Gamboa Vs Teves 2012

HEIRS OF WILSON P. GAMBOA,** petitioners, vs.FINANCE SECRETARY MARGARITO B.
TEVES, been a Court ruling categorically defining the term “capital” found in the various economic
FINANCE UNDERSECRETARY JOHN P. SEVILLA, AND COMMISSIONER RICARDO ABCEDE OF THE provisions of the 1935, 1973 and 1987 Philippine Constitutions.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) IN THEIR CAPACITIES AS CHAIR Securities and Exchange Commission (SEC); Securities Regulation Code; Under Section 5.1
AND MEMBERS, RESPECTIVELY, OF THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM of the Securities Regulation Code, it is the Securities and Exchange Commission (SEC) as a
OF FIRST PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO PACIFIC ASSET HOLDINGS collegial body, and not any of its legal officers, that is empowered to issue opinions and approve
INC., CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG DISTANCE TELEPHONE rules and regulations.―The opinions issued by SEC legal officers do not have the force and
COMPANY (PLDT) IN HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD., effect of SEC rules and regulations because only the SEC en banc can adopt rules and
PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, regulations. As expressly provided in Section 4.6 of the Securities Regula-
CHAIR FE BARIN OF THE SECURITIES AND EXCHANGE COMMISSION, and PRESIDENT FRANCIS 399
LIM OF THE PHILIPPINE STOCK EXCHANGE, respondents. VOL. 682, OCTOBER 9, 2012 399
PABLITO V. SANIDAD and ARNO V. SANIDAD, petitioners-in-intervention.
Remedial Law; Civil Procedure; In Luzon Stevedoring Corp. v. Anti-Dummy Board, 46 SCRA Heirs of Wilson P. Gamboa vs. Teves
474 (1972), the Court deemed it wise and expedient to resolve the case although the petition for tion Code, the SEC cannot delegate to any of its individual Commissioner or staff the
declaratory relief could be outrightly dismissed for being procedurally defective; The Supreme power to adopt any rule or regulation. Further, under Section 5.1 of the same Code, it is the SEC
Court deemed it necessary to finally dispose of the case for the guidance of all concerned, despite as a collegial body, and not any of its legal officers, that is empowered to issue opinions and
the apparent procedural flaw in the petition.―In Luzon Stevedoring Corp. v. Anti-Dummy Board, approve rules and regulations.
46 SCRA 474 (1972), the Court deemed it wise and expedient Same; Grandfather Rule; The Securities and Exchange Commission (SEC) en banc, which
_______________ is the collegial body statutorily empowered to issue rules and opinions on behalf of the SEC, has
* EN BANC. adopted even the Grandfather Rule in determining compliance with the 60-40 ownership
** The Heirs of Wilson P. Gamboa substituted petitioner Wilson P. Gamboa per requirement in favor of Filipino citizens mandated by the Constitution for certain economic
Resolution dated 17 April 2012 which noted the Manifestation of Lauro Gamboa dated 12 April activities.―Significantly, the SEC en banc, which is the collegial body statutorily empowered to
2012. issue rules and opinions on behalf of the SEC, has adopted even the Grandfather Rule in
398 determining compliance with the 60-40 ownership requirement in favor of Filipino citizens
mandated by the Constitution for certain economic activities. This prevailing SEC ruling, which
398 SUPREME COURT REPORTS ANNOTATED
the SEC correctly adopted to thwart any circumvention of the required Filipino “ownership and
Heirs of Wilson P. Gamboa vs. Teves control,” is laid down in the 25 March 2010 SEC en banc ruling in Redmont Consolidated Mines,
to resolve the case although the petition for declaratory relief could be outrightly Corp. v. McArthur Mining, Inc., et al.
dismissed for being procedurally defective. There, appellant admittedly had already committed Capital; Statutory Construction; The power to make a final interpretation of the law, in
a breach of the Public Service Act in relation to the Anti-Dummy Law since it had been employing this case the term “capital” in Section 11, Article XII of the 1987 Constitution, lies with this Court,
non-American aliens long before the decision in a prior similar case. However, the main issue not with any other government entity.―The opinions of the SEC en banc, as well as of the DOJ,
in Luzon Stevedoring was of transcendental importance, involving the exercise or enjoyment of interpreting the law are neither conclusive nor controlling and thus, do not bind the Court. It is
rights, franchises, privileges, properties and businesses which only Filipinos and qualified hornbook doctrine that any interpretation of the law that administrative or quasi-judicial
corporations could exercise or enjoy under the Constitution and the statutes. Moreover, the agencies make is only preliminary, never conclusive on the Court. The power to make a final
same issue could be raised by appellant in an appropriate action. Thus, in Luzon Stevedoring the interpretation of the law, in this case the term “capital” in Section 11, Article XII of the 1987
Court deemed it necessary to finally dispose of the case for the guidance of all concerned, Constitution, lies with this Court, not with any other government entity.
despite the apparent procedural flaw in the petition. Same; Constitutional Law; Under Section 10, Article XII of the 1987 Constitution, Congress
Constitutional Law; Capital; Words and Phrases; Until the present case there has never may “reserve to citizens of the Philippines or to corporations or associations at least sixty per
been a Court ruling categorically defining the term “capital” found in the various economic centum of whose capital is owned by such citizens, or such higher percentage as Congress may
provisions of the 1935, 1973 and 1987 Philippine Constitutions.―For more than 75 years since prescribe, certain areas of investments.”―Under Section 10, Article XII of the 1987 Constitution,
the 1935 Constitution, the Court has not interpreted or defined the term “capital” found in Congress may “reserve to citizens of the Philippines or to corporations or associations at
various economic provisions of the 1935, 1973 and 1987 Constitutions. There has never been a 400
judicial precedent interpreting the term “capital” in the 1935, 1973 and 1987 Constitutions, 400 SUPREME COURT REPORTS ANNOTATED
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 Heirs of Wilson P. Gamboa vs. Teves
long-standing definition of the term “capital,” which supposedly refers to the total outstanding least sixty per centum of whose capital is owned by such citizens, or such higher
shares of stock, whether voting or non-voting. To repeat, until the present case there has never percentage as Congress may prescribe, certain areas of investments.” Thus, in numerous laws
Congress has reserved certain areas of investments to Filipino citizens or to corporations at least
Page 1 of 66
sixty percent of the “capital” of which is owned by Filipino citizens. Some of these laws are: (1) the Philippines x x x without first securing from the Board of Investments a written certificate
Regulation of Award of Government Contracts or R.A. No. 5183; (2) Philippine Inventors to the effect that such business or economic activity x x x would not conflict with the
Incentives Act or R.A. No. 3850; (3) Magna Carta for Micro, Small and Medium Enterprises or Constitution or laws of the Philippines.” Thus, a “non-Philippine national” cannot own and
R.A. No. 6977; (4) Philippine Overseas Shipping Development Act or R.A. No. 7471; (5) Domestic operate a reserved economic activity like a public utility. This means, of course, that only a
Shipping Development Act of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of “Philippine national” can own and operate a public utility.
2009 or R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No. 1521. Same; Same; Same; Foreign Investments Act of 1991 (FIA); Philippine Nationals; Domestic
Same; Same; Public Utilities; Section 11, Article XII of the 1987 Constitution mandates the Corporations; Words and Phrases; The Foreign Investments Act of 1991, like all its predecessor
Filipinization of public utilities, requires that any form of authorization for the operation of public statutes, clearly defines a “Philippine national” as a Filipino citizen, or a domestic corporation
utilities shall be granted only to “citizens of the Philippines or to corporations or associations “at least sixty percent (60%) of the capital stock outstanding and entitled to vote” is owned by
organized under the laws of the Philippines at least sixty per centum of whose capital is owned Filipino citizens.―The
by such citizens.”―With respect to public utilities, the 1987 Constitution specifically ordains: 402
Section 11. No franchise, certificate, or any other form of authorization for the operation of a 402 SUPREME COURT REPORTS ANNOTATED
public utility shall be granted except to citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines, at least sixty per centum of whose capital Heirs of Wilson P. Gamboa vs. Teves
is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in FIA, like all its predecessor statutes, clearly defines a “Philippine national” as a Filipino
character or for a longer period than fifty years. Neither shall any such franchise or right be citizen, or a domestic corporation “at least sixty percent (60%) of the capital stock
granted except under the condition that it shall be subject to amendment, alteration, or repeal outstanding and entitled to vote” is owned by Filipino citizens. A domestic corporation is a
by the Congress when the common good so requires. The State shall encourage equity “Philippine national” only if at least 60% of its voting stock is owned by Filipino citizens. This
participation in public utilities by the general public. The participation of foreign investors in the definition of a “Philippine national” is crucial in the present case because the FIA reiterates and
governing body of any public utility enterprise shall be limited to their proportionate share in clarifies Section 11, Article XII of the 1987 Constitution, which limits the ownership and
its capital, and all the executive and managing officers of such corporation or association must operation of public utilities to Filipino citizens or to corporations or associations at least 60%
be citizens of the Philippines. (Emphasis supplied) This provision, which mandates the Filipino-owned.
Filipinization of public utilities, requires that any form of authorization for the operation of Same; Same; Same; Same; Among the areas of investment covered by the Foreign
public utilities shall be granted only to “citizens of the Philippines or to corporations or Investment Negative List A is the ownership and operation of public utilities, which the
associations organized under the laws of the Philippines at least sixty per centum of Constitution expressly reserves to Filipino citizens and to corporations at least 60% owned by
401 Filipino citizens.―Among the areas of investment covered by the Foreign Investment Negative
List A is the ownership and operation of public utilities, which the Constitution expressly
VOL. 682, OCTOBER 9, 2012 401
reserves to Filipino citizens and to corporations at least 60% owned by Filipino citizens. In other
Heirs of Wilson P. Gamboa vs. Teves words, Negative List A of the FIA reserves the ownership and operation of public utilities only to
whose capital is owned by such citizens.” “The provision is [an express] recognition of the “Philippine nationals,” defined in Section 3(a) of the FIA as “(1) a citizen of the Philippines; x x x
sensitive and vital position of public utilities both in the national economy and for national or (3) a corporation organized under the laws of the Philippines of which at least sixty percent
security.” (60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the
Same; Same; Same; Under Section 11, Article XII of the 1987 Constitution, to own and Philippines; or (4) a corporation organized abroad and registered as doing business in the
operate a public utility a corporation’s capital must at least be 60 percent owned by Philippine Philippines under the Corporation Code of which one hundred percent (100%) of the capital
nationals.―The 1987 Constitution reserves the ownership and operation of public utilities stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for
exclusively to (1) Filipino citizens, or (2) corporations or associations at least 60 percent of pension or other employee retirement or separation benefits, where the trustee is a Philippine
whose “capital” is owned by Filipino citizens. Hence, in the case of individuals, only Filipino national and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine
citizens can validly own and operate a public utility. In the case of corporations or associations, nationals.”
at least 60 percent of their “capital” must be owned by Filipino citizens. In other words, under Same; Same; Same; The 60-40 ownership requirement in favor of Filipino citizens must
Section 11, Article XII of the 1987 Constitution, to own and operate a public utility a corporation’s apply separately to each class of shares, whether common, preferred non-voting, preferred
capital must at least be 60 percent owned by Philippine nationals. voting or any other class of shares.―If a corporation, engaged in a partially nationalized industry,
Same; Same; Same; Omnibus Investments Code of 1987; Under Article 48(3) of the issues a mixture of common and preferred non-voting shares, at least 60 percent of the common
Omnibus Investments Code of 1987, no corporation which is not a ‘Philippine national’ shall do 403
business in the Philippines without first securing from the Board of Investments a written VOL. 682, OCTOBER 9, 2012 403
certificate to the effect that such business or economic activity would not conflict with the
Constitution or laws of the Philippines.―Under Article 48(3) of the Omnibus Investments Code Heirs of Wilson P. Gamboa vs. Teves
of 1987, “no corporation x x x which is not a ‘Philippine national’ x x x shall do business x x x in
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shares and at least 60 percent of the preferred non-voting shares must be owned by or association shall be limited to their proportionate share in the capital of such entity; and (2)
Filipinos. Of course, if a corporation issues only a single class of shares, at least 60 percent of all officers of the corporation or association must be Filipino citizens.
such shares must necessarily be owned by Filipinos. In short, the 60-40 ownership requirement Same; Same; Same; Foreign Investments Act of 1991 (FIA); The Constitution explicitly
in favor of Filipino citizens must apply separately to each class of shares, whether common, reserves the ownership and operation of public utilities to Philippine nationals, who are defined
preferred non-voting, preferred voting or any other class of shares. This uniform application of in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or associations at
the 60-40 ownership requirement in favor of Filipino citizens clearly breathes life to the least 60 percent of whose capital with voting rights belongs to Filipinos.―The Constitution
constitutional command that the ownership and operation of public utilities shall be reserved expressly declares as State policy the development of an economy “effectively controlled” by
exclusively to corporations at least 60 percent of whose capital is Filipino-owned. Applying Filipinos. Consistent with such State policy, the Constitution explicitly reserves the ownership
uniformly the 60-40 ownership requirement in favor of Filipino citizens to each class of shares, and operation of public utilities to Philippine nationals, who are defined in the Foreign
regardless of differences in voting rights, privileges and restrictions, guarantees effective Investments Act of 1991 as Filipino citizens, or corporations or associations at least 60 percent
Filipino control of public utilities, as mandated by the Constitution. of whose capital with voting rights belongs to Filipinos. The FIA’s implementing rules explain that
Same; Same; Same; The use of the term “capital” was intended to replace the word “[f]or stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere
“stock” because associations without stocks can operate public utilities as long as they meet the legal
60-40 ownership requirement in favor of Filipino citizens prescribed in Section 11, Article XII of 405
the Constitution.―The use of the term “capital” was intended to replace the word “stock” VOL. 682, OCTOBER 9, 2012 405
because associations without stocks can operate public utilities as long as they meet the 60-40
ownership requirement in favor of Filipino citizens prescribed in Section 11, Article XII of the Heirs of Wilson P. Gamboa vs. Teves
Constitution. However, this did not change the intent of the framers of the Constitution to title is not enough to meet the required Filipino equity. Full beneficial ownership of the
reserve exclusively to Philippine nationals the “controlling interest” in public utilities. stocks, coupled with appropriate voting rights is essential.” In effect, the FIA clarifies, reiterates
Same; Same; Same; Allowing foreign shareholders to elect a controlling majority of the and confirms the interpretation that the term “capital” in Section 11, Article XII of the 1987
board, even if all the directors are Filipinos, grossly circumvents the letter and intent of the Constitution refers to shares with voting rights, as well as with full beneficial ownership. This is
Constitution and defeats the very purpose of our nationalization laws.―Even if foreigners who precisely because the right to vote in the election of directors, coupled with full beneficial
own more than forty percent of the voting shares elect an all-Filipino board of directors, this ownership of stocks, translates to effective control of a corporation.
situation does not guarantee Filipino control and does not in any way cure the violation of the VELASCO, J., Dissenting Opinion:
Constitution. The independence of the Filipino board members so elected by such foreign Constitutional Law; Capital; Public Utilities; View that “Capital” in the first sentence of
shareholders is highly doubtful. As the OSG pointed out, quoting Justice George Sutherland’s Sec. 11, Art. XII must then be accorded a meaning accepted, understood, and used by an ordinary
words in Humphrey’s Executor v. US, “x x x it is quite evident that one who holds person not versed in the technicalities of law; It does not distinguish based on the voting feature
404 of the stocks but refers to all shares, be they voting or non-voting.―“Capital” in the first
sentence of Sec. 11, Art. XII must then be accorded a meaning accepted, understood, and used
by an ordinary person not versed in the technicalities of law. As defined in a non-legal dictionary,
Heirs of Wilson P. Gamboa vs. Teves capital stock or capital is ordinarily taken to mean “the outstanding shares of a joint stock
his office only during the pleasure of another cannot be depended upon to maintain an company considered as an aggregate” or “the ownership element of a corporation divided into
attitude of independence against the latter’s will.” Allowing foreign shareholders to elect a shares and represented by certificates.” The term “capital” includes all the outstanding shares
controlling majority of the board, even if all the directors are Filipinos, grossly circumvents the of a company that represent “the proprietary claim in a business.” It does not distinguish based
letter and intent of the Constitution and defeats the very purpose of our nationalization laws. on the voting feature of the stocks but refers to all shares, be they voting or non-voting. Neither
Same; Same; Same; The last sentence of Section 11, Article XII of the Constitution is the term limited to the management aspect of the corporation but clearly refers to the
mandates that (1) the participation of foreign investors in the governing body of the corporation separate aspect of ownership of the corporate shares thereby encompassing all shares
or association shall be limited to their proportionate share in the capital of such entity; and (2) representing the equity of the corporation.
all officers of the corporation or association must be Filipino citizens.―It is clear that the framers Same; Same; Same; View that when the seeming ambiguity on the meaning of “capital”
of the Constitution intended public utilities to be majorityFilipino-owned and controlled. To cannot be threshed out by looking at the language of the Constitution, then resort to extraneous
ensure that Filipinos control public utilities, the framers of the Constitution approved, as aids has become imperative.―When the seeming ambiguity on the meaning of “capital” cannot
additional safeguard, the inclusion of the last sentence of Section 11, Article XII of the be threshed out by looking at the language of the Constitution, then resort to extraneous aids
Constitution commanding that “[t]he participation of foreign investors in the governing body of has become imperative. The Court can utilize the following extraneous aids, to wit: (1)
any public utility enterprise shall be limited to their proportionate share in its capital, and all the proceedings of the convention; (2) changes in phraseology; (3) history or realities existing at the
executive and managing officers of such corporation or association must be citizens of the time of the adoption of the Constitution; (4)
Philippines.” In other words, the last sentence of Section 11, Article XII of the Constitution 406
mandates that (1) the participation of foreign investors in the governing body of the corporation 406 SUPREME COURT REPORTS ANNOTATED
Page 3 of 66
Heirs of Wilson P. Gamboa vs. Teves among others, claim over our soil––our land. This undermines the clear textual commitment
prior laws and judicial decisions; (5) contemporaneous construction; and (6) under the Constitution that reserves ownership of disposable lands to Filipino citizens.
consequences of alternative interpretations. I submit that all these aids of constitutional Same; Same; Same; Amendments; View that the Constitution may only be amended
construction affirm that the only acceptable construction of “capital” in the first sentence of through the procedure outlined in the basic document itself. An amendment cannot, therefore,
Sec. 11, Art. XII of the 1987 Constitution is that it refers to all shares of a corporation, both be made through the expedience of a legislative action that diagonally opposes the clear
voting and non-voting. provisions of the Constitution.―Justice Carpio parlays the thesis that the FIA, and its
Same; Same; Same; View that if the framers wanted the word “capital” to mean voting predecessors, the Investments Incentives Act of 1967 (“1967 IIA”), Omnibus Investments Code
capital stock, their terminology would have certainly been unmistakably limiting as to leave no of 1981 (“1981 OIC”), and the Omnibus Incentives Code of 1987 (“1987 OIC”), (collectively,
doubt about their intention.―If the framers wanted the word “capital” to mean voting capital “Investment Incentives Laws”) more particularly their definition of the term “Philippine
stock, their terminology would have certainly been unmistakably limiting as to leave no doubt National,” constitutes a good guide for ascertaining the intent behind the use of the term
about their intention. But the framers consciously and purposely excluded restrictive phrases, “capital” in Sec. 11, Art. XII―that it refers only to voting shares of public utility corporations. I
such as “voting stocks” or “controlling interest,” in the approved final draft, the proposal of the cannot share this posture. The Constitution may only be amended through the procedure
UP Law Center, Commissioner Davide and Commissioner Azcuna notwithstanding. Instead, they outlined in the basic document itself. An amendment cannot, therefore, be made through the
retained “capital” as “used in the 1935 and 1973 Constitutions.” There was, therefore, a expedience of a legislative action that diagonally opposes the clear provisions of the
conscious design to avoid stringent words that would limit the meaning of “capital” in a sense Constitution.408
insisted upon by the majority. Cassus omissus pro omisso habendus est―a person, object, or 408 SUPREME COURT REPORTS ANNOTATED
thing omitted must have been omitted intentionally. More importantly, by using the word Heirs of Wilson P. Gamboa vs. Teves
“capital,” the intent of the framers of the Constitution was to include all types of shares, Statutory Construction; View that legislative enactments on commerce, trade and
whether voting or nonvoting, within the ambit of the word. national economy must be so construed, when appropriate, to determine whether the purpose
Same; Same; Same; View that where a statute has received a contemporaneous and underlying them is in accord with the policies and objectives laid out in the
practical interpretation and the statute as interpreted is re-enacted, the practical interpretation Constitution.―Legislative enactments on commerce, trade and national economy must be so
is accorded greater weight than it ordinarily receives, and is regarded as presumptively the construed, when appropriate, to determine whether the purpose underlying them is in accord
correct interpretation of the law.―Laxamana v. Baltazar, restates this long-standing dictum: with the policies and objectives laid out in the Constitution. Surely, a law cannot validly broaden
“[w]here a statute has received a contemporaneous and practical interpretation and the statute or restrict the thrust of a constitutional provision unless expressly sanctioned by the Constitution
as interpreted is re-enacted, the practical interpretation is accorded greater weight than it itself. And the Court may not read into the Constitution an intent or purpose that is not there.
ordinarily receives, and is regarded as presumptively the correct interpretation of the law. The Any attempt to enlarge the breadth of constitutional limitations beyond what its provision
rule here is based upon the theory that the legislature is acquainted with the contemporaneous dictates should be stricken down.
interpretation of a statute, especially when made by an administrative body or executive Remedial Law; Civil Procedure; Indispensable Parties; Due Process; View that since
officers charged with the duty of administering or enforcing the law, and therefore impliedly Philippine Long Distance Telephone Company (PLDT) and the foreign stockholders were not
adopts the interpretation upon re-enactment.” Hence, it can be safely impleaded as indispensable parties to the case, the majority would want to indirectly execute its
407 decision which it could not execute directly; The principle of due process of law contemplates
VOL. 682, OCTOBER 9, 2012 407 notice and opportunity to be heard before judgment is rendered, affecting one’s person or
Heirs of Wilson P. Gamboa vs. Teves property.―Since PLDT and the foreign stockholders were not impleaded as indispensable parties
assumed that the framers, in the course of deliberating the 1987 Constitution, knew of to the case, the majority would want to indirectly execute its decision which it could not execute
the adverted SEC interpretation. directly. The Court may be criticized for violating the very rules it promulgated and for trenching
Same; Same; Same; View that if the Court persists in adhering to the rationale underlying the provisions of Sec. 5, Art. VIII of the Constitution, which defines the powers and jurisdiction of
the majority’s original interpretation of “capital” found in the first sentence of Section 11, Article this Court. It is apropos to stress, as a reminder, that the Rules of Court is not a mere body of
XII, We may perhaps be allowing Filipinos to direct and control the daily business of our public technical rules that can be disregarded at will whenever convenient. It forms an integral part of
utilities, but would irrevocably and injudiciously deprive them of effective “control” over the the basic notion of fair play as expressed in this Constitutional caveat: “No person shall be
major and equally important corporate decisions and the eventual beneficial ownership of the deprived of life, liberty or property without due process of law,” and obliges this Court, as well
corporate assets that could include, among others, claim over our soil––our land.―If the Court as other courts and tribunals, to hear a person first before rendering a judgment for or against
persists in adhering to the rationale underlying the majority’s original interpretation of “capital” him. As Daniel Webster explained, “due process of law is more clearly intended the general law,
found in the first sentence of Section 11, Article XII, We may perhaps be allowing Filipinos to a law which hears before it condemns; which proceeds upon enquiry, and renders judgment
direct and control the daily business of our public utilities, but would irrevocably and only after trial.” The principle of due process of law “contemplates notice and opportunity to
injudiciously deprive them of effective “control” over the major and equally important corporate be heard before judgment is rendered, affecting one’s person or property.”409
decisions and the eventual beneficial ownership of the corporate assets that could include, VOL. 682, OCTOBER 9, 2012 409
Page 4 of 66
Heirs of Wilson P. Gamboa vs. Teves retroactive effect since “judicial decisions applying or interpreting the laws or the Constitution
Same; Evidence; Presumptions; View that Article 1431 of the Civil Code provides that an shall form part of the legal system of the Philippines.” It has been the constant holding of the
“admission or representation is rendered conclusive upon the person making it, and cannot be Court that a judicial decision setting a new doctrine or principle (“precedent-setting decision”)
denied or disproved as against a person relying thereon.”―The Philippine government’s act of shall not retroactively apply to parties who relied in good faith on the principles and doctrines
pushing for and approving the sale of the PTIC shares, which is equivalent to 12 million PLDT standing prior to the promulgation thereof (“old principles/doctrines”), especially when a
common shares, to foreign investors precludes it from asserting that the purchase violates the retroactive application of the precedent-setting decision would impair the rights and obligations
Constitutional limit on foreign ownership of public utilities so that the foreign investors must of the parties.
now divest the common PLDT shares bought. The elementary principle that a person is ABAD, J., Dissenting Opinion:
prevented from going back on his own act or representation to the prejudice of another who Constitutional Law; Statutory Construction; Capital; View that the authority to define and
relied thereon finds application in the present case. Art. 1431 of the Civil Code provides that an interpret the meaning of “capital” in Section 11, Article XII of the 1987 Constitution belongs, not
“admission or representation is rendered conclusive upon the person making it, and cannot be to the Court, but to Congress, as part of its policy making powers.―The authority to define and
denied or disproved as against a person relying thereon.” This rule is supported by Section 2(a) interpret the meaning of “capital” in Section 11, Article XII of the 1987 Constitution belongs, not
of Rule 131 of the Rules of Court on the burden of proof and presumptions. to the Court, but to Congress, as part of its policy making powers. This matter is addressed to
Immunity from Suit; View that the government, by concluding the sale, has descended to the sound discretion of the lawmaking department of government since the power to authorize
the level of an ordinary citizen and stripped itself of the vestiges of immunity that is available in and control a public utility is admittedly
the performance of governmental acts.―The “indirect” sale of PLDT common shares to foreign 411
investors partook of a propriety business transaction of the government which was not VOL. 682, OCTOBER 9, 2012 411
undertaken as an incident to any of its governmental functions. Accordingly, the government, Heirs of Wilson P. Gamboa vs. Teves
by concluding the sale, has descended to the level of an ordinary citizen and stripped itself of a prerogative that stems from Congress. It may very well in its wisdom define the limit of
the vestiges of immunity that is available in the performance of governmental acts. Ergo, the foreign ownership in public utilities.
government is vulnerable to, and cannot hold off, the application of the principle of estoppel Same; Same; View that Section 11, Article XII of the 1987 Constitution is one of the
that the foreign investors can very well invoke in case they are compelled to divest the voting constitutional provisions that are not self-executing and need sufficient details for a meaningful
shares they have previously acquired through the inducement of no less the government. In implementation.―Section 11, Article XII of the 1987 Constitution which reads: Section 11. No
other words, the government is precluded from penalizing these alien investors for an act franchise, certificate, or any other form of authorization for the operation of a public utility shall
performed upon its guarantee, through its facilities, and with its imprimatur. be granted except to citizens of the Philippines or to corporations or associations organized
Constitutional Law; Capital; Public Utilities; View that the representation that foreigners under the laws of the Philippines, at least sixty per centum of whose capital is owned by such
can invest up to 40% of the entirety of the total stockholdings, and not just the voting shares, of citizens; nor shall such franchise, certificate, or authorization be exclusive in character or for a
a public utility corporation is an implied covenant that the Philippines cannot renege without longer period than fifty years. Neither shall any such franchise or right be granted except under
violating the fair and equitable treatment (FET) guaran- the condition that it shall be subject to amendment, alteration, or repeal by the Congress when
410 the common good so requires. The State shall encourage equity participation in public utilities
410 SUPREME COURT REPORTS ANNOTATED by the general public. The participation of foreign investors in the governing body of any public
Heirs of Wilson P. Gamboa vs. Teves utility enterprise shall be limited to their proportionate share in its capital, and all the executive
tee.―The representation that foreigners can invest up to 40% of the entirety of the total and managing officers of such corporation or association must be citizens of the Philippines. is
stockholdings, and not just the voting shares, of a public utility corporation is an implied one of the constitutional provisions that are not self-executing and need sufficient details for a
covenant that the Philippines cannot renege without violating the FET guarantee. Especially in meaningful implementation. While the provision states that no franchise for the operation of a
this case where the Philippines made specific commitments to countries like Japan and China public utility shall be granted to a corporation organized under Philippine laws unless at least
that their investing nationals can own up to 40% of the equity of a public utility like a 60% of its capital is owned by Filipino citizens, it does not provide for the meaning of the term
telecommunications corporation. In the table contained in Schedule 1(B), Annex 6 of the JPEPA, “capital.”
the Philippines categorically represented that Japanese investors’ entry into the Philippine Same; Same; View that it is a rule that when the operation of the statute is limited, the
telecommunications industry, specifically corporations offering “voice telephone services,” is law should receive a restricted construction.―The majority opinion also resorted to the various
subject to only the following requirements and conditions: A. Franchise from Congress of the investment laws in construing the term “capital.” But while these laws admittedly govern
Philippines B. Certificate of Public Convenience and Necessity (CPCN) from the National foreign investments in the country, they do not expressly or impliedly seek to supplant the
Telecommunications Commission C. Foreign equity is permitted up to 40 percent. D. x x x ambiguity in the definition of the term “capital” nor do they seek to modify foreign ownership
Statutes; Retroactivity of Laws; View that laws have no retroactive effect unless the limitation in public utilities. It is a rule that when the operation of the statute is limited, the law
contrary is provided.―Lex prospicit, non respicit—“laws have no retroactive effect unless the should receive a restricted construction.412
contrary is provided.” As a necessary corollary, judicial rulings should not be accorded 412 SUPREME COURT REPORTS ANNOTATED
Page 5 of 66
Heirs of Wilson P. Gamboa vs. Teves 2 Id., at pp. 1563-1613. Dated 14 July 2011.
Capital; Doctrine of Equality of Shares; View that under the doctrine of equality of 3 Id., at pp. 1454-1537. Dated 15 July 2011.
shares—all stocks issued by the corporation are presumed equal with the same privileges and 4 Id., at pp. 1669-1680. Through its Office of the General Counsel and Commissioner
liabilities, provided that the Articles of Incorporation is silent on such differences.―For sure, both Manuel Huberto B. Gaite. In its Manifestation and Omnibus Motion dated 29 July 2011, the SEC
common and preferred shares have always been considered part of the corporation’s capital manifested that the position of the OSG on the meaning of the term “capital” does not reflect
stock. Its shareholders are no different from ordinary investors who take on the same the view of the SEC. The SEC sought a partial reconsideration praying that the statement on
investment risks. They participate in the same venture, willing to share in the profits and losses SEC’s unlawful neglect of its statutory duty be expunged and for clarification on the reckoning
of the enterprise. Under the doctrine of equality of shares—all stocks issued by the corporation period of the imposition of any sanctions against PLDT.
are presumed equal with the same privileges and liabilities, provided that the Articles of 5 Id., at pp. 1614-1627. Dated 13 July 2011. On behalf of the SEC, by special appearance.
Incorporation is silent on such differences. The OSG prayed that the Court’s deci-
Constitutional Law; Public Utilities; View that the Filipinization of public utilities under the 414
1987 Constitution is a recognition of the very strategic position of public utilities both in the 414 SUPREME COURT REPORTS ANNOTATED
national economy and for national security.―The Filipinization of public utilities under the 1987 Heirs of Wilson P. Gamboa vs. Teves
Constitution is a recognition of the very strategic position of public utilities both in the national 28 June 2011 Decision. However, it subsequently filed a Consolidated Comment on behalf of
economy and the national security. The participation of foreign capital is enjoined since the the State,6 declaring expressly that it agrees with the Court’s definition of the term “capital” in
establishment and operation of public utilities may require the investment of substantial capital Section 11, Article XII of the Constitution. During the Oral Arguments on 26 June 2012, the OSG
which Filipino citizens may not afford. But at the same time, foreign involvement is limited to reiterated its position consistent with the Court’s 28 June 2011 Decision.
prevent them from assuming control of public utilities which may be inimical to national We deny the motions for reconsideration.
interest. Section 11, Article XII of the 1987 Constitution already provides three limitations on
foreign participation in public utilities. The Court need not add more by further restricting the
I.
meaning of the term ‘‘capital” when none was intended by the flamers of the 1987 Constitution.
Far-reaching implications of the legal issue justify
MOTIONS FOR RECONSIDERATION of a decision of the Supreme Court.
treatment of petition for declaratory relief as one for mandamus.
The facts are stated in the resolution of the Court.
Edgar D. Dumlao for China Banking Corporation.
As we emphatically stated in the 28 June 2011 Decision, the interpretation of the term
Office of the General Counsel and M.M. Lazaro & Associates for Philippine Stock Exchange
“capital” in Section 11, Article XII of the Constitution has far-reaching implications to the
President.413
national economy. In fact, a resolution of this issue will determine whether Filipinos are masters,
VOL. 682, OCTOBER 9, 2012 413 or second-class citizens, in their own country. What is at stake here is whether Filipinos or
Heirs of Wilson P. Gamboa vs. Teves foreigners will have effective control of the Philippine national economy. Indeed, if ever there is
Cochingyan and Peralta Law Offices for petitioners-in-intervention Atty. Pablito V. Sanidad a legal issue that has far-reaching implications to the entire nation, and to future generations
and Atty. Arno V. Sanidad. of Filipinos, it is the threshold legal issue presented in this case.
Angara, Abello, Concepcion, Regala and Cruz for respondent Napoleon L. Nazareno. Contrary to Pangilinan’s narrow view, the serious economic consequences resulting in the
Sycip, Salazar, Hernandez and Gatmaitan for respondent Manuel V. Pangilinan. interpretation of the term “capital” in Section 11, Article XII of the Constitution undoubtedly
Roel A. Refran and Ronald P. De Vera for respondent Francis Ed Lim. demand an immediate adjudication of this issue. Simply put, the far-reaching implications of this
issue justify the treatment of the petition as one for mandamus.7
RESOLUTION _______________
sion “be cured of its procedural defect which however should not prevail over the
CARPIO, J.: substantive aspect of the Decision.”
This resolves the motions for reconsideration of the 28 June 2011 Decision filed by (1) the 6 Id., at pp. 2102-2124. Filed on 15 December 2011.
Philippine Stock Exchange’s (PSE) President,1 (2) Manuel V. Pangilinan (Pangilinan),2 (3) 7 Salvacion v. Central Bank of the Philippines, 343 Phil. 539; 278 SCRA 27 (1997).
Napoleon L. Nazareno (Nazareno),3 and (4) the Securities and Exchange Commission 415
(SEC)4(collectively, movants). VOL. 682, OCTOBER 9, 2012 415
The Office of the Solicitor General (OSG) initially filed a motion for reconsideration on behalf Heirs of Wilson P. Gamboa vs. Teves
of the SEC,5 assailing the 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
1 Rollo (Vol. III), pp. 1431-1451. Dated 11 July 2011. being procedurally defective. There, appellant admittedly had already committed a breach of
Page 6 of 66
the Public Service Act in relation to the Anti-Dummy Law since it had been employing non- definition of the term “capital” contrary to the definition that this Court adopted in its 28 June
American aliens long before the decision in a prior similar case. However, the main issue 2011 Decision.
in Luzon Stevedoring was of transcendental importance, involving the exercise or enjoyment of In DOJ Opinion No. 130, s. 1985,10 dated 7 October 1985, the scope of the term “capital” in
rights, franchises, privileges, properties and businesses which only Filipinos and qualified Section 9, Article XIV of the
corporations could exercise or enjoy under the Constitution and the statutes. Moreover, the _______________
same issue could be raised by appellant in an appropriate action. Thus, in Luzon Stevedoring the 9 Rollo (Vol. III), p. 1583.
Court deemed it necessary to finally dispose of the case for the guidance of all concerned, 10 Addressed to Gov. Lilia Bautista of the Board of Investments.
despite the apparent procedural flaw in the petition. 417
The circumstances surrounding the present case, such as the supposed procedural defect VOL. 682, OCTOBER 9, 2012 417
of the petition an the pivotal legal issue involved, resemble those in Luzon Stevedoring.
Consequently, in the interest of substantial justice and faithful adherence to the Constitution, Heirs of Wilson P. Gamboa vs. Teves
we opted to resolve this case for the guidance of the public and all concerned parties. 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
II. and a Japanese corporation, both stockholders of a domestic corporation that owned lands in
No change of any long-standing rule; the Philippines. Then Minister of Justice Estelito P. Mendoza ruled that the resulting ownership
thus, no redefinition of the term “capital.” 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
Movants contend that the term “capital” in Section 11, Article XII of the Constitution has
stock. This ownership structure is remarkably similar to the current ownership structure of PLDT.
long been settled and defined to refer to the total outstanding shares of stock, whether voting
Minister Mendoza ruled:
or non-voting. In fact, movants claim that the SEC, which is the administrative agency tasked to
xxxx
enforce the 60-40 ownership requirement in favor of Filipino citizens in the Consti-
Thus, the Filipino group still owns sixty (60%) of the entire subscribed capital stock (common
_______________
and preferred) while the Japanese investors control sixty percent (60%) of the common (voting)
8 150-B Phil. 380; 46 SCRA 474 (1972).
shares.
416
It is your position that x x x since Section 9, Article XIV of the Constitution uses the word
416 SUPREME COURT REPORTS ANNOTATED “capital,” which is construed “to include both preferred and common shares” and “that where
Heirs of Wilson P. Gamboa vs. Teves the law does not distinguish, the courts shall not distinguish.”
tution and various statutes, has consistently adopted this particular definition in its numerous xxxx
opinions. Movants point out that with the 28 June 2011 Decision, the Court in effect introduced In light of the foregoing jurisprudence, it is my opinion that the stock-swap transaction in
a “new” definition or “midstream redefinition”9 of the term “capital” in Section 11, Article XII of question may not be constitutionally upheld. While it may be ordinary corporate practice to
the Constitution. classify corporate shares into common voting shares and preferred non-voting shares, any
This is egregious error. arrangement which attempts to defeat the constitutional purpose should be eschewed. Thus,
For more than 75 years since the 1935 Constitution, the Court has not interpreted or the resultant equity arrangement which would place ownership of 60%11 of the common (voting)
defined the term “capital” found in various economic provisions of the 1935, 1973 and 1987 shares in the Japanese group, while retaining 60% of the total percentage of common and pre-
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 11 A typographical error in DOJ Opinion No. 130 where it states 80%.
to claim that the Court in defining the term “capital” in its 28 June 2011 Decision modified, 418
reversed, or set aside the purported long-standing definition of the term “capital,” which 418 SUPREME COURT REPORTS ANNOTATED
supposedly refers to the total outstanding shares of stock, whether voting or non-voting. To
Heirs of Wilson P. Gamboa vs. Teves
repeat, until the present case there has never been a Court ruling categorically defining the
ferred shares in Filipino hands would amount to circumvention of the principle of control by
term “capital” found in the various economic provisions of the 1935, 1973 and 1987 Philippine
Philippine stockholders that is implicit in the 60% Philippine nationality requirement in the
Constitutions.
Constitution. (Emphasis supplied)
The opinions of the SEC, as well as of the Department of Justice (DOJ), on the definition of
In short, Minister Mendoza categorically rejected the theory that the term “capital” in Section
the term “capital” as referring to both voting and non-voting shares (combined total of common
9, Article XIV of the 1973 Constitution includes “both preferred and common stocks” treated as
and preferred shares) are, in the first place, conflicting and inconsistent. There is no basis
the same class of shares regardless of differences in voting rights and privileges. Minister
whatsoever to the claim that the SEC and the DOJ have consistently and uniformly adopted a
Mendoza stressed that the 60-40 ownership requirement in favor of Filipino citizens in the
Page 7 of 66
Constitution is not complied with unless the corporation “satisfies the criterion of beneficial 420
ownership” and that in applying the same “the primordial consideration is situs of control.” 420 SUPREME COURT REPORTS ANNOTATED
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 Heirs of Wilson P. Gamboa vs. Teves
Control Test, that is, using only the voting stock to determine whether a corporation is a (g) Prepare, approve, amend or repeal rules, regulations and orders, and issue opinions and
Philippine national. The Opinion states: provide guidance on and supervise compliance with such rules, regulations and orders;
Applying the foregoing, particularly the Control Test, MLRC is deemed as a Philippine x x x x (Emphasis supplied)
national because: (1) sixty percent (60%) of its outstanding capital stock entitled to voteis owned Thus, the act of the individual Commissioners or legal officers of the SEC in issuing opinions
by a Philippine national, the Trustee; and (2) at least sixty percent (60%) of the ERF will accrue that have the effect of SEC rules or regulations is ultra vires. Under Sections 4.6 and 5.1(g) of
to the benefit of Philippine nationals. Still pursuant to the Control Test, MLRC’s investment in the Code, only the SEC en banc can “issue opinions” that have the force and effect of rules or
60% of BFDC’s outstanding capital stock entitled to vote shall be deemed as of Philippine regulations. Section 4.6 of the Code bars the SEC en banc from delegating to any individual
nationality, thereby qualifying BFDC to own private land. Commissioner or staff the power to adopt rules or regulations. In short, any opinion of individual
Further, under, and for purposes of, the FIA, MLRC and BFDC are both Philippine nationals, Commissioners or SEC legal officers does not constitute a rule or regulation of the SEC.
considering that: (1) sixty percent (60%) of their respective outstanding capital stock entitled to The SEC admits during the Oral Arguments that only the SEC en banc, and not any of its
vote is owned by a Philippine national (i.e., by the Trustee, in the case of MLRC; and by MLRC, individual commissioners or legal staff, is empowered to issue opinions which have the same
in the case of BFDC); and (2) at least 60% of their respective board of directors are Filipino binding effect as SEC rules and regulations, thus:
citizens. (Boldfacing and italicization supplied) JUSTICE CARPIO:
419 So, under the law, it is the Commission En Banc that can issue an SEC Opinion,
correct?
VOL. 682, OCTOBER 9, 2012 419
COMMISSIONER GAITE:13
Heirs of Wilson P. Gamboa vs. Teves That’s correct, Your Honor.
Clearly, these DOJ and SEC opinions are compatible with the Court’s interpretation of the JUSTICE CARPIO:
60-40 ownership requirement in favor of Filipino citizens mandated by the Constitution for Can the Commission En Banc delegate this function to an SEC officer?
certain economic activities. At the same time, these opinions highlight the conflicting, COMMISSIONER GAITE:
contradictory, and inconsistent positions taken by the DOJ and the SEC on the definition of the Yes, Your Honor, we have delegated it to the General Counsel.
term “capital” found in the economic provisions of the Constitution. _______________
The opinions issued by SEC legal officers do not have the force and effect of SEC rules and 13 General Counsel and Commissioner Manuel Huberto B. Gaite of the Securities and
regulations because only the SEC en banc can adopt rules and regulations. As expressly provided Exchange Commission.
in Section 4.6 of the Securities Regulation Code,12 the SEC cannot delegate to any of its 421
individual Commissioner or staff the power to adopt any rule or regulation. Further, under VOL. 682, OCTOBER 9, 2012 421
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. Thus: Heirs of Wilson P. Gamboa vs. Teves
4.6. The Commission may, for purposes of efficiency, delegate any of its functions to any JUSTICE CARPIO:
department or office of the Commission, an individual Commissioner or staff member of the It can be delegated. What cannot be delegated by the Commission En Banc to a
Commission except its review or appellate authority and its power to adopt, alter and commissioner or an individual employee of the Commission?
supplement any rule or regulation. COMMISSIONER GAITE:
The Commission may review upon its own initiative or upon the petition of any interested party Novel opinions that [have] to be decided by the En Banc …
any action of any department or office, individual Commissioner, or staff member of the JUSTICE CARPIO:
Commission. What cannot be delegated, among others, is the power to adopt or amend rules
SEC. 5. Powers and Functions of the Commission.—5.1. The Commission shall act with and regulations, correct?
transparency and shall have the powers and functions provided by this Code, Presidential COMMISSIONER GAITE:
Decree No. 902-A, the Corporation Code, the Investment Houses Law, the Financing Company That’s correct, Your Honor.
