CONSUMERS DEMAND!
Herman Tiu Laurel
7/25-31/2011
The recent Supreme Court decision on PLDT’s capital structure defining only voting shares as the real ownership shares has upset the apple cart of many foreign-controlled companies. Many of these companies hide behind technicalities to evade the Constitutional provision requiring majority Filipino ownership in several basic and strategic industry sectors.
In my layman’s terms, the Supreme Court voted to define ownership as the voting shares, excluding the non-voting shares.
Actually Foreign ‘Owned’
The PLDT shareholder structure is dominated by non-voting shares overwhelming held by Filipinos, but the voting shares are mainly in foreign shareholders’ hands making the PLDT actually foreign dominated.
I agree with the Supreme Court decision because owning a company is about controlling a company, not just being a shareholder that has absolutely no say in its affairs.
I believe the Supreme Court was wise and judicious in its decision, reading the intent of the Constitutional provision on Filipino ownership correctly.
Article XII on the National Economy and Patrimony states:
“Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and wealth… promote industrialization and full employment … through industries that make full and efficient use of human and natural resources… However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices….
“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…. 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 co-production, 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. …”
The False Premise
The argument invariably raised favoring, allowing, or even inviting or pleading foreign capital into Philippine economic development is that “the Philippines does not have enough capital”.
It is a false premise.
As I have shown in a running debate with the Bangko Sentral ng Pilipinas (BSP), the Philippines does have more than sufficient internal resources to capitalize the agro-industrial and general economic development of the country.
The sources today are: the Special Deposit Account (SDA) set up by the BSP in 1998 as a tool in its financial management and holds up to P 1.7-Trillion today; the Gross International Reserve (GIR) which now amounts to $ 69-B or 12-months cover for trade and imports (when the IMF requires only three months cover), and the Malampaya natural gas earnings now variously reported to be between P 100-B to P 200-B.
The BSP deputy governor retorted on the SDA: “…the BSP does not own (the Special Deposit Account or SDA) and, therefore, it is hardly a ‘disposable’ fund kept idle…”
Use Internal Funds
The following is a number of quotes from private sector financial managers who gives a supporting view against BSP’s claims that the SDA cannot be used, I quote from my columns on the matter: “Marvin Fausto, president of the Trust Officers Association of the Philippines contend otherwise.
“Fausto, in fact, said on Nov. 3, 2010, ‘(the money parked in SDA facilities) should instead be channeled to funding needs, like in infrastructure projects. We need investments. (The money in SDAs) is enough to spur (further) growth.’ Victor Abola, senior economist at the University of Asia and the Pacific, whom I seldom agree with but do in this case, has also said that SDAs are a ‘waste of resources’ and the ‘BSP should lower interest rates for SDAs to free up more funds, from the present 4 percent to 3 percent.’
“We do have internal funds accumulated over the past decade and a half to fully finance our needs, as the entire PPP program of Aquino III requires only half of what the SDA holds.”
Aside from the SDA is the GIR which is kept idle and given to foreign fund managers for placements, earning these fund managers huge commissions.
Controlling Power
The Malampaya fund have been sitting idle with the legislators and other authorities oblivious to it until recently when Senator Recto finally asked, “how much is in that fund?”
Why it has taken them so long to discover this?
Allowing or pleading for foreign capital to take advantage of the Philippine economic opportunities is not a financial or economic one, it is a political one.
The ruling class of this country is an appendage of the foreign power that has controlled this country’s politics for the past hundred years, and they are still the ones controlling the major utilities such as PLDT.
The basic utilities of this country, from communications (like PLDT) to power, water and other infrastructure (with PPP as the flagship today), are businesses that exploit public services extracting profits from consumers and commuters that provide all the capital.
The Wrong Solution
Our fellow columnist Rod Kapunan correctly says, “…all that foreign investors do after they are given a franchise to operate is to demand an increase in their rate on the basis that they need it for their expansion and improvement.
“But once their demand is given, that in effect makes the consumers the financiers of their business.”
This is how PLDT was built, as well as Meralco and many other private utility companies in the Philippines.
But local oligarchy capital is doing the same thing and often in partnership with the foreign capitalists, so the anti-local oligarchy activists are also correct in raising the issue of abuse and exploitation by local capitalist protected by the Constitution.
However, they turn to the wrong solution, which is to open the Philippines to more foreign capital, as the Enrile-Belmonte initiative to call a Constituent Assembly to remove the Constitutional protectionism and open Filipinos to the same exploitation.
What is the solution?
Collective Ownership
The Philippine Constitution, a legacy of centuries of evolution of democratic, republican and nation-state ideology, provides the basis for the correct and most beneficial option for the people.
Since “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…” i.e. the People, and since the People have the funds as well as really finance all these public utilities and other businesses related to the national patrimony, the People should take over these industries and run it themselves under consumers, commuters and national cooperatives.
We finance practically everything in the economy so why don’t we all work together and takeover these industries and businesses.
There was an old form of this collective ownership which was “nationalization”, but a new age may require a new concept: “Consumers Cooperativization” revolution!
Thursday, July 28, 2011
Prestidigitation 2
CROSSINGS
Butch Junia
7/25-31/2011
The Energy Regulatory Commission (ERC) has pulled another fast one, a sleight of hand.
I never thought I could have this title again this soon. But ERC is simply obliging.
ERC dismissed the Commission on Audit (COA) Report that Meralco had overcharged us by as much P15 Billion in test years 2004 and 2007 by what consumer advocate Pete Ilagan calls a “sweeping statement that the COA applied the disallowances under Meralco’s PBR (Performance Based Rate) to its RORB (Return on Rate Base) application, hence a violation of the principle of retroactive ratemaking.”
In other words, without going into the merits and the weight of the COA findings, ERC decided that the Report “is not supported be established rules on rate making.”
But who made those rules, and what are those rules supposed to achieve?
Rules not Protecting
Consumers ERC makes and unmakes the rules in rate-setting, as the empowered regulator.
