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Tuesday, September 12, 2006
Justice endorses raps v. Filipino, Japanese owners of Solar 1 firm
THE Department of Justice (DOJ) on Monday recommended the indictment of the Filipino and Japanese incorporators and officers of Sunshine Maritime Development Corporation (SMDC), owner of the oil tanker that sunk off Guimaras Island, for possible violation of the anti-dummy law.
In its 10-page initial report, the DOJ special task force chaired by Undersecretary Ernesto Pineda directed the National Bureau of Investigation (NBI) to secure additional evidence, including background checks on the financial capacity of the Filipino shareholders of SMDC preparatory to the filing of a criminal case against the owners, officers and incorporators of the shipping firm.
"Considering that the anti-dummy law encompasses 'any person who knowingly aids or abets in the planning of' any prohibited acts, that ignorance of the law does not suffice as an excuse for compliance therewith, and that even Filipino citizens can be criminally liable, the directors, officers and incorporators of SMDC, both Filipino and Japanese alike, should be indicted for violation of the pertinent provisions of CA 108," the panel said.
"Since SMDC is engaged in shipping as a nationalized industry, violation of the anti-dummy law is quite apparent. To stress, SMDC's Japanese shareholders are barred from intervening in its management, administration or control of the business whether as an officer, employee or laborer, with or without renumeration," it added.
The task force further said the divestment of shares by erring SMDC stockholders, directors and officers will not exculpate them from criminal liability for the commission of the offense.
"The offense being mala prohibita, the rule is that lack of criminal intent or good faith is not an exempting circumstance," the panel stated.
Based on the findings of the task force after conducting two hearings, SMDC was incorporated Feb. 22, 2002. It is engaged in coastwise trade, a nationalized industry reserved for Filipino citizens or corporations/associations with at least 60-percent Filipino ownership.
Its incorporators and officers are: Hiroyasu Yamaguchi, chairman of the board and treasurer; Mototsugi Yamaguchi, member of the board and vice president; Tomoki Tsubomoto, board member; Hiromi Irishika, board member; Clemente Cancio, president and board member; Dionisio Parulan, incorporator; Roberto Mena, board member; Gregorio Flores, board member and corporate secretary; Angelita Buenaventura, board member.
The authorized capital stock of the company is P40 million, of which, a total of P10 million is subscribed while P5.5 million has been fully paid by the incorporators.
Of the P5.5 million, P4 million came from the Japanese shareholders who fully paid all their subscribed shares in the company, a fact that the DOJ panel said could be in violation of the law.
Citing Section 11, Article 12 of the 1987 Constitution, the task force said "the participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines."
The DOJ also cited Section 1 and 2-A of Commonwealth Act no. 108, or the anti-dummy law, which provides that "any citizen of the Philippines who allows his name or citizenship to be used for the purpose of evading such provision and any alien or foreigner profiting thereby, shall be punished by imprisonment for not less than five nor more than 15 years, and a fine of not less than the value of the right franchise or privilege."
The provision further stated that the fact that the citizen had "no real or personal property, credit or other assets the value of which shall at least be equivalent to said holdings, shall be evidence of a violation of the Act."
It further warned against those who would "knowingly aid, assist or abet in the planning, consummation or perpetration of any acts enumerated."
The panel said under Section 806 of RA 2937, shipping for coastwise trade requires that the President or managing directors of such corporations/associations are Filipinos.
"Shipping lines are vital arteries of commerce, perhaps more vital to our security and independence than the nationalization of the retail trade. Alien control of inter-island navigation means economic control and political domination of our country by alien hands," the panel said.
Earlier, the DOJ said the captain of the Solar 1 that sunk some 10 kilometers off the coast of Guimaras last August 11 should be criminally charged for negligence and reckless impudence resulting in multiple homicide and damages.
The sinking of the vessel also resulted in a massive oil spill affecting the provinces of Guimaras, Iloilo and Negros Occidental, polluting the beaches, coral reefs, diving sites and a marine sanctuary, and disrupting the livelihood of fishermen as it was believed that half the oil cargo has leaked from the tanker.
Pineda said cargo owner Petron Corporation got off with a relatively lighter offense because it simply chartered the vessel. Both the oil firm and ship owner however were recommended to pay for torts or damages for the oil spill.
Meanwhile, the Senate on Monday found pit that the SMDC might also be guilty of tax evasion.
During a hearing conducted by the Senate committee on environment and natural resources and the Joint Congressional Oversight Committee on Clean Water, it was found that the SMDC only had P3.9 million in income in 2004 based on the records of the Securities and Exchange Commission (SEC).
Senator Franklin Drilon questioned the payment by Petron Corporation of P75 million to SMDC for the firm's transport services in 2004. "It's your misfortune that your company was involved in this. Your company is not paying the right taxes," Drilon told Flores during the hearing.
Flores was asked to submit the company's income tax returns in 2003, 2004 and 2005 as well as the listing of its clients. Cancio and SMDC accountant will be issued a subpoena to appear in the next hearing.
Senator Rodolfo Biazon, on the other, urged Administrator Vicente Suazon Jr. of the Maritime Industry Authority (Marina) to strictly enforce their mandate for safety of life at sea (Solas) such as ensuring that a vessel is safe to ply the waters.
The Marina has a memorandum of agreement with the Philippine Coast Guard (PCG) to assist the Coast Guard in performing its duties but Biazon said it should be the sole responsibility of Marina under the law.
"For as long as the relationship is like this, there is difficulty here, and finger-pointing will always be the last resort when serious charges of failure to perform the task that would lead to disastrous consequence such as this (Guimaras oil spill)," the senator said.
Senator Pilar Juliana "Pia" Cayetano, chairman of the Senate committee on environment and natural resources, said there seems to be an overlapping of functions of the Marina and the Coast Guard. "We would like to look into that, so that we can assist these agencies in clarifying whose task it is," she added. (ECV/REC/Sunnex)
(September 12, 2006 issue)
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