Act and other existing laws. Pursuant thereto the Commission shall have, among others, the JUSTICE CARPIO:
following powers and functions: So, you combine the two (2), the SEC officer, if delegated that power, can issue an
xxxx opinion but that opinion does not constitute a rule or regulation, correct?
_______________ COMMISSIONER GAITE:
12 Republic Act No. 8799. Correct, Your Honor.
Page 8 of 66
JUSTICE CARPIO: MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity
So, all of these opinions that you mentioned they are not rules and regulations, and foreign equity; namely, 60-40 in Section 3, 60-40 in Section 9, and 2/3-1/3 in
correct? Section 15.
COMMISSIONER GAITE: MR. VILLEGAS. That is right.
They are not rules and regulations. MR. NOLLEDO. In teaching law, we are always faced with the question: ‘Where do we
JUSTICE CARPIO: base the equity requirement, is it on the authorized capital stock, on the subscribed
If they are not rules and regulations, they apply only to that particular situation and capital stock, or on the paid-up capital stock of a corporation’? Will the Committee
will not constitute a precedent, correct? please enlighten me on this?
COMMISSIONER GAITE: MR. VILLEGAS. We have just had a long discussion with the members of the team from
Yes, Your Honor.14 (Emphasis supplied) the UP Law Center who provided us a draft. The phrase that is contained here which
_______________ we adopted from the UP draft is ‘60 percent of voting stock.’
14 TSN (Oral Arguments), 26 June 2012, pp. 81-83. Emphasis supplied. MR. NOLLEDO. That must be based on the subscribed capital stock, because unless
422 declared delinquent, unpaid capital stock shall be entitled to vote.
422 SUPREME COURT REPORTS ANNOTATED MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you. With respect to an investment by one corporation in
Heirs of Wilson P. Gamboa vs. Teves another corporation, say, a corporation with 60-40 percent equity invests in another
Significantly, the SEC en banc, which is the collegial body statutorily empowered to issue corporation which is permitted by the Corporation Code, does the Committee adopt
rules and opinions on behalf of the SEC, has adopted even the Grandfather Rule in determining the grandfather rule?
compliance with the 60-40 ownership requirement in favor of Filipino citizens mandated by the MR. VILLEGAS. Yes, that is the understanding of the Committee.
Constitution for certain economic activities. This prevailing SEC ruling, which the SEC correctly MR. NOLLEDO. Therefore, we need additional Filipino capital?
adopted to thwart any circumvention of the required Filipino “ownership and control,” is laid MR. VILLEGAS. Yes. (Boldfacing and underscoring supplied; italicization in the original)
down in the 25 March 2010 SEC en bancruling in Redmont Consolidated Mines, Corp. v. This SEC en banc ruling conforms to our 28 June 2011 Decision that the 60-40 ownership
McArthur Mining, Inc., et al.,15 to wit: requirement in favor of Filipino citizens in the Constitution to engage in certain economic
The avowed purpose of the Constitution is to place in the hands of Filipinos the exploitation activities applies not only to voting control of the corporation, but also to the beneficial
of our natural resources. Necessarily, therefore, the Rule interpreting the constitutional provision ownership of the corporation. Thus, in our 28 June 2011 Decision we stated:424
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 Heirs of Wilson P. Gamboa vs. Teves
applied to accurately determine the actual participation, both direct and indirect, of foreigners in Mere legal title is insufficient to meet the 60 percent Filipino owned “capital” required in
a corporation engaged in a nationalized activity or business. the Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled
Compliance with the constitutional limitation(s) on engaging in nationalized activities must with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent
be determined by ascertaining if 60% of the investing corporation’s outstanding capital stock is of the outstanding capital stock must rest in the hands of Filipino nationals in accordance with
owned by “Filipino citizens,” or as interpreted, by natural or individual Filipino citizens. If such the constitutional mandate. Otherwise, the corporation is “considered as non-Philippine
investing corporation is in turn owned to some extent by another investing corporation, the national[s].” (Emphasis supplied)
same process must be observed. One must not stop until the citizenships of the individual or Both the Voting Control Test and the Beneficial Ownership Test must be applied to
natural stockholders of layer after layer of investing corporations have been established, the determine whether a corporation is a “Philippine national.”
very essence of the Grandfather Rule. The interpretation by legal officers of the SEC of the term “capital,” embodied in various
Lastly, it was the intent of the framers of the 1987 Constitution to adopt the Grandfather opinions which respondents relied upon, is merely preliminary and an opinion only of such
Rule. In one of the discussions on what is now Article XII of the present Constitution, the framers officers. To repeat, any such opinion does not constitute an SEC rule or regulation. In fact, many
made the following exchange: of these opinions contain a disclaimer which expressly states: “x x x the foregoing opinion is
_______________ based solely on facts disclosed in your query and relevant only to the particular issue raised
15 SEC En Banc Case No. 09-09-177, 25 March 2010. therein and shall not be used in the nature of a standing rule binding upon the Commission in
423 other cases whether of similar or dissimilar circumstances.”16 Thus, the opinions
VOL. 682, OCTOBER 9, 2012 423 _______________
16 SEC Opinion No. 49-04, Re: Corporations considered as Philippine Nationals, dated 22
Heirs of Wilson P. Gamboa vs. Teves December 2004, addressed to Romulo Mabanta Buenaventura Sayoc & De Los Angeles and
signed by General Counsel Vernette G. Umali-Paco; SEC-OGC Opinion No. 03-08, dated 15
Page 9 of 66
January 2008, addressed to Attys. Ruby Rose J. Yusi and Rudyard S. Arbolado and signed by Constitution. In fact, these two cases never mentioned, discussed or cited Section 11, Article XII
General Counsel Vernette G. Umali-Paco; SEC-OGC Opinion No. 09-09, dated 28 April 2009, of the Constitution or any of its economic provisions, and thus cannot serve as precedent in the
addressed to Villaraza Cruz Marcelo Angangco and signed by General Counsel Vernette G. interpretation of Section 11, Article XII of the Constitution. These two cases dealt solely with the
Umali-Paco; SEC-OGC Opinion No. 08-10, dated 8 February 2010, addressed to Mr. Teodoro B. determination of the correct regulatory fees under Section 40(e) and (f) of the Public Service
Quijano and signed by General Counsel Vernette G. Umali-Paco; SEC-OGC Opinion No. 23-10, Act, to wit:
dated 18 August 2010, addressed to Castillo Laman Tan Pantaleon and San Jose and signed by (e) For annual reimbursement of the expenses incurred by the Commission in the supervision
General Counsel Vernette G. Umali-Paco; SEC-OGC Opinion No. 18-07, dated 28 Novem of other public services and/or in the regulation or fixing of their rates, twenty centavos for each
425 one hundred pesos or fraction thereof, of the capital stock subscribed or paid, or if no shares
VOL. 682, OCTOBER 9, 2012 425 have been issued, of the capital invested, or of the property and equipment whichever is higher.
(f) For the issue or increase of capital stock, twenty centavos for each one hundred pesos or
Heirs of Wilson P. Gamboa vs. Teves fraction thereof, of the increased capital. (Emphasis supplied)
clearly make a caveat that they do not constitute binding precedents on any one, not even on The Court’s interpretation in these two cases of the terms “capital stock subscribed or
the SEC itself. paid,” “capital stock” and “capital” does not pertain to, and cannot control, the definition of the
Likewise, the opinions of the SEC en banc, as well as of the DOJ, interpreting the law are term “capital” as used in Section 11, Article XII of the Constitution, or any of the economic
neither conclusive nor controlling and thus, do not bind the Court. It is hornbook doctrine that provisions of the Constitution where the term “capital” is found. The definition of the term
any interpretation of the law that administrative or quasi-judicial agencies make is only “capital” found in the Constitution must not be taken out of context. A careful reading of these
preliminary, never conclusive on the Court. The power to make a final interpretation of the law, two cases reveals that the terms “capital stock subscribed or paid,” “capital stock” and “capital”
in this case the term “capital” in Section 11, Article XII of the 1987 Constitution, lies with this were defined solely to determine the basis for computing the supervision and regulation fees
Court, not with any other government entity. under Section 40(e) and (f) of the Public Service Act.
In his motion for reconsideration, the PSE President cites the cases of National _______________
Telecommunications Commission v. Court of Appeals17 and Philippine Long Distance Telephone 21 Supra.
Company v. National Telecommunications Commission18 in arguing that the Court has already 427
defined the term “capital” in Section 11, Article XII of the 1987 Constitution.19
VOL. 682, OCTOBER 9, 2012 427
The PSE President is grossly mistaken. In both cases of National Telecommunications v.
Court of Appeals20 and Phil- Heirs of Wilson P. Gamboa vs. Teves
_______________
ber 2007, addressed to Mr. Rafael C. Bueno, Jr. and signed by General Counsel Vernette G. III.
Umali-Paco. Filipinization of Public Utilities
In SEC Opinion No. 32-03, dated 2 June 2003, addressed to National Telecommunications
Commissioner Armi Jane R. Borje, SEC General Counsel Vernette G. Umali-Paco stated: The Preamble of the 1987 Constitution, as the prologue of the supreme law of the land,
In this light, it is imperative that we reiterate the policy of this Commission (SEC) in embodies the ideals that the Constitution intends to achieve.22 The Preamble reads:
refraining from rendering opinions that might prejudice or affect the outcome of a case, which We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
is subject to present litigation before the courts, or any other forum for that matter. The and humane society, and establish a Government that shall embody our ideals and aspirations,
opinion, which may be rendered thereon, would not be binding upon any party who would in promote the common good, conserve and develop our patrimony, and secure to ourselves and
all probability, if the opinion happens to be adverse to his or its interest, take issue therewith our posterity, the blessings of independence and democracy under the rule of law and a regime
and contest it before the proper venue. The Commission, therefore, has to refrain from giving of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
categorical answers to your query. (Emphasis supplied)
17 370 Phil. 538; 311 SCRA 508 (1999). Consistent with these ideals, Section 19, Article II of the 1987 Constitution declares as State
18 G.R. No. 152685, 4 December 2007, 539 SCRA 365. policy the development of a national economy “effectively controlled” by Filipinos:
19 Rollo (Vol. III), pp. 1392-1393. Section 19. The State shall develop a self-reliant and independent national
20 Supra. economy effectively controlled by Filipinos.
426 Fortifying the State policy of a Filipino-controlled economy, the Constitution decrees:
426 SUPREME COURT REPORTS ANNOTATED Section 10. The Congress shall, upon recommendation of the economic and planning agency,
when the national interest dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned by such citizens, or such higher
ippine Long Distance Telephone Company v. National Telecommunications Commission,21 the
percentage as Congress may prescribe, certain areas of investments. The Congress shall enact
Court did not define the term “capital” as found in Section 11, Article XII of the 1987
Page 10 of 66
measures that will encourage the formation and operation of enterprises whose capital is The 1987 Constitution reserves the ownership and operation of public utilities exclusively
wholly owned by Filipinos. to (1) Filipino citizens, or (2) corporations or associations at least 60 percent of whose “capital”
_______________ is owned by Filipino citizens. Hence, in the case of individuals, only Filipino citizens can validly
22 De Leon, Hector S., TEXTBOOK ON THE PHILIPPINE CONSTITUTION, 2005 Edition, pp. 32, 33. own and operate a public utility. In the case of corporations or associations, at least 60 percent
428 of their “capital” must be owned by Filipino citizens. In other words, under Section 11, Article XII
428 SUPREME COURT REPORTS ANNOTATED of the 1987 Constitution, to own and operate a public utility a corporation’s capital must at least
be 60 percent owned by Philippine nationals.
Heirs of Wilson P. Gamboa vs. Teves _______________
In the grant of rights, privileges, and concessions covering the national economy and 24 Bernas, Joaquin G., S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A
patrimony, the State shall give preference to qualified Filipinos. COMMENTARY, 1996 Edition, p. 1044, citing Smith, Bell and Co. v. Natividad, 40 Phil. 136, 148
The State shall regulate and exercise authority over foreign investments within its national (1919); Luzon Stevedoring Corporation v. Anti-Dummy Board, 150-B Phil. 380, 403-404; 46 SCRA
jurisdiction and in accordance with its national goals and priorities.23 474, 484-485 (1972).
Under Section 10, Article XII of the 1987 Constitution, Congress may “reserve to citizens of 430
the Philippines or to corporations or associations at least sixty per centum of whose capital is
owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of
investments.” Thus, in numerous laws Congress has reserved certain areas of investments to Heirs of Wilson P. Gamboa vs. Teves
Filipino citizens or to corporations at least sixty percent of the “capital” of which is owned by IV.
Filipino citizens. Some of these laws are: (1) Regulation of Award of Government Contracts or Definition of “Philippine National”
R.A. No. 5183; (2) Philippine Inventors Incentives Act or R.A. No. 3850; (3) Magna Carta for Pursuant to the express mandate of Section 11, Article XII of the 1987 Constitution,
Micro, Small and Medium Enterprises or R.A. No. 6977; (4) Philippine Overseas Shipping Congress enacted Republic Act No. 7042 or the Foreign Investments Act of 1991 (FIA), as
Development Act or R.A. No. 7471; (5) Domestic Shipping Development Act of 2004 or R.A. No. amended, which defined a “Philippine national” as follows:
9295; (6) Philippine Technology Transfer Act of 2009 or R.A. No. 10055; and (7) Ship Mortgage SEC. 3. Definitions.―As used in this Act:
Decree or P.D. No. 1521. a. The term “Philippine national” shall mean a citizen of the Philippines; or a domestic
With respect to public utilities, the 1987 Constitution specifically ordains: partnership or association wholly owned by citizens of the Philippines; or a corporation
Section 11. No franchise, certificate, or any other form of authorization for the operation of a organized under the laws of the Philippines of which at least sixty percent (60%) of the capital
public utility shall be granted except to citizens of the Philippines or to corporations or stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a
associations organized under the laws of the Philippines, at least sixty per centum of whose capital corporation organized abroad and registered as doing business in the Philippines under the
is owned by such citizens; nor shall such franchise, certificate, or authorization be exclusive in Corporation Code of which one hundred percent (100%) of the capital stock outstanding and
character or for a longer period than fifty years. Neither shall any such franchise or right be entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee
granted except under the condition that it shall be subject to amendment, alteration, or retirement or separation benefits, where the trustee is a Philippine national and at least sixty
_______________ percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where
23 Section 10, Article XII of the 1987 Constitution. a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange
429 Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock
VOL. 682, OCTOBER 9, 2012 429 outstanding and entitled to vote of each of both corporations must be owned and held by
citizens of the Philippines and at least sixty percent (60%) of the members of the Board of
Heirs of Wilson P. Gamboa vs. Teves Directors of each of both corporations must be citizens of the Philippines, in order that the
repeal by the Congress when the common good so requires. The State shall encourage equity corporation, shall be considered a “Philippine national.” (Boldfacing, italicization and
participation in public utilities by the general public. The participation of foreign investors in the underscoring supplied)
governing body of any public utility enterprise shall be limited to their proportionate share in Thus, the FIA clearly and unequivocally defines a “Philippine national” as a Philippine citizen,
its capital, and all the executive and managing officers of such corporation or association must or a domestic corporation at least “60% of the capital stock outstanding and entitled to vote” is
be citizens of the Philippines. (Emphasis supplied) owned by Philippine citizens.
This provision, which mandates the Filipinization of public utilities, requires that any form The definition of a “Philippine national” in the FIA reiterated the meaning of such term as
of authorization for the operation of public utilities shall be granted only to “citizens of the provided in its predecessor
Philippines or to corporations or associations organized under the laws of the Philippines at 431
least sixty per centum of whose capital is owned by such citizens.” “The provision is [an express]
VOL. 682, OCTOBER 9, 2012 431
recognition of the sensitive and vital position of public utilities both in the national economy and
for national security.”24 Heirs of Wilson P. Gamboa vs. Teves
Page 11 of 66
statute, Executive Order No. 226 or the Omnibus Investments Code of 1987,25 which was issued Directors of both corporations must be citizens of the Philippines in order that the corporation
by then President Corazon C. Aquino. Article 15 of this Code states: shall be considered a Philippine national. (Boldfacing, italicization and underscoring supplied)
Article 15. “Philippine national” shall mean a citizen of the Philippines or a diplomatic _______________
partnership or association wholly-owned by citizens of the Philippines; or a corporation of which is owned or controlled by aliens shall do business or engage in any economic
organized under the laws of the Philippines of which at least sixty percent (60%) of the capital activity in the Philippines or be registered, licensed, or permitted by the Securities and Exchange
stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a Commission or by any other bureau, office, agency, political subdivision or instrumentality of
trustee of funds for pension or other employee retirement or separation benefits, where the the government, to do business, or engage in any economic activity in the Philippines without
trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the first securing a written certificate from the Board of Investments to the effect:
benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino xxxx
stockholders own stock in a registered enterprise, at least sixty percent (60%) of the capital (3) That such business or economic activity by the applicant would not conflict with the
stock outstanding and entitled to vote of both corporations must be owned and held by the Constitution or laws of the Philippines;
citizens of the Philippines and at least sixty percent (60%) of the members of the Board of xxxx
Directors of both corporations must be citizens of the Philippines in order that the corporation 28 Presidential Decree No. 1789.
shall be considered a Philippine national. (Boldfacing, italicization and underscoring supplied) 433
Under Article 48(3)26 of the Omnibus Investments Code of 1987, “no corporation x x x which is VOL. 682, OCTOBER 9, 2012 433
not a ‘Philippine national’ x x x shall do business x x x in the Philippines x x x without first
securing from the Board of Investments a written certificate to the effect that such business or Heirs of Wilson P. Gamboa vs. Teves
economic activity x x x would not conflict with the Constitution or laws of the Under Article 69(3) of the Omnibus Investments Code of 1981, “no corporation x x x which
Philippines.”27 Thus, a “non-Philippine national” cannot own and is not a ‘Philippine national’ x x x shall do business x x x in the Philippines x x x without first
_______________ securing a written certificate from the Board of Investments to the effect that such business or
25 Issued on 17 July 1987. economic activity x x x would not conflict with the Constitution or laws of the
26 Articles 44 to 56 of the Omnibus Investments Code of 1987 were later repealed by the Philippines.”29 Thus, a “non-Philippine national” cannot own and operate a reserved economic
Foreign Investments Act of 1991. See infra, p. 26. activity like a public utility. Again, this means that only a “Philippine national” can own and
27 Article 48. Authority to Do Business.—No alien, and no firm association, partnership, operate a public utility.
corporation or any other form of business organization formed, organized, chartered or existing Prior to the Omnibus Investments Code of 1981, Republic Act No. 518630 or the Investment
under any laws other than those of the Philippines, or which is not a Philippine national, or more Incentives Act, which took effect on 16 September 1967, contained a similar definition of a
than forty per cent (40%) of the outstanding capital “Philippine national,” to wit:
432 (f) “Philippine National” shall mean a citizen of the Philippines; or a partnership or association
wholly owned by citizens of the Philippines; or a corporation organized under the laws of the
Phil-
operate a reserved economic activity like a public utility. This means, of course, that only a 29 Article 69. Authority to Do Business.—No alien, and no firm, association, partnership,
“Philippine national” can own and operate a public utility. corporation or any other form of business organization formed, organized, chartered or existing
In turn, the definition of a “Philippine national” under Article 15 of the Omnibus under any laws other than those of the Philippines, or which is not a Philippine national, or more
Investments Code of 1987 was a reiteration of the meaning of such term as provided in Article than thirty (30%) per cent of the outstanding capital of which is owned or controlled by aliens
14 of the Omnibus Investments Code of 1981,28 to wit: shall do business or engage in any economic activity in the Philippines, or be registered,
Article 14. “Philippine national” shall mean a citizen of the Philippines; or a domestic licensed, or permitted by the Securities and Exchange Commission or by any other bureau,
partnership or association wholly owned by citizens of the Philippines; or a corporation office, agency, political subdivision or instrumentality of the government, to do business, or
organized under the laws of the Philippines of which at least sixty percent (60%) of the capital engage in any economic activity in the Philippines, without first securing a written certificate
stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a from the Board of Investments to the effect:
trustee of funds for pension or other employee retirement or separation benefits, where the xxxx
trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the (3) That such business or economic activity by the applicant would not conflict with the
benefit of Philippine nationals: Provided, That where a corporation and its non-Filipino Constitution or laws of the Philippines;
stockholders own stock in a registered enterprise, at least sixty percent (60%) of the capital xxxx
stock outstanding and entitled to vote of both corporations must be owned and held by the 30 An Act Prescribing Incentives And Guarantees To Investments In The Philippines,
citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Creating A Board Of Investments, Appropriating The Necessary Funds Therefor And For Other
Purposes.
Page 12 of 66
434 The FIA is the basic law governing foreign investments in the Philippines, irrespective of the
434 SUPREME COURT REPORTS ANNOTATED nature of business and area of investment. The FIA spells out the procedures by which non-
Philippine nationals can invest in the Philippines. Among the key features of this law is the
Heirs of Wilson P. Gamboa vs. Teves concept of a negative list or the Foreign Investments Negative List.32 Section 8 of the law states:
ippines of which at least sixty percent of the capital stock outstanding and entitled to vote is _______________
owned and held by citizens of the Philippines; or a trustee of funds for pension or other employee (c) Would be made in an enterprise engaged in an area adequately being exploited by
retirement or separation benefits, where the trustee is a Philippine National and at least sixty Philippine nationals; or
percent of the fund will accrue to the benefit of Philippine Nationals: Provided, That where a (d) Would conflict or be inconsistent with the Investments Priorities Plan in force at the
corporation and its non-Filipino stockholders own stock in a registered enterprise, at least sixty time the investment is sought to be made; or
percent of the capital stock outstanding and entitled to vote of both corporations must be (e) Would not contribute to the sound and balanced development of the national
owned and held by the citizens of the Philippines and at least sixty percent of the members of economy on a self-sustaining basis.
the Board of Directors of both corporations must be citizens of the Philippines in order that the xxxx
corporation shall be considered a Philippine National. (Boldfacing, italicization and underscoring 32 Executive Order No. 858, Promulgating the Eighth Regular Foreign Investment Negative
supplied) List, signed on 5 February 2010, http://www.boi.gov.ph/pdf/laws/eo/EO%20858.pdf (accessed
Under Section 3 of Republic Act No. 5455 or the Foreign Business Regulations Act, which 17 August 2011).
took effect on 30 September 1968, if the investment in a domestic enterprise by non-Philippine 436
nationals exceeds 30% of its outstanding capital stock, such enterprise must obtain prior
approval from the Board of Investments before accepting such investment. Such approval
shall not be granted if the investment “would conflict with existing constitutional provisions and Heirs of Wilson P. Gamboa vs. Teves
laws regulating the degree of required ownership by Philippine nationals in the enterprise.”31 A SEC. 8. List of Investment Areas Reserved to Philippine Nationals [Foreign Investment Negative
“non-Philippine national” cannot own List].—The Foreign Investment Negative List shall have two [2] component lists: A and B:
_______________ a. List A shall enumerate the areas of activities reserved to Philippine nationals by mandate of
31 Section 3 of RA No. 5455 states: the Constitution and specific laws.
Section 3. Permissible Investments.—If an investment by a non-Philippine national in an b. List B shall contain the areas of activities and enterprises regulated pursuant to law:
enterprise not registered under the Investment Incentives Act is such that the total participation 1. which are defense-related activities, requiring prior clearance and authorization from the
by non-Philippine nationals in the outstanding capital thereof shall exceed thirty per cent, the Department of National Defense [DND] to engage in such activity, such as the manufacture,
enterprise must obtain prior authority from the Board of Investments, which authority shall be repair, storage and/or distribution of firearms, ammunition, lethal weapons, military ordinance,
granted unless the proposed investment explosives, pyrotechnics and similar materials; unless such manufacturing or repair activity is
(a) Would conflict with existing constitutional provisions and laws regulating the degree specifically authorized, with a substantial export component, to a non-Philippine national by the
of required ownership by Philippine nationals in the enterprise; or Secretary of National Defense; or
(b) Would pose a clear and present danger of promoting monopolies or combinations in 2. which have implications on public health and morals, such as the manufacture and
restraint of trade; or distribution of dangerous drugs; all forms of gambling; nightclubs, bars, beer houses, dance
435 halls, sauna and steam bathhouses and massage clinics. (Boldfacing, underscoring and
VOL. 682, OCTOBER 9, 2012 435 italicization supplied)
Section 8 of the FIA enumerates the investment areas “reserved to Philippine
Heirs of Wilson P. Gamboa vs. Teves nationals.” Foreign Investment Negative List A consists of “areas of activities reserved to
and operate a reserved economic activity like a public utility. Again, this means that only a Philippine nationals by mandate of the Constitution and specific laws,” where foreign equity
“Philippine national” can own and operate a public utility. participation in any enterprise shall be limited to the maximum percentage expressly prescribed
The FIA, like all its predecessor statutes, clearly defines a “Philippine national” as a Filipino by the Constitution and other specific laws. In short, to own and operate a public utility in the
citizen, or a domestic corporation “at least sixty percent (60%) of the capital stock Philippines one must be a “Philippine national” as defined in the FIA. The FIA is abundant notice
outstanding and entitled to vote” is owned by Filipino citizens. A domestic corporation is a to foreign investors to what extent they can invest in public utilities in the Philippines.
“Philippine national” only if at least 60% of its voting stock is owned by Filipino citizens. This To repeat, among the areas of investment covered by the Foreign Investment Negative List
definition of a “Philippine national” is crucial in the present case because the FIA reiterates and A is the ownership and operation of public utilities, which the Constitution expressly
clarifies Section 11, Article XII of the 1987 Constitution, which limits the ownership and 437
operation of public utilities to Filipino citizens or to corporations or associations at least 60%
VOL. 682, OCTOBER 9, 2012 437
Filipino-owned.
Page 13 of 66
reserves to Filipino citizens and to corporations at least 60% owned by Filipino citizens. In other JUSTICE CARPIO:
words, Negative List A of the FIA reserves the ownership and operation of public utilities only to And even prior to the Omnibus Investments Act of 1987, under the Omnibus
“Philippine nationals,” defined in Section 3(a) of the FIA as “(1) a citizen of the Philippines; x x x Investments Act of 1981, the same rules apply: x x x only a Philippine national
or (3) a corporation organized under the laws of the Philippines of which at least sixty percent can own and operate a public utility and a Philippine national, if it is a
(60%) of the capital stock outstanding and entitled to vote is owned and held by citizens of the corporation, sixty percent (60%) of its x x x voting stock, must be owned by
Philippines; or (4) a corporation organized abroad and registered as doing business in the citizens of the Philippines, correct?
Philippines under the Corporation Code of which one hundred percent (100%) of the capital COMMISSIONER GAITE:
stock outstanding and entitled to vote is wholly owned by Filipinos or a trustee of funds for Correct, Your Honor.439
pension or other employee retirement or separation benefits, where the trustee is a Philippine VOL. 682, OCTOBER 9, 2012 439
national and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine
nationals.” Heirs of Wilson P. Gamboa vs. Teves
Clearly, from the effectivity of the Investment Incentives Act of 1967 to the adoption of the JUSTICE CARPIO:
Omnibus Investments Code of 1981, to the enactment of the Omnibus Investments Code of And even prior to that, under [the] 1967 Investments Incentives Act and the
1987, and to the passage of the present Foreign Investments Act of 1991, or for more than four Foreign Company Act of 1968, the same rules applied, correct?
decades, the statutory definition of the term “Philippine national” has been uniform and COMMISSIONER GAITE:
consistent: it means a Filipino citizen, or a domestic corporation at least 60% of the voting stock is Correct, Your Honor.
owned by Filipinos. Likewise, these same statutes have uniformly and consistently required that JUSTICE CARPIO:
only “Philippine nationals” could own and operate public utilities in the Philippines. The following So, for the last four (4) decades, x x x, the law has been very consistent—only a
exchange during the Oral Arguments is revealing: Philippine national can own and operate a public utility, and a Philippine national,
JUSTICE CARPIO: if it is a corporation, x x x at least sixty percent (60%) of the voting stock must be
Counsel, I have some questions. You are aware of the Foreign Investments Act of owned by citizens of the Philippines, correct?
1991, x x x? And the FIA of 1991 took effect in 1991, correct? That’s over twenty COMMISSIONER GAITE:
(20) years ago, correct?438 Correct, Your Honor.33 (Emphasis supplied)
Government agencies like the SEC cannot simply ignore Sections 3(a) and 8 of the FIA which
categorically prescribe that certain economic activities, like the ownership and operation of
Heirs of Wilson P. Gamboa vs. Teves public utilities, are reserved to corporations “at least sixty percent (60%) of the capital stock
COMMISSIONER GAITE: outstanding and entitled to vote is owned and held by citizens of the Philippines.” Foreign
Correct, Your Honor. Investment Negative List A refers to “activities reserved to Philippine nationals by mandate of
JUSTICE CARPIO: the Constitution and specific laws.” The FIA is the basic statute regulating foreign investments in
And Section 8 of the Foreign Investments Act of 1991 states that []only Philippine the Philippines. Government agencies tasked with regulating or monitoring foreign investments,
nationals can own and operate public utilities[], correct? as well as counsels of foreign investors, should start with the FIA in determining to what extent
COMMISSIONER GAITE: a particular foreign investment is allowed in the Philippines. Foreign investors and their counsels
Yes, Your Honor. who ignore the FIA do so at their own peril. Foreign investors and their counsels who rely on
JUSTICE CARPIO: opinions of SEC legal officers that obviously contradict the FIA do so also at their own peril.
And the same Foreign Investments Act of 1991 defines a “Philippine national” _______________
either as a citizen of the Philippines, or if it is a corporation at least sixty percent 33 TSN (Oral Arguments), 26 June 2012, pp. 71-74.
(60%) of the voting stock is owned by citizens of the Philippines, correct? 440
COMMISSIONER GAITE: 440 SUPREME COURT REPORTS ANNOTATED
Correct, Your Honor.
JUSTICE CARPIO: Heirs of Wilson P. Gamboa vs. Teves
And, you are also aware that under the predecessor law of the Foreign Investments Occasional opinions of SEC legal officers that obviously contradict the FIA should
Act of 1991, the Omnibus Investments Act of 1987, the same provisions apply: immediately raise a red flag. There are already numerous opinions of SEC legal officers that cite
x x x only Philippine nationals can own and operate a public utility and the the definition of a “Philippine national” in Section 3(a) of the FIA in determining whether a
Philippine national, if it is a corporation, x x x sixty percent (60%) of the capital particular corporation is qualified to own and operate a nationalized or partially nationalized
stock of that corporation must be owned by citizens of the Philippines, correct? business in the Philippines. This shows that SEC legal officers are not only aware of, but also rely
COMMISSIONER GAITE: on and invoke, the provisions of the FIA in ascertaining the eligibility of a corporation to engage
Correct, Your Honor. in partially nationalized industries. The following are some of such opinions:
Page 14 of 66
1. Opinion of 23 March 1993, addressed to Mr. Francis F. How; Heirs of Wilson P. Gamboa vs. Teves
2. Opinion of 14 April 1993, addressed to Director Angeles T. Wong of the Philippine PART III. FOREIGN INVESTMENTS WITHOUT INCENTIVES
Overseas Employment Administration; Investors who do not seek incentives and/or whose chosen activities do not qualify for
3. Opinion of 23 November 1993, addressed to Messrs. Dominador Almeda and Renato S. incentives, (i.e., the activity is not listed in the IPP, and they are not exporting at least 70% of
Calma; their production) may go ahead and make the investments without seeking incentives. They
4. Opinion of 7 December 1993, addressed to Roco Bunag Kapunan Migallos & Jardeleza; only have to be guided by the Foreign Investments Negative List (FINL).
5. SEC Opinion No. 49-04, addressed to Romulo Mabanta Buenaventura Sayoc & De Los The FINL clearly defines investment areas requiring at least 60% Filipino ownership. All other
Angeles; areas outside of this list are fully open to foreign investors. (Emphasis supplied)
6. SEC-OGC Opinion No. 17-07, addressed to Mr. Reynaldo G. David; and
7. SEC-OGC Opinion No. 03-08, addressed to Attys. Ruby Rose J. Yusi and Rudyard S.
V.
Arbolado.
Right to elect directors, coupled with beneficial
The SEC legal officers’ occasional but blatant disregard of the definition of the term “Philippine
ownership, translates to effective control.
national” in the FIA signifies their lack of integrity and competence in resolving issues on the 60-
40 ownership requirement in favor of Filipino citizens in Section 11, Article XII of the
The 28 June 2011 Decision declares that the 60 percent Filipino ownership required by the
Constitution.
Constitution to engage in certain economic activities applies not only to voting control of the
The PSE President argues that the term “Philippine national” defined in the FIA should be
corporation, but also to the beneficial ownership of the corporation. To repeat, we held:
limited and interpreted to refer to corporations seeking to avail of tax and fiscal incen-
Mere legal title is insufficient to meet the 60 percent Filipino owned “capital” required in
441
the Constitution. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled
VOL. 682, OCTOBER 9, 2012 441 with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent
Heirs of Wilson P. Gamboa vs. Teves of the outstanding capital stock must rest in the hands of Filipino nationals in accordance with
tives under investment incentives laws and cannot be equated with the term “capital” in Section the constitutional mandate. Otherwise, the corporation is “considered as non-Philippine
11, Article XII of the 1987 Constitution. Pangilinan similarly contends that the FIA and its national[s].” (Emphasis supplied)
predecessor statutes do not apply to “companies which have not registered and obtained This is consistent with Section 3 of the FIA which provides that where 100% of the capital
special incentives under the schemes established by those laws.” stock is held by “a trustee of funds for pension or other employee retirement or separation
Both are desperately grasping at straws. The FIA does not grant tax or fiscal incentives to benefits,” the trustee is a Philippine national if “at least sixty percent (60%) of the fund will
any enterprise. Tax and fiscal incentives to investments are granted separately under the accrue to the benefit of Philippine nationals.” Likewise, Section 1(b) of the Implementing Rules
Omnibus Investments Code of 1987, not under the FIA. In fact, the FIA expressly repealed of the FIA provides that “for stocks to be deemed owned
Articles 44 to 56 of Book II of the Omnibus Investments Code of 1987, which articles previously 443
regulated foreign investments in nationalized or partially nationalized industries. VOL. 682, OCTOBER 9, 2012 443
The FIA is the applicable law regulating foreign investments in nationalized or partially
nationalized industries. There is nothing in the FIA, or even in the Omnibus Investments Code
and held by Philippine citizens or Philippine nationals, mere legal title is not enough to meet the
of 1987 or its predecessor statutes, that states, expressly or impliedly, that the FIA or its
required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting
predecessor statutes do not apply to enterprises not availing of tax and fiscal incentives under
rights, is essential.”
the Code. The FIA and its predecessor statutes apply to investments in all domestic enterprises,
Since the constitutional requirement of at least 60 percent Filipino ownership applies not
whether or not such enterprises enjoy tax and fiscal incentives under the Omnibus Investments
only to voting control of the corporation but also to the beneficial ownership of the corporation,
Code of 1987 or its predecessor statutes. The reason is quite obvious—mere non-availment of
it is therefore imperative that such requirement apply uniformly and across the board to all
tax and fiscal incentives by a non-Philippine national cannot exempt it from Section 11, Article XII
classes of shares, regardless of nomenclature and category, comprising the capital of a
of the Constitution regulating foreign investments in public utilities. In fact, the Board of
corporation. Under the Corporation Code, capital stock35 consists of all classes of shares issued
Investments’ Primer on Investment Policies in the Philippines,34which is given out to foreign
to stockholders, that is, common shares as well as preferred shares, which may have different
investors, provides:
rights, privileges or restrictions as stated in the articles of incorporation.36
_______________
_______________
34 Published by the Board of Investments. For on-line copy, see
35 In his book, Fletcher explains:
http://www.fdi.net/documents/WorldBank/databases/philippines/primer.htm (accessed 3
The term “stock” has been used in the same sense as “capital stock” or “capital,”
September 2012)
and it has been said that “tis primary meaning is capital, in whatever form it may be
442
invested. More commonly, it is now being used to designate shares of the stock in the
Page 15 of 66
hands of the individual shareholders, or the certificates issued by the corporation to Heirs of Wilson P. Gamboa vs. Teves
them. (Fletcher Cyclopedia of the Law of Private Corporations, 1995 Revised Volume, preferred shares may be denied such right. Nonetheless, preferred shares, even if denied the
Vol. 11, § 5079, p. 13; citations omitted). right to vote in the election of directors, are entitled to vote on the following corporate matters:
36 SECTION 137. Outstanding capital stock defined.—The term “outstanding capital (1) amendment of articles of incorporation; (2) increase and decrease of capital stock; (3)
stock” as used in this Code, means the total shares of stock issued to subscribers or incurring, creating or increasing bonded indebtedness; (4) sale, lease, mortgage or other
stockholders, whether or not fully or partially paid, except treasury shares. disposition of substantially all corporate assets; (5) investment of funds in another business or
SEC. 6. Classification of shares.—The shares of stock of stock corporations may corporation or for a purpose other than the primary purpose for which the corporation was
be divided into classes or series of shares, or both, any of which classes or series of organized; (6) adoption, amendment and repeal of by-laws; (7) merger and consolidation; and
shares may have such rights, privileges or restrictions as may be stated in the articles (8) dissolution of corporation.37
of incorporation: Provided, That no share may be deprived of voting rights except those Since a specific class of shares may have rights and privileges or restrictions different from
classified and issued as “preferred” or “redeemable” shares, unless otherwise provided the rest of the shares in a corporation, the 60-40 ownership requirement in favor of Filipino
in this Code: Provided, further, That there shall always be a class or series of shares citizens in Section 11, Article XII of the Constitution must apply not only to shares with voting
which have complete voting rights. rights but also to shares without voting rights. Preferred shares, denied the right to vote in the
444 election of directors, are anyway still entitled to vote on the eight specific corporate matters
444 SUPREME COURT REPORTS ANNOTATED mentioned above. Thus, if a corporation, engaged in a partially nationalized industry, issues a
Heirs of Wilson P. Gamboa vs. Teves mixture of common and preferred non-voting shares, at least 60 percent of the common shares
The Corporation Code allows denial of the right to vote to preferred and redeemable and at least 60 percent of the preferred non-voting shares must be owned by Filipinos. Of course,
shares, but disallows denial of the right to vote in specific corporate matters. Thus, common if a corporation issues only a single class of shares, at least 60 percent of such shares must
shares have the right to vote in the election of directors, while necessarily be owned by Filipinos. In short, the 60-40 ownership requirement in favor of Filipino
_______________ citizens must apply separately to each class of shares, whether common, preferred non-voting,
Any or all of the shares or series of shares may have a par value or have no par value as may preferred voting or any other class of shares. This uniform application of the 60-40 ownership
be provided for in the articles of incorporation: Provided, however, That banks, trust companies, requirement in favor of Filipino citizens clearly breathes life to the constitutional command that
insurance companies, public utilities, and building and loan associations shall not be permitted the ownership and operation of public
to issue no-par value shares of stock. _______________
Preferred shares of stock issued by any corporation may be given preference in the 37 Under Section 6 of the Corporation Code.
distribution of the assets of the corporation in case of liquidation and in the distribution of 446
dividends, or such other preferences as may be stated in the articles of incorporation which are 446 SUPREME COURT REPORTS ANNOTATED
not violative of the provisions of this Code: Provided, That preferred shares of stock may be Heirs of Wilson P. Gamboa vs. Teves
issued only with a stated par value. The board of directors, where authorized in the articles of utilities shall be reserved exclusively to corporations at least 60 percent of whose capital is
incorporation, may fix the terms and conditions of preferred shares of stock or any series Filipino-owned. Applying uniformly the 60-40 ownership requirement in favor of Filipino citizens
thereof: Provided, That such terms and conditions shall be effective upon the filing of a to each class of shares, regardless of differences in voting rights, privileges and restrictions,
certificate thereof with the Securities and Exchange Commission. guarantees effective Filipino control of public utilities, as mandated by the Constitution.
Shares of capital stock issued without par value shall be deemed fully paid and non- Moreover, such uniform application to each class of shares insures that the “controlling
assessable and the holder of such shares shall not be liable to the corporation or to its creditors interest” in public utilities always lies in the hands of Filipino citizens. This addresses and
in respect thereto: Provided, That shares without par value may not be issued for a extinguishes Pangilinan’s worry that foreigners, owning most of the non-voting shares, will
consideration less than the value of five (P5.00) pesos per share: Provided, further, That the exercise greater control over fundamental corporate matters requiring two-thirds or majority
entire consideration received by the corporation for its no-par value shares shall be treated as vote of all shareholders.
capital and shall not be available for distribution as dividends.
A corporation may, furthermore, classify its shares for the purpose of insuring compliance
VI.
with constitutional or legal requirements.
Intent of the framers of the Constitution
Except as otherwise provided in the articles of incorporation and stated in the certificate of
stock, each share shall be equal in all respects to every other share.
While Justice Velasco quoted in his Dissenting Opinion38 a portion of the deliberations of
xxxx
the Constitutional Commission to support his claim that the term “capital” refers to the total
445
outstanding shares of stock, whether voting or non-voting, the following excerpts of the
VOL. 682, OCTOBER 9, 2012 445
Page 16 of 66
deliberations reveal otherwise. It is clear from the following exchange that the term “capital” despite being the minority because they have the voting capital. That is the anomaly that would
refers to controlling interest of a corporation, thus: result here.
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and MR. BENGZON. No, the reason we eliminated the word “stock” as stated in the 1973 and 1935
foreign equity; namely, 60-40 in Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15. Constitutions is that according to Commissioner Rodrigo, there are associations that do not have
MR. VILLEGAS. That is right. stocks. That is why we say “CAPITAL.”
MR. NOLLEDO. In teaching law, we are always faced with this question: “Where do we base MR. AZCUNA. We should not eliminate the phrase “controlling interest.”
the equity requirement, is it on the authorized capital stock, on the subscribed capital stock, or MR. BENGZON. In the case of stock corporations, it is assumed.40 (Boldfacing and underscoring
on the supplied)
_______________ Thus, 60 percent of the “capital” assumes, or should result in, a “controlling interest” in the
38 Dissenting Opinion to the 28 June 2011 Decision. corporation.
447 The use of the term “capital” was intended to replace the word “stock” because
VOL. 682, OCTOBER 9, 2012 447 associations without stocks can operate public utilities as long as they meet the 60-40
ownership requirement in favor of Filipino citizens prescribed in Section 11, Article XII of the
Heirs of Wilson P. Gamboa vs. Teves Constitution. However, this did not change the intent of the framers of the Constitution to
paid-up capital stock of a corporation”? Will the Committee please enlighten me on this? reserve exclusively to Philippine nationals the “controlling interest” in public utilities.
MR. VILLEGAS. We have just had a long discussion with the members of the team from the UP During the drafting of the 1935 Constitution, economic protectionism was “the battle-cry
Law Center who provided us a draft. The phrase that is contained here which we adopted from of the nationalists in the Convention.”41 The same battle-cry resulted in the nationalization of
the UP draft is “60 percent of voting stock.” the public utilities.42 This is also the same intent of the
MR. NOLLEDO. That must be based on the subscribed capital stock, because unless declared _______________
delinquent, unpaid capital stock shall be entitled to vote. 40 Id., at p. 360.
