S1E67 – Exploiting the confusion created by the “fog of war”

The action of the National Electrification Administration (NEA) in appointing Ana Maria Rafael as general manager of Benguet Electric Cooperative is illegal because it violates Section 26-B of P.D. 269.

That provision prescribes the mandatory qualifications for general manager. Rafael lacks those qualifications.

There are two elements of a valid appointment.

The first one is POSSESSION OF ALL THE QUALIFICATIONS AND NONE OF THE DISQUALIFICATIONS to the position. This is called the Substantial element.

The second one is ADHERENCE TO THE PRESCRIBED PROCESS of making the appointment. This is called the Procedural Element.

NEA violated BOTH. It appointed Rafael who did not possess the qualifications required by P.D. 269.

It made the appointment through a resolution that violated ITS OWN PROCEDURES in the selection and recommendation of a GM.

To top it all, when it could not get the board of directors of BENECO to approve its recommendation of a SINGLE nominee, it just went ahead and usurped the power to appoint that lies exclusively in the board and made the appointment itself by an act “ultra vires” (meaning “in excess of” or “beyond its authority.”)

None of these violations are curable.

Those are the facts, and they are undisputed.

Originally, the doctrine of the “Fruit of the poisoned tree” is applied to a criminal case. In the absence of a valid search warrant, the Supreme Court held, all articles seized during such a search are inadmissible.

The same principle is, in fact, evident in this BENECO-NEA controversy. In light of the illegal appointment of Rafael by NEA, all of its subsequent actions in furtherance of that illegal appointment are ALSO illegal.

If the appointment is poisoned, then all subsequent actions by BOTH the appointee and the appointer are also poisoned.

If the appointment itself is invalid, all actions pursuant to that appointment are also invalid.

If we take into consideration the relevant timeline, NEA entered into this regime of invalid actions AFTER it made that illegal appointment of Rafael and served the copy of the appointment to BENECO on August 27, 2021.

In short, everything NEA did in furtherance of that illegal appointment after August 27, 2021 are all void.

THIS ISSUE HAS NOT BEEN RESOLVED BY ANY COURT, contrary to all public posturings of NEA. This is the main issue in the case now still pending in the Court of Appeals. It is also the main issue in the administrative case filed by Rafael against the board of directors, the general manager and some department heads and officers of the BENECO employees labor union before NEA.

By the way, this administrative case is where I am counsel for the Magnificent Seven and Laarni Ilagan.

What is the status of these cases? The one in the Court of Appeals has been submitted for resolution, so we are just waiting for the Decision, which should come out anytime. The counsel representing BENECO GM Mel Licoben in this case is the constitutional law expert Atty. Lauro Gacayan.

I am only his student.

In the NEA case (Administrative Case No. 11-09-21) where I am defense counsel for the BENECO officers, I have submitted my Position Paper three (3) months ago, or last November 29, 2021. Under NEA Rules, NEA may either decide the case already, based on the Position Papers submitted, or it may opt to go into full-length hearings before making its final decision.

It may also, wittingly or unwittingly, just sit on the case which, to my personal observation, is what it seems to have opted to do. At any rate, if it’s taking the Court of Appeals this long to contemplate the case, I certainly don’t expect an administrative body to go any faster. So it’s really down to a waiting game.

In the meantime NEA and Rafael are maintaining that her appointment is “valid until annulled.”

It is not. There is no such presumption in law and I challenge anyone to a public debate anytime anywhere who claims otherwise.

It is true, “valid until amended or repealed” is a solid doctrine of law. But it applies to legislation. In fact, it is carved in granite in our Civil Code that “laws are repealed ONLY by subsequent laws.”

What NEA and Rafael have done is hijack that principle to claim in effect, that a NEA Resolution can only be repealed by a subsequent NEA Resolution. So if NEA does not invalidate its own resolution appointing Rafael, the appointment stands. That is what they mean by her appointment being PRESUMED “valid until annulled.”

Additionally, they say unless a court invalidates her appointment, it stands.

That is ALSO wrong.

If an appointment is invalid on its face, then it has no legal effect. It’s very easy to prove this. And I can even get NEA to agree with me 100%. Let’s suppose NEA appointed ITS OWN ADMINISTRATOR as the new Energy Secretary, would NEA contend that the appointment is “valid until annulled?”

If an act is done ultra vires, that act need not be judicially declared invalid, all citizens belonging to the society of reason may simply defy it.

If the City Council of Baguio, for example, enacted an ordinance IMPOSING THE DEATH PENALTY as a penal provision, and the mayor did not veto it, may we then keep EXECUTING violators who are caught, in the absence of any court decision declaring the ordinance invalid in the meantime?

Of course not.

The ordinance is invalid, it cannot be enforced. Of course you have to go to court to formally expunge it from the records. But you don’t have to obey that ordinance in the meantime—even without a temporary restraining order stopping its implementation. Imposing the DEATH PENALTY is way in excess of a local legislative body’s authority. Only Congress can do that. So if the City Council imposes that penalty, even if they complied perfectly with the process for local legislation, it would STILL NOT ENJOY even a scintilla of presumption of validity at all.

So, with even more reason, a mere appointment IF INVALID ON ITS FACE does not enjoy any presumption of being “valid until annulled.”

However, don’t take my word for it. Go to the Rules of Court, look at Rule 131, section 2. There you will find an enumeration of forty seven (47) specific instances of disputable legal presumptions. Presumption of validity of an appointment to an office is not one of them.

Finally, NEA and Rafael, joined by the in-house legal luminary of the DILG, all said a RESOLUTION is a mere statement of the mind, or of the opinion of the body making that resolution. They stressed that a RESOLUTION is not enforceable because it is only binding on the persons, single or collective, who made that resolution. That’s why to them the concurrent resolutions of the Baguio City Council and the Benguet provincial Board declaring Rafael a “persona non grata” are mere scraps of paper.

Then this means, all resolutions by NEA are not binding on anyone except upon NEA only. BENECO has no legal duty to obey a NEA “resolution.”

NEA must be consistent. They cannot assign one meaning to the word “resolution” when it favors them, and assign a different meaning when it’s against them. That is gross abuse of discretion.

So I issue this challenge to NEA: convert that resolution appointing Ana Marie Rafael as general manager of BENECO into an ORDER.

Go ahead and retain all of its invalid essential elements and RE-ISSUE IT AS AN ORDER.

If NEA will do this, I promise to challenge it in court, in behalf of an organized alliance of its member consumer owners.

And I will do it as a teacher of law, in the interest of advancing legal education in the country.*

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