Faulty
FIRST PERSON - Alex Magno (The Philippine Star) - August 24, 2019 - 12:00am

The case, it turns out, is not as simple as it seems.

Earlier this month, the Supreme Court imposed a fine of P1 billion each on Maynilad, Manila Water and the MWSS. This was penalty for the failure of the two water concessionaires and the regulatory authority to comply with the Clean Water Act of 2004.

The ruling upheld the decisions of lower courts on the suit filed by the DENR in 2009 for failure to provide water treatment plants for the metropolitan area within five years of the law’s passage. The five-year timeline for compliance is contained in Section 8 of the law.

But wait. In 2011, the Supreme Court, in a separate case, struck down Section 8 for being impracticable. In that ruling, the Court allowed the concessionaires up to 2037 to complete their sewerage program. That year, by the way, coincides with the end of the water concession contract.

What this means is that the five-year timeline is no longer in effect, unless the Supreme Court explicitly reverses its earlier ruling. In which case, there is no basis for the later ruling.

More, the law specifically tasked several other government agencies and the local government units to prepare the way for the water concessionaires to build a sewerage system. The two water companies could not simply march in and start digging all over the metropolitan area.

The DPWH was supposed to draw up a national plan and a roadmap for the concessionaires to follow. That has not been delivered.

The DENR was supposed to come up with a Water Quality Management Action Plan. That was not done.

The local governments were supposed to provide the land for the water treatment plants, issue permits for the construction and clear all right-of-way issues. That was not done.

Compare that to a building contractor tasked with erecting a house but provided no land and no plan to do so. He simply will not be able to perform his part of the contract.

Between 1997 and 2019, Maynilad has spent P47 billion for wastewater, sanitation and watershed management. That is P8.7 billion more than the P38 billion it collected for environmental and sewer charges over the same period.

The SC may reverse its earlier ruling, of course, and restore the five-year timeline for building a sewerage system. That will result in a compression of the investment period that will require, by rough calculation, increasing water rates from the present P5 per cubic meter to P13.

We will have to dig up the entire metropolitan area, compounding the already congested traffic flow. We will have an urban uprising in our hands.

Even if, by some miracle, we are able to build the sewerage system in five years, that will not clean Manila Bay. There are tens of thousands of squatters along the shore who dump waste directly into the bay’s waters. It will be an even larger challenge for the local governments to remove these illegal settlements.

Having sprawled in every direction under the aegis of a weak state, Mega Manila is a nightmare of a city. About 14 million residents produce wastewater each day without a fully functioning sewerage system.

Inordinate delay

The phrase “inordinate delay” gained currency having been invoked by judges to dismiss cases due to sloppy conduct by the prosecution. But what about “inordinate delay” in the dismissal or suspension of public officials against whom the Ombudsman found probable cause?

Some might find the power of the Ombudsman to unilaterally decree dismissal or suspension too arbitrary. But, harsh it may be, that is the law.

Back in Nov. 4, 2016, the Ombudsman ordered the dismissal from public service, forfeiture of retirement benefits and a perpetual ban on holding public office of then Congressman Aurelio Umali and former DA director Renato Manantan. The Ombudsman found the two guilty of grave misconduct, gross negligence of duty and conduct prejudicial to the best interest of the service.

The two are being tried for graft stemming from highly questionable expenditure of P15 million in PDAF money. The case stems from a memorandum of agreement between Umali and an NGO called Masaganang Ani Para sa Magsasaka Foundation Inc. (MAMFI) for the procurement of P12 million worth of fertilizers. Another agreement was signed with an NGO called Samahan ng mga Manininda ng Prutas sa Gabi Inc. for the procurement of a water pump priced at P3 million.

The graft investigator found that the 7,920 bottles of liquid fertilizer were bought at P1,500 each even as the same was sold in the open market for only P150 each. On that basis, the Ombudsman ordered Umali’s dismissal nearly three years ago.

Normally, orders like this one are implemented promptly. But not, for some reason, in the case of Umali.

Earlier this year, Umali filed his candidacy for his old post as Nueva Ecija governor. He won the elections, was duly proclaimed and is now governor. It is as if the Ombudsman’s order did not exist.

This case seems to have fallen into the cracks. The Ombudsman must reiterate its order before the DILG – the agency that now has jurisdiction over Umali since he reentered local government.

Lawyers have pointed out that the Comelec can also declare his certificate of candidacy invalid from the start since the Ombudsman’s order was issued long before the certificate of candidacy was issued. In which case, he may be stripped of his governorship.

In this day and age, it is hard to believe that public agencies do not communicate with each other.

CLEAN WATER ACT OF 2004 MANILA WATER MAYNILAD MWSS
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