JOSE M. ROY III v. CHAIRPERSON TERESITA HERBOSA, GR No.

207246, 2016-11-22
Facts:
On June 28, 2011, the Court issued the Gamboa Decision,... 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 in the present case only to common shares, and not to the total outstanding capital
stock (common and non-voting preferred shares).
The Gamboa Decision attained finality on October 18, 2012, and Entry of Judgment was thereafter
issued on December 11, 2012
On May 20, 2013, the SEC, through respondent Chairperson Teresita J. Herbosa, issued SEC-MC
No. 8
Section 2. All covered corporations shall, at all times, observe the constitutional or statutory
ownership requirement. For purposes of determining compliance therewith, the required percentage
of Filipino ownership 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.
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 the SEC with grave abuse of discretion.
Issues:
whether the SEC gravely abused its discretion in issuing SEC-MC No. 8 in light of the Gamboa
Decision and Gamboa Resolution
Ruling:
SEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it
issued SEC-MC No. 8. To the contrary, the Court finds SEC-MC No. 8 to have been issued in fealty
to the Gamboa Decision and Resolution.
Gamboa Decision
"capital" in Section II, Article XII of the I987 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 (common and non-voting preferred shares).
the Gamboa Resolution
Foreign Investments Act of 1991 ("FIA")
Gamboa Resolution put to rest the Court's interpretation of the term "capital"
Full beneficial ownership of stocks, coupled with appropriate voting rights is essential... 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.
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
While SEC-MC No. 8 does not expressly mention the Beneficial Ownership Test or full
beneficial ownership of stocks requirement in the FIA, this will not, as it does not, render it
invalid meaning, it does not follow that the SEC will not apply this test in determining whether
the shares claimed to be owned by Philippine nationals are Filipino, i.e., are held by them by
mere title or in full beneficial ownership. To be sure, the SEC takes its guiding lights also from
the FIA and its implementing rules, the Securities Regulation Code

Principles:
EN BANC

April 18, 2017

G.R. No. 207246

JOSE M. ROY III, Petitioner

vs.
CHAIRPERSON TERESITA HERBOSA, THE SECURITIES AND EXCHANGE COMMISSION, and
PHILIPPINE LONG DISTANCE TELEPHONE COMP ANY,, Respondents

x-----------------------x

WILSON C. GAMBOA, JR., DANIEL V. CARTAGENA, JOHN WARREN P. GABINETE, ANTONIO

V. PESINA, JR., MODESTO MARTINY. MAMON III, and GERARDO C. EREBAREN, Petitioners-
in-Intervention,

x-----------------------x

PHILIPPINE STOCK EXCHANGE, INC. Respondent-in-Intervention,

x-----------------------x

SHAREHOLDERS' ASSOCIATION OF THE PHILIPPINES, INC., Respondent-in-Intervention.

RESOLUTION

CAGUIOA, J.:
Before the Court is the Motion for Reconsideration dated January 19, 2017 (the Motion) filed by
1

petitioner Jose M. Roy III (movant) seeking the reversal and setting aside of the Decision dated
November 22, 2016 (the Decision) which denied the movant's petition, and declared that the
2

Securities and Exchange Commission (SEC) did not commit grave abuse of discretion in issuing
Memorandum Circular No. 8, Series of 2013 (SEC-MC No. 8) as the same was in compliance with,
and in fealty to, the decision of the Court in Gamboa v. Finance Secretary
Teves, (Gamboa Decision) and the resolution denying the Motion for Reconsideration
3 4

therein (Gamboa Resolution).

The Motion presents no compelling and new arguments to justify the reconsideration of the Decision.

The grounds raised by movant are: (1) He has the requisite standing because this case is one of
transcendental importance; (2) The Court has the constitutional duty to exercise judicial review over
any grave abuse of discretion by any instrumentality of government; (3) He did not rely on an obiter
dictum; and (4) The Court should have treated the petition as the appropriate device to explain the
Gamboa Decision.

