CASE 2012-0072: HEIRS OF WILSON P. GAMBOA, PETITIONERS, VS. FINANCE SECRETARY MARGARITO B. TEVES, FINANCE UNDERSECRETARY JOHN P. SEVILLA, AND COMMISSIONER RICARDO ABCEDE OF THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) IN THEIR CAPACITIES AS CHAIR AND MEMBERS, RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM OF FIRST PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET HOLDINGS INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT) IN HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD., PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, CHAIR FE BARIN OF THE SECURITIES AND EXCHANGE COMMISSION, AND PRESIDENT FRANCIS LIM OF THE PHILIPPINE STOCK EXCHANGE, RESPONDENTS. (G.R. NO. 176579, 09 OCTOBER 2012, CARPIO, J.) SUBJECT/S: DEFINITION OF CAPITAL IN CORPORATION LAW; THE GODFATHER RULE (BRIEF TITLE: HEIRS OF GAMBOA VS. TEVES)
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DISPOSITIVE:
WHEREFORE, we DENY the motions for reconsideration WITH FINALITY. No further pleadings shall be entertained.
SO ORDERED.
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SUBJECTS/DOCTRINES/DIGEST:
SUPPOSE A PETITION FOR REVIEW IS PROCEDURALLY DEFECTIVE. WILL THE SUPREME STILL ENTERTAIN THE PETITION?
YES, IF THE MAIN ISSUE IN THE CASE IS OF TRANSCENDENTAL IMPORTANCE.
In Luzon Stevedoring Corp. v. Anti-Dummy Board,8 the Court deemed it wise and expedient to resolve the case although the petition for declaratory relief could be outrightly dismissed for being procedurally defective. There, appellant admittedly had already committed a breach of the Public Service Act in relation to the Anti-Dummy Law since it had been employing non-American aliens long before the decision in a prior similar case. However, the main issue in Luzon Stevedoring was of transcendental importance, involving the exercise or enjoyment of rights, franchises, privileges, properties and businesses which only Filipinos and qualified corporations could exercise or enjoy under the Constitution and the statutes.
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WHAT IS TRANSCENDENTAL IN THE CASE AT HAND AND WHY?
THE INTERPRETATION OF THE TERM “CAPITAL” IN SECTION 11, ARTICLE XII OF THE CONSTITUTION HAS FAR-REACHING IMPLICATIONS TO THE NATIONAL ECONOMY. IN FACT, A RESOLUTION OF THIS ISSUE WILL DETERMINE WHETHER FILIPINOS ARE MASTERS, OR SECOND-CLASS CITIZENS, IN THEIR OWN COUNTRY. WHAT IS AT STAKE HERE IS WHETHER FILIPINOS OR FOREIGNERS WILL HAVE EFFECTIVE CONTROL OF THE PHILIPPINE NATIONAL ECONOMY.
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PANGILINAN ET AL CONTEND THAT THE TERM “CAPITAL” IN SECTION 11, ARTICLE XII OF THE CONSTITUTION HAS LONG BEEN SETTLED AND DEFINED TO REFER TO THE TOTAL OUTSTANDING SHARES OF STOCK, WHETHER VOTING OR NON-VOTING. IS THEIR CONTENTION CORRECT?
NO. THE SUPREME COURT HAS NEVER YET INTERPRETED THE MEANING OF “CAPITAL” IN THE CONTEXT OF SECTION 11, ARTICLE XII OF THE CONSTITUTION.
For more than 75 years since the 1935 Constitution, the Court has not interpreted or defined the term “capital” found in various economic provisions of the 1935, 1973 and 1987 Constitutions. There has never been a judicial precedent interpreting the term “capital” in the 1935, 1973 and 1987 Constitutions, until now. Hence, it is patently wrong and utterly baseless to claim that the Court in defining the term “capital” in its 28 June 2011 Decision modified, reversed, or set aside the purported long-standing
definition of the term “capital,” which supposedly refers to the total outstanding shares of stock, whether voting or non-voting.
