BEHIND
THE SCENES
Alfred
P. Dizon
LA
TRINIDAD, Benguet – Candidates aspiring for seats in the board of the Benguet
Electric Cooperative but were disqualified by a committee of the power firm
from running were given an early Christmas gift in the form of a “preliminary
mandatory injunction order” by Agapito K.
Laoagan Jr. Presiding Judge of Regional
Trial Court Branch 64, First Judicial Region based in Abatan, Buguias, Benguet.Hereunder is Judge Laogan’s ruling without
alterations):
PRELIMINARY
MANDATORY INJUNCTION ORDER
The
election of the Board of Directors of the Benguet Electric Cooperative (BENECO
for short) was scheduled on November 16, 12013. Among the members who filed the
Certificates of Candidacy are Petitioners Atty. Richard. Kilaan, Jeffred Acop,
Josephine Tuling, Bruno Canuto and Edward Antonio, for Districts 11, 7, 8, 10,
respectively.
As a matter
of procedure, the Certificates of Candidacy of all the candidates, together
with the supporting documents/requirements, passed through the Screening
Committee (SC for short) of the BENECO, composing of three (3) members, Atty.
Delmar O. Carino, Eng’r. Melchor S. Licoben and Mrs. Brenda B. Carling, with
Respondent Atty. Carino, as the Committee Chairman.
On November
8, 2013, the Screening Committee issued a Memorandum, declaring seven (7
candidates, namely: Jeffred S. Acop (D7), Josephine Tuling (D8), JuanitoPatras
(D9), Edward Antonio (D10), Bruno M. Canuto (D10), Gaspar Leung (D11) and Atty.
Richard Kilaan (11), DISQUALIFIED to run as members of the Board of Directors
of BENECO for the November 16, 2013 District Elections. With the
disqualification of all the candidates, the November 16, 2013 BENECO Board
election was postponed indefinitely.
Cited as reasons
for the disqualification of the said candidates if their failure to qualify as
members of good standing, as defined under the implementing Rules and
Regulations of R.A. 10531 (DC No. 2013-07-0015), to wit:
For Richard
Kilaan – his failure to attend any two (2) of the Annual General Membership
Assembly (AGMA) for the years 2008, 2009, 2010, 2011 and 2012; and
For all the
Petitioners – they have incurred unsettled obligations within the last five
years or from 2008 to 2012, inclusive.
Petitioners,
through counsel, filed the instant action for Declaratory Relief with prayer
for Preliminary Mandatory Injunction, because they believe they are qualified
as candidates and that they are prejudiced by the questioned acts of the
BENECO, through the Screening Committee.
In the
hearing for the Preliminary Mandatory Injunction, Petitioners, through counsel,
argued that as members of the BENECO, they have the right to be candidates and
be elected as representatives of the Districs in which they represent. Their
disqualifications, as candidates for the November 16, 2013 BENECO Board
election was without basis and the indefinite postponement of the election as
without clear authority and mandate from the NEA. They further argue that the
power to disqualify any candidate is lodged with the NEA, citing Sec. 26-B of
the NEA Law, as amended by Sec. 11 of R.A. 10531 and under the 2005 Guidelines
on the Conduct of EC District Elections (NEA Memorandum No. 2005-012); and
which was the basis for the creation of the screening committee.
In other
words, according to the Petitioners, the acts of the Screening Committee in
disqualifying the Petitioners as candidates for members of the BENECO Board of
Directors, is ulta-vires. Instead of their ministerial function to verify the
eligibility of the candidates in accordance with the guidelines and make a
report thereon, they ruled that herein petitioners are disqualified as
candidates for BENECO directors, on the ground aforementioned. Petitioners
further argued, that by these acts of the Screening Committee and the BENECO,
they were not only denied of their rights to become candidates and be voted
upon, but the Benguet District will also be denied the equal representation to
the board, considering that the term of the incumbent board of directors will
expire on December 31, 2013 and a hold-over capacity is highly questionable.
Respondents,
through counsel, Atty. Delmar Carino, who is himself the chairman of the
Screening Committee, maintains that the Committee has the power to rule on the
qualifications of the candidates, citing paragraph (a), 2 of Article 11 of the
Election Guidelines. In their Position Paper, they further states that nowhere
in the said Guidelines is found a provision that gives to another body the
power to screen and disqualify the candidates rights after filing the
Certificates of Candidacy. Further, Respondents state that the Screening
Committee correctly applied Sec. 14, par (ed), subparagraph I and par. (g) of
the IRR or R.A. 10531 and that the application thereof did not violate the
prescription that laws must be applied prospectively. Lastly, Respondents state
that Petitioners cannot assail their disqualification since they have no vested
rights that were affected by the IRR.
The issue
then to be resolved is “Whether or not, under the facts of the case, a
Preliminary Mandatory Injunction, ordering the respondents to come up with a
list of candidates, to include petitioners, herein, and conduct the Benguet
District Elections for membership to the Board of Directors of BENECO before
the expiration of the term of the incumbent on December 31, 2013.
