Professional Documents
Culture Documents
CASES REPORTED
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* EN BANC.
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SCRA 397 (2012), nor hold the Commission liable for grave
abuse of discretion. As it has manifested in Gamboa, in issuing
MC No. 8, the SEC abided by the Court’s decision and deferred to
the Court’s definition of the term “capital” in Section 11, Article
XII of the Constitution.
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CAGUIOA, J.:
The petitions1 before the Court are special civil actions
for certiorari under Rule 65 of the Rules of Court seeking to
annul Memorandum Circular No. 8, Series of 2013 (“SEC-
MC No. 8”) issued by the Securities and Exchange
Commission (“SEC”) for allegedly being in violation of the
Court’s Decision2 (“Gamboa Decision”) and Resolution3
(“Gamboa Resolution”) in Gamboa v. Finance Secretary
Teves, G.R. No. 176579, respectively promulgated on June
28, 2011, and October 9, 2012, which jurisprudentially
established the proper interpretation of Section 11, Article
XII of the Constitution.
The Antecedents
On June 28, 2011, the Court issued the Gamboa
Decision, the dispositive portion of which reads:
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1 These are the Petition for Certiorari filed on June 10, 2013 (the
“Petition”) and Petition-in-Intervention (for Certiorari) filed on July 30,
2013 (the “Petition-in-Intervention”). They will be referred to collectively
as the “petitions.”
2 Gamboa v. Teves, 668 Phil. 1; 652 SCRA 690 (2011).
3 Heirs of Wilson P. Gamboa v. Teves, 696 Phil. 276; 682 SCRA 397
(2012).
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SO ORDERED.4
Several motions for reconsideration were filed assailing
the Gamboa Decision. They were denied in the Gamboa
Resolution issued by the Court on October 9, 2012, viz.:
The Gamboa Decision attained finality on October 18,
2012, and Entry of Judgment was thereafter issued on
December 11, 2012.6
On November 6, 2012, the SEC posted a Notice in its
website inviting the public to attend a public dialogue and
to submit comments on the draft memorandum circular
(attached thereto) on the guidelines to be followed in
determining compliance with the Filipino ownership
requirement in public utilities under Section 11, Article XII
of the Constitution pursuant to the Court’s directive in the
Gamboa Decision.7
On November 9, 2012, the SEC held the scheduled
dialogue and more than 100 representatives from various
organizations, government agencies, the academe and the
private sector attended.8
On January 8, 2013, the SEC received a copy of the
Entry of Judgment9 from the Court certifying that on
October 18, 2012, the Gamboa Decision had become final
and executory.10
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On June 10, 2013, petitioner Roy, as a lawyer and
taxpayer, filed the Petition,15 assailing the validity of SEC-
MC No. 8 for not conforming to the letter and spirit of the
Gamboa Decision and Resolution and for having been
issued by
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11 Id.
12 Id. (Vol. I), pp. 31-33.
13 Id. (Vol. II), pp. 549, 587-588.
14 Id., at p. 588.
15 Id. (Vol. I), pp. 3-206 (with annexes).
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one (1) year from the effectivity of the same within which to
comply with said ownership requirement. x x x.”35 Thus, in
the absence of a definitive ruling by
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Petitioners’ failure to sufficiently allege, much less
establish, the existence of the first two requisites for the
exercise of
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Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632; 338 SCRA
81, 100 (2000).
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Petitioners’ hypothetical illustration as to how SEC-MC
No. 8 “practically encourages circumvention of the 60-40
ownership rule” is evidently speculative and fraught with
conjectures and assumptions. There is clearly wanting
specific facts against which the veracity of the conclusions
purportedly following from the speculations and
assumptions can be validated. The lack of a specific factual
milieu from which the petitions originated renders any
pronouncement from the Court as a purely advisory
opinion and not a decision binding on identified and
definite parties and on a known set of facts.
Firstly, unlike in Gamboa, the identity of the public
utility corporation, the capital of which is at issue, is
unknown. Its outstanding capital stock and the actual
composition thereof in terms of numbers, classes,
preferences and features are all theoretical. The
description “preferred shares with rights to elect directors
but with much lesser entitlement to dividends, and still
another class of preferred shares with no rights to elect the
directors and even less dividends” is ambiguous. What are
the specific dividend policies or entitlements of the
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34
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41 Galicto v. Aquino III, 683 Phil. 141, 170-171; 667 SCRA 150, 170
(2012), citing Miñoza v. Lopez, 664 Phil. 115, 123; 648 SCRA 684, 692
(2011).
42 Id., at p. 170, citing Tolentino v. Commission on Elections, 465 Phil.
385, 402; 420 SCRA 438, 452 (2004).
43 Id., at p. 172. Citations omitted.
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The Court in Bañez, Jr. v. Concepcion52 stressed that:
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50 Republic v. Roque, 718 Phil. 294, 307; 706 SCRA 273, 285-286
(2013), citing Southern Hemisphere Engagement Network, Inc. v. Anti-
Terrorism Council, 646 Phil. 452, 478; 632 SCRA 146, 174 (2010).
51 Supra note 41 at p. 170; pp. 173-174, citing Lozano v. Nograles, 607
Phil. 334, 344; 589 SCRA 354, 362 (2009).
52 693 Phil. 399; 679 SCRA 237 (2012).
39
Petitioners’ invocation of “transcendental importance” is
hollow and does not merit the relaxation of the rule on
hierarchy of courts. There being no special, important or
compelling reason that justified the direct filing of the
petitions in the Court in violation of the policy on hierarchy
of courts, their outright dismissal on this ground is further
warranted.54
The petitioners failed to
implead indispensable
parties.
The cogent submissions of the PSE in its Comment-in-
Intervention dated June 16, 201455 and SHAREPHIL in its
Omnibus Motion [1] For Leave to Intervene; and [2] To
Admit Attached Comment-in-Intervention dated May 30,
201656 demonstrate how petitioners should have impleaded
not only PLDT but all other corporations in nationalized
and partlynationalized industries — because the propriety
of the SEC’s enforcement of the Court’s interpretation of
“capital” through SEC-MC No. 8 affects them as well.
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57 See Cua, Jr. v. Tan, 622 Phil. 661, 720; 607 SCRA 645, 708 (2009).
58 De Galicia v. Mercado, 519 Phil. 122, 127; 484 SCRA 131, 136-137
(2006).
59 Rollo (Vol. II), p. 1107.
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Resolution.
To determine what the Court directed the SEC to do —
and therefore resolve whether what the SEC did amounted
to grave abuse of discretion — the Court resorts to the
decretal portion of the Gamboa Decision, as this is the
portion of the decision that a party relies upon to determine
his or her rights and duties,60 viz.:
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42
In turn, the Gamboa Resolution stated:
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61 Supra note 2.
62 In its Manifestation and Omnibus Motion dated July 29, 2011, the
SEC stated: “x x x The Commission, however, would submit to whatever
would be the final decision of this Honorable Court on the meaning of the
term ‘capital.’”
In its Memorandum, the SEC also stated: “In the event that this
Honorable Court rules with finality on the meaning of “capital,” the SEC
will yield to the Court and follow its interpretation.” Heirs of Wilson P.
Gamboa v. Teves, supra note 3 at pp. 356-357; p. 462. (emphasis omitted)
43
To recall, the sole issue in the Gamboa case was:
“whether the term ‘capital’ in Section 11, Article XII of the
Constitution refers to the total common shares only or to
the total outstanding capital stock (combined total of
common and nonvoting preferred shares) of PLDT, a public
utility.”64
The Court directly answered the issue and consistently
defined the term “capital” as follows:
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63 Heirs of Wilson P. Gamboa v. Teves, id., at pp. 356, 358; pp. 463-
464.