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To repeat, until the present case there has never been a Court ruling categorically defining the term “capital” found in the various economic provisions of the 1935, 1973 and 1987 Philippine Constitutions.
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PANGILINAN ET AL CONTENDS THAT SEC AND DOJ HAVE ALWAYS INTERPRETED CAPITAL TO REFER TO THE TOTAL OUTSTANDING SHARES OF STOCK WHETHER VOTING OR NOT. IS THEIR CONTENTION CORRECT?
NO. DOJ AND SEC HAVE ISSUED CONFLICTING INTERPRETATIONS.
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The opinions of the SEC, as well as of the Department of Justice (DOJ), on the definition of the term “capital” as referring to both voting and non-voting shares (combined total of common and preferred shares) are, in the first place, conflicting and inconsistent.
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IS THERE ANY DOJ OPINION WHICH IS CONSISTENT WITH THE SC RULING, BEING NOW CONTESTED, ON THE MATTER?
YES IN DOJ OPINION NO. 130 DATED 07 OCTOBER 1985, DOJ RULED THAT THE RESULTING OWNERSHIP STRUCTURE OF THE SUBJECT CORPORATION WOULD BE UNCONSTITUTIONAL BECAUSE 60% OF THE VOTING STOCK WOULD BE OWNED BY JAPANESE WHILE FILIPINOS WOULD OWN ONLY 40% OF THE VOTING STOCK, ALTHOUGH WHEN THE NON-VOTING STOCK IS ADDED, FILIPINOS WOULD OWN 60% OF THE COMBINED VOTING AND NON-VOTING STOCK.
In DOJ Opinion No. 130, s. 1985,10 dated 7 October 1985, the scope of the term “capital” in Section 9, Article XIV of the 1973 Constitution was raised, that is, whether the term “capital” includes “both preferred and common stocks.” The issue was raised in relation to a stock-swap transaction between a Filipino and a Japanese corporation, both stockholders of a domestic corporation that owned lands in the Philippines. Then Minister of Justice Estelito P. Mendoza ruled that the resulting ownership structure of the corporation would be unconstitutional because 60% of the voting stock would be owned by Japanese while Filipinos would own only 40% of the voting stock, although when the non-voting stock is added, Filipinos would own 60% of the combined voting and non-voting stock.
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In short, Minister Mendoza categorically rejected the theory that the term “capital” in Section 9, Article XIV of the 1973 Constitution includes “both preferred and common stocks” treated as the same class of shares regardless of differences in voting rights and privileges. Minister Mendoza stressed that the 60-40 ownership requirement in favor of Filipino citizens in the Constitution is not complied with unless the corporation “satisfies the criterion of beneficial ownership” and that in applying the same “the primordial consideration is situs of control.”
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IS THERE ANY SEC OPINION WHICH IS CONSISTENT WITH THE SC RULING, BEING NOW CONTESTED, ON THE MATTER?
YES. IN OPINION NO. 23-10 DATED18 AUGUST 2012, SEC APPLIED THE VOTING CONTROL TEST, THAT IS USING ONLY THE VOTING STOCK TO DETERMINE WHETHER A CORPORATION IS A PHILIPPINE NATIONAL.
On the other hand, in Opinion No. 23-10 dated 18 August 2010, addressed to Castillo Laman Tan Pantaleon & San Jose, then SEC General Counsel Vernette G. Umali-Paco applied the Voting Control Test, that is, using only the voting stock to determine whether a corporation is a Philippine national.
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WILL THE OPINION ISSUED BY A SEC LEGAL OFFICER OR A SEC COMMISSIONER ESTABLISH PRECEDENCE?
NO. THEIR OPINION APPLIES ONLY TO A PARTICULAR CASE. IT IS THE OPINION OF THE WHOLE COMMISSION THAT ESTABLISHES A PRECEDENCE.
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The opinions issued by SEC legal officers do not have the force and effect of SEC rules and regulations because only the SEC en banc can adopt rules and regulations. As expressly provided in Section 4.6 of the Securities Regulation Code,12 the SEC cannot delegate to any of its individual Commissioner or staff the power to adopt any rule or regulation. Further, under Section 5.1 of the same Code, it is the SEC as a collegial body, and not any of its legal officers, that is empowered to issue opinions and approve rules and regulations.
