LEGAL NOTE 0047: THE BNPP STORY (BATAAN NUCLEAR POWER PLANT)

 SOURCE:

 With Due Respect
After 35 years, still languishing

By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 01:24:00 03/27/2011

The BNPP was constructed at the cost of $2 billion during the martial law years. After Cory Aquino ascended to the presidency, it was abandoned for various reasons. Up to the present, it remains inoperable and appears to be rotting to inutility.

In August 1973, barely a year after martial law was declared, President Ferdinand Marcos instructed the National Power Corporation (NPC) to “pursue, supervise and undertake the construction and the eventual operation of the nuclear power plant in Morong, Bataan.”

Several companies—including Westinghouse Electric Company and its associate, Burns & Roe—showed interest in the project. Westinghouse retained Herminio Disini to act as its, to quote the Supreme Court, “go-between with Marcos. Disini was known to be the late president’s close personal associate, whose wife was then First Lady Imelda R. Marcos’ first cousin and the Marcos family’s personal physician.”

On April 24, 1974, Westinghouse sent Marcos, through Disini, a letter containing its turnkey proposal. Upon receipt of the letter and without public bidding, Marcos informed NPC of his preference for Westinghouse. In a Cabinet meeting on June 6, 1974, Marcos categorically stated his choice of Westinghouse and authorized NPC General Manager Ramon Ravanzo to sign a letter of commitment to Westinghouse for the supply and construction of “two 626-megawatt nuclear power plants.”

Over the objections of three key officials—Executive Secretary Alejandro Melchor, Solicitor General Estelito Mendoza and Ravanzo himself—saying that the Westinghouse proposal was “highly onerous and disadvantageous to the government,” Marcos rammed through the project. The contract was signed 35 years ago on Feb. 9, 1976.

Criminal charges. A decade later, after Cory Aquino took over Malacañang, the Presidential Commission on Good Government (PCGG) charged Disini (and others) with violations of our criminal laws. After another decade, on May 31, 1997, then Ombudsman Aniano Desierto dismissed the charges “for lack of prima facie evidence.”

Ironically, in an action brought by the Philippines against Westinghouse, the District Court of New Jersey (USA)—after evaluating the same evidence submitted to Desierto—ruled on Sept. 19, 1991 that “there (was) sufficient evidence of bribery.”

The PCGG haled Desierto on certiorari to the Supreme Court (PCGG v. Desierto), which on Feb. 10, 2003 directed the Office of the Ombudsman “to file in the proper court the appropriate criminal charge(s).” I shall never forget that well-fought case because I started as a dissenter during our internal deliberations. The justice to whom the case was raffled sided with Desierto. But after a majority in the Court voted with me, I became the decision writer (or ponente).

The ponencia detailed the many pieces of testimonial and documentary evidence showing why Desierto abused his discretion in dismissing the charges. Among these were almost a hundred pages of affidavits of top insider-officials of both Westinghouse (and Burns & Roe) and Herdis Management and Investment Corp. (Disini’s outfit) showing “probable cause” for the crimes charged.

Good laws and good men. As directed by the Supreme Court, Simeon Marcelo (Desierto’s successor) thereafter filed criminal charges in the Sandiganbayan against Disini. Up to now, however, the case is still languishing in the anti-graft court for various reasons. For one, the Sandiganbayan could not, for a long while, acquire jurisdiction over the accused because he could not be located. He allegedly migrated to Austria. For another, several witnesses, especially the American officials of Westinghouse, could not be found either. Time has devious ways of devouring evidence, memory and the will to prosecute.
 

 

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THE BREAKDOWN of the Fukushima Daiichi Nuclear Power Station in earthquake- and tsunami-devastated northern Japan has revived public debates on the feasibility and wisdom of reactivating the Bataan Nuclear Power Plant (BNPP). These debates all remind us that, despite not benefiting from it, our impoverished people dutifully paid in installment for this nuclear monument. As a retired jurist, I am in turn sadly reminded that, despite decades-old charges of corruption, bribery and other crimes attending the BNPP, no one has yet been convicted or sent to jail for the fiasco.

