“THE evil that men do lives after them; The good is oft interr’d in their bones.” That Anthony was made to say by Shakespeare at Ceasar’s funeral. So let it be, too, with Jesus Enrique G. Martinez. But, nay, not before I say my piece on the Cease and Desist Order (CDO) that was issued in the Meralco case.

The Supreme Court, in its decision in the consolidated cases of GSIS v. Court of Appeals, G.R. 183905 and SEC v. Rosete, G.R. 184275, promulgated last April 16th, was, in my view, not entirely correct in characterizing it as one issued by Commissioner Jess Martinez alone.

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The facts, as recounted by the Supreme Court, Associate Justice Dante O. Tinga, ponente, are as follows: “…GSIS filed its petition with the with the SEC on 26 May 2008 (seeking to restrain Rosete from ‘recognizing, counting and tabulating, directly or indirectly, notionally or actually or in whatever way, form, manner or means, or otherwise honoring the shares covered by the proxies in favor of respondents… and to annul and declare invalid said proxies. GSIS also prayed for the issuance of a Cease and Desist Order (CDO) to restrain the use of said proxies during the annual meeting scheduled for the following day…’). The CDO, six pages in all with three pages devoted to the tenability of granting the injunctive relief, was issued on the very same day, 26 May 2008, without notice or hearing. The CDO bore the signature of Commissioner Jesus Martinez, identified therein as “Officer-in-Charge” and nobody else’s.”

Actually, the Supreme Court, by deciding that the SEC did not have jurisdiction over the subject matter of GSIS’ petition, thereby necessarily invalidated the CDO issued in that case by SEC Commissioner Martinez. Hence, there was no need for the Court to tackle at length the matter of the CDO’s validity. But somehow the Court nevertheless thought it opportune to wield its teaching function. In its words, “there is need for this Court to squarely rule on the question pertaining to its validity, if only for jurisprudential value and for the guidance of the SEC.” It wanted to teach the SEC a thing or two on types of CDOs that it is authorized to issue under the Securities Regulation Code (SRC).

Teaching, the Supreme Court pointed out that the SEC may issue a CDO pursuant to either one of three sections of the SRC, namely, Section 64, Section 5.1 and Section 53.3, each for different purposes and under different circumstances. But uniform to all three is the requirement that the CDO be issued by the SEC itself, as a collegial body, and not by only one of its commissioners under delegation or otherwise.

Delivering its peroration with a flourish that we ordinarily hear only from uniquely positioned institutions whose brilliancies and blunders alike “form part of the legal system of the Philippines,” the Supreme Court declared:

“The issuance of the CDO is an act of the SEC itself done in the exercise of its original jurisdiction to review actual cases or controversies. If it has not been clear to the SEC before, it should be clear now that its power to issue a CDO cannot, under the SRC, be delegated to an individual commissioner.”

With that general pronouncement as platform, it was not unexpected for the Supreme Court to turn to Martinez. “Simply put,” the Supreme Court declared, “Commissioner Martinez is not the SEC. He alone does not speak for and in behalf of the SEC. The SEC acts through a five-person body, and the five members of the commission each has one vote to cast in every deliberation concerning a case or any incident therein that is subject to the jurisdiction of the SEC.”

Accordingly, only one conclusion could have been made on the validity of the CDO: “the fact that the CDO was signed, much less (sic) apparently deliberated upon, by only one commissioner likewise renders the order fatally infirm.” Ay, there’s the rub.

With due respects, I beg to dispute the factual premise of the Court. I submit that Commissioner Jesus Martinez did not unilaterally decide on the issuance of the CDO of 26 May 2008. On the contrary, two of Martinez’ fellow commissioners, namely, Commissioners Raul J. Palabrica and Thaddeus E. Venturanza, were consulted, had concurred with the issuance of the CDO. In fact, they confirmed and ratified Martinez’ order.

On page A10 of the 04 June 2008 issue of the Business Mirror, Manuel Buencamino recalls how Martinez narrated to him the consultations he made with his colleagues prior to issuing the CDO. Said Martinez, according to Buencamino:

“After I read the (GSIS) petition, I went to the office of Commissioner (Thaddeus) Venturanza and asked him to read the petition. He said ‘we should issue a CDO.’ Commissioner (Raul) Palabrica was out of the office at the time so Venturanza and I phoned him. After our teleconference, he said, ‘issue the CDO.’ That's three commissioners. I signed for and in behalf of the Commissioners because I was the OIC."

That account is, to me, convincing enough to prove that Martinez did not act by himself. But it is nevertheless self-serving. A more objective testimony is needed for Doubting Thomases. That objective testimony, I submit, is the Minutes of the Executive Session of the Commission sitting en banc on Tuesday, May 27, 2008, one day after the CDO was issued.

The Commission Secretary recorded the deliberations of the executive session which were participated in by Commissioners Martinez, Palabrica and Venturanza; Chairperson Barin was away on official business in Paris while Commissioner Cueto was on sick leave. In its relevant parts, the Minutes, reads as follows:

“Com. Martinez informed the group that as discussed and agreed upon yesterday (26 May 2008) by the Commissioners, a Cease and Desist Order (CDO) was issued to Meralco signed by him for the Commission. The Order’s dispositive portion provides.

Coms. Palabrica and Venturanza manifested for the record that they are ratifying and confirming the above said order. They added that for the record, they were consulted for the issuance of the order.”

Consequently, a resolution was formalized, officially known as SEC-EXS. RES. No. 178 s. of 2008 ratifying and confirming “the Order issued in the Matter of Government Insurance System (GSIS) (SEC en Banc Case No. 05-08-131) dated May 26, 2008 under the signature of Com. Jesus E. G. Martinez, signing as Officer-in-Charge of SEC for the Commission.” The Minutes, which was prepared by Commission Secretary C.A. Gerard M. Lukban, was attested by Commissioner Martinez, by Commissioners Palabrica and Venturanza themselves, and noted by Chairperson Fe B. Barin and Commissioner Ma. Juanita E. Cueto.

The said Minutes, I submit, sufficiently demonstrates the factual error of the ponente’s premise that the CDO was “signed, much less (sic) apparently deliberated upon by only one commissioner…” Clearly, Commissioners Palabrica and Venturanza were consulted prior to the CDO’s issuance. They each gave their informed consent thereto. And by their ratification the following day, both had confirmed the same. The CDO was thus, contrary to the condemnation by the ponente, not an act of Martinez alone.

I do not know whether, and if so, how at the present time the Supreme Court’s pronouncement could be officially rectified, if only to do posthumous justice to a man who was maligned as he lay suffering on his sick bed. But I do wish that those who might still be able to do so would soon.

Until then, good night, Jess. And flights of angels sing thee to thy rest.

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