64 Supra note 2 at p. 35; p. 705.
65 Id., at pp. 51-53; pp. 723-726.
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standing capital stock whether fully paid or not, but only such
stocks which are generally entitled to vote are considered.
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Echoing the FIA-IRR, the Court stated in the Gamboa
Decision that:
Was the definition of the term “capital” in Section 11,
Article XII of the 1987 Constitution declared for the first
time by
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72 Department of Justice.
73 Executive Order No. 226 or the Omnibus Investments Code of 1987;
Presidential Decree No. 1789 or the Omnibus Investments Code of 1981,
and Republic Act No. 5186 or the Investment Incentives Act of 1967.
74 Supra note 3 at p. 321; p. 424.
75 Id., at p. 331; p. 435.
76 Id., at p. 342; p. 446.
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XII.
Final Word
The Constitution expressly declares as State policy the
development of an economy “effectively controlled” by Filipinos.
Consistent with such State policy, the Constitution explicitly
reserves the ownership and operation of public utilities to
Philippine nationals, who are defined in the Foreign Investments
Act of 1991 as Filipino citizens, or corporations or associations at
least 60 percent of whose capital with voting rights belongs to
Filipinos. The FIA’s implementing rules explain that “[f]or stocks
to be deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required
Filipino equity. Full beneficial ownership of stocks, coupled
with appropriate voting rights is essential.” In effect, the
FIA clarifies, reiterates and confirms the interpretation that the
term “capital” in Section 11, Article XII of the 1987 Constitution
refers to shares with voting rights, as well as with full
beneficial ownership. This is precisely because the right to vote
in the election of directors, coupled with full beneficial ownership
of stocks, translates to effective control of a corporation.77
Everything told, the Court, in both the Gamboa Decision
and Gamboa Resolution, finally settled with the FIA’s
definition of “Philippine national” as expounded in the FIA-
IRR in construing the term “capital” in Section 11, Article
XII of the 1987 Constitution.
The assailed SEC-MC No. 8.
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Section 2 of SEC-MC No. 8 clearly incorporates the
Voting Control Test or the controlling interest requirement.
In fact, Section 2 goes beyond requiring a 60-40 ratio
in favor of Filipino nationals in the voting stocks; it
moreover requires the 60-40 percentage ownership
in the total number of outstanding shares of stock,
whether voting or not. The SEC formulated SEC-MC
No. 8 to adhere to the Court’s unambiguous pronouncement
that “[f]ull beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the
voting rights is required.”79 Clearly, SEC-MC No. 8 cannot
be said to have been issued with grave abuse of discretion.
A simple illustration involving Company X with three
kinds of shares of stock, easily shows how compliance with
the requirements of SEC-MC No. 8 will necessarily result
to full and faithful compliance with the Gamboa Decision
as well as the Gamboa Resolution.
The following is the composition of the outstanding
capital stock of Company X:
100 common shares
100 Class A preferred shares (with right to elect
directors)
100 Class B preferred shares (without right to elect
directors)
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GAMBOA
SEC-MC No. 8
DECISION/RESOLUTION
(2) 60% (required percentage of “Full beneficial ownership of
Filipino) applied to BOTH (a) the 60 percent of the
total number of outstanding shares outstanding capital stock,
of stock, entitled to vote in the coupled with 60 percent of
election of directors; AND (b) the the voting rights”81
total number of outstanding shares
of stock, whether or not entitled to
vote in the election of directors. or “Full beneficial ownership
of the stocks, coupled with
appropriate voting rights
x x x shares with voting
rights, as well as with full
beneficial ownership”82
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The minority justifies the application of the 60-40
Filipino-foreign ownership rule separately to each class of
shares of a public utility corporation in this fashion:
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52
The definition of “beneficial owner” or “beneficial
ownership” in the Implementing Rules and Regulations of
the Securities Regulation Code (“SRC-IRR”) is consistent
with the concept of full beneficial ownership” in the FIA-
IRR.
As defined in the SRC-IRR, “[b]eneficial owner or
beneficial ownership means any person who, directly or
indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares
voting power (which includes the power to vote or direct the
voting of such security) and/or investment returns or power
(which includes the power to dispose of, or direct the
disposition of such security) x x x.”84
While it is correct to state that beneficial ownership is
that which may exist either through voting power and/or
investment returns, it does not follow, as espoused by the
minority opinion, that the SRC-IRR, in effect, recognizes a
possible situation where voting power is not commensurate
to investment power. That is a wrong syllogism. The fallacy
arises from a misunderstanding on what the definition is
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53
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54
XII.
Final Word
x x x The FIA’s implementing rules explain that “[f]or stocks to
be deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required
Filipino equity. Full beneficial ownership of the stocks,
coupled with appropriate voting rights is essential.”87
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86 Supra note 2 at pp. 57, 63; pp. 730-737. Emphasis and underscoring
supplied.
87 Supra note 3 at p. 361; pp. 467-468.
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petitioners is unwarranted.
Petitioners’ insistence that the 60% Filipino equity
requirement must be applied to each class of shares is
simply beyond the literal text and contemplation of Section
11, Article XII of the 1987 Constitution, viz.:
As worded, effective control by Filipino citizens of a
public utility is already assured in the provision. With
respect to a stock corporation engaged in the business of a
public utility, the constitutional provision mandates three
safeguards: (1) 60% of its capital must be owned by Filipino
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58
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59
Illustration – one party has a choice over how an
instrument is settled
When a derivative financial instrument gives one party a choice
over how it is settled (for instance, the issuer or the holder can
choose settlement net in cash or by exchanging shares for cash), it
is a financial asset or a financial liability unless all of the
settlement alternatives would result in it being an equity
instrument. [IAS 32.26]92
The fact that from an accounting standpoint, the
substance or essence of the financial instrument is the key
determinant whether it should be categorized as a financial
liability or an equity instrument, there is no compelling
reason why the same treatment may not be recognized
from a legal perspective. Thus, to require Filipino
shareholders to acquire preferred shares that are
substantially debts, in order to meet the “restrictive”
Filipino ownership requirement that petitioners espouse,
may not bode well for the Philippine corporation and its
Filipino shareholders.
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92 Id.
60
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61
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stock may be issued only with a stated par value. The Board
of Directors, where authorized in the articles of
incorporation, may fix the terms and conditions of preferred
shares of stock or any series thereof: Provided, That such
terms and conditions shall be effective upon the filing of a
certificate thereof with the Securities and Exchange
Commission.
x x x x
A corporation may, furthermore, classify its shares for
the purpose of insuring compliance with constitutional or
legal requirements.
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.
Where the articles of incorporation provide for nonvoting
shares in the cases allowed by this Code, the holders of such
shares shall nevertheless be entitled to vote on the following
matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of bylaws;
3. Sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of the corporate
property;
4. Incurring, creating or increasing bonded
indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with
another corporation or other corporations;
63
64
The Gamboa Decision held that preferred shares are to
be factored in only if they are entitled to vote in the election
of directors. If preferred shares have no voting rights, then
they cannot elect members of the board of directors, which
wields control of the corporation. As to the right of
nonvoting preferred shares to vote in the 8 instances
enumerated in Section 6 of the Corporation Code, the
Gamboa Decision considered them but, in the end, did not
find them significant in resolving the issue of the proper
interpretation of the word “capital” in Section 11, Article
XII of the Constitution.