The Decision has already exhaustively discussed and directly passed upon these grounds. Movant's
petition was dismissed based on both procedural and substantive grounds.

Regarding the procedural grounds, the Court ruled that petitioners (movant and petitioners-in-
intervention) failed to sufficiently allege and establish the existence of a case or controversy
and locus standi on their part to warrant the Court's exercise of judicial review; the rule on the
hierarchy of courts was violated; and petitioners failed to implead indispensable parties such as the
Philippine Stock Exchange, Inc. and Shareholders' Association of the Philippines, Inc. 5

In connection with the failure to implead indispensable parties, the Court's Decision held:

Under Section 3, Rule 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. Indispensable parties are those with such a
material and direct interest in the controversy that a final decree would necessarily affect their rights,
so that the court cannot proceed without their presence. The interests of such indispensable parties
in the subject matter of the suit and the relief are so bound with those of the other parties that their
legal presence as parties to the proceeding is an absolute necessity and a complete and efficient
determination of the equities and rights of the parties is not possible if they are not joined.

Other than PLDT, the petitions failed to join or implead other public utility corporations subject to the
same restriction imposed by Section 11, Article XII of the Constitution. These corporations are in
danger of losing their franchise and property if they are found not compliant with the restrictive
interpretation of the constitutional provision under review which is being espoused by petitioners.
They should be afforded due notice and opportunity to be heard, lest they be deprived of their
property without due process.

Not only are public utility corporations other than PLDT directly and materially affected by the
outcome of the petitions, their shareholders also stand to suffer in case they will be forced to divest
their shareholdings to ensure compliance with the said restrictive interpretation of the term "capital".
As explained by SHAREPHIL, in five corporations alone, more than Php158 Billion worth of shares
must be divested by foreign shareholders and absorbed by Filipino investors if petitioners' position is
upheld.

Petitioners' disregard of the rights of these other corporations and numerous shareholders
constitutes another fatal procedural flaw, justifying the dismissal of their petitions. Without giving all
of them their day in court, they will definitely be deprived of their property without due
process of law. 6

This is highlighted to clear any misimpression that the Gamboa Decision and Gamboa Resolution
made a categorical ruling on the meaning of the word "capital" under Section 11, Article XII of the
Constitution only in respect of, or only confined to, respondent Philippine Long Distance Telephone
Company (PLDT). Nothing is further from the truth. Indeed, a fair reading of the Gamboa Decision
and Gamboa Resolution shows that the Court's pronouncements therein would affect all public
utilities, and not just respondent PLDT.

On the substantive grounds, the Court disposed of the issue on whether the SEC gravely abused its
discretion in ruling that respondent PLDT is compliant with the limitation on foreign ownership under
the Constitution and other relevant laws as without merit. The Court reasoned that "in the absence of
a definitive ruling by the SEC on PLDT's compliance with the capital requirement pursuant to
the Gamboa Decision and Resolution, any question relative to the inexistent ruling is premature." 7

In resolving the other substantive issue raised by petitioners, the Court held that:

[E]ven if the resolution of the procedural issues were conceded in favor of petitioners, the petitions,
being anchored on Rule 65, must nonetheless fail because the SEC did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it issued SEC-MC No. 8. To the
contrary, the Court finds SEC-MC No. 8 to have been issued in fealty to the Gamboa Decision and
Resolution.8

To belabor the point, movant's petition is not a continuation of the Gamboa case as
the Gamboa Decision attained finality on October 18, 2012, and thereafter Entry of Judgment was
issued on December 11, 2012. 9

As regards movant's repeated invocation of the transcendental importance of the Gamboa case, this
does not ipso facto accord locus standi to movant. Being a new petition, movant had the burden to
justify his locus standi in his own petition. The Court, however, was not persuaded by his
justification.