MR. VILLEGAS. That is right. 41 Aruego, Jose M., THE FRAMING OF THE PHILIPPINE CONSTITUTION, Vol. II, 1936, p. 658.
MR. NOLLEDO. Thank you. 42 Id.
With respect to an investment by one corporation in another corporation, say, a corporation 449
with 60-40 percent equity invests in another corporation which is permitted by the Corporation
VOL. 682, OCTOBER 9, 2012 449
Code, does the Committee adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee. Heirs of Wilson P. Gamboa vs. Teves
MR. NOLLEDO. Therefore, we need additional Filipino capital? framers of the 1987 Constitution who adopted the exact formulation embodied in the 1935 and
MR. VILLEGAS. Yes.39 1973 Constitutions on foreign equity limitations in partially nationalized industries.
xxxx The OSG, in its own behalf and as counsel for the State,43 agrees fully with the Court’s
MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee. interpretation of the term “capital.” In its Consolidated Comment, the OSG explains that the
MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase “voting deletion of the phrase “controlling interest” and replacement of the word “stock” with the term
stock or controlling interest.” “capital” were intended specifically to extend the scope of the entities qualified to operate
MR. AZCUNA. Hence, without the Davide amendment, the committee report would read: public utilities to include associations without stocks. The framers’ omission of the phrase
“corporations or associations at least sixty percent of whose CAPITAL is owned by such citizens.” “controlling interest” did not mean the inclusion of all shares of stock, whether voting or non-
MR. VILLEGAS. Yes. voting. The OSG reiterated essentially the Court’s declaration that the Constitution reserved
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the capital exclusively to Philippine nationals the ownership and operation of public utilities consistent with
to be owned by citizens. the State’s policy to “develop a self-reliant and independent national economy effectively
_______________ controlled by Filipinos.”
39 Record of the Constitutional Commission, Vol. III, pp. 255-256. As we held in our 28 June 2011 Decision, to construe broadly the term “capital” as the total
448 outstanding capital stock, treated as a single class regardless of the actual classification of
448 SUPREME COURT REPORTS ANNOTATED shares, grossly contravenes the intent and letter of the Constitution that the “State shall
develop a self-reliant and independent national economy effectively controlled by Filipinos.” We
Heirs of Wilson P. Gamboa vs. Teves illustrated the glaring anomaly which would result in defining the term “capital” as the total
MR. VILLEGAS. That is right. outstanding capital stock of a corporation, treated as a single class of shares regardless of the
MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let us say actual classification of shares, to wit:
40 percent of the capital is owned by them, but it is the voting capital, whereas, the Filipinos own _______________
the nonvoting shares. So we can have a situation where the corporation is controlled by foreigners
Page 17 of 66
43 The OSG stated, “It must be stressed that when the OSG stated its concurrence with the the percentage threshold to adopt, x x x the records show they clearly understood that Filipino
Honorable Court’s ruling on the proper definition of capital, it did so, not on behalf of the SEC, control of the public utility corporation can only be and is obtained only through the election of
its individual client in this case. Rather, the OSG did so in the exercise of its discretion not only a majority of the members of the board.”
in its capacity as statutory counsel of the SEC but as counsel for no less than the State itself.” Indeed, the only point of contention during the deliberations of the Constitutional
450 Commission on 23 August 1986 was the extent of majority Filipino control of public utilities. This
450 SUPREME COURT REPORTS ANNOTATED is evident from the following exchange:
THE PRESIDENT. Commissioner Jamir is recognized.
Heirs of Wilson P. Gamboa vs. Teves MR. JAMIR. Madam President, my proposed amendment on lines 20 and 21 is to delete the
Let us assume that a corporation has 100 common shares owned by foreigners and phrase “two thirds of whose voting stock or controlling interest,” and instead substitute the
1,000,000 non-voting preferred shares owned by Filipinos, with both classes of share having a words “SIXTY PERCENT OF WHOSE CAPITAL” so that the sentence will read: “No franchise,
par value of one peso (P1.00) per share. Under the broad definition of the term “capital,” such certificate, or any other form of authorization for the operation of a public utility shall be
corporation would be considered compliant with the 40 percent constitutional limit on foreign granted except to citizens of the Philippines or to corporations or associations organized under
equity of public utilities since the overwhelming majority, or more than 99.999 percent, of the the laws of the Philippines at least SIXTY PERCENT OF WHOSE CAPITAL is owned by such
total outstanding capital stock is Filipino owned. This is obviously absurd. citizens.”
In the example given, only the foreigners holding the common shares have voting rights in x x x x452
the election of directors, even if they hold only 100 shares. The foreigners, with a minuscule
equity of less than 0.001 percent, exercise control over the public utility. On the other hand, the
Filipinos, holding more than 99.999 percent of the equity, cannot vote in the election of Heirs of Wilson P. Gamboa vs. Teves
directors and hence, have no control over the public utility. This starkly circumvents the intent THE PRESIDENT: Will Commissioner Jamir first explain?
of the framers of the Constitution, as well as the clear language of the Constitution, to place the MR. JAMIR. Yes, in this Article on National Economy and Patrimony, there were two previous
control of public utilities in the hands of Filipinos. x x x sections in which we fixed the Filipino equity to 60 percent as against 40 percent for foreigners.
Further, even if foreigners who own more than forty percent of the voting shares elect an It is only in this Section 15 with respect to public utilities that the committee proposal was
all-Filipino board of directors, this situation does not guarantee Filipino control and does not in increased to two-thirds. I think it would be better to harmonize this provision by providing that
any way cure the violation of the Constitution. The independence of the Filipino board members even in the case of public utilities, the minimum equity for Filipino citizens should be 60 percent.
so elected by such foreign shareholders is highly doubtful. As the OSG pointed out, quoting MR. ROMULO. Madam President.
Justice George Sutherland’s words in Humphrey’s Executor v. US,44 “x x x it is quite evident that THE PRESIDENT. Commissioner Romulo is recognized.
one who holds his office only during the pleasure of another cannot be depended upon to MR. ROMULO. My reason for supporting the amendment is based on the discussions I have
maintain an attitude of independence against the latter’s will.” Allowing foreign shareholders had with representatives of the Filipino majority owners of the international record carriers,
to elect a controlling majority of the board, even if all the directors are Filipinos, grossly and the subsequent memoranda they submitted to me. x x x
circumvents the letter and intent of the Constitution and defeats the very purpose of our Their second point is that under the Corporation Code, the management and control of a
nationalization laws. corporation is vested in the board of directors, not in the officers but in the board of directors.
_______________ The officers are only agents of the board. And they believe that with 60 percent of the equity,
44 295 U.S. 602, 55 S.Ct. 869, U.S. 1935 (27 May 1935). the Filipino majority stockholders undeniably control the board. Only on important corporate
451 acts can the 40-percent foreign equity exercise a veto, x x x.
VOL. 682, OCTOBER 9, 2012 451 x x x x45
MS. ROSARIO BRAID. Madam President.
Heirs of Wilson P. Gamboa vs. Teves THE PRESIDENT. Commissioner Rosario Braid is recognized.
VII. MS. ROSARIO BRAID. Yes, in the interest of equal time, may I also read from a memorandum
Last sentence of Section 11, Article XII of the by the spokesman of the Philippine Chamber of Communications on why they would like to
Constitution maintain the present equity, I am referring to the 66 2/3. They would prefer to have a 75-25
The last sentence of Section 11, Article XII of the 1987 Constitution reads: ratio but would settle for 66 2/3. x x x
The participation of foreign investors in the governing body of any public utility enterprise shall xxxx
be limited to their proportionate share in its capital, and all the executive and managing officers _______________
of such corporation or association must be citizens of the Philippines. 45 Record of the Constitutional Commission, Vol. 3, pp. 650-651 (23 August 1986).
During the Oral Arguments, the OSG emphasized that there was never a question on the 453
intent of the framers of the Constitution to limit foreign ownership, and assure majority Filipino
VOL. 682, OCTOBER 9, 2012 453
ownership and control of public utilities. The OSG argued, “while the delegates disagreed as to
Page 18 of 66
Heirs of Wilson P. Gamboa vs. Teves Thank you.
THE PRESIDENT. Just to clarify, would Commissioner Rosario Braid support the proposal of MS. ROSARIO BRAID. Madam President.
two-thirds rather than the 60 percent? THE PRESIDENT. This is still on Section 15.
MS. ROSARIO BRAID. I have added a clause that will put management in the hands of Filipino MS. ROSARIO BRAID. Yes.
citizens. MR. VILLEGAS. Yes, Madam President.
x x x x46 xxxx
While they had differing views on the percentage of Filipino ownership of capital, it is clear MS. ROSARIO BRAID. Madam President, I propose a new section to read: ‘THE MANAGEMENT
that the framers of the Constitution intended public utilities to be majority Filipino-owned and BODY OF EVERY CORPORATION
controlled. To ensure that Filipinos control public utilities, the framers of the Constitution _______________
approved, as additional safeguard, the inclusion of the last sentence of Section 11, Article XII of 47 Record of the Constitutional Commission, Vol. 3, p. 652 (23 August 1986).
the Constitution commanding that “[t]he participation of foreign investors in the governing 455
body of any public utility enterprise shall be limited to their proportionate share in its capital, VOL. 682, OCTOBER 9, 2012 455
and all the executive and managing officers of such corporation or association must be citizens Heirs of Wilson P. Gamboa vs. Teves
of the Philippines.” In other words, the last sentence of Section 11, Article XII of the Constitution OR ASSOCIATION SHALL IN ALL CASES BE CONTROLLED BY CITIZENS OF THE PHILIPPINES.”
mandates that (1) the participation of foreign investors in the governing body of the corporation This will prevent management contracts and assure control by Filipino citizens. Will the
or association shall be limited to their proportionate share in the capital of such entity; and (2) committee assure us that this amendment will insure that past activities such as management
all officers of the corporation or association must be Filipino citizens. contracts will no longer be possible under this amendment?
Commissioner Rosario Braid proposed the inclusion of the phrase requiring the managing xxxx
officers of the corporation or association to be Filipino citizens specifically to prevent FR. BERNAS. Madam President.
management contracts, which were designed primarily to circumvent the Filipinization of public THE PRESIDENT. Commissioner Bernas is recognized.
utilities, and to assure Filipino control of public utilities, thus: FR. BERNAS. Will the committee accept a reformulation of the first part?
MS. ROSARIO BRAID. x x x They also like to suggest that we amend this provision by adding a MR. BENGZON. Let us hear it.
phrase which states: “THE MANAGEMENT BODY OF EVERY CORPORATION OR ASSOCIATION FR. BERNAS. The reformulation will be essentially the formula of the 1973 Constitution which
_______________ reads: “THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY PUBLIC
46 Record of the Constitutional Commission, Vol. 3, pp. 652-653 (23 August 1986). UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE CAPITAL
454 THEREOF AND...”
454 SUPREME COURT REPORTS ANNOTATED MR. VILLEGAS. “ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH CORPORATIONS
Heirs of Wilson P. Gamboa vs. Teves AND ASSOCIATIONS MUST BE CITIZENS OF THE PHILIPPINES.”
SHALL IN ALL CASES BE CONTROLLED BY CITIZENS OF THE PHILIPPINES.” I have with me their MR. BENGZON. Will Commissioner Bernas read the whole thing again?
position paper. FR. BERNAS. “THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY
THE PRESIDENT. The Commissioner may proceed. PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE
MS. ROSARIO BRAID. The three major international record carriers in the Philippines, which CAPITAL THEREOF...” I do not have the rest of the copy.
Commissioner Romulo mentioned MR. BENGZON. “AND ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH
―Philippine Global Communications, Eastern Telecommunications, Globe Mackay Cable―are CORPORATIONS OR ASSOCIATIONS MUST BE CITIZENS OF THE PHILIPPINES.” Is that correct?
40-percent owned by foreign multinational companies and 60-percent owned by their MR. VILLEGAS. Yes.456
respective Filipino partners. All three, however, also have management contracts with these 456 SUPREME COURT REPORTS ANNOTATED
foreign companies―Philcom with RCA, ETPI with Cable and Wireless PLC, and GMCR with ITT. Heirs of Wilson P. Gamboa vs. Teves
Up to the present time, the general managers of these carriers are foreigners. While the MR. BENGZON. Madam President, I think that was said in a more elegant language. We accept
foreigners in these common carriers are only minority owners, the foreign multinationals are the amendment. Is that all right with Commissioner Rosario Braid?
the ones managing and controlling their operations by virtue of their management contracts MS. ROSARIO BRAID. Yes.
and by virtue of their strength in the governing bodies of these carriers.47 xxxx
xxxx MR. DE LOS REYES. The governing body refers to the board of directors and trustees.
MR. OPLE. I think a number of us have agreed to ask Commissioner Rosario Braid to propose MR. VILLEGAS. That is right.
an amendment with respect to the operating management of public utilities, and in this MR. BENGZON. Yes, the governing body refers to the board of directors.
amendment, we are associated with Fr. Bernas, Commissioners Nieva and Rodrigo. MR. REGALADO. It is accepted.
Commissioner Rosario Braid will state this amendment now.
Page 19 of 66
MR. RAMA. The body is now ready to vote, Madam President. reserving ownership and control of public utilities to Filipino citizens.
VOTING
xxxx VIII.
The results show 29 votes in favor and none against; so the proposed amendment is approved. The undisputed facts
xxxx
THE PRESIDENT. All right. Can we proceed now to vote on Section 15? There is no dispute, and respondents do not claim the contrary, that (1) foreigners own
MR. RAMA. Yes, Madam President. 64.27% of the common shares of PLDT, which class of shares exercises the sole right to vote in
THE PRESIDENT. Will the chairman of the committee please read Section 15? the election of directors, and thus foreigners control PLDT; (2) Filipinos own only 35.73% of
MR. VILLEGAS. The entire Section 15, as amended, reads: “No franchise, certificate, or any PLDT’s common shares, constituting a minority of the voting stock, and thus Filipinos do not
other form of authorization for the operation of a public utility shall be granted except to control PLDT; (3) preferred shares, 99.44% owned by Filipinos, have no voting rights; (4)
citizens of the Philippines or to corporations or associations organized under the laws of the preferred shares earn only 1/70 of the dividends that common shares earn;50 (5) preferred
Philippines at least 60 PERCENT OF WHOSE CAPITAL is owned by such citizens.” May I request shares have twice the par value of common shares; and (6) preferred shares constitute 77.85%
Commissioner Bengzon to please continue reading.457 of the authorized capital stock of PLDT and common shares only 22.15%.
VOL. 682, OCTOBER 9, 2012 457 Despite the foregoing facts, the Court did not decide, and in fact refrained from ruling on
the question of whether PLDT violated the 60-40 ownership requirement in favor of Filipino
citizens in Section 11, Article XII of the 1987 Constitution. Such question indisputably calls for a
MR. BENGZON. “THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF
presentation and determination of evidence through a hearing, which is generally outside the
ANY PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE
province of the Court’s jurisdiction, but well within the SEC’s statutory powers. Thus, for obvious
CAPITAL THEREOF AND ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH
reasons, the Court limited its decision on the purely legal and threshold issue on the definition
CORPORATIONS OR ASSOCIATIONS MUST BE CITIZENS OF THE PHILIPPINES.”
of the term “capital” in Section 11,
MR. VILLEGAS. “NOR SHALL SUCH FRANCHISE, CERTIFICATE OR AUTHORIZATION BE
_______________
EXCLUSIVE IN CHARACTER OR FOR A PERIOD LONGER THAN TWENTY-FIVE YEARS RENEWABLE
under the condition that it shall be subject to amendment, alteration, or repeal by
FOR NOT MORE THAN TWENTY-FIVE YEARS. Neither shall any such franchise or right be granted
the National Assembly when the public interest so requires. The State shall encourage
except under the condition that it shall be subject to amendment, alteration, or repeal by
equity participation in public utilities by the general public. The participation of foreign
Congress when the common good so requires. The State shall encourage equity participation in
investors in the governing body of any public utility enterprise shall be limited to their
public utilities by the general public.”
proportionate share in the capital thereof. (Emphasis supplied)
VOTING
50 For the year 2009.
xxxx
459
The results show 29 votes in favor and 4 against; Section 15, as amended, is
approved.48 (Emphasis supplied) VOL. 682, OCTOBER 9, 2012 459
The last sentence of Section 11, Article XII of the 1987 Constitution, particularly the Heirs of Wilson P. Gamboa vs. Teves
provision on the limited participation of foreign investors in the governing body of public Article XII of the Constitution and directed the SEC to apply such definition in determining the
utilities, is a reiteration of the last sentence of Section 5, Article XIV of the 1973 exact percentage of foreign ownership in PLDT.
Constitution,49 signifying its importance in
_______________ IX.
48 Record of the Constitutional Commission, Vol. 3, pp. 665-667 (23 August 1986). PLDT is not an indispensable party;
49 Section 5, Article XIV of the 1973 Constitution provides: SEC is impleaded in this case.
Section 5. No franchise, certificate, or any other form of authorization for the operation
of a public utility shall be granted except to citizens of the Philippines or to corporations or In his petition, Gamboa prays, among others:
associations organized under the laws of the Philippines at least sixty per centum of the capital xxxx
of which is owned by such citizens, nor shall such franchise, certificate, or authorization be 5. For the Honorable Court to issue a declaratory relief that ownership of common or
exclusive in character or for a longer period than fifty years. Neither shall any such franchise or voting shares is the sole basis in determining foreign equity in a public utility and that any other
right be granted except government rulings, opinions, and regulations inconsistent with this declaratory relief be
458 declared unconstitutional and a violation of the intent and spirit of the 1987 Constitution;
458 SUPREME COURT REPORTS ANNOTATED 6. For the Honorable Court to declare null and void all sales of common stocks to
Heirs of Wilson P. Gamboa vs. Teves foreigners in excess of 40 percent of the total subscribed common shareholdings; and
Page 20 of 66
7. For the Honorable Court to direct the Securities and Exchange Commission and (m) Suspend, or revoke, after proper notice and hearing the franchise or certificate of
Philippine Stock Exchange to require PLDT to make a public disclosure of all of its foreign registration of corporations, partnership or associations, upon any of the grounds provided by
shareholdings and their actual and real beneficial owners. law; and
Other relief(s) just and equitable are likewise prayed for. (Emphasis supplied) 461
As can be gleaned from his prayer, Gamboa clearly asks this Court to compel the SEC to VOL. 682, OCTOBER 9, 2012 461
perform its statutory duty to investigate whether “the required percentage of ownership of the
capital stock to be owned by citizens of the Philippines has been complied with [by PLDT] as Heirs of Wilson P. Gamboa vs. Teves
required by x x x the Constitution.”51 Such plea clearly negates SEC’s argument that it was not compliance with its directive contained in the 28 June 2011 Decision in view of the far-reaching
impleaded. implications of this case. In Domingo v. Scheer,52 the Court dispensed with the amendment of
_______________ the pleadings to implead the Bureau of Customs considering (1) the unique backdrop of the
51 SEC. 17. Grounds when articles of incorporation or amendment may be rejected or case; (2) the utmost need to avoid further delays; and (3) the issue of public interest involved.
disapproved.—The Securities and Exchange The Court held:
460 The Court may be curing the defect in this case by adding the BOC as party-petitioner. The
petition should not be dismissed because the second action would only be a repetition of the
first. In Salvador, et al. v. Court of Appeals, et al., we held that this Court has full powers, apart
Heirs of Wilson P. Gamboa vs. Teves from that power and authority which is inherent, to amend the processes, pleadings,
Granting that only the SEC Chairman was impleaded in this case, the Court has ample proceedings and decisions by substituting as party-plaintiff the real party-in-interest. The Court
powers to order the SEC’s has the power to avoid delay in the disposition of this case, to order its amendment as to implead
_______________ the BOC as party-respondent. Indeed, it may no longer be necessary to do so taking into account
Commission may reject the articles of incorporation or disapprove any amendment thereto the unique backdrop in this case, involving as it does an issue of public interest. After all, the
if the same is not in compliance with the requirements of this Code: Provided, That the Office of the Solicitor General has represented the petitioner in the instant proceedings, as well
Commission shall give the incorporators a reasonable time within which to correct or modify the as in the appellate court, and maintained the validity of the deportation order and of the BOC’s
objectionable portions of the articles or amendment. The following are grounds for such Omnibus Resolution. It cannot, thus, be claimed by the State that the BOC was not afforded its
rejection or disapproval: day in court, simply because only the petitioner, the Chairperson of the BOC, was the
xxxx respondent in the CA, and the petitioner in the instant recourse. In Alonso v. Villamor, we had
(4) That the percentage of ownership of the capital stock to be owned by citizens of the the occasion to state:
Philippines has not been complied with as required by existing laws or the Constitution. (Emphasis There is nothing sacred about processes or pleadings, their forms or contents. Their
supplied) sole purpose is to facilitate the application of justice to the rival claims of contending
Section 5 of R.A. No. 8799 provides: parties. They were created, not to hinder and delay, but to facilitate and promote, the
Section 5. Powers and Functions of the Commission.—5.1. The Commission shall act with administration of justice.
transparency and shall have the powers and functions provided by this Code, Presidential _______________
Decree No. 902-A, the Corporation Code, the Investment Houses Law, the Financing Company (n) Exercise such other powers as may be provided by law as well as those which may be
Act and other existing laws. Pursuant thereto the Commission shall have, among others, the implied from, or which are necessary or incidental to the carrying out of, the express powers
following powers and functions: granted the Commission to achieve the objectives and purposes of these laws.
(a) Have jurisdiction and supervision over all corporations, partnerships or associations 52 466 Phil. 235; 421 SCRA 468 (2004).
who are the grantees of primary franchises and/or a license or a permit issued by the 462
Government; 462 SUPREME COURT REPORTS ANNOTATED
xxxx
(c) Approve, reject, suspend, revoke or require amendments to registration statements, Heirs of Wilson P. Gamboa vs. Teves
and registration and licensing applications; They do not constitute the thing itself, which courts are always striving to secure to
xxxx litigants. They are designed as the means best adapted to obtain that thing. In other
(f) Impose sanctions for the violation of laws and the rules, regulations and orders, issued words, they are a means to an end. When they lose the character of the one and
pursuant thereto; become the other, the administration of justice is at fault and courts are
xxxx correspondingly remiss in the performance of their obvious duty.53 (Emphasis supplied)
(i) Issue cease and desist orders to prevent fraud or injury to the investing public; In any event, the SEC has expressly manifested54that it will abide by the Court’s decision and
xxxx defer to the Court’s definition of the term “capital” in Section 11, Article XII of the Constitution.
Further, the SEC entered its special appearance in this case and argued during the Oral
Page 21 of 66
Arguments, indicating its submission to the Court’s jurisdiction. It is clear, therefore, that there another from the use and enjoyment of a right or office to which such other is entitled,
exists no legal impediment against the proper and immediate implementation of the Court’s and there is no other plain,
directive to the SEC. 464
PLDT is an indispensable party only insofar as the other issues, particularly the factual 464 SUPREME COURT REPORTS ANNOTATED
questions, are concerned. In other words, PLDT must be impleaded in order to fully resolve the
issues on (1) whether the sale of 111,415 PTIC shares to First Pacific violates the constitutional Heirs of Wilson P. Gamboa vs. Teves
limit on foreign ownership of PLDT; (2) whether the sale of common the SEC to apply the Court’s definition of the term “capital” in Section 11, Article XII of the
_______________ Constitution in determining whether PLDT committed any violation of the said constitutional
53 Id., at pp. 266-267; p. 484. provision. The dispositive portion of the Court’s ruling is addressed not to PLDT but solely to the
54 In its Manifestation and Omnibus Motion dated 29 July 2011, the SEC stated: “The SEC, which is the administrative agency tasked to enforce the 60-40 ownership requirement in
Commission respectfully manifests that the position of the Office of the Solicitor General (‘OSG’) favor of Filipino citizens in Section 11, Article XII of the Constitution.
on the meaning of the term “capital” does not reflect the view of the Commission. The Since the Court limited its resolution on the purely legal issue on the definition of the term
Commission’s position has been laid down in countless opinions that needs no reiteration. The “capital” in Section 11, Article XII of the 1987 Constitution, and directed the SEC to investigate
Commission, however, would submit to whatever would be the final decision of this Honorable any violation by PLDT of the 60-40 ownership requirement in favor of Filipino citizens under the
Court on the meaning of the term “capital.” (Emphasis supplied; citations omitted) Constitution,57 there is no deprivation of PLDT’s property or denial of PLDT’s right to due
In its Memorandum, the SEC stated: “In the event that this Honorable Court rules with process, contrary to Pangilinan and Nazareno’s misimpression. Due process will be afforded to
finality on the meaning of “capital,” the SEC will yield to the Court and follow its interpretation.” PLDT when it presents proof to the SEC that it complies, as it claims here, with Section 11, Article
463 XII of the Constitution.
_______________
VOL. 682, OCTOBER 9, 2012 463
speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby
Heirs of Wilson P. Gamboa vs. Teves may file a verified petition in the proper court, alleging the facts with certainty and praying that
shares to foreigners exceeded the 40 percent limit on foreign equity in PLDT; and (3) whether judgment be rendered commanding the respondent, immediately or at some other time to be
the total percentage of the PLDT common shares with voting rights complies with the 60-40 specified by the court, to do the act required to be done to protect the rights of the petitioner
ownership requirement in favor of Filipino citizens under the Constitution for the ownership and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
and operation of PLDT. These issues indisputably call for an examination of the parties’ respondent.
respective evidence, and thus are clearly within the jurisdiction of the SEC. In short, PLDT must xxxx
be impleaded, and must necessarily be heard, in the proceedings before the SEC where the 57 See Lucman v. Malawi, supra, where the Court referred to the Department of Interior
factual issues will be thoroughly threshed out and resolved. and Local Government (though not impleaded) for investigation and appropriate action the
Notably, the foregoing issues were left untouched by the Court. The Court did not rule on matter regarding the withdrawals of deposits representing the concerned barangays’ Internal
the factual issues raised by Gamboa, except the single and purely legal issue on the definition Revenue Allotments.
of the term “capital” in Section 11, Article XII of the Constitution. The Court confined the 465
resolution of the instant case to this threshold legal issue in deference to the fact-finding power VOL. 682, OCTOBER 9, 2012 465
of the SEC.
Needless to state, the Court can validly, properly, and fully dispose of the fundamental legal Heirs of Wilson P. Gamboa vs. Teves
issue in this case even without the participation of PLDT since defining the term “capital” in X.
Section 11, Article XII of the Constitution does not, in any way, depend on whether PLDT was Foreign Investments in the Philippines
impleaded. Simply put, PLDT is not indispensable for a complete resolution of the purely legal Movants fear that the 28 June 2011 Decision would spell disaster to our economy, as it may
question in this case.55 In fact, the Court, by treating the petition as one for mandamus,56 merely result in a sudden flight of existing foreign investors to “friendlier” countries and simultaneously
directed deterring new foreign investors to our country. In particular, the PSE claims that the 28 June
_______________ 2011 Decision may result in the following: (1) loss of more than P630 billion in foreign
55 In Lucman v. Malawi, 540 Phil. 289; 511 SCRA 268 (2006), the Court defined investments in PSE-listed shares; (2) massive decrease in foreign trading transactions; (3) lower
indispensable parties as parties-in-interest without whom there can be no final determination PSE Composite Index; and (4) local investors not investing in PSE-listed shares.58
of an action. Dr. Bernardo M. Villegas, one of the amici curiae in the Oral Arguments, shared movants’
56 Section 3, Rule 65 of the Rules of Court states: apprehension. Without providing specific details, he pointed out the depressing state of the
SEC. 3. Petition for mandamus.―When any tribunal, corporation, board, officer Philippine economy compared to our neighboring countries which boast of growing economies.
or person unlawfully neglects the performance of an act which the law specifically Further, Dr. Villegas explained that the solution to our economic woes is for the government to
enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes “take-over” strategic industries, such as the public utilities sector, thus:
Page 22 of 66
JUSTICE CARPIO: In its Motion for Partial Reconsideration, the SEC sought to clarify the reckoning period of
I would like also to get from you Dr. Villegas if you have additional information on whether the application and imposition of appropriate sanctions against PLDT if found violating Section
this high FDI59 countries in East Asia have allowed foreigners x x x control [of] their public 11, Article XII of the Constitution.
utilities, so that we can compare apples with apples. As discussed, the Court has directed the SEC to investigate and determine whether PLDT
DR. VILLEGAS: violated Section 11, Article XII of the Constitution. Thus, there is no dispute that it is only after
Correct, but let me just make a comment. When these neighbors of ours find an industry the SEC has determined PLDT’s violation, if any exists at the time of the commencement of the
strategic, their solution is not to “Filipinize” or “Vietnamize” or “Singaporize.” Their solution is administrative case or investigation, that the SEC may impose the statutory sanctions against
to make sure that those industries are in the hands of state enterprises. So, in these countries, PLDT. In other words, once the 28 June 2011 Decision becomes final, the SEC shall impose the
nationalization means the government takes over. And because their governments are appropriate sanctions only if it finds after due hearing that, at the start of the administrative
_______________ case or investigation, there is an existing violation of Section 11, Article XII of the Constitution.
58 Rollo (Vol. III), pp. 1444-1445. Under prevailing jurisprudence, public utilities that fail to comply with the nationality
59 Foreign Direct Investments. requirement under Section 11, Article XII and the FIA can cure their deficiencies prior to the
466 start of the administrative case or investigation.61
XII.
Final Word
competent and honest enough to the public, that is the solution. x x x60 (Emphasis supplied)
If government ownership of public utilities is the solution, then foreign investments in our
The Constitution expressly declares as State policy the development of an economy
public utilities serve no purpose. Obviously, there can never be foreign investments in public
“effectively controlled” by Filipinos. Consistent with such State policy, the Constitution explicitly
utilities if, as Dr. Villegas claims, the “solution is to make sure that those industries are in the
reserves the ownership and operation of public utilities to Philippine nationals, who are defined
hands of state enterprises.” Dr. Villegas’s argument that foreign investments in
in the Foreign Investments Act of 1991 as Filipino citizens, or corporations or associations at
telecommunication companies like PLDT are badly needed to save our ailing economy
least 60 percent of whose capital with vot-
contradicts his own theory that the solution is for government to take over these companies.
_______________
Dr. Villegas is barking up the wrong tree since State ownership of public utilities and foreign
61 See Halili v. Court of Appeals, 350 Phil. 906; 287 SCRA 465 (1998); United Church Board
investments in such industries are diametrically opposed concepts, which cannot possibly be
for World Ministries v. Sebastian, 242 Phil. 848; 159 SCRA 446 (1988).
reconciled.
468
In any event, the experience of our neighboring countries cannot be used as argument to
decide the present case differently for two reasons. First, the governments of our neighboring 468 SUPREME COURT REPORTS ANNOTATED
countries have, as claimed by Dr. Villegas, taken over ownership and control of their strategic Heirs of Wilson P. Gamboa vs. Teves
public utilities like the telecommunications industry. Second, our Constitution has specific ing rights belongs to Filipinos. The FIA’s implementing rules explain that “[f]or stocks to be
provisions limiting foreign ownership in public utilities which the Court is sworn to uphold deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not
regardless of the experience of our neighboring countries. enough to meet the required Filipino equity. Full beneficial ownership of the stocks, coupled with
In our jurisdiction, the Constitution expressly reserves the ownership and operation of appropriate voting rights is essential.” In effect, the FIA clarifies, reiterates and confirms the
public utilities to Filipino citizens, or corporations or associations at least 60 percent of whose interpretation that the term “capital” in Section 11, Article XII of the 1987 Constitution refers
capital belongs to Filipinos. Following Dr. Villegas’s claim, the Philippines appears to be more to shares with voting rights, as well as with full beneficial ownership. This is precisely because the
liberal in allowing foreign investors to own 40 percent of public utilities, unlike in other Asian right to vote in the election of directors, coupled with full beneficial ownership of stocks,
countries whose governments own and operate such industries. translates to effective control of a corporation.
_______________ Any other construction of the term “capital” in Section 11, Article XII of the Constitution
60 TSN (Oral Arguments), 26 June 2012, p. 117. contravenes the letter and intent of the Constitution. Any other meaning of the term “capital”
467 openly invites alien domination of economic activities reserved exclusively to Philippine
VOL. 682, OCTOBER 9, 2012 467 nationals. Therefore, respondents’ interpretation will ultimately result in handing over effective
control of our national economy to foreigners in patent violation of the Constitution, making
Filipinos second-class citizens in their own country.
Filipinos have only to remind themselves of how this country was exploited under the Parity
XI. Amendment, which gave Americans the same rights as Filipinos in the exploitation of natural
Prospective Application of Sanctions resources, and in the ownership and control of public utilities, in the Philippines. To do this the
1935 Constitution, which contained the same 60 percent Filipino ownership and control
Page 23 of 66
requirement as the present 1987 Constitution, had to be amended to give Americans parity Reyes, J., I join the dissenting position of J. Velasco.
rights with Filipinos. There was bitter opposition to the Parity Amendment62 and many Filipinos Perlas-Bernabe, J., No part due to prior participation in a related case.
eagerly awaited its expiration. In late 1968, PLDT was one of the American-controlled public
utilities that DISSENTING OPINION
_______________
62 Urbano A. Zafra, The Laurel-Langley Agreement and the Philippine Economy, p. 43 VELASCO, JR., J.:
(1973). See also Mabanag v. Lopez Vito, 78 Phil. 1 (1947). Before Us are separate motions for reconsideration of the Court’s June 28, 2011
469 Decision,1 which partially granted the petition for prohibition, injunction and declaratory relief
VOL. 682, OCTOBER 9, 2012 469 interposed by Wilson P. Gamboa (petitioner or Gamboa). Very simply, the Court held that the
term “capital” appearing in Section 11, Article XII of the 1987 Constitution refers only to
common shares or shares of stock entitled to vote in the election of the members of the board
became Filipino-controlled when the controlling American stockholders divested in anticipation
of directors of a public utility, and not to the total outstanding capital stock.
of the expiration of the Parity Amendment on 3 July 1974.63 No economic suicide happened
Respondents Manuel V. Pangilinan (Pangilinan) and Napoleon L. Nazareno (Nazareno)
when control of public utilities and mining corporations passed to Filipinos’ hands upon
separately moved for reconsideration on procedural and substantive grounds, but reserved
expiration of the Parity Amendment.
_______________
Movants’ interpretation of the term “capital” would bring us back to the same evils
1 Penned by Justice Antonio T. Carpio.
spawned by the Parity Amendment, effectively giving foreigners parity rights with Filipinos, but
471
this time even without any amendment to the present Constitution. Worse, movants’
interpretation opens up our national economy to effective control not only by Americans but VOL. 682, OCTOBER 9, 2012 471
also by all foreigners, be they Indonesians, Malaysians or Chinese, even in the absence of Heirs of Wilson P. Gamboa vs. Teves
reciprocal treaty arrangements. At least the Parity Amendment, as implemented by the Laurel- their main arguments against the majority’s holding on the meaning of “capital.” The Office of
Langley Agreement, gave the capital-starved Filipinos theoretical parity—the same rights as the Solicitor General (OSG), which initially represented the Securities and Exchange Commission
Americans to exploit natural resources, and to own and control public utilities, in the United (SEC), also requested reconsideration even as it manifested agreement with the majority’s
States of America. Here, movants’ interpretation would effectively mean a unilateral opening construal of the word “capital.” Unable to join the OSG’s stand on the determinative issue of
up of our national economy to all foreigners, without any reciprocal arrangements. That would capital, the SEC sought leave to join the fray on its own. In its Motion to Admit Manifestation
mean that Indonesians, Malaysians and Chinese nationals could effectively control our mining and Omnibus Motion, the SEC stated that the OSG’s position on said issue does not reflect its
companies and public utilities while Filipinos, even if they have the capital, could not control own and in fact diverges from what the Commission has consistently adopted prior to this case.
similar corporations in these countries. And because the decision in question has a penalty component which it is tasked to impose,
The 1935, 1973 and 1987 Constitutions have the same 60 percent Filipino ownership and SEC requested clarification as to when the reckoning period of application of the appropriate
control requirement for public utilities like PLDT. Any deviation from this requirement sanctions may be imposed on Philippine Long Distance Telephone Company (PLDT) in case the
necessitates an amendment to the Constitution as exemplified by the Parity Amendment. This SEC determines that it has violated Sec. 11, Art. XII of the Constitution.
Court has no power to amend To the foregoing motions, the main petitioner, now deceased, filed his Comment and/or
_______________ Opposition to Motions for Reconsideration.
63 See Hadi Salehi Esfahani, The Political Economy of the Philippines’ Telecommunications Acting on the various motions and comment, the Court conducted and heard the parties in
Sector, World Bank Policy Research Department (1994). oral arguments on April 17 and June 26, 2012.
470 After considering the parties’ positions as articulated during the oral arguments and in their
470 SUPREME COURT REPORTS ANNOTATED pleadings and respective memoranda, I vote to grant reconsideration. This disposition is
consistent with my dissent, on procedural and substantive grounds, to the June 28, 2011
majority Decision.
the Constitution for its power and duty is only to faithfully apply and interpret the Constitution.
WHEREFORE, we DENY the motions for reconsideration WITH FINALITY. No further
Conspectus
pleadings shall be entertained.
SO ORDERED.
Sereno (C.J.), Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., The core issue is the meaning of the word “capital” in the opening sentence of Sec. 11, Art.
Perez and Mendoza, JJ., concur. XII of the 1987 Constitution which reads:472
Velasco, Jr., J., Please see Dissenting Opinion. 472 SUPREME COURT REPORTS ANNOTATED
Abad, J., See my dissenting opinion. Heirs of Wilson P. Gamboa vs. Teves
Page 24 of 66
Section 11. No franchise, certificate, or any other form of authorization for the operation associations organized under the laws of the Philippines, at least sixty per centum of
of a public utility shall be granted except to citizens of the Philippines or to corporations or whose capitalis owned by such citizens x x x.
associations organized under the laws of the Philippines, at least sixty per centum of The word “capital” in the above provision refers to capital stock or both voting and non-
whose capitalis owned by such citizens; nor shall such franchise, certificate, or authorization be voting shares. Sixty percent (60%) control over the capital stock translates to control by Filipinos
exclusive in character or for a longer period than fifty years. Neither shall any such franchise or over almost all decisions by the stockholders during
right be granted except under the condition that it shall be subject to amendment, alteration, 474
or repeal by the Congress when the common good so requires. The State shall encourage equity 474 SUPREME COURT REPORTS ANNOTATED
participation in public utilities by the general public. The participation of foreign investors in the
governing body of any public utility enterprise shall be limited to their proportionate share in its Heirs of Wilson P. Gamboa vs. Teves
capital, and all the executive and managing officers of such corporation or association must be stockholders’ meetings including ratification of the decisions and acts of the Board of Directors.
citizens of the Philippines. (Emphasis supplied.) During said meetings, voting and even non-voting shares are entitled to vote. The exercise by
For an easier comprehension of the two contrasting positions on the contentious meaning non-voting shares of voting rights over major corporate decisions is expressly provided in Sec.
of the word “capital,” as found in the first sentence of the aforequoted provision, allow me to 6 of the Corporation Code which reads:
present a brief comparative analysis showing the dissimilarities. Sec. 6. x x x x
The majority, in the June 28, 2011 Decision, as reiterated in the draft resolution, is of the Where the articles of incorporation provide for non-voting shares in the cases allowed by
view that the word “capital” in the first sentence of Sec. 11, Art. XII refers to common shares or this Code, the holders of such shares shall nevertheless be entitled to vote on the following
voting shares only; thus limiting foreign ownership of such shares to 40%. The rationale, as matters:
stated in the basic ponencia, is that this interpretation ensures that control of the Board of 1. Amendment of the articles of incorporation;
Directors stays in the hands of Filipinos, since foreigners can only own a maximum of 40% of 2. Adoption and amendment of by-laws;
said shares and, accordingly, can only elect the equivalent percentage of directors. As a 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of
necessary corollary, Filipino stockholders can always elect 60% of the Board of Directors which, the corporate property;
to the majority, translates to control over the corporation. 4. Incurring, creating or increasing bonded indebtedness;
The opposite view is that the word “capital” in the first sentence refers to the entire capital 5. Increase or decrease of capital stock;
stock of the corporation or both voting and non-voting shares and NOT solely to common 6. Merger or consolidation of the corporation with another corporation or other
473 corporations;
7. Investment of corporate funds in another corporation or business in accordance with
VOL. 682, OCTOBER 9, 2012 473
this Code; and
Heirs of Wilson P. Gamboa vs. Teves 8. Dissolution of the corporation.
shares. From this standpoint, 60% control over the capital stock or the stockholders owning Construing the word “capital” in the first sentence of Sec. 11, Art. XII of the Constitution as
both voting and non-voting shares is assured to Filipinos and, as a consequence, over corporate capital stock would ensure Filipino control over the public utility with respect to major corporate
matters voted upon and decisions reached during stockholders’ meetings. On the other hand, decisions. If we adopt the view espoused by Justice Carpio that the word “capital” means only
the last sentence of Sec. 11, Art. XII, with the word “capital” embedded in it, is the provision common shares or voting shares, then foreigners can own even up to 100% of the non-voting
that ensures Filipino control over the Board of Directors and its decisions. shares. In such a situation, foreigners may very well exercise control over all major corporate
To resolve the conflicting interpretations of the word “capital,” the first sentence of Sec. decisions as their ownership of the non-voting shares remains unfettered by the 40% cap laid
11, Art. XII must be read and considered in conjunction with the last sentence of said Sec. 11 down in the first sentence of Sec. 11, Art. XII. This will spawn an even greater anomaly because
which prescribes that “the participation of foreign investors in the governing body of any public it would give the foreigners the opportunity to acquire ownership of the net assets of the
utility enterprise shall be limited to their proportionate share in its capital.” After all, it is an corporation upon its dissolution to
established principle in constitutional construction that provisions in the Constitution must be 475
harmonized. VOL. 682, OCTOBER 9, 2012 475
It has been made very clear during the oral arguments and even by the parties’ written
submissions that control by Filipinos over the public utility enterprise exists on three (3) levels, Heirs of Wilson P. Gamboa vs. Teves
namely: include what the Constitution enjoins––land ownership possibly through dummy corporations.
1. Sixty percent (60%) control of Filipinos over the capital stock which covers both voting With the view of Justice Carpio, Filipinos will definitely lose control over major corporate
and non-voting shares and inevitably over the stockholders. This level of control is embodied in decisions which are decided by stockholders owning the majority of the non-voting shares.
the first sentence of Sec. 11, Art. XII which reads: 2. Sixty percent (60%) control by Filipinos over the common shares or voting shares and
Section 11. No franchise, certificate, or any other form of authorization for the operation necessarily over the Board of Directors of the public utility. Control on this level is guaranteed
of a public utility shall be granted except to citizens of the Philippines or to corporations or by the last sentence of Sec. 11, Art. XII which reads:
Page 25 of 66
The participation of foreign investors in the governing body of any public utility enterprise shall Heirs of Wilson P. Gamboa vs. Teves
be limited to their proportionate share in its “capital” x x x. is at all times presumed that each word used in the law is intentional and has a particular and
In its ordinary signification, “participation” connotes “the action or state of taking part with special role in the approximation of the policy sought to be attained, ut magis valeat quam
others in an activity.”65 This participation in its decision-making function can only be the right pereat.
to elect board directors. Hence, the last sentence of Sec. 11, Art. XII of the Constitution effectively 3. The third level of control proceeds from the requirement tucked in the second part of
restricts the right of foreigners to elect directors to the board in proportion to the limit on their the ultimate sentence that “all the executive and managing officers of the corporation must be
total shareholdings. Since the first part of Sec. 11, Art. XII of the Constitution specifies a 40% citizens of the Philippines.” This assures full Filipino control, at all times, over the management
limit of foreign ownership in the total capital of the public utility corporation, then the rights of of the public utility.
foreigners to be elected to the board of directors, is likewise limited to 40 percent. If the foreign To summarize, the Constitution, as enacted, establishes not just one but a three-tiered
ownership of common shares is lower than 40%, the participation of foreigners is limited to control-enhancing-and-locking mechanism in Sec. 11, Article XII to ensure that Filipinos will
their proportionate share in the capital stock. always have full beneficial ownership and control of public utility corporations:
In the highly hypothetical public utility corporation with 100 common shares and 1,000,000 1. 40% ceiling on foreign ownership in the capital stock that ensures sixty percent (60%)
preferred non-voting shares, or a total of 1,000,100 shares cited in the June 28, 2011 Decision, Filipino control over the capital stock which covers both voting and non-voting shares. As a
foreigners can thus only own up to 400,040 shares of the corporation, consisting of consequence, Filipino control over the stockholders is assured. (First sentence of Sec. 11, Art.
the maximum 40 (out XII). Thus, foreigners can own only up to 40% of the capital stock.
