Right to water in privatization of Angat hydro power plant

Commission on Human Rights (CHR) Advisory:
The human right to drinking water is fundamental for life and health. Sufficient and safe drinking water is a precondition for the realization of all human rights.”1
Subject of this Human Rights Advisory is the right to water of the people, particularly those living in Metropolitan Manila and some parts of Luzon, in light of the impending privatization of the Angat Hydro-electric Power Plant.
 
The Human Right to Water
 
The right to adequate food and the right to water are human rights. The significance of water in our everyday lives cannot be over emphasized. It is an essential component of our diet. It also serves us in many different ways, including non-household purposes, for example, sanitation, transport, irrigation and food production, environmental hygiene and work.
 
The human right to water gained explicit recognition in two United Nations human rights treaties, the Convention on the Elimination on all Forms of Discrimination Against Women (CEDAW) and the Convention on the Right of the Child (CRC). While the International Convention on Economic Social and Cultural Rights (ICESCR) does not expressly make mention of the word “water” it is very explicit that State Parties must recognize the right of everyone to an adequate standard of living. Article 11 thereof specifies a number of rights emanating from and indispensable for the realization of the right to an adequate standard of living “including adequate food, clothing and housing.” Verily, the right to drinking water clearly falls within the category of guarantees essential for securing an adequate standard of living, because it is the most fundamental condition for survival. The right to drinking water is also related to the right to
attain the highest standards of health,2 and should be seen in relation with other rights enshrined in the International Bill of Human Rights, foremost among them being the right to life and human dignity.3 Without doubt, several, if not most of the basic rights cannot be fully realized without water.
 
As an important element of the human diet, the right to water generally takes on the many characteristics of food rights. Water has two features that differs it from food, as a source of health. First, water is irreplaceable. It has no adequate substitute. It is an essential element for a sufficient diet and a sustainable health. Hence, there is a human right to water.4
 
The second most distinctive feature of water is the traditional assumption of free or nearly free access to water. Unlike food, which takes about a substantial amount of work to produce, thus, people generally have to pay for the food they obtain, the prevailing assumption with regard to water is that it is not a marketed good. The increased privatization of previously open access water supply and the increasing popularity of bottled water are rapidly undermining that assumption. Thus, while people are comfortable with the idea that the human right to food means access at reasonable prices, we may want to claim that the human right to water means a right to free or nearly free water.5
 
However, even if it is generally viewed as free, it is a fact that there are costs in providing water because there are costs for sanitizing and delivering it. Hence, measures must be in place to assure that water is delivered to and is safe for drinking by the public. Since water costs something to provide, and we generally expect it to be provided free or nearly free to the consumer, it follows that there is an expectation that the State, through the government that represents it, will bear much of the costs and will see to making the necessary arrangements. Simply put, it is generally assumed that governments have immediate and direct responsibilities for assuring that people within their jurisdiction have access to adequate water.6
 
Giving clarity that the right to water comes within the coverage and guarantees under the International Covenant on Economic, Social and Cultural Rights is General Comment No. 157 on the ICESCR, which expressly states that the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses.
 
Likewise, the Limburg Principles, as further reiterated in the Maastricht Guidelines, reaffirms the responsibility of the State or government to create a condition for the people to fulfill and enjoy economic, social and cultural rights.8 It is so stipulated that State parties are accountable both to the international community and to their own people for their compliance with the obligations under the Covenant. Further, private and non-State actors are admonished to respect, promote and help fulfill economic, social and cultural rights especially in the conduct of their business, or in the performance of their functions, and in the pursuit of their missions. Every individual has duties to other individuals and to the community to which he or she belongs, thus, everyone has the responsibility to advocate and strive for the recognition, protection, promotion of the human rights of everyone, in accord with international human rights standards, norms and principles.
 
The right to water of the people in the country is recognized and protected under Presidential Decree No. 1067, otherwise known as the Water Code of the Philippines, which mandates priority in the use of our water resources to domestic use, i.e., the utilization of water directly drawn from a source by a household for drinking, washing, bathing, cooking, watering of gardens or animals and other domestic use. Therefore, any other function of the facility like the Angat Dam should give way to its primary usage as water reservoir supplying water for domestic consumption.
 