However, that rate-setting power is not absolute, as the law also requires that the rate resulting from any rate-setting methodology adopted by ERC must be such as to allow a reasonable return to the investor or utility, on the one hand, and a just rate to the consumer, on the other hand.
If ERC insists that the COA Report is not supported by its established rules, then those rules do not protect us.
To put it bluntly, the rules simply legitimize the overcharges discovered by COA.
Something must be Very Wrong
When we consider that Meralco’s distribution, supply and metering charges have gone up from P0.76 pkwh under RORB to P1.6464 pkwh under PBR, and Meralco’s profits increased fourfold in just three years under PBR, from P2.7B in 2008, to P6B in 2009, to P12B in 2010, something must be very wrong with those rules that ERC raises against the COA Report.
If applying the RORB rule will result in a reasonable return for the investor and a just rate for the consumer, then by all means, let us adopt those rules.
Not only would that be reasonable and logical, it would actually be consistent with what the Electric Power Industry Reform Act or EPIRA ordains ERC to do for us and for Meralco.
System for Abuse
Actually, RORB was also a system for abuse and excessive rates in the past. Before the Supreme Court decision in 2002 and 2003 in LAMP and Genaro Lualhati vs. Meralco, RORB was the utility’s weapon of choice for hitting us with high rates.
Without any caps on system loss, and with no criteria for recoverable asset and no objective measure for recovery of operating cost, RORB yielded very comfortable returns for utilities.
At that time, all costs, regardless of nature, intent or application, could be charged to captive customers.
Every asset, regardless, was likewise recoverable or chargeable to customers.
What Happened to the Refund?
The word among utilities at that time was that if you needed a new car go for the top of the line.
If you needed to redo the office, go high end. When you buy equipment, get the most expensive, because everything would simply be passed on to the captive customer, and it would also improve your RORB position.
But it all changed under a consumer-minded chairman of the Energy Regulatory Board, the Honorable Neptali Franco, and under then SC Associate Justice Reynato Puno, who penned the decision that led to the Meralco refund of over P30B.
Incidentally, many are still wondering what actually happened with that refund.
Did Meralco’s investors/owners actually return to us the overcharges? Or did we simply pay ourselves our refund from the monthly payments we were making to Meralco at the time the refund was supposedly being made?
I have always maintained that if the refunds came from Meralco’s cash flow, not from retained earnings or new capital put in by investors, then we simply were paying ourselves our refund.
But that will have to be for another Crossing.
Passing on Charges
That Supreme Court decision set the guidelines and criteria for cost recovery or the passing on of charges to the customers.
For assets, they should be used or useful, and the rate of return is capped at 12%.
For operating costs, they should be reasonable, prudent, necessary, and redounding to the benefit of the consumer or captive customer.
In other words, not only is the nature of the expense looked into, even its impact or benefit to the customer is taken into consideration.
Meralco’s corporate income tax, which we used to pay for, was disallowed by the Court and Meralco has supposedly complied with the Order.
As early as March 20, 2003, in ERC Cases Nos. 2001-646 and 2001-900, the Meralco rate unbundling decision, ERC under Acting Chairman Leticia V. Ibay said: “The Commission recognizes that if income tax is not allowed as a recoverable item, then the 12% cap on rate of return established in current jurisprudence may no longer be reasonable.”
Not Recoverable Cost
As if on cue, in September 2008, in its Regulatory Reset Issue Paper on PBR, ERC again said: “If corporate income tax was not considered a recoverable cost, an equivalent revenue outcome would be achieved by allowing a corresponding pre-tax Regulatory WACC (Weighted Average Cost of Capital) to be earned on the asset base.” At that time, the WACC was set at 15.5%.
I guess we now have reason to think that the dictum set by the Supreme Court that the one who enjoys the income – the investor – must pay the tax on that income, may not be honored by ERC, after all.
Timing is Relevant
Anyway, to go back to the COA report, the timing of the ERC decision, and the gaps, need some looking into.
The SC order for the COA audit was issued December 6, 2006.
But the formal request to COA was not made until sometime in 2008 and only after some prodding from Pete Ilagan and his group.
The COA Report was dated November 5, 2009, received by ERC in December, 2009, but acted upon by ERC only this month, again only after so much prodding, this time from Mang Naro Lualhati and Pete Ilagan.
Why do I think the timing is relevant? As COA itself said in its Report, the ERC could take its findings into account in the ratesetting actions of ERC.
Exclusions
Here’s a sampling of those findings on disallowed claimed assets and expenses:
• Baliwag substation not found at the site during inspection.
• Balintawak substation unaccounted
• Land and land rights the location of which could not be provided
• Materials and supplies already part of OPEX
• Funding allocation benefitted entire Lopez Group
• Expensive and unnecessary advertising expense
• PCIB Special Account
• Employee pension and other benefits.
These exclusions, though just my pick from the long lists, are very relevant and pertinent to the so-called Final Determination of ERC on the Annual Revenue Requirement application of Meralco under ERC Case no 2010-069RC.
This is the case of the P226B Meralco windfall. These exclusions are also relevant to ERCs Final Position on Meralco’s application for the so-called “rate translation” under the pseudo-science of rate-setting in PBR. This is now docketed as ERC Case No. 2011-088RC.
Have you kept track, so far, of the deft movements from case to case? Are the rules quite clear or simply opaque?
More on the cases, retroactive rate-setting and the COA Report in our next Crossing.
(Email crsng_47@hotmail.com)
Butch Junia
7/25-31/2011
The Energy Regulatory Commission (ERC) has pulled another fast one, a sleight of hand.
I never thought I could have this title again this soon. But ERC is simply obliging.
ERC dismissed the Commission on Audit (COA) Report that Meralco had overcharged us by as much P15 Billion in test years 2004 and 2007 by what consumer advocate Pete Ilagan calls a “sweeping statement that the COA applied the disallowances under Meralco’s PBR (Performance Based Rate) to its RORB (Return on Rate Base) application, hence a violation of the principle of retroactive ratemaking.”