_______________ 2. 40% ceiling on the right of foreigners to elect board directors that guarantees sixty
2 Webster’s Third New International Dictionary of the English Language: Unabridged percent (60%) Filipino control over the Board of Directors. (First part of last sentence of Sec. 11,
(1981), Springfield, MA, p. 1646. Art. XII).
476 3. Reservation to Filipino citizens of the executive and managing officers, regardless of
476 SUPREME COURT REPORTS ANNOTATED the level of alien equity ownership to secure total Filipino control over the management of the
Heirs of Wilson P. Gamboa vs. Teves public utility enterprise (Second part of last sentence of Sec. 11, Art. XII). Thus, all executive and
of the 100) voting shares and 400,000 non-voting shares. And, assuming a 10-member board, managing officers must be Filipinos.
the foreigners can elect only 4 members of the board using the 40 voting shares they are allowed
to own. Discussion
Following, in fine, the dictates of Sec. 11, Art. XII, as couched, the foreign shareholders’ right
to elect members of the governing board of a given public utility corporation is proportional only Undoubtedly there is a clash of conflicting opinions as to what “capital” in the first sentence
to their right to hold a part of the total shareholdings of that entity. Since foreigners can only of Sec. 11, Art. XII means.
own, in the maximum, up to 40% of the total shareholdings of the company, then their voting 478
entitlement as to the numerical composition of the board would depend on the level of their 478 SUPREME COURT REPORTS ANNOTATED
shareholding in relation to the capital stock, but in no case shall it exceed the 40% threshold.
Contrary to the view of Justice Carpio that the objective behind the first sentence of Sec.
The majority says it refers only to common or voting shares. The minority says it includes both
11, Art. XII is to ensure control of Filipinos over the Board of Directors by limiting foreign
voting and non-voting shares. A resort to constitutional construction is unavoidable.
ownership of the common shares or voting shares up to 40%, it is actually the first part of the
It is settled though that the “primary source from which to ascertain constitutional intent
aforequoted last sentence of Sec. 11, Art. XII that limits the rights of foreigners to elect not more
or purpose is the language of the constitution itself.”4 To this end, the words used by the
than 40% of the board seats thus ensuring a clear majority in the Board of Directors to Filipinos.
Constitution should as much as possible be understood in their ordinary meaning as the
If we follow the line of reasoning of Justice Carpio on the meaning of the word “capital” in the
Constitution is not a lawyer’s document.5 This approach, otherwise known as the verba legis
first sentence, then there is no need for the framers of the Constitution to incorporate the last
rule, should be applied save where technical terms are employed.6
sentence in Sec. 11, Art. XII on the 40% maximum participation of the foreigners in the Board of
The plain meaning of “capital” in the first
Directors. The last sentence would be a useless redundancy, a situation doubtless unintended
sentence of Sec. 11, Art. XII of the Constitution
by the framers of the Constitution. A construction that renders a part of the law or Constitution
includes both voting and non-voting shares
being construed superfluous is an aberration,3 for it
J.M. Tuason & Co., Inc. v. Land Tenure Administrationillustrates the verba legis rule. There,
_______________
the Court cautions against departing from the commonly understood meaning of ordinary
3 Allied Banking Corporation v. Court of Appeals, G.R. No. 124290, January 16, 1998, 284
words used in the Constitution, viz.:
SCRA 327, 367 and Inding v. Sandiganbayan, G.R. No. 143047, July 14, 2004, 434 SCRA 388, 403.
We look to the language of the document itself in our search for its meaning. We do not of
477
course stop there, but that is where we begin. It is to be assumed that the words in which
VOL. 682, OCTOBER 9, 2012 477
Page 26 of 66
constitutional provisions are couched express the objective sought to be attained. They are to be constitutional? I hesitate to characterize it as constitutional or unconstitutional. I would merely
given their ordinary meaning except where technical terms are employed in which case the characterize it as popular. What I mean is it reflects the common understanding of the
significance thus attached to them prevails. As the Constitution is not primarily a ordinary populi, common but incomplete.8 (Emphasis supplied.)
_______________ “Capital” in the first sentence of Sec. 11, Art. XII must then be accorded a meaning
4 Agpalo, Ruben E. Statutory Construction, 6th ed. (2009), accepted, understood, and used by an ordinary person not versed in the technicalities of law.
p. 585. As defined in a non-legal dictionary, capital stock or capital is ordinarily taken to mean
5 Id.; citations omitted. “the outstanding shares of a joint stock company considered as an aggregate”9 or
6 See also Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November 23, “the ownership element of a corporation divided into shares and represented by certificates.”10
2010, 635 SCRA 783; La Bugal-B’Laan Tribal Assn., Inc. v. Ramos, G.R. No. 127882, December 1, The term “capital” includes all the outstanding shares of a company that represent “the
2002, 445 SCRA 1; Francisco v. House of Representatives, November 10, 2003, 415 SCRA proprietary claim in a business.”11 It does not distinguish based on the voting feature of the
44; Victoria v. Commission on Elections, G.R. No. 109005, January 10, 1994, 229 SCRA 269. stocks but refers to all shares, be they voting or non-voting. Neither is the term limited to the
479 management aspect of the corporation but clearly refers to the separate aspect of ownership
VOL. 682, OCTOBER 9, 2012 479 of the corporate shares thereby encompassing all shares representing the equity of the
corporation.
Heirs of Wilson P. Gamboa vs. Teves This plain meaning, as understood, accepted, and used in ordinary parlance, hews with the
lawyer’s document, it being essential for the rule of law to obtain that it should ever be present definition given by Black who equates capital to capital stock12 and defines it as “the total
in the people’s consciousness, its language as much as possible should be understood in the number of shares of stock that a corporation may issue under its charter or articles of
sense they have in common use. What it says according to the text of the provision to be incorporation,including both
construed compels acceptance and negates the power of the courts to alter it, based on the _______________
postulate that the framers and the people mean what they say. Thus, there are cases where the 8 Memorandum, The Meaning of “Capital,” p. 10, read by Fr. Bernas as amicus curiae in
need for construction is reduced to a minimum.7 (Emphasis supplied.) the June 26, 2012 Oral Argument.
The primary reason for the verba legis approach, as pointed out by Fr. Joaquin Bernas 9 Webster’s Third New International Dictionary Unabridged, Merriam-Websters Inc.,
during the June 26, 2012 arguments, is that the people who ratified the Constitution voted on Springfield, MA. 1981, p. 322.
their understanding of the word capital in its everyday meaning. Fr. Bernas elucidated thus: 10 Id.; emphasis supplied.
x x x [O]ver the years, from the 1935 to the 1973 and finally even under the 1987 11 Id.
Constitution, the prevailing practice has been to base the 60-40 proportion on total outstanding 12 Black’s law Dictionary, 9th Ed., for the iPhone/iPad/iPod touch, Version 2.0.0 (B10239),
capital stock, that is, the combined total of common and non-voting preferred shares. This is p. 236.
what occasioned the case under consideration. 481
What is the constitutional relevance of this continuing practice? I suggest that it is relevant
VOL. 682, OCTOBER 9, 2012 481
for determining what the people in the street voted for when they ratified the
Constitution. When the draft of a Constitution is presented to the people for ratification, what Heirs of Wilson P. Gamboa vs. Teves
the people vote on is not the debates in the constituent body but the text of the draft. Concretely, common stock and preferred stock.”13 This meaning is also reflected in legal commentaries on
what the electorate voted on was their understanding of the word capital in its everyday meaning the Corporation Code. The respected commentator Ruben E. Agpalo defines “capital” as the
they encounter in daily life. We cannot attribute to the voters a jurist’s sophisticated meaning “money, property or means contributed by stockholders for the business or enterprise for which
of capital and its breakdown into common and preferred. What they vote on is what they see. the corporation was formed and generally implies that such money or property or means have
Nor do they vote on what the drafters saw as assumed meaning, to use Bengzon’s explanation. been contributed in payment for stock issued to the contributors.”14 Meanwhile, “capital stock”
In the language of the sophisticates, what voters in a plebiscite vote on is verba legis and is “the aggregate of the shares actually subscribed [or] the amount subscribed and paid-in and
not anima legis about which trained jurists debate. upon which the corporation is to conduct its operations, or the amount paid-in by its
What then does it make of the contemporary understanding by SEC etc. Is the stockholders in money, property or services with which it is to conduct its business.”15
contemporary understanding unconstitutional or This definition has been echoed by numerous other experts in the field of corporation law.
_______________ Dean Villanueva wrote, thus:
7 No. L-21064, February 18, 1970, 31 SCRA 413, 422-423. In defining the relationship between the corporation and its stockholders, the capital stock
480 represents the proportional standing of the stockholders with respect to the corporation and
480 SUPREME COURT REPORTS ANNOTATED corporate matters, such as their rights to vote and to receive dividends.
In financial terms, the capital stock of the corporation as reflected in the financial statement
Heirs of Wilson P. Gamboa vs. Teves of the corporation represents the financial or proprietary claims of the stockholders to the net
assets of the corporation upon dissolution. In addition, the capital stock represents the totality
Page 27 of 66
of the portion of the corporation’s assets and receivables which are covered by the trust fund meaning of “capital” within the context of Sec. 11, Art. XII, foreigners are entitled to own not
doctrine and provide for the amount of assets and receivables of the corporation which are more than 40% of the outstanding capital stock, which would include both voting and non-voting
deemed protected for the benefit of the corporate creditors and from which the corporation shares.
cannot declare any dividends.16 (Emphasis supplied.) Extraneous aids to ferret out constitutional intent
_______________ When the seeming ambiguity on the meaning of “capital” cannot be threshed out by
13 Id.; emphasis supplied. looking at the language of the Constitution, then resort to extraneous aids has become
14 Agpalo, Ruben E. Agpalo’s Legal Words and Phrases, 1987 Ed., p. 96 citing Ruben E. imperative. The Court can utilize the following extraneous aids, to wit: (1) proceedings of the
Agpalo Comments on the Corporation Code, 1993 ed., p. 45. convention; (2) changes in phraseology; (3) history or realities existing at the time of the
15 Id. adoption of the Constitution; (4) prior laws and judicial decisions; (5) contemporaneous
16 Villanueva, Cesar Lapuz, Philippine Corporate Law, 2003 Ed., p. 537. Emphasis and construction; and (6) consequences of alternative interpretations.19 I submit that all these aids
underscoring supplied. of constitutional construction affirm that the only acceptable construction of “capital” in the
482 first sentence of Sec. 11, Art. XII of the 1987 Constitution is that it refers to all shares of a
482 SUPREME COURT REPORTS ANNOTATED corporation, both voting and non-voting.
Deliberations of the Constitutional Commission
Heirs of Wilson P. Gamboa vs. Teves of 1986 demonstrate that capital means both
Similarly, renowned author Hector S. de Leon defines “capital” and “capital stock” in the voting and non-voting shares (1st extrinsic aid)
following manner: The proceedings of the 1986 Constitutional Commission that drafted the 1987 Constitution
Capital is used broadly to indicate the entire property or assets of the corporation. It were accurately recorded in the Records of the Constitutional Commission.
includes the amount invested by the stockholders plus the undistributed earnings less losses To bring to light the true meaning of the word “capital” in the first line of Sec. 11, Art. XII,
and expenses. In the strict sense, the term refers to that portion of the net assets paid by the one must peruse, dissect and analyze the entire deliberations of the Constitutional Commission
stockholders as consideration for the shares issued to them, which is utilized for the prosecution pertinent to the article on national economy and patrimony, as quoted below:
of the business of the corporation. It includes all balances or installments due the corporation _______________
for shares of stock sold by it and all unpaid subscription for shares. 19 Agpalo, Ruben E., Statutory Construction, 6th ed. (2009), p. 588.
xxxx 484
The term is also used synonymously with the words “capital stock,” as meaning the amount
subscribed and paid-in and upon which the corporation is to conduct its operation (11 Fletcher
Cyc. Corp., p. 15 [1986 ed.]) and it is immaterial how the stock is classified, whether as common Heirs of Wilson P. Gamboa vs. Teves
or preferred.17 (Emphasis and underscoring supplied.) August 13, 1986, Wednesday
Hence, following the verba legis approach, I see no reason to stray away from what appears PROPOSED RESOLUTION NO. 496
to be a common and settled acceptation of the word “capital,” given that, as used in the RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON NATIONAL
constitutional provision in question, it stands unqualified by any restrictive or expansive word ECONOMY AND PATRIMONY
as to reasonably justify a distinction or a delimitation of the meaning of the word. Ubi lex non Be it resolved as it is hereby resolved by the Constitutional Commission in session assembled,
distinguit nos distinguere debemus, when the law does not distinguish, we must not To incorporate the National Economy and Patrimony of the new Constitution, the following
distinguish.18 Using this plain provisions:
_______________ ARTICLE ____
17 De Leon, Hector S., The Corporation Code of the Philippines Annotated, 2002 Ed. Manila, NATIONAL ECONOMY AND PATRIMONY
Phil. P. 71-72 citing (SEC Opinion, Feb. 15, 1988 which states: The term “capital” denotes the SECTION 1. The State shall develop a self-reliant and independent national economy. x x
sum total of the shares subscribed and paid by the stockholders or agreed to be paid x
irrespective of their nomenclature. It would, therefore, be legal for foreigners to own more than xxxx
40% of the common shares but not more than the 40% constitutional limit of the outstanding SEC. 3. x x x The exploration, development, and utilization of natural resources shall be
capital stock which would include both common and non-voting preferred shares.” (Emphasis under the full control and supervision of the State. Such activities may be directly undertaken
and underscoring supplied.) by the State, or it may enter into co-production, joint venture, production-sharing agreements
18 Tongson v. Arellano, G.R. No. 77104, November 6, 1992, 215 SCRA 426. with Filipino citizens or corporations or associations at least sixty percent of whose voting stock
483 or controlling interest is owned by such citizens. x x x
VOL. 682, OCTOBER 9, 2012 483 xxxx
SEC. 9. The Congress shall reserve to citizens of the Philippines or to corporations or
Heirs of Wilson P. Gamboa vs. Teves associations at least sixty per cent of whose voting stock or controlling interest is owned by such
Page 28 of 66
citizens or such higher percentage as Congress may prescribe, certain areas of investments difference would be between the previous and the proposed provisions regarding equity
when the national interest so dictates. interest.
xxxx MR. VILLEGAS. Commissioner Suarez will answer that.
SEC. 15. No franchise, certificate, or any other form of authorization for the operation of MR. SUAREZ. Thank you.
a public utility shall be granted except to citizens of the Philippines or to corporations or As a matter of fact, this particular portion is still being reviewed by this Committee. In
associations organized under the laws of the Philippines at least two-thirds of whose voting stock Section 1, Article XIII of the 1935 Constitution, the wording is that the percentage should be
or controlling interest is owned by such citizens. Neither shall any such franchise or right be based on the capital which is owned by such citizens. In the proposed draft, this phrase was
granted except under the condition that it shall be subject to amendment, altera- proposed: “voting stock or controlling interest.” This was a plan submitted by the UP Law
485 Center.
VOL. 682, OCTOBER 9, 2012 485 Three days ago, we had an early morning breakfast conference with the members of the
UP Law Center and precisely, we were seeking clarification regarding the difference. We would
Heirs of Wilson P. Gamboa vs. Teves have three criteria to go by: One would be based on capital, which is capital stock of the
tion, or repeal by Congress when the common good so requires. The State shall encourage corporation, authorized, subscribed or paid up, as employed under the 1935 and the 1973
equity participation in public utilities by the general public. (Origin of Sec. 11, Article XII) Constitution. The idea behind the introduction of the phrase “voting stock or controlling
xxxx interest” was precisely to avoid the perpetration of dummies, Filipino dummies of
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or Filipino equity and multinationals. It is theoretically possible that a situation may develop where these
foreign equity; namely, 60-40 in Section 3, 60-40 in Section 9, and 2/3-1/3 in Section 15. multinational interests would not really be only 40-percent but will extend beyond that in the
MR. VILLEGAS. That is right. matter of voting because they could enter into what is known as a voting trust or voting
MR. NOLLEDO. In teaching law, we are always faced with this question: “Where do we agreement with the rest of the stockholders and, therefore, notwithstanding the fact that on
base the equity requirement, is it on the authorized capital stock, on the subscribed capital record their capital extent is only up to 40-percent interest in the corporation, actually, they
stock, or on the paid-up capital stock of a corporation?” Will the Committee please enlighten would be managing and controlling the entire company. That is why the UP Law Center
me on this? members suggested that we utilize the words “voting interest” which would preclude
MR. VILLEGAS. We have just had a long discussion with the members of the team from multinational control in the matter of voting, independent of the capital structure of the
the UP Law Center who provided us a draft. The phrase that is contained here which we adopted corporation. And then they also added the phrase “controlling interest” which up to now they
from the UP draft is “60 percent of voting stock.” have not been able to successfully define the exact meaning of. But they mentioned the
MR. NOLLEDO. That must be based on the subscribed capital stock, because unless situation where theoretically the board would be controlled by these multinationals, such that
declared delinquent, unpaid capital stock shall be entitled to vote. instead
MR. VILLEGAS. That is right. 487
MR. NOLLEDO. Thank you.
VOL. 682, OCTOBER 9, 2012 487
With respect to an investment by one corporation in another corporation, say, a
corporation with 60-40 percent equity invests in another corporation which is permitted by the Heirs of Wilson P. Gamboa vs. Teves
Corporation Code, does the Committee adopt the grandfather rule? of, say, three Filipino directors out of five, there would be three foreign directors and, therefore,
MR. VILLEGAS. Yes, that is the understanding of the Committee. they would be controlling the management of the company with foreign interest. That is why
MR. NOLLEDO. Therefore, we need additional Filipino capital? they volunteered to flesh out this particular portion which was submitted by them, but up to
MR. VILLEGAS. Yes.20 now, they have not come up with a constructive rephrasing of this portion. And as far as I am
_______________ concerned, I am not speaking in behalf of the Committee, I would feel more comfortable if we
20 Record of the (1986) Constitutional Commission, Vol. III, pp. 250-256. go back to the wording of the 1935 and the 1973 Constitution, that is to say, the 60-40 percentage
486 could be based on the capital stock of the corporation.
486 SUPREME COURT REPORTS ANNOTATED MR. FOZ. I understand that that was the same view of Dean Carale who does not agree
with the others on this panel at the UP Law Center regarding the percentage of the ratio.
Heirs of Wilson P. Gamboa vs. Teves MR. SUAREZ. That is right. Dean Carale shares my sentiment about this matter.
August 14, 1986, Thursday MR. BENGZON. I also share the sentiment of Commissioner Suarez in that respect. So
MR. FOZ. Mr. Vice-President, in Sections 3 and 9, the provision on equity is both 60 there are already two in the Committee who want to go back to the wording of the 1935 and
percent, but I notice that this is now different from the provision in the 1973 Constitution in the 1973 Constitution.21
that the basis for the equity provision is voting stock or controlling interest instead of the usual August 15, 1986, Friday
capital percentage as provided for in the 1973 Constitution. We would like to know what the MR. MAAMBONG. I ask that Commissioner Treñas be recognized for an amendment on
line 14.
Page 29 of 66
THE PRESIDENT. Commissioner Treñas is recognized. MR. SUAREZ. So, the Commissioner is insisting on the use of the term “CAPITAL STOCK”?
MR. TREÑAS. Madam President, may I propose an amendment on line 14 of Section 3 by MR. DAVIDE. Yes, to be followed by the phrase “WHOLLY owned.”
deleting therefrom “whose voting stock and controlling interest.” And in lieu thereof, insert the MR. SUAREZ. Yes, but we are only concentrating on the first point―“CAPITAL STOCK” or
CAPITAL so the line should read: “associations at least sixty percent of the CAPITAL is owned by merely “CAPITAL.”
such citizens. MR. DAVIDE. CAPITAL STOCK?
MR. VILLEGAS. We accept the amendment. MR. SUAREZ. Yes, it is “CAPITAL STOCK.”
MR. TREÑAS. Thank you. SUSPENSION OF SESSION
THE PRESIDENT. The amendment of Commissioner Treñas on line 14 has been accepted by At 4:42 p.m., the session was resumed.
the Committee. THE PRESIDENT. The session is resumed.
_______________ Commissioner Davide is to clarify his point.
21 Id., at pp. 326-327. MR. VILLEGAS. Yes, Commissioner Davide has accepted the word “CAPITAL” in place of
488 “voting stock or controlling interest.” This is an amendment already accepted by the Committee.
488 SUPREME COURT REPORTS ANNOTATED We would like to call for a vote on 100-percent Filipino versus 60-percent Filipino.
MR. ALONTO. Is it 60 percent?
Heirs of Wilson P. Gamboa vs. Teves MR. VILLEGAS. Sixty percent, yes.
Is there any objection? (Silence) The Chair hears none; the amendment is approved. MR. GASCON. Madam President, shall we vote on the proposed amendment of
xxxx Commissioner Davide of “ONE HUNDRED PERCENT?”
THE PRESIDENT. Commissioner Suarez is recognized. MR. VILLEGAS. Yes.
MR. SUAREZ. Thank you, Madam President. MR. GASCON. Assuming that it is lost, that does not prejudice any other Commissioner to
Two points actually are being raised by Commissioner Davide’s proposed amendment. One make any recommendations on other percentages?490
has reference to the percentage of holdings and the other one is the basis for that percentage.
Would the body have any objection if we split it into two portions because there may be several
Commissioners who would be willing to accept the Commissioner’s proposal on capital stock in Heirs of Wilson P. Gamboa vs. Teves
contradistinction to a voting stock for controlling interest? MR. VILLEGAS. I would suggest that we vote on “sixty,” which is indicated in the
MR. VILLEGAS. The proposal has been accepted already. committee report.
MR. DAVIDE. Yes, but it was 60 percent. MR. GASCON. It is the amendment of Commissioner Davide that we should vote on, not
MR. VILLEGAS. That is right. the committee report.
MR. SUAREZ. So, it is now 60 percent as against wholly owned? MR. VILLEGAS. Yes, it is all right.
MR. DAVIDE. Yes. MR. AZCUNA. Madam President.
MR. SUAREZ. Is the Commissioner not insisting on the voting capital stock because that THE PRESIDENT. Commissioner Azcuna is recognized.
was already accepted by the Committee? MR. AZCUNA. May I be clarified as to that portion that was accepted by the Committee?
MR. DAVIDE. Would it mean that it would be 100-percent voting capital stock? MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase “voting
MR. SUAREZ. No, under the Commissioner’s proposal it is just “CAPITAL” not “stock.” stock or controlling interest.”
MR. DAVIDE. No, I want it to be very clear. What is the alternative proposal of the MR. AZCUNA. Hence, without the Davide amendment, the committee report would read:
Committee? How shall it read? “corporations or associations at least sixty percent of whose CAPITAL is owned by such citizens.”
MR. SUAREZ. It will only read something like: “the CAPITAL OF WHICH IS FULLY owned.” MR. VILLEGAS. Yes.
MR. VILLEGAS. Let me read lines 12 to 14 which state: MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the
… enter into co-production, joint venture, production sharing agreements with Filipino capital to be owned by citizens?
citizens or corporations or associations at least 60 percent of whose CAPITAL is owned MR. VILLEGAS. That is right.
by such citizens.489 MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let
VOL. 682, OCTOBER 9, 2012 489 us say 40 percent of the capital is owned by them, but it is the voting capital, whereas, the
Filipinos own the nonvoting shares. So we can have a situation where the corporation is
Heirs of Wilson P. Gamboa vs. Teves controlled by foreigners despite being the minority because they have the voting capital. That
We are going back to the 1935 and 1973 formulations. is the anomaly that would result there.
MR. DAVIDE. I cannot accept the proposal because the word CAPITAL should not really be MR. BENGZON. No, the reason we eliminated the word “stock” as stated in the 1973 and
the guiding principle. It is the ownership of the corporation. It may be voting or not voting, but 1935 Constitutions is that according to Commissioner Rodrigo, there are associations that do
that is not the guiding principle. not have stocks. That is why we say “CAPITAL.”
Page 30 of 66
MR. AZCUNA. We should not eliminate the phrase “controlling interest.”491 THE PRESIDENT. Commissioner Davide is recognized.
VOL. 682, OCTOBER 9, 2012 491 MR. DAVIDE. I am very glad that Commissioner Padilla emphasized minerals, petroleum
and mineral oils. The Commission has just approved the possible foreign entry into the
Heirs of Wilson P. Gamboa vs. Teves development, exploration and utilization of these minerals, petroleum and other mineral oils by
MR. BENGZON. In the case of stock corporations, it is assumed. virtue of the Jamir amendment. I voted in favour of the Jamir amendment because it will
MR. AZCUNA. Yes, but what I mean is that the control should be with the Filipinos. eventually give way to vesting in exclusively Filipino citizens and corporations wholly owned by
MR. BENGZON. Yes, that is understood. Filipino citizens the right to utilize the other natural resources. This means that as a matter of
MR. AZCUNA. Yes, because if we just say “sixty percent of whose capital is owned by the policy, natural resources should be utilized and exploited only by Filipino citizens or
Filipinos,” the capital may be voting or nonvoting. corporations wholly owned by such citizens. But by virtue of the Jamir amendment, since we
MR. BENGZON. That is correct. feel that Filipino capital may not be enough for the development and utilization of minerals,
MR. AZCUNA. My concern is the situation where there is a voting stock. It is a stock petroleum and other mineral oils, the President can enter into service contracts with foreign
corporation. What the Committee requires is that 60 percent of the capital should be owned by corporations precisely for the development and utilization of such resources. And so, there is
Filipinos. But that would not assure control because that 60 percent may be non-voting. nothing to fear that we will stagnate in the development of minerals, petroleum, and mineral
MS. AQUINO. Madam President. oils because we now allow service contracts. It is, therefore, with more reason that at this time
MR. ROMULO. May we vote on the percentage first? we must provide for a 100-percent Filipinization generally to all natural resources.493
THE PRESIDENT. Before we vote on this, we want to be clarified first.
VOL. 682, OCTOBER 9, 2012 493
MS. AQUINO. Madam President.
THE PRESIDENT. Commissioner Aquino is recognized. Heirs of Wilson P. Gamboa vs. Teves
MS. AQUINO. I would suggest that we vote on the Davide amendment which is 100- MR. VILLEGAS. I think we are ready to vote, Madam President.
percent capital, and if it is voted down, then we refer to the original draft which is “capital stock” THE PRESIDENT. The Acting Floor Leader is recognized.
not just “capital.” MR. MAAMBONG. Madam President, we ask that the matter be put to a vote.
MR. AZCUNA. The phrase “controlling interest” is an important consideration. THE PRESIDENT. Will Commissioner Davide please read lines 14 and 15 with his
THE PRESIDENT. Let us proceed to vote then. amendment.
MR. PADILLA. Madam President. MR. DAVIDE. Lines 14 and 15, Section 3, as amended, will read: “associations whose
THE PRESIDENT. The Vice-President, Commissioner Padilla, is recognized. CAPITAL stock is WHOLLY owned by such citizens.”
MR. PADILLA. The Treñas amendment has already been approved. The only one left is the VOTING
Davide amendment which is substituting the “sixty percent” to “WHOLLY owned by THE PRESIDENT. As many as are in favour of this proposed amendment of Commissioner
Filipinos.” (The Treñas amendment deleted the phrase “whose voting stocks and controlling Davide on lines 14 and 15 of Section 3, please raise their hand. (Few Members raised their hand.)
interest” and inserted the word “capi- As many as are against the amendment, please raise their hand. (Several Members raised
492 their hand.)
492 SUPREME COURT REPORTS ANNOTATED The results show 16 votes in favour and 22 against; the amendment is lost.
MR. MAAMBONG. Madam President, I ask that Commissioner Davide be recognized once
Heirs of Wilson P. Gamboa vs. Teves more for further amendments.
tal.” It approved the phrase “associations at least sixty percent of the CAPITAL is owned by such THE PRESIDENT. Commissioner Davide is recognized.
citizens.) (see page 16) MR. DAVIDE. Thank you, Madam President.
Madam President, I am against the proposed amendment of Commissioner Davide because This is just an insertion of a new paragraph between lines 24 and 25 of Section 3 of the
that is an ideal situation where domestic capital is available for the exploration, development same page. It will read as follows: THE GOVERNING AND MANAGING BOARDS OF SUCH
and utilization of these natural resources, especially minerals, petroleum and other mineral oils. CORPORATIONS SHALL BE VESTED EXCLUSIVELY IN CITIZENS OF THE PHILIPPINES.
These are not only risky business but they also involve substantial capital. Obviously, it is an MR. VILLEGAS. Which corporations is the Commissioner referring to?
ideal situation but it is not practical. And if we adopt the 100-percent capital of Filipino citizens, MR. DAVIDE. This refers to corporations 60 percent of whose capital is owned by such
I am afraid that these natural resources, particularly these minerals and oil, et cetera, may citizens.
remain hidden in our lands, or in other offshore places without anyone being able to explore, MR. VILLEGAS. Again the amendment will read…494
develop or utilize them. If it were possible to have a 100-percent Filipino capital, I would prefer
that rather than the 60 percent, but if we adopt the 100 percent, my fear is that we will never
be able to explore, develop and utilize our natural resources because we do not have the Heirs of Wilson P. Gamboa vs. Teves
domestic resources for that. MR. DAVIDE. “THE GOVERNING AND MANAGING BODIES OF SUCH CORPORATIONS SHALL
MR. DAVIDE. Madam President, may I be allowed to react? BE VESTED EXCLUSIVELY IN CITIZENS OF THE PHILIPPINES.”
Page 31 of 66
REV. RIGOS. Madam President. for them and, therefore, they still retain that specific prerogative to participate just like what
THE PRESIDENT. Commissioner Rigos is recognized. we did in the Article on Social Justice.
REV. RIGOS. I wonder if Commissioner Davide would agree to put that sentence MR. ROMULO. That would encourage dummies if we give them proxies.
immediately after “citizens” on line 15. MR. DAVIDE. As a matter of fact, when it comes to encouraging dummies, by allowing 40-
MR. ROMULO. May I ask a question. Presumably, it is 60-40? percent ownership to come in we will expect the proliferation of corporations actually owned
MR. DAVIDE. Yes. by aliens using dummies.
MR. ROMULO. What about the 40 percent? Would they not be entitled to a proportionate MR. ROMULO. No, because 40 percent is a substantial and fair share and, therefore, the
seat in the board? bona fide foreign investor is satisfied with that proportion. He does not have to look for
MR. DAVIDE. Under my proposal, they should not be allowed to sit in the board. dummies. In fact, that is what assures a genuine investment if we give a foreign inves-
MR. ROMULO. Then the Commissioner is really proposing 100 percent which is the 496
opposite way? 496 SUPREME COURT REPORTS ANNOTATED
MR. DAVIDE. Not necessarily, because if 40 percent of the capital stock will be owned by
aliens who may sit in the board, they can still exercise their right as ordinary stockholders and Heirs of Wilson P. Gamboa vs. Teves
can submit the necessary proposal for, say, a policy to be undertaken by the board. tor the 40 percent and all the rights that go with it. Otherwise, we are either discouraging the
MR. ROMULO. But that is part of the stockholder’s right―to sit in the board of directors. investment altogether or we are encouraging circumvention. Let us be fair. If it is 60-40, then
MR. DAVIDE. That may be allowed but this is a very unusual and abnormal situation so the we give him the right, limited as to his minority position.
Constitution itself can prohibit them to sit in the board. MR. MAAMBONG. Madam President, the body would like to know the position of the
MR. ROMULO. But it would be pointless to allow them 40 percent when they cannot sit Committee so that we can put the matter to a vote.
in the board nor have a say in the management of the company. Likewise, that would be MR. VILLEGAS. The Committee does not accept the amendment.
extraordinary because both the 1935 and the 1973 Constitutions allowed not only the 40 THE PRESIDENT. The Committee does not accept.
percent but commensurately they were represented in the board and management only to the Will Commissioner Davide insist on his amendment?
extent of their equity interest, which is 40 percent. The management of a company is lodged in MR. DAVIDE. We request a vote.
the board; so if the 60 percent, which is composed of Filipinos, controls the board, then the THE PRESIDENT. Will Commissioner Davide state his proposed amendment again?
Filipino part has control of the company.495 MR. DAVIDE. The proposed amendment would be the insertion of a new paragraph to
Section 3, between lines 24 and 25, page 2, which reads: “THE GOVERNING AND MANAGING
VOL. 682, OCTOBER 9, 2012 495
BODIES OF SUCH CORPORATIONS SHALL BE VESTED EXCLUSIVELY IN CITIZENS OF THE
Heirs of Wilson P. Gamboa vs. Teves PHILIPPINES.”
I think it is rather unfair to say: “You may have 40 percent of the company, but that is all. MR. PADILLA. Madam President.
You cannot manage, you cannot sit in the board.” That would discourage investments. Then it THE PRESIDENT. Commissioner Padilla is recognized.
is like having a one hundred percent ownership; I mean, either we allow a 60-40 with full rights MR. PADILLA. Madam President, may I just say that this Section 3 speaks of “co-
to the 40 percent, limited as it is as to a minority, or we do not allow them at all. This means if production, joint venture, production sharing agreements with Filipino citizens.” If the foreign
it is allowed; we cannot have it both ways. share of, say, 40 percent will not be represented in the board or in management, I wonder if
MR. DAVIDE. The aliens cannot also have everything. While they may be given entry into there would be any foreign investor who will accept putting capital but without any voice in
subscriptions of the capital stock of the corporation, it does not necessarily follow that they management. I think that might make the provision on “coproduction, joint venture and
cannot be deprived of the right of membership in the managing or in the governing board of a production sharing” illusory.
particular corporation. But it will not totally deprive them of a say because they can still exercise VOTING
the ordinary rights of stockholders. They can submit their proposal and they can be heard. THE PRESIDENT. If the Chair is not mistaken, that was the same point expressed by
MR. ROMULO. Yes, but they have no vote. That is like being represented in the Congress Commissioner Romulo, a member of the Committee.
but not being allowed to vote like our old resident Commissioners in the United States. They As many as are in favour of the Davide amendment, please raise their hand. (Few Members
can be heard; they can be seen but they cannot vote. raised their hand.)497
MR. DAVIDE. If that was allowed under that situation, why can we not do it now in respect VOL. 682, OCTOBER 9, 2012 497
to our natural resources? This is a very critical and delicate issue.
MR. ROMULO. Precisely, we used to complain how unfair that was. One can be seen and Heirs of Wilson P. Gamboa vs. Teves
heard but he cannot vote. As many as are against, please raise their hand. (Several Members raised their hand.)
MR. DAVIDE. We know that under the corporation law, we have the rights of the minority As many as are abstaining, please raise their hand. (One Member raised his hand.)
stockholders. They can be heard. As a matter of fact, they can probably allow a proxy to vote xxxx
THE PRESIDENT. Commissioner Garcia is recognized.
Page 32 of 66
MR. GARCIA. My amendment is on Section 3, the same item which Commissioner Davide MR. FOZ. After losing by only two votes, I suppose that this next proposal will finally get
tried to amend. It is basically on the share of 60 percent. I would like to propose that we raise the the vote of the majority. The amendment is to provide for at least TWO-THIRDS.
60 percent to SEVENTY-FIVE PERCENT so the line would read: “SEVENTY-FIVE PERCENT of whose MR. SUAREZ. It is equivalent to 66 2/3.499
CAPITAL is owned by such citizens.” VOL. 682, OCTOBER 9, 2012 499
THE PRESIDENT. What does the Committee say?
SUSPENSION OF SESSION Heirs of Wilson P. Gamboa vs. Teves
MR. VILLEGAS. The Committee insists on staying with the 60 percent―60-40. THE PRESIDENT. Will the Commissioner repeat?
Madam President, may we ask for a suspension of the session. MR. FOZ. I propose “TWO-THIRDS of whose CAPITAL is owned by such citizens.” Madam
THE PRESIDENT. The session is suspended. President, we are referring to the same provision to which the previous amendments have been
It was 5:07 p.m. suggested. First, we called for a 100-percent ownership; and then, second, we called for a 75-
RESUMPTION OF SESSION percent ownership by Filipino citizens.
At 5:31 p.m., the session was resumed. So my proposal is to provide for at least TWO-THIRDS of the capital to be owned by Filipino
THE PRESIDENT. The session is resumed. citizens. I would like to call the attention of the body that the same ratio or equity requirement
MR. SARMIENTO. Madam President. is provided in the case of public utilities. And if we are willing to provide such equity
THE PRESIDENT. The Acting Floor Leader, Commissioner Sarmiento, is recognized. requirements in the case of public utilities, we should at least likewise provide the same equity
MR. SARMIENTO: Commissioner Garcia still has the floor. May I ask that he be recognized. ratio in the case of natural resources.
THE PRESIDENT. Commissioner Garcia is recognized. MR. VILLEGAS. Commissioner Romulo will respond.
MR. GARCIA. Thank you very much, Madam President. MR. ROMULO. I just want to point out that there is an amendment here filed to also
I would like to propose the following amendment on Section 3, line 14 on page 2. I propose reduce the ratio in Section 15 to 60-40.
to change the word MR. PADILLA. Madam President.
498 THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. The 60 percent which appears in the committee report has been repeatedly
upheld in various votings. One proposal was whole―100 percent; another one was 75 percent
Heirs of Wilson P. Gamboa vs. Teves and now it is 66 2/3 percent. Is not the decision of this Commission in voting to uphold the
“sixty” to SEVENTY-FIVE. So, this will read: “or it may enter into co-production, joint venture, percentage in the committee report already a decision on this issue?
production sharing agreements with Filipino citizens or corporations or associations at least MR. FOZ. Our amendment has been previously brought to the attention of the body.
SEVENTY-FIVE percent of whose CAPITAL stock or controlling interest is owned by such citizens.” MR. VILLEGAS. The Committee does not accept the Commissioner’s amendment. This has
MR. VILLEGAS. This is just a correction. I think Commissioner Azcuna is not insisting on the been discussed fully and, with only one-third of the vote, it is like having nothing at all in
retention of the phrase “controlling interest,” so we will retain “CAPITAL” to go back really to the decision-making. It can be completely vetoed.
1935 and 1973 formulations. MR. RODRIGO. Madam President.
MR. BENNAGEN. May I suggest that we retain the phrase “controlling interest”? THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. VILLEGAS. Yes, we will retain it. (The statement of Commissioner Villegas is possibly MR. RODRIGO. This is an extraordinary suggestion. But considering the circumstances
erroneous considering his consistent statement, especially during the oral arguments, that the that the proposals from the 100 percent to 75 percent lost, and now it went down to 66 2/3
Constitutional Commission rejected the UP Proposal to use the phrase “controlling interest.”) percent, we might go down to 65 percent next time. So I suggest that we vote
THE PRESIDENT. Are we now ready to vote? 500
MR. SARMIENTO. Yes, Madam President. 500 SUPREME COURT REPORTS ANNOTATED
VOTING
THE PRESIDENT. As many as are in favour of the proposed amendment of Commissioner Heirs of Wilson P. Gamboa vs. Teves
Garcia for “SEVENTY-FIVE” percent, please raise their hand. (Few Members raised their hand.) between 66 2/3 and 60 percent. Which does the body want? Then that should be the end of it;
As many as are against the amendment, please raise their hand. (Several Members raised otherwise, this is ridiculous. After this, if the 66 2/3 percent will lose, then somebody can say:
their hand.) “Well, how about 65 percent?”
As many as are abstaining, please raise their hand. (One Member raised his hand.) THE PRESIDENT. The Chair was made to understand that Commissioner Foz’ proposal is
The results show 16 votes in favour, 18 against and 1 abstention; the Garcia amendment is the last proposal on this particular line. Will Commissioner Foz restate his proposal?
lost. MR. FOZ. My proposal is “TWO-THIRDS of whose CAPITAL or controlling interest is owned
MR. SARMIENTO. Madam President, may I ask that Commissioner Foz be recognized. by such citizens.”
THE PRESIDENT. Commissioner Foz is recognized. VOTING
THE PRESIDENT. We now put Commissioner Foz’ amendment to a vote.
Page 33 of 66
As many as are in favour of the amendment of Commissioner Foz, please raise their hand. Heirs of Wilson P. Gamboa vs. Teves
(Few Members raised their hand.) MR. MAAMBONG. Madam President.
As many as are against, please raise their hand. (Several Members raised their hand.) THE PRESIDENT. Commissioner Maambong is recognized.
The results show 17 votes in favour, 20 against, and not abstention; the amendment is lost.22 MR. MAAMBONG. In view of the manifestation of the committee, I would like to be
xxxx clarified on the use of the word “CAPITAL.”
August 22, 1986, Friday MR. VILLEGAS. Yes, that was the word used in the 1973 and 1935 Constitutions.
THE PRESIDENT. Commissioner Nolledo is recognized. MR. MAAMBONG. Let us delimit ourselves to that word “CAPITAL.” In the Corporation Law,
MR. NOLLEDO. Thank you, Madam President. if I remember correctly, we have three types of capital: the authorized capital stock, the
I would like to propound some questions to the chairman and members of the committee. I subscribed capital stock and the paid-up capital stock.
have here a copy of the approved provisions on Article on the National Economy and Patrimony. The authorized capital stock could be interpreted as the capital of the corporation itself
On page 2, the first two lines are with respect to the Filipino and foreign equity and I said: “At because that is the totality of the investment of the corporation as stated in the articles of
least sixty percent of whose capital or controlling interest is owned by such citizens.” incorporation. When we refer to 60 percent, are we referring to the authorized capital stock or
I notice that this provision was amended by Commissioner Davide by changing “voting stocks” the paid-up capital stock since the determinant as to who owns the corporation, as far as equity
to “CAPITAL,” but is concerned, is the subscription of the person?
_______________ I think we should delimit ourselves also to what we mean by 60 percent. Are we referring to
22 Id., at pp. 357-365. the authorized capital stock or to the subscribed capital stock, because the determination, as I
501 said, on the controlling interest of a corporation is based on the subscribed capital stock? I would
VOL. 682, OCTOBER 9, 2012 501 like a reply on that.
