Saturday, September 8, 2012

MRT: Serial swindle

DIE HARD III
Herman Tiu Laurel
8/31/2012



Two weeks ago, in the midst of the Robredo plane crash frenzy, the Department of Transportation and Communications (DoTC) Secretary Mar Roxas announced, "Expect MRT fare increase in 2013," adding that, "It will be unfair for the areas in the provinces if we continue to subsidize Metro Manila as we have done so for the past 10 years," arguing, "It seems that there is a fairness issue here.  The money… can be redeployed to the countryside…" It rankles me whenever my intelligence is insulted by such ruling class ilk as Roxas who blames the people as "spoiled" for expecting low rates in public utilities, then pit metropolitan and rural Filipinos against each other to obfuscate.

From the time the BS Aquino III government debuted, it was clear that the party in power — courtesy of Hocus-PCOS — would be raising all public utility rates even if unnecessary and unjust.  Roxas' ilk, for one, has been broaching up to 200 percent fare increases since 2011. Only public indignation has kept the wolves at bay so far.

From three years of confirmed analyses, public statements of groups like the National Consumer Council of the Philippines (NCCP) that dialogued with the DoTC staff, and tracking of business news developments, it is clear that the MRT/LRT are not operationally losing propositions. What Roxas and his ilk claim as "losses" of these projects are not operational but financial costs. In all, Roxas and his cohorts in the oligarchy, in connivance with their captive politicians, particularly Fidel V. Ramos and Gloria Arroyo, are the culprits.  Thus, it is imperative to review the project histories to see through the lies.

We will focus on the MRT at this point, which is a project built by private "investor" groups  which proceeded to "securitize" the project based on the extremely "diabetic" sweetheart deal granted to them by FVR. First, the group obtained a very mind-blowing passenger load guarantee of hundreds of thousands daily based on up to P60 one-way fares signed by FVR in the mid-1990s. With this fantastically attractive contract and lucrative cash flow promised, the investor group then collateralized these to obtain funds for the project. The transnational banks and investment companies, in turn, took their pound of flesh from the fat terms the investor group got.

However, as things progressed, the time bombs in the contract began to show, as the original high fares of the MRT based on a passenger load of 20,000 daily could not even be attained, which guarantees meant that government still had to pay the investor group the exorbitant contract costs — including the horrendous financial burden from the deliberately unrealistic and one-sided terms in favor of the investors.

It then became clear that the so-called subsidy of government is going neither to the MRT operations nor to the commuters. And since the major cost of the MRT is due to the financial burdens foisted on the people from the serial swindle by the oligarchs and Ramos, the subsidy has always been going to the investor group or consortium (aka the oligarchs) and their financial brokers.

Erap partially solved the problem in 1998 ("Erap orders high fares for Edsa-MRT reduced"), which the Makati Business Club, et al., not surprisingly, frowned upon. But, too bad for them: As fares were cut from a high of P60 down to P20 for a round trip, passenger count rose from 20,000 to 200,000 and kept rising until today's high of up to 700,000 daily, cutting government subsidy to the consortium's financial exactions. The oligarchs, however, are not to be outdone.  Arnold Padilla in his Web site, "A Radical's Nut," cited DoTC and MRT officials' admission that 85 percent of the cost of the MRT today is the constantly growing financial burden by the wheeling and dealing of the oligarchs who sell and resell ownership of the projects, as well as the profits made at each stage.

The latest in the serial swindle is the MRT sale to Goldman Sachs and then to the another Group. The MRT investor-consortium had a 25-year Build-Lease-Transfer (BLT) agreement with the government, which would pay Equity Rental Payments (ERP) guaranteeing a 15-percent per annum return, as well as a maintenance fee and recovery of taxes.