In other words, without going into the merits and the weight of the COA findings, ERC decided that the Report “is not supported be established rules on rate making.”
But who made those rules, and what are those rules supposed to achieve?
Rules not Protecting
Consumers ERC makes and unmakes the rules in rate-setting, as the empowered regulator.
However, that rate-setting power is not absolute, as the law also requires that the rate resulting from any rate-setting methodology adopted by ERC must be such as to allow a reasonable return to the investor or utility, on the one hand, and a just rate to the consumer, on the other hand.
If ERC insists that the COA Report is not supported by its established rules, then those rules do not protect us.
To put it bluntly, the rules simply legitimize the overcharges discovered by COA.
Something must be Very Wrong
When we consider that Meralco’s distribution, supply and metering charges have gone up from P0.76 pkwh under RORB to P1.6464 pkwh under PBR, and Meralco’s profits increased fourfold in just three years under PBR, from P2.7B in 2008, to P6B in 2009, to P12B in 2010, something must be very wrong with those rules that ERC raises against the COA Report.
If applying the RORB rule will result in a reasonable return for the investor and a just rate for the consumer, then by all means, let us adopt those rules.
Not only would that be reasonable and logical, it would actually be consistent with what the Electric Power Industry Reform Act or EPIRA ordains ERC to do for us and for Meralco.
System for Abuse
Actually, RORB was also a system for abuse and excessive rates in the past. Before the Supreme Court decision in 2002 and 2003 in LAMP and Genaro Lualhati vs. Meralco, RORB was the utility’s weapon of choice for hitting us with high rates.
Without any caps on system loss, and with no criteria for recoverable asset and no objective measure for recovery of operating cost, RORB yielded very comfortable returns for utilities.
At that time, all costs, regardless of nature, intent or application, could be charged to captive customers.
Every asset, regardless, was likewise recoverable or chargeable to customers.
What Happened to the Refund?
The word among utilities at that time was that if you needed a new car go for the top of the line.
If you needed to redo the office, go high end. When you buy equipment, get the most expensive, because everything would simply be passed on to the captive customer, and it would also improve your RORB position.
But it all changed under a consumer-minded chairman of the Energy Regulatory Board, the Honorable Neptali Franco, and under then SC Associate Justice Reynato Puno, who penned the decision that led to the Meralco refund of over P30B.
Incidentally, many are still wondering what actually happened with that refund.
Did Meralco’s investors/owners actually return to us the overcharges? Or did we simply pay ourselves our refund from the monthly payments we were making to Meralco at the time the refund was supposedly being made?
I have always maintained that if the refunds came from Meralco’s cash flow, not from retained earnings or new capital put in by investors, then we simply were paying ourselves our refund.
But that will have to be for another Crossing.
Passing on Charges
That Supreme Court decision set the guidelines and criteria for cost recovery or the passing on of charges to the customers.
For assets, they should be used or useful, and the rate of return is capped at 12%.
For operating costs, they should be reasonable, prudent, necessary, and redounding to the benefit of the consumer or captive customer.
In other words, not only is the nature of the expense looked into, even its impact or benefit to the customer is taken into consideration.
Meralco’s corporate income tax, which we used to pay for, was disallowed by the Court and Meralco has supposedly complied with the Order.
As early as March 20, 2003, in ERC Cases Nos. 2001-646 and 2001-900, the Meralco rate unbundling decision, ERC under Acting Chairman Leticia V. Ibay said: “The Commission recognizes that if income tax is not allowed as a recoverable item, then the 12% cap on rate of return established in current jurisprudence may no longer be reasonable.”
Not Recoverable Cost
As if on cue, in September 2008, in its Regulatory Reset Issue Paper on PBR, ERC again said: “If corporate income tax was not considered a recoverable cost, an equivalent revenue outcome would be achieved by allowing a corresponding pre-tax Regulatory WACC (Weighted Average Cost of Capital) to be earned on the asset base.” At that time, the WACC was set at 15.5%.
I guess we now have reason to think that the dictum set by the Supreme Court that the one who enjoys the income – the investor – must pay the tax on that income, may not be honored by ERC, after all.
Timing is Relevant
Anyway, to go back to the COA report, the timing of the ERC decision, and the gaps, need some looking into.
The SC order for the COA audit was issued December 6, 2006.
But the formal request to COA was not made until sometime in 2008 and only after some prodding from Pete Ilagan and his group.
The COA Report was dated November 5, 2009, received by ERC in December, 2009, but acted upon by ERC only this month, again only after so much prodding, this time from Mang Naro Lualhati and Pete Ilagan.
Why do I think the timing is relevant? As COA itself said in its Report, the ERC could take its findings into account in the ratesetting actions of ERC.
Exclusions
Here’s a sampling of those findings on disallowed claimed assets and expenses:
• Baliwag substation not found at the site during inspection.
• Balintawak substation unaccounted
• Land and land rights the location of which could not be provided
• Materials and supplies already part of OPEX
• Funding allocation benefitted entire Lopez Group
• Expensive and unnecessary advertising expense
• PCIB Special Account
• Employee pension and other benefits.
These exclusions, though just my pick from the long lists, are very relevant and pertinent to the so-called Final Determination of ERC on the Annual Revenue Requirement application of Meralco under ERC Case no 2010-069RC.
This is the case of the P226B Meralco windfall. These exclusions are also relevant to ERCs Final Position on Meralco’s application for the so-called “rate translation” under the pseudo-science of rate-setting in PBR. This is now docketed as ERC Case No. 2011-088RC.
Have you kept track, so far, of the deft movements from case to case? Are the rules quite clear or simply opaque?
More on the cases, retroactive rate-setting and the COA Report in our next Crossing.
(Email crsng_47@hotmail.com)
Controversy overload on the eve of the SONA
YESTERDAY, TODAY & TOMORROW
Linggoy Alcuaz
7/25-31/2011
Today, Monday, July 25, we have arrived at: (1) our President Aquino’s Second SONA (State of the Nation Address) and (2) our Congress’ second out of three years.