Heirs of Wilson P. Gamboa vs. Teves MR. VILLEGAS. Commissioner Suarez, a member of the committee, would like to answer
I still notice that there appears the term “controlling interest” which seems to refer to that.
associations other than corporations and it is merely 50 percent plus one percent which is less THE PRESIDENT. Commissioner Suarez is recognized.
than 60 percent. Besides, the wordings may indicate that the 60 percent may be based not only MR. SUAREZ. Thank you, Madam President.
on capital but also on controlling interest; it could mean 60 percent or 51 percent. We stated this because there might be a misunderstanding regarding the interpretation of
Before I propound the final question, I would like to make a comment in relation to Section the term “CAPITAL” as now used as the basis for the percentage of foreign investments in
15 since they are related to each other. I notice that in Section 15, there still appears the phrase appropriate instances and the interpretation attributed to the word is that it should be based
“voting stock or controlling interest.” The term “voting stocks” as the basis of the Filipino equity on the paid-up capital. We eliminated the use the phrase “voting stock or controlling interest”
means that if 60 percent of the voting stocks belong to Filipinos, foreigners may now own more because that is only used in connection with the matter of voting. As a matter of fact, in the
than 40 percent of the capital as long as the 40 percent or the excess thereof will cover nonvoting declaration of dividends for private corporations, it is usually based on the paid-up
stock. This is aside from the fact that under the Corporation Code, even nonvoting shares can capitalization.503
vote on certain instances. Control over investments may cover aspects of management and VOL. 682, OCTOBER 9, 2012 503
participation in the fruits of production or exploitation. Heirs of Wilson P. Gamboa vs. Teves
So, I hope the committee will consider favorably my recommendation that instead of using So, what is really the dominant factor to be considered in matters of determining the 60-
“controlling interests,” we just use “CAPITAL” uniformly in cases where foreign equity is permitted 40 percentage should really be the paid-up capital of the corporation.
by law, because the purpose is really to help the Filipinos in the exploitation of natural resources MR. MAAMBONG. I would like to get clarification on this. If I remember my corporation
and in the operation of public utilities. I know the committee, at its own instance, can make the law correctly, we usually use a determinant in order to find out what the ratio of ownership is,
amendment. not really on the paid-up capital stock but on the subscribed capital stock.
What does the committee say? For example, if the whole authorized capital stock of the corporation is P1 million, if the
MR. VILLEGAS. We completely agree with the Commissioner’s views. Actually, it was really subscription is 60 percent of P1 million which is P600,000, then that is supposed to be the
an oversight. We did decide on the word “CAPITAL.” I think it was the opinion of the majority that determinant whether there is a sharing of 60 percent of Filipinos or not. It is not really on the
the phrase “controlling interest” is ambiguous. paid-up capital because once a person subscribes to a capital stock then whether that capital
So, we do accept the Commissioner’s proposal to eliminate the phrase “or controlling stock is paid up or not, does not really matter, as far as the books of the corporation are
interest” in all the provisions that talk about foreign participation. concerned. The subscribed capital stock is supposed to be owned by the person who makes the
MR. NOLLEDO. Not only in Section 3, but also with respect to Section 15. subscription. There are so many laws on how to collect the delinquency and so on.
Thank you very much.502 I view of the Commissioner’s answer, I would like to know whether he is determined to put
502 SUPREME COURT REPORTS ANNOTATED on the record that in order to determine the 60-40 percent sharing, we have to determine
Page 34 of 66
whether we will use a determinant which is the subscribed capital stock or the paid-up capital Heirs of Wilson P. Gamboa vs. Teves
stock. MR. ROMULO. No, I do not think we contradict each other. He is talking really of the
MR SUAREZ. We are principally concerned about the interpretation which would be instance where the subscriber is a non-resident and, therefore, must fully pay. That is how I
attached to it; that is, it should be limited to authorized capital stock, not to subscribed capital understand his position.
stock. MR. MAAMBONG. My understanding is that in the computation of the 60-40 sharing
I will give the Commissioner an illustration of what he is explaining to the Commission. under the present formulation, the determinant is the paid-up capital stock to which I disagree.
MR. MAAMBONG. Yes, thank you. MR. ROMULO. At least, from my point of view, it is the subscribed capital stock.
MR. SUAREZ. Let us say the authorized capital stock is P1 million. Under the present rules MR. MAAMBONG. Then that is clarified.23
in the Securities and Exchange Commission, at least 25 percent of that amount must be xxxx
subscribed and at least 25 percent of this subscribed capital must be paid up. August 23, 1986, Saturday
Now, let us discuss the basis of 60-40. To illustrate the matter further, let us say that 60 MS. ROSARIO BRAID. Madam President, I propose a new section to read: “THE
percent of the subscriptions would be allocated to Filipinos and 40 percent of the subscribed MANAGEMENT BODY OF EVERY CORPORATION OR ASSOCIATION SHALL IN ALL CASES BE
capital would be held by foreigners. Then we come to the paid-up capitalization. Under the CONTROLLED BY CITIZENS OF THE PHILIPPINES.”
present rules in the Securities and Exchange Commis- This will prevent management contracts and assure control by Filipino citizens. Will the
504 committee assure us that this amendment will insure that past activities such as management
504 SUPREME COURT REPORTS ANNOTATED contracts will no longer be possible under this amendment?
Heirs of Wilson P. Gamboa vs. Teves MR. ROMULO. Madam President, if I may reply.
sion, a foreign corporation is supposed to subscribe to a 40-percent share which must be fully THE PRESIDENT. Commissioner Romulo is recognized.
paid up. MR. ROMULO. May I ask the proponent to read the amendment again.
On the other hand, the 60 percent allocated to Filipinos need not be paid up. However, at MS. ROSARIO BRAID. The amendment reads: “THE MANAGEMENT BODY OF EVERY
least 25 percent of the subscription must be paid up for purposes of complying with the CORPORATION OR ASSOCIATION SHALL IN ALL CASES BE CONTROLLED BY CITIZENS OF THE
Corporation Law. We can illustrate the matter further by saying that the compliance of 25 PHILIPPINES.”
percent paid-up of the subscribed capital would be fulfilled by the full payment of the 40 MR. DE LOS REYES. Madam President, will Commissioner Rosario Braid agree to a
percent by the foreigners. reformulation of her amendment for it to be more comprehensive and all-embracing?
So, we have a situation where the Filipino percentage of 60 may not even comply with the THE PRESIDENT. Commissioner de los Reyes is recognized.
25-percent requirement because of the totality due to the fully payment of the 40-percent of _______________
the foreign investors, the payment of 25 percent paid-up on the subscription would have been 23 Id., at pp. 582-584.
considered fulfilled. That is exactly what we are trying to avoid. 506
MR. MAAMBONG. I appreciate very much the explanation but I wonder if the committee 506 SUPREME COURT REPORTS ANNOTATED
would subscribe to that view because I will stick to my thinking that in the computation of the Heirs of Wilson P. Gamboa vs. Teves
60-40 ratio, the basis should be on the subscription. If the subscription is being done by 60 MR. DE LOS REYES. This is an amendment I submitted to the committee which reads:
percent Filipinos, whether it is paid-up or not and the subscription is accepted by the “MAJORITY OF THE DIRECTORS OR TRUSTEES AND ALL THE EXECUTIVE AND MANAGING
corporation, I think that is the proper determinant. If we base the 60-40 on the paid-up capital OFFICERS OF SUCH CORPORATION OR ASSOCIATION MUST BE CITIZENS OF THE PHILIPPINES.”
stock, we have a problem here where the 40 percent is fully paid up and the 60 percent is not This amendment is more direct because it refers to particular officers to be all-Filipino
fully paid up―this may be contrary to the provisions of the Constitution. So I would like to ask citizens.
for the proper advisement from the Committee as to what should be the proper interpretation MR. BENGZON. Madam President.
because this will cause havoc on the interpretation of our Corporation Law. THE PRESIDENT. Commissioner Bengzon is recognized.
MR. ROMULO. Madam President. MR. BENGZON. The committee sitting out here accepts the amendment of Commissioner
THE PRESIDENT. Commissioner Romulo is recognized. de los Reyes which subsumes the amendment of Commissioner Rosario Braid.
MR. ROMULO. We go by the established rule which I believe is uniformly held. It is based THE PRESIDENT. So this will be a joint amendment now of Commissioners Rosario Braid,
on the subscribed capital. I know only of one possible exception and that is where the bylaws de los Reyes and others.
prohibit the subscriber from voting. But that is a very rare provision in bylaws. Otherwise, my MR. REGALADO. Madam President, I join in that amendment with the request that it will
information and belief is that it is based on the subscribed capital. be the last sentence of Section 15 because we intend to put an anterior amendment. However,
MR. MAAMBONG. It is, therefore, the understanding of this Member that the that particular sentence which subsumes also the proposal of Commissioner Rosario Braid can
Commissioner is somewhat revising the answer of Commissioner Suarez to that extent?505 just be placed as the last sentence of the article.
VOL. 682, OCTOBER 9, 2012 505 THE PRESIDENT. Is that acceptable to the committee?
Page 35 of 66
MR. VILLEGAS. Yes, Madam President. The majority in the original decision reproduced the CONCOM deliberations held on August
MS. ROSARIO BRAID. Thank you. 13 and August 15, 1986, but neglected to quote the other pertinent portions of the
MR. RAMA. The body is now ready to vote on the amendment. deliberations that would have shed light on the true intent of the framers of the Constitution.
FR. BERNAS. Madam President. It is conceded that Proposed Resolution No. 496 on the language of what would be Art. XII
THE PRESIDENT. Commissioner Bernas is recognized. of the Constitution contained the phrase “voting stock or controlling interest,” viz.:
FR. BERNAS. Will the committee accept a reformulation of the first part?
MR. BENGZON. Let us hear it. PROPOSED RESOLUTION NO. 496
FR. BERNAS. The reformulation will be essentially the formula of the 1973 Constitution RESOLUTION TO INCORPORATE IN THE NEW CONSTITUTION AN ARTICLE ON NATIONAL
which reads: “THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF ANY ECONOMY AND PATRIMONY
PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE CAPITAL Be it resolved as it is hereby resolved by the Constitutional Commission in session assembled,
THEREOF AND …”507 To incorporate the National Economy and Patrimony of the new Constitution, the following
VOL. 682, OCTOBER 9, 2012 507 provisions:
ARTICLE ____
Heirs of Wilson P. Gamboa vs. Teves NATIONAL ECONOMY AND PATRIMONY
MR. VILLEGAS. “ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH CORPORATIONS xxxx
AND ASSOCIATIONS MUST BE CITIZENS OF THE PHILIPPINES.” _______________
MR. BENGZON. Will Commissioner Bernas read the whole thing again? 24 Id., at pp. 665-666.
FR. BERNAS. “THE PARTICIPATION OF FOREIGN INVESTORS IN THE GOVERNING BODY OF 509
ANY PUBLIC UTILITY ENTERPRISE SHALL BE LIMITED TO THEIR PROPORTIONATE SHARE IN THE
VOL. 682, OCTOBER 9, 2012 509
CAPITAL THEREOF…” I do not have the rest of the copy.
MR. BENGZON. “AND ALL THE EXECUTIVE AND MANAGING OFFICERS OF SUCH Heirs of Wilson P. Gamboa vs. Teves
CORPORATIONS OR ASSOCIATIONS MUST BE CITIZENS OF THE PHILIPPINES.” Is that correct? SEC. 15. No franchise, certificate, or any other form of authorization for the operation of
MR. VILLEGAS. Yes. a public utility shall be granted except to citizens of the Philippines or to corporations or
MR. BENGZON. Madam President, I think that was said in a more elegant language. We associations organized under the laws of the Philippines at least two-thirds of whose voting
accept the amendment. Is that all right with Commissioner Rosario Braid? stock or controlling interest is owned by such citizens. Neither shall any such franchise or right
MS. ROSARIO BRAID. Yes. be granted except under the condition that it shall be subject to amendment, alteration, or
THE PRESIDENT. The original authors of this amendment are Commissioners Rosario Braid, repeal by Congress when the common good so requires. The State shall encourage equity
de los Reyes, Regalado, Natividad, Guingona and Fr. Bernas. participation in public utilities by the general public.25 (This became Sec. 11, Art. XII) (Emphasis
MR. DE LOS REYES. The governing body refers to the board of directors and trustees. supplied.)
MR. VILLEGAS. That is right. The aforequoted deliberations disclose that the Commission eventually and unequivocally
MR. BENGZON. Yes, the governing body refers to the board of directors. decide to use “capital,” which refers to the capital stock of the corporation, “as was employed in
MR. REGALADO. It is accepted. the 1935 and 1973 Constitution,” instaead of the proposed “voking stock or controlling
MR. RAMA. The body is now ready to vote, Madam President. interest” as the basis for the percentage of ownership allowed to foreigners. The following
VOTING exchanges among Commissioners Foz, Suarez and Bengzon reflect this decision, but the
THE PRESIDENT. As many as are in favour of this proposed amendment which should be majority opinion in the Jube 28, 2011 Decision left their statements out:
the last sentence of Section 15 and has MR. FOZ. Mr. Vice-President, in Sections 3 and 9,26 the provision on equity is both 60
508 percent, but I notice that this is now different from the provision in the 1973 Constitution in that
508 SUPREME COURT REPORTS ANNOTATED the basis for the equity provision is voting stock or controlling interest instead of the usual
capital percentage as provided for in the 1973 Constitution. We would like to know what the
Heirs of Wilson P. Gamboa vs. Teves difference would be between the previous and the proposed provisions regarding equity interest.
been accepted by the committee, please raise their hand. (All Members raised their hand.) xxxx
As many as are against, please raise their hand. (No Member raised his hand.) MR. SUAREZ. x x x As a matter of fact, this particular portion is still being reviewed x x x.
The results show 29 votes in favour and none against; so the proposed amendment is In Section 1, Article XIII of the
approved.24 _______________
It can be concluded that the view advanced by Justice Carpio is incorrect as the 25 Record of the (1986) Constitutional Commission, Vol. III, pp. 250-251.
deliberations easily reveal that the intent of the framers was not to limit the definition of the 26 Referring to Sections 2 and 10, Article XII of the 1987 Constitution.
word “capital” as meaning voting shares/stocks. 510
Page 36 of 66
510 SUPREME COURT REPORTS ANNOTATED Is there any objection? (Silence) The Chair hears none; the amendment is approved.28
xxxx
Heirs of Wilson P. Gamboa vs. Teves MR. SUAREZ. x x x Two points are being raised by Commissioner Davide’s proposed
1935 Constitution, the wording is that the percentage should be based on the capital which is amendment. One has reference to the percentage of holdings and the other one is the basis for
owned by such citizens. In the proposed draft, this phrase was proposed: “voting stock or the percentage x x x x Is the Commissioner not insisting on the voting capital stock because that
controlling interest.” This was a plan submitted by the UP Law Center. was already accepted by the Committee?
x x x We would have three criteria to go by: One would be based on capital, which is capital MR. DAVIDE. Would it mean that it would be 100-percent voting capital stock?
stock of the corporation, authorized, subscribed or paid up, as employed under the 1935 and the MR. SUAREZ. No, under the Commissioner’s proposal it is just “CAPITAL” not “stock.”
1973 Constitution. The idea behind the introduction of the phrase “voting stock or controlling MR. DAVIDE. No, I want it to be very clear. What is the alternative proposal of the
interest” was precisely to avoid the perpetration of dummies, Filipino dummies of Committee? How shall it read?
multinationals. It is theoretically possible that a situation may develop where these _______________
multinational interests would not really be only 40-percent but will extend beyond that in the 28 Id., at p. 357.
matter of voting because they could enter into what is known as a voting trust or voting 512
agreement with the rest of the stockholders and, therefore, notwithstanding the fact that on
record their capital extent is only up to 40-percent interest in the corporation, actually, they
would be managing and controlling the entire company. That is why the UP Law Center Heirs of Wilson P. Gamboa vs. Teves
members suggested that we utilize the words “voting interest” which would preclude MR. SUAREZ. It will only read something like: “the CAPITAL OF WHICH IS FULLY owned.”
multinational control in the matter of voting, independent of the capital structure of the MR. VILLEGAS. Let me read lines 12 to 14 which state:
corporation. And then they also added the phrase “controlling interest” which up to now they … enter into co-production, joint venture, production sharing agreements with Filipino
have not been able to successfully define the exact meaning of. x x x And as far as I am citizens or corporations or associations at least 60 percent of whose CAPITAL is owned
concerned, I am not speaking in behalf of the Committee, I would feel more comfortable if we by such citizens.
go back to the wording of the 1935 and the 1973 Constitution, that is to say, the 60-40 We are going back to the 1935 and 1973 formulations.
percentage could be based on the capital stock of the corporation. MR. DAVIDE. I cannot accept the proposal because the word CAPITAL should not really be
xxxx the guiding principle. It is the ownership of the corporation. It may be voting or not voting, but
MR. BENGZON. I also share the sentiment of Commissioner Suarez in that respect. So that is not the guiding principle.
there are already two in the Committee who want to go back to the wording of the 1935 and xxxx
the 1973 Constitution.27 THE PRESIDENT. …. Commissioner Davide is to clarify his point.
_______________ MR. VILLEGAS. Yes, Commissioner Davide has accepted the word “CAPITAL” in place of
27 Records of the Constitutional Commission, Volume III, pp. 326-327. “voting stock or controlling interest.” This is an amendment already accepted by the
511 Committee.29
VOL. 682, OCTOBER 9, 2012 511 The above exchange precedes the clarifications made by then Commissioner Azcuna, which
were cited in the June 28, 2011 Decision. Moreover, the statements made subsequent to the
Heirs of Wilson P. Gamboa vs. Teves portion quoted in the June 28, 2011 Decision emphasize the CONCOM’s awareness of the plain
In fact, in another portion of the CONDOM deliberations conveniently glossed over by the meaning of the term “capital” without the qualification espoused in the majority’s decision:
June 28, 2011 Decision, then Commissioner Davide strongly resisted the retetion of the term MR. AZCUNA. May I be clarified as to [what] was accepted x x x.
"capital" as used in the 1935 and 1973 Constitution on the ground that the term refers to both MR. VILLEGAS. The portion accepted by the Committee is the deletion of the phrase
voting and nonvoting. Eventually, however, he came around to accept the use of "CAPITAL" “voting stock or controlling interest.”
along with the majority of the menbers of the Commettee on Natural Economy and Patrimony _______________
in the afternoon session help on August 15, 1986: 29 Records of the Constitutional Commission, Volume III, pp. 357-360.
MR. TREÑAS. x x x may I propose an amendment on line 14 of Section 3 by deleting 513
therefrom “whose voting stock and controlling interest.” And in lieu thereof, insert the CAPITAL
VOL. 682, OCTOBER 9, 2012 513
so the line should read: “associations at least sixty percent of the CAPITAL is owned by such
citizens. Heirs of Wilson P. Gamboa vs. Teves
MR. VILLEGAS. We accept the amendment. MR. AZCUNA. Hence, without the Davide amendment, the committee report would read:
MR. TREÑAS. Thank you. “corporations or associations at least sixty percent of whose CAPITAL is owned by such citizens.”
THE PRESIDENT. The amendment of Commissioner Treñas on line 14 has been accepted by MR. VILLEGAS. Yes.
the Committee.
Page 37 of 66
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60 percent of the 31 Id., at p. 364.
capital to be owned by citizens? 515
MR. VILLEGAS. That is right. VOL. 682, OCTOBER 9, 2012 515
MR. AZCUNA. But the control can be with the foreigners even if they are the minority. Let
us say 40 percent of the capital is owned by them, but it is the voting capital, whereas, the Heirs of Wilson P. Gamboa vs. Teves
Filipinos own the nonvoting shares. So we can have a situation where the corporation is capital but also on controlling interest; it could mean 60 percent or 51 percent.
controlled by foreigners despite being the minority because they have the voting capital. That Before I propound the final question, I would like to make a comment in relation to Section
is the anomaly that would result here. 15 since they are related to each other. I notice that in Section 15, there still appears the phrase
MR. BENGZON. No, the reason we eliminated the word “stock” as stated in the 1973 and “voting stock or controlling interest.” The term “voting stocks” as the basis of the Filipino equity
1935 Constitutions is that xxx there are associations that do not have stocks. That is why we say means that if 60 percent of the voting stocks belong to Filipinos, foreigners may now own more
“CAPITAL.” than 40 percent of the capital as long as the 40 percent or the excess thereof will cover
MR. AZCUNA. We should not eliminate the phrase “controlling interest.” nonvoting stock. This is aside from the fact that under the Corporation Code, even nonvoting
MR. BENGZON. In the case of stock corporation, it is assumed. shares can vote on certain instances. Control over investments may cover aspects of
MR. AZCUNA. Yes, but what I mean is that the control should be with the Filipinos. management and participation in the fruits of production or exploitation.
MR. BENGZON. Yes, that is understood. So, I hope the committee will consider favorably my recommendation that instead of using
MR. AZCUNA. Yes, because if we just say “sixty percent of whose capital is owned by the “controlling interests,” we just use “CAPITAL” uniformly in cases where foreign equity is permitted
Filipinos,” the capital may be voting or nonvoting. by law, because the purpose is really to help the Filipinos in the exploitation of natural resources
MR. BENGZON. That is correct.30 and in the operation of public utilities. x x x
_______________ What does the committee say?
30 Records of the Constitutional Commission, Volume III, p. 360. MR. VILLEGAS. We completely agree with the Commissioner’s views. Actually, it was really
514 an oversight. We did decide on the word “CAPITAL.” I think it was the opinion of the majority that
the phrase “controlling interest” is ambiguous.
So, we do accept the Commissioner’s proposal to eliminate the phrase “or controlling
Heirs of Wilson P. Gamboa vs. Teves interest” in all the provisions that talk about foreign participation.
More importantly, on the very same August 15, 1986 session, Commissioner Azcuna no MR. NOLLEDO. Not only in Section 3, but also with respect to Section 15.32 (Emphasis
longer insisted on retaining the delimiting phrase “controlling interest”: supplied.)
MR. GARCIA. Thank you very much, Madam President. In fact, on the very same day of deliberations, the Commissioners clarified that the proper
I would like to propose the following amendment on Section 3, line 14 on page 2. I propose and more specific “interpretation” that should be attached to the word “capital” is that it refers
to change the word “sixty” to SEVENTY-FIVE. So, this will read: “or it may enter into co- to the “subscribed capital,” a corporate concept defined
production, joint venture, production sharing agreements with Filipino citizens or corporations _______________
or associations at least SEVENTY-FIVE percent of whose CAPITAL stock or controlling interest is 32 Id., at p. 582.
owned by such citizens.” 516
MR. VILLEGAS. This is just a correction. I think Commissioner Azcuna is not insisting on the 516 SUPREME COURT REPORTS ANNOTATED
retention of the phrase “controlling interest,” so we will retain “CAPITAL” to go back really to the
1935 and 1973 formulations.31 (Emphasis supplied.) Heirs of Wilson P. Gamboa vs. Teves
The later deliberations held on August 22, 1986 further underscore the framers’ true intent as “that portion of the authorized capital stock that is covered by subscription agreements
to include both voting and non-voting shares as coming within the pale of the word “capital.” whether fully paid or not”33 and refers to both voting and non-voting shares:
The UP Law Center attempted to limit the scope of the word along the line then and now MR. MAAMBONG. x x x I would like to be clarified on the use of the word “CAPITAL.”
adopted by the majority, but, as can be gleaned from the following discussion, the framers MR. VILLEGAS. Yes, that was the word used in the 1973 and the 1935 Constitutions.
opted not to adopt the proposal of the UP Law Center to add the more protectionist phrase MR. MAAMBONG. Let us delimit ourselves to that word “CAPITAL.” In the Corporation
“voting stock or controlling interest”: Law, if I remember correctly, we have three types of capital: the authorized capital stock, the
MR. NOLLEDO. x x x I would like to propound some questions x x x. I have here a copy of subscribed capital stock and the paid-up capital stock.
the approved provisions on Article on the National Economy and Patrimony. x x x xxxx
I notice that this provision was amended by Commissioner Davide by changing “voting I would like to get clarification on this. If I remember my corporation law correctly, we usually
stocks” to “CAPITAL,” but I still notice that there appears the term “controlling interest” x x x. use a determinant in order to find out what the ratio of ownership is, not really on the paid-up
Besides, the wordings may indicate that the 60 percent may be based not only on capital stock but on the subscribe capital stock.
_______________ xxxx
Page 38 of 66
x x x I would like to know whether (Commissioner Suarez) is determined to put on the record Heirs of Wilson P. Gamboa vs. Teves
that in order to determine the 60-40 percent sharing, we have to determine whether we will MR . ROMULO. At least, from my point of view, it is the subscribed capital stock.”34
use a determinant which is the subscribed capital stock or the paid-up capital stock. Clearly, while the concept of voting capital as the norm to determine the 60-40 Filipino-
MR. SUAREZ. We are principally concerned about the interpretation which would be alien ratio was initially debated upon as a result of the proposal to use “at least two-thirds of
attached to it, that is, it should be limited to authorized capital stock, not to subscribed capital whose voting stock or controlling interest is owned by such citizens,”35 in what would eventually
stock. be Sec. 11, Art. XII of the Constitution, that proposal was eventually discarded. And nowhere in
I will give the Commissioner an illustration of what he is explaining to the Commission. the records of the CONCOM can it be deduced that the idea of full ownership of voting stocks
xxxx presently parlayed by the majority was earnestly, if at all, considered. In fact, the framers
Let us say authorized capital stock is P1 million. Under the present rules in the [SEC], at least decided that the term “capital,” as used in the 1935 and 1973 Constitutions, should be properly
25 percent of that amount must interpreted as the “subscribed capital,” which, again, does not distinguish stocks based on their
_______________ board-membership voting features.
33 Sundiang Jose, R. and Aquino, Timoteo B. Reviewer on Commercial Law, 2006 Ed., p. Indeed, the phrase “voting stock or controlling interest” was suggested for and in fact
257. deliberated, but was similarly dropped in the approved draft provisions on National Economy
517 and Patrimony, particularly in what would become Sections 236 and 10,37 Article XII of the 1987
VOL. 682, OCTOBER 9, 2012 517 Constitution. How-
be subscribed and at least 25 percent of this subscribed capital must be paid up. 34 Records of the Constitutional Commission, Volume III, pp. 583-584.
Now, let us discuss the basis of 60-40. To illustrate the matter further, let us say that 60 35 See Bernas, S.J., The Intent of the 1986 Constitution Writers, 1995 ed., p. 849.
percent of the subscriptions would be allocated to Filipinos and 40 percent of the subscribed 36 Section 2, Article XII, 1987 Constitution:
capital stock would be held by foreigners. Then we come to the paid-up capitalization. Under Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other
the present rules in the [SEC], a foreign corporation is supposed to subscribe to 40-percent mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
share which must be fully paid up. and other natural resources are owned by the State. With the exception of agricultural lands,
On the other hand, the 60 percent allocated to Filipinos need not be paid up. However, at all other natural resources shall not be alienated. The exploration, development, and utilization
least 25 percent of the subscription must be paid up for purposes of complying with the of natural resources shall be under the full control and supervision of the State. The State may
Corporation Law. We can illustrate the matter further by saying that the compliance of 25 directly undertake such activities, or it may enter into coproduction, joint venture, or
percent paid-up of the subscribed capital would be fulfilled by the full payment of the 40 production-sharing agreements with Filipino citi-
percent by the foreigners. 519
So, we have a situation where the Filipino percentage of 60 may not even comply with the VOL. 682, OCTOBER 9, 2012 519
25-percent requirement because of the totality due to the full payment of the 40-percent of Heirs of Wilson P. Gamboa vs. Teves
the foreign investors, the payment of 25 percent paid-up on the subscription would have been ever, the framers expressed preference to the formulation of the provision in question in the
considered fulfilled. That is exactly what we are trying to avoid. 1935 and 1973 Constitutions, both of which employed the word “capital” alone. This was very
MR. MAAMBONG. I appreciate very much the explanation but I wonder if the committee apparent in the aforementioned deliberations and affirmed by amicus curiae Dr. Bernardo
would subscribe to that view because I will stick to my thinking that in the computation of the Villegas, Chair of the Committee on the National Economy and Patrimony in charge of drafting
60-40 ratio, the basis should be on the subscription. x x x Section 11 and the rest of Article XII of the Constitution. During the June 26, 2012 oral
xxxx arguments, Dr. Villegas manifested that:
MR. ROMULO. We go by the established rule which I believe is uniformly held. It is based x x x Justice Abad was right. [If i]t was not in the minds of the Commissioners to define
on the subscribed capital. x x x capital broadly, these additional provisions would be meaningless. And it would have been really
xxxx more or less expressing some kind of a contradiction in terms. So, that is why I was pleasantly
I do not think that we contradict each other. (Commisioner Suarez) is talking really of the surprised that one of the most pro-Filipino members of the Commission, Atty. Jose Suarez, who
instance where the subscriber is a non-resident and, therefore, must fully pay. That is how I actually voted “NO” to the entire Constitution has only said, was one of the first to insist, during
understand his position. one of the plenary sessions that we should reject the UP Law Center recommendation. In his
MR. MAAMBONG. My understanding is that in the computation of the 60-40 sharing words, I quote “I would feel more comfortable if we go back to the wording of the 1935 and 1970
under the present formulation, the determinant is the paid-up capital stock to which I Constitutions that is to say the 60-40 percentage could be based on the capital stock of the
disagree.518 corporation.” The final motion was made by Commissioner Efren Treñas, in the same plenary
518 SUPREME COURT REPORTS ANNOTATED session when he moved, “Madam President, may I propose an amendment on line 14 of Section
3 by deleting therefrom ‘whose voting stock and controlling interest’ and in lieu thereof, insert
Page 39 of 66
capital, so the line should read: “associations of at least sixty percent (60%) of the capital is History or realities or circumstances
owned by such citizens.” After I accepted prevailing during the drafting of the
_______________ Constitution validate the adoption
zens, or corporations or associations at least sixty per centum of whose capital is owned by of the plain meaning of “Capital” (3rd
such citizens. x x x x (Emphasis supplied.) extrinsic aid)
37 Section 10, Article XII, 1987 Constitution: This plain, non-exclusive interpretation of “capital” also comes to light considering the
Section 10. The Congress shall, upon recommendation of the economic and planning economic backdrop of the 1986 CONCOM when the country was still starting to rebuild the
agency, when the national interest dictates, reserve to citizens of the Philippines or to financial markets and regain the foreign investors’ confidence following the changes caused by
corporations or associations at least sixty per centum of whose capital is owned by such citizens, the toppling of the Martial Law regime. As previously pointed out, the Court, in construing the
or such higher percentage as Congress may prescribe, certain areas of investments. The Constitution, must take into consideration the aims of its framers and the evils they wished to
Congress shall enact measures that will encourage the formation and operation of enterprises avoid and address. In Civil Liberties Union v. Executive Secretary,40 We held:
whose capital is wholly owned by Filipinos. (Emphasis supplied.) A foolproof yardstick in constitutional construction is the intention underlying the provision
520 under consideration. Thus, it has been held that the Court in construing a Constitution should
520 SUPREME COURT REPORTS ANNOTATED bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought
to be prevented or remedied. A doubtful provision will be examined in the light of the history of
Heirs of Wilson P. Gamboa vs. Teves the times, and the condition and circumstances under which the Constitution was framed. The
the amendment since I was the chairman of the National Economy Committee, in the name of object is to ascertain the reason which induced the framers of the Constitution to enact the
the Committee, the President of the Commission asked for any objection. When no one objected, particular provision and the purpose sought to be accomplished thereby, in order to construe the
the President solemnly announced that the amendment had been approved by the Plenary. It is whole as to make the words consonant to that reason and calculated to effect that purpose.
clear, therefore, that in the minds of the Commissioners the word “capital” in Section 11 of Article (Emphasis supplied.)
XII refers, not to voting stock, but to total subscribed capital, both common and It is, thus, proper to revisit the circumstances prevailing during the drafting period. In an
preferred.38 (Emphasis supplied.) astute observation of the economic realities in 1986, quoted by respondent Pangilinan,
There was no change in phraseology University of the Philippines School of Economics Professor Dr. Emmanuel S. de Dios examined
from the 1935 and 1973 Constitu- the nation’s dire need for foreign investments and foreign exchange during the time
tions, or a transitory provision that _______________
signals such change, with respect to 40 G.R. No. 83896, February 22, 1991, 194 SCRA 317.
foreign ownership in public utility 522
corporations (2nd extrinsic aid)
If the framers wanted the word “capital” to mean voting capital stock, their terminology
would have certainly been unmistakably limiting as to leave no doubt about their intention. Heirs of Wilson P. Gamboa vs. Teves
But the framers consciously and purposely excluded restrictive phrases, such as “voting stocks” when the framers deliberated on what would eventually be the National Economy and
or “controlling interest,” in the approved final draft, the proposal of the UP Law Center, Patrimony provisions of the Constitution:
Commissioner Davide and Commissioner Azcuna notwithstanding. Instead, they retained The period immediately after the 1986 EDSA Revolution is well known to have witnessed the
“capital” as “used in the 1935 and 1973 Constitutions.”39 There was, therefore, a conscious country’s deepest economic crisis since the Second World War. Official data readily show this
design to avoid stringent words that would limit the meaning of “capital” in a sense insisted period was characterised by the highest unemployment, highest interest rates, and largest
upon by the majority. Cassus omissus pro omisso habendus est―a person, object, or thing contractions in output the Philippine economy experienced in the postwar period. At the start
omitted must have been omitted intentionally. More importantly, by using the word “capital,” of the Aquino administration in 1986, total output had already contracted by more than seven
the intent of the framers of the Constitution was to include all types of shares, whether voting percent annually for two consecutive years (1984 and 1985), inflation was running at an average
or nonvoting, within the ambit of the word. of 35 percent, unemployment more than 11 percent, and the currency devalued by 35 percent.
_______________ The proximate reason for this was the moratorium on foreign-debt payments the country
38 June 26, 2012 Oral Arguments TSN, pp. 115-116. had called in late 1983, effectively cutting off the country’s access to international credit
39 Records of the Constitutional Commission, Volume III, pp. 326, 583. markets (for a deeper contemporary analysis of what led to the debt crisis, see de Dios
521 [1984]). The country therefore had to subsist only on its current earnings from exports, which
VOL. 682, OCTOBER 9, 2012 521 meant there was a critical shortage of foreign exchange. Imports especially of capital goods and
intermediate goods therefore had to be drastically curtailed x x x.
Heirs of Wilson P. Gamboa vs. Teves For the same reasons, obviously, new foreign investments were unlikely to be forthcoming.
This is recorded by Bautista [2003:158], who writes:
Page 40 of 66
Long-term capital inflows have been rising at double-digit rates since 1980, except Sec. 16. Proceedings of the Commission, upon notice and hearing.—The Commission shall
during 1986-1990, a time of great political and economic uncertainty following the period have power, upon proper notice and hearing in accordance with the rules and provisions of this
of martial law under President Marcos. Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary:
The foreign-exchange controls then effectively in place will have made importing inputs (a) To issue certificates which shall be known as certificates of public convenience,
difficult for new enterprises, particularly foreign investors (especially Japanese) interested in authorizing the operation of public service within the Philippines whenever the
relocating some of their export-oriented but import-dependent operations to the Philippines. Commission finds that the operation of the public service proposed and the
x x x The same foreign-exchange restrictions would have made the freedom to remit profits a authorization to do business will promote the public interest in a proper and suitable
dicey affairs. Finally, however, manner. Provided, That thereafter, certificates of public convenience and certificates of
423 public convenience and necessity will be granted only to citi-
VOL. 682, OCTOBER 9, 2012 423 _______________
42 Commonwealth Act No. (CA) 146, as amended and modified by Presidential Decree No.
Heirs of Wilson P. Gamboa vs. Teves 1, Integrated Reorganization Plan and EO 546; Approved on November 7, 1936.
the period was also characterised by extreme political uncertainty, which did not cease even 43 Sec. 13(b), CA 146: The term “public service” includes every person that now or
after the Marcos regime was toppled.41 x x x hereafter may own, operate, manage, or control in the Philippines, for hire or compensation,
Surely, it was far from the minds of the framers to alienate and disenfranchise foreign with general or limited clientele, whether permanent, occasional or accidental, and done for
investors by imposing an indirect restriction that only exacerbates the dichotomy between general business purposes, any common carrier, railroad, street railway, traction railway, sub-
management and ownership without the actual guarantee of giving control and protection to way motor vehicle, either for freight or passenger, or both with or without fixed route and
the Filipino investors. Instead, it can be fairly assumed that the framers intended to avoid whether may be its classification, freight or carrier service of any class, express service,
further economic meltdown and so chose to attract foreign investors by allowing them to 40% steamboat or steamship line, pontines, ferries, and water craft, engaged in the transportation
equity ownership of the entirety of the corporate shareholdings but, wisely, imposing limits on of passengers or freight or both, shipyard, marine railways, marine repair shop, [warehouse]
their participation in the governing body to ensure that the effective control and ultimate wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat
economic benefits still remained with the Filipino shareholders. and power water supply and power, petroleum, sewerage system, wire or wireless
Judicial decisions and prior laws communications system, wire or wireless broadcasting stations and other similar public services
use and/or treat “capital” as “capital x x x.
stock” (4th extrinsic aid) 525
That the term “capital” in Sec. 11, Art. XII is equivalent to “capital stock,” which
VOL. 682, OCTOBER 9, 2012 525
encompasses all classes of shares regardless of their nomenclature or voting capacity, is easily
determined by a review of various laws passed prior to the Heirs of Wilson P. Gamboa vs. Teves
_______________ zens of the Philippines or of the United States or tocorporations, co-partnerships,
41 Respondent Pangilinan’s Motion for Reconsideration dated July 14, 2011, pp. 36-37 associations or joint-stock companies constituted and organized under the laws of the
citing Philippine Institute of Development Studies, “Key Indicators of the Philippines, 1970- Philippines; Provided, That sixty per centum of the stock or paid-up capital of any such
2011,” at http://econdb.pids.gov.ph/tablelists/table/326 and de Dios, E. (ed.) [1984] An corporations, co-partnership, association or joint-stock company must belong entirely to
Analysis of the Philippine Economic Crisis. A workshop report. Quezon City: University of the citizens of the Philippines or of the United States: Provided, further, That no such
Philippines; also de Dios, E. [2009] “Governance, institutions, and political economy” in: D. certificates shall be issued for a period of more than fifty years. (Emphasis supplied.)
Canlas, M.E. Khan and J. Zhuang, eds. Diagnosing the Philippine economy: toward inclusive The heading of Sec. 2 of Commonwealth Act No. (CA) 108, or the Anti-Dummy Law, which
growth. London: Anthem Press and Asian Development Bank. 295-336 and Bautista, R. [2003] was approved on October 30, 1936, similarly conveys the idea that the term “capital” is
“International dimensions,” in: A. Balisacan and H. Hill Eds. The Philippine economy: equivalent to “capital stock”44:
development, policies, and challenges. Oxford University Press. 136-171. Section 2. Simulation of minimum capital stock—In all cases in which a constitutional or legal
524 provision requires that, in order that a corporation or association may exercise or enjoy a right,
524 SUPREME COURT REPORTS ANNOTATED franchise or privilege, not less than a certain per centum of its capital must be owned by citizens
of the Philippines or of any other specific country, it shall be unlawful to falsely simulate the
Heirs of Wilson P. Gamboa vs. Teves existence of such minimum stock or capital as owned by such citizens, for the purpose of evading
ratification of the 1987 Constitution. In 1936, for instance, the Public Service Act42 established said provision. The president or managers and directors or trustees of corporations or
the nationality requirement for corporations that may be granted the authority to operate a associations convicted of a violation of this section shall be punished by imprisonment of not
“public service,”43 which include most of the present-day public utilities, by referring to the less than five nor more than fifteen years, and by a fine not less than the value of the right,
paid-up “capital stock” of a corporation, viz.: franchise or privilege, enjoyed or acquired in violation of the provisions hereof but in no case
less than five thousand pesos.45 (Emphasis and underscoring supplied.)
Page 41 of 66
_______________ Philippines: Provided, further, That such person or entity with whom the grantee may enter into
44 “Headnotes, heading or epigraphs of sections of a statute are convenient index to the management contract shall be a citizen of the Philippines and in case of an entity or a
contents of its provisions.” (Agpalo, Ruben, Statutory Construction, Sixth Edition [2009], p. 166 corporation, at least sixty per centum of the capital or capital stock of which is owned by citizens
citing In re Estate of Johnson, 39 Phil. 156 [1918]; Kare v. Platon, 56 Phil. 248 [1931]). of the Philippines. (Emphasis supplied.)
45 As amended by Republic Act No. 134, which was approved on June 14, 1947. In 1968, RA 5207,49 otherwise known as the “Atomic Energy Regulatory Act of 1968,”
526 considered a corporation sixty percent of whose capital stock as domestic:
526 SUPREME COURT REPORTS ANNOTATED Sec. 9. Citizenship Requirement.—No license to acquire, own, or operate any atomic energy
facility shall be issued to an alien, or any corporation or other entity which is owned or
Heirs of Wilson P. Gamboa vs. Teves controlled by an alien, a foreign corporation, or a foreign government.
Pursuant to these legislative acts and under the aegis of the Constitutional nationality For purposes of this Act, a corporation or entity is not owned or controlled by an alien, a foreign
requirement of public utilities then in force, Congress granted various franchises upon the corporation of a foreign gov-
understanding that the “capital stock” of the grantee is at least 60% Filipino. In 1964, Congress, _______________
via Republic Act No. (RA) 4147,46 granted Filipinas Orient Airway, Inc. a legislative franchise to 48 Entitled “An Act Granting the Philippine Communications Satellite Corporation a
operate an air carrier upon the understanding that its “capital stock” was 60% percent Filipino- Franchise To Establish and Operate Ground Satellite Terminal Station or Stations for
owned. Section 14 of RA 4147, provided: Telecommunication with Satellite Facilities and Delivery to Common Carriers.” Approved on
Sec. 14. This franchise is granted with the understanding that the grantee is a corporation June 21, 1969.
sixty percent of the capital stock of which is the bona fide property of citizens of the 49 Entitled “An Act Providing for the Licensing and Regulation of Atomic Energy Facilities
Philippines and that the interest of such citizens in its capital stock or in the capital of the and Materials, Establishing the Rules on Liability for Nuclear Damage, and for Other Purposes,”
Company with which it may merge shall at no time be allowed to fall below such percentage, as amended by PD 1484. Approved on June 15, 1968 and published in the Official Gazette on
under the penalty of the cancellation of this franchise. (Emphasis and underscoring supplied.) May 5, 1969.
The grant of a public utility franchise to Air Manila, Inc. to establish and maintain air 528
transport in the country a year later pursuant to RA 450147 contained exactly the same Filipino
capitalization requirement imposed in RA 4147:
Sec. 14. This franchise is granted with the understanding that the grantee is a Heirs of Wilson P. Gamboa vs. Teves
corporation, sixty per cent of the capital stockof which is owned or the bona fide property of ernment if at least sixty percent (60%) of its capital stock is owned by Filipino citizens. (Emphasis
citizens of the Philippines and that the interest of such citizens in its capital stock or in the capital supplied.)
of the company with which it may merge shall at no time be allowed to fall below such
percentage, under the penalty of the cancellation of this franchise. (Emphasis and underscoring Anent pertinent judicial decisions, this Court has used the very same definition of capital as
supplied.) equivalent to the entire capital stockholdings in a corporation in resolving various other issues.
