BY AMADO P. MACASAET
MALAYA
‘Bautista cannot claim he is a representative of the PCGG because the sequestration of POTC has been lifted.’
LONG before Executive Secretary Paquito Ochoa dreamed of it, the supervision of the Presidential Commission on Good Government was transferred from the Office of the President to the Department of Justice.
The 35 percent ownership by the state of Philippine Overseas Telecommunications Corp. (POTC) was transferred to the Department of Finance for privatization.
Simple logic should have made Andy Bautista, chairman of the PCGG who is aspiring to become Solicitor General, understand that the government representation in the board of POTC and its wholly-owned subsidiaries should be nominated by the Department of Finance to which the shares of the state were transferred.
If the DoF names Bautista, chairman of PCGG, and elected to the board by the 35 percent interest of the state, that should be it. He is a duly elected member of the board, not a representative of the PCGG.
But then Executive Secretary Paquito Ochoa issued Executive Order No. 42 allowing the nominees of the state in POTC and its subsidiaries to name or nominate their replacements who could very well be nobody else but themselves. Bautista refuses to leave the POTC and its subsidiaries as representative of the PCGG, not of the state which is a beneficial owner of 35 percent of POTC. Bautista insists that he sits in the boards of POTC and its wholly-owned companies on the strength of EO No. 42 issued by Executive Secretary Paquito Ochoa.
Bautista is known to be a bookish lawyer. If he goes by the book like his peers say he does most of the time, he should clearly understand that POTC is no longer under sequestration. The controversy over placing the company under sequestration has been resolved.
After the Marcos government fell in February 1986, Jose Y. Campos, known to be a close friend of Ferdinand Marcos but never known to have used his influence for his personal gain, turned over two companies, both stockholders of POTC, to the PCGG and claimed with proof that he was holding or keeping them for Marcos and his family.
The case reached the Supreme Court which formally ruled that indeed, the 35 percent participation of the two companies in the satellite operation was deemed to have been acquired with ill-gotten wealth.
Consequently, the Supreme Court awarded the 35 percent to the state. I have a copy of the stock certificate in the name of the Republic of the Philippines.
Because the state is a 35 percent stockholder, it is entitled to representation in the boards of POTC and its subsidiaries. There is no question about that.
The monstrosity is in EO No. 42 issued by Ochoa authorizing the PCGG chairman, Andy Bautista, at this time, to pick their own replacements and the nominees to the sequestered companies.
When the issue of the 35 percent ownership by the two Marcos companies in POTC was resolved in favor of the state the sequestration of POTC was deemed lifted. There are documents that so state.
Yet as stockholder, the state is entitled to representation in the board. Representations in the board can never be interpreted as sequestration. But Bautista continues to believe so.
He believes that the Executive Order of his friend, the Executive Secretary, is the law that must apply in selecting the representatives of the state in POTC.
Bautista’s looming presence in the boards of POTC and subsidiaries is by virtue of his being chairman of PCGG, not a representative of the state.
I disagree. Since the sequestration is deemed lifted, the election of the members of the board, including representatives of the state, should follow the corporation law. Annual stockholders meetings are held.
Since the 35 percent ownership of the state has been transferred to the Department of Finance, it should be the DoF that should name the state nominees to the board. The Executive Order is anomalous, in fact illegal, for the simple reason that it allows Bautista to replace the nominees of the PCGG to companies like POTC which is no longer sequestered.
There can be no such thing as membership in the board by Executive Order. It is always by election by the stockholders in the annual stockholders meeting. Bautista elected himself by virtue of an Executive Order that does not sit with the Corporation Law. He cannot claim he is a representative of the PCGG because the sequestration of POTC has been lifted. But he believes so using the illegal EO as basis.
It is clear by his refusal to leave POTC as nominee of the PCGG that Bautista, a dean of law in a populous university of law, ignores the Corporation Law and abides by the Executive Order of Ochoa.
The EO considers POTC as sequestered. That is patently wrong. How did Ochoa come to think that a company like the POTC where the state has a 35 percent stake remains sequestered?
The PCGG is not authorized to name its representatives to companies no longer sequestered. It is the Department of Finance that is authorized to make the nominations to the board because it holds the 35 percent investment of the government.
The presence of a PCGG nominee is not necessary since the state has been awarded its due.
Who does Andy Bautista suspect is capable of dissipating the assets? It cannot be anybody else but himself if he sits not as a member of the board but as a nominee of the PCGG.
It is on record that from the time POTC and its subsidiaries were managed by their beneficial owners, including Katrina Ponce Enrile, the firms have amassed profits in the hundreds of millions of pesos.
On the other hand, when the companies were under sequestration, Philcomsat Holdings Corp. a wholly owned subsidiary, was bled dry.
It is necessary to note that Ochoa belongs to the law office where the wife of Sen. Bongbong Marcos is a senior partner. Is the EO of Ochoa intended to perpetuate the presence of a PCGG nominee in POTC and its subsidiaries so that the looting may continue?
No comments:
Post a Comment