Last June 30, P-Noy’s Ulat sa Bayan was a sort of soft anniversary or day of reckoning or occasion for grading and marking him. Today’s SONA is the hard and real thing.
On the Eve of the SONA, we developed a sort of controversy overload.
Since December, the Stradcom intra corporate struggle between Quiambao and Sumbilla and their respective allies and supporters had turned into the most expensive PR war.
Each side even managed to recruit a personality closely identified with former President Estrada.
With Quiambao, now is former Erap spokesperson, Margaux Salcedo. With Sumbilla is PMAP (People’s Movement Against Poverty) and EDSA III leader, Ronald Lumbao.
Infighting
The Stradcom fight drew in Aquino Admin heavyweights on opposite sides.
Former Cory Cabinet and later on DPWH and now resigned DOTC Secretary Jose “Ping” de Jesus wanted to pay the LTO’s more than a billion pesos in arrears to Stradcom.
DOTC Assistant Secretary for LTO (Land Transportation Office) Virginia Torres refused to pay. She had even taken sides in the internal affairs of Stradcom by siding with the Sumbilla group and assisting them physically in the takeover of Stradcom offices and facilities.
Ping and four of his USec’s and ASec’s ended up losing the fight and their jobs effective June30.
Virginia came back to work in the middle of June triumphant from her two months leave.
ARMM
During his First Anniversary last June 30, P-Noy also signed into law the bill postponing the August 8 ARMM election and synchronizing them with the May 2013, National and Local Elections.
Immediately, several interested parties filed cases before the Supreme Court.
The Aquino position is unconstitutional and illegal on two points. The Organic Act for the Autonomous Region in Muslim Mindanao requires that amendments to it be passed by a two thirds vote in each house followed by a plebiscite.
None of these was complied with.
Sin to Spin
Then, the simmering tension between the old and new leaderships of the PCSO exploded into the limelight.
PCSO chairperson Margie Juico and PR consultant Dante Ang managed to capture the attention of mass media and the entire nation by turning seven Bishops into the ultimate devils or kontrabidas.
Their sin was accepting donations in the form of money from the PCSO to buy vehicles.
The media spin was to baptize them the seven “Pajero” Bishops.
However, there were no Pajeros.
The Accuser, the Accused
There was also not a single Senator who was prepared to condemn a leader of the Roman Catholic Church. The accuse ended up the accused.
The hearings continue.
The 1st was on Wednesday, July 6, followed by Thursday, July 7.
The seven Bishops (Bishop Salgado who was abroad was represented by his vicar.) accompanied by Cardinal Vidal and CBCP officials appeared on Wednesday, July 10. Manny Garcia (The former PCSO Advertising and Promotions Manager who is accused before the Ombudsman of demanding and receiving 40 % kickbacks by two advertising agencies.) came on Thursday, July 14, but was excused until Monday, July 18.
Tomorrow, Tuesday, the day after the SONA, the sixth hearing will unfold.
Zaldy and Lintang
As though we did not have enough controversy, two voices from the past suddenly started squawking.
They were former ARMM Governor Zaldy Ampatuan and Maguindanao Election Supervisor Lintang Bedol. They spilled the beans on the 2007 Senatorial Elections.
GMA had ordered three opposition senators to be zeroed.
Protested Senator Migz Zubiri got the votes to cheat Atty. Koko Pimentel, mainly from Maguindanao.
Mariano and Javier
In the midst of these heavyweights, some lightweights dared to vie for media and the public’s attention.
Marine Colonels Generoso Mariano and Javier attended a Pre SONA Summit at the Club Filipino from 9 am to 4 pm on Friday, June 24, at the basement of the Club Filipino.
During and after the summit, Colonel Mariano was recorded on audio and video.
This recording was uploaded on the YouTube a week after on July 3.
Another week passed before the mainstream mass media picked it up.
This time around, Malacañang, the AFP, the Navy, and the public reacted.
Sedition Charges
Although retiring on Sunday, July 17, Colonel Mariano was placed on “house arrest” and investigated.
The DOJ recommended the filing of sedition charges.
Why are they afraid of Colonel Mariano? Why are they not talking about Colonel Javier?
A friend and colleague of mine happened to talk with MMDA Chairman Francis Tolentino. The latter told him that I was with Colonel Mariano. Yes, I was with him after lunch of June 24 at the Club Filipino.
However, that was the first time I met him.
In fact, I thought that he and Colonel Javier were already retired officers. That is why I did not pay too much attention to what they were saying.
S4S as Organizer
The others who spoke and occupied the presidential table were PSBA owner and President Atty. Benjamin Paulino, former DECS USec. Butch Valdez, Caloocan Bishop Deogracias Yñiguez, Mon Pedrosa, an MNLF, and several members of the academe.
The one who called the shots was Linda “Inday” Olaguer Montayre who is the convenor of the Solidarity for Sovereignty (S4S).
Actually, this was the third time I was invited to an activity organized by the S4S. The first time was about a month after the May 10 elections. The agenda was election fraud and irregularities. It was held at the Kalayaan Hall of the Club Filipino.
We must have been more than 500 there at any given time.
It was a whole-day and in-to-the-night activity. We seemed to be waiting for something to happen and for reinforcements to arrive.
The second time was on Monday, June 6, at the Gabaldon Room of the Club Filipino. It was a Joint Christian Muslim Conference against the RH Bill.
I met Linda in March 2000 when Bert Pedrosa (husband of Star columnist Chit and father of Al Jazeerah’s Veronica) invited me to a series of Saturday morning meetings in a restaurant along Jupiter St. in Makati (It was closed on Saturdays.).
They were leaders of PIRMA for FVR in 1996-97.
In anticipation of Chavit Singson’s Juetengate Exposè, we helped former DBM Secretary Jun Enriquez organize the People’s Consultative Assembly for the resignation/ouster of Erap.
However, Kompil II and COPA overshadowed us when the credits for Erap’s ouster and GMA’s assumption of the Presidency were tallied.
