By Atty. Antonio P. Pekas
The 3-day TRO against BENECO obtained by Hedcor was extended and would be effective for a total of 20 days. I obtained this info when I passed by the branch where the case is pending.
As I learned, Hedcor presented two IP (indigenous people) witness to prove that BENECO had been proposing to the Kabayan people for them to become partners with BENECO in building and operating a mini-hydro on the spot where Hedor has already filed its application to build and operate one. Proof of this are copies of the proposed Memorandum of Agreement and a Memorandum of Understanding containing the terms of BENECO’s proposal and which were allegedly distributed to elders in Kabayan.
In short, Hedcor presented concrete evidence of interference on the part of BENECO which would be illegal as the application of Hedcor is still pending. That is, BENECO must not interfere in the efforts of Hedcor to obtain the Free Prior and Informed Consent (FPIC) of the Kabayan people to its (Hedcor’s) proposal to build a minihydro.
Did the court believe this. It did that is why it extended the effectivity of the TRO.
Was the evidence of Hedcor rebutted with concrete evidence also or with anything of equal weight? Apparently not.
Of course every practicing lawyer knows that generally the bottom line in court cases are the facts as proven by the concrete evidence presented. Legal mumbo jumbo are often relied upon only by those without factual evidence to lean on. So it is beyond me why there was no evidence presented by BENECO to counter the expected evidence of Hedcor as shown by its petition—whose main bases are the said Memoranda of Agreement and Understanding, copies of which were attached.
Without convincing evidence to rebut the testimonies of the IP witnesses of Hedcor, there is every reason to believe the TRO will soon graduate to become a writ of preliminary injunction or an order prohibiting BENECO from interfering with the ongoing FPIC process while the case is pending.
As related to me, BENECO during the hearing relied only on the argument of lack of jurisdiction or that the case should be decided by the NCIP. But there are late decisions of the Supreme Court to the effect that if there are parties to a case like corporations, then it is the regular courts that have jurisdiction.
We lawyers who are practicing before the NCIP are very much aware of these decisions which are quite unfortunate for the Philippines and the IPs as, most often, it is the big corporations who come around to violate the rights of IPs. Three weeks ago I was struggling to come up with an argument against the said decisions but the best I could do was to go along the concurring opinion of Justice Brion in the Unduran vs. Aberasturi case, to the effect that the intention of the law was for the courts and the NCIP to have concurrent jurisdiction. This would however not do BENECO any good.
The Hedcor lawyers were prepared against the expected argument of BENECO of lack of jurisdiction. And without factual evidence to buttress such legal argument, BENECO was practically knocked out. Well, what did you expect if you brought only a kitchen knife to the gunfight?
So as things stand, the TRO extension might be a reliable omen on how things will turn out between BENECO and Hedcor. In the language of fellow gamblers, the issuance of a writ of preliminary injunction which will prohibit BENECO from interfering with the FPIC process on Hedcor’s application is “pintado na.” Unless BENECO, against all odds, would be creative enough to spring a surprise which will reverse the tide.
The more interesting parts of this case, however, are the offers of BENECO and Hedcor. Which of these entities can give the best benefits to the people of Kabayan?
Can the apparent nice offer of BENECO be relied upon versus the track record of Hedcor in other areas where it operates? This and other considerations next week, to wrap up this series.**