Therefore, to now insist in the present case that
preferred shares be regarded differently from their
unambiguous treatment in the Gamboa Decision is enough
proof that the Gamboa Decision, which had attained
finality more than 4 years ago, is being drastically changed
or expanded.
In this regard, it should be noted that the 8 corporate
matters enumerated in Section 6 of the Corporation Code
require, at the outset, a favorable recommendation by the
management to the board. As mandated by Section 11,
Article XII of the Constitution, all the executive and
managing officers of a public utility company must be
Filipinos. Thus, the all-Filipino management team must
first be convinced that any of the 8 corporate actions in
Section 6 will be to the best interest of the company. Then,
when the all-Filipino management team recommends this
to the board, a majority of the
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66
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67
In its Omnibus Motion [1] For Leave to Intervene; and
[2] To Admit Attached Comment-in-Intervention dated
May 30, 2016,99 SHAREPHIL further warns that “[t]he
restrictive re-
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69
Petitioners have failed to counter or refute these
submissions of the PSE and SHAREPHIL. These unrefuted
observations indicate to the Court that a restrictive
interpretation — or rather, reinterpretation, of “capital,” as
already defined with finality in the Gamboa Decision and
Resolution — directly affects the well-being of the country
and cannot be labelled as “irrelevant and impertinent
concerns x x x add[ing] burden [to] the Court.”102 These
observations by the PSE103 and SHAREPHIL,104 unless
refuted, must be considered by the Court to be valid and
sound.
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general public and the national economy. The rise and fall
of stock market indices reflect to a considerable degree the
state of the economy. Trends in stock prices tend to herald
changes in business conditions. Consequently, securities
transactions are impressed with public interest x x x.”106
The importance of the stock market in the economy cannot
simply be glossed over.
In view of the foregoing, the pronouncement of the Court
in the Gamboa Resolution — the constitutional
requirement to apply uniformly and across the board to all
classes of shares, regardless of nomenclature and category,
comprising the capital of a corporation107 — is clearly an
obiter dictum that cannot override the Court’s unequivocal
definition of the term “capital” in both the Gamboa
Decision and Resolution.
Nowhere in the discussion of the definition of the term
“capital” in Section 11, Article XII of the 1987 Constitution
in the Gamboa Decision did the Court mention the 60%
Filipino equity requirement to be applied to each class of
shares. The definition of “Philippine national” in the FIA
and expounded in its IRR, which the Court adopted in its
interpretation of the term “capital,” does not support such
application. In fact, even the Final Word of the Gamboa
Resolution does not even
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108 716 Phil. 500, 515-516; 704 SCRA 24, 38-39 (2013). Emphasis
supplied; citations omitted.
72
The onus rests on petitioners to clearly and sufficiently
establish that the SEC, in issuing SEC-MC No. 8, acted in
a capricious, whimsical, arbitrary or despotic manner in
the exercise of its jurisdiction as to be equivalent to lack of
jurisdiction or that the SEC’s abuse of discretion is so
patent and gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law and the
Gamboa Decision and Resolution. Petitioners miserably
failed in this respect.
The clear and unequivocal
definition of “capital” in Gam-
It is an elementary principle in procedure that the
resolution of the court in a given issue as embodied in the
dispositive portion or fallo of a decision controls the
settlement of rights of the parties and the questions,
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73
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110 Contreras and Gingco v. Felix and China Banking Corp., 78 Phil.
570, 577-578 (1947). Citations omitted.
111 Id., at p. 575.
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112 See Land Bank of the Philippines v. Suntay, 678 Phil. 879, 913-
914; 662 SCRA 614, 647 (2011).
113 FGU Insurance Corporation v. Regional Trial Court of Makati
City, Branch 66, 659 Phil. 117, 123; 644 SCRA 50, 56 (2011).
114 Id.
75
proscribed.
As Justice Bersamin further noted during the
deliberations, the petitions are in reality second motions for
reconsideration prohibited by the Internal Rules of the
Supreme Court.115 The parties, particularly intervenors
Gamboa, et al., could have filed a motion for clarification in
Gamboa in order to fill in the perceived shortcoming
occasioned by the noninclusion in the dispositive portion of
the Gamboa Resolution of what was discussed in the
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115 A.M. No. 10-4-20-SC, Rule 15, Sec. 3. Second motion for
reconsideration.—The Court shall not entertain a second motion for
reconsideration, and any exception to this rule can only be granted in the
higher interest of justice by the Court En Banc upon a vote of at least two-
thirds of its actual membership. There is reconsideration “in the higher
interest of justice” when the assailed decision is not only legally
erroneous, but is likewise patently unjust and potentially capable of
causing unwarranted and irremediable injury or damage to the parties. A
second motion for reconsideration can only be entertained before the
ruling sought to be reconsidered becomes final by operation of law or by
the Court’s declaration.
x x x x
116 See Mahusay v. B.E. San Diego, Inc., 666 Phil. 528, 536; 651 SCRA
533, 537-538 (2011).
117 See Commissioner on Higher Education v. Mercado, 519 Phil. 399,
406; 484 SCRA 424, 431 (2006).
76
77
CONCURRING OPINION
SERENO, CJ.:
The Petition for Certiorari before this Court assails the
validity of Memorandum Circular No. 8, Series of 2013,
issued by respondent Securities and Exchange Commission
(SEC).
The SEC circular provides for the guidelines on
compliance with the Filipino-foreign ownership
requirements prescribed in the Constitution and/or existing
laws by corporations engaged in nationalized and partly
nationalized activities. The specific provision that
operationalizes the ownership requirements reads:
Evidently, the circular limits the application of the
ownership requirement only to the number of stocks in a
corporation. It does not take into consideration the par
value, which, in turn, affects the dividends or earnings of
the shares.
The par value of shares is not always equal. The par
value of common shares may be lower than that of
preferred shares. The latter take any of a variety of forms
— they may be cumulative, noncumulative, participating,
nonparticipating, or convertible. Their par values tend to
differ depending on their features and entitlement to
dividends.
The number and the par value of the permutation of
shares definitely affect the issue of the stockholding of a
corporation. As illustrated by Justice Antonio T. Carpio,
pre-
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78
From that determination, the SEC may be able to gather
the necessary information to correctly classify various
kinds of shares in different combinations of numbers, par
values, and dividends. However, with the SEC considering
only the matter of the number of shares under the assailed
circular, and absent any deeper analysis of PLDT equity
structure, any disposition in this case would be premature.
I would even venture that in the case of a company
where 60% of stocks are voting and 40% are preferred, with
each stock having the same par value, and which complies
with the 60% Filipino voting share rule by requiring that
all voting
79
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1 Gamboa v. Teves, 668 Phil. 1; 652 SCRA 690 (2011) and Heirs of
Wilson P. Gamboa v. Teves, 696 Phil. 276, 485; 682 SCRA 397, 416 (2012).
1 668 Phil. 1; 652 SCRA 690 (2011).
80
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Significantly, in the 9 October 2012 Resolution in
Gamboa (Gamboa Resolution)6 denying the motion for
reconsideration,
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81
The Court further clarified, in no uncertain terms, that
the 60 percent constitutional requirement of Filipino
ownership applies uniformly and across the board to all
classes of shares comprising the capital of a corporation.