Pursuant to the Court's constitutional duty to exercise judicial review, the Court has conclusively
found no grave abuse of discretion on the part of SEC in issuing SEC-MC No. 8.

The Decision has painstakingly explained why it considered as obiter dictum that pronouncement in
the Gamboa Resolution that the constitutional requirement on Filipino ownership should "apply
uniformly and across the board to all classes of shares, regardless of nomenclature and category,
comprising the capital of a corporation."[[9-a]] The Court stated that:

[T]he fallo or decretal/dispositive portions of both the Gamboa Decision and Resolution are definite,
clear and unequivocal. While there is a passage in the body of the Gamboa Resolution that might
have appeared contrary to the fallo of the Gamboa Decision x x x the definiteness and clarity of
the fallo of the Gamboa Decision must control over the obiter dictum in the Gamboa Resolution
regarding the application of the 60-40 Filipino-foreign ownership requirement to "each class of
shares, regardless of differences in voting rights, privileges and restrictions."
10

To the Court's mind and, as exhaustively demonstrated in the Decision, the dispositive portion of
the Gamboa Decision was in no way modified by the Gamboa Resolution.
The heart of the controversy is the interpretation of Section 11, Article XII of the Constitution, which
provides: "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 x x x."

The Gamboa Decision already held, in no uncertain terms, that what the Constitution requires is
"[full [and legal] beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60
percent of the voting rights x x x must rest in the hands of Filipino nationals x x x." And, precisely
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that is what SEC-MC No. 8 provides, viz.: "x x x For purposes of determining compliance [with the
constitutional or statutory ownership], the required percentage of Filipino ownership 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 x x
x."12

In construing "full beneficial ownership," the Implementing Rules and Regulations of the Foreign
Investments Act of 1991 (FIA-IRR) provides:

For 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. Thus, stocks, the voting rights of which have been
assigned or transferred to aliens cannot be considered held by Philippine citizens or Philippine
nationals.13

In turn, "beneficial owner" or "beneficial ownership" is defined in the Implementing Rules and
Regulations of the Securities Regulation Code (SRC-IRR) as:

[A]ny 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.
14

Thus, the definition of "beneficial owner or beneficial ownership" in the SRC-IRR, which is in
consonance with the concept of "full beneficial ownership" in the FIA-IRR, is, as stressed in the
Decision, relevant in resolving only the question of who is the beneficial owner or has beneficial
ownership of each "specific stock" of the public utility company whose stocks are under review. If the
Filipino has the voting power of the "specific stock", i.e., he can vote the stock or direct another to
vote for him, or the Filipino has the investment power over the "specific stock", i.e., he
can dispose of the stock or direct another to dispose of it for him, or both, i.e., he can vote and
dispose of that "specific stock" or direct another to vote or dispose it for him, then such Filipino is
the "beneficial owner" of that "specific stock." Being considered Filipino, that "specific stock" is then
to be counted as part of the 60% Filipino ownership requirement under the Constitution. The right to
the dividends, jus fruendi - a right emanating from ownership of that "specific stock" necessarily
accrues to its Filipino "beneficial owner."

Once more, this is emphasized anew to disabuse any notion that the dividends accruing to any
particular stock are determinative of that stock's "beneficial ownership." Dividend declaration is
dictated by the corporation's unrestricted retained earnings. On the other hand, the corporation's
need of capital for expansion programs and special reserve for probable contingencies may limit
retained earnings available for dividend declaration. It bears repeating here that the Court in
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the Gamboa Decision adopted the foregoing definition of the term "capital" in Section 11, Article XII
of the 1987 Constitution in express recognition of the sensitive and vital position of public utilities
both in the national economy and for national security, so that the evident purpose of the citizenship
requirement is to prevent aliens from assuming control of public utilities, which may be inimical to the
national interest. This purpose prescinds from the "benefits"/dividends that are derived from or
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accorded to the particular stocks held by Filipinos vis-a-vis the stocks held by aliens. So long as
Filipinos have controlling interest of a public utility corporation, their decision to declare more
dividends for a particular stock over other kinds of stock is their sole prerogative - an act of
ownership that would presumably be for the benefit of the public utility corporation itself. Thus, as
explained in the Decision:

