Francisco Tatad, John Osmena and Rodolfo Biazon, vs.

Jesus Garcia, and EDSA LRT

CORPORATION, LTD
GR NO. 114222 April 6, 1995
Quiason, J.,
In 1989, the government planned to build a railway transit line along EDSA. No
bidding was made but certain corporations were invited to prequalify. The only
corporation to qualify was the EDSA LRT Consortium which was obviously formed for
this particular undertaking. An agreement was then made between the government,
through the Department of Transportation and Communication (DOTC), and EDSA
LRT Consortium. The agreement was based on the Build-Operate-Transfer scheme
provided for by law (RA 6957, amended by RA 7718). Under the agreement, EDSA
LRT Consortium shall build the facilities, i.e., railways, and shall supply the train
cabs. Every phase that is completed shall be turned over to the DOTC and the latter
shall pay rent for the same for 25 years. By the end of 25 years, it was projected
that the government shall have fully paid EDSA LRT Consortium. Thereafter, EDSA
LRT Consortium shall sell the facilities to the government for $1.00.
However, Senators Francisco Tatad, John Osmea, and Rodolfo Biazon opposed the
implementation of said agreement as they averred that EDSA LRT Consortium is a
foreign corporation as it was organized under Hongkong laws; that as such, it
cannot own a public utility such as the EDSA railway transit because this falls under
the nationalized areas of activities. The petition was filed against Jesus Garcia, Jr. in
his capacity as DOTC Secretary.
ISSUE: Whether or not the petition shall prosper.
HELD: No. The Supreme Court made a clarification. The SC ruled that EDSA LRT
Consortium, under the agreement, does not and will not become the owner of a
public utility hence, the question of its nationality is misplaced. It is true that a
foreign corporation cannot own a public utility but in this case what EDSA LRT
Consortium will be owning are the facilities that it will be building for the EDSA
railway project. There is no prohibition against a foreign corporation to own facilities
used for a public utility. Further, it cannot be said that EDSA LRT Consortium will be
the one operating the public utility for it will be DOTC that will operate the railway
transit. DOTC will be the one exacting fees from the people for the use of the
railway and from the proceeds, it shall be paying the rent due to EDSA LRT
Consortium. All that EDSA LRT Consortium has to do is to build the facilities and
receive rent from the use thereof by the government for 25 years it will not
operate the railway transit. Although EDSA LRT Consortium is a corporation formed
for the purpose of building a public utility it does not automatically mean that it is
operating a public utility. The moment for determining the requisite Filipino
nationality is when the entity applies for a franchise, certificate or any other form of
authorization for that purpose.