The 60 percent Filipino ownership requirement applies to
each class of share, not to the total outstanding capital
stock as a single class of share. The Court explained:
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81
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Clearly, in both Gamboa Decision and Resolution, the
Court categorically declared that the 60 percent minimum
Filipino ownership refers not only to voting rights but
likewise to full beneficial ownership of the stocks. Likewise,
the 60 percent Filipino ownership applies uniformly to each
class of shares. Such interpretation ensures effective
control by Filipinos of public utilities, as expressly
mandated by the Constitution.
On 20 May 2013, the Securities and Exchange
Commission (SEC), through respondent Chairperson
Teresita J. Herbosa, issued Memorandum Circular No. 8,
Series of 2013, to implement the Court’s directive in the
Gamboa Decision and Resolution. Section 2 thereof
pertinently provides:
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84
SEC Memorandum Circular No. 8 provides for two
conditions in determining whether a corporation intending
to operate or operating a public utility complies with the
mandatory 60 percent Filipino ownership requirement. It
expressly states that the 60 percent Filipino ownership
requirement “shall be applied to BOTH (a) the total
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9 Belo v. Philippine National Bank, 405 Phil. 851; 353 SCRA 359
(2001); Soriano v. Offshore Shipping and Manning Corporation, 258 Phil.
309; 177 SCRA 513 (1989).
87
CONCURRING OPINION
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VELASCO, JR., J.:
Nature of the Case
Before the Court is a petition for Certiorari under Rule
65 of the Rules of Court assailing the constitutionality and
validity of Memorandum Circular (MC) No. 8, entitled
“Guidelines on Compliance with the Filipino-Foreign
Ownership Requirements prescribed by the Constitution
and/or Existing Laws by Corporations Engaged in
Nationalized Activities,” issued by the Securities and
Exchange Commission (SEC).
Factual Antecedents
On June 28, 2011, the Court issued a Decision in
Gamboa v. Teves1 on the matter of “whether the term
‘capital’ in Section 11, Article XII of the Constitution refers
to the total common shares only or to the total outstanding
capital stock (combined total of voting and nonvoting
shares) of PLDT, a public utility.”
Resolving the issue, the majority of the Court held that:
“The term ‘capital’ in Section 11, Article XII of the
Constitution refers only to shares of stock entitled to
vote in the election of directors, and thus in the
present case only to common shares, and not to the total
outstanding capital stock comprising both common and
nonvoting preferred shares.”2 The Court then directed the
SEC to apply this definition of the term “capital” in
determining the extent of allowable foreign ownership in
PLDT.
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1 G.R. No. 176579, June 28, 2011, 652 SCRA 690 and Heirs of Wilson
P. Gamboa v. Teves, G.R. No. 176579, October 9, 2012, 682 SCRA 397.
2 Emphasis supplied.
88
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Petitioner Jose Roy III takes exception to the foregoing
provision alleging that it is not in accord with the ruling of
the Court in Gamboa. He contends that the SEC committed
grave abuse of discretion since Section 2 of MC No. 8 “fails
to
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89
90
The petitioner’s failure to sufficiently allege, much less
prove the existence of the first two requisites, warrants the
outright dismissal of the petition.
To satisfy legal standing in assailing the
constitutionality of a governmental act, the petitioner must
prove the direct and personal injury that he might
suffer if the act is permitted to stand. Petitioner Roy,
however, merely glossed over this requisite, simply
claiming that the law firm he represents is “a subscriber of
PLDT.” It is not even clear whether the law firm is a
“subscriber” of PLDT’s shares or purely of its various
communication services.
Clearly, the very limited information provided by the
petitioner does not sufficiently demonstrate how he is left
to sustain or is in immediate danger of sustaining some
direct injury as a result of the SEC’s issuance of MC No. 8.
As correctly argued by the respondents, assuming that his
law firm is indeed a subscriber of PLDT shares of stocks,
whether or not the constitutionality of MC No. 8 is upheld,
his law firm’s rights as
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4 In the Matter of: Save the Supreme Court Judicial Independence and
Fiscal Autonomy Movement v. Abolition of Judiciary Development Fund
(JDF) and Reduction of Fiscal Autonomy, UDK-15143, January 21, 2015,
746 SCRA 352.
5 General v. Urro, G.R. No. 191560, March 29, 2011, 646 SCRA 567,
577, citing Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 632;
338 SCRA 81, 99 (2000).
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91
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6 Galicto v. Aquino III, G.R. No. 193978, February 28, 2012, 667 SCRA
150, 172-173, citing Integrated Bar of the Philippines v. Zamora, id.
7 Automotive Industry Workers Alliance (AIWA) v. Romulo, 489 Phil.
710, 719; 449 SCRA 1, 11 (2005); Gonzales v. Narvasa, 392 Phil. 518, 525;
337 SCRA 733, 742 (2000).
92
The liberality of the Court in bypassing the locus standi
rule cannot, therefore, be abused. If the Court is to
maintain
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8 Republic v. Roque, G.R. No. 204603, September 24, 2013, 706 SCRA
273, 285-286.
9 Supra note 6.
10 Emphasis supplied.
93
In like manner, a hollow invocation of “transcendental
importance” does not warrant the immediate relaxation of
the rule on hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a
general determinant of the appropriate forum for petitions
for the extraordinary writs.11 Indeed, “the Supreme Court
is a court of last resort and must so remain if it is to
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11 Liga ng mga Barangay National v. Atienza, Jr., G.R. No. 154599,
January 21, 2004, 420 SCRA 562, 572.
12 Vergara, Sr. v. Suelto, 240 Phil. 719, 732; 156 SCRA 753, 766
(1987); De Castro v. Santos, G.R. No. 194994, April 16, 2013, 696 SCRA
400, 407.
13 De Castro v. Santos, id., citing Santiago v. Vasquez, G.R. Nos.
99289-90, January 27, 1993, 217 SCRA 633; and People v. Cuaresma, 254
Phil. 418, 427; 172 SCRA 415, 422-424 (1989).
94
Even assuming that the issue involved in the present
recourse is of vital importance, it is dismissible for its
failure to implead the indispensable parties.
Under Rule 3, Section 7 of the Rules of Court, an
indispensable party is a party-in-interest, without whom
there can be no final determination of an action. The
interests of such indispensable party in the subject matter
of the suit and the relief are so bound with those of the
other parties that his legal presence as a party to the
proceeding is an absolute necessity.14 As a rule, an
indispensable party’s interest in the subject matter is such
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14 Cua, Jr. v. Tan, G.R. Nos. 181455-56, December 4, 2009, 607 SCRA
645, 695.
15 Id., citing De Galicia v. Mercado, G.R. No. 146744, March 6, 2006,
484 SCRA 131, 136-137.
95
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16 See David v. Paragas, Jr., G.R. No. 176973, February 25, 2015, 751
SCRA 648, 663 and Sy v. Court of Appeals, G.R. No. 94285, August 31,
1999, 313 SCRA 328, 353-354.
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17 Id.
18 OKS DesignTech, Inc. v. Caccam, G.R. No. 211263, August 5, 2015,
765 SCRA 433, 442-443.
19 Gold City Integrated Services, Inc. (INPORT) v. Intermediate
Appellate Court, G.R. Nos. 71771-73, March 31, 1989, 171 SCRA 579, 585,
citing Arguelles v. Young, No. L-59880, September 11, 1987, 153 SCRA
690; Republic v. Heirs of Spouses Florentino and Pacencia Molinyawe,
G.R. No. 217120, April 18, 2016, 790 SCRA 107, 116-117; Olaño v. Lim
Eng Co, G.R. No. 195835, March 14, 2016, 787 SCRA 272, 285; City of
Iloilo v. Honrado, G.R. No. 160399, December 9, 2015, 777 SCRA 23, 34;
OKS DesignTech, Inc. v. Caccam, id.
