G.R. No. 122156 - Separate Concurring Opinion

G.R. No. 122156, February 3, 1997,
♦ Decision, Bellosillo, [J]
♦ Separate Opinion, Padilla, [J]
♦ Concurring Opinion, Vitug, [J]
♦ Concurring Opinion, Mendoza, [J]
♦ Separate Opinion, Torres, [J]
♦ Dissenting Opinion, Puno, [J]
♦ Dissenting Opinion, Panganiban, [J]

MANILA PRINCE HOTEL, PETITIONER, VS. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION AND OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, RESPONDENTS.

I take the view that in the context of the present controversy the only way to enforce the constitutional mandate that “[i]n the grant of rights, privileges and concessions covering the national patrimony the State shall give preference to qualified Filipinos”1 is to allow petitioner Philippine corporation to equal the bid of the Mlaysian firm Renong Berhad for the purchase of the controlling shares of stocks in the Manila Hotel Corporation. Indeed, it is the only way a qualified Filipino or Philippine corporation can be given preference in the enjoyment of a right, privilege or concession given by the State, by favoring it over a foreign national or corporation.

Under the rules on public bidding of the government Service and Insurance System, if petitioner and the Malaysian firm had offered the same price per share, “priority [would be given] to the bidder seeking the larger ownership interest in MHC,“2 so that if petitioner bid for more shares, it would be preferred to the Malaysian corporation for that reason and not because it is a Philippine corporation. Consequently, it is only in cases like the present one, where an alien corporation is the highest bidder, that preferential treatment of the Philippine corporation is mandated not by declaring it winner but by allowing it “to match the highest bid in terms of price per share” before it is awarded the share of stocks.3That, to me, is what “preference to qualified Filipinos” means in the context of this case – by favoring Filipinos whenever they are at a disadvantage vis-avis foreigners.

This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute giving “preference to Filipino citizens in the lease of public market stalls.”5 This Court upheld the cancellation of existing leases covering market stalls occupied by persons who were not Filipinos and the award thereafter of the stalls to qualified Filipino vendors as ordered by the Department of Finance. Similarly, in Vda. de Salgado v. De la Fuente,6 this Court sustained the validity of a municipal ordinance passed pursuant to the statute (R.A. No. 37), terminating existing leases of public market stalls and granting preference to Filipino citizens in the issuance of new licences for the occupancy of the stalls. In Chua Lao v. Raymundo,7 the preference granted under the statute was held to apply to cases in which Filipino vendors sought the same stalls occupied by alien vendors in the public markets even it there were available other stalls as good as those occupied by aliens. “The law, apparently, is applicable whenever there is a conflict of interest between Filipino applicants and aliens for lease of stalls in public markets, in which situation the right to preference immediately arises.”8

Our legislation on the matter thus antedated by a quarter of a century efforts began only in the 1970s in America to realize the promise of equality, through affirmative action and reverse discrimination programs designed to remedy past discrimination against colored people in such areas as employment, contracting and licensing.9 Indeed, in vital areas of our national economy, there are situations in which the only way to place Filipinos in control of the national economy as contemplated in the Constitution10 is to give them preferential treatment where they can at least stand on equal footing with aliens.

There need be no fear that thus preferring Filipinos would either invite foreign retaliation or deprive the country of the benefit of foreign capital on know-how. We are dealing here not with common trades or common means of livelihood which are open to aliens in our midst,11 but with the sale of government property, which is like the grant of government largess or benefits. In the words of Art. XII, §10, we are dealing here with “rights, privileges, and concessions covering the national economy” and therefore no one should begrudge us if we give preferential treatment to our citizens. That at any rate is the command of the Constitution. For the Manila Hotel is a business owned by the Government. It is being privatized. Privatization should result in the relinquishment of the business in favor of private individuals and groups who are Filipino citizens, not in favor of aliens.

Nor should there be any doubt that by awarding the shares of stocks to petitioner we would be trading competence and capability for nationalism. Both petitioner and the Malaysian firm are qualified, having hurdled the prequalification process.12 It is only the result of the public bidding that is sought to be modified by enabling petitioner to up its bid to equal the highest bid.

Nor, finally, is there any basis for the suggestion that allow a Filipino bidder to match the highest bid of an alien could encourage speculation, since all that a Filipino entity would then do would be not to make a bid or make only a token one and, after it is known that a foreign bidder has submitted the highest bid, make an offer matching that of the foreign firm. This is not possible under the rules on public bidding of the GSIS. Under these rules there is a minimum bid required (P36.67 per share for a range of 9 to 15 million shares).13 Bids below the minimum will not be considered. On the other hand, if the Filipino entity, after passing the prequalification process, does not submit a bid, he will not be allowed to match the highest bid of the foreign firm because this is a privilege allowed only to those who have “validly submitted bids.”14 The suggestion is, to say the least, fanciful and has no basis in fact.