REPUBLIC OF THE PHILIPPINES
ENERGY REGULATORY COMMISSION
San Miguel Avenue, Pasig City
IN THE MATTER OF THE APPLICATION FOR APPROVAL OF THE FEED-IN TARIFF ALLOWANCE FOR CALENDAR YEAR 2017 PURSUANT TO THE GUIDELINES FOR THE COLLECTION OF THE FEED-IN TARIFF ALLOWANCE AND DISBURSEMENT OF THE FEED-IN TARIFF ALLOWANCE FUND, WITH PRAYER FOR PROVISIONAL AUTHORITY
NATIONAL TRANSMISSION CORPORATION (TRANSCO),
LABAN KONSYUMER INC.,
MOTION FOR RECONSIDERATION
(Decision dated 27 February 2018 &
Docketed May 11, 2018 )
Intervenor Laban Konsyumer Inc., thru Atty. Victorio Mario A. Dimagiba (hereinafter, ?LKI?), most respectfully moves for the reconsideration of the Decision of this Honorable Commission dated 27 February 2018 and docketed on May 11, 2018 (the ?assailed Decision?), a copy of which was received by LKI on June 1, 2018, and in connection therewith, most respectfully states as follows:
1. The dispositive portion of the assailed Decision reads:
?WHEREFORE, the foregoing premises considered, the Commission hereby authorizes the National Transmission Corporation (Transco) to collect the Feed-in Tariff Allowance equivalent to PhP0.2563/kWh, which is equivalent to PhP0.0733/kWh increase from the current PhP0.1830/kWh FIT-All rate) as its 2017 FIT-All rate, under ERC Case Number 2016-192 RC xxx?
2. With all due respect, the assailed Decision is null and void and without legal effect as it violates the basic and cardinal principle of the first rights guaranteed in our Bill of Rights of the 1987 Constitution (Sec. 1, Article III), which mandates that: ?no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law.?
3. Aside from being void ab initio and without legal effect, the assailed Decision must be reconsidered because it granted a higher FIT-All rate of PhP0.2563/kWh despite the applicant National Transmission Corporation?s (?TRANSCO?) prayer for the approval of a FIT-All rate of PhP0.2291/kWh, which is an act of grave abuse of discretion tantamount to lack or excess of jurisdiction on the part of this Honorable Commission.
The assailed Decision is null and void as it violates the basic precept of procedural due process, and any violation of due process rights is a jurisdictional defect.
4. This Honorable Commission, in issuing the assailed Decision, glaringly ruled that it is granting a higher FIT-All rate of PhP0.2563/kWh despite the explicit prayer of applicant TRANSCO to approve a FIT-All rate of only PhP0.2291/kWh.
5. It should be considered that even this Honorable Commission?s 2006 Rules of Practice and Procedure (?ERC Rules of Procedure?), particularly, in Section 1, Rule 7, as well as this Honorable Commission?s Order dated 5 September 2017 (see page 12), require and admit that any substantial amendment to the relief sought in the application or petition should require compliance with the notice and publication requirements of the ERC, in accordance with the ERC Rules of Procedure and requirements of due process.
6. Yet, checking the records and antecedents of this case, it is evident that TRANSCO failed to comply with the notice and republication requirements of the Commission when it recalculated and asked (during the expository presentation of the present case) for a higher FIT-All rate of PhP0.2481/kWh. Such recomputation should have been republished as it was a substantial change to the application filed by TRANSCO. In line with said principle, this Honorable Commission denied the admission of the changes in the Judicial Affidavit of TRANSCO?s witness, Ms. Dinna Dizon. In denying the amendment in the judicial affidavit, this Honorable Commission explicitly stated that the proposed changes or corrections in the said affidavit ?will substantially alter the rate applied for in the Application, hence, the same cannot be admitted? (see page 10, ERC Order dated 5 September 2017).
7. The said ruling of this Honorable Commission was made on the premise that the corrections of the Judicial Affidavit were deemed substantial in nature because it effectively modified the FIT-All rate computation that led to an increase of PhP0.0028/kWh, i.e. from PhP0.2291/kWh to PhP0.2319/kWh (see page 11, ERC Order dated 5 September 2017).
8. Despite the foregoing, this Honorable Commission granted a FIT-All rate of PhP0.2563/kWh, which is a PhP0.0733/kWh increase from the current FIT-All rate of PhP0.1830/kWh and much higher than the recalibrated rate of PhP0.2319/kWh (p. 11, ERC Order dated 5 September 2017).
9. Furthermore, citing the landmark case of Freedom from Debt Coalition, et. al. vs. Energy Regulatory Commission and MERALCO (G.R. No. 161113, 15 June 2004; p.13, ERC Order dated 5 September 2017) this Honorable Commission even ruled that ?the publication requirement is not a mere procedural prerequisite for jurisdictional purposes. Being a rate case, the FIT-All Application will directly affect the electricity consumers owing to the general change in the FIT-All charge. Due process requires that the consuming public be apprised of the true rate being applied for? (p.14, ERC Order dated 5 September 2017). ?Thus, [this Honorable] Commission, guided by the principles of R.A. 9136 or the Electric Power Industry Reform Act of 2001 (EPIRA), resolve[d] to uphold the strict implementation of the FIT Rules, consistent with jurisprudence on Universal Charge (UC).?
10. Sadly, several months after issuing this ruling, this Honorable Commission, in rendering the assailed Decision, forgot about its discussion of strictly following the basic tenet of due process in the present rate case.
