G.R. No. 176579
G.R. No. 176579
OF \VILSON P. GAl\1BOA
Petitioner,
versus
FINANCE
SECUETARY MARGAnrro B. TEVES,
FINANCE lJNDfi~RSECRETARY .JOHN
P. SEVILLA, and COMl\11SSIONER
RICARDO
ABCEDE
OF
THE
PHESIDENTIAL C01\1l\11SSION ON
GOOD GOVERNMENT (PCCG) in their
capacities as Chait and l\1cmbers,
respectively, of the Privatization Council,
et al. Respondents.
HEIRS
Promulgated:
OCTOBER 09, 2012
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DISSENTING OPINION
ABAD, J.:
In the Decision dated June 28, 2011, the Court partially granted the
petition for prohibition, injunction, declaratory relieC 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 the election of directors, and thus only to common shares,
and not to the total outstanding capital stock (common and non-voting
preferred shares). The Court also directed the Chairperson of the Securities
and Exchange Commission (SEC) to apply this definition of the term
"capital" in determining the extent of allowable hm~ign ownership in PLDT,
and to impose the appropriate sanctions if there is a violation of Section 11,
Article XII ofthe 1987 Constitution.
Respondents Manuel V. Pangilinan, Napoleon L. Nazareno, Francis
Lim, Pablito V. Sanidad, Arno V. Sanidad, and the SEC filed their
respective motions for reconsideration.
Thereafter, the Court conducted oral arguments to hear the parties on
the following issues:
I.
Whether the term ''capital" in Section ll, Article XII of the 1987
Constitution refers only to shares of stock with the right to vote in \\)
Dissenting Opinion
Assuming the term capital refers only to shares of stock with the
right to vote in the election of directors, whether this ruling of the
Court should have retroactive effect to affect such shares of stock
owned by foreigners prior to this ruling;
3.
is one of the constitutional provisions that are not self-executing and need
sufficient details for a meaningful implementation. While the provision
states that no franchise for the operation of a public utility shall be granted to
a corporation organized under Philippine laws unless at least 60% of its
Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, October 19, 2010, 633 SCRA 470, 499.
Dissenting Opinion
capital is owned by Filipino citizens, it does not provide for the meaning of
the term capital.
As Fr. Joaquin G. Bernas, S.J. explained, acting as Amicus Curiae, the
result of the absence of a clear definition of the term capital, was to base
the 60-40 proportion on the total outstanding capital stock, that is, the
combined total of both common and non-voting preferred shares. But while
this has become the popular and common understanding of the people, it is
still incomplete. He added that in the Foreign Investments Act of 1991
(FIA), Congress tried to clarify this understanding by specifying what capital
means for the purpose of determining corporate citizenship, thus:
Sec. 3. Definitions. - As used in this Act:
a. The term Philippine national shall mean a citizen of the
Philippines; of a domestic partnership or association wholly owned by
citizens of the Philippines; or a corporation 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 corporation organized abroad and registered as doing
business in the Philippines under the Corporation Code of which one
hundred percent (100%) of the capital stock outstanding and entitled to
vote is wholly owned by Filipinos or a trustee of funds for pension or
other employee 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 a corporation
and its non-Filipino stockholders own stocks in a Securities and Exchange
Commission (SEC) registered enterprise, at least sixty percent (60%) of
the capital stock 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 Directors of each
of both corporations must be citizens of the Philippines, in order that the
corporation, shall be considered a Philippine national. (As amended by
Republic Act 8179)
More particularly, much discussion was made on the FIA since it was
enacted after the 1987 Constitution took effect. Yet it does not seem to be a
supplementary or enabling legislation which accurately defines the term
capital.
These laws include the Investment Incentives Act of 1967, the Foreign Business Regulations Act of
1968, the Omnibus Investments Code of 1981, the Omnibus Investments Code of 1987, and the
Foreign Investments Act of 1991.
Lokin, Jr. v. Commission on Elections, G.R. Nos. 179431-32 & 180443, June 22, 2010, 621 SCRA
385, 410.
Dissenting Opinion
Dissenting Opinion
capital, the 1987 Constitution itself did not distinguish among classes of
shares.
During their Committee meetings, Dr. Villegas explained that in both
economic and business terms, the term capital found in the balance sheet
of any corporation always meant the entire capital stock, both common and
preferred. He added that even the non-voting shares in a corporation have a
great influence in its major decisions such as: (1) the amendment of the
articles of incorporation; (2) the adoption and amendment of by-laws; (3) the
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) the increase or decrease of capital stock;
(6) the merger or consolidation of the corporation with another corporation
or other corporations; (7) the investment of corporate funds in another
corporation or business in accordance with this Code; and (8) the dissolution
of the corporation.
Thus, the Committee decisively rejected in the end the proposal of the
UP Law Center to define the term capital as voting stock or controlling
interest. To quote Dr. Villegas, in the minds of the Commissioners the word
capital in Section 11 of Article XII refers, not to voting 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, such as the restrictive
interpretation of the term capital, will only aggravate our already slow
economic growth and incapacity to compete with our East Asian neighbours.
The Court can simply adopt the interpretations given by Fr. Bernas
and Dr. Villegas since 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 corporations 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 same privileges and
liabilities, provided that the Articles of Incorporation is silent on such
differences.5
Commissioner of Internal Revenue v. Court of Appeals, G.R. No. 108576, January 20, 1999, 301
SCRA 152, 187.
Dissenting Opinion
lAtt-fUu-i/
ROBERTO A. ABAU
Associate Justice
BERNAS, JOAQUIN G., FOREIGN RELATIONS IN CONSllTliTIONAI LAW, 1995 Ed., p. 87 citing Smith,
Bell and Co. v. Natividad, 40 Phil 136, 148 ( 1919); Luzon Stevedoring Corponaion v A.11li-1Jummy
Board, 46 SCRA 474, 490 ( 1972); DE l.l:UN, HECTORS., PIIILIPPINE CONSTITUTIONAL l.AW (Principles
and Cases), 2004 Ed., Vol. 2, p. 940.
946.
Cas~s),