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By David L. Llorito, Research Head
For most cities of the world, cleaning the
streets is just a matter of collecting the garbage, recycling some
and dumping the rest in landfills.
For Metro Manila, however, the big cleanup may
have to start with the country’s legal system–or at least, the
legal trash jam created by the Supreme Court when it upheld the
validity of the controversial incinerator project of Jancom
International–before the government could thoroughly get rid of
the mess on the streets.
Gone are the days when mountains of refuse used
to litter the streets of Metro Manila, thanks to Bayani Fernando,
who became chairman of the Metropolitan Manila Development Authority
(MMDA) in June 2002, replacing Benjamin Abalos. But according
to Gideon Javier, head of the local Clean Air Coalition, “the
garbage crisis is still very much with us.”
This time, he says, the garbage collectors are
better at collecting and hiding it. Sources say these tons of trash
are dumped in Manila Bay in Navotas and Montalban, Rizal.
Apparently these dumps could not accommodate the
6,000 to 8,000 metric tons of garbage generated by the megacity’s
10 million people. That explains the proliferation of illegal dumps
all over Metro Manila and its neighboring provinces like Laguna and
Cavite. Environmentalists say there are now 27 big illegal dumps and
hundreds of smaller ones.
“Fernando has been very good at cleaning the
main streets,” observes Javier. “But disposal has remained an
abomination. I bike around every weekend . . . and I can see garbage
being dumped behind subdivisions and foothills.”
Threats to people’s health
This problem poses grave threats to people’s
health because dumps usually ignite and burn due to methane emitted
by decaying organic matter. Most often, scavengers set fire to the
trash to reduce its volume so that the limited space could
accommodate more garbage where they collect recyclable scrap for
sale. Incomplete combustion of this waste generates carcinogenous
substances like dioxin and furan.
On assuming the MMDA chairmanship in June 2002,
Fernando thought of putting up a 2,000-hectare dump in Quezon
Province. On November 11, 2002, however, Quezon Governor Wilfrido
Enverga rebuffed Fernando, telling him that his province would
rather be “Calabarzon’s food basket” than “Metro Manila’s
wastebasket.” Fernando is reportedly scouting for another
dumpsite. With this not-in-my-backyard mindset, however, prospects
for finding a community that is eager to host Metro Manila’s
refuse are nil.
Legal conundrum
Fernando, however, need not have to move heaven
and earth to find a new dump if only the Supreme
Court–specifically its confusing decision on Jancom–did
not get in the way.
In November 2000 the Pro-Environmental
Consortium (PEC), backed by Rethman Recycling–one of the biggest
recycling companies in the world based in Germany–won an
international bidding for the 25-year build-operate-own Metropolitan
Manila Waste Management Project held by MMDA and the national
government. Environmentalists like Ana Ugarte (Bantay Kalikasan) and
Gideon Javier (Clean Air Coalition) told The Manila Times that the
PEC won the bidding fair and square by submitting the lowest bid.
On December 3, 2001, the PEC was given the
notice of award after the government’s Interagency Investment
Coordinating Committee and the board of the National Economic and
Development Authority (Neda) gave its approval. And on December 20,
2001, President Arroyo enthusiastically announced that the country
had already found a “long-term solution” to the garbage problem.
On the same day, however, Benjamin S. Abalos,
the new MMDA chairman after Edsa Dos, sent a letter to the new
solicitor general Simeon V. Marcelo expressing his helplessness in
dealing with the “looming [garbage] crisis” due to legal
constraints posed by the case filed by Jancom International against
the MMDA and the Metropolitan Manila Solid Waste Management
Committee (MMSWMC) for not acting on its proposed garbage
incineration project.
Jejomar Binay and Robert Aventajado, then the
chairmen of MMDA and MMSWMC in the Estrada administration, wanted to
wriggle out of the Jancom contract that had been signed by officials
of the Presidential Task Force on Waste Management during the Ramos
administration.
Binay and Aventajado considered the project too
expensive and did not have the approval of government agencies like
the Neda. But on May 29, 2000, the Supreme Court decided in
Jancom’s favor, prohibiting the MMDA from “disregarding
Jancom’s BOT [built-operate-transfer] award contract and making
another award in its place.”
The Court also nullified the “resolution of
respondent [MMDA] … disregarding the petitioner’s BOT Award
Contract and calling for bids for and authorizing a new contract for
the Metro Manila waste management . . . .”
Collateral damage
The decision created confusion: the language
sounded as if the Supreme Court had given Jancom the monopoly over
Metro Manila’s garbage disposal because “authorizing a new
contract for the Metro Manila waste management is illegal and
void.”
Yet the Court also said it “is not stopping
the government from implementing infrastructure projects, as it is
aware of the proscription under PD 1818. On the contrary, the Court
is paving the way for the necessary and modern solution to the
perennial garbage problem that has been the major headache of the
government . . . .”
