IT is a verity that a Constitution is not cast in stone. It is a living instrument which responds to changing times. However, it cannot be altered with facility or amended by convenience. Accordingly, the 1987 Constitution is not inflexible. But it must be stable. Overriding reasons, channeled through constitutional processes, must obtain to warrant charter change or cha-cha.
Sections 1 and 2 of Article XVII provide for the three modes of amending or revising the 1987 Constitution: Congress acting as a constituent assembly, constitutional convention, and people’s initiative. Ordinary legislation is not a mode.
A legislative committee or either chamber of Congress cannot exercise constituent powers apart from a constituent assembly which is the body solely vested with constituent authority. Moreover, legislative prerogative differs vastly from constituent power. Gonzales vs. COMELEC held that when exercising constituent power, “Senators and Members of the House of Representatives act, not as members of the Congress, but as component elements of a constituent assembly.”
The common “amendment” proposed by Resolution of Both Houses (RBH) No. 2 is to insert the omnibus phrase “unless otherwise provided by law” in Articles XII, XIV, and XVI of the Constitution, and thereafter liberalize by law the so-called restrictive economic provisions to attract more foreign direct investments (FDIs).
This apparently simple amendment is fraught with constitutional infirmities:
- It allows Congress to amend the Constitution by mere legislation, a subterfuge to circumvent the amendatory process.
- It grants Congress the blanket authority to subsequently provide by mere statute the specifics on the economic liberalization scheme. This is like giving Congress blank checks which legislators would encash repeatedly in the future in such values dependent on their sole will.
- It denies the people, who will ratify the proposed amendments, the requisite information on the scope of the eventual amendments to be legislated by Congress. For example, to what extent would foreigners be allowed to own, operate, and manage public utilities, educational institutions, mass media and advertisement enterprises, and to exploit our natural resources? The fundamental consequences of the proposal demand full disclosure of the contingent amendments’ parameters. Proffered “flexibility” cannot supplant transparency.
While cha-cha proponents hysterically claim that foreign investors want immediate liberalization, they suffer investors to wait indefinitely for inchoate legislation detailing the latitude of the actual amendments, indicating that the proponents are not in earnest. Incidentally, South Korea and Taiwan achieved newly-industrialized status without depending on FDIs, which are not the panacea to development woes.
When the Constitution uses the phrases “unless otherwise provided by law”, “as may be provided by law”, or “defined by law”, it is to authorize Congress to enact implementing legislation to carry out constitutional mandates, not reverse them.
For example, the terms of office of Representatives and Senators start on June 30 following their election, “unless otherwise provided by law”, but only their terms’ starting date can be changed by law, without extending term limits as constitutionally fixed; the “Congress shall provide the implementation” of people’s initiative; and political dynasties, which are constitutionally banned, “may be defined by law”.
Unlike the positive intent of the above examples, RBH No. 2, by the sorcery of the phrase “unless otherwise provided by law”, would dilute, diminish, or disregard the constitutional mandate of granting dominance to Filipinos in the ownership and operation of public utilities and vital enterprises.
Congress is authorized to increase, not decrease, the percentage of Filipino ownership in some areas of investment under Section 10 of Article XII. The Constitution also authorizes Congress to increase Filipino equity in educational institutions over 60%. The objective of RBH No. 2 is to defy such authorizations.
An enduring aspiration of the sovereign Filipino people enshrined in the Constitution’s Preamble is the conservation and development of the national patrimony. Patrimony is the composite national wealth protected as heritage for future generations.
Thus, the “State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.” Accordingly, Article XII imposes nationality requirements and citizenship ratios in favor of Filipinos in the operation of public utilities and exploitation of natural resources. Article XII is entitled “National Economy and Patrimony” precisely to underscore that the economy must serve and preserve the patrimony.
RBH No. 2 is treason to our patrimony as it derogates the foregoing nationalistic safeguards, even as prospective foreign investors are not personally clamoring for the lifting of the supposed constitutional restrictions.
Empirical studies of the World Bank, Organization for Economic Cooperation and Development (OECD), and the United Nations Conference on Trade and Development document the following composite determinants of FDIs: ease of doing business; infrastructure adequacy; incidence of corruption; tax regulation and rates; internet speed and power cost; size of the economy and inflation; and predictability of policies. The liberalization of constitutional economic provisions is not included.
While another OECD study lists restrictive economic laws as barriers to FDI, the import of the principal factors on the entry or retention of FDIs remains undiminished. Relevantly, in ease of doing business, the World Bank ranks the Philippines a lowly 95th worldwide and 7th out of 10 ASEAN countries.
If we fail to address the principal determinants of FDI inflows, economic liberalization will not attract more FDIs, particularly when the Philippines is reported as last to recover in Asia-Pacific from the pandemic-induced recession and has the highest inflation rate in the ASEAN. A constricted economy and high inflation are depressants of FDIs.
Even if we open wide our economy’s doors at the expense of our patrimony, the scourge of negative factors at the country’s very doorstep discourages FDIs.
Verily, the cha-cha initiative is out of step because it is flawed in procedure and deficient in substance.