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The Court explained in the June 28, 2011 Decision in
Gamboa that the term “capital” in Section 11, Article
XII refers “only to shares of stock entitled to vote in
the election of directors.” The rationale provided by the
majority was that this interpretation ensures that control
of the Board of Directors stays in the hands of Filipinos,
since foreigners can only own a maximum of 40% of said
shares and, accordingly, can only elect the equivalent
percentage of directors. As a necessary corollary, Filipino
stockholders can always elect 60% of the Board of Directors
which, to the majority of the Court, translates to control
over the corporation. The June 28, 2011 Decision, thus,
reads:
98
The dispositive portion of the June 28, 2011 Decision in
Gamboa clearly spelled out the doctrinal declaration of the
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99
Clearly, the Court had no intention, express or
otherwise, to amend the construction of the term “capital”
in the June 28, 2011 Decision in Gamboa, much less in the
manner proposed by petitioner Roy. Hence, no grave abuse
of discretion can be attributed to the SEC in applying the
term “capital” to the “voting shares” of a corporation.
The portion quoted by the petitioners is nothing more
than an obiter dictum that has never been discussed as an
issue during the deliberations in Gamboa. As such, it is not
a binding pronouncement of the Court20 that can be used as
basis to declare the SEC’s circular as unconstitutional.
This Court explained the concept and effect of an obiter
dictum thusly:
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20 Ocean East Agency Corporation v. Lopez, G.R. No. 194410, October
14, 2015, 772 SCRA 414, 428-429.
100
What is more, requiring the SEC to impose the 60-40
requirement to “each and every class of shares” in a public
utility is not only unsupported by Section 11, Article XII, it
is also administratively and technically infeasible to
implement and enforce given the variety and number of
classes that may be issued by public utility corporations.
Common and preferred are the usual forms of stock.
However, it is also possible for companies to customize and
issue different classes of stock in any way they want. Thus,
while all issued common shares may be voting, their
dividends may be “deferred” or subject to certain
conditions. Corporations can also issue “cumulative
preferred shares” that are issued with the stipulation that
any scheduled dividends that cannot be paid when due are
carried forward and must be paid before the company can
pay out ordinary share dividends. A company can likewise
issue “hybrid stocks” or preferred shares that can be
converted to a fixed number of common stocks at a
specified time. These stocks may or may not be given voting
rights. Further, some stocks may be embedded with
derivative options so that a type of stock may be “called” or
redeemed by the company at a specified time at a fixed
price,
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21 Land Bank of the Philippines v. Suntay, G.R. No. 188376, December
14, 2011, 662 SCRA 614, 648.
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102
The definition was taken a step further in the
Implementing Rules and Regulations of the law where the
phrase “beneficial ownership” was used, as follows:
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103
While the foregoing provisions were cited in Gamboa in
identifying the “capital stock outstanding and entitled to
vote” as equivalent to “capital” in Section 11, Article XII of
the Constitution, nothing in either provision requires the
application of the 60% threshold to “each and every class of
shares” of public utilities.
At most, as pointed out by the majority, “beneficial
ownership” must be understood in the context in which it is
used. Thusly, the phrase simply means that the name and
full rights of ownership over the 60% of the voting
shares in public utilities must belong to Filipinos. If either
the voting rights or the right to dividends, among others, of
voting shares registered in the name Filipino citizens or
nationals are assigned or transferred to an alien, these
shares shall not be included in the computation of the 60%
threshold.
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In my opinion in Heirs of Gamboa v. Teves,23 I pointed
out the dire consequences of not imposing the 40% limit on
foreign ownership on the totality of the shareholdings, viz.:
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105
Let us, however, take this corporate scenario a little bit farther
and consider the irresistible implications of changes and
circumstances that are inevitable and common in the business
world. Consider the simple matter of a possible investment of
corporate funds in another corporation or business, or a merger of
the public utility corporation, or a possible dissolution of the
public utility corporation. Who has the “control” over these
vital and important corporate matters? The last paragraph of
Sec. 6 of the Corporation Code provides:
Where the articles of incorporation provide for nonvoting
shares in the cases allowed by this Code, the holders of
such (nonvoting) shares shall nevertheless be
entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of bylaws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of
all or substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another
corporation or other corporations;
7. Investment of corporate funds in another corporation or
business in accordance with this Code; and
8. Dissolution of the corporation. (Emphasis and underscoring
supplied)
In our hypothetical case, all 1,000,100 (voting and nonvoting)
shares are entitled to vote in cases involving fundamental and
major changes in the corporate structure, such as those listed in
Sec. 6 of the Corporation Code. Hence, with only 60 out of the
1,000,100 shares in the hands of the Filipino shareholders, control
is definitely in the hands of the foreigners. The foreigners can opt
to invest in other businesses and corporations, increase its bonded
indebtedness, and even dissolve the public utility corporation
against the interest of the Fili-
106
107
108
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Thus, the zealous watchfulness demonstrated by
the SEC in imposing another tier of protection for
Filipino stockholders cannot, therefore, be penalized
on a misreading of the October 9, 2012 Resolution in
Gamboa, which neither added nor subtracted anything
from the June 28, 2011 Decision defining capital as “shares
of stock entitled to vote in the election of directors.”
Thus, I join the majority in ruling that there is no need
to clarify the ruling in Gamboa nor hold the Commission
liable for grave abuse of discretion. As it has manifested in
Gamboa,24 in issuing MC No. 8, the SEC abided by the
Court’s decision and deferred to the Court’s definition of
the term “capital” in Section 11, Article XII of the
Constitution.
In view of all the foregoing, I vote to DISMISS the
petition.
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110
CONCURRING OPINION
BERSAMIN, J.:
Petitioner Jose M. Roy III (Roy) initiated this special
civil action for certiorari and prohibition to seek the
declaration of Memorandum Circular No. 8, Series of 2013
(MC No. 8), particularly Section 2 thereof issued by the
Securities and Exchange Commission (SEC)
unconstitutional. Allegedly, MC No. 8 was in contravention
of the rule on the nationality of the shareholdings in a
public utility pronounced in Gamboa v. Teves.1
According to Roy, MC No. 8 effectively limited the
application of the 60-40 nationality rule to voting and other
shares alone; and the SEC thereby gravely abused its
discretion amounting to lack or excess of jurisdiction.
Section 2 of MC No. 8 reads:
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I CONCUR.
I VOTE TO DISMISS the petition for certiorari and
prohibition of Roy and the petition in intervention. The
SEC did
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1 G.R. No 176579, June 28, 2011, 652 SCRA 690; Heirs of Wilson P.
Gamboa v. Teves, G.R. No. 176579, October 9, 2012, 682 SCRA 397
(resolution).
111
The remedies of certiorari and prohibition respectively
provided for in Section 13 and Section 24 of Rule 65 of the
Rules of
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112
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113
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114
The Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced
by a judicial party. In a decided case, a husband complained
that his wife was unwilling to perform her duties as a wife.