The following questions therefore emerged: What
is the implication of the Court’s decision for Jancom vis-à-vis
the PEC sanitary landfill project? Is the PEC project considered a
“replacement” of the Jancom incinerator project? Would there be
legal hitches should the MMDA negotiate and formalize the detailed
contract with the PEC?
For Jose Luis Yulo Jr., chairman and president
of the PEC, his group’s sanitary landfill project is “separate
and distinct” from that of Jancom. He said Jancom’s bid and
supposed contract pertains only to the incineration of 3,000 metric
tons in San Mateo, Rizal. He noted that Jancom has also acknowledged
in a Congressional hearing and its newspaper advertisement that its
contract is only for 3,000 tons.
Said Yulo: “Pro-Environment Consortium has
undergone a transparent bidding process, invested millions to
properly pre-qualify, and has followed all laws and procedures, and
should not be prejudiced by Jancom’s problems.”
The Court’s decision could have just simply
meant that the MMDA could not award a new contract supplanting
Jancom’s and that the PEC project may therefore push through.
Nevertheless, Abalos wanted to be sure, so the
MMDA warned in its notice of award to the PEC that the proponents
should first clarify the issue with the Supreme Court before it
could proceed.
Thus on December 20, 2001, Abalos himself wrote
to Solicitor General Simeon Marcelo requesting his office to clarify
the issue with the Supreme Court. Marcelo, however, according to
environmentalists, sat on the request. He filed his motion for
clarification only on May 2, 2002, after the Supreme Court ruled
with finality on April 10, 2002, that the Jancom contract is
“valid.” Two weeks before that, Marcelo also got another request
from the MMDA prodding him to file the motion for clarification.
Legal shocker
Environmentalists say Marcelo’s motion for
clarification was one big opportunity to resolve the standoff, thus
paving the way for PEC’s landfill project. Specifically, the
motion “prayed” for clarification of the waste tonnage over and
above the 3,000 metric tons being claimed by Jancom. It could also
clarify the status of future projects that might be developed by the
government to deal with the garbage problem.
Besides the issue on waste tonnage, other
questions raised by Marcelo’s motion for clarification are:
May the government bid out another solid waste management project?
What if the project (which also involves solid-waste management) is
not intended to replace respondents’ (Jancom’s) contract, may it
be validly done?
But on June 19, 2002, many were shocked to learn
that the Third Division of the Supreme Court, which validated
Jancom’s incinerator project, had refused to clarify the questions
raised by the motion for clarification.
“…[T]he Court resolved to deny the motion
for lack of merit,” said the Court’s resolution. “No further
pleading shall be entertained in this case . . . .”
Deepening uncertainty
The Supreme Court’s refusal to clarify its
confusing decision has raised further questions. In a full-blown
garbage crisis, the legal uncertainty would favor Jancom, since the
government may be forced to embrace its project if the MMDA could
not tap other private groups to handle the problem.
According to a paper prepared by the NGOs Bantay
Kontrata and the Citizen’s Network Against Poverty and Corruption,
the Third Division that handed a decision favorable to Jancom
included Antonio T. Carpio, who was formerly the legal counsel of
Vivendi, Jancom’s international partner. Carpio was part of the
influential Carpio Villaraza Law offices, whose partners ended up in
sensitive government positions when President Arroyo rose to power.
Francisco Chavez, formerly solicitor general
during the Aquino administration, said it could mean that the
Supreme Court thinks its decision regarding Jancom is clear enough,
hence it saw no need to explain it further.
Owing the Court’s refusal to clarify the
issue, however, the prospect for the PEC project will remain
unclear. And worse, the MMDA will remain clueless whether it could
tap other private groups to solve Metro Manila’s garbage problem.
Given this uncertainty, two possible options
present themselves.
One, the PEC and the MMDA may push on with the
project at the risk of a lawsuit by Jancom or other parties. If that
happens and reaches the Supreme Court, Chavez says, the Court will
be forced to resolve the issue. The result of this option is
uncertain, probably the reason why the MMDA would no longer touch
the PEC landfill project.
Two, the MMDA may interpret the Court’s
decision to mean that Jancom indeed has a monopoly of Metro
Manila’s garbage disposal but will not carry it out, because the
President did not sign the contract. Since the MMDA cannot carry out
either the Jancom or the PEC project, it will keep on trying to find
an alternative dump that will be built and run by the MMDA, granting
it can find the money to finance it alone. That is what Fernando is
doing. Failing that, he will probably “solve” his garbage
headache by sitting it out until his term ends.
In desperation, the PEC may sue the MMDA for not
carrying out a project that it won fair and square in a competitive
bidding. It could cite the Supreme Court’s resolution as
self-evident proof that the PEC’s project is “distinct and
separate,” since the recent ruling by the Court could be
interpreted either for or against the project. The outcome of the
process would again be another long years of legal tussle.
Either way, the losers in this legal play will
be Metro Manila residents who are going to be swamped with garbage
the moment the dumps, legal or otherwise, are filled to capacity.
Meanwhile, as Gideon Javier has said, “The
garbage crisis is still very much with us.”
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