_______________ In National Telecommunications Commission v. Court of Appeals,50 this Court, thus, held:
46 Entitled “An Act Granting A Franchise To Filipinas Orient Airways, Incorporated, To The term “capital” and other terms used to describe the capital structure of a corporation are of
Establish And Maintain Air Transport Service In The Philippines And Between The Philippines universal acceptance, and their usages have long been established in
And Other Countries.” Approved on June 20, 1964. jurisprudence. Briefly, capital refers to the value of the property or assets of a corporation. The
47 Entitled “An Act Granting A Franchise To Air Manila, Incorporated, To Establish And capital subscribed is the total amount of the capital that persons (subscribers or shareholders)
Maintain Air Transport Service In The Philippines And Between The Philippines And Other have agreed to take and pay for, which need not necessarily be, and can be more than, the par
Countries.” Approved on June 19, 1965. value of the shares. In fine, it is the amount that the corporation receives, inclusive of the
527 premiums if any, in consideration of the original issuance of the shares. In the case of stock
VOL. 682, OCTOBER 9, 2012 527 dividends, it is the amount that the corporation transfers from its surplus profit account to its
capital account. It is the same amount that can loosely be termed as the “trust fund” of the
Heirs of Wilson P. Gamboa vs. Teves corporation. The “Trust Fund” doctrine considers this subscribed capital as a trust fund for the
In like manner, RA 5514,48 which granted a franchise to the Philippine Communications payment of the debts of the corporation, to which the creditors may look for satisfaction. Until
Satellite Corporation in 1969, required of the grantee to execute management contracts only the liquidation of the corporation, no part of the subscribed capital may be returned or released
with corporations whose “capital or capital stock” are at least 60% Filipino: to the stockholder (except in the redemption of redeemable shares) without violating this
Sec. 9. The grantee shall not lease, transfer, grant the usufruct of, sell or assign this franchise principle. Thus, dividends must never impair the subscribed capital; subscription commitments
to any person or entity, except any branch or instrumentality of the Government, without the cannot be condoned or remitted; nor can the corporation buy its own shares using the
previous approval of the Congress of the Philippines: Provided, That the grantee may enter into subscribed capital as the consideration therefor.51
management contract with any person or entity, with the approval of the President of the _______________
Page 42 of 66
50 G.R. No. 127937 July 28, 1999, 311 SCRA 508. In its July 29, 2011 Manifestation and Omnibus Motion, the SEC reaffirmed its longstanding
51 Emphasis supplied. practice and history of enforcement of the 40% maximum foreign ownership limit for public
529 utilities, viz.:
VOL. 682, OCTOBER 9, 2012 529 5. The Commission respectfully submits that it has always performed its duty under
Section 17(4) of the Corporation Code to enforce the foreign equity restrictions under Section
Heirs of Wilson P. Gamboa vs. Teves 11, Article XII of the Constitution on the ownership of public utilities.
This is similar to the holding in Banco Filipino v. Monetary Board52 where the Court treated xxxx
the term “capital” as including both common and preferred stock, which are usually deprived 8. Thus, in determining compliance with the Constitutional restrictions on foreign equity,
of voting rights: the Commission consistently construed and applied the term “capital” in its commonly accepted
[I]t is clear from the law that a solvent bank is one in which its assets exceed its liabilities. It is a usage, that is—the sum total of the shares subscribed irrespective of their nomenclature and
basic accounting principle that assets are composed of liabilities and capital. The term “assets” whether or not they are voting or non-voting (Emphasis supplied).
includes capital and surplus” (Exley v. Harris, 267 pp. 970, 973, 126 Kan., 302). On the other _______________
hand, the term “capital” includes common and preferred stock, surplus reserves, surplus and 54 See also Republic Planters Bank v. Agana, G.R. No. 51765, March 3, 1997, 269 SCRA 1,
undivided profits. (Manual of Examination Procedures, Report of Examination on Department where this Court stated that “Shareholders, both common and preferred, are considered risk
of Commercial and Savings Banks, p. 3-C). If valuation reserves would be deducted from these takers who invest capital in the business and who can look only to what is left after corporate
items, the result would merely be the networth or the unimpaired capital and surplus of the debts and liabilities are fully paid.”
bank applying Sec. 5 of RA 337 but not the total financial condition of the bank. 531
In Commissioner of Internal Revenue v. Court of Appeals,53 the Court alluded to the doctrine
VOL. 682, OCTOBER 9, 2012 531
of equality of shares in resolving the issue therein and held that all shares comprise the capital
stock of a corporation: Heirs of Wilson P. Gamboa vs. Teves
A common stock represents the residual ownership interest in the corporation. It is a basic class 9. This commonly accepted usage of the term ‘capital’ is based on persuasive authorities
of stock ordinarily and usually issued without extraordinary rights or privileges and entitles the such as the widely esteemed Fletcher Cyclopedia of the Law of Private Corporations, and
shareholder to a pro rata division of profits. Preferred stocks are those which entitle the doctrines from American Jurisprudence. To illustrate, in its Opinion dated February 15, 1988
shareholder to some priority on dividends and asset distribution. Both shares are part of the addresses to Gozon, Fernandez, Defensor and Associates, the Commission discussed how the
corporation’s capital stock. Both stockholders are no different from ordinary investors who take term ‘capital’ is commonly used:
on the same investment risks. Preferred and common shareholders participate in the same “Anent thereto, please be informed that the term ‘capital’ as applied to
venture, willing to share in the profit and losses of the enterprise. Moreover, under the doctrine corporations, refers to the money, property or means contributed by stockholders as
of equality of shares—all stocks issued by the corporation are presumed equal with the form or basis for the business or enterprise for which the corporation was formed
_______________ and generally implies that such money or property or means have been contributed in
52 G.R. No. 70054, December 11, 1991, 204 SCRA 767. Emphasis and underscoring payment for stock issued to the contributors. (United Grocers, Ltd. v. United States F.
supplied. Supp. 834, cited in 11 Fletcher, Cyc. Corp., 1986, rev. vol., sec. 5080 at 18). As further
53 G.R. No. 108576, January 20, 1999, 301 SCRA 152. ruled by the court, ‘capital of a corporation is the fund or other property, actually or
530 potentially in its possession, derived or to be derived from the sale by it of shares of its
530 SUPREME COURT REPORTS ANNOTATED stock or his exchange by it for property other than money. This fund includes not only
money or other property received by the corporation for shares of stock but all
Heirs of Wilson P. Gamboa vs. Teves balances of purchase money, or instalments, due the corporation for shares of stock
the same privileges and liabilities, provided that the Articles of Incorporation is silent on such sold by it, and all unpaid subscriptions for shares.’” (Williams v. Brownstein, 1F. 2d 470,
differences.54 (Emphasis supplied.) cited in 11 Fletcher, Cyc. Corp., 1058 rev. vol., sec. 5080, p. 21).
The SEC has reflected the popular The term ‘capital’ is also used synonymously with the words ‘capital stock’, as
contemporaneous construction of meaning the amount subscribed and paid-in and upon which the corporation is to
capital in computing the nationality conduct its operation. (11 Fletcher, Cyc. Corp. 1986, rev. vol., sec. 5080 at 15). And, as
requirement based on the total capi- held by the court in Haggard v. Lexington Utilities Co., (260 Ky 251, 84 SW 2d 84, cited
tal stock, not only the voting stock, in 11 Fletcher, Cyc. Corp., 1958 rev. vol., sec. 5079 at 17), ‘The capital stock of a
of a corporation (5th extrinsic aid) corporation is the amount paid-in by its stockholders in money, property or services
The SEC has confirmed that, as an institution, it has always interpreted and applied the 40% with which it is to conduct its business, and it is immaterial how the stock is classified,
maximum foreign ownership limit for public utilities to the total capital stock, and not just its whether as common or preferred.’
total voting stock.
Page 43 of 66
The Commission, in a previous opinion, ruled that the term ‘capital’ denotes the shares?”—the SEC, citing Fletcher, invariably answered in the affirmative, whether the poser
sum total of the shares subscribed and paid by the shareholders or served to be paid, was made in light of the present or previous Constitutions:
irrespective The pertinent provision of the Philippine Constitution under Article XII, Section 7, reads in part
532 thus:
532 SUPREME COURT REPORTS ANNOTATED “No franchise, certificate, or any form of authorization for the operation of a public utility shall
be granted except to citizens of the Philippines, or to corporations or associations organized
Heirs of Wilson P. Gamboa vs. Teves under the laws
of their nomenclature. (Letter to Supreme Technotronics Corporation, dated April 14, _______________
1987).” (Emphasis ours) 56 Ponencia, pp. 30-31.
10. Further, in adopting this common usage of the term ‘capital,’ the Commission 57 Office of the Ombudsman v. Heirs of Margarita Vda. De Ventura, G.R. No. 151800,
believed in good faith and with sound reasons that it was consistent with the intent and purpose November 5, 2009, 605 SCRA 1.
of the Constitution. In an Opinion dated 27 December 1995 addressed to Joaquin Cunanan & 58 In numerous Opinions, the DOJ refused to construe the Constitutional provisions on the
Co. the Commission observed that: nationality requirement imposed by various legislative acts like the FIA, in relation to the 1987
“To construe the 60-40% equity requirement as merely based on the voting Constitution, on the ground that the interpretation and application of the said law properly fall
shares, disregarding the preferred non-voting share, not on the total outstanding within the jurisdiction of the National Economic Development Authority (NEDA), in consultation
subscribed capital stock, would give rise to a situation where the actual foreign interest with the Bureau of Investments (BOI) and the Securities and Exchange Commission. (Opinion No.
would not really be only 40% but may extend beyond that because they could also own 16, Series 1999, February 2, 1999 citing Sec. of Justice Opn. No. 3, current series; Nos. 16, 44
even the entire preferred non-voting shares. In this situation, Filipinos may have the and 45, s. 1998; Opinion No. 13, Series of 2008, March 12, 2008 citing Sec. of Justice Op. NO.
control in the operation of the corporation by way of voting rights, but have no effective 53, current series No. 75, s. 2006.
ownership of the corporate assets which includes lands, because the actual Filipino 534
equity constitutes only a minority of the entire outstanding capital stock. Therefore, in
essence, the company, although controlled by Filipinos, is beneficially owned by
foreigners since the actual ownership of at least 60% of the entire outstanding capital Heirs of Wilson P. Gamboa vs. Teves
stocks would be in the hands of foreigners. Allowing this situation would open the of the Philippines at least sixty per centum of whose capital is owned by such citizens. . .” x x x
floodgates to circumvention of the intent of the law to make the Filipinos the principal The issue raised on your letter zeroes in on the meaning of the word “capital” as used in the above
beneficiaries in the ownership of alienable lands.” (Emphasis ours) constitutional provision. Anent thereto, please be informed that the term “capital” as applied to
11. The foregoing settled principles and esteemed authorities relied upon by the corporations, refers to the money, property or means contributed by stockholders as the form
Commission show that its interpretation of the term ‘capital’ is reasonable. or basis for the business or enterprise for which the corporation was formed and generally
12. And, it is well settled that courts must give due deference to an administrative implies that such money or property or means have been contributed in payment for stock
agency’s reasonable interpretation of the statute it enforces.55 issued to the contributors. (United Grocers, Ltd. v. United States F. Supp. 834, cited in 11
It should be borne in mind that the SEC is the government agency invested with the Fletcher, Cyc. Corp., 1986, rev. vol., sec. 5080 at 18). As further ruled by the court, “capital of a
jurisdiction to determine at the first instance the observance by a public utility of the constitu- corporation is the fund or other property, actually or potentially in its possession, derived or to
_______________ be derived from the sale by it of shares of its stock or his exchange by it for property other than
55 Citations omitted. money. This fund includes not only money or other property received by the corporation for
533 shares of stock but all balances of purchase money, or installments, due the corporation for
VOL. 682, OCTOBER 9, 2012 533 shares of stock sold by it, and all unpaid subscriptions for shares.” (Williams v. Brownstein, 1F.
2d 470, cited in 11 Fletcher, Cyc. Corp., 1058 rev. vol., sec. 5080, p. 21).
Heirs of Wilson P. Gamboa vs. Teves The term “capital” is also used synonymously with the words “capital stock,” as meaning the
tional nationality requirement prescribed vis-à-vis the ownership of public utilities56 and to amount subscribed and paid-in and upon which the corporation is to conduct its operation. (11
interpret legislative acts, like the FIA. The rationale behind the doctrine of primary jurisdiction Fletcher, Cyc. Corp. 1986, rev. vol., sec. 5080 at 15). And, as held by the court in Haggard v.
lies on the postulate that such administrative agency has the “special knowledge, experience Lexington Utilities Co., (260 Ky 251, 84 SW 2d 84, cited in 11 Fletcher, Cyc. Corp., 1958 rev. vol.,
and tools to determine technical and intricate matters of fact…”57 Thus, the determination of sec. 5079 at 17), “The capital stock of a corporation is the amount paid-in by its stockholders in
the SEC is afforded great respect by other executive agencies, like the Department of Justice money, property or services with which it is to conduct its business, and it is immaterial how the
(DOJ),58 and by the courts. stock is classified, whether as common or preferred.”
Verily, when asked as early as 1988―“Would it be legal for foreigners to own in a public The Commission, in a previous opinion, ruled that the term ‘capital’ denotes the sum total of the
utility entity more than 40% of the common shares but not more than 40% of the total shares subscribed and paid by the shareholders or served to be paid, irrespective of their
outstanding capital stock which would include both common and non-voting preferred
Page 44 of 66
nomenclature. (Letter to Supreme Technotronics Corporation, dated April 14, 1987). Hence, “The term capital stock signifies the aggregate of the shares actually subscribed.” (11
your query is answered in the affirmative.59 (Emphasis supplied.) Fletcher, Cyc. Corps. (1971 Rev. Vol.) sec. 5082, citing Goodnow v. American Writing Paper Co.,
_______________ 73 NJ Eq. 692, 69 A 1014 aff’g 72 NJ Eq. 645, 66 A, 607).
59 SEC Opinion dated February 15, 1988. “Capital stock means the capital subscribed (the share capital).” (Ibid., emphasis supplied).
535 “In its primary sense a share of stock is simply one of the proportionate integers or units,
VOL. 682, OCTOBER 9, 2012 535 the sum of which constitutes the capital stock of corporation. (Fletcher, sec. 5083).
The equitable interest of the shareholder in the property of the corporation is represented
Heirs of Wilson P. Gamboa vs. Teves by the term stock, and the extent of his interest is described by the term shares. The expression
As it were, the SEC has held on the same positive response long before the 1987 shares of stock when qualified by words indicating number and ownership expresses the extent
Constitution came into effect, a matter of fact which has received due acknowledgment from of the owner’s interest in the corporate property (Ibid., Sec. 5083, emphasis supplied).
this Court. In People v. Quasha,60 a case decided under the 1935 Constitution, this Court Likewise, in all provisions of the Corporation Code the stockholders’ right to vote and
narrated that in 1946 the SEC approved the incorporation of a common carrier, a public utility, receive dividends is always determined and based on the “outstanding capital stock,” defined
where Filipinos, while not holding the controlling vote, owned the majority of the capital, viz.: as follows:
The essential facts are not in dispute. On November 4, 1946, the Pacific Airways “SECTION 137. Outstanding capital stock defined.―The term “outstanding capital stock”
Corporation registered its articles of incorporation with the [SEC]. The articles were prepared as used in this Code, means the total shares of stock issued to subscribers or stockholders,
and the registration was effected by the accused, who was in fact the organizer of the whether or not fully or partially paid (as long as there is a binding subscription agreement,
corporation. The articles stated that the primary purpose of the corporation was to carry on the except treasury shares.”537
business of a common carrier by air, land, or water, that its capital stock was P1,000,000,
VOL. 682, OCTOBER 9, 2012 537
represented by 9,000 preferred and 100,000 common shares, each preferred share being of the
par value of P100 and entitled to 1/3 vote and each common share, of the par value of P1 Heirs of Wilson P. Gamboa vs. Teves
and entitled to one vote; that the amount of capital stock actually subscribed was P200,000, The computation, therefore, should be based on the total outstanding capital stock,
and the names of the subscriber were Arsenio Baylon, Eruin E. Shannahan, Albert W. Onstott, irrespective of the amount of the par value of the shares.
James O’bannon, Denzel J. Cavin, and William H. Quasha, the first being a Filipino and the other Then came SEC-OGC Opinion No. 08-14 dated June 02, 2008:
five all Americans; that Baylon’s subscription was for 1,145 preferred shares, of the total value The instant query now centers on whether both voting and nonvoting shares are included
of P114,500 and 6,500 common shares, of the total par value of P6,500, while the aggregate in the computation of the required percentage of Filipino equity, As a rule, the 1987
subscriptions of the American subscribers were for 200 preferred shares, of the total par value Constitution does not distinguish between voting and non-voting shares with regard to the
of P20,000 and 59,000 common shares, of the total par value of P59,000; and that Baylon and computation of the percentage interest by Filipinos and non-Filipinos in a company. In other
the American subscribers had already paid 25 percent of their respective words, non-voting shares should be included in the computation of the foreign ownership limit
subscriptions. Ostensibly the owner of, or subscriber to, 60.005 per cent of the subscribed capital for domestic corporation. This was the rule applied [in SEC Opinion No. 04-30] x x x It was opined
stock of the corporation, Baylon, did not have the controlling vote because of the difference in therein that the ownership of the shares of stock of a corporation is based on the total
voting power between the preferred shares and the common shares. Still, with the capital outstanding or subscribed/issued capital stock regardless of whether they are classified as
structure as it was, the articles of incorporation were accepted for common voting shares or preferred shares without voting rights. This is in line with the policy
_______________ of the State to develop an independent national economy effectively controlled by Filipinos. x x
60 93 Phil. 333 (1953). x (Emphasis added.)
536 The SEC again echoed the same interpretation in an Opinion issued last April 19, 2011
536 SUPREME COURT REPORTS ANNOTATED wherein it stated, thus:
This is, thus, the general rule, such that when the provision merely uses the term “capital”
Heirs of Wilson P. Gamboa vs. Teves without qualification (as in Section 11, Article XII of the 1987 Constitution, which deals with
registration and a certificate of incorporation was issued by the [SEC]. (Emphasis supplied.) equity structure in a public utility company), the same should be interpreted to refer to the sum
The SEC has, through the years, stood by this interpretation. In an Opinion dated November total of the outstanding capital stock, irrespective of the nomenclature or classification as
21, 1989, the SEC held that the basis of the computation for the nationality requirement is the common, preferred, voting or non-voting.61
total outstanding capital stock, to wit: The above construal is in harmony with the letter and spirit of Sec. 11, Art. XII of the
As to the basis of computation of the 60-40 percentage nationality requirement under Constitution and its counterpart provisions in the 1935 and 1973 Constitution and, thus,
existing laws (whether it should be based on the number of shares or the aggregate amount in _______________
pesos of the par value of the shares), the following definitions of corporate terms are worth 61 SEC-OGC Opinion No. 26-11.
mentioning. 538
Page 45 of 66
Heirs of Wilson P. Gamboa vs. Teves Commission Room, 8th Floor, SEC Building, EDSA, Greenhills, Mandaluyong City, the
is entitled to respectful consideration. As the Court declared in Philippine Global Commission En Banc approved the following:
Communications, Inc. v. Relova:62 “RESOLVED, That all opinions to be issues by the SEC pursuant to a formal request,
x x x As far back as In re Allen, (2 Phil. 630) a 1903 decision, Justice McDonough, as ponente, prepared and acted upon by the appropriate operating departments shall be reviewed
cited this excerpt from the leading American case of Pennoyer v. McConnaughy, decided in by the OGC and be issued under the signature of the SEC General Counsel. Henceforth,
1891: “The principle that the contemporaneous construction of a statute by the executive officers all opinions to be issues by the SEC shall be numbered accordingly
of the government, whose duty it is to execute it, is entitled to great respect, and should ordinarily (SEC-EXS. RES. NO. 106 s, of 2002)
control the construction of the statute by the courts, is so firmly embedded in our jurisprudence 67 SEC. 4.6, SRC: The Commission may, for purposes of efficiency, delegate any of its
that no authorities need be cited to support it.’ x x x There was a paraphrase by Justice Malcolm functions to any department or office of the Commission, an individual Commissioner or staff
of such a pronouncement in Molina v. Rafferty, (37 Phil. 545) a 1918 decision”: Courts will and member of the Commission except its review or appellate authority and its power to adopt,
should respect the contemporaneous construction placed upon a statute by the executive alter and supplement any rule or regulation.
officers whose duty it is to enforce it, and unless such interpretation is clearly erroneous will The Commission may review upon its own initiative or upon the petition of any interested
ordinarily be controlled thereby. (Ibid., 555) Since then, such a doctrine has been reiterated in party any action of any department or office, individual Commissioner, or staff member of the
numerous decisions.63(Emphasis supplied.) Commission.
Laxamana v. Baltazar64 restates this long-standing dictum: “[w]here a statute has received 68 Sec. 5.1 (g), SRC.
a contemporaneous and practical interpretation and the statute as interpreted is re-enacted, 540
the practical interpretation is accorded greater weight than it ordinarily receives, and is 540 SUPREME COURT REPORTS ANNOTATED
regarded as presumptively the correct interpretation of the law. The rule here is based upon Heirs of Wilson P. Gamboa vs. Teves
the theory that the legislature is acquainted with the contemporaneous interpretation of a rule are two different concepts and the distinction between the two is established in
statute, especially when made by an administrative body or executive officers charged with the administrative law.69 Hence, the various opinions issued by the SEC-OGC deserve as much
duty of administering or enforcing the law, and therefore impliedly adopts the interpretation respect as the opinions issued by the SEC en banc.
_______________ Nonetheless, the esteemed ponente posits that the SEC, contrary to its claim, has been less
62 Philippine Global Communications, Inc. v. Relova, No. L-60548, November 10, 1986, 145 than consistent in its construal of “capital.” During the oral arguments, he drew attention to
SCRA 385; citing Philippine Association of Free Labor Unions [PAFLU] v. Bureau of Labor various SEC Opinions, nine (9) to be precise, that purportedly consider “capital” as referring only
Relations, August 21, 1976, 72 SCRA 396, 402. to voting stocks.
63 Id. Refuting this position, the SEC in its Memorandum dated July 25, 2012 explained in some
64 No. L-5955, September 19, 1952, 92 Phil. 32. detail that the Commission has been consistent in applying the term “capital” to the total
539 outstanding capital stock, whether voting or non-voting. The SEC Opinions referred to by Justice
VOL. 682, OCTOBER 9, 2012 539 Carpio, which cited the provisions of the FIA, is not, however, pertinent or decisive of the issue
Heirs of Wilson P. Gamboa vs. Teves on the meaning of “capital.” The said SEC Memorandum states:
upon re-enactment.”65 Hence, it can be safely assumed that the framers, in the course of During the oral arguments held on 26 June 2012, the SEC was directed to explain nine (9)
deliberating the 1987 Constitution, knew of the adverted SEC interpretation. of its Opinions in relation to the definition of “capital” as used in Section 11, Article XII of the
Parenthetically, it is immaterial whether the SEC opinion was rendered by the banc or by Constitution, namely: (1) Opinion dated 3 March 1993 for Mr. Francis F. How; (2) Opinion dated
the SEC-Office of the General Counsel (OGC) considering that the latter has been given the 14 April 1993 for Director Angeles T. Wong; (3) Opinion dated 23 November 1993 for Mssrs.
authority to issue opinions on the laws that the SEC implements under SEC-EXS. Res. No. 106, Dominador Almeda and Renato S. Calma; (4) Opinion dated 7 December 1993 for Roco Buñag
Series of 2002.66 The conferment does not violate Sec. 4.667 of the Securities and Regulation Kapunan Migallos & Jardeleza Law Offices; (5) Opinion dated 22 December 2004 for Romulo
Code (SRC) that proscribes the non-delegation of the legislative rule making power of the SEC, Mabanta Buenaventura Sayoc & De Los Angeles; (6) Opinion dated 27 September 2007 for
which is in the nature of subordinate legislation. As may be noted, the same Sec. 4.6 does not Reynaldo G. David; (7) Opinion dated 28 November 2007 for Santiago & Santiago law Offices;
mention the SEC’s power to issue interpretative “opinions and provide guidance on and (8) Opinion dated 15 January 2008 for Attys. Ruby Rose J. Yusi and Rudyard S. Arbolado; and (9)
supervise compliance with such rules,”68which is incidental to the SEC’s enforcement functions. Opinion dated 18 August 2010 for Castillo Laman Tan Pantaleon & San Jose.
A legislative rule and an interpretative _______________
_______________ 69 Misamis Oriental Association of Coco Traders, Inc. v. Department of Finance Secretary,
65 Id. G.R. No. 108524, November 10, 1994, 238 SCRA 63; citing Victorias Milling Co. v. Social Security
66 Annex “B” of the SEC Memorandum dated July 25, 2012 wherein the Commission Commission, 114 Phil. 555; 4 SCRA 627 (1962) and Philippine Blooming Mills v. Social Security
Secretary certified that: “During the Commission En Banc meeting held on July 2, 2002 at the System, 124 Phil. 499; 17 SCRA 1077 (1966).
541
Page 46 of 66
VOL. 682, OCTOBER 9, 2012 541 The Opinion dated 27 September 2007 for Mr. Reynaldo G. David, likewise, does not discuss
whether “capital” refers to total outstanding capital stock or only to voting stocks, but rather
Heirs of Wilson P. Gamboa vs. Teves whether the Control Test is applicable in determining the nationality of the proposed corporate
xxxx bidder or buyer of PNOC-EDC shares. x x x The FIA was cited only to emphasize that the said law
With due respect, the issue of whether “capital” refers to outstanding capital stock or only mandates the application of the Control Test.
voting stocks was never raised in the requests for these opinions. In fact, the definition of The Opinion dated 28 November 2007 for Santiago & Santiago Law Offices maintains and
“capital” could not have been a relevant and/or a material issue in some of these opinions supports the position of the Commission that Section 11, Article XII of the Constitution makes no
because the common and preferred shares involved have the same voting rights. Also, some distinction between common and preferred shares, thus, both shares should be included in the
Opinions mentioned the FIA to emphasize that the said law mandates the application of the computation of the foreign equity cap for domestic corporations. Simply put, the total
Control Test. Moreover, these Opinions state they are based solely on the facts disclosed and outstanding capital stock, without regard to how the shares are classified, should be used as the
relevant only to the issues raised therein. basis in determining the compliance by public utilities with the nationality requirement as
For one, the Opinion dated 3 March 1993 for Mr. Francis F. How does not discuss whether provided for in Section 11, Article XII of the Constitution. Notably, all shares of the subject
“capital” refers to total outstanding capital stock or only voting stocks. Instead, it talks about the corporation, Pilipinas First, have voting rights, whether common or preferred. Hence, the issue
application of the Control test in a mining corporation by looking into the nationality of its on whether “capital” refers to total outstanding capital stock or only to voting stocks has no
investors. The FIA is not mentioned to provide a definition of “capital,” but to explain the relevance in this Opinion.543
nationality requirement pertinent to investors of a mining corporation.
VOL. 682, OCTOBER 9, 2012 543
The Opinion dated 14 April 1993 for Dir. Angeles T. Wong also does not define “capital” as
referring to total outstanding capital or only to voting shares, but talks about the application of Heirs of Wilson P. Gamboa vs. Teves
the Control Test x x x. The FIA is again mentioned only to explain the nationality required of In the same way, the Opinion dated 15 January 2008 for Attys. Ruby Rose J. Yusi and
investors of a corporation engaged in overseas recruitment. Rudyard S. Arbolada never discussed whether “capital” refers to outstanding capital stock or only
The Opinion dated 23 November 1993 for Mssrs. Dominador Almeda and Renato S. to voting stocks, but rather whether the Control Test is applicable or not. The FIA was used merely
Calma distinguishes between the nationality of a corporation as an investing entity and the to justify the application of the Control Test. More importantly, the term “capital” could not
nationality of a corporation as an investee corporation. The FIA is mentioned only in the have been relevant and/or material issue in this Opinion because the common and preferred
discussion of the nationality of the investors of a corporation owning land in the Philippines, shares involved have the same voting rights.
composed of a trustee for pension or other employee retirement or separation benefits, where The Opinion dated 18 August 2010 for Castillo Laman Tan Pantaleon & San Jose reiterates
the trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the that the test for compliance with the nationality requirement is based on the total outstanding
benefit of Philippine nationals, and another domestic corporation which is 100% foreign owned. capital stock, irrespective of the amount of the par value of the shares. The FIA is mentioned only
Unlike the Decision rendered by this Honorable Court on 28 June 2011, the Opinion dated to explain the application of the Control Test and the Grandfather Rule in a corporation owning
07 December 1993 for Roco Buñag Kapunan Migallos & Jardeleza does not parley on the issue land in the Philippines by looking into the nationality of its investors. (Emphasis supplied).70
of In view of the foregoing, it is submitted that the long-established interpretation and mode
542 of computing by the SEC of the total capital stock strongly recognize the intent of the framers
542 SUPREME COURT REPORTS ANNOTATED of the Constitution to allow access to much-needed foreign investments confined to 40% of the
capital stock of public utilities.
Heirs of Wilson P. Gamboa vs. Teves Consequences of alternative inter-
the proper interpretation of “capital” because it is not a relevant and/or a material issue in this pretation: mischievous effects of the
opinion xxx. The FIA is mentioned only to explain the application of the control test. Note, construction proposed in the peti-
however, that manufacturing fertilizer is neither a nationalized or partly nationalized activity, tion and sustained in the June 28,
which is another reason why this Opinion has no relevance in this case. 2011 Decision. (6th extrinsic aid)
The Opinion dated 22 December 2004 for Romulo Mabanta Buenaventura Sayoc & De Los Filipino shareholders will not control the
Angeles focuses on the nationality of the investors of a corporation that will acquire land fundamental corporate matters nor own
wherein one of the investors is a foundation. It confirms the view that the test for compliance the majority economic benefits of the
with the nationality requirement is based on the total outstanding capital stock irrespective of public utility corporation.
the amount of the par value of shares. The FIA is used merely to justify the application of the _______________
Control Test as adopted in the Department of Justice Opinion, No. 18, Series of 1989, dated 19 70 SEC Memorandum dated July 25, 2012, pp. 33-36.
January 1989, viz.— 544
xxxx
Page 47 of 66
Heirs of Wilson P. Gamboa vs. Teves Filipino-owned common shares will necessarily ordain the majority in the governing body of the
Indeed, if the Court persists in adhering to the rationale underlying the majority’s original public utility corporation, the board of directors/trustees. Hence, Filipinos are assured of control
interpretation of “capital” found in the first sentence of Section 11, Article XII, We may perhaps over the day-to-day activities of the public utility corporation.
be allowing Filipinos to direct and control the daily business of our public utilities, but _______________
would irrevocably and injudiciously deprive them of effective “control” over the major and 71 G.R. Nos. 136781, 136786, 136795, October 6, 2000, 342 SCRA 244, 270.
equally important corporate decisions and the eventual beneficial ownership of the corporate 546
assets that could include, among others, claim over our soil––our land. This undermines the clear 546 SUPREME COURT REPORTS ANNOTATED
textual commitment under the Constitution that reserves ownership of disposable lands to Heirs of Wilson P. Gamboa vs. Teves
Filipino citizens. The interplay of the ensuing provisions of Article XII is unmistakable: Let us, however, take this corporate scenario a little bit farther and consider the irresistible
SECTION 2. All lands of the public domain x x x forests or timber, wildlife, flora and fauna, implications of changes and circumstances that are inevitable and common in the business
and other natural resources are owned by the State. With the exception of agricultural lands, world. Consider the simple matter of a possible investment of corporate funds in another
all other natural resources shall not be alienated. The exploration, development, and utilization corporation or business, or a merger of the public utility corporation, or a possible dissolution
of natural resources shall be under the full control and supervision of the State. x x x of the public utility corporation. Who has the “control” over these vital and important corporate
xxxx matters? The last paragraph of Sec. 6 of the Corporation Code provides:
SECTION 3. Lands of the public domain are classified into agricultural, forest or timber, Where the articles of incorporation provide for non-voting shares in the cases allowed by this
mineral lands, and national parks. Agricultural lands of the public domain may be further Code, the holders of such (non-voting) sharesshall nevertheless be entitled to vote on the
classified by law according to the uses which they may be devoted. Alienable lands of the public following matters:
domain shall be limited to agricultural lands. Private corporations or associations may not hold 1. Amendment of the articles of incorporation;
such alienable lands except by lease, for a period not exceeding twenty-five years, renewable 2. Adoption and amendment of by-laws;
for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens 3. Sale, lease, exchange, mortgage, pledge or other disposition of all or substantially all of the
of the Philippines may lease not more than five hundred hectares, or acquire not more than corporate property;
twelve hectares thereof by purchase, homestead or grant. x x x x 4. Incurring, creating or increasing bonded indebtedness;
SECTION 7. Save in cases of hereditary succession, no private lands shall be transferred or 5. Increase or decrease of capital stock;
conveyed except to individuals, corporations or associations qualified to acquire or hold lands of 6. Merger or consolidation of the corporation with another corporation or other corporations;
the public domain. (Emphasis supplied.) 7. Investment of corporate funds in another corporation or business in accordance with this
545 Code; and
VOL. 682, OCTOBER 9, 2012 545 8. Dissolution of the corporation.” (Emphasis and underscoring supplied.)
Heirs of Wilson P. Gamboa vs. Teves In our hypothetical case, all 1,000,100 (voting and non-voting) shares are entitled to vote
Consider the hypothetical case presented in the original ponencia: in cases involving fundamental and major changes in the corporate structure, such as those
Let us assume that a corporation has 100 common shares owned by foreigners and 1,000,000 listed in Sec. 6 of the Corporation Code. Hence, with only 60 out of the 1,000,100 shares in the
non-voting preferred shares owned by Filipinos, with both classes of share having a par value of hands of the Filipino shareholders, control is definitely in the hands of the foreigners. The
one peso (P1.00) per share. Under the broad definition of the term “capital,” such corporation foreigners can opt to invest in other businesses and corporations, increase its bonded
would be considered compliant with the 40 percent constitutional limit on foreign equity of indebtedness, and even dissolve the public utility corporation against the
public utilities since the overwhelming majority, or more than 99.999 percent, of the total 547
outstanding capital stock is Filipino owned. This is obviously absurd. VOL. 682, OCTOBER 9, 2012 547
Albeit trying not to appear to, the majority actually finds fault in the wisdom of, or motive Heirs of Wilson P. Gamboa vs. Teves
behind, the provision in question through “highly unlikely scenarios of clinical extremes,” to interest of the Filipino holders of the majority voting shares. This cannot plausibly be the
borrow from Veterans Federation Party v. COMELEC.71 It is submitted that the flip side of the constitutional intent.
ponencia’s hypothetical illustration, which will be exhaustively elucidated in this opinion, is Consider further a situation where the majority holders of the total outstanding capital
more anomalous and prejudicial to Filipino interests. stock, both voting and non-voting, decide to dissolve our hypothetical public utility
For instance, let us suppose that the authorized capital stock of a public utility corporation corporation. Who will eventually acquire the beneficial ownership of the corporate assets upon
is divided into 100 common shares and 1,000,000 non-voting preferred shares. Since, according dissolution and liquidation? Note that Sec. 122 of the Corporation Code states:
to the Court’s June 28, 2011 Decision, the word “capital” in Sec. 11, Art. XII refers only to the Section 122. Corporate liquidation.—Every corporation whose charter expires by its own
voting shares, then the 40% cap on foreign ownership applies only to the 100 common shares. limitation or is annulled by forfeiture or otherwise, or whose corporate existence for other
Foreigners can, therefore, own 100% of the 1,000,000 non-voting preferred shares. But then purposes is terminated in any other manner, shall nevertheless be continued as a body
again, the ponencia continues, at least, the “control” rests with the Filipinos because the 60%
Page 48 of 66
corporate for three (3) years… to dispose of and convey its property and to distribute its assets, VOL. 682, OCTOBER 9, 2012 549
but not for the purpose of continuing the business for which it was established.
At any time during said three (3) years, the corporation is authorized and empowered to Heirs of Wilson P. Gamboa vs. Teves
convey all of its property to trustees for the benefit of stockholders, members, creditors, and iv. Power to cast the majority of votes at meetings of the board of directors or equivalent
other persons in interest. From and after any such conveyance by the corporation of its property governing body. (Emphasis and underscoring supplied.)
in trust for the benefit of its stockholders, members, creditors and others in interest, all interest As shown above, ownership of voting shares or power alone without economic control of the
which the corporation had in the property terminates, the legal interest vests in the trustees, and company does not necessarily equate to corporate control. A shareholder’s agreement can
the beneficial interest in the stockholders, members, creditors or other persons in effectively clip the voting power of a shareholder holding voting shares. In the same way,
interest. (Emphasis and underscoring supplied.) a voting right ceiling, which is “a restriction prohibiting shareholders to vote above a certain
Clearly then, the bulk of the assets of our imaginary public utility corporation, which may threshold irrespective of the number of voting shares they hold,”73can limit the control that may
include private lands, will go to the beneficial ownership of the foreigners who can hold up to be exerted by a person who owns voting stocks but who does not have a substantial economic
40 out of the 100 common shares and the entire 1,000,000 preferred non-voting shares of the interest over the company. So also does the use of financial derivatives with attached conditions
corporation. These foreign shareholders will enjoy the bulk of the proceeds of the sale of the to ensure the acquisition of corporate control separately from the ownership of voting shares,
corporate lands, or worse, exercise control over these lands behind the facade of corporations or the use of supermajority provisions in the bylaws and articles of incorporation or association.
nominally owned by Filipino shareholders. Bluntly, while the Constitution expressly prohibits Indeed, there are innumerable ways and means, both explicit and implicit, by which the control
the transfer of land to aliens, foreign stockof a corporation can be attained and retained even with very limited voting shares, i.e., there
548 are a number of ways by which control can be disproportionately increased compared to
ownership74 so long as economic rights over the
_______________
Heirs of Wilson P. Gamboa vs. Teves 73 Report on the Proportionality Principle in the European Union: External Study
holders may resort to schemes or arrangements where such land will be conveyed to their Commissioned by the European Commission,
dummies or nominees. Is this not circumvention, if not an outright violation, of the fundamental p. 7.
Constitutional tenet that only Filipinos can own Philippine land? 74 This fact is recognized even by the Organisation for Economic Cooperation and
A construction of “capital” as referring to the total shareholdings of the company is an Development (OECD), viz.:
acknowledgment of the existence of numerous corporate control-enhancing mechanisms, “Economic literature traditionally identifies two main channels through which corporate
besides ownership of voting rights, that limits the proportion between the separate and distinct investors may decouple the cash flows and voting rights of shares, including the leveraging of
concepts of economic right to the cash flow of the corporation andthe right to voting power and mechanisms to “lock in” control. The most commonly used such mechanisms
corporate control (hence, they are also referred to as proportionality-limiting measures). This are listed below. Not covered by the present section are a number of company-internal
corporate reality is reflected in SRC Rule 3(E) of the Amended Implementing Rules and arrangements that can in some circumstances also be employed to leverage the control of
Regulations (IRR) of the SRC and Sec. 3(g) of The Real Estate Investment Trust Act (REIT) of certain shareholders. For instance, the ongoing discussions in the United
2009,72 which both provide that control can exist regardless of ownership of voting shares. The 550
SRC IRR states: 550 SUPREME COURT REPORTS ANNOTATED
Control is the power to govern the financial and operating policies of an enterprise so as to
obtain benefits from its activities. Control is presumed to exist when the parent owns, directly Heirs of Wilson P. Gamboa vs. Teves
or indirectly through subsidiaries, more than one half of the voting power of an enterprise majority of the assets and equity of the corporation are maintained.
unless, in exceptional circumstances, it can be clearly demonstrated that such ownership does _______________
not constitute control. Control also exists even when the parent owns one half or less of the States about corporate proxies and the voting arrangements at general meetings (e.g.,
voting power of an enterprise when there is: majority versus plurality vote) may have important ramifications for the allocation of control
i. Power over more than one half of the voting rights by virtue of an agreement with other rights in US companies. In addition, a number of marketed financial instruments are increasingly
investors; available that can be used by investors, including incumbent management, to hedge their
ii. Power to govern the financial and operating policies of the enterprise under a statute or financial interest in a company while retaining voting rights.
an agreement; Leveraging of voting power. The two main types PLMs used to bolster the voting powers
iii. Power to appoint or remove the majority of the members of the board of directors or of individuals, hence creating controlling shareholders, are differentiated voting rights on
equivalent governing body; company shares and multi-firm structures. Mechanisms include:
_______________ Differentiated voting rights. The most straightforward―and, as the case may be,
72 Republic Act 9856, Lapsed into law on December 17, 2009. transparent—way of leveraging voting power is to stipulate differential voting rights in the
549 corporate charter or bylaws. Companies have gone about this in a number of ways, including
Page 49 of 66
dual-class share structures and, in addition to common stock, issuing non-voting shares or on the Proportionality Principle in the European Union: External Study Commissioned by the
preference shares without or with limited voting rights. The latter is a borderline case: European Commission. See also Hu and Black, supra.
preference shares have common characteristics with debt as well as equity, and in most 552
jurisdictions they assume voting rights if the issuers fail to honour their preference 552 SUPREME COURT REPORTS ANNOTATED
commitments.
 Multi-firm structures. Voting rights can be separated from cash-flow rights even with a Heirs of Wilson P. Gamboa vs. Teves
single class of shares by creating a set of cascading shareholdings or a pyramidal hierarchy in age to bargain for far greater control through the various enhancing mechanisms or
which higher-tier companies own shares in lower-tier companies. Pyramids are complementary proportionality-limiting measures available in the business world.
to dual-class share structures insofar as almost any pyramidal control structure can be In our extremely hypothetical public utility corporation with the equity structure as thus
reproduced through dual (or, rather, multiple) share classes. However, for complex control described, since the majority recognized only the 100 common shares as the “capital” referred
structures, the controlling shareholders may prefer pyramids since the underlying shares tend to in the Constitution, the entire economic right to the cash flow arising from the 1,000,000
to be more liquid than stocks split into several classes. (In the remainder of this paper the word non-voting preferred shares can be acquired by foreigners. With this economic power, the
“pyramid” is used jointly to denote truly pyramidal structures and cascading shareholdings.) foreign holders of the minority common shares will, as they easily can, bargain with the holders
Lock-in mechanisms. The other main category of PLMs consists of instruments that lock in of the majority common shares for more corporate control in order to protect their economic
control—that is cut off, or in some cases bolster, the voting rights of common stock. A clear-cut interest and reduce their economic risk in the public utility corporation. For instance, they can
lock-in mechanism is voting right ceilings prohibiting shareholders from easily demand the right to cast the majority of votes during the meeting of the board of
551 directors. After all, money commands control.
The court cannot, and ought not, accept as correct a holding that routinely disregards legal
VOL. 682, OCTOBER 9, 2012 551
and practical considerations as significant as above indicated. Committing an error is bad
Heirs of Wilson P. Gamboa vs. Teves enough, persisting in it is worse.