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IS THE GRANDFATHER RULE APPLICABLE TO THIS CASE?
YES. EVEN SEC APPLIED IT.
Significantly, the SEC en banc, which is the collegial body statutorily empowered to issue rules and opinions on behalf of the SEC, has adopted the 60-40 ownership requirement in favor of Filipino citizens mandated by the Constitution for certain economic activities. This prevailing SEC ruling, which the SEC correctly adopted to thwart any circumvention of the required Filipino “ownership and control,” is laid down in the 25 March 2010 SEC en banc ruling in Redmont Consolidated Mines, Corp. v. McArthur Mining, Inc., et al.,15 to wit:
The avowed purpose of the Constitution is to place in the hands of Filipinos the exploitation of our natural resources. Necessarily, therefore, the Rule interpreting the constitutional provision should not diminish that right through the legal fiction of corporate ownership and control. But the constitutional provision, as interpreted and practiced via the 1967 SEC Rules, has favored foreigners contrary to the command of the Constitution. Hence, the Grandfather Rule must be applied to accurately determine the actual participation, both direct and indirect, of foreigners in a corporation engaged in a nationalized activity or business.
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WHAT IS THE GRANDFATHER RULE?
COMPLIANCE WITH THE CONSTITUTIONAL LIMITATION(S) ON ENGAGING IN NATIONALIZED ACTIVITIES MUST BE DETERMINED BY ASCERTAINING IF 60% OF THE INVESTING CORPORATION’S OUTSTANDING CAPITAL STOCK IS OWNED BY “FILIPINO CITIZENS”, OR AS INTERPRETED, BY NATURAL OR INDIVIDUAL FILIPINO CITIZENS. IF SUCH INVESTING CORPORATION IS IN TURN OWNED TO SOME EXTENT BY ANOTHER INVESTING CORPORATION, THE SAME PROCESS MUST BE OBSERVED. ONE MUST NOT STOP UNTIL THE CITIZENSHIPS OF THE INDIVIDUAL OR NATURAL STOCKHOLDERS OF LAYER AFTER LAYER OF INVESTING CORPORATIONS HAVE BEEN ESTABLISHED.
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WHAT WAS THE MAIN RULING IN THE 28 JUNE 2011 DECISION OF THE SC REGARDING THIS CASE?
THAT THE 60-40 OWNERSHIP REQUIREMENT IN FAVOR OF FILIPINO CITIZENS IN THE CONSTITUTION TO ENGAGE IN CERTAIN ECONOMIC ACTIVITIES APPLIES NOT ONLY TO VOTING CONTROL OF THE CORPORATION, BUT ALSO TO THE BENEFICIAL OWNERSHIP OF THE CORPORATION. MERE LEGAL TITLE IS INSUFFICIENT TO MEET THE 60 PERCENT FILIPINO OWNED “CAPITAL” REQUIRED IN THE CONSTITUTION. FULL BENEFICIAL OWNERSHIP OF 60 PERCENT OF THE OUTSTANDING CAPITAL STOCK, COUPLED WITH 60 PERCENT OF THE VOTING RIGHTS, IS REQUIRED. THE LEGAL AND BENEFICIAL OWNERSHIP OF 60 PERCENT OF THE OUTSTANDING CAPITAL STOCK MUST REST IN THE HANDS OF FILIPINO NATIONALS IN ACCORDANCE WITH THE CONSTITUTIONAL MANDATE. OTHERWISE, THE CORPORATION IS “CONSIDERED AS NON-PHILIPPINE NATIONAL[S]. BOTH THE VOTING CONTROL TEST AND THE BENEFICIAL OWNERSHIP TEST MUST BE APPLIED TO DETERMINE WHETHER A CORPORATION IS A “PHILIPPINE NATIONAL.”
To read the complete Decision please download the file below.
J.A.B. Bulao & Associates 