To be continued
Linggoy Alcuaz
7/25-31/2011
Today, Monday, July 25, we have arrived at: (1) our President Aquino’s Second SONA (State of the Nation Address) and (2) our Congress’ second out of three years.
Last June 30, P-Noy’s Ulat sa Bayan was a sort of soft anniversary or day of reckoning or occasion for grading and marking him. Today’s SONA is the hard and real thing.
On the Eve of the SONA, we developed a sort of controversy overload.
Since December, the Stradcom intra corporate struggle between Quiambao and Sumbilla and their respective allies and supporters had turned into the most expensive PR war.
Each side even managed to recruit a personality closely identified with former President Estrada.
With Quiambao, now is former Erap spokesperson, Margaux Salcedo. With Sumbilla is PMAP (People’s Movement Against Poverty) and EDSA III leader, Ronald Lumbao.
Infighting
The Stradcom fight drew in Aquino Admin heavyweights on opposite sides.
Former Cory Cabinet and later on DPWH and now resigned DOTC Secretary Jose “Ping” de Jesus wanted to pay the LTO’s more than a billion pesos in arrears to Stradcom.
DOTC Assistant Secretary for LTO (Land Transportation Office) Virginia Torres refused to pay. She had even taken sides in the internal affairs of Stradcom by siding with the Sumbilla group and assisting them physically in the takeover of Stradcom offices and facilities.
Ping and four of his USec’s and ASec’s ended up losing the fight and their jobs effective June30.
Virginia came back to work in the middle of June triumphant from her two months leave.
ARMM
During his First Anniversary last June 30, P-Noy also signed into law the bill postponing the August 8 ARMM election and synchronizing them with the May 2013, National and Local Elections.
Immediately, several interested parties filed cases before the Supreme Court.
The Aquino position is unconstitutional and illegal on two points. The Organic Act for the Autonomous Region in Muslim Mindanao requires that amendments to it be passed by a two thirds vote in each house followed by a plebiscite.
None of these was complied with.
Sin to Spin
Then, the simmering tension between the old and new leaderships of the PCSO exploded into the limelight.
PCSO chairperson Margie Juico and PR consultant Dante Ang managed to capture the attention of mass media and the entire nation by turning seven Bishops into the ultimate devils or kontrabidas.
Their sin was accepting donations in the form of money from the PCSO to buy vehicles.
The media spin was to baptize them the seven “Pajero” Bishops.
However, there were no Pajeros.
The Accuser, the Accused
There was also not a single Senator who was prepared to condemn a leader of the Roman Catholic Church. The accuse ended up the accused.
The hearings continue.
The 1st was on Wednesday, July 6, followed by Thursday, July 7.
The seven Bishops (Bishop Salgado who was abroad was represented by his vicar.) accompanied by Cardinal Vidal and CBCP officials appeared on Wednesday, July 10. Manny Garcia (The former PCSO Advertising and Promotions Manager who is accused before the Ombudsman of demanding and receiving 40 % kickbacks by two advertising agencies.) came on Thursday, July 14, but was excused until Monday, July 18.
Tomorrow, Tuesday, the day after the SONA, the sixth hearing will unfold.
Zaldy and Lintang
As though we did not have enough controversy, two voices from the past suddenly started squawking.
They were former ARMM Governor Zaldy Ampatuan and Maguindanao Election Supervisor Lintang Bedol. They spilled the beans on the 2007 Senatorial Elections.
GMA had ordered three opposition senators to be zeroed.
Protested Senator Migz Zubiri got the votes to cheat Atty. Koko Pimentel, mainly from Maguindanao.
Mariano and Javier
In the midst of these heavyweights, some lightweights dared to vie for media and the public’s attention.
Marine Colonels Generoso Mariano and Javier attended a Pre SONA Summit at the Club Filipino from 9 am to 4 pm on Friday, June 24, at the basement of the Club Filipino.
During and after the summit, Colonel Mariano was recorded on audio and video.
This recording was uploaded on the YouTube a week after on July 3.
Another week passed before the mainstream mass media picked it up.
This time around, Malacañang, the AFP, the Navy, and the public reacted.
Sedition Charges
Although retiring on Sunday, July 17, Colonel Mariano was placed on “house arrest” and investigated.
The DOJ recommended the filing of sedition charges.
Why are they afraid of Colonel Mariano? Why are they not talking about Colonel Javier?
A friend and colleague of mine happened to talk with MMDA Chairman Francis Tolentino. The latter told him that I was with Colonel Mariano. Yes, I was with him after lunch of June 24 at the Club Filipino.
However, that was the first time I met him.
In fact, I thought that he and Colonel Javier were already retired officers. That is why I did not pay too much attention to what they were saying.
S4S as Organizer
The others who spoke and occupied the presidential table were PSBA owner and President Atty. Benjamin Paulino, former DECS USec. Butch Valdez, Caloocan Bishop Deogracias Yñiguez, Mon Pedrosa, an MNLF, and several members of the academe.
The one who called the shots was Linda “Inday” Olaguer Montayre who is the convenor of the Solidarity for Sovereignty (S4S).
Actually, this was the third time I was invited to an activity organized by the S4S. The first time was about a month after the May 10 elections. The agenda was election fraud and irregularities. It was held at the Kalayaan Hall of the Club Filipino.
We must have been more than 500 there at any given time.
It was a whole-day and in-to-the-night activity. We seemed to be waiting for something to happen and for reinforcements to arrive.
The second time was on Monday, June 6, at the Gabaldon Room of the Club Filipino. It was a Joint Christian Muslim Conference against the RH Bill.
I met Linda in March 2000 when Bert Pedrosa (husband of Star columnist Chit and father of Al Jazeerah’s Veronica) invited me to a series of Saturday morning meetings in a restaurant along Jupiter St. in Makati (It was closed on Saturdays.).
They were leaders of PIRMA for FVR in 1996-97.