Hence, if We follow the construction of “capital” in Sec. 11, Art. XII stated in the ponencia of Foreigners can be owners of fully
June 28, 2011 and turn a blind eye to these realities of the business world, this Court may have nationalized industries
veritably put a limit on the foreign ownership of common shares but have indirectly allowed Lest it be overlooked, “capital” is an oft-used term in the Constitution and various legislative
foreigners to acquire greater economic right to the cash flow of public utility corporations, which acts that regulate corporate entities. Hence, the meaning assigned to it within the context of a
is a lever- constitutional provision limiting foreign ownership in corporations can affect corporations
_______________ whose ownership is reserved to Filipinos, or whose foreign equity is limited by law pursuant to
voting about a certain threshold irrespective of the Corporate Affairs Division, Directorate Sec. 10, Art. XII of the Constitution which states:
for Financial and Enterprise Affairs Organisation for Economic Co-operation and Development SECTION 10. The Congress shall, upon recommendation of the economic and planning
2 rue André-Pascal, Paris 75116, France www.oecd.org/daf/corporate-affairs/ number of voting agency, when the national interest dictates, reserve to citizens of the Philippines or to
shares they hold. Secondly, a type of lock-in mechanism that confers greater voting right on corporations
selected shareholders is priority shares, which grant their holders extraordinary power over 553
specific types of corporate decisions. This type of lock-in mechanism, when held by the state, is VOL. 682, OCTOBER 9, 2012 553
commonly referred to as a “golden share.” Finally, company bylaws or national legislation may
contain supermajority provisions according to which a simple majority is insufficient to approve Heirs of Wilson P. Gamboa vs. Teves
certain major corporate changes. or associations at least sixty per centum of whose capital is owned by such citizens, or such higher
Related or complementary instruments. Other instruments, while not themselves sources percentage as Congress may prescribe, certain areas of investments. The Congress shall enact
of disproportionality, may either compound the effect of PLMs or produce some of the same measures that will encourage the formation and operation of enterprises whose capital is wholly
corporate governance consequences as PLMs. One example is cross-shareholdings, which can owned by Filipinos. (Emphasis supplied).
be used to leverage the effectiveness of PLMs and, in consequence, are often an integral part For instance, Republic Act No. 7042, also known as the Foreign Investments Act of
of pyramidal structures. A second such instrument is shareholder agreements that, while their 199175 (FIA), provides for the formation of a Regular Foreign Investment Negative List (RFINL)
effects can be replicated by shareholders acting in concert of their own accord, nevertheless covering investment areas/activities that are partially or entirely reserved to Filipinos. The 8th
add an element of certainty to voting coalitions…” (Lack of Proportionality between Ownership RFINL76provides that “No Foreign Equity” is allowed in the following areas of
and Control: Overview and Issues for Discussion. Issued by the Organisation for Economic Co- investments/activities:
Operation and Development (OECD) Steering Group on Corporate Governance, December 1. Mass Media except recording (Article XVI, Section 1 of the Constitution and
2007, pp. 12-13. Available from http://www.oecd.org/dataoecd/21/32/40038351.pdf, last Presidential Memorandum dated May 4, 1994);
accessed February 7, 2012. See also Clarke, Thomas and Chanlat, Jean Francois. European 2. Practice of all professions (Article XII, Section 14 of the Constitution and Section 1,
Corporate Governance: Readings and Perspectives. (2009) Routledge, New York, p. 33; Report RA 5181);77
Page 50 of 66
_______________ VOL. 682, OCTOBER 9, 2012 555
75 Approved on June 13, 1991, and amended by Republic Act No. 8179.
76 Executive Order No. 858, February 5, 2010. Heirs of Wilson P. Gamboa vs. Teves
77 See also PD 1570 (Aeronautical engineering); RA 8559 (Agricultural Engineering); RA After all, these non-voting shares do not, following the June 28, 2011 Decision, form part
9297 (Chemical engineering); RA 1582 (Civil engineering) RA 7920 (Electrical of the “capital” of these supposedly fully nationalized industries. Consequently, while Filipinos
Engineering); RA 9292 (Electronics and Communication Engineering); RA 8560 can occupy all of the seats in the board of directors of corporations in fully nationalized
(Geodetic Engineering); RA 8495 (Mechanical Engineering); PD 1536 (Metallurgical industries, it is possible for foreigners to own the majority of the equity of the corporations
Engineering); RA 4274 (Mining Engineering); RA 4565 (Naval Architecture and through “non-voting” shares, which are nonetheless allowed to determine fundamental
Marine Engineering); RA 1364 (Sanitary Engineering; RA 2382 as amended by RA corporate matters recognized in Sec. 6 of the Corporation Code. Filipinos may therefore be
4224 (Medicine); RA 5527 as amended by RA 6318, PD 6138, PD 498 and PD 1534 unwittingly deprived of the “effective” ownership of corporations supposedly reserved to them
(Medical Technology); RA 9484 (Dentistry); RA 7392 (Midwifery); RA 9173 by the Constitution and various laws.
(Nursing); PD 1286 (Nutrition and Dietetics); RA 8050 (Optometry); RA 5921 The Foreign Investments Act of 1991
(Pharmacy); RA 5680 (Physical and Occupational Therapy); RA 7431 (Radiologic does not qualify or restrict the
and X-ray Technology); RA 9268 (Veterinary Medicine); RA 9298 (Accountancy); meaning of “capital” in Sec. 11, Art.
RA 9266 (Architecture); RA 6506 (Criminology); RA 754 (Chemistry); RA 9280 XII of the Constitution.
(Customs Brokerage); PD 1308 Nonetheless, Justice Carpio parlays the thesis that the FIA, and its predecessors, the
554 Investments Incentives Act of 1967 (“1967 IIA”),78 Omnibus Investments Code of 1981 (“1981
OIC”),79 and the Omnibus Incentives Code of 1987 (“1987 OIC”),80 (collectively, “Investment
Incentives Laws”) more particularly their definition of the term “Philippine National,”
Heirs of Wilson P. Gamboa vs. Teves constitutes a good guide for ascertaining the intent behind the use of the term “capital” in Sec.
3. Retail trade enterprises with paid-up capital of less than $2,500,000 (Section 5, RA 11, Art. XII―that it refers only to voting shares of public utility corporations.
8762); I cannot share this posture. The Constitution may only be amended through the procedure
4. Cooperatives (Chapter III, Article 26, RA 6938); outlined in the
5. Private Security Agencies (Section 4, RA 5487); _______________
6. Small-scale Mining (Section 3, RA 7076) 78 Republic Act No. 5186, approved on September 16, 1967.
7. Utilization of Marine Resources in archipelagic waters, territorial sea, and exclusive 79 Presidential Decree 1789, Published in the Daily Express dated April 1, 1981 and
economic zone as well as small scale utilization of natural resources in rivers, Amended by Batas Pambansa Blg. 391 otherwise known as “Investment Incentive Policy Act of
lakes, bays, and lagoons (Article XII, Section 2 of the Constitution); 1983,” approved April 28, 1983.
8. Ownership, operation and management of cockpits (Section 5, PD 449); 80 Executive Order (s1987) No. 226, known as the “Omnibus Investments Code of 1987,”
9. Manufacture, repair, stockpiling and/or distribution of nuclear weapons (Article II, approved on July 16, 1987.
Section 8 of the Constitution); 556
10. Manufacture, repair, stockpiling and/or distribution of biological, chemical and 556 SUPREME COURT REPORTS ANNOTATED
radiological weapons and anti-personnel mines (Various treaties to which the
Philippines is a signatory and conventions supported by the Philippines); Heirs of Wilson P. Gamboa vs. Teves
11. Manufacture of fire crackers and other pyrotechnic devices (Section 5, RA 7183). basic document itself.81 An amendment cannot, therefore, be made through the expedience
If the construction of “capital,” as espoused by the June 28, 2011 Decision, were to be of a legislative action that diagonally opposes the clear provisions of the Constitution.
sustained, the reservation of the full ownership of corporations in the foregoing industries to Indeed, the constitutional intent on the equity prescribed by Sec. 11, Art. XII cannot
Filipinos could easily be negated by the simple expedience of issuing and making available non- plausibly be fleshed out by a look through the prism of economic statutes passed after the
voting shares to foreigners. adoption of the Constitution, such as the cited FIA, the Magna Carta for Micro, Small and
_______________ Medium Industries (Republic Act No. 6977) and other kindred laws envisaged to Filipinize
(Environmental Planning); RA 6239 (Forestry); RA 4209 (Geology); RA 8534 (Interior certain areas of investment. It should be the other way around. Surely, the definition of a
Design); RA 9053 (Landscape Architecture); Article VIII, Section 5 of the Constitution, Rule 138, “Philippine National” in the FIA, or for that matter, the 1987 OIC82 could not have influenced
Section 2 of the Rules of Court of the Philippines (Law); RA 9246 (Librarianship); RA 8544 the minds of the 1986 CONCOM or the people when they ratified the Constitution. As
(Marine Deck Officers and Marine Engine Officers); RA 1378 (Master Plumbing); RA 5197 (Sugar heretofore discussed, the primary source whence to ascertain constitutional intent or purpose
Technology); RA 4373 (Social Work); RA 7836 (Teaching); RA 8435 (Agriculture); RA 8550 is the constitutional text, or, to be more precise, the language of the provision itself,83as inquiry
(Fisheries); and RA 9258 (Guidance Counselling). on any controversy arising out of a constitutional provision ought to start and end as much as
555 possible with the provision
Page 51 of 66
_______________ investments”86 because “Filipino investment is not going to be enough [and] we need the
81 Section 1, Article XVII. Any amendment to, or revision of, this Constitution may be support and the assistance of foreign investors x x x.”87 The senator made clear that “the term
proposed by: ‘Philippine national’” means either Filipino citizens or enterprises of which the
(1) The Congress, upon a vote of three-fourths of all its Members; or “total Filipino ownership” is 60 percent or greater, thus:
(2) A constitutional convention. Senator Paterno. May I first say that the term “Philippine national” means either Filipino
Section 2. Amendments to this Constitution may likewise be directly proposed by the citizens or enterprises of which the total Filipino ownership is 60 percent or greater. In other
people through initiative…. words, we are not excluding foreign participation in domestic market enterprises with total
xxx xxx xxx assets of less than P25 million. We are merely limiting foreign participation to not more than 40
Section 4. Any amendment to, or revisions of, this Constitution under Section 1 hereof percent in this definition.88
shall be valid when ratified by a majority vote of the votes cast in a plebiscite which shall be held Even granting, arguendo, that the definition of a “Philippine National” in the FIA was lifted
not earlier than sixty days nor later than ninety days after the approval of such amendment or from the Investment Incentives Laws issued in 1967, 1981, and 1987 that defined “Philippine
revision. National” as a corporation 60% of whose voting stocks is owned by Filipino citizens, such
82 The 1987 OIC was enacted as EO 226 on July 16, 1987, or after the ratification of the definition does not limit or qualify the nationality requirement prescribed for public utility
1987 Constitution. corporations by Sec. 11, Art. XII of the 1987 Constitution. The latter does not refer to the
83 Ang Bagong Bayani v. Commission on Elections, 412 Phil. 308; 359 SCRA 698 (2001). definition of a “Philippine National.” Instead, Sec. 11, Art. XII reiterates the use of
557 the unqualified term “capital” in the 1935 and 1973 Constitutions. In fact, neither the 1973
VOL. 682, OCTOBER 9, 2012 557 Constitutional Convention nor the 1986 CONCOM alluded to the Investment Incentives Laws in
their deliberations on the nationality requirement of public utility corporations. With the
Heirs of Wilson P. Gamboa vs. Teves unequivocal rejection of the UP Law Center proposal to use the qualifying “voting stock or
itself.84 Legislative enactments on commerce, trade and national economy must be so construed, controlling interest,” the non-consideration of the Investment Incentives Laws means that these
when appropriate, to determine whether the purpose underlying them is in accord with the laws are not pertinent to the issue of the Filipino-foreign capital ratio in public utility
policies and objectives laid out in the Constitution. Surely, a law cannot validly broaden or restrict corporations.
the thrust of a constitutional provision unless expressly sanctioned by the Constitution itself. And _______________
the Court may not read into the Constitution an intent or purpose that is not there. Any attempt 86 Record of the Senate, Vol. II, No. 57, p. 1965.
to enlarge the breadth of constitutional limitations beyond what its provision dictates should 87 Id., at p. 1964.
be stricken down. 88 Id., Vol. 3, No. 76, p. 205.
In fact, it is obvious from the FIA itself that its framers deemed it necessary to qualify the 559
term “capital” with the phrase “stock outstanding and entitled to vote” in defining a “Philippine
VOL. 682, OCTOBER 9, 2012 559
National” in Sec. 3(a). This only supports the construal that the term “capital,” standing alone
as in Sec. 11, Art. XII of the Constitution, applies to all shares, whether classified as voting or Heirs of Wilson P. Gamboa vs. Teves
non-voting, and this is the interpretation in harmony with the Constitution. Besides, none of the Investment Incentives Laws defining a “Philippine National” has sought
In passing the FIA, the legislature could not have plausibly intended to restrict the 40% to expand or modify the definition of “capital,” as used in the Constitutions then existing. The
foreign ownership limit imposed by the Constitution on all capital stock to only voting stock. definition of a “Philippine National” in these laws was, to stress, only intended to identify the
Precisely, Congress enacted the FIA to liberalize the laws on foreign investments. Such intent is corporations qualified for registration to avail of the incentives prescribed therein. The
at once apparent in the very title of the statute, i.e., “An Act to Promote Foreign Investments,” definition was not meant to find context outside the scope of the various Investment Incentives
and the policy: “attract, promote and welcome productive investments from foreign individuals, Laws, much less to modify a nationality requirement set by the then existing Constitution. This
partnerships, corporations, and government,”85expresses the same. much is obvious in the very heading of the first of these Investment Incentives Laws, 1967 IIA:
The Senate, through then Senator Vicente Paterno, categorically stated that the FIA is SECTION 3. Definition of Terms.—For purposes of this Act:
aimed at “liberalizing foreign xxxx
_______________ (f) “Philippine National” shall mean a citizen of the Philippines; or a partnership or association
84 See Dissenting Opinion of Justice Padilla in Romualdez-Marcos v. Commission on wholly owned by citizens of the Philippines; or a corporation organized and existing under the
Elections, G.R. No. 119976, September 18, 1995, 248 SCRA 300, 369. laws of the Philippines of which at least sixty per cent of the capital stock outstanding and
85 Republic Act No. 7042, Section 2. entitled to vote is owned and held by citizens of the Philippines xxxx (Emphasis and underscoring
558 supplied.)
558 SUPREME COURT REPORTS ANNOTATED Indeed, the definition of a “Philippine National” in the FIA cannot apply to the ownership
structure of enterprises applying for, and those granted, a franchise to operate as a public utility
Heirs of Wilson P. Gamboa vs. Teves under Sec. 11, Art. XII of the Constitution. As aptly observed by the SEC, the definition of a
Page 52 of 66
“Philippine National” provided in the FIA refers only to a corporation that is permitted to invest limited aspect of the right to control the composition of the board of directors, the Court could
in an enterprise as a Philippine citizen (investor-corporation). The FIA does not prescribe the very well be depriving Filipinos of the majority economic interest in the public utility corporation
equity ownership structure of the enterprise granted the franchise or the power to operate in a and, thus, the effective control and ownership of such corporation.
fully or partially nationalized industry(investee-corporation). This is apparent from the FIA itself, The Court has no jurisdiction over
which also defines the act of an “investment” and “foreign investment”: PLDT and foreign stockholders who
Section 3. Definitions.—As used in this Act: are indispensable parties in interest
560 More importantly, this Court cannot apply a new doctrine adopted in a precedent-setting
560 SUPREME COURT REPORTS ANNOTATED decision to parties that have
_______________
Heirs of Wilson P. Gamboa vs. Teves 91 As early as 1932, Adolf A. Berle and Gardine C. Means in their book “The Modern
a) The term “Philippine national” shall mean a citizen of the Philippines, or a domestic Corporation and Private Property” explained that the large business corporation is
partnership or association wholly owned by citizens of the Philippines; or a corporation characterized by “separation of ownership and control.” See also Hu, Henry T.C. and Black,
organized under the laws of the Philippines of which at least sixty percent [60%] of the capital Bernard S., Empty Voting and Hidden (Morphable) Ownership: Taxonomy, Implications, and
stock outstanding and entitled to vote is owned and held by citizens of the Philippines x x x Reforms. As published in Business Lawyer, Vol. 61, pp. 1011-1070, 2006; European Corporate
b) The term “investment” shall mean equity participation in any enterprise organized or Governance Institute - Law Research Paper No. 64/2006; University of Texas Law, Law and
existing the laws of the Philippines; Economics Research Paper No. 70. Available at SSRN: http://ssrn.com/abstract=887183; Ringe,
c) The term “foreign investment” shall mean as equity investment made by a non-Philippine Wolf-Georg, Deviations from Ownership-Control Proportionality - Economic Protectionism
national in the form of foreign exchange and/or other assets actually transferred to the Revisited (2010). COMPANY LAW AND ECONOMIC PROTECTIONISM – NEW CHALLENGES TO
Philippines and duly registered with the Central Bank which shall assess and appraise the value EUROPEAN INTEGRATION, U. Bernitz and W.G. Ringe, eds., OUP, 2010; Oxford Legal Studies
of such assets other than foreign exchange. Research Paper No. 23/2011. Available at SSRN: http://ssrn.com/abstract=1789089.
In fact, Sec. 7 of the FIA, as amended, allows aliens or non-Philippine nationals to own an 562
enterprise up to the extent provided by the Constitution, existing laws or the FINL:
Sec. 7. Foreign investments in domestic market enterprises.—Non-Philippine nationals
may own up to one hundred percent [100%] of domestic market enterprises unless foreign Heirs of Wilson P. Gamboa vs. Teves
ownership therein is prohibited or limited by the Constitution and existing laws or the Foreign never been given the chance to present their own views on the substantive and factual issues
Investment Negative List under Section 8 hereof. (Emphasis supplied.) involved in the precedent-setting case.
Hence, pursuant to the Eight Regular FINL, List A, the foreign “equity” is up to 40% in enterprises To recall, the instant controversy arose out of an original petition filed in February 2007 for,
engaged in the operation and management of public utilities while the remaining 60% of among others, declaratory relief on Sec. 11, Art. XII of the 1987 Constitution “to clarify the intent
the “equity” is reserved to Filipino citizens and “Philippine Nationals” as defined in Sec. 3(a) of of the Constitutional Commission that crafted the 1987 Constitution to determine the very
the FIA. Notably, the term “equity” refers to the “ownership interest in… a business”89 or a nature of such limitation on foreign ownership.”92
“share in a publicly traded company,”90 and not to the “controlling” or “management” interest The petition impleaded the following personalities as the respondents: (1) Margarito B.
in a Teves, then Secretary of Finance and Chair of the Privatization Council; (2) John P. Sevilla, then
_______________ undersecretary for privatization of the Department of Finance; (3) Ricardo Abcede,
89 Black’s Law Dictionary, 9th Ed., for the iPhone/iPad/iPod touch. Version: 2.1.0 (B12136), commissioner of the Presidential Commission on Good Government; (4) Anthoni Salim, chair of
p. 619. First Pacific Co. Ltd. and director of Metro Pacific Asset Holdings, Inc. (MPAH); (5) Manuel V.
90 Id. Pangilinan, chairman of the board of PLDT; (6) Napoleon L. Nazareno, the president of PLDT; (7)
561 Fe Barin (Barin), then chair of the SEC; and (8) Francis Lim (Lim), then president of the PSE.
VOL. 682, OCTOBER 9, 2012 561 Notably, neither PLDT itself nor any of its stockholders were named as respondents in the
petition, albeit it sought from the Court the following main reliefs:
Heirs of Wilson P. Gamboa vs. Teves 5. x x x to issue a declaratory relief that ownership of common or voting shares is the sole
company. It necessarily includes all and every share in a corporation, whether voting or non- basis in determining foreign equity in a public utility and that any other government rulings,
voting. opinions, and regulations inconsistent with this declaratory relief be declared as
Again, We must recognize the distinction of the separate concepts of “ownership” and unconstitutional and a violation of the intent and spirit of the 1987 Constitution;
“control” in modern corporate governance in order to realize the intent of the framers of our 6. x x x to declare null and void all sales of common stocks to foreigners in excess of 40
Constitution to reserve for Filipinos the ultimate and all-encompassing control of public utility percent of the total subscribed common shareholdings; and
entities from their daily administration to the acts of ownership enumerated in Sec. 6 of the _______________
Corporation Code.91 As elucidated, by equating the word “capital” in Sec. 11, Art. XII to the 92 Rollo, p. 11.
Page 53 of 66
563 the trial court is not a decision in the contemplation of law and, hence, it can never become final
VOL. 682, OCTOBER 9, 2012 563 and executory.
Rule 3, Section 7 of the Rules of Court, defines indispensable parties as parties-in-interest
Heirs of Wilson P. Gamboa vs. Teves without whom there can be no final determination of an action. As such, they must be joined
7. x x x to direct the [SEC] and [PSE] to require PLDT to make a public disclosure of all of either as plaintiffs or as defendants. The general rule with reference to the making of parties in
its foreign shareholdings and their actual and real beneficial owners.” a civil action requires, of course, the joinder of all necessary parties where possible, and the
Clearly, the petition seeks a judgment that can adversely affect PLDT and its foreign joinder of all indispensable parties under any and all conditions, their presence being a sine qua
shareholders. If this Court were to accommodate the petition’s prayer, as the majority did in non for the exercise of judicial power. It is precisely “when an indispensable party is not before
the June 28, 2011 Decision and proposes to do presently, PLDT stands to lose its franchise, while the court (that) the action should be dismissed.” The absence of an indispensable party renders
the foreign stockholders will be compelled to divest their voting shares in excess of 40% of all subsequent
PLDT’s voting stock, if any, even at a loss. It cannot, therefore, be gainsaid that PLDT and its _______________
foreign shareholders are indispensable parties to the instant case under the terms of Secs. 2 94 Regalado, Remedial Law Compendium, p. 91.
and 7, Rule 3 of the Rules of Civil Procedure, which read: 95 G.R. No. 102900, October 2, 1997, 280 SCRA 20.
Section 2. Parties in interest.—Every action must be prosecuted and defended in the name of 565
the real party in interest. All persons having an interest in the subject of the action and in
VOL. 682, OCTOBER 9, 2012 565
obtaining the relief demanded shall be joined as plaintiffs. All persons who claim an interest in
the controversy or the subject thereof adverse to the plaintiff, or who are necessary to a Heirs of Wilson P. Gamboa vs. Teves
complete determination or settlement of the questions involved therein, shall be joined as actions of the court null and void for want of authority to act, not only as to the absent parties
defendants. but even as to those present.96
xxxx Hence, the June 28, 2011 Decision having been rendered in a case where the indispensable
Section 7. Compulsory joinder of indispensable parties.—Parties in interest without whom no parties have not been impleaded, much less summoned or heard, cannot be given any effect
final determination can be had of an action shall be joined either as plaintiffs or defendants. and is, thus, null and void. Ergo, the assailed June 28, 2011 Decision is virtually a useless
Yet, again, PLDT and its foreign shareholders have not been given notice of this petition to judgment, at least insofar as it tends to penalize PLDT and its foreign stockholders. It cannot
appear before, much less heard by, this Court. Nonetheless, the majority has allowed such bind and affect PLDT and the foreign stockholders or be enforced and executed against them.
irregularity in contravention of the settled jurisprudence that an action cannot proceed unless It is settled that courts of law “should not render judgments which cannot be enforced by any
indispensable parties are joined93 since the non-joinder of these indispensable parties process known to the law,”97 hence, this Court should have refused to give cognizance to the
_______________ petition.
93 Cortez v. Avila, 101 Phil. 705 (1957); Borlasa v. Polistico, 47 Phil. 345 (1925). The ineffectivity caused by the non-joinder of the indispensable parties, the deprivation of
564 their day in court, and the denial of their right to due process, cannot be cured by the sophistic
564 SUPREME COURT REPORTS ANNOTATED expedience of naming PLDT in the fallo of the decision as a respondent. The dispositive portion
of the June 28, 2011 Decision all the more only highlights the unenforceability of the majority’s
Heirs of Wilson P. Gamboa vs. Teves disposition and serves as an implied ad-
deprives the court the jurisdiction to issue a decision binding on the indispensable parties that _______________
have not been joined or impleaded. In other words, if an indispensable party is not impleaded, 96 Id.; citing Echevarria v. Parsons Hardware Co., 51 Phil. 980, 987 (1927); Borlasa v.
any personal judgment would have no effectiveness94 as to them for the tribunal’s want of Polistico, 47 Phil. 345, 347 (1925); People et al. v. Hon. Rodriguez, et al., 106 Phil. 325, 327
jurisdiction. (1959), among others. Emphasis and underscoring supplied.
In Arcelona v. Court of Appeals,95 We explained that the basic notions of due process require 97 Board of Ed. of City of San Diego v. Common Council of City of San Diego, 1 Cal.App. 311,
the observance of this rule that refuses the effectivity of a decision that was rendered despite 82 P. 89, Cal.App. 2 Dist. 1905, July 13, 1905 citing Johnson v. Malloy, 74 Cal. 432. See
the non-joinder of indispensable parties: also Kilberg v. Louisiana Highway Commission, 8 La.App. 441 cited in Perry v. Louisiana Highway
[B]asic considerations of due process, however, impel a similar holding in cases involving Commission, 164 So. 335 La.App. 2 Cir. 1935, December 13, 1935 and Oregon v. Louisiana Power
jurisdiction over the persons of indispensable parties which a court must acquire before it can & Light Co., 19 La.App. 628, 140 So. 282; Succession of Carbajal, 154 La. 1060, 98 So. 666 (1924)
validly pronounce judgments personal to said defendants. Courts acquire jurisdiction over a cited in In re Gulf Oxygen Welder’s Supply Profit Sharing Plan and Trust Agreement 297 So.2d
party plaintiff upon the filing of the complaint. On the other hand, jurisdiction over the person 663 LA 1974, July 1, 1974.
of a party defendant is assured upon the service of summons in the manner required by law or 566
otherwise by his voluntary appearance. As a rule, if a defendant has not been summoned, the
court acquires no jurisdiction over his person, and a personal judgment rendered against such
defendant is null and void. A decision that is null and void for want of jurisdiction on the part of Heirs of Wilson P. Gamboa vs. Teves
Page 54 of 66
mission of this Court’s lack of jurisdiction over the persons of PLDT and its foreign stockholders history. Due process is that which comports with the deepest notions of what is fair and right and
when it did not directly order the latter to dispose the common shares in excess of the 40% just. It is a constitutional restraint on the legislative as well as on the executive
limit. Instead, it took the circuitous route of ordering the SEC, in the fallo of the assailed _______________
decision, “to apply this definition of the term ‘capital’ in determining the extent of allowable 101 Lopez v. Director of Lands, 47 Phil. 23, 32 (1924); emphasis supplied.
ownership in respondent PLDT and, if there is a violation of Sec. 11, Art. XII of the Constitution, 102 Banco Español Filipino v. Palanca, 37 Phil. 921, 934 (1918).
to impose the appropriate sanctions under the law.”98 103 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
Clearly, since PLDT and the foreign stockholders were not impleaded as indispensable parties 568
to the case, the majority would want to indirectly execute its decision which it could not execute 568 SUPREME COURT REPORTS ANNOTATED
directly. The Court may be criticized for violating the very rules it promulgated and for trenching
the provisions of Sec. 5, Art. VIII of the Constitution, which defines the powers and jurisdiction of Heirs of Wilson P. Gamboa vs. Teves
this Court. and judicial powers of the government provided by the Bill of Rights.104
It is apropos to stress, as a reminder, that the Rules of Court is not a mere body of technical Parenthetically, the present petition partakes of a collateral attack on PLDT’s franchise as a
rules that can be disregarded at will whenever convenient. It forms an integral part of the basic public utility. Giving due course to the recourse is contrary to the Court’s ruling in PLDT v.
notion of fair play as expressed in this Constitutional caveat: “No person shall be deprived of National Telecommunications Commission,105 where We declared a franchise to be a property
life, liberty or property without due process of law,”99 and obliges this Court, as well as other right that can only be questioned in a direct proceeding.106 Worse, the June 28, 2011
courts and tribunals, to hear a person first before rendering a judgment for or against him. As Decision facilitates and guarantees the success of that unlawful attack by allowing it to be
Daniel Webster explained, “due process of law is more clearly intended the general law, a law undertaken in the absence of PLDT.
which hears before it condemns; which proceeds upon enquiry, and renders judgment only The Philippine Government is barred by
after trial.”100The principle of due process of law “contemplates notice and opportunity to be estoppel from ordering foreign investors
heard before judgment is to divest voting shares in public utilities
_______________ in excess of the 40 percent cap
98 Gamboa v. Teves, G.R. No. 176579, June 28, 2011, 652 SCRA 690, 744. The Philippine government’s act of pushing for and approving the sale of the PTIC shares,
99 Section 1, Article III, 1987 Constitution. which is equivalent to 12 million PLDT common shares, to foreign investors precludes it from
100 Oscar Palma Pagasian v. Cesar Azura, A.M. No. RTJ-89-425, April 17, 1990, 184 SCRA asserting that the purchase violates the Constitutional limit on foreign ownership of public
391. utilities so that the foreign investors must now divest the common PLDT shares bought. The
567 elementary principle that a person is prevented from going back on his own act or
representation to the prejudice of another who relied thereon107 finds application in the
VOL. 682, OCTOBER 9, 2012 567
present case.
rendered, affecting one’s person or property.”101 Thus, this Court has stressed the strict 104 G.R. No. 158693, November 17, 2004, 442 SCRA 573. Emphasis supplied.
observance of the following requisites of procedural due process in judicial proceedings in order 105 G.R. No. 84404, October 18, 1990, 190 SCRA 717.
to comply with this honored principle: 106 Id., at p. 729.
(1) There must be a court or tribunal clothed with judicial power to hear and 107 PNB v. Palma, G.R. No. 157279, August 9, 2005, 466 SCRA 307; citing Laurel v. Civil
determine the matter before it; Service Commission, G.R. No. 71562, October 28, 1991, 203 SCRA 195; Stokes v. Malayan
(2) Jurisdiction must be lawfully acquired over the person of the defendant or over Insurance Inc., 212 Phil. 705; 127 SCRA 766 (1984); Medija v. Patcho, 217 Phil. 509; 132 SCRA
the property which is the subject of the proceedings; 540 (1984); Llacer v. Muñoz, 12 Phil. 328 (1908).
(3) The defendant must be given an opportunity to be heard; and 569
(4) Judgment must be rendered upon lawful hearing.102 VOL. 682, OCTOBER 9, 2012 569
Apparently, not one of these requisites has been complied with before the June 28, 2011
Decision was rendered. Instead, PLDT and its foreign stockholders were not given their day in Heirs of Wilson P. Gamboa vs. Teves
court, even when they stand to lose their properties, their shares, and even the franchise to Art. 1431 of the Civil Code provides that an “admission or representation is rendered
operate as a public utility. This stands counter to our discussion in Agabon v. NLRC,103 where We conclusive upon the person making it, and cannot be denied or disproved as against a person
emphasized that the principle of due process comports with the simplest notions of what is fair relying thereon.” This rule is supported by Section 2(a) of Rule 131 of the Rules of Court on the
and just: burden of proof and presumptions, which states:
To be sure, the Due Process Clause in Article III, Section 1 of the Constitution embodies a system Section 2. Conclusive presumptions.—The following are instances of conclusive
of rights based on moral principles so deeply imbedded in the traditions and feelings of our presumptions:
people as to be deemed fundamental to a civilized society as conceived by our entire
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(a) Whenever a party has, by his own declaration, act, or omission, intentionally and Similarly, in Ramos v. Central Bank of the Philippines,111 this Court berated the government
deliberately led another to believe a particular thing true, and to act upon such belief, he for reneging on
cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify _______________
it. 110 Citing 31 CJS 675-676; Republic v. Sandiganbayan, G.R. No. 108292, September 10,
The government cannot plausibly hide behind the mantle of its general immunity to resist 1993, 226 SCRA 314.
the application of this equitable principle for “[t]he rule on non-estoppel of the government is 111 No. L-29352, October 4, 1971, 41 SCRA 565; see also San Roque Realty and
not designed to perpetrate an injustice.”108 Hence, this Court has allowed several exceptions to Development Corporation v. Republic of the Phil-
the rule on the government’s non-estoppel. As succinctly explained in Republic of the Philippines 571
v. Court of Appeals:109 VOL. 682, OCTOBER 9, 2012 571
The general rule is that the State cannot be put in estoppel by the mistakes or errors of its
officials or agents. However, like all general rules, this is also subject to exceptions, viz.: Heirs of Wilson P. Gamboa vs. Teves
“Estoppel against the public are little favored. They should not be invoked except its representations and urged it to keep its word, viz.:
in rare and unusual circumstances and may not be invoked where they would operate Even in the absence of contract, the record plainly shows that the CB [Central Bank] made
to defeat the effective operation of a policy adopted to protect the public. They must express representations to petitioners herein that it would support the OBM [Overseas Bank of
be applied with circumspection and should be applied only in those special cases where Manila], and avoid its liquidation if the petitioners would execute (a) the Voting Trust
the interests of justice clearly require it. Nevertheless, the government must not be Agreement turning over the management of OBM to the CB or its nominees, and (b) mortgage
allowed to deal dishonorably or capriciously with or assign their properties to the Central Bank to cover the overdraft balance of OBM. The
_______________ petitioners having complied with these conditions and parted with value to the profit of the CB
108 Leca Realty Corporation v. Republic of the Philippines, represented by the Department (which thus acquired additional security for its own advances), the CB may not now renege on
of Public Works and Highways, G.R. No. 155605, September 27, 2006, 503 SCRA 563. its representations and liquidate the OBM, to the detriment of its stockholders, depositors and
109 G.R. No. 116111, January 21, 1999, 301 SCRA 366. other creditors, under the rule of promissory estoppel (19 Am. Jur., pages 657-658; 28 Am. Jur.
570 2d, 656- 657; Ed. Note, 115 ALR, 157).
“The broad general rule to the effect that a promise to do or not to do something
in the future does not work an estoppel must be qualified, since there are numerous
Heirs of Wilson P. Gamboa vs. Teves cases in which an estoppel has been predicated on promises or assurances as to future
its citizens, and must not play an ignoble part or do a shabby thing; and subject to conduct. The doctrine of ‘promissory estoppel’ is by no means new, although the name
limitations . . ., the doctrine of equitable estoppel may be invoked against public has been adopted only in comparatively recent years. According to that doctrine, an
authorities as well as against private individuals.” estoppel may arise from the making of a promise even though without consideration,
In Republic v. Sandiganbayan, the government, in its effort to recover ill-gotten wealth, if it was intended that the promise should be relied upon and in fact it was relied upon,
tried to skirt the application of estoppel against it by invoking a specific constitutional provision. and if a refusal to enforce it would be virtually to sanction the perpetration of fraud or
The Court countered: would result in other injustice. In this respect, the reliance by the promises is generally
“We agree with the statement that the State is immune from estoppel, but this evidenced by action or forbearance on his part, and the idea has been expressed that
concept is understood to refer to acts and mistakes of its officials especially those which such action or forbearance would reasonably have been expected by the promisor.
are irregular (Sharp International Marketing vs. Court of Appeals, 201 SCRA 299; 306 Mere omission by the promisee to do whatever the promisor promised to do has been
[1991]; Republic v. Aquino, 120 SCRA 186 [1983]), which peculiar circumstances are held insufficient ‘forbearance’ to give rise to a promissory estoppel.” (19 Am.
absent in the case at bar. Although the State’s right of action to recover ill-gotten Jur., loc. cit.)
wealth is not vulnerable to estoppel[;] it is non sequitur to suggest that a contract, freely _______________
and in good faith executed between the parties thereto is susceptible to disturbance ad ippines (through the Armed Forced of the Philippines), G.R. No. 155605, September 27,
infinitum. A different interpretation will lead to the absurd scenario of permitting a party 2006, 503 SCRA 563.
to unilaterally jettison a compromise agreement which is supposed to have the authority 572
of res judicata (Article 2037, New Civil Code), and like any other contract, has the force 572 SUPREME COURT REPORTS ANNOTATED
of law between parties thereto (Article 1159, New Civil Code; Hernaez vs. Kao, 17 SCRA
296 [1966]; 6 Padilla, Civil Code Annotated, 7th ed., 1987, p. 711; 3 Aquino, Civil Code, Heirs of Wilson P. Gamboa vs. Teves
1990 ed., p. 463) . . .” The exception established in the foregoing cases is particularly appropriate presently since
The Court further declared that “(t)he real office of the equitable norm of estoppel is limited the “indirect” sale of PLDT common shares to foreign investors partook of a propriety business
to supply[ing] deficiency in the law, but it should not supplant positive law.” 110 (Emphasis transaction of the government which was not undertaken as an incident to any of its
supplied.) governmental functions. Accordingly, the government, by concluding the sale, has descended
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to the level of an ordinary citizen and stripped itself of the vestiges of immunity that is available Verstraete, with 29,744 common shares.
in the performance of governmental acts.112 (http://www.pldt.com.ph/investor/Documents/GIS_(as%20of%2006%2029%2012)_final.pdfla
Ergo, the government is vulnerable to, and cannot hold off, the application of the principle st accessed September 25, 2012)
of estoppel that the foreign investors can very well invoke in case they are compelled to divest 114 1992 Agreement Between the Government of The People’s Republic Of China and The
the voting shares they have previously acquired through the inducement of no less the Government of the Republic of the Philippines Concerning Encouragement and Reciprocal
government. In other words, the government is precluded from penalizing these alien investors Protection of
for an act performed upon its guarantee, through its facilities, and with its imprimatur. 574
Under the “fair and equitable treatment” 574 SUPREME COURT REPORTS ANNOTATED
clause of our bilateral investment trea-
ties and fair trade agreements, foreign Heirs of Wilson P. Gamboa vs. Teves
investors have the right to rely on the ance is in the Agreement on Investment of the Framework Agreement on Comprehensive
same legal framework existing at the Economic Cooperation Between the Association of Southeast Asian Nations and the People’s
time they made their investments. Republic of China (ASEAN-China Investment Agreement)115 where the Philippines assured
Not only is the government put in estoppel by its acts and representations during the sale of Chinese investors that the country “shall accord to [them] fair and equitable treatment and full
the PTIC shares to MPAH, it is likewise bound by its guarantees in the Bilateral Invest- protection and security.”116In the same manner, the Philippines agreed to “accord investments
_______________ [made by Japanese investors] treatment in accordance with international law, including fair and
112 Republic v. Vinzon, G.R. No. 154705, June 26, 2003, 405 SCRA 126; Air Transportation equitable treatment and full protection and security”117in the Agreement between the Republic
Office v. David and Ramos, G.R. No. 159402, February 23, 2011, 644 SCRA 36. See also Minucher of the Philippines and Japan for Economic Partnership (JPEPA).118
v. Court of Appeals, G.R. No. 142396, February 11, 2003, 397 SCRA 244 citing Gary L. Similar provisions are found in the ASEAN Comprehensive Investment Agreement
Maris’, ‘International Law, An Introduction,’ University Press of America, 1984, p. 119; D.W. (ACIA)119 and the BITs concluded by the Philippines with, among others, the Argentine
Grieg, ‘International Law,’ London Butterworths, 1970, p. 221. Republic,120
573 _______________
Investments, Signed in Manila, Philippines on July 20, 1992. Emphasis and underscoring
VOL. 682, OCTOBER 9, 2012 573
supplied.
Heirs of Wilson P. Gamboa vs. Teves 115 January 14, 2007.
ment Treaties (BITs) and Free Trade Agreements (FTAs) with other countries. 116 ASEAN-China Investment Agreement, Article 7(1), emphasis and underscoring
To date, the Philippines has concluded numerous BITs and FTAs to encourage and facilitate supplied. See also the ASEAN-Korea Investment Agreement, Article 5 (1).
foreign direct investments in the country. These BITs and FTAs invariably contain guarantees 117 JPEPA, Article 91. Emphasis and underscoring supplied.
calculated to ensure the safety and stability of these foreign investments. Foremost of these is 118 Signed on September 9, 2006.
the commitment to give fair and equitable treatment (FET) to the foreign investors and 119 ACIA, Article II (1) requires that the parties thereto must give “investments of investors
investments in the country. of [the other parties] fair and equitable treatment and full protection and security.” Emphasis
Take for instance the BIT concluded between the Philippines and China,113 Article 3(1) and underscoring supplied.
thereof provides that “investments and activities associated with such investments of investors 120 Article III (1)―Each Contracting Party shall at all times ensure fair and equitable
of either Contracting Party shall be accorded equitable treatment and shall enjoy protection in treatment of the investments by investors of the other Contracting Party and shall not impair
the territory of the other Contracting Party.”114 The same assur- the management, maintenance, use, enjoyment or disposal thereof, through unjustified and
_______________ discriminatory measures. (Emphasis and underscoring supplied.)
113 Particularly relevant in the case of PLDT whose biggest group of foreign shareholders 575
is Chinese, followed by the Japanese and the Americans. Per the General Information Sheet VOL. 682, OCTOBER 9, 2012 575
(GIS) of PLDT as of June 14, 2012, the following are the foreign shareholders of PLDT: (1) Hong
Kong based J.P. Morgan Asset Holdings (HK) Limited owns 49,023,801 common shares Heirs of Wilson P. Gamboa vs. Teves
[including 8,533,253, shares of PLDT common stock underlying ADS beneficially owned by NTT Australia,121 Austria,122 Bangladesh,123 Belgium,124Cambodia,125 Canada,126 Chile,127 the Czech
DoCoMo and 7,653,703 shares of PLDT common stock underlying ADS beneficially-owned by Republic,128Denmark,129
non-Philippine wholly-owned subsidiaries of First Pacific Company, Limited]; the Japanese firms, _______________
(2) NTT DoCoMo, Inc. holding 22,796,902 common shares; (3) NTT Communications 121 Article 3(2) thereof provides that the Philippines “shall ensure that [Australian]
Corporation with 12,633,487 common shares; and the Americans, (4) HSBC OBO A/C 000- investments are accorded fair and equitable treatment.”