In 2002, the MRT consortium members, securitized their share of the ERPs by issuing MRT III Funding Corp. (MRT3FC) bonds and shares sold to outside investors for an advance payment.  With the securitization, MRT3FC had a 77.7 percent share, Another investor, 19.9 percent, and minorities 2.4 percent. But as government had difficulty with a lease due to the financial burden, the private investor subsequently sold its interest to Goldman Sachs. Goldman Sachs and partners then sued government for $230 million, forcing the Arroyo administration to buy back bonds and shares through the Development Bank of the Philippines and Land Bank. These government financial institutions extended a $180-million loan to Global Air Services (GAS), an offshore company with $2 in capital and $400,000 in losses. GAS turned out to be a shell company which offsets the loan against the purchase price.

Then Department of Finance (DoF) Secretary Gary Teves, now director of Atok Big Wedge and Alphaland, said the deal saved the country $380 million on MRT ERPs against the cost of the buyout, when the money was actually used to buy out Goldman ($64.5 million), Presidio Capital ($26.5 million) and Ashmore ($87.6 million).

That was another layer of "transaction costs" ($3.6 million of "fees" and profits of Goldman et al.) that these parties added on the MRT, which financial burden Roxas and BS Aquino III now want to blame and impose on faultless MRT commuters.
If Roxas gets his way and raises the fares, it will be ready for the picking again by another oligarch, whose re-privatization takeover has been in the works since 2011 — a neat last chapter indeed to the serial swindle story!

(Watch Talk News TV with HTL, Saturdays, 8 to 9 p.m., with replay at 11:15 p.m. and Sundays, on GNN Destiny Cable Channel 8, also available on the Internet at http://www.gnntv-asia.com, this week on "MRT: Welfare for the Rich, Burden for the Poor;" visit http://newkatipunero.blogspot.com)

Sereno's record

DIE HARD III
Herman Tiu Laurel
8/27/2012



The appointment of Maria Lourdes Sereno as Chief Justice (CJ) lends new luster to reports of her legal opinion on the controversial Hacienda Luisita (HLI) case in 2011: "Only Associate Justice Ma. Lourdes Sereno, the President's first appointee to the high court, believed that the compensation must be pegged at the Jan. 2, 2006 rate."  That's the highest amount of compensation, totaling P10 billion, for the 4,915-hectare estate of the Aquino-Cojuangcos of BS Aquino III, which Luisita farmers obviously would not be able to afford.

The Supreme Court (SC) majority — in stark contrast to Sereno's view — based the valuation on 1989 figures, or P200 million for the entire estate, when the HLI stock option plan was implemented (and now declared illegal). Sereno's 18-year-long stint in the Judiciary, most especially these times under Aquino and the Yellows, will necessarily be colored by the legal interpretations she has made in the past. Will she ever shake off the stigma? This is the very situation that the SC petition of Adaza-Paguia-Borja-Laurel et al. (including the Tribune readers who sent in contributions for its filing in July) sought to avoid by questioning the constitutionality of the presidential appointment of the CJ.

A careful reading of the 1987 Constitution shows no provision empowering the President to appoint SC chief justices. Based on our (supposedly) democratic system's fundamental principles of "checks-and-balances" and "separation of powers," requiring an "independent Judiciary," the CJ ought to be elected by his or her peers. Even as the high court under Acting Chief Justice Antonio Carpio (who was chosen so by peers) finally issued a denial of our petition based on jurisprudence (past decisions), a Motion for Reconsideration is being prepared.  From my layman's interpretation of our counsels' position, where a clear constitutional provision was pointed out, jurisprudence should not be the basis for judging on the issue.

Else, a cloud of doubt will forever hang over any SC Chief Justice appointed by the Chief Executive hereon until the petitioners' issue is resolved satisfactorily.

It is already the impression of many people that the appointment of the new CJ also has a political agenda, involving the presidential elections of 2016.  Things are turning out to be a "Corona affair" all over again as politically charged parties clash over decisions of a chief magistrate that is seen to be beholden to the appointing power and serving as his political hatchet-person.