The Angat Dam
 
The Angat Dam is a multi-purpose hydro-facility located along the Angat River in Norzagaray, Bulacan. Aside from being a hydro-electric power plant, generating hydro-electric power for the Luzon Grid, it is also a major source of potable water in the Metro Manila Area. In fact, ninety-seven percent (97%) of water supply for Metro Manila comes from Angat Reservoir, supplying the needs of eighty-two point two percent (82.2%) of the total population of the area.. It also irrigates some thirty-one thousand (31,000) hectares of rice lands and twenty (20) municipalities and towns in Pampanga and in Bulacan. It also functions as a flood controller for several municipalities in the same province. Incidentally, it is the last among the hydro-electric power facilities owned and controlled by the National Power Corporation to be privatized.
 
The Electric Power Industry Reform Act of 2001; State Policy
 
Pursuant to the Electric Power Industry Reform Act (EPIRA) of 2001 (R.A. 9136), it is the declared policy of the State to “promote the utilization of indigenous, new and renewable energy resources in power generation in order to reduce dependence on imported energy” and “to provide for an orderly and transparent privatization of assets and liabilities of the National Power Corporation.”9
 
EPIRA provides that, except for the assets of the Small Power Utility Group (SPUG), the generation assets, real estate, and other disposable assets as well as IPP contracts of the National Power Corporation shall be privatized in accordance with said Act. In particular, the law specifically mandates that in cases of transfer of possession, control, operation or privatization of multi-purpose hydro facilities, safeguards shall be prescribed to ensure that the national government may direct water usage in cases of shortage to protect potable water, irrigation and other requirement imbued with public interest.10
 
Among those assets of the National Power Corporation (NPC) includes the Angat Hydroelectric Power Plant (AHEPP). The AHEPP is the subject of the impending privatization by the NPC, with opposition from the Metropolitan Waterworks and Sewerage System (MWSS) and local government units/local chief executives, i.e., Quezon City, Manila City, Taguig City, Makati City, Pasig City, Antipolo City, Paranaque City, Muntinlupa City; Municipalities of Pateros, Cainta, Tatay, San Mateo, and Rodriguez, all of the Province of Rizal, and the League of Cities of the Philippines, endorsing the MWSS stand.
 
Opposing View to the Privatization of the AHEPP
 
The MWSS posits that the privatization of the Angat Hydro Electric Power Plant will put the reliability of water supply for Metro Manila at risk, stressing the following facts: The Angat Reservoir is the single source of water supply for Metro Manila; Angat Reservoir is the only NPC facility being used for domestic water supply; NPC’s series of violations of the National Water Regulation Board’s approved guidelines create operational problem to MWSS and destroy crops for National Irrigation Authority (NIA). Recent overflows at Ipo and Bustos Dam are results of power generations; power generation as a byproduct of the water releases to MWSS and NIA; and peaking time of power generation does not coincide with water supply demand requirements.
 
Incidentally, the MWSS and its concessionaires have been, for some time already, involved in the maintenance and development of the Angat Dam/Water Facility. In particular, as co-owner, MWSS investments in the Dam include the following: financed 35% of the construction cost of the Angat Dam Complex; funded a number and series of repair and maintenance works at Angat facilities; and constructed the Umiray-Angat Transbasin Tunnel which contributed approximately 30% additional water supply and power generation. As such, it has also declared its intention to acquire the said facility and attain to the fullest the efficient and sustainable utilization of the same as water reservoir for domestic consumption.
 
Hence, MWSS recommends the turn over of the ownership, operations and management of the NPC Angat Facility assets to MWSS, without the need of public bidding.
 
In this vein, MWSS has sought the legal opinion of the Office of the Government Corporate Counsel on the impending privatization of the AHEPP.
 
The Office of the Government Corporate Counsel, in its Opinion No. 107, issued on 27 May 2008 upon request of the President and Chief Executive Officer of the Power Sector Assets and Liabilities Management Corporation (PSALM), notes that the “Angat Facility is a multi-purpose hydro-facility and is an important factor in addressing the looming water crisis”. Apart from generating hydroelectric power for the Luzon Grid, it is currently the major source of domestic and industrial water requirements for residents in Metro Manila. In addition, it provides irrigation to about 31,000 hectares of land in 20 municipalities and towns in Pampanga and Bulacan. With the forecasted water crisis, the Angat Dam will surely play a key role in any government effort to address the problem. Thus, advising MWSS as follows:
 
PSALM is not limited to “selling” as a means of fulfilling its mandate under the EPIRA; and
 
The Angat Facility is a multipurpose hydro facility, which is crucial in addressing the looming water crisis.
 
