LEGAL luminaries seemed uneasy on the opinion o the Department of Justice (DOJ) which stood firm on the legality of appointing former Energy chief Raphael Lotilla, notwithstanding the prohibitions provided under the law which created the Department of Energy.
For one, Section 8 of Republic Act 7638 clearly states: “No officer, external auditor, accountant or legal counsel of any private company or enterprise primarily engaged in the energy industry shall be eligible for appointment as Secretary within two years from his retirement, resignation or separation therefrom.”
However, the DOJ says, Lotilla who had just resigned as independent director of two publicly-listed energy corporation – Aboitiz Power and EXEXOR – could not be considered corporate officer, legal counsel, external auditor, accountant or an in any capacity which requires day-to-day management of the organization.
Interestingly, Ma. Aurora “Boots” D. Geotina-Garcia believes otherwise. Geotina- Garcia, herself an independent director for another publicly-listed corporation, said that the position is more than a “just a corporate executive.”
Maybe she’s right. Apart from being a co-owner, an independent director receives regular cheques (per diem, honorarium, allowance, dividend, etc.), on top of the fees corresponding counsel and advices given to the company president, the chief operating officer or the chief executive officer. In an apparent bid to quell legal questions, Lotilla resigned as Independent Director for the two public-listed energy firms.
But that does not seem enough to make him eligible for the top DOE position which requires “at least two years divesting period from the time of the nomination.” Lotilla may have cut ties with Aboitiz Power and ENEXOR but Section 8 of Republic Act 7638 clearly embarking on the word “eligible for appointment as Secretary” within two years from his retirement, resignation or separation therefrom.
For the longest time, publicly-listed corporations have been resorting on recruiting former Cabinet Secretaries as board members for specific purpose – “ease of doing business.” Most of the former Secretaries of the Department of Environment and Natural Resources (DENR) have landed a board seat in mining companies after their DENR stints.
Same thing with former Energy chiefs, who are mostly into power business or forming part of energy corporations – Aboitiz Power and ENEXOR just to name a few. The wonder of having a former Cabinet Secretary is more than just prestige.
A former Secretary usually serves as the company’s conduit in cornering juicy government contracts. Whenever the company is in distress, the former Secretary forming their board can also help them get away from whatever liability they have incurred – financially or legally at that. In case – just in case, Lotilla is appointed as Energy Secretary, chances of seeing Aboitiz Power dominate the energy business is high. It may also set a bad precedent. So, what’s the best thing to do? President Ferdinand Marcos Jr. doesn’t seem inclined in recalling his nomination on Lotilla.
However, Lotilla may consider the idea of “politely declining” the offer – out of decency.