The Court said: “We can tell your wife what her duties as
such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital
duty to her
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able and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
8 G.R. No. 209287, July 1, 2014, 728 SCRA 1, 68-69.
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In the decision promulgated on June 28, 2011 in
Gamboa v. Teves, the Court explicitly defined the term
capital as referring only to shares of stock entitled to vote
in the election of directors.11 In the case of Philippine Long
Distance Telephone Company (PLDT), its capital — for
purposes of complying with the constitutional requirement
on nationality — should include only its common shares,
not its total outstanding capital stock comprising both
common and nonvoting preferred shares.12
The Court clarified, however, that —
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x x x x
Mere legal title is insufficient to meet the 60 percent Filipino-
owned capital required in the Constitution. Full beneficial
ownership of 60 percent of the outstanding capital stock,
coupled with 60 percent of the voting rights, is required.
The legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipino
nationals in accordance with the constitutional mandate.
Otherwise, the corporation is considered as non-Philippine
national[s].13
In the June 28, 2011 decision, the Court disposed as
follows:
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The SEC issued MC No. 8 to conform with the Court’s
pronouncement in its decision of June 28, 2011. As stated,
Section 2 of MC No. 8 declared that “[f]or purposes of
determining compliance therewith, the required percentage
of Filipino shall be applied to BOTH (a) the total number of
outstanding shares of stock entitled to vote in the election
of directors; AND (b) the total number of outstanding
shares of stock, whether or not entitled to vote in the
election of directors.”
Roy and the intervenors submit herein, however, that
MC No. 8 thereby defied the pronouncement in Gamboa v.
Teves on the determination of foreign ownership of a public
utility by failing “to make a distinction between different
classes of shares, and instead offers only a general
distinction between voting and all other shares.”
I disagree with the submission of Roy and the
intervenors.
The objective of the Court in defining the term capital as
used in Section 11, Article XII of the Constitution was to
ensure that both controlling interest and beneficial
ownership were vested in Filipinos. The decision of June
28, 2011 pronounced that capital refers only to shares of
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x x x [T]he 60-40 ownership requirement in favor of Filipino citizens must apply
separately to each class of shares, whether common, preferred nonvoting,
preferred voting or any other class of shares.
125
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126
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127
decision fail to reflect the exact views of the court, especially those
of concurring justices in a collegiate court. We often encounter in
judicial decisions, lapses, findings, loose statements and
generalities which do not bear on the issues or are apparently
opposed to the otherwise sound and considered result reached by
the court as expressed in the dispositive part, so called, of the
decision.
There is also no need to try to harmonize the seeming
conflict between the fallo of the October 9, 2012 resolution
and its body in order to favor Roy and the intervenors. The
dispositive portion of the resolution of October 9, 2012,
which tersely stated that “we DENY the motions for
reconsideration WITH FINALITY,” was clear and
forthright enough, and should prevail. The only time when
the body of the decision or resolution should be controlling
is when one can unquestionably find a persuasive showing
in the body of the decision or resolution that there was a
clear mistake in the dispositive portion.24 Yet, no effort has
been exerted herein to show that there was such an error
or mistake in the dispositive portion or fallo of the October
9, 2012 resolution.
Under the circumstances, the dispositive portions of
both the decision of June 28, 2011 and of the resolution of
October 12, 2012 are controlling.
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4.
The petition is actually a disguised circumvention
of the ban against a second motion for
reconsideration
To me, the petition of Roy is an attempt to correct the
failure of the dispositive portion of the resolution of October
9, 2012 to echo what was stated in the body of the
resolution. In that sense, the petition is actually a second
motion for reconsideration disguise as an original petition
for certiorari and
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24 Cobarrubias v. People, G.R. No. 160610, August 14, 2009, 596 SCRA
77, 89-90.
128
Had the intervenors genuinely desired to correct the
perceived omission in the resolution of October 9, 2012 in
Gamboa v. Teves, their proper recourse was not for Roy to
bring the petition herein, but to file by themselves a motion
for clarification in Gamboa v. Teves itself. As the Court
observed in Mahusay v. B.E. San Diego, Inc.:25
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The statement in the dispositive portion or fallo of the
resolution of October 9, 2012 to the effect that “[n]o further
pleadings shall be entertained” would not have been a
hindrance to the filing of the motion for clarification
because such statement referred only to motions that
would have sought the reversal or modification of the
decision on its merits, or to motions ill-disguised as
requests for clarification.26 Indeed, the intervenors as the
petitioners in Gamboa v. Teves would not have been
precluded from filing such motion that would have
presented an unadulterated inquiry arising upon an
ambiguity in the decision.27
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130
DISSENTING OPINION
MENDOZA, J.:
The final ruling in a case includes not only the decision
but also the clarifications and amplifications contained in
subsequent resolutions before its finality. A party cannot
isolate the decision and ignore the elucidations contained
in the resolutions. It is only after the decision becomes final
that it becomes immutable and unalterable.1
Accordingly, the June 28, 2011 Decision in Gamboa v.
Teves2 (Gamboa Decision) is not the final ruling in said
case but includes the clarification and amplifications of the
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Thereafter, motions for reconsideration were filed. In its
Resolution5 dated October 9, 2012 (Gamboa Resolution),
the Court stressed that the 60-40 ownership requirement
in favor of Filipino citizens in the Constitution to engage in
certain economic activities applied not only to voting
control, but also to the beneficial ownership of the
corporation. The Court wrote that the same limits must
apply uniformly and separately to each class of
shares, without regard to their restrictions or
privileges. Specifically, the Court explained:
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Hence, the Court finally decreed:
Eventually, the definition of “capital,” as finally
amplified and elucidated by the Court in the Gamboa
Resolution, became final and executory.
On March 25, 2013, the SEC issued a notice to the
public, soliciting comments on, and suggestions to, the
draft guidelines in compliance with the Filipino ownership
requirement in public utilities prescribed in Section 11,
Article XII of the Constitution.
On April 22, 2013, petitioner Atty. Jose M. Roy III (Roy)
submitted his written comments7 pursuant to the SEC
Notice of March 25, 2013. He pointed out that the said
guidelines (specifically Section 2 thereof) did not comply
with the letter and spirit of the Court’s final ruling in
Gamboa. Roy claimed that he never received a reply from
the SEC.
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6 Id.
7 Rollo, pp. 270-272.
134
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The Subject Petition
Contending that the issuance of the assailed circular
contradicted the intent and spirit of Gamboa, Roy, as a
lawyer and taxpayer, filed the subject petition, contending
that the assailed circular contradicted the intent and spirit
of the final Gamboa ruling. He feared that the assailed
circular would encourage circumvention of the
constitutional limitation for it would allow the creation of
several classes of voting shares with different degrees of
beneficial ownership over the same, but at the same time,
not imposing a forty percent (40%) limit on foreign
ownership of the higher yielding stocks; and that
permitting foreigners to benefit from equity structures with
Filipinos being given merely voting rights, but not the full
economic benefits, thwarts the constitutional directive of
guaranteeing a self-reliant and independent national
economy effectively controlled by Filipinos. The effect
would be, as he wrote, that while Filipinos are given voting
rights, they would be denied of the full economic benefits
produced by the public utility company.
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8
<https://.sec.gov.ph/.../memorandumcircular/.../sec%20%memo%20no.%208>
(last visited, April 21, 2015).
135
Petition-in-Intervention
Following the filing of the said petition by Roy, the
Court granted the Motion to Leave to File Petition-in-
Intervention filed by Wilson C. Gamboa, Jr., the son of the
petitioner in Gamboa, together with lawyers Daniel V.