The BNPP was constructed at the cost of $2 billion during the martial law years. After Cory Aquino ascended to the presidency, it was abandoned for various reasons. Up to the present, it remains inoperable and appears to be rotting to inutility.

In August 1973, barely a year after martial law was declared, President Ferdinand Marcos instructed the National Power Corporation (NPC) to “pursue, supervise and undertake the construction and the eventual operation of the nuclear power plant in Morong, Bataan.”

Several companies—including Westinghouse Electric Company and its associate, Burns & Roe—showed interest in the project. Westinghouse retained Herminio Disini to act as its, to quote the Supreme Court, “go-between with Marcos. Disini was known to be the late president’s close personal associate, whose wife was then First Lady Imelda R. Marcos’ first cousin and the Marcos family’s personal physician.”

On April 24, 1974, Westinghouse sent Marcos, through Disini, a letter containing its turnkey proposal. Upon receipt of the letter and without public bidding, Marcos informed NPC of his preference for Westinghouse. In a Cabinet meeting on June 6, 1974, Marcos categorically stated his choice of Westinghouse and authorized NPC General Manager Ramon Ravanzo to sign a letter of commitment to Westinghouse for the supply and construction of “two 626-megawatt nuclear power plants.”

Over the objections of three key officials—Executive Secretary Alejandro Melchor, Solicitor General Estelito Mendoza and Ravanzo himself—saying that the Westinghouse proposal was “highly onerous and disadvantageous to the government,” Marcos rammed through the project. The contract was signed 35 years ago on Feb. 9, 1976.

Criminal charges. A decade later, after Cory Aquino took over Malacañang, the Presidential Commission on Good Government (PCGG) charged Disini (and others) with violations of our criminal laws. After another decade, on May 31, 1997, then Ombudsman Aniano Desierto dismissed the charges “for lack of prima facie evidence.”

Ironically, in an action brought by the Philippines against Westinghouse, the District Court of New Jersey (USA)—after evaluating the same evidence submitted to Desierto—ruled on Sept. 19, 1991 that “there (was) sufficient evidence of bribery.”

The PCGG haled Desierto on certiorari to the Supreme Court (PCGG v. Desierto), which on Feb. 10, 2003 directed the Office of the Ombudsman “to file in the proper court the appropriate criminal charge(s).” I shall never forget that well-fought case because I started as a dissenter during our internal deliberations. The justice to whom the case was raffled sided with Desierto. But after a majority in the Court voted with me, I became the decision writer (or ponente).

The ponencia detailed the many pieces of testimonial and documentary evidence showing why Desierto abused his discretion in dismissing the charges. Among these were almost a hundred pages of affidavits of top insider-officials of both Westinghouse (and Burns & Roe) and Herdis Management and Investment Corp. (Disini’s outfit) showing “probable cause” for the crimes charged.

Good laws and good men. As directed by the Supreme Court, Simeon Marcelo (Desierto’s successor) thereafter filed criminal charges in the Sandiganbayan against Disini. Up to now, however, the case is still languishing in the anti-graft court for various reasons. For one, the Sandiganbayan could not, for a long while, acquire jurisdiction over the accused because he could not be located. He allegedly migrated to Austria. For another, several witnesses, especially the American officials of Westinghouse, could not be found either. Time has devious ways of devouring evidence, memory and the will to prosecute.

With the elevation of Cory Aquino’s son to the presidency, this long delayed case should find the light of day. However, President Aquino’s anti-corruption program is itself still mired in a whirlpool of difficulty and delay.

Without alluding to anyone in particular, the moral lesson is that, despite the well-intentioned reforms of our 1987 Constitution to grant plenary powers, independence and protection to our constitutional offices, it takes courageous and patriotic officials to clear the barnacles of corruption and to steer the ship of state through the storms buffeting the country.

One thing it is to have the institutions and laws to fight graft. Another thing it is to have steel-willed men and women who will occupy these institutions and enforce these laws. Worse it is, when the inept and uncaring capture these powerful offices. Then, even reform-minded presidents would find extreme difficulty to carry out their mandates, clean the stables and govern wisely.

Will we ever find the right combination of good laws and good men to lift our people from the mire of corruption and poverty?