In this regard, it would be apropos to state that since Filipinos own at least 60% of the outstanding
shares of stock entitled to vote directors, which is what the Constitution precisely requires, then the
Filipino stockholders control the corporation, i.e., they dictate corporate actions and decisions, and
they have all the rights of ownership including, but not limited to, offering certain preferred shares
that may have greater economic interest to foreign investors - as the need for capital for corporate
pursuits (such as expansion), may be good for the corporation that they own. Surely, these "true
owners" will not allow any dilution of their ownership and control if such move will not be beneficial to
them. 17

Finally, as to how the SEC will classify or treat certain stocks with voting rights held by a trust fund
that is created by the public entity whose compliance with the limitation on foreign ownership under
the Constitution is under scrutiny, and how the SEC will determine if such public utility does, in fact,
control how the said stocks will be voted, and whether, resultantly, the trust fund would be
considered as Philippine national or not - lengthily discussed in the dissenting opinion of Justice
Carpio - is speculative at this juncture. The Court cannot engage in guesswork. Thus, there is need
of an actual case or controversy before the Court may exercise its power of judicial review. The
movant's petition is not that actual case or controversy.

Thus, the discussion of Justice Carpio' s dissenting opinion as to the voting preferred shares created
by respondent PLDT, their acquisition by BTF Holdings, Inc., which appears to be a wholly-owned
company of the PLDT Beneficial Trust Fund (BTF), and whether or not it is respondent PLDT's
management that controls BTF and BTF Holdings, Inc. - all these are factual matters that are outside
the ambit of this Court's review which, as stated in the beginning, is confined to determining whether
or not the SEC committed grave abuse of discretion in issuing SEC-MC No. 8; that is, whether or not
SEC-MC No. 8 violated the ruling of the Court in Gamboa v. Finance Secretary Teves, and the18

resolution in Heirs of Wilson P. Gamboa v. Finance Sec. Teves denying the Motion for
19

Reconsideration therein as to the proper understanding of "capital".

To be sure, it would be more prudent and advisable for the Court to await the SEC's prior
determination of the citizenship of specific shares of stock held in trust - based on proven facts -
before the Court proceeds to pass upon the legality of such determination.

As to whether respondent PLDT is currently in compliance with the Constitutional provision

regarding public utility entities, the Court must likewise await the SEC's determination thereof
applying SEC-MC No. 8. After all, as stated in the Decision, it is the SEC which is the government
agency with the competent expertise and the mandate of law to make such determination.

In conclusion, the basic issues raised in the Motion having been duly considered and passed upon
by the Court in the Decision and no substantial argument having been adduced to warrant the
reconsideration sought, the Court resolves to DENY the Motion with FINALITY.
WHEREFORE, the subject Motion for Reconsideration is hereby DENIED WITH FINALITY. No
further pleadings or motions shall be entertained in this case. Let entry of final judgment be issued
immediately.

SO ORDERED.

ALFREDO BENJAMIN S. CAGUIOA,

Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

(See Dissenting Opinion) (Pls. see concuring opinion)

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

I join the dissent opinion of justice carpio:

DIOSDADO M. PERALTA
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

I join the dissent opinion of J. carpio

BIENVENIDO L. REYES
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice

(No Part) I dissent. See separate opinion

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN
Associate Justice Associate Justice

(No Part) I join the dissent opinion of J. carpio:

FRANCIS H. JARDELEZA SAMUEL R. MARTIRES
Associate Justice Associate Justice

NOEL G. TIJAM
Associate Justice

CERTIFICATION

Pursuant to the Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation,
I certify that the conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P.A. SERENO