Cartagena, John Warren P. Gabinete, Antonio V. Pesina,
Jr., Modesto Martin Y. Manon, and Gerardo C. Erebaren
(Gamboa, et al.). In their Petition-in-Intervention (For
Certiorari),9 dated July 16, 2013, Gamboa, et al. merely
adopted the issues, arguments and prayer of Roy.
Both Roy and Gamboa, et al. (petitioners) claimed that
by issuing MC No. 8, the SEC defied the final Gamboa
ruling as to the determination of foreign ownership in a
public utility corporation. They argued that MC No. 8 did
not conform to the letter and spirit of the final Court ruling
as the Gamboa Resolution clearly stated that the 60-40
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On June 18, 2014, the Philippine Stock Exchange, Inc.
(PSEI) filed its Motion to Intervene with Leave of Court15
attaching thereto its Comment-in-Intervention. The PSEI
took the same position as the SEC as to how “capital” in
Section 11, Article XII of the 1987 Constitution was defined
in Gamboa. It agreed with the SEC that the dispositive
portion or the fallo of a decision should be the controlling
factor.
Comment-in-Intervention
by Sharephil
On June 1, 2016, Shareholders’ Association of the
Philippines, Inc. (Sharephil) filed an Omnibus Motion for
Leave to Intervene and Admit attached Comment-in-
Intervention. It sought intervention under Rule 19 of the
Rules of Court16 to protect the rights of shareholders
against the effects of unlawful and unreasonable
regulations.
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20 Rollo.
140
Issues
1. WHETHER OR NOT SEC MEMORANDUM CIRCULAR
NO. 8, SERIES OF 2013 CONFORMS TO THE LETTER
AND SPIRIT OF THE DECISION AND RESOLUTION OF
THIS HONORABLE COURT DATED 28 JUNE 2011 AND
9 OCTOBER 2012 IN G.R. NO. 176579 ENTITLED HEIRS
OF WILSON GAMBOA v. FINANCE SECRETARY
MARGARITO B. TEVES, ET AL.
2. WHETHER THE SEC GRAVELY ABUSED ITS
DISCRETION IN RULING THAT PLDT IS COMPLIANT
WITH THE CONSTITUTIONAL RULE ON FOREIGN
OWNERSHIP.
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142
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26 Id.
27 Malana v. Tappa, 616 Phil. 177; 600 SCRA 189 (2009).
144
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145
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146
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33 Imbong v. Ochoa, Jr., G.R. No. 204819, April 8, 2014, 721 SCRA
146, 282.
34 Id.
35 Id.
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Legal Standing
As defined, locus standi or legal standing is the personal
and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
governmental act that is being challenged.36 The party
must also demonstrate that the injury is likely to be
redressed by a favorable action of the courts.37 Absent this,
the Court cannot consider a case. In every situation, the
Court must scrutinize first whether a petitioner is suited to
challenge a particular governmental act.
The petitioners’ invocation of standing is based on being
a citizen, lawyer, taxpayer, and additionally for petitioner
Roy, a partner of a firm that patronizes PLDT for its
telecommunication needs.
The SEC and PLDT claim that such justification is not
enough to clothe the petitioners with legal standing
because they failed to show that the implementation of the
circular would cause them any direct or substantial injury.
Citing IBP v. Zamora,38 they also argue that standing
cannot be based merely on being a lawyer, as membership
in the Bar is too general an interest to satisfy the
requirement of locus standi.
I find, however, that the petitioners as properly suited in
their capacities as citizens.
In many cases, the legal standing of a citizen in the
context of issues concerning constitutional questions was
permitted by the Court. In Imbong v. Ochoa, Jr.,39 the
Court stated that the citizen’s standing to question the
constitutionality of a law could be allowed even if they had
only an indirect and
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36 Galicto v. Aquino III, supra note 17, citing Lozano v. Nograles,
supra note 32.
37 Anak Mindanao Party-List Group v. The Executive Secretary, 558
Phil. 338, 351; 531 SCRA 583, 592 (2007).
38 392 Phil. 618; 338 SCRA 81 (2000).
39 Supra note 33.
148
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149
Mindful of the constitutional objective of ensuring that
Filipinos remain in effective control of our national
economy, the Court in Gamboa seized the opportunity to
define the term capital as read in the context of the 1987
Constitution. In deciding the issue, the Court
fundamentally recognized and employed the control test41
as a primary method of determining compliance with the
restrictions imposed by the Constitution on foreign equity
participation. Under such test, one has to first look into the
nationality of each stockholder as it appears in the books of
the corporation because for a stockholder to have control
over the shares, he must hold them as the duly registered
owner in the stock and transfer book of a corporation.
Thus, in Gamboa, the Court declared that the required
Filipino control over the “capital” of a public utility meant
60% control over all shares with the right to elect the
members of the board coupled with 60% control over the
total outstanding capital stock. This would ensure that
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The Court then went on to explain that “[f]ull
beneficial ownership of 60 percent of the outstanding
capital stock, coupled with 60% of the voting rights, is also
required.” In other words, not only should the 60% of the
total outstanding capital stock and the shares with the
right to elect the directors be registered in the names of
Filipinos, but also the beneficial or equitable title to such
shares must be reasonably45 traced to Filipinos.
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46 Id.
47 Id.
48 To illustrate:
Suppose that X corporation seeks to engage as a public utility company.
It divided its total outstanding capital stock of 1000 into three classes of
shares — 300 common shares, 200 preferred shares with the right to vote
in the election of directors (Class A preferred), and 500 preferred without
such right to elect the directors (Class B preferred). Another Corporation,
Y, an entity considered as a Philippine national under the FIA on the
assumption that 60% of its capital is owned by Filipinos, owns all common
and class B preferred shares.
Three Hundred (300) common shares in the hands of Y, a Philippine
national represents sixty percent (60%) control over all shares with the
right to vote in the election of directors (sum of 200 Class A preferred
shares and 300 common shares). Coupled with another 500 preferred
Class B shares, Y can be considered in control of eighty percent (80%) of
the total outstanding capital stock of X.
Applying the control test leads to the conclusion that a Philippine
national in the person of Y controls X both with respect to the total
outstanding capital stock and the sum of all shares with the right to elect
the directors. However, after applying beneficial ownership test, which
means looking into each stockholders of Y through the grandfather rule, it
would show insufficient Filipino equity of at least sixty percent (60%) in X
as required under the Constitution, Foreign Investments Act and the
Court’s ruling in Gamboa.
153
The petitioners strongly assert that the SEC gravely
abused its discretion when it issued MC No. 8, with specific
reference to Section 2, which is again quoted as follows:
Roy points out that the SEC did not include in the
assailed circular the requirement of applying the 60-40 rule
to each and every class of shares. He fears that although
Filipinos
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Sixty percent (60%) of 300 common shares = 180 shares or 36% beneficial equity
in all shares with the rights to vote in the election of directors (sum of 300 common
shares and 200 Class A Preferred shares).
Sixty percent (60%) of 500 Class B preferred shares = 300 shares with the right
to elect directors.
To compute total Filipino beneficial equity in the total outstanding capital
stock, 300 shares plus the 180 shares as calculated above must be added. Thus,
300 shares + 180 shares = 480 shares or forty eight (48%) of the total outstanding
capital stock of X.
