The House of Representatives is in the process of approving on second as well as on third and final reading House Bill No. 78 or the “New Public Service Act” which is fatally violative of the Constitution as it allows traditional public utilities like transportation and telecommunication companies to be owned by aliens or corporations which are wholly owned by foreigners.

This is contrary to Section 11 of Article XII of the Constitution which reserves the ownership, operation, control and management of public utilities to Filipino citizens or to corporations or associations at least 60 per centum of whose capital is owned by Filipinos.

The aforesaid Section reads in full:

“SECTION 11, ARTICLE XII. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens x x x The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.”

This is essentially a restatement of similar provisions in the 1935 and 1973 Constitutions.

The subterfuge offensive to the Constitution is foisted by making a distinction between “public utility” and “public service” where enterprises categorized under the latter are unconstitutionally exempt from the nationality or citizenship requirement of the Constitution.

There is no distinction between “public utility” and “public service” because no less than the Supreme Court in a number of cases has ruled:

1. “In a very real sense, a public utility is engaged in public service – providing basic commodities and services indispensable to the interest of the general public.” (Republic of the Philippines represented by the Energy Regulatory Board vs. Manila Electric Company, G.R. No. 141394, April 9, 2003).

2. The term public utility “implies public use and service”. (NAPOCOR vs. CA, G.R. No. 112702, September 26, 1997).

3. “Simply stated, a public utility provides a service or facility needed for present day living which cannot be denied to anyone who is willing to pay for it.” (JG Summit Holdings vs. CA, G.R. No. 124293, September 24, 2003).

It is well-settled that public service is an indispensable attribute or element of a public utility, and the two are synonymous and interchangeable, so much so that there is no sound reason for making a distinction to justify defiance of the Constitution by allowing the non-compliance of “public service” enterprises with the requirement of Filipino citizenship.