It is important to stress that R.A. No. 9136 and its Implementing Rules and Regulations mandate the PSALM “[t]o manage the orderly sale, disposition, and privatization of NPC generation assets, real estate and other disposable assets, and IPP contracts x x x.”11 Hence, PSALM may resort to other ingenious modes of transferring NPC assets to another entity especially if in doing so, the value and sale prices of the said assets will be optimized12 and a greater public interest will be served.13
Section 47 of R.A. No. 9136 is very clear that PSALM’s mandate to “privatize” multi-purpose hydro facilities, such as the Angat Dam, must be done in accordance with the enumerated guidelines, among which is the limitation found in paragraph (e) thereof pertaining to the transfer of possession, control and operation of multi-purpose hydro facilities like the Angat Dam in the event of a water shortage. It is well within the authority of PSALM to consider transferring possession, control and operation of the Angat Facility to another entity in order “to protect potable water, irrigation and all other requirements imbued with public interest,” including the adoption of early measures to address the forecasted water crisis. This is in accord with the State’s avowed policy “to ensure an uninterrupted and adequate supply and distribution of potable water for domestic and other purposes.”14
 
Even the NPC Charter recognizes the pre-eminence of water over power,15 thus, attesting to the primacy of the State’s interest in mitigating the possible deleterious effects of an impending “water crisis” encompassing areas even beyond Metro Manila.
 
For PSALM to simply treat the Angat Facility as any other ordinary energy facility to be privatized shall not only be detrimental but a great disservice to the public, in clear contravention to the State’s declared policy ensuring the flow of clean, potable water under R.A. 6395 and Presidential Decree No. 1067; and, moreso, that “water is vital to national development xxx.”
 
Government will not be prejudiced if PSALM decides to transfer the Angat Facility to another government entity or agency, especially if the transfer is to a government entity better equipped and qualified to preserve and improve such asset, and more importantly, if such transfer will result in the conservation and guarantee of a vital public service such as the continued provision of potable water.
 
Thus, the GOCC opines that PSALM may, in the interest of stemming a potential water crisis, turn over the ownership, operations and management of the Angat Facility to a qualified entity, such as the MWSS, without need of public bidding as the latter is also a government entity.
 
The local government units/local chief executives, particularly of the Cities of Mandaluyong, Taguig, Paranaque, Quezon, Antipolo, and Pasig; and of the Municipalities of Pateros, Cainta, Taytay, Rodriguez, and San Mateo, all in the Province of Rizal, generally, are against the privatization of the Angat HEPP and support and endorse the position of the MWSS that the ownership, operations and control thereof be turned over to the MWSS. Among the reasons cited therefor are: the right of every person to a balanced and healthy environment in unity and harmony with nature; for the greater good of the public; Angat HEPP’s importance in alleviating the potential water crisis; it provides 97% of the domestic water supply in Metro Manila, irrigates about 27,000 hectares of rice land in Bulacan and Pampanga, provides a flood control function that benefit several municipalities in the said provinces; provides hydroelectric power in the Luzon Grid.
 
Instead, Angat HEPP privatization will be unquestionably precarious and most disadvantageous to all sectors concerned as it will have a detrimental effect on the populace, reduce food production and put ineffectual the flood control system, and will put the reliability of water supply for Metro Manila at great risk.
 
Hence, they: (1) endorse the exclusion of the AHEPP from the list of NPC assets for privatization; (2) call for the conservation and proper utilization of the Angat HEPP; and (3) support to the MWSS position.
On the other hand, the National Water Resources Board (NWRB,) pursuant to NWRB Resolution No. 018-0409, adopted during its 77th Board Meeting on April 27, 2009, RESOLVED to adopt the position that the operation of the Angat reservoir, notwithstanding privatization or transfer of ownership to Metropolitan Waterworks and Sewerage System, should be subject to stringent NWRB regulation xxx. Worth noting also is NWRB’s comment that, among others, [t]he promulgation of the EPIRA Law (RA 9136), which opened the gates for market trading of electricity under WESM (Wholesale Electricity Spot Market), has adversely impacted on the water supply for irrigation in Bulacan and Pampanga due to unsynchronized/ irregular water releases. At present, the NIA does not have adequate facility in Bulacan to receive water discharged in bulk by the power plant during peak hours of operation.
 