11. This strange Dr. Jekyll and Mr. Hyde personality of the Honorable Commission is further exemplified by the fact that in the assailed Decision, it discussed a denial of TRANSCO?s request to admit the corrections in the Judicial Affidavit of Ms. Dizon, choosing instead to just take note of it for the purpose of evaluating TRANSCO?s application for FIT-All rate for CY2018.
12. Yet, in the very next paragraph, in discussing the FIT-All component of Forecast National Sales (FNS), this Honorable Commission accepted the updated rate of 78,898,449,176.95 kWh presented during the expository presentation, instead of the 74,375,251,500 kWh FNS level used by TRANSCO in its application (p. 39, assailed Decision).
13. This Honorable Commission should be reminded that it itself ruled in its Order dated 5 September 2017 (page 16) that ?when public interest is to be compromised, the Commission?s rules and resolutions should be strictly observed to protect consumer interest. The public should be informed of the actual FIT-All Rate applied for because this is an additional financial burden to all on-grid consumers.?
14. Thus, in granting in the assailed Decision a FIT-All rate higher than what is being applied for by applicant TRANSCO, this Honorable Commission committed grave abuse in discretion that is tantamount to lack or excess of jurisdiction. The assailed Decision itself is void and infirm.
15. As explained by the Supreme Court in De Pedro v. Romasan Development Corporation (G.R. No. 194751, 26 November 2014), ?due process requires that those with interest to the thing in litigation be notified and given an opportunity to defend those interests. Courts, as guardians of constitutional rights, cannot be expected to deny persons their due process rights while at the same time be considered as acting within their jurisdiction.? ?Thus, any violation of due process rights is a jurisdictional defect and a decision that was issued in violation of a person?s due process rights suffers a fatal infirmity.?
16. In addition, in the case of Montoya v. Varilla (G.R. No. 180146, 18 December 2008), the Supreme Court held that ?[t]he cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted from their jurisdiction. The violation of a party?s right to due process raises a serious jurisdictional issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.?
17. In the present case, by reason of the omitted republication of Application and its accompanying notice of initial hearing, all the proceedings conducted by this Honorable Commission that culminated in its assailed Decision, which granted a higher FIT-All rate than what was applied for by TRANSCO, should be set aside for it is null and void for lack of jurisdiction.
18. To conclude, LKI is not asking this Honorable Commission to act beyond what is mandated under the Renewable Energy Law (R.A. No. 9513) or the FIT Rules that it promulgated. As much as LKI would want to disagree with the purpose, means and rationale of the said law and regulation, it cannot raise it here because it is not the proper forum to do so. Truth be told, LKI is not arguing that the FIT-All rate should be disregarded, only that it be determined in a certain manner ? a manner that upholds and respects the constitutional right to due process of every electricity consuming public in this country.
19. What LKI finds erroneous is the manner by which this Honorable Commission disregarded its own pronouncements of protecting the consumers from rate applications that fail to comply with due process requirements and then, itself violating the said due process requirements that it espoused when it issued the assailed Decision.
WHEREFORE, it is respectfully prayed that the Honorable Commission issue a resolution SETTING ASIDE its Decision dated 27 February 2018 for being null and void on the ground of lack of jurisdiction, and under Rule 23, Section 3 of the Commission Rules of Practice and Procedures, to suspend and/or stop immediately the collection of the additional Feed ?in- Tariff Allowance in the amount of Php 0.0733/kwh.
Other just and equitable reliefs are likewise prayed for.
Quezon City for Pasig City, June 1, 2018
ATTY. VICTORIO MARIO A. DIMAGIBA
AB, LLB, LLM
Intervenor and Counsel
No. 5 Elgin Street, Brgy. Fairview, Quezon City
Roll of Attorney No. 24285
PTR No. 5645010 / 1.15.2018/ Q.C.
IBP No. AR 001653/ 1.15.2018 / Q.C.
MCLE Exemption V-000692, 4.19.19
Notice of Hearing and Copy Furnish
Energy Regulatory Commission
CLERK OF COMMISSION
Puno and Puno
Counsel for CSDP
12/F, East Tower
Philippine Stock Exchange Center
Exchange Road, Ortigas Center, Pasig City
Attn.: Atty. Fabio T. Lapada, Jr., et. al.
National Transmission Corporation (TRANSCO)
Transco Main Building, Quezon Ave. cor. BIR Road
Diliman, Quezon City
Attn.: Atty. Noel Z. De Leon, et. al.
National Grid Corporation of the Philippines
Quezon Ave. cor. BIR Road
Diliman Quezon City
Atty. Katrina M. Platon, et. al.
Counsel for Intervenors DLPC and VECO
16th Floor, NAC Tower 32nd St.
Bonifacio Global City, Taguig City
Manila Electric Company
Lopez Building, Ortigas Ave.,
Brgy. Ugong, Pasig City
Attn.: Atty. Francis Dino S. Antonio, et. al.
Engr. Robert F. Mallillin
151 EDSA Brgy. Wack Wack
The undersigned will submit the foregoing motion for the Honorable Commission?s immediate consideration and approval.
Atty. Victorio Mario A. Dimagiba
A copy of the foregoing was served on the other parties by registered mail due to time and distance constraints.
Atty. Victorio Mario A. Dimagiba
REPUBLIC OF THE PHILIPPINES