In anticipation of Chavit Singson’s Juetengate Exposè, we helped former DBM Secretary Jun Enriquez organize the People’s Consultative Assembly for the resignation/ouster of Erap.
However, Kompil II and COPA overshadowed us when the credits for Erap’s ouster and GMA’s assumption of the Presidency were tallied.
To be continued
The Patriotism of Marine Col. Generoso V. Mariano
Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
July 24, 2011
May a soldier be detained solely by reason of his political beliefs and aspirations?
It is respectfully submitted the answer is NO.
FACTS
1. Colonel Generoso V. Mariano is a bemedalled officer of the Philippine Marines who has rendered more than 33 continuous years of military service to the Republic.
2. Sometime in the first week of July 2011, Col. Mariano’s less than four-minute video clip was seen on YouTube, where he was shown to have made the following declaration of his apparent political beliefs and aspirations:
“We soldiers are human too. Nararamdaman din po naming mga sundalo ang kahirapan na idinudulot ng walang humpay na pagtaas ng mga bilihin, mga gamot at pagkain. Nakikita din po namin na ang ating pamahalaan ay walang kakayanang gumawa ng mga hakbang upang iiwas tayo sa kagutuman at kamatayan. Wala pong pinagkaiba ang nararamdaman naming mga sundalo, sa nakikita at nararamdaman ng ating mamamayan.
Ngunit may katungkulan po kami na hindi namin nakakaligtaan—ang katungkulan na ipagtanggol ang mamamayang Pilipino. At kung ang kasalukuyang pamahalaan ay walang intensyon o kaya walang naisasagawa upang isalba ang buhay ng mga nakararami, it is the duty—it is the right of every Filipino, including soldiers—to replace the government. Huwag na tayong magpaloko sa mga nangangakong sinungaling. Huwag na po tayong pagamit para labanan ang kapwa nating Pilipino sa Mindanao. Huwag na po tayong maniwala sa mga istatistikong gawagawa lamang na umuunlad ang ating bansa, habang parami nang parami ang nagugutom. Ipaglaban po natin ang karapatang mabuhay at ang maunlad na kinabukasan ng ating kabataan.
Ang hangad nating mabuhay ay base sa Katotohanan, sa Katarungan, sa Kapayapaan at sa Kaunlaran.
Let us, once and for all build a nation based on Truth, for without it, there can be no Justice, and without Justice, we shall have no Peace, and without Peace, there will be no Development.
In the end, may I quote our national hero, Dr. Jose Rizal, who said that, ‘If we have had bad leaders today and in the past, it is not the fault of the many who know less, but the fault of the few who know more but who do nothing or who do not do enough.”
3. On July 15, 2011, he was served a subpoena and an order which immediately placed him under effective ARREST and DETENTION. The order reads:
“From: Flag Officer In Command, PN
To: The Naval Provost Marshal
Subj: Restriction to Quarters of COL GENEROSO V MARIANO O-115573 PN(M)(GSC)
1. In connection with the reports received by this Headquarters on the alleged involvement of COL GENEROSO V MARIANO O-115573 PN(M)(GSC) in activities violating the provisions of the Articles of war, you are hereby directed to immediately place subject Officer under restriction to quarters pending investigation of said reported offenses to be conducted by a Special Investigation Committee created for this purpose.
2. Submit to Headquarters a report of actions taken thereon as soon as possible.
3. For strict compliance.
(Signed)
ALEXANDER P PAMA
Vice Admiral, AFP”
4. On July 17, 2011, he reached the compulsory retirement age of 56 years.
5. On July 20, 2011, Presidential Spokesman Edwin Lacierda made public statements in reference to Col. Mariano, which the Philippine Daily Inquirer reported as follows:
“‘He may not have specifically mentioned President Aquino, but in his statement you could see who he was referring to,’ Lacierda said.
Lacierda said Mariano should make his explanations to the Armed Forces of the Philippines and Department of National Defense.
‘It’s a matter of reviewing the tape and hearing the statement he made and that’s up to the DND and AFP to evaluate,’ he said.” (p. A2)
6. The same report further states:
“Justice Secretary Leila De Lima said she had recommended the filing of criminal charges against Mariano for violation of Article 142 of the Revised Penal Code when he made ‘seditious remarks’.
De Lima said Mariano, former Deputy Chief of the Naval Reserve Command, could also be charged with violating other military policies on mutinous and seditious acts. ‘On the face of those statements…He may be held liable for inciting to sedition… because of those seditious remarks which tend to incite others to act against duly constituted authorities of government,’ De Lima said.
In a legal opinion, she said Mariano may have breached Article 63 (Disrespect toward the President), Article 67 (Mutiny or sedition), Article 91 (Provoking speeches or gestures) and Article 96 (Conduct unbecoming an officer and a gentleman) of the Articles of War.
The Justice Secretary said she issued the legal opinion on Monday (July 18) on the request of Brig. Gen. Gilberto Jose Roa, head of the Judge Advocate Generals’ Office.” (ibid.)
7. In sum, Col. Mariano is now DETAINED solely by reason of his political beliefs and aspirations. He is, therefore, a POLITICAL PRISONER.
The Law
8. IS HIS DETENTION CONSTITUTIONAL OR UNCONSTITUTIONAL? UNCONSTITUTIONAL. The libertarian 1987 Constitution expressly provides:
“NO PERSON SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.” (Par. 1, Sec. 18, ART. III)
Since the Constitution is clear and does not provide for any qualification or exception, there is no room for any qualification or exception. Where the law does not qualify, we should not qualify. Where the law does not provide an exception, we should not provide any exception. And, where the law is clear, there is no room for construction. Hence, the provision may be properly restated as follows:
“NO SOLDIER SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.”
The published pronouncements of the Executive Department show that, aside from the YouTube statement, there are no other grounds for his detention.
9. Assuming arguendo there is a conflict between such provision of the Constitution, on one hand, and the Articles of War and the Revised Penal Code, upon the other, it ought to follow that the latter, to that extent, would be UNCONSTITUTIONAL.
