The recent decision of the Supreme Court (SC) allowing the sale of the 246-megawatt Angat hydroelectric power plant (HEPP) in Norzagaray, Bulacan to a Korean government-owned company has dealt a triple whammy effect on Philippine sovereignty, public control over public resources and human right to water.

In its October 9, 2012 decision, the Supreme Court declared as valid and legal the bidding conducted and the Notice of Award issued by Power Sector Assets and Liabilities Management (PSALM) Corp. in favor of the winning bidder, foreign-owned Korea Water Resources Corporation (K-Water).

Also, according to the SC decision which was only released Thursday, the National Power Corporation (Napocor) shall continue to be the holder of Water Permit No. 6512 issued by the National Water Resources Board (NWRB). The Napocor shall authorize K-Water to utilize the waters in the Angat Dam for hydropower generation, subject to the NWRB's rules and regulations governing water right and usage.

The SC decision is a major blow to Philippine sovereignty which is now barely alive after a long colonial legacy, neo-liberal globalization, and a series of elite betrayals. The decision, in effect, brushed aside the all-important provision of Section 2, Article XII of the 1987 Philippine Constitution which states in the clearest and explicit terms that the "exploration, development and utilization of natural resources shall be under the full control and supervision of the State," and that "the State may... enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least 60 per centum of whose capital is owned by such citizens."

What the SC invoked to uphold the agreements with K-Water was the Build, Operate and Transfer Law which never ceded formal ownership to any foreign entity which entered into government projects under the build, operate and transfer scheme. The SC decision also unfortunately made an artificial and untenable division between the hydro-electric power plant, the dam and the water when all these components are indivisible and belong to a unitary system where the power plant requires the utilization of the water resources in Angat Dam.

The second whammy was delivered to the cause of public control over public resources and public goods. This has come at a time when the Philippine Government ought to review and overturn its privatization policy on power in light of the massive failures of the Electric Power Industry Reform Act (Epira) to deliver accessible, affordable and safe electric power to our households and industries. This also runs contrary to the rising calls nationwide to junk Epira and to reinstitute public control power industry which reached a high point in the successful campaign to suspend the privatization of the Agus and Pulangi hydropower plants in Mindanao.

And third, the High Court also ignored the Advisory dated 9 November 2009 issued by the Commission on Human Rights which urged the Philippine Government "to revisit and reassess its policy on water resources vis-à-vis its concurrent obligations under international law to provide, and ensure and sustain among others, safe, sufficient, affordable and convenient access to drinking water." The implications to Angat Dam cannot be overemphasized as it supplies 97 percent of the water supply of Metro Manila.

Last year, the United Nations General Assembly declared the right to water as a human right. Guarantees to respect, protect and fulfill this right, so fundamental to human life, is an obligation of the Government and cannot be entrusted to private parties, much less to a foreign country, like the owner of K-Water.

The sale to K-Water was authorized on May 5, 2010 by the PSALM Corp. through the Asset Purchase Agreement with the former. The administration, operations and management of the Angat Dam Complex including the utilization of its water resources was ceded by PSALM to K-Water under the Operations and Maintenance Agreement between the two parties for a period of 25 years, renewable for another 25 years. On My 24, 2010, the Supreme Court issued a Status Quo Ante order to suspend the agreements upon a petition filed by progressive groups, including the Freedom from Debt Coalition and the Initiative for Dialogue and Empowerment through Alternative Legal Services, Inc (IDEALS).

RICARDO B. REYES
President, Freedom from Debt Coalition
October 26, 2012