The Stand of the Commission on Human Rights
 
The concept of privatization, while laudable in assisting developing countries like the Philippines attain maximum and efficient use of their resources, has a resultant effect of increasing the cost in obtaining such benefits. It is also undeniable that the primary objective of most of the private enterprises is to generate profit. Revenues in this kind of investment are almost guaranteed considering the importance of water being an essential element of our diet and the guaranteed market availability – both domestically and industrially. Thus, it cannot be set aside that once the Angat HEPP will be privatized, there will be less-accessible water supply, particularly those living in Metropolitan Manila and the Province of Bulacan, and nearby areas which are currently benefited by the Angat HEPP.
 
IN VIEW THEREOF, the COMMISSION ON HUMAN RIGHTS, as an independent national human rights institution mandated to, among others, monitor the Philippine Government’s compliance with international human rights treaty obligations, STRONGLY CALLS on the Philippine Government to revisit and reassess its policy with regard to the provision of its water resources vis-à-vis its concurrent obligations under the International Covenant on Economic, Social and Cultural Rights to ensure adequate standard of living to the Filipino people, which necessarily include the bounden duty to provide, ensure and sustain safe, sufficient, affordable and convenient access to drinking water.
 
The Commission maintains that the right to water is more fundamental and primary over the need for power. Hence, all actions that necessarily affects, directly or indirectly, this right must be construed strictly in its favor.
 
The Commission is of the position that the management of Angat HEPP is better left to the MWSS being a government body and considering the amount of “public interest” involved. However, should the decision to privatize the same become inevitable, the Commission strongly calls for specific and concrete safeguards to ensure the right to water of all.
 
Specifically, attention must be given to vulnerable groups through definite and concrete safeguards against the negative impact of the “commodification” of water. The recognition of the “right to water” provides an ethical and legal framework for prioritizing the use of water focusing attention to vulnerable sectors of society and ensuring the participation of all stakeholders, especially rights-bearers, in the decision whether to privatize or transfer management of the Angat HEPP to the MWSS.
 
Further, and taking public notice of climate change, it is imperative for Government and other dutyholders concerned to immediately revisit and reassess its policy to privatize the Angat Hydro Electric Power Plant vis-à-vis the consequential effects of privatization on the lives and sources of livelihood of the people in Metro Manila, Bulacan and nearby areas, in consultation with them and/or their duly elected public officials.
 
Finally, the Commission advises Government to always consider paramount the most basic resources necessary and indispensable for human survival, which include water. And, in all its courses of action, the life and dignity of every human person in the country should always be central and of highest priority.
 
Issued this 9th day of November 2009, at Quezon City, Philippines.
 
 
 
LEILA M. DE LIMA
Chairperson
 
 
(Absent) ( On Official Travel )
CECILIA RACHEL V. QUISUMBING MA. VICTORIA V. CARDONA
Commissioner Commissioner
 
NORBERTO DELA CRUZ JOSE MANUEL S. MAMAUAG
Commissioner Commissioner
 
1 General Comment No. 15 (2002), Committee on Economic Social and Cultural Rights
2 Article 12, ICESCR
3 Ibid
4 George Kent, Human Rights to Water (September 11, 2009)
5 Ibid
6 Ibid
7General Comments constitute authoritative interpretations of the provisions of the Covenant, to clarify the normative content of the rights, State Parties’ and other actor’s obligations, violations and implementation of the right at the national level.
8 Part 1,A. par 10
9 Sec. 2 (h) and (i), R.A. 9136
10 Chapter V, Section 47(e), Ibid.
11 Section 47(e), R.A. 9136.
12 See Sections 47 & 51, Ibid.
13 Section 47(e), Ibid.
14 Section 1, R.A. No. 6234, as amended.
15 Section 12, R.A. 6234