Sunday, August 9, 2009

"Fighting for Water in BF Homes"

(The article below, which was published in the Monday, July 27, 2009 issue of the Manila Standard, is a reaction to the decision of the Las Pinas court which favored the developer with a TRO that is now preventing the laying of water pipes in BF Homes. )



"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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