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by Atty. Rita Linda Jimeno
(as published in the Manilad Standard Today issue of July 27.2009)
Despite my profession as a lawyer I understand why, sometimes,
laymen disdain the courts, if not the judicial system. People say the
courts can unwittingly be turned into instruments to deprive people of
their basic rights through technicalities when those who have the means
use the system for objectives other than what is fair and just.
A critical situation involving water in BF Homes Subdivision is a case
in point. BF Homes is the biggest residential village in Southeast Asia
sprawled on three major cities, namely, Parañaque, Las Piñas and
Muntinlupa. It used to be one of the fairly upscale subdivisions in
Metro Manila until its developer stopped, many years ago, providing a
basic human need—water —to its residents. Incredibly, its residents
which number around 12,000 people have been suffering from the absence
of potable water supply and have done nothing drastic to protest their
unjust deprivation of what is tantamount to a human right. When
President Arroyo issued Executive Order 688 directing the Metropolitan
Waterworks and Sewerage Service to provide water to BF Homes
Subdivision, its residents felt immensely grateful that immediately,
without water yet being actually given to them, they posted huge
billboards in the Village and along the South expressway thanking the
president. The Executive Order directed MWSS to take over the central
reticulation system or the water pipeline distribution system of the
developer to provide water to the residents of BF Homes.
But the developer, BF Homes Inc. and its sister company, Philippine
Waterworks Construction Corp. which have, for years, reneged on their
obligation to provide water service to the entire subdivision, filed a
complaint in the Regional Trial Court of Las Piñas against MWSS and all
persons and agents acting on its behalf questioning the
constitutionality of the Executive Order and Presidential Decree 1345
upon which the Order was predicated. They asked for the issuance of a
writ of injunction against MWSS to stop it from implementing the
Presidential Decree and the Executive Order. The Regional Trial Court
of Las Piñas, where the case was lodged, issued a writ of preliminary
injunction sometime in 2008 restraining MWSS from taking over the water
pipeline and distribution system of the developer and the water company
owned by the Aguirres, arguing that it was tantamount to unlawful
taking of private property. The homeowners were frustrated and
disappointed. They had thought that their waterless plight would soon
be over—they were wrong. Still, they accepted the Court’s order but had
to find other ways to solve their need for water. Hence, in their
private capacities and acting through the presidents of their
respective homeowners’ associations, they entered into agreements with
Maynilad, a private company in the business of providing water service.
The households have had to shell out their own money to put up a fund
to pay for the excavation of sidewalks and the pipe laying as well as
the re-cementing of sidewalks that had to be excavated. Water soon came
to some of the enclaves of BF Homes but before the entire Village could
be serviced with water, on July 3, Judge Raul B. Villanueva of the
Regional Trial Court of Las Piñas issued another Order. This time the
Court restrained Maynilad, a private water concessionaire, as well as
the private contractors which the residents engaged to do the
excavation, from continuing with their excavation and pipe laying. This
effectively, once more, prevented the residents of BF Homes from ever
having potable water flowing from their taps.
The court’s rationale for preventing Maynilad from continuing with its
pipe laying and eventually providing water to the 12,000 residents of
the subdivision was that it was acting as an agent of MWSS which had
previously been restrained by the Court from taking over the water
distribution system of the developer.
What the residents lament is that the water company owned by the
developer is no longer capable of providing water service to them as in
fact it has failed and completely stopped providing water service to
the residents for almost a decade now. Moreover, even if it wanted to
resume providing water service to the residents, PWCC can no longer do
so as the National Water Resources Board has denied its application for
a certificate of public convenience to operate and maintain a
waterworks system. The Order by the National Water Resources Board
denying the application of the water company was presented as evidence
in the trial of the case but the court ruled that it was of no moment.
What was in issue, it said, was the constitutionality of the
Presidential Decree and the Executive Order directing the MWSS to take
over the central water distribution system in BF Homes.
It was argued by MWSS that it was not taking over the water system
owned by PWCC and BF Homes Inc. First, it said, it was Maynilad and
private contractors which were doing the diggings and pipe-laying.
Second, what was being put up by Maynilad was its own parallel water
system and did not touch the water system of PWCC. The Court, however,
said that “the completion of the diggings by the homeowners’
associations and the pipe-laying by Maynilad will result in the
takeover of the water services being provided” by BF Homes Inc. and its
water company, PWCC.
But what ‘water services’ could the Court have been referring to? The
developer and PWCC had long failed to provide water service to the BF
Homes community. Their being able to ever resume their ‘water service’
is highly unlikely as they have been denied a certificate of public
convenience to provide water service by the National Water Resources
Board. This can only mean that the thousands of residents of BF Homes
must now start looking elsewhere to live as there will never be a
chance they can have water flowing from their taps for as long as the
developer withholds consent to the entry into the village of other
water service providers.
Republic Act 8735 prohibits the issuance of writs of injunction against
government infrastructure projects because what is contemplated is the
primacy of public interest over private rights. If indeed BF Homes Inc.
and PWCC stand to be injured, such injury is certainly compensable if
later on, they can establish their right and the injuries they
suffered, a lawyer for the residents of the subdivision stressed.
Injunctions should be issued with extreme caution when they involve
potential injury to the public, he added. Water is not only a basic
need. Access to water has been classified as a basic human right. The
thousands of residents of BF Homes beg the Court to see the big picture
in this light.
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