Pursuant to
Sec. 3, Rule 58 of the Rules of Civil Procedure, a Preliminary Injunction, in
this case Preliminary Mandatory Injunction, may be granted when it is
established: a) that the applicant is entitled to the relief demanded xxx; b)
that the commission, continuance or non performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant; c) That a party, court, agency or a person is doing, threatening, or
is attempting to do, or is procuring suffering to be done, some act or acts
probably in violation of the rights of the applicant respecting the subject of
action or proceeding, and tending to render the judgment ineffectual.
In this
case, Petitioners believe they are qualified to run for the office of the
BENECO Board of Directors, per the minimum requirement laid down under the NEA
Law (P.D. 269), as amended by R.A. 10531; that should the BENECO, through the
Screening Committee, bars them from running for the said office, there will be
injustice, not only for them, who already incurred expenses in preparing for
the campaign, but for the Benguet members of the BENECO who will not have equal
representation in the Board. While BENECO has already scheduled a special
election, with the strict implementation of the IRR above-mention, as stated by
the Respondent, it would be possible that nobody qualifies to run.
While
Respondent is correct when they said that they only match the qualifications of
the candidates on what is stated in the IRR, Plaintiff is also correct when it
stated that the provision in the IRR defining what is good member in good
standing, specifically on the matter of unsettled obligation and the attendance
on any two (2) AGMA for the last five years, by being disqualified to run as
director. The respondent should not lose sight of the fact that there are many
factors why members do not pay on time. As argued by the petitioners, one may
have gone abroad and nobody stays in the house. By the time he returns, his
bill may have already been accumulated at past due. In the case of Buguias,
where the consumers are farmers and businessmen, the BENECO paying center is in
Abatan and there are consumers who reside in far flung areas accessible to
rides only once in a while. Suppose the schedule is not within the due date?
While there are business centers accredited by BENECO as paying centers, like
the banks and some small business establishments in the barangays, there is no guarantee
that they are open during the time consumers are ready to pay their bills. N
the case of banks, they are closed on Saturdays and Sundays, and some accept
payments only at certain hours of the day.
It is the
preliminary finding of this Court that being in their nature of a penal
provision, the questioned provision of the IRR should be applied prospectively,
meaning, at the least after five (5) years from its effectivity, considering
that it is prescribes a period of five (5) years within which a candidate
should have attended any two (2) AGMAs and have not incurred unsettled
obligation.
Noteworthy
is the last sentence of the second paragraph of the Declaration of National
Policy (Sec. 2) or R.A. 269 (NEA Decree) that in order to further encourage and
promote their (electric cooperatives), they should be subject to minimal
regulation by other administrative agencies (underscoring intended), how much
more by the very agency that is suppose to encourage and promote its
development? Therefore, this provision of the IRR should not be applied as of
now.
Finally,
the Court is inclined to grant the prayer for the issuance of a Preliminary
Mandatory Injunction, an ancillary remedy, because time is of the essence.
Petitioners will suffer Irreparable injury if they remain disqualified as
candidates when election for BENECO Board is held. (Del Rosario vs. CA. 325
Phil 424, cited in Tanduay, Inc. vs. Ginebra San Miguel, G.R. No. 164324,
8-14-09); Saulog vs. CA. CA G.R. No. 119769. Sept. 18, 1996; Republic s. Silerio.
G.R. No. 108869, May 6, 1997, both cited in Nerwin Corp vs. PNOC. Et al., G.R.
No. 167057, 4-11-12). Also, the whole Benguet BENECO members will not have
equal representation in the BENECO Board, when the term of the incumbent
expires on December 31, 2013. BENECO is the only electric cooperative that
operates in Baguio City and Benguet Province. To deny Benguet Province equal
representation in the BENECO Board would have an adverse effect, not only on
the Cooperative, but eventually on us consumers, considering that Benguet
consumers are different from Baguio Consumers. While, as earlier stated, a
special election was already scheduled for January 2014, it does not mean that
the problem is solved. With the strict application of the questioned provision of
the IRR, there is always the possibility that nobody qualifies, because it is
only now, 2013, that the IRR prescribing such a requirement took effect and
everybody was caught unaware that such a requirement would soon be prescribed
the NEA, unless, the consumers were warned five years ago.
WHEREFORE,
pursuant to Sec. 3 of Rule 58 of the Rules of Civil Procedure, the Screening
Committee of the BENECO, are hereby ordered to declare Petitioners as QUALIFIED
candidates for the BENECO Board, conditionally, subject to the outcome of this
case, in the Special Election to be conducted in January 2014.
Meanwhile,
Pre-Trial is hereby set on January 22, 2014 at 9:00 o’clock in the morning.
Notify counsels who should notify their respective clients.
SO ORDERED.
DONE IN CHAMBERS,
this 10th day of December 2013, at Abatan, Buguias, Benguet.
AGAPITO K.
LAOAGAN, JR.
Presiding
Judge
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