or agency; and that to the best of my knowledge, no such action or proceeding is pending therein. Furthermore, should I thereafter learn that a similar action or proceeding has been filed or is pending, I undertake to report such fact within five (5) days from knowledge therefrom to the Honorable Court. IN WITNESS WHEREOF, I have hereunto set our hands this ____ day of December 2013 at City of Manila.
RAFAEL V. MARIANO Affiant SUBSCRIBED AND SWORN to before me this __ day of December 2013 in the City of Manila, affiant exhibited to me his ID Card ____________ with number and valid until as proofs of his identity. Doc. No. ____; Page No. ____; Book No. ____; Series of 2013
Republic of the Philippines) City of Manila )s.s. VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, ELMER C. LABOG by himself and as Chairperson of Kilusang Mayo Uno (KMU), of legal age, Filipino, married and with office address at 63 Narra Street, Project 3, Quezon City, after having been duly sworn in accordance with law, hereby depose and state: 1. I am one of the petitioners and at the same time the representative of KMU as petitioner in this case; 2. I have caused the preparation of the above Petition; have read and understood the contents thereof; and that the same are true and correct of my personal knowledge and based on authentic records; 3. I hereby certify that I or my co-petitioners have not commenced any other action or proceeding involving the same case in the Supreme Court, the Court of Appeals or any other tribunal or agency; and that to the best of my knowledge, no such action or proceeding is pending therein. Furthermore, should I thereafter learn that a similar action or proceeding has been filed or is pending, I undertake to report such fact within five (5) days from knowledge therefrom to the Honorable Court. IN WITNESS WHEREOF, I have hereunto set our hands this ____ day of December 2013 at City of Manila.
ELMER LABOG Affiant SUBSCRIBED AND SWORN to before me this __ day of December 2013 in the City of Manila, affiant exhibited to me his ID Card ____________ with number _____________ and valid until as proofs of his identity. Doc. No. ____; Page No. ____; Book No. ____; Series of 2013
Republic of the Philippines) City of Manila
)s.s.
VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING I, GLORIA G. ARELLANO by herself and as Chairperson of Kalipunan ng Damayang Mahihirap (Kadamay), of legal age, Filipino, married, and with office address at 12-A Kasiyahan Street, Don Antonio Heights, Barangay Holy Spirit, Quezon City, after having been duly sworn in accordance with law, hereby depose and state: 1. I am one of the petitioners and at the same time the representative of Kadamay as petitioner in this case; 2. I have caused the preparation of the above Petition; have read and understood the contents thereof; and that the same are true and correct of my personal knowledge and based on authentic records; 3. I hereby certify that I or my co-petitioners have not commenced any other action or proceeding involving the same case in the Supreme Court, the Court of Appeals or any other tribunal or agency; and that to the best of my knowledge, no such action or proceeding is pending therein. Furthermore, should I thereafter learn that a similar action or proceeding has been filed or is pending, I undertake to report such fact within five (5) days from knowledge therefrom to the Honorable Court. IN WITNESS WHEREOF, I have hereunto set our hands this ____ day of December 2013 at City of Manila.
GLORIA ARELLANO Affiant SUBSCRIBED AND SWORN to before me this __ day of December 2013 in the City of Manila, affiant exhibited to me her ID Card ____________ with number and valid until as proofs of his identity. Doc. No. ____; Page No. ____; Book No. ____; Series of 2013

Anakpawis Petition For Certiorari, Prohibition and Mandamus

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Anakpawis Petition For Certiorari, Prohibition and Mandamus

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Republic of the Philippines SUPREME COURT Manila REP. FERNANDO L.

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U.S. vs. Ang Tang Ho, 43 Phil. 1

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Meanwhile, section 1, Article XII of the Constitution

And section 1, Article XIII of the Constitution provides:

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122. The Honorable Court further stated that:

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Republic of the Philippines) City of Manila

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Republic of the Philippines) City of Manila

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