Can BENECO Complete its emergency Landing?

ADVANCE DISCLOSURE: I make no claim whatsoever that everything I say here are facts.

This is to save time for all those sanctimonious fact-twisters out there who I know will go through this article with a fine-toothed comb again, looking for bits to “factcheck” just to create the impression they are earning their keep as official apologists for NEA.

Less than two months remain in the NEA “game plan” to normalize operations at BENECO, and there is still no indication of a district elections in the offing.

There’s a proposal already in the pipeline to hold an Annual General Membership Assembly (AGMA) this coming June, but that still has to be approved by NEA.

What happened to “ARGAM”? Well, if it’s NEA that will greenlight its holding, not the CDA, then I’ll use the nomenclatures under the NEA playbook. Ergo, we go AGMA.

The more intriguing question is, “Why will an event that is MANDATORY under the coop’s By-laws ordained by the Sovereign Membership still have to be ‘approved’ by a mere regulatory body?”

I have no idea.

But this is no more perplexing than why the BENECO Members, a.k a. “MCO’s,” swallow this condition hook, line and sinker.

Evidently, the mass hypnosis persists.

Something else is on the cooking griddle, though. Apparently, Task Force BENECO is about to publish an announcement opening the application period to select the next general manager. They’re just waiting for the final go-signal from NEA.

Since NEA apologists will, of course, steer public awareness AWAY from this issue—either by just keeping mum about it, or actively attacking public dialogue by any means such as an article like this—I thought I might do the honors of raining on their parade.

You cannot open the selection and hiring process for a new GM, except by an enabling resolution of a REGULAR board of directors—not by an ad hoc one.

An interim board of directors appointed through functus oficio by a third person who is not organic to BENECO, does not vest upon that body a sovereign mandate.

Let me break down that concept a little bit more.

The interim board of directors were all appointed by NEA Administrator Antonio Mariano Almeda by operation of his interim authority as “Project Supervisor”—which is NOT his principal office.

His principal office—the office to which he was appointed and which carries a fixed term, or tenure—is that of NEA Administrator.

His being concurrent Project Supervisor is NOT a separate office, but one that he only holds “ex oficio”—meaning “by reason of his true office.”

In general, the 1987 Constitution prohibits holding two offices—so one better be a mere adjunct of the other, if you want to stay out of constitutional trouble.

In appointing the interim BENECO directors, Almeda exercised a power “functus oficio”—meaning drawing from the same source of authority as his PRINCIPAL office, which is all that justifies his holding the ex-oficio one (project supervisor) in the first place.

Therefore, what he cannot do as NEA Administrator, he cannot do as project supervisor, because the authority of a project supervisor is a delegated one.

Under the concept of agency, the agent CANNOT be more powerful than his principal—as the spring cannot rise higher than the source.

You might be tempted to ask me, “How can the NEA administrator step down his official pedestal to appoint himself to a lower position as project supervisor? Can he be his own agent?”

The answer is two-part: Firstly, NO, he did not appoint himself, he claims Energy Secretary Raphael Lotilla appointed him project supervisor—a claim which I will take at face value (because I personally don’t believe it’s valid).

Secondly, no hairsplitting is really necessary. Even without having to do all that legal contortionism about being appointed by the DOE secretary yada yada–YES, he can appoint himself and be his own agent.

An agent is just someone who acts in your behalf and does exactly what you instructed him to do. So the best agent there is, really, is yourself.

The finest example of this is President Bongbong Marcos assuming the role of Secretary of the Department of Agriculture (DA).

That makes him the most powerful secretary because his authority is not defined by his role as DA Secretary “ef-oficio” but by his “functus oficio” as President of the Philippines.

And even then, what he cannot do as President of the Philippines, he cannot do as DA Secretary. He cannot overhaul the Comprehensive Agrarian Reform Law (CARL), for example. Only Congress can do that.

(Well, TECHNICALLY, he can overhaul the CARL, but he has to declare martial law and abolish Congress first, which TECHNICALLY, the 1987 Constitution doesn’t allow him to do. So, TECHNICALLY, he first has to totally discard the Constitution which, TECHNICALLY, has been done once in the heels of the 1986 EDSA “Revolution.”)

Applied to the BENECO situation, if the law does not grant the NEA Administrator the power to hire a PERMANENT general manager (it doesn’t), then he cannot do so by directing an interim board of directors HE APPOINTED to do it for him. What the law does not allow you to do directly, it will not allow you to do indirectly.

What he must do is facilitate the conduct of district elections to create the REGULAR board of directors—one that draws real authority from a popular mandate.

THEY will be the ones, as a constituent body, that alone can select and ultimately appoint a general manager.

That is the law.

So unless the main agenda of the coming June AGMA is to pave the way for the holding of district elections—adopting a specific date for the schedule for the election, constituting the election committee, for example—then that AGMA will be nothing more than a hyped-up but meaningless social activity.

And I suspect that is exactly what NEA and Task Force BENECO will do, keep the thing purely social—lots of boring speeches, giving out of awards for this petty achievement and that, musical and dance numbers, PowerPoint presentations exhorting “the process” ad nauseaum—but nothing existentially substantial.

They will predictably stay away from discussing replacing Acting General Manager Ramil Rafani—that one, an ACTING GM, the NEA Administrator can directly appoint to serve a limited contingency term. They will try to camouflage the preemptive hiring of a REGULAR general manager by other than a REGULAR board of directors.

I imagine some know-it-all saying, “Don’t you read the law? A project Supervisor can even act as a one-man board (of an ailing cooperative). So he can open the hiring process for the GM.”

No, Virginia, he cannot. He can only ASSUME the compound office of the board of directors, as a Committee of One—to perform contingency functions “to land a stricken aircraft,” in a manner of speaking.

A Project Supervisor is like somebody who took over the controls of an airplane whose pilot suddenly died of a heart attack. He has to keep the airplane flying, hold altitude, keep the plane as stable as he can for as long as he can, and look for the nearest airport to land the thing before it runs out of fuel.

Although he IS sitting in the pilot’s seat and has total control of the aircraft, he cannot punch in new coordinates and change the plane’s destination, except to cut the journey short.

In January, Almeda showed a decent awareness of his limited mission. That’s why he recklessly committed (in hindsight) overseeing the holding of district elections “within six months.”

Now he’s obviously leaning towards controlling the stricken airplane even long after it has landed—by making sure he had a hand in choosing the next pilot who will fly it. That would be clearly ultra vires

Yes, you can temporarily hold an office with practically boundless discretion. But temporarily holding an office does not mean you can carry out the duties and obligations reserved for the person or persons who must hold that office on a permanent basis.

It’s just like when the President is overseas and he assigns the Vice-president as caretaker of the Office of the President, can she—in the absence of the President—declare martial law?

Of course not.*