The partisan political angle, however, is not Sereno's only problem.  From consumer protection advocates in power, water, and other public utilities, where the oligarchy's power and control prevails over public regulatory agencies, specifically with regard to Energy Regulatory Commission (ERC) and Manila Electric Co. (Meralco) abuses, Sereno will be remembered for her total lack of sympathy for the people and her blatantly pro-power oligarchy sentiments. We wrote this in 2011 about the SC siding with both the ERC and Meralco on a 2009 P0.29 per kilowatt-hour rate hike petition on purely technical procedural grounds: "It makes everyone wonder whether PeNoy's first SC appointee, Justice Lourdes Sereno, really appreciates the substantive issue of Salus populi est suprema lex (The welfare of the people is the supreme law) when she, as ponente, faulted consumers, saying, 'They should be more vigilant in protecting their rights.'  And since consumer advocates have to pay for their own fares; solicit volunteer legal representation; and plod through deliberately obfuscated ERC rules and rulings, how can Sereno still claim that we consumers have been remiss?  We, therefore, have to ask this of the SC, the supposed last bastion of the people's hope for justice, which championed public welfare in 2003 by confirming the Return-on-Rate Base (RoRB), as well as vetoed the charging of corporate income tax to consumers and ordered the Commission on Audit (CoA) to sift through the books: Has it now been captured, too?"

In 2012 we wrote that "Sereno was ponente to an SC Second Division decision junking consumer protection groups' petition for a temporary restraining order (TRO) against the 26.9-centavo Meralco rate increase and its overcharge beyond the 12-percent RoRB affirmed by the SC in 2003, on the basis of the ERC's violation of the consumers' right to due process in refusing consumers opportunity to present their opposition. Though the high court… admitted that the ERC 'prematurely' issued the assailed decision 'since the period for the petitioners to file their comment/opposition had not lapsed then,' Sereno (as ponente) still decided against the consumer groups … in contrast to Meralco, which the ERC allowed to charge consumers its two dozen lawyers at the hearing and its P2.2-billion 'regulatory liaison' fund…"

For ordinary folks whose concerns revolve mainly around government greed and corruption, let's recall Aytch de la Cruz' 2011 report calling BS Aquino "to check on the (CoA) records where it will definitely show that the Manila International Airport Authority (MIAA) funded the $50 million (almost P1 billion) legal fees, which were in turn received by the government lawyers, among whom were retired Justice Florentino Feliciano and then lawyer Lourdes Sereno, now an associate justice who was rewarded with the high court post by Aquino, who claimed it was she who had won in the (Philippine International Air Terminals Co. Inc. International Chamber of Commerce) case against government..."

To date, Sereno has never satisfactorily explained this "windfall" from government funds when asked about her Statement of Assets, Liabilities and Networth.

And that is the kind of record the Yellows are so proud of?

(Watch Talk News TV with HTL, Saturdays, 8 to 9 p.m., with replay at 11:15 p.m. and Sundays, on GNN Destiny Cable Channel 8, this week on "Power and Economic Justice and Nationalism" with former CJ Reynato Puno and KME chairman Jimmie Regalario; visit http://newkatipunero.blogspot.com)

Friday, August 24, 2012

Power and nationalism

DIE HARD III
Herman Tiu Laurel
8/24/2012



Last Monday's column zeroed in on the "Meralco 'subsidy' spin." Besides showing that the Manila Electric Co. (Meralco) and, by extension, Philippine power rates are among the top five highest in the world, we were able to point out that this is not due to any government subsidy but because of a number of other reasons.

In fact, if any subsidy were being given, it is the consumers footing the bill--first, by advancing payments each year--for four year regulatory periods--to Meralco and other distribution utilities (DUs); then, via exorbitant Wholesale Electricity Spot Market (WESM) rates for selected independent power producers (IPPs); then, as payments to Meralco based on a 500-percent to 900-percent overprice of transformers, substations, electric poles, and other assets; plus, a P2.2-billion Meralco exaction for "regulatory liaison;" or even the power firm's carry-on of non-power-related real estate and other projects to its asset base; and the up to 17 percent Performance Based Regulation (PBR) scheme that supplanted the fixed 12 percent Return-on-Rate Base (RoRB) formula that was already upheld by the Supreme Court (SC) in 2003.

Jojo Borja of Iligan Light and Power Inc. (ILPI), being a third generation practitioner in the power generation and distribution business, called us to elaborate further on what he sees as the beauty of the RoRB system.

