High tribunal’s power to control execution of its judgment

This refers to Francis Lim’s column titled “SEC on foreign ownership limits: A healthy compromise?” (Business, 6/20/13).

I beg to take a different position from that of Lim. The Securities and Exchange Commission rules do not conform to the decision in Gamboa v. Teves, and its Memorandum Circular No. 8 is but a cheap trick to keep the business community quiet—this much is obviously suggested by Lim himself in his column’s title. In contrast, there has been much intellectual dishonesty about the different types of foreign investments. Even I can appreciate the concern for the health of capital markets, etc. The reality, however, is that the real contributors to the lives of Filipinos are the direct investments establishing business operations or activities of a durable nature, which immediately create jobs and require multisectoral investments, as opposed to mere profit-taking by equity purchasers that most probably channel their dividends out of the country and our economy.

As for the Gamboa ruling, I think it is grossly unpatriotic for Filipino business leaders to allow foreigners to monopolize the higher-yielding stocks, simply because the business community finds it inconvenient to make its equity distribution comply with the 60-40 rule for each class of shares. I think we should be guided, shocked and appalled by the finding in Gamboa that the dividend disparity is 70 to 1, at least in the cited example of PLDT.

I filed a petition with the Supreme Court to give the Court an opportunity, among other objectives, to see to the implementation of its decision in the manner it sees fit. It may interest you to know that the Court made explicitly clear its power to control the execution of its judgments as far back as the Echegaray case, where it restrained the death penalty of Leo Echegaray. It seems there is no reason why it cannot or should not exercise that power again, given the paramount importance of the Gamboa case.

It should not, however, be made to appear that this “healthy balance” as Lim puts it, is beyond further judicial inquiry—or worse, that it accurately reflects the discussion in Gamboa. Surely, as a top litigator himself, Lim is quite aware that the ruling about applying the 60-40 test to all classes of shares did not appear randomly or without purpose in the ratio decidendi of the Gamboa case. I think Lim will agree with me that it is better to tackle this question now than to wait another 75 years for a decision rendering MC No. 8 inadequate.

Now, if Lim insists that this 60-40 requirement for each class of shares means nothing, it would be like saying that Justice Antonio Carpio—as well as the rest of the Court—speaks or writes recklessly in his judicial work. I’m sure neither of us is prepared to make that insinuation.

By the way, I am aware that Lim, as the former president of the Philippine Stock Exchange, was one of the respondents in the Gamboa case. It is, therefore, even more important that a different or an opposing point of view should find space in the marketplace of ideas. After all, as a member of the bar, I am absolutely certain that Lim will first adhere to his oath to defend the Constitution and uphold the Rule of Law—just as I am sworn to do.

—JOSE M. ROY III,

6776 Ayala Ave.,

Makati City