Lawyer Raphael Perpetup Lotilla may occupy the post of energy secretary even if he served as an independent director in power firms Aboitiz Power and Exenor, the Department of Justice said on Thursday.
In a statement, the DOJ said that the law which created in 1992 the Department of Energy did not consider the position of independent director when it provided that no officer of a company in the energy industry may be appointed secretary within two years of his or her separation from the firm.
"The Department of Justice believes that the nomination of Raphael 'Popo' Lotilla as the new Secretary of the Department of Energy is valid and lawful," the DOJ said.
"The novel concept of an 'independent director' was not contemplated by Republic Act No. 7638 (otherwise known as the Department of Energy Act of 1992)," it added.
The DOJ added that "an independent director" was "not an officer based on the nature, duties, functions, and responsibilities vis-à-vis the corporation he serves.”
The agency said this was in accordance with subsequent laws such as the Revised Corporation Code, Securities Regulations Code, and the Code of Corporate Governance.
The DOJ added that the by-laws of Aboitiz Power and Exenor adopted that the statutory concept of an independent director did not fall within the proscription under Section 8 of Republic Act No. 7638.
Press Secretary Trixie Cruz-Angeles on July 11 said that Lotilla's appointment was dependent on the status of his employment as independent director at Aboitiz and Exenor.
"Thus, while the matter is reviewed to determine whether an independent director is considered an officer of the company, Lotilla is considered a nominee," Cruz-Angeles said.
She cited Section 8 of Republic Act 7638 which provides, “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 (2) years from his retirement, resignation, or separation therefrom.”
Lotilla served as energy secretary from 2005 to 2007 during the term of then President Gloria Macapagal Arroyo. —NB, GMA News