154
It has been said that economic rights give meaning to
control. The general assumption is that control rights are
always coupled with proportionate economic interest in a
corporation. This proportionality gives stockholders
theoretically an incentive to exercise voting power well,
makes possible the market for corporate control and
legitimates managerial property the managers do not
own.49
The same theory is adhered to by the Constitution. The
words “own and control,” used to qualify the minimum
Filipino participation in Section 11, Article XII of the
Constitution, reflects the importance of Filipinos having
both the ability to influence the corporation through voting
rights and economic benefits. In other words, full
ownership up to 60% of a public utility encompasses
both control and economic rights, both of which must
stay in Filipino hands. Filipinos, who own 60% of the
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Until the people decide, through a new constitution, to
ease the restrictions on foreign participation in the public
utility sector, the Court should resolve all doubts in favor of
upholding the spirit and intent of the 1987 Constitution.
As the SEC Memorandum Circular No. 8 is
noncompliant with the final Gamboa ruling, the omission
by the SEC of the 60-40 rule application in favor of
Filipinos to each and every class of shares of a public utility
constituted, and should have been declared, a grave abuse
of discretion.
In view of all the foregoing, the petition should have
been granted and SEC Memorandum Circular No. 8 should
have been declared as noncompliant with the final Gamboa
ruling.
Accordingly, the Security and Exchange Commission
should have been directed to strictly comply with the final
Gamboa ruling, by including in the assailed circular the
rule on the application of the 60-40 nationality requirement
to each class of shares regardless of restrictions or
privileges in accordance with the foregoing disquisition.
DISSENTING OPINION
LEONEN, J.:
I dissent from the Decision denying the Petition.
Respondent Securities and Exchange Commission’s
Memorandum Circular No. 8, Series of 2013 is inadequate
as it fails to encompass each and every class of shares in a
corporation engaged in nationalized economic activities.
This is in violation of the constitutional provisions limiting
foreign ownership in certain economic activities, and is in
patent disregard of this Court’s statements in its June 28,
2011 Decision1 as further
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1 Gamboa v. Teves, 668 Phil. 1; 652 SCRA 690 (2011) [Per J. Carpio,
En Banc].
161
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2 Heirs of Wilson P. Gamboa v. Teves, 696 Phil. 276; 682 SCRA 397
(2012) [Per J. Carpio, En Banc].
3 Const., Art. XII, Secs. 2, 10, 11, and Art. XIV, Sec. 4(2) provide:
ARTICLE XII. National Economy and Patrimony
. . . .
SECTION 2. All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development,
and utilization of natural resources shall be under the full control and
supervision of the State. The State may directly undertake such activities,
or it may enter into coproduction, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by such citizens. Such
agreements may be for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit
of the grant.
. . . .
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
162
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Filipinos.
The State shall regulate and exercise authority over foreign investments
within its national jurisdiction and in accordance with its national goals
and priorities.
SECTION 11. 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 associations organized
under the laws of the Philippines at least sixty per centum of whose 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 right be granted except under
the condition that it shall be subject to amendment, alteration, or repeal
by the Congress when the common good so requires. The State shall
encourage equity 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
capital, and all the executive and managing officers of such corporation or
association must be citizens of the Philippines.
. . . .
ARTICLE XIV. Education, Science and Technology, Arts, Culture, and
Sports
. . . .
SECTION 4. . . .
(2) Educational institutions, other than those established by religious
groups and mission boards, shall be owned solely by citizens of the
Philippines or corporations or associations at least sixty per centum of the
capital of which is owned by such citizens. The Congress may, however,
require increased Filipino equity participation in all educational
institutions[.] (Emphasis supplied)
4 Heirs of Wilson P. Gamboa v. Teves, supra note 2 at p. 341; p. 470.
163
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with voting rights but also to shares without voting rights. Preferred
shares, denied the right to vote in the election of directors, are anyway
still entitled to vote on the eight specific corporate matters mentioned
above. Thus, if a corporation, engaged in a partially nationalized industry,
issues a mixture of common and preferred nonvoting shares, at least 60
percent of the common shares and at least 60 percent of the preferred
nonvoting shares must be owned by Filipinos. Of course, if a corporation
issues only a single class of shares, at least 60 percent of such shares must
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 nonvoting, preferred voting or
any other class of shares. This uniform application of the 60-40 ownership
requirement in favor of Filipino citizens clearly breathes life to the
constitutional command that the ownership and operation of public
utilities shall be reserved exclusively to corporations at least 60 percent of
whose capital is Filipino-owned. Applying uniformly the 60-40 ownership
requirement in favor of Filipino citizens
164
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165
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. . . .
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168
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this Code: Provided, further, That there shall always be a class or series of
shares which have complete voting rights. Any or all of the shares or
series of shares may have a par value or have no par value as may he
provided for in the articles of incorporation: Provided, however, That
banks, trust companies, insurance companies, public utilities, and
building and loan associations shall not be permitted to issue no-par value
shares of stock. (Emphasis supplied)
169
In the most crucial corporate actions — those that go
into the very constitution of the corporation — even so-
called nonvoting shares may vote. Not only can they vote;
they can be pivotal in deciding the most basic issues
confronting a corporation. Certainly, the ability to decide a
corporation’s framework of governance (i.e., its articles of
incorporation and bylaws), viability (through the
encumbrance or disposition of all or substantially all of its
assets, engagement in another enterprise, or subjection to
indebtedness), or even its very existence (through its
merger or consolidation with another corporate entity, or
even through its outright dissolution) demonstrates not
only a measure of control, but even possibly overruling
control. “Nonvoting” preferred and redeemable shares are
hardly irrelevant in controlling a corporation.
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172
The Control Test serves the purposes of ensuring
effective control and full beneficial ownership of
corporations by Filipinos, even as several corporations may
be involved in the equity structure of another. As I
explained in my Dissent from the April 21, 2014 Decision
in Narra Nickel:
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173
An illustration is apt.
Suppose that a corporation, “C,” is engaged in a nationalized
activity requiring that 60% of its capital be owned by Filipinos
and that this 60% is owned by another corporation, “B,” while the
remaining 40% is owned by stockholders, collectively referred to
as “Y.” Y is composed entirely of foreign nationals. As for B, 60%
of its capital is owned by stockholders collectively referred to as
“A,” while the remaining 40% is owned by stockholders
collectively referred to as “X.” The collective A, is composed
entirely of Philippine nationals, while the collective X is composed
entirely of foreign nationals. (N.b., in this illustration, “capital” is
understood to mean “shares of stock entitled to vote in the
election of directors,” per the definition in Gamboa). Thus:
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Full beneficial ownership is addressed both with respect
to voting power and investment returns or power.
As I explained, on voting power:
As I also explained, on investment returns or power:
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27 Id., at pp. 469-471; p. 498, citing Gamboa v. Teves, supra note 1 at
pp. 51, 53 and 69-71; pp. 730, 760.
28 Id., at p. 475; p. 502.
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Nevertheless, ostensible equity ownership does not
preclude unscrupulous parties’ resort to devices that
undermine the constitutional objective of full beneficial
ownership of and effective control by Filipinos. It is at this
juncture that the Grandfather Rule finds application:
1. That the foreign investor provides practically all the funds
for the joint investment undertaken by Filipino
businessmen and their foreign partner[;]
2. That the foreign investors undertake to provide practically
all the technological support for the joint venture[; and]
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176
It is opportune that the present Petition has enabled
this Court to clarify both the conception of capital, for
purposes of compliance with the 1987 Constitution, and the
mechanisms — primarily the Control Test, and
suppletorily, the Grandfather Rule — through which such
compliance may be assessed.
ACCORDINGLY, I vote to grant the Petition.
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30 Id., at pp. 478-479; pp. 506-507, citing DOJ Opinion No. 165, Series
of 1984, p. 5.
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