According to him, "there are even more important differences between the RoRB and the PBR aside from the simple of 12 percent versus 17 percent arithmetic. The 12 percent RoRB is a cap and not automatically granted; and DUs sometimes have to wait for up to three years... as the authorities would review every aspect, from exchange rate to cost of fuel and changes in cost of equipment, etc.; what is approved could be a lot lower than 12 percent. The 17 percent PBR is not only a 30 percent higher rate; it is also granted in advance for four years of a regulatory period and automatically every year until the reevaluation four years later (or the only time) when the rates are reviewed."

But here comes the clincher from Borja's own admission: "Despite the RoRB stringency, ILPI made money; but with the PBR, it's always a bonanza."

Butch Junia, the indefatigable investigator of Meralco foibles e-mailed us his additional observations after reading our last column: "Residential (consumers) contribute 71 percent of Meralco total revenue, the balance from non-residential; in other words, we pay double, not just 25 percent more."

He moreover contends that "PBR as implemented… differs from the way it should be implemented (because) the six objectives of PBR, according to Ingo Vogelsang of Boston University, in his paper 'Electricity transmission pricing and performance-based regulation,' are: efficient day-to-day operation; efficient investment; signaling locational advantages; cost recovery; simplicity and transparency; and political feasibility… (the last of which) means no class of customer is materially disadvantaged relative to another…"

Based on the aforementioned, Junia notes that the "PBR here will fall short on the objectives, particularly the last two."

"On the global price," he adds, "Wikipedia electricity pricing shows that the Philippines is fifth highest after Tonga (57 US cents), Denmark (40.38), Germany (36.48), and Brazil (34.18)... (where the) Philippines is at 30.46… but that was as of March 2010. Considering increases since then, and if Meralco's rate is (now) more than P14 per kilowatt-hour (KWh), then we could be the highest at around 58 US cents. But that is the highest residential rate for Meralco customers, not their average. Still, that is what those consuming more than 400 kWh are charged."

So while the rest of the country debates minor or, worse, irrelevant issues, our nation's power patriots are doggedly sticking their magnifying glasses on the fine print of the labyrinthian local and global experience, rules and processes, as well as actual power rates which a host of government bureaucrats are blind to.

Borja, for instance, has brought his Energy Regulatory Commission (ERC) exposés to Malacañang and to Commission on Audit (CoA) commissioner Heidi Mendoza--but to no avail. Yet, in spite of such setbacks, our crusaders continue to plod on.

The same is true for one other power patriot whom we should highlight this day, August 24th. A former SC Chief Justice (CJ) and the current Honorary Chairman of the Kilusan ng Makabansang Ekonomiya (Movement for a Nationalist Economy), former CJ Reynato Puno, whose Supreme Court affirmed in a landmark 2003 ruling the paramount importance of the 12 percent RoRB cap as the true system for basing Philippine power rates, now joins our increasingly growing ranks.

That landmark decision, which also ordered a CoA audit of three sample years of Meralco's books, later found P46-billion disallowances based on our most senior power consumer crusader Mang Naro Lualhati's computation of CoA's findings.

Unfortunately, those actions were insidiously subverted in the ERC boardroom in 2004 when the regulatory body's commissioners created the PBR and distorted the power rate setting mechanism to the great disadvantage of the Filipino people, while ringing the cash registers of Meralco with annual profit increases of close to 100 percent consecutively thereafter.

Justice Puno will be speaking today, 8:00 a.m. to 12 noon, in the KME-sponsored "Chief Justice Reynato Puno Lecture Series on Economic Justice" at the UP Bahay Alumni. He will also join me in my GNN (September 1, Saturday) "Politics Today" show to discuss the situation of economic justice, specifically how the Philippine power rate crisis is suppressing economic development and justice in this country today.

(Watch Talk News TV with HTL, Saturdays, 8 to 9 p.m., with replay at 11:15 p.m. and Sundays, on GNN Destiny Cable Channel 8, this week on "Politicization of the Judiciary" with Alan Paguia; visit http://newkatipunero.blogspot.com)