Evidentiary “MCO SELFIE”

Why do I keep drawing a parallel between BENECO and Philippine government and society as a whole?

As I said earlier, it’s because BENECO is a mini version of the nation. So the lessons in our nation-building history are applicable to an electric cooperative—we just have to scale it down to size.

For example, it wasn’t only Congress that President Ferdinand Marcos abolished in 1972 when he declared martial law.

He also oversaw the mothballing of the 1935 Constitution, under which he ran and became president. The reason is simple: because it disallows him to remain in power by prohibiting a president from serving more than two terms (8 years).

He had already served two terms (1965-1969 and 1969 to 1972) and was looking to serve out his law few remaining months in office.

Conveniently, that’s also when the “communists” threatened to overthrow the Marcos administration, by lobbing a grenade at the rally of his political rivals’ Liberal Party in Plaza Miranda. Marcos belonged to the now-defunct Nacionalista Party.

I know what you’re thinking—none of this makes sense. Shouldn’t the “communists” have lobbed the grenade at Marcos’ rally instead?

Logically speaking yes, but it seemed the “communists” didn’t even care about Malacañang. The snubbing was so bad Marcos’ own Defense Secretary, the Jurassic Juan Ponce Enrile, had to pitifully fake an assassination attempt on himself to justify the declaration of martial law.

If something doesn’t happen by itself the way you want it to happen, then by all means FORCE it to happen yourself. If you can’t make it, fake it. You will discover that if you stage the drama intensely enough, people fall for it. (What has this got to do with AGMA? Wait for it…)

Next, Marcos hijacked the 1971 Constitutional Convention which was already reviewing the 1935 Constitution before martial law was even declared. Under the “coercive persuasion” of Marcos, they removed the presidential term limit. The term of the president was lengthened from four to six years, but there was no more express prohibition on reelection.

That was a sore point—a “factory defect”—in the draft 1973 Constitution that made it risky to submit to an honest and genuine ratification. So instead, Marcos ordered the convening of “citizen assemblies”—essentially small informal barangay caucuses (although the term “barangay” was only standardized nationwide in 1974) presided over by the capitan del barrio.

Instead of filling up ballots, the citizen assemblies were made into “photo-op” sessions of “voting” viva voce. The capitan del barrio asked the audience , “Sino’ng may gusto ng sardinas? Taas ang kamay!”

As everyone eagerly stretched their hands up high, government photographers snapped their photos. After that, sardines in tin cans were distributed, indeed. The photos were later presented as “evidence” that the Filipino people all over the archipelago overwhelmingly “ratified” the 1973 Constitution. There were tons of photographic “evidence” to buttress the claim.

This was challenged in the Supreme Court in the series of “Javellana v. Executive Secretary” or the so-called Ratification Cases. But while these cases were still pending, President Marcos preempted the Supreme Court and issued P.D. 1102 on January 15, 1973.

We lawyers who teach constitutional law often joke that the numbering was apropos: “eleven-o-two” for “nang-onse na, nang-uto pa!” but that, notwithstanding, PD 1102 declared that 1973 Constitution had been “duly-ratified.”

The moral lesson is that if you act with enough impunity, it is THAT easy to simulate public approval and get away with it. There will be a lot of heehawing but in the meantime, to borrow a favorite phrase of NEA in 2021, “it is valid until annulled.”

That phrase could be prophetic, if BENECO member consumers adopt the same attitude of apathy as the whole nation did in 1973 in the upcoming Annual General Membership Assembly (AGMA).

True, we eventually did away with that flawed 1973 Marcos Constitution when we ousted Ferdinand and Imelda during the 1986 EDSA Revolution. But it’s mind-shuddering to imagine how many colossal crimes were committed in the name of that horrible constitution before we were able to tear it down.

Let’s apply this wanting to cling to power template to the BENECO situation. It is my reading of the law that NEA’s “step-in rights” in taking over BENECO as an “ailing” cooperative is not unlimited, not open-ended, and not indefinite. It has to wind up its intervention within 180 days. Within that period, if it cannot nurse it back to health it has to convert it into either a stock cooperative or a stock corporation—BOTH oriented to make profits so that it can stop being “ailing.”

If it cannot accomplish either one, it has to return it back to its original state—ailing or otherwise—by overseeing the election of a regular Board of Directors who will forthwith manage the cooperative’s own affairs.

The core principle here is that a regular Board of Directors represents a true mandate conferred upon it by a real constituency. Only a true mandate can justify a firm hold on to an office.

Question: Can “Task Force BENECO” exist BEYOND six months (180 days)?

NO.

In fact, as it is, that “Interim Board” is already OVERSTAYING by more than one month. They should have been gone last April 12. This is NOT my opinion. It’s what the law says.

The second sentence (called a “proviso”) of Section 8-C of RA 10531—the section that allows NEA to appoint “outsiders” to BENECO until a new regular Board of Directors is elected—clearly states: “PROVIDED, that the NEA shall call for the election of a new set of board of directors within ninety (90) days from the exercise of the step-in rights.”

NEA began exercising step-in rights on January 12, 2023. It should have called for district elections no later than April 12, 2023. The law uses the mandatory word “shall” so even if NEA Administrator Almeda fancies himself as a dictator in his own right, it is still NOT up to him to say WHEN BENECO may hold elections.

It is true that the FIRST SENTENCE says “until NEA decides that the election of a new board of directors to manage the EC is necessary.” But in statutory construction, later provisions PREVAIL over another provision earlier in sequence, because the later provision reflects the more RECENT INTENT of the Legislature.

Besides, it is also a RULE in interpreting the law that an express “proviso” controls the scope and meaning of the main provision. There can no conflict within the same legal provision.

Let me illustrate.

If I say, “You can eat breakfast anytime you want as long as you eat BEFORE NOON”—the discretion I gave you to eat “anytime” is subject to the 12:00 o’clock deadline. So “anytime” here does NOT REALLY mean ANY time!

Therefore, at this very moment, NEA is in open and clear violation of RA 10531. That “Interim Board” is acting “ultra vires” (in excess of its authority which, by now, is already non-existent) and so is Almeda.

UNLESS….

If the BENECO Members themselves CLOAK “Task Force BENECO” with a SPECIAL MANDATE EXTRAORDINAIRE by adopting a Resolution during the AGMA that, essentially, (1) WAIVES the right of the member consumers to DEMAND the holding of district elections, (2) WAIVES any challenge to the continuance of the exercise of “step-in” rights by NEA, (3) EXPRESSES their continued faith and confidence in Project Supervisor Antonio Mariano Almeda—or, worse, their in-house word-bender might even include language in the Resolution whereby the Members express their DEEP GRATITUDE to him!

I don’t think offering to distribute 555 sardines will still work in this day and age. So I’m wondering HOW the assigned propagandist can get the Members to all raise their hands for the official crowd “selfie” photo-op.

Really—WHAT question answerable by “YES” can get 138,000 MCO’s to stretch their hands up high?

I don’t know.

Maybe, “Sinong may gusto ng appointment, malaki sweldo? Taas ang kamay!”*