10. RETIRE means “to terminate employment or service upon reaching retirement age” (BLACK’S LAW DICTIONARY). Hence, when Col. Mariano reached the retirement age on July 17, 2011, his military employment or service was TERMINATED. He was reverted to the status of a CIVILIAN by operation of law. While he may have residual benefits for services rendered, there is no more legal obligation to serve.
11. WAS COL. MARIANO DEPRIVED OF A CONSTITUTIONAL RIGHT? YES.
a. His right not to be detained solely by reason of his political beliefs and aspirations was disrespected. His arrest and detention were based solely on his YouTube statement.
b. The Presidential Spokesman and Secretary of Justice are alter egos of the President. Under the doctrine of qualified political agency the action of the alter egos is the action of the President, unless the latter reprobates the same. Since the President did nothing with respect to the public pronouncements of his alter egos, it would follow that such pronouncements are effectively his own. The pronouncement to the effect that Col. Mariano’s statement constitutes “seditious remarks” is thus a prejudgement by the Commander-in-Chief. Col. Mariano’s statement has been PREJUDGED as SEDITIOUS even before any investigation has been completed. CAN THE MILITARY PANEL OF INVESTIGATORS OVERTURN SUCH PREJUDGEMENT BY THEIR COMMANDER-IN-CHIEF? They obviously CANNOT. Consequently, it would appear that Col. Mariano is being deprived of a fair and impartial tribunal which is an indispensable element of DUE PROCESS.
c. WHAT IS THE EFFECT OF SUCH DEPRIVATION OF DUE PROCESS? The Special Investigation Committee is thereby OUSTED OF JURISDICTION over the case. “Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgement in question is deemed ousted of jurisdiction” (Olaguer v Military Commission No. 34, 150 SCRA 144, at 161).
12. WHAT IS THE EFFECT OF COL. MARIANO’s COMPULSORY RETIREMENT WITH RESPECT TO THE MILITARY PROCEEDINGS AGAINST HIM?
Since the retirement is by operation of law, it follows that it automatically rendered the military-created investigation committee WITHOUT JURISDICTION over the person of the retired colonel who, since then, is now a CIVILIAN.
13. WHAT IS THE SCOPE OF AN ACCUSED CIVILIAN’s RIGHT TO DUE PROCESS? According to the Supreme Court: “Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty, the accused shall be entitled to, among others, a trial. The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system” (Olaguer Case, ibid., p 158).
It ought to be observed that this pronouncement shows faithful adherence to the constitutional principle of civilian supremacy over the military.
“Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” (Sec 3, ART II)
14. Col. Mariano appears to have the quality our ancestor Katipuneros would have been proud of. WHAT IS THAT QUALITY? The patriotism to serve up to the end of his term as a soldier with unadulterated truthfullness, regardless of the consequences.
Consequently, it would not be a surprise at all if, in fact, the majority of the Philippine Marines and the sovereign Filipino people are proud of him.
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
July 24, 2011
May a soldier be detained solely by reason of his political beliefs and aspirations?
It is respectfully submitted the answer is NO.
FACTS
1. Colonel Generoso V. Mariano is a bemedalled officer of the Philippine Marines who has rendered more than 33 continuous years of military service to the Republic.
2. Sometime in the first week of July 2011, Col. Mariano’s less than four-minute video clip was seen on YouTube, where he was shown to have made the following declaration of his apparent political beliefs and aspirations:
“We soldiers are human too. Nararamdaman din po naming mga sundalo ang kahirapan na idinudulot ng walang humpay na pagtaas ng mga bilihin, mga gamot at pagkain. Nakikita din po namin na ang ating pamahalaan ay walang kakayanang gumawa ng mga hakbang upang iiwas tayo sa kagutuman at kamatayan. Wala pong pinagkaiba ang nararamdaman naming mga sundalo, sa nakikita at nararamdaman ng ating mamamayan.
Ngunit may katungkulan po kami na hindi namin nakakaligtaan—ang katungkulan na ipagtanggol ang mamamayang Pilipino. At kung ang kasalukuyang pamahalaan ay walang intensyon o kaya walang naisasagawa upang isalba ang buhay ng mga nakararami, it is the duty—it is the right of every Filipino, including soldiers—to replace the government. Huwag na tayong magpaloko sa mga nangangakong sinungaling. Huwag na po tayong pagamit para labanan ang kapwa nating Pilipino sa Mindanao. Huwag na po tayong maniwala sa mga istatistikong gawagawa lamang na umuunlad ang ating bansa, habang parami nang parami ang nagugutom. Ipaglaban po natin ang karapatang mabuhay at ang maunlad na kinabukasan ng ating kabataan.
Ang hangad nating mabuhay ay base sa Katotohanan, sa Katarungan, sa Kapayapaan at sa Kaunlaran.
Let us, once and for all build a nation based on Truth, for without it, there can be no Justice, and without Justice, we shall have no Peace, and without Peace, there will be no Development.
In the end, may I quote our national hero, Dr. Jose Rizal, who said that, ‘If we have had bad leaders today and in the past, it is not the fault of the many who know less, but the fault of the few who know more but who do nothing or who do not do enough.”
3. On July 15, 2011, he was served a subpoena and an order which immediately placed him under effective ARREST and DETENTION. The order reads:
“From: Flag Officer In Command, PN
To: The Naval Provost Marshal
Subj: Restriction to Quarters of COL GENEROSO V MARIANO O-115573 PN(M)(GSC)
1. In connection with the reports received by this Headquarters on the alleged involvement of COL GENEROSO V MARIANO O-115573 PN(M)(GSC) in activities violating the provisions of the Articles of war, you are hereby directed to immediately place subject Officer under restriction to quarters pending investigation of said reported offenses to be conducted by a Special Investigation Committee created for this purpose.