370817-550 with 2,690,316 common shares; (5) Edward Tortorici and/or Anita R. Tortorici with 122 Article 2 (1)―Each Contracting Party shall in its territory promote, as far as possible,
96,874 common shares; (6) Hare and Co., holding 34,811 common shares; and (7) Maurice investments of investors of the other Contracting Party, admit such investments in accordance
Page 57 of 66
with its legislation and in any case accord such investments fair and equitable treatment. 134 Article II (2)―Investments of investors of either Contracting party shall at all times be
(Emphasis and underscoring supplied.) accorded fair and equitable treatment and shall enjoy adequate protection and security in the
123 Article III (1)―Investments and returns of investors of each Contracting Party shall at territory of the other Contracting Party. (Emphasis and underscoring supplied)
all times be accorded fair and equitable treatment and shall enjoy full protection and security 135 Article 4(1)―Admitted investments of investors of one Contracting Party effected
in the territory of the other Contracting Party. (Emphasis and underscoring supplied.) within the territory of the other Contracting Party in accordance with the laws and regulations
124 Article II―Each Contracting Party shall promote investments in its territory by investors of the latter, shall receive in the other Contracting Party full legal protection and fair
of the other Contracting Party and shall admit such investments in accordance with its treatment not less favourable than that accorded to its own investor or investors of any third
Constitution, laws, and regulations. Such investments shall be accorded fair and equitable state which are in a comparable situation.
treatment. (Emphasis and underscoring supplied.) 136 Article I―Each Contracting Party shall promote as far as possible the investments in its
125 Article II (2)―Investments of nationals of either Contracting Partyshall at all times be territory by investors of the other Contracting party admit such investments according to its
accorded fair and equitable treatment and shall enjoy adequate protection and security in the laws and regulations and accord such investments equitable and reasonable treatment.
territory of the other Contracting Party. (Emphasis and underscoring supplied.) (Emphasis and underscoring supplied)
126 Article II (2)―Each Contracting Party shall accord investments or returns of investors 137 Article IV (2)―Each Contracting Party shall ensure fair and equitable treatment within
of the other Contracting Party [:] (a) fair and equitable treatment in accordance with the its territory of the investments of the investors of the other Contracting Party… (Emphasis and
principles of international law, and (b) full protection and security. (Emphasis and underscoring underscoring supplied)
supplied.) 138 Article I (1)―Each Contracting Party shall promote as far as possible investments in its
127 Article IV (1)―Each Contracting Party shall guarantee fair and equitable treatment to territory by nationals and companies of one Contracting Party and shall admit such investments
investments made by investors of the other Contracting Party on its territory and shall ensure in accordance with its Constitution, laws and regulations. Such investments shall be accorded
that the exercise of the right thus recognized shall not be hindered in practice. (Emphasis and equitable and reasonable treatment. (Emphasis and underscoring supplied)
underscoring supplied.) 577
128 Article II (2)―Investment[s[] of investors of [the] other Contracting Party shall at all VOL. 682, OCTOBER 9, 2012 577
times be accorded fair and equitable treatment and enjoy full protection and security in the
territory of the other Contracting Party. (Emphasis and underscoring supplied.) Heirs of Wilson P. Gamboa vs. Teves
129 Article III (1)―Each Contracting Party shall accord to investments made by investors of lands,139 Pakistan,140 Portuguese Republic,141 Romania,142 Russia,143 Saudi
the other Contracting Party fair and equitable treatment. (Emphasis and underscoring supplied.) Arabia,144 Spain,145Sweden,146 Switzer-
576 _______________
139 Article 3 (2)―Investments of nationals of either Contracting Party shall, in their entry,
operation, management, maintenance, use enjoyment or disposal, be accorded fair and
Heirs of Wilson P. Gamboa vs. Teves equitable treatment and shall enjoy full protection and security in the territory of the other
Finland,130 France,131 Germany,132 India,133 Indonesia,134 Iran,135 Italy,136 Mongolia,137 Myan Contracting party. (Emphasis and underscoring supplied)
mar,138Nether- 140 Article I―Each Contracting Party shall promote as far as possible investments in its
_______________ territory by investors of the other Contracting Party and shall admit such investments in
130 Article 3(1)―Each Contracting Party shall guarantee fair and equitable treatment to accordance with its Constitution, laws, and regulations. Such investments shall be accorded
investments made by investors of the other Contracting Party in its territory. Emphasis and equitable and reasonable treatment. (Emphasis supplied)
underscoring supplied.) 141 Article 2(1)―Each contracting party shall promote and encourage, as far as possible,
131 Article 3―Either Contracting Party shall extend fair and equitable treatment in within its territory investments made by investors of the other Contracting Party and shall admit
accordance with the principles of International Law to investments made by nationals and such investments into its territory in accordance with its laws and regulations. It shall in any
companies of the other Contracting Party in its territory and shall ensure that the exercise of case accord such investments fair and equitable treatment. (Emphasis and underscoring
the right thus recognized shall not be hindered. Emphasis and underscoring supplied.) supplied)
132 Article 2 (1)―Each Contracting State shall promote as far as possible investments in its 142 Article 2(3)―Each Contracting Party undertakes to provide in its territory a fair and
territory by investors of the other Contracting Party and admit such investments in accordance equitable treatment for investments of investors of the other Contracting Party. Neither
with its Constitution, laws and regulations as referred to in Article 1 paragraph 1. Such Contracting Party shall in any way impair by arbitrary, unreasonable or discriminatory measures
investments shall be accorded fair and equitable treatment. (Emphasis and underscoring the management, maintenance or use of investments as well as the right to the disposal thereof.
supplied.) (Emphasis and underscoring supplied)
133 Article IV (1)―Each Contracting Party shall accord fair and equitable treatment to 143 Article III (1)―Each Contracting Party shall ensure in its territoryfair and equitable
investments made by investors of the other Contracting Party in its territory. (Emphasis and treatment of the investments made by the investor of the other Contracting Party and any
underscoring supplied) activities in connection with such investments exclude the use of discriminatory measures that
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might hinder management and administration of investments. (Emphasis and underscoring VOL. 682, OCTOBER 9, 2012 579
supplied)
144 Article @ (1)―Each Contracting Party shall in its territory promote as far as possible Heirs of Wilson P. Gamboa vs. Teves
investments by investors of the other Contracting Party and admit such investments in the concept of legality is the unifying theory behind the fair and equitable treatment
accordance with its legislation. It shall in any case accord such investments free and equitable standard.
treatment. (Emphasis supplied) xxxx
145 Article II―Each party shall promote, as far as possible, investments in its territory by Thus, international arbitral awards interpreting the fair and equitable treatment standard
investors of the other Party and shall admit such investments in accordance with its existing have incorporated the substantive and procedural principles of the rule of law into that
laws and regulation. Such investments shall be accorded equitable and fair treatment. standard. The fair and equitable treatment standard in BITs has been interpreted as requiring
(Emphasis and underscoring supplied) that covered investment or investors receive treatment that is reasonable, consistent, non-
146 Article III (1)―Each Contracting Party shall at all times ensure fair and equitable discriminatory, transparent, and in accordance with due process. As will be seen, these principles
treatment of the investments by investors of the other contracting party and shall not impair explain virtually all of the awards applying the fair and equitable treatment standard. No award
the management, maintenance, use, enjoyment or disposal thereof nor the acquisition of goods is inconsistent with this theory of the standard.
and services or the sale Understanding fair and equitable treatment as legality is consistent with the purposes of
578 the BITs. BITs essentially are instruments that impose legal restraints on the treatment of
covered investments and investors by host states. The very essence of a BIT is a partial
subordination of the sovereign’s power to the legal constraints of the treaty. Further, individual
Heirs of Wilson P. Gamboa vs. Teves BIT provisions are themselves a reflection of the principles of the rule of law. (Emphasis and
land,147 Thailand,148 Turkey,149 United Kingdom,150 and Vietnam.151 underscoring supplied.)152
Explaining the FET as a standard concordant with the rule of law, Professor Vandevelde On the requirement of consistency, the International Centre for the Settlement of
wrote that it requires the host county to treat foreign investments Investment Disputes (ICSID) explained in Tecnicas Medioambientales Tecmed S.A. v. The united
with consistency, security, non-discrimination and reasonableness: Mexican States153 that the host country must maintain a stable and predictable legal and
The thesis is that the awards issued to date implicitly have interpreted the fair and equitable business environment to accord a fair and equitable treatment to foreign investors.
treatment standard as requiring treatment in accordance with the concept of the rule of law. 153. The Arbitral Tribunal finds that the commitment of fair and equitable treatment included
That is, in Article 4(1) of the Agreement is an expression and part of the bona fide principle recognized
_______________ in international law, although bad faith from the State is not required for its violation:
of their production, through unreasonable or discriminatory measures. (Emphasis and _______________
underscoring supplied) 152 Kenneth J. Vandevelde, A Unified Theory of Fair and Equitable Treatment, 43 N.Y.U. J.
147 Article IV (1)―Investments and returns of investors of each Contracting Party shall at Int’l L. & Pol. 43.
all times be accorded fair and equitable treatment and shall enjoy full protection and security 153 ICSID Case No. ARB AF/00/2, Award of May 29, 2003.
in the territory of the other Contracting Party. (Emphasis and underscoring supplied) 580
148 Article III (2)―Investments of national or companies of one Contracting Party in the 580 SUPREME COURT REPORTS ANNOTATED
territory of the other Contracting Party, and also the returns therefrom, shall at all times be
accorded fair and equitable treatment and shall enjoy the constant protection and security in Heirs of Wilson P. Gamboa vs. Teves
the territory of the host country. (Emphasis and underscoring supplied) To the modern eye, what is unfair or inequitable need not equate with the outrageous
149 Article II (1)―Each Contracting Party shall promote as far as possible investments in its or the egregious. In particular, a State may treat foreign investment unfairly and
territory of one Contracting Party and shall admit, on a basis no less favourable than that inequitably without necessarily acting in bad faith.
accorded in similar situations to investments of any third country, in accordance with its 154. The Arbitral Tribunal considers that this provision of the Agreement, in light of the
Constitution, laws and regulations. Such investments shall be accorded equitable and good faith principle established by international law, requires the Contracting Parties to provide
reasonable treatment. (Emphasis and underscoring supplied) to international investments treatment that does not affect the basic expectations that were
150 Article III (2)―Investments of nationals or companies of either Contracting Party shall taken into account by the foreign investor to make the investment. The foreign investor expects
at all times be accorded fair and equitable treatment and shall enjoy full protection and security the host State to act in a consistent manner, free from ambiguity and totally transparently in its
in the territory of the other contracting party. (Emphasis and underscoring supplied) relations with the foreign investor, so that it may know beforehand any and all rules and
151 Article II (2)―Investments of investors of each Contracting Party shall at all times be regulations that will govern its investments, as well as the goals of the relevant policies and
accorded fair and equitable treatment and shall enjoy adequate protection and security in the administrative practices or directives, to be able to plan its investment and comply with such
territory of the other Contracting Party. (Emphasis and underscoring supplied) regulations. Any and all State actions conforming to such criteria should relate not only to the
579 guidelines, directives or requirements issued, or the resolutions approved thereunder, but also
Page 59 of 66
to the goals underlying such regulations. The foreign investor also expects the host State to act Heirs of Wilson P. Gamboa vs. Teves
consistently, i.e.without arbitrarily revoking any preexisting decisions or permits issued by the The same representation is made in the Philippines’ Schedule of Specific Commitments
State that were relied upon by the investor to assume its commitments as well as to plan and appended to the ASEAN-China Agreement on Trade in Services.155
launch its commercial and business activities. The investor also expects the State to use the legal Further, as previously pointed out, it was the Philippine government that pushed for and
instruments that govern the actions of the investor or the investment in conformity with the approved the sale of the 111,415 PTIC shares to MPAH, thereby indirectly transferring the
function usually assigned to such instruments, and not to deprive the investor of its investment ownership of 6.3 percent of the outstanding common shares of PLDT, to a foreign firm and so
without the required compensation. In fact, failure by the host State to comply with such pattern increasing the foreign voting shareholding in PLDT. Hence, the presence of good faith may not
of conduct with respect to the foreign investor or its investments affects the investor’s ability be convincingly argued in favour of the Philippine government in a suit for violation of its FET
to measure the treatment and protection awarded by the host State and to determine whether guarantee.
the actions of the host State conform to the fair and equitable treatment principle. In fact, it has been held that a bona fide change in policy by a branch of government does
Therefore, compliance by the host State with such pattern of conduct is closely related to the not excuse compliance with the FET obligations. In Occidental Exploration and Production
above-mentioned principle, to the actual chances of enforcing such principle, and to excluding Company (OEPC) v. the Republic of Ecuador,156 the United Nations Commission on International
the possibility that state action be characterized as arbitrary; i.e. as presenting insufficiencies Trade Law (UNCITRAL) ruled that Ecuador violated the US/Ecuador BIT by denying OEPC fair and
that would be recognized “…by any reasonable and impartial man,” equitable treatment when it failed to provide a predictable framework for its investment
591 planning. Ruling thus, the tribunal cited Ecuador’s change in tax law and its tax authority’s
VOL. 682, OCTOBER 9, 2012 591 unsatisfactory and vague response to OEPC’s consulta, viz.:
Heirs of Wilson P. Gamboa vs. Teves 183. x x x The stability of the legal and business framework is thus an essential
or, although not in violation of specific regulations, as being contrary to the law because: element of fair and equitable treatment.
...(it) shocks, or at least surprises, a sense of juridical propriety. (Emphasis and 184. The tribunal must note in this context that the framework under which the
underscoring supplied added.) investment was made and oper-
The Philippines, therefore, cannot, without so much as a notice of policy shift, alter and _______________
change the legal and business environment in which the foreign investments in the country were Exemptions. Last accessed at http://www.mofa.go.jp/region/asiapaci/
made in the first place. These investors obviously made the decision to come in after studying philippine/epa0609/annex6.pdf on August 30, 2012.
the country’s legal framework―its restrictions and incentives―and so, as a matter of fairness, 155 Annex 1/SC1, ASEAN-China Agreement on Trade in Services. Last accessed at
they must be accorded the right to expect that the same legal climate and the same substantive http://www.asean.org/22160.htm on August 30, 2012.
set of rules will remain during the period of their investments. 156 London Court of International Arbitration Administered Case No. UN 3467, July 1,
The representation that foreigners can invest up to 40% of the entirety of the total 2004. Last accessed
stockholdings, and not just the voting shares, of a public utility corporation is an implied athttp://arbitrationlaw.com/files/free_pdfs/Occidental%20v%20Ecuador%20-
covenant that the Philippines cannot renege without violating the FET guarantee. Especially in %20Award.pdf on August 30, 2012.
this case where the Philippines made specific commitments to countries like Japan and China 583
that their investing nationals can own up to 40% of the equity of a public utility like a VOL. 682, OCTOBER 9, 2012 583
telecommunications corporation. In the table contained in Schedule 1(B), Annex 6 of the JPEPA, Heirs of Wilson P. Gamboa vs. Teves
the Philippines categorically represented that Japanese investors’ entry into the Philippine ates has been changed in an important manner by actions adopted by [the Ecuadorian
telecommunications industry, specifically corporations offering “voice telephone services,” is tax authority]. … The clarifications that OEPC sought on the applicability of VAT
subject to only the following requirements and conditions: by means of “consulta” made to [the Ecuadorian tax authority] received a wholly
A. Franchise from Congress of the Philippines unsatisfactory and thoroughly vague answer. The tax law was changed without
B. Certificate of Public Convenience and Necessity (CPCN) from the National providing any clarity abut its meaning and extend and the practice and regulations
Telecommunications Commission were also inconsistent with such changes.
C. Foreign equity is permitted up to 40 percent. 185. Various arbitral tribunals have recently insisted on the need for this stability. The
D. x x x154 (Emphasis supplied.) tribunal in Metalcad held that the Respondent “failed to ensure a transparent
_______________ and predictable framework for Metalcad’s business planning and investment.
154 Annex 6 Referred to in Chapter 7 of the JPEPA: Schedule of Specific Commitments and The totality of these circumstances demonstrate a lack of orderly process and
List of Most-Favored-Nation Treatment timely disposition in relation to an investor of a Party acting in the expectation
582 that it would be treated fairly and justly…” x x x
582 SUPREME COURT REPORTS ANNOTATED 186. It is quite clear from the record of this case and from the events discussed in this
Final Award that such requirements were not met by Ecuador. Moreover, this is
Page 60 of 66
an objective requirement that does not depend on whether the Respondent has shares of the foreign investors in public utilities in excess of the 40% capital shall be maintained
proceeded in good faith or not. and honored. Otherwise the due process guarantee under the Constitution and the long
187. The Tribunal accordingly holds that the Respondent has breached its obligations established precepts of justice, equity and fair play would be impaired.
to accord fair and equitable treatment under Article II (3) (a) of the Treaty. x x x Prospective application of new laws or
xxxx changes in interpretation
191. The relevant question for international law in this discussion is not whether there The June 28, 2011 Decision construed “capital” in the first sentence of Section 11, Article
is an obligation to refund VAT, which is the point on which the parties have XII of the Constitution as “full beneficial ownership of 60 percent of the outstanding capital
argued most intensely, but rather whether the legal and business framework stocks coupled with 60 percent of the voting rights.” In the Resolution denying the motions for
meets the requirements of stability and predictability under international law. It reconsideration, it further amplified the scope of the word “capital” by clarifying that “the 60-
was earlier concluded that there is not a VAT refund obligation under 40 ownership requirement in favor of Filipino citizens must apply separately to each class of
international law, except in the specific case of the Andean Community Law, shares whether common, preferred, preferred voting or any other class of shares.” This is a
which provides for the option of either compensation or refund, but there is radical departure from the clear intent of the framers of the 1987 Constitution and the long
certainly an obligation not to alter the legal and business environment in which established interpretation ascribed to said word by the Securities and Exchange
the in- Commission―that “capital” in the first sentence of Sec. 11, Art. XII means capital stock or BOTH
584 voting and non-voting shares. The recent interpretation enunciated in the June 28, 2011 and in
584 SUPREME COURT REPORTS ANNOTATED the Resolution at hand can only be applied PROSPECTIVELY. It cannot be applied retroactively
to corporations such as PLDT and its investors such as its shareholders who have all along relied
Heirs of Wilson P. Gamboa vs. Teves on the consistent reading of “capital” by SEC and the Philippine government to apply it to a
vestment has been made. In this case it is the latter question that triggers a treatment public utility’s total capital stock.
that is not fair and equitable. (Emphasis supplied.) Lex prospicit, non respicit—“laws have no retroactive effect unless the contrary is
To maintain the FET guarantee contained in the various BITs and FTAs concluded by the provided.”157 As a necessary corollary, judicial rulings should not be accorded retroactive effect
country and avert a deluge of investor suits before the ICSID, the UNCITRAL or other fora, any since “judicial decisions applying or interpreting the laws or the
decision of this court that tends to drastically alter the foreign investors’ basic expectations when _______________
they made their investments, taking into account the consistent SEC Opinions and the executive 157 Article 4, CIVIL CODE OF THE PHILIPPINES.
and legislative branches’ Specific Commitments, must be applied prospectively. 586
This Court cannot turn oblivious to the fact that if We diverge from the prospectivity rule
and implement the resolution on the present issue immediately and, without giving due
deference to the foreign investors’ rights to due process and the equal protection of the laws, Heirs of Wilson P. Gamboa vs. Teves
compel the foreign stockholders to divest their voting shares against their wishes at prices lower Constitution shall form part of the legal system of the Philippines.”158 It has been the constant
than the acquisition costs, these foreign investors may very well shy away from Philippine stocks holding of the Court that a judicial decision setting a new doctrine or principle (“precedent-
and avoid investing in the Philippines. Not to mention, the validity of the franchise granted to setting decision”) shall not retroactively apply to parties who relied in good faith on the
PLDT and similarly situated public utilities will be put under a cloud of doubt. Such uncertainty principles and doctrines standing prior to the promulgation thereof (“old principles/doctrines”),
and the unfair treatment of foreign investors who merely relied in good faith on the policies, especially when a retroactive application of the precedent-setting decision would impair the
rules and regulations of the PSE and the SEC will likely upset the volatile capital market as it rights and obligations of the parties. So it is that as early as 1940, the Court has refused to apply
would have a negative impact on the value of these companies that will discourage investors, the new doctrine of jus sanguinis to persons who relied in good faith on the principle of jus
both local and foreign, from purchasing their shares. In which case, foreign direct investments soli adopted in Roa v. Collector of Customs.159 Similarly, in Co v. Court of Appeals,160 the Court
(FDIs) in the country (which already lags behind our Asian neighbors) will take a nosedive. sustained petitioner Co’s bona fide reliance on the Minister of Justice’s Opinion dated
Indeed, it cannot be gainsaid that a sudden and unexpected deviation from the accepted and December 15, 1981 that the delivery of a “rubber” check as guarantee for an obligation is not a
consistent construction of the term “capital” will create a domino effect that may cripple our punishable offense despite the Court’s pronouncement on September 21, 1987 in Que v.
capital markets. People that Batas Pambansa Blg. (BP) 22 nonetheless covers a check issued to guarantee the
Therefore, in applying the new comprehensive interpretation of Sec. 11, Art. XII of the payment of an obligation. In so ruling, the Court quoted various decisions applying precedent-
Constitution, the current voting setting decisions prospectively. We held:
585 Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
VOL. 682, OCTOBER 9, 2012 585 legal system of the Philippines,” according to Article 8 of the Civil Code. “Laws shall have no
retroactive effect, unless the contrary is provided,” declares Article 4 of the same Code, a
Heirs of Wilson P. Gamboa vs. Teves declaration that is echoed by Article 22 of the Revised Penal Code: “Penal laws shall have a
Page 61 of 66
retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual Indeed, pursuant to the doctrine of prospectivity, new doctrines and principles must be
criminal . . .” applied only to acts and events transpiring after the precedent-setting judicial decision, and not
xxxx to those that occurred and were caused by persons who relied on the “old” doctrine and acted
_______________ on the faith thereof.
158 Article 8, CIVIL CODE OF THE PHILIPPINES. Not content with changing the rule in the middle of the game, the majority, in the June 28,
159 23 Phil. 315 (1912). 2011 Decision, went a little further by ordering respondent SEC Chairperson “to apply this
160 G.R. No. 100776, October 28, 1993, 227 SCRA 444, 448-455; Monge, et al. v. Angeles, definition of the term ‘capital’ in determining the extent of allowable foreign ownership in
et al., 101 Phil. 563 (1957); among others. respondent Philippine Long Distance Telephone Company, and if there is a violation of Section
587 11, Article XII of the Constitution, to impose the appropriate sanctions under the law.” This may
VOL. 682, OCTOBER 9, 2012 587 be viewed as unreasonable and arbitrary. The Court in the challenged June 28, 2011 Decision
already made a finding that foreigners hold 64.27% of the total number of PLDT common shares
Heirs of Wilson P. Gamboa vs. Teves while Filipinos hold only 35.73%.161In this factual setting, PLDT will, as clear as day, face
The principle of prospectivity has also been applied to judicial decisions which, “although in sanctions since its present capital structure is presently in breach of the rule on the 40% cap on
themselves not laws, are nevertheless evidence of what the laws mean, . . . (this being) the reason foreign ownership of voting shares even without need of a SEC investigation.
why under Article 8 of the New Civil Code, ‘Judicial decisions applying or interpreting the laws or In answering the SEC’s query regarding the proper period of application and imposition of
the Constitution shall form a part of the legal system . . .’ ” appropriate sanctions against PLDT, Justice Carpio tersely stated that “once the 28 June 2011
So did this Court hold, for example, in People v. Jabinal, 55 SCRA 607, 611: Decision becomes final, the SEC shall impose the appro-
xxxx _______________
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of Appeals, 161 Decision, G.R. No. 176579, June 28, 2011, 652 SCRA 690.
et al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of Appeals, et al.(G.R. 589
No 97998), Jan. 27, 1992, 205 SCRA 515, 527-528:
VOL. 682, OCTOBER 9, 2012 589
xxxx
A compelling rationalization of the prospectivity principle of judicial decisions is well set Heirs of Wilson P. Gamboa vs. Teves
forth in the oft-cited case of Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, priate sanctions only if it finds after due hearing that, at the start of the administrative cases or
374 [1940]. The Chicot doctrine advocates the imperative necessity to take account of the actual investigation, there is an existing violation of Sec. 11, Art. XII of the Constitution.” 162 As basis
existence of a statute prior to its nullification, as an operative fact negating acceptance of “a therefor, Justice Carpio cited Halili v. Court of Appeals163 and United Church Board for World
principle of absolute retroactive invalidity.” Ministries (UCBWM) v. Sebastian.164 However, these cases do not provide a jurisprudential
xxxx foundation to this mandate that may very well deprive PLDT foreign shareholders of their voting
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 xxx the Court made substantially the shares. In fact, UCBWM v. Sebastian respected the voluntary transfer in a will by an American
same observations… of his shares of stocks in a land-holding corporation. In the same manner, Halili v. Court of
xxxx Appealssustained as valid the waiver by an alien of her right of inheritance over a piece of land
Again, treating of the effect that should be given to its decision in Olaguer v. Military in favour of her son. Nowhere in these cases did this Court order the involuntary dispossession
Commission No. 34,—declaring invalid criminal proceedings conducted during the martial law of corporate stocks by alien stockholders. At most, these two cases only recognized the principle
regime against civilians, which had resulted in the conviction and incarceration of numerous validating the transfer of land to an alien who, after the transfer, subsequently becomes a
persons—this Court, in Tan vs. Barrios, 190 SCRA 686, at p. 700, ruled as follows: Philippine citizen or transfers the land to a Filipino citizen. They do not encompass the situation
“In the interest of justice and consistency, we hold that Olaguer should, in principle, be that will eventually ensue after the investigation conducted by the SEC in accordance with the
applied prospectively only to future cases and cases still ongoing or not yet final when June 28, 2011 and the present resolution. They do not justify the compulsory deprivation of
that decision was promulgated. x x x”588 voting shares in public utility corporations from foreign stockholders who had legally acquired
588 SUPREME COURT REPORTS ANNOTATED these stocks in the first instance.
The abrupt application of the construction of Sec. 11, Art. XII of the Constitution to
Heirs of Wilson P. Gamboa vs. Teves foreigners currently holding voting shares in a public utility corporation is not only
It would seem, then, that the weight of authority is decidedly in favor of the proposition that constitutionally problematic; it is likewise replete with pragmatic difficulties that could hinder
the Court’s decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987)—i.e., that a the real-world translation of this Court’s Resolution. Although apparently benevolent, the
check issued merely to guarantee the performance of an obligation is nevertheless covered by majority’s concession to allow “public utilities that fail to comply with the nationality
B.P. Blg. 22—should not be given retrospective effect to the prejudice of the petitioner and other requirement under Section 11, Article
persons similarly situated, who relied on the official opinion of the Minister of Justice that such a _______________
check did not fall within the scope of B.P. Blg. 22. (Emphasis supplied). 162 Resolution, p. 47.
Page 62 of 66
163 350 Phil. 906; 287 SCRA 465 (1998). residence as shown on the books of the corporation and deposited to the addressee in the
164 242 Phil. 848; 159 SCRA 446 (1988). post office with postage prepaid, or served personally.
590 xxxx
590 SUPREME COURT REPORTS ANNOTATED Any increase or decrease in the capital stock or the incurring, creating or increasing of any
bonded indebtedness shall require prior approval of the Securities and Exchange Commission.
Heirs of Wilson P. Gamboa vs. Teves One of the duplicate certificates shall be kept on file in the office of the corporation and the
XII and the FIA [to] cure their deficiencies prior to the start of the administrative case or other shall be filed with the Securities and Exchange Commission and attached to the original
investigation”165could indirectly occasion a compulsory deprivation of the public utilities’ foreign articles of incorporation. From and after approval by the Securities and Exchange Commission
stockholders of their voting shares. Certainly, these public utilities must immediately pare down and the issuance by the Commission of its certificate of filing, the capital stock shall stand
their foreign-owned voting shares to avoid the imposable sanctions. This holds true especially increased or decreased and the incurring, creating or increasing of any bonded indebtedness
for PLDT whose 64.27% of its common voting shares are foreign-subscribed and held. PLDT is, authorized, as the certificate of filing may declare: Provided, That the Securities and Exchange
therefore, forced to immediately deprive, or at the very least, dilute the property rights of their Commission shall not accept for filing any certificate of increase of capital stock unless
foreign stockholders before the commencement of the administrative proceedings, which accompanied by the sworn statement of the treasurer of the corporation lawfully holding office
would be a mere farce considering the transparency of the public utility from the onset. at the time of the filing of the certificate, showing that at least twenty-five (25%) percent of such
Even with the chance granted to the public utilities to remedy their supposed deficiency, increased capital stock has been subscribed and that at least twenty-five (25%) percent of the
the nebulous time-frame given by the majority, i.e., “prior to the start of the administrative case amount subscribed has been paid either in actual cash to the corporation or that there has been
or investigation,”166 may very well prove too short for these public utilities to raise the necessary transferred to the corporation property the valuation of which is equal to twenty-five (25%)
amount of money to increase the number of their authorized capital stock in order to dilute the percent of the subscription: Provided, further, That no decrease of the capital stock shall be
property rights of their foreign stockholders holding voting shares.167 Similarly, if they induce approved by the Commission if its effect shall prejudice the rights of corporate creditors.
their (Emphasis supplied.)
_______________ 592
165 Resolution, p. 47.
166 Id.
167 Sec. 38, Corporation Code. Power to increase or decrease capital stock; incur, create Heirs of Wilson P. Gamboa vs. Teves
or increase bonded indebtedness.―No corporation shall increase or decrease its capital stock likely, these foreign stockholders will be forced to sell their voting shares at a loss to the few
or incur, create or increase any bonded indebtedness unless approved by a majority vote of the Philippine nationals with money to spare, or the public utility itself will be constrained to acquire
board of directors and, at a stockholder’s meeting duly called for the purpose, two-thirds (2/3) these voting shares to the prejudice of its retained earnings.168
of the outstanding capital stock shall favor the increase or diminution of the capital stock, or Whatever means the public utilities choose to employ in order to cut down the foreign
the incurring, creating or increasing of any bonded indebtedness. Written notice of the stockholdings of voting shares, it is necessary to determine who among the foreign stockholders
proposed increase or diminution of the capital stock or of the incurring, creating, or increasing of these public utilities must bear the burden of unloading the voting shares or the dilution of
of any bonded indebtedness and of the time and place of the stockholder’s meeting at which their property rights. In a situation like this, there is at present no settled rule on who should be
the proposed increase or diminution of the capital stock or the incurring or increasing of any deprived of their property rights. Will it be the foreign stockholders who bought the latest
bonded indebtedness is to be considered, must be addressed to each stockholder at his place issuances? Or the first foreign stockholders of the public utility corporations? This issue cannot
of be realistically settled within the time-frame given by the majority without raising more
591 disputes. With these loose ends, the majority cannot penalize the public utilities if they should
VOL. 682, OCTOBER 9, 2012 591 fail to comply with the directive of complying with the “nationality requirement under Section
11, Article XII and the FIA” within the unreasonably nebulous and limited period “prior to the
Heirs of Wilson P. Gamboa vs. Teves start of the administrative case or investigation.”169
foreign stockholders to transfer the excess voting shares to qualified Philippine nationals, this _______________
period before the filing of the administrative may not be sufficient for these stockholders to find 168 Sec. 41, Corporation Code. Power to acquire own shares.―A stock corporation shall
Philippine nationals willing to purchase these voting shares at the market price. This Court have the power to purchase or acquire its own shares for a legitimate corporate purpose or
cannot ignore the fact that the voting shares of Philippine public utilities like PLDT are listed and purposes, including but not limited to the following cases: Provided, That the corporation has
sold at large in foreign capital markets. Hence, foreigners who have previously purchased their unrestricted retained earnings in its books to cover the shares to be purchased or acquired:
voting shares in these markets will not have a ready Philippine market to immediately transfer 1. To eliminate fractional shares arising out of stock dividends;
their shares. More than 2. To collect or compromise an indebtedness to the corporation, arising out of unpaid
_______________ subscription, in a delinquency sale, and to purchase delinquent shares sold during said sale; and
Page 63 of 66
3. To pay dissenting or withdrawing stockholders entitled to payment for their shares DISSENTING OPINION
under the provisions of this Code.
169 Resolution, p. 47. ABAD, J.:
593 In the Decision dated June 28, 2011, the Court partially granted the petition for prohibition,
VOL. 682, OCTOBER 9, 2012 593 injunction, declaratory relief and declaration of nullity of sale, of Wilson P. Gamboa, a Philippine
Long Distance Telephone Company (PLDT) stockholder, and ruled that the term “capital” in
Section 11, Article XII of the 1987 Constitution refers only to shares of stock entitled to vote in
In the light of the new pronouncement of the Court that public utilities that fail to comply the election of directors, and thus only to common shares, and not to the total outstanding
with the nationality requirement under Section 11, Article XII of the Constitution CAN CURE capital stock (common and non-voting preferred shares). The Court also directed the
THEIR DEFICIENCIES prior to the start of the administrative case or investigation, I submit that Chairperson of the Securities and Exchange Commission (SEC) to apply this definition of the
affected companies like PLDT should be given reasonable time to undertake the necessary term “capital” in determining the extent of allowable foreign ownership in PLDT, and to impose
measures to make their respective capital structure compliant, and the SEC, as the regulatory the appropriate sanctions
authority, should come up with the appropriate guidelines on the process and supervise the 595
same. SEC should likewise adopt the necessary rules and regulations to implement the
prospective compliance by all affected companies with the new ruling regarding the VOL. 682, OCTOBER 9, 2012 595
interpretation of the provision in question. Such rules and regulations must respect the due Heirs of Wilson P. Gamboa vs. Teves
process rights of all affected corporations and define a reasonable period for them to comply if there is a violation of Section 11, Article XII of the 1987 Constitution.
with the June 28, 2011 Decision. Respondents Manuel V. Pangilinan, Napoleon L. Nazareno, Francis Lim, Pablito V. Sanidad,
A final note. Arno V. Sanidad, and the SEC filed their respective motions for reconsideration.
Year in and year out, the government’s trade managers attend economic summits courting Thereafter, the Court conducted oral arguments to hear the parties on the following issues:
businessmen to invest in the country, doubtless promising them a playing field where the rules 1. Whether the term ‘‘capital” in Section 11, Article XII of the 1987 Constitution refers
are friendly as they are predictable. So it would appear odd if a branch of government would only to shares of stock with the right to vote in the election of directors (common
make business life complicated for investors who are already here. Indeed, stability and shares), or to all kinds of shares of stock, including those with no right to vote in
predictability are the key pillars on which our legal system must be founded and run to the election of directors;
guarantee a business environment conducive to the country’s sustainable economic growth. 2. Assuming the term “capital” refers only to shares of stock with the right to vote in
Hence, it behoves this Court to respect the basic expectations taken into account by the the election of directors, whether this ruling of the Court should have retroactive
investors at the time they made the investments. In other words, it is the duty of this Court to effect to affect such shares of stock owned by foreigners prior to this ruling;
stand guard against any untoward change of the rules in the middle of the game. 3. Whether PLDT and its foreign stockholders are indispensable parties in the
I, therefore, vote to GRANT the motions for reconsideration and accordingly REVERSE and resolution of the legal issue on the definition of the term “capital” in Section 11,
SET ASIDE the June 28, 2011 Decision. The Court should declare that the word “capital” in the Article XII of the 1987 Constitution; and
first sentence of Section 11, Article XII of the 1987 3.1. If so, whether the Court has acquired jurisdiction over the persons of
594 PLDT and its foreign stockholders.
594 SUPREME COURT REPORTS ANNOTATED I am constrained to maintain my dissent to the majority opinion.
One. To reiterate, the authority to define and interpret the meaning of “capital” in Section
Heirs of Wilson P. Gamboa vs. Teves 11, Article XII of the 1987 Constitution belongs, not to the Court, but to Congress, as part of its
Constitution means the entire capital stock or both voting and non-voting shares. policy making powers. This matter is addressed to the sound discretion of the lawmaking
Since the June 28, 2011 Decision was however sustained, I submit that said decision should department of government since the power to authorize and control a public utility
take effect only on the date of its finality and should be applied prospectively. 596
PLDT should be given time to undertake the necessary measures to make its capital
structure compliant, and the Securities and Exchange Commission should formulate 596 SUPREME COURT REPORTS ANNOTATED
appropriate guidelines and supervise the process. Said Commission should also adopt rules and Heirs of Wilson P. Gamboa vs. Teves
regulations to implement the prospective compliance by all affected companies with the new is admittedly a prerogative that stems from Congress.1 It may very well in its wisdom define the
ruling on the interpretation of Sec. 11, Art. XII of the Constitution. Such rules and regulations limit of foreign ownership in public utilities.
must respect the due process rights of all affected corporations and provide a reasonable period Section 11, Article XII of the 1987 Constitution which reads:
for them to comply with the June 28, 2011 Decision. The rights of foreigners over the voting Section 11. No franchise, certificate, or any other form of authorization for the operation
shares they presently own in excess of 40% of said shares should, in the meantime, be of a public utility shall be granted except to citizens of the Philippines or to corporations or
respected. associations organized under the laws of the Philippines, at least sixty per centum of whose
Page 64 of 66
capital is owned by such citizens; nor shall such franchise, certificate, or authorization be _______________
exclusive in character or for a longer period than fifty years. Neither shall any such franchise or 2 These laws include the Investment Incentives Act of 1967, the Foreign Business
right be granted except under the condition that it shall be subject to amendment, alteration, Regulations Act of 1968, the Omnibus Investments Code of 1981, the Omnibus Investments
or repeal by the Congress when the common good so requires. The State shall encourage equity Code of 1987, and the Foreign Investments Act of 1991.
participation in public utilities by the general public. The participation of foreign investors in the 598
governing body of any public utility enterprise shall be limited to their proportionate share in 598 SUPREME COURT REPORTS ANNOTATED
its capital, and all the executive and managing officers of such corporation or association must
be citizens of the Philippines. Heirs of Wilson P. Gamboa vs. Teves
is one of the constitutional provisions that are not self-executing and need sufficient details for utilities. It is a rule that when the operation of the statute is limited, the law should receive a
a meaningful implementation. While the provision states that no franchise for the operation of restricted construction.3
a public utility shall be granted to a corporation organized under Philippine laws unless at least More particularly, much discussion was made on the FIA since it was enacted after the 1987
60% of its capital is owned by Filipino citizens, it does not provide for the meaning of the term Constitution took effect. Yet it does not seem to be a supplementary or enabling legislation
“capital.” which accurately defines the term “capital.”
As Fr. Joaquin G. Bernas, S.J. explained, acting as Amicus Curiae, the result of the absence For one, it specifically applies only to companies which intend to invest in certain areas of
of a clear definition of the term “capital,” was to base the 60-40 proportion on the total investment. It does not apply to companies which intend to apply for a franchise, much less to
outstanding capital stock, that is, the combined total of both common and non-voting preferred those which are already enjoying their franchise. It aims “to attract, promote or welcome
shares. But while this has become the popular and common understanding of the people, productive investments from foreign individuals, partnerships, corporations and government,
_______________ including their political subdivisions, in activities which significantly contribute to national
1 Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, October 19, 2010, 633 SCRA 470, industrialization and socio-economic development.”4 What the FIA provides are new rules for
499. investing in the country.
597 Moreover, with its adoption of the definition of the term “Philippine national,” has the
previous understanding that the term “capital” referred to the total outstanding capital stock,
VOL. 682, OCTOBER 9, 2012 597
as Fr. Bernas explained, been supplanted or modified? While it is clear that the term “Philippine
Heirs of Wilson P. Gamboa vs. Teves national” shall mean a corporation organized under Philippine laws at least 60% of the capital
it is still incomplete. He added that in the Foreign Investments Act of 1991 (FIA), Congress tried stock outstanding and entitled to vote is owned and held by Filipino citizens “as used in [the
to clarify this understanding by specifying what capital means for the purpose of determining FIA],” it is not evident whether Congress intended this definition to be used in all other cases
corporate citizenship, thus: where the term “capital” presents itself as an issue.
Sec. 3. Definitions.—As used in this Act: Two. Granting that it is the Court, and not Congress, which must define the meaning of
a. The term “Philippine national” shall mean a citizen of the Philippines; of a domestic “capital,” I submit that it must be interpreted to encompass the entirety of a corporation’s
partnership or association wholly owned by citizens of the Philippines; or a corporation outstanding capital stock (both common and preferred shares, voting or non-voting).
organized under the laws of the Philippines of which at least sixty percent (60%) of the capital _______________
stock outstanding and entitled to vote is owned and held by citizens of the Philippines; or a 3 Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 & 180443, June 22, 2010, 621
corporation organized abroad and registered as doing business in the Philippines under the SCRA 385, 410.
Corporation Code of which one hundred percent (100%) of the capital stock outstanding and 4 Section 2, Foreign Investments Act of 1991.
entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee 599
retirement or separation benefits, where the trustee is a Philippine national and at least sixty VOL. 682, OCTOBER 9, 2012 599
percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That where
a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Heirs of Wilson P. Gamboa vs. Teves
Commission (SEC) registered enterprise, at least sixty percent (60%) of the capital stock First, the term “capital” is also used in the fourth sentence of Section 11, Article XII, as
outstanding and entitled to vote of each of both corporations must be owned and held by follows:
citizens of the Philippines and at least sixty percent (60%) of the members of the Board of Section 11. xxx The participation of foreign investors in the governing body of any public
Directors of each of both corporations must be citizens of the Philippines, in order that the utility enterprise shall be limited to their proportionate share in its capital, and all the executive
corporation, shall be considered a “Philippine national.” (As amended by Republic Act 8179) and managing officers of such corporation or association must be citizens of the Philippines.
Indeed, the majority opinion also resorted to the various investment laws2 in construing the If the term “capital” as used in the first sentence is interpreted as pertaining only to shares
term “capital.” But while these laws admittedly govern foreign investments in the country, they of stock with the right to vote in the election of directors, then such sentence will already
do not expressly or impliedly seek to supplant the ambiguity in the definition of the term prescribe the limit of foreign participation in the election of the board of directors. On the basis
“capital” nor do they seek to modify foreign ownership limitation in public of the first sentence alone, the capacity of foreign stockholders to elect the directors will already
Page 65 of 66
be limited by their ownership of 40% of the voting shares. This will then render the fourth As a final note, the Filipinization of public utilities under the 1987 Constitution is a
sentence meaningless and will run counter to the principle that the provisions of the recognition of the very strategic position of public utilities both in the national economy and
Constitution should be read in consonance with its other related provisions. the national security.6 The participation of foreign capital is enjoined since the establishment
Second, Dr. Bernardo M. Villegas, also an Amicus Curiae, who was the Chairman of the and operation of public utilities may require the investment of substantial capital which Filipino
Committee on the National Economy that drafted Article XII of the 1987 Constitution, citizens may not afford. But at the same time, foreign involvement is limited to prevent them
emphasized that by employing the term “capital,” the 1987 Constitution itself did not from assuming control of public utilities which may be inimical to national interest.7 Section 11,
distinguish among classes of shares. Article XII of the 1987 Constitution already provides three limitations on foreign participation in
During their Committee meetings, Dr. Villegas explained that in both economic and public utilities. The Court need not add more by further restricting the meaning of the term
business terms, the term “capital” found in the balance sheet of any corporation always meant ‘‘capital” when none was intended by the framers of the 1987 Constitution.
the entire capital stock, both common and preferred. He added that even the non-voting shares Based on these considerations, I vote to GRANT the motions for reconsideration.
in a corporation have a great influence in its major decisions such as: (1) the amendment of the Motions for Reconsideration denied with finality.
articles of incorporation; (2) the adoption and amendment of by-laws; (3) the sale, lease, Notes.―The term “capital” in Section 11, Article XII of the Constitution refers only to shares
exchange, mortgage, pledge or other disposition of all or substantially all of the corporate of stock entitled to vote in the election of directors, and thus in the present case only to
property; (4) incurring, creating or increasing bonded indebtedness; (5) the increase or common shares, and not to the total outstanding capital stock comprising both common and
decrease of capital non-voting preferred shares. (Gamboa vs. Teves, 652 SCRA 690 [2011])
600 _______________
600 SUPREME COURT REPORTS ANNOTATED 5 Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 108576, January 20, 1999,
301 SCRA 152, 187.
Heirs of Wilson P. Gamboa vs. Teves 6 BERNAS, JOAQUIN G., FOREIGN RELATIONS IN CONSTITUTIONAL LAW, 1995 Ed., p. 87 citing Smith, Bell
stock; (6) the merger or consolidation of the corporation with another corporation or other and Co. v. Natividad, 40 Phil. 136, 148 (1919); Luzon Stevedoring Corporation v. Anti-Dummy
corporations; (7) the investment of corporate funds in another corporation or business in Board, 46 SCRA 474, 490 (1972); DE LEON, HECTOR S., PHILIPPINE CONSTITUTIONAL LAW (Principles and
accordance with this Code; and (8) the dissolution of the corporation. Cases), 2004 Ed., Vol. 2, p. 940.
Thus, the Committee decisively rejected in the end the proposal of the UP Law Center to 7 DE LEON, HECTOR S., PHILIPPINE CONSTITUTIONAL LAW (Principles and Cases), 2004 Ed., Vol. 2, p.
define the term “capital” as voting stock or controlling interest. To quote Dr. Villegas, “in the 946.
minds of the Commissioners the word ‘capital’ in Section 11 of Article XII refers, not to voting 602
stock, but to total subscribed capital, both common and preferred.”
Finally, Dr. Villegas observed that our existing policy on foreign ownership in public utilities
already discourages, as it is, foreign investments to come in. To impose additional restrictions, Heirs of Wilson P. Gamboa vs. Teves
such as the restrictive interpretation of the term “capital,” will only aggravate our already slow The term “capital” in Section 11, Article XII of the Constitution refers only to shares of stock
economic growth and incapacity to compete with our East Asian neighbours. that can vote in the election of directors. (Id.)
The Court can simply adopt the interpretations given by Fr. Bernas and Dr. Villegas since ——o0o——
they were both part of the Constitutional Commission that drafted the 1987 Constitution. No
one is in a better position to determine the intent of the framers of the questioned provision
than they are. Furthermore, their interpretations also coincide with the long-standing practice
to base the 60-40 proportion on the total outstanding capital stock, that is, both common and
preferred shares.
For sure, both common and preferred shares have always been considered part of the
corporation’s capital stock. Its shareholders are no different from ordinary investors who take
on the same investment risks. They participate in the same venture, willing to share in the
profits and losses of the enterprise. Under the doctrine of equality of shares—all stocks issued
by the corporation are presumed equal with the
601
VOL. 682, OCTOBER 9, 2012 601
same privileges and liabilities, provided that the Articles of Incorporation is silent on such
differences.5
Page 66 of 66

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HEIRS OF WILSON P. GAMBOA,** petitioners, vs.FINANCE SECRETARY MARGARITO B.

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