2. Submit to Headquarters a report of actions taken thereon as soon as possible.
3. For strict compliance.
(Signed)
ALEXANDER P PAMA
Vice Admiral, AFP”
4. On July 17, 2011, he reached the compulsory retirement age of 56 years.
5. On July 20, 2011, Presidential Spokesman Edwin Lacierda made public statements in reference to Col. Mariano, which the Philippine Daily Inquirer reported as follows:
“‘He may not have specifically mentioned President Aquino, but in his statement you could see who he was referring to,’ Lacierda said.
Lacierda said Mariano should make his explanations to the Armed Forces of the Philippines and Department of National Defense.
‘It’s a matter of reviewing the tape and hearing the statement he made and that’s up to the DND and AFP to evaluate,’ he said.” (p. A2)
6. The same report further states:
“Justice Secretary Leila De Lima said she had recommended the filing of criminal charges against Mariano for violation of Article 142 of the Revised Penal Code when he made ‘seditious remarks’.
De Lima said Mariano, former Deputy Chief of the Naval Reserve Command, could also be charged with violating other military policies on mutinous and seditious acts. ‘On the face of those statements…He may be held liable for inciting to sedition… because of those seditious remarks which tend to incite others to act against duly constituted authorities of government,’ De Lima said.
In a legal opinion, she said Mariano may have breached Article 63 (Disrespect toward the President), Article 67 (Mutiny or sedition), Article 91 (Provoking speeches or gestures) and Article 96 (Conduct unbecoming an officer and a gentleman) of the Articles of War.
The Justice Secretary said she issued the legal opinion on Monday (July 18) on the request of Brig. Gen. Gilberto Jose Roa, head of the Judge Advocate Generals’ Office.” (ibid.)
7. In sum, Col. Mariano is now DETAINED solely by reason of his political beliefs and aspirations. He is, therefore, a POLITICAL PRISONER.
The Law
8. IS HIS DETENTION CONSTITUTIONAL OR UNCONSTITUTIONAL? UNCONSTITUTIONAL. The libertarian 1987 Constitution expressly provides:
“NO PERSON SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.” (Par. 1, Sec. 18, ART. III)
Since the Constitution is clear and does not provide for any qualification or exception, there is no room for any qualification or exception. Where the law does not qualify, we should not qualify. Where the law does not provide an exception, we should not provide any exception. And, where the law is clear, there is no room for construction. Hence, the provision may be properly restated as follows:
“NO SOLDIER SHALL BE DETAINED SOLELY BY REASON OF HIS POLITICAL BELIEFS AND ASPIRATIONS.”
The published pronouncements of the Executive Department show that, aside from the YouTube statement, there are no other grounds for his detention.
9. Assuming arguendo there is a conflict between such provision of the Constitution, on one hand, and the Articles of War and the Revised Penal Code, upon the other, it ought to follow that the latter, to that extent, would be UNCONSTITUTIONAL.
10. RETIRE means “to terminate employment or service upon reaching retirement age” (BLACK’S LAW DICTIONARY). Hence, when Col. Mariano reached the retirement age on July 17, 2011, his military employment or service was TERMINATED. He was reverted to the status of a CIVILIAN by operation of law. While he may have residual benefits for services rendered, there is no more legal obligation to serve.
11. WAS COL. MARIANO DEPRIVED OF A CONSTITUTIONAL RIGHT? YES.
a. His right not to be detained solely by reason of his political beliefs and aspirations was disrespected. His arrest and detention were based solely on his YouTube statement.
b. The Presidential Spokesman and Secretary of Justice are alter egos of the President. Under the doctrine of qualified political agency the action of the alter egos is the action of the President, unless the latter reprobates the same. Since the President did nothing with respect to the public pronouncements of his alter egos, it would follow that such pronouncements are effectively his own. The pronouncement to the effect that Col. Mariano’s statement constitutes “seditious remarks” is thus a prejudgement by the Commander-in-Chief. Col. Mariano’s statement has been PREJUDGED as SEDITIOUS even before any investigation has been completed. CAN THE MILITARY PANEL OF INVESTIGATORS OVERTURN SUCH PREJUDGEMENT BY THEIR COMMANDER-IN-CHIEF? They obviously CANNOT. Consequently, it would appear that Col. Mariano is being deprived of a fair and impartial tribunal which is an indispensable element of DUE PROCESS.
c. WHAT IS THE EFFECT OF SUCH DEPRIVATION OF DUE PROCESS? The Special Investigation Committee is thereby OUSTED OF JURISDICTION over the case. “Indeed, it is well-settled that once a deprivation of a constitutional right is shown to exist, the tribunal that rendered the judgement in question is deemed ousted of jurisdiction” (Olaguer v Military Commission No. 34, 150 SCRA 144, at 161).
12. WHAT IS THE EFFECT OF COL. MARIANO’s COMPULSORY RETIREMENT WITH RESPECT TO THE MILITARY PROCEEDINGS AGAINST HIM?
Since the retirement is by operation of law, it follows that it automatically rendered the military-created investigation committee WITHOUT JURISDICTION over the person of the retired colonel who, since then, is now a CIVILIAN.
13. WHAT IS THE SCOPE OF AN ACCUSED CIVILIAN’s RIGHT TO DUE PROCESS? According to the Supreme Court: “Due process of law demands that in all criminal prosecutions (where the accused stands to lose either his life or his liberty, the accused shall be entitled to, among others, a trial. The trial contemplated by the due process clause of the Constitution, in relation to the Charter as a whole, is a trial by judicial process, not by executive or military process. Military commissions or tribunals, by whatever name they are called, are not courts within the Philippine judicial system” (Olaguer Case, ibid., p 158).
It ought to be observed that this pronouncement shows faithful adherence to the constitutional principle of civilian supremacy over the military.
“Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.” (Sec 3, ART II)
14. Col. Mariano appears to have the quality our ancestor Katipuneros would have been proud of. WHAT IS THAT QUALITY? The patriotism to serve up to the end of his term as a soldier with unadulterated truthfullness, regardless of the consequences.
Consequently, it would not be a surprise at all if, in fact, the majority of the Philippine Marines and the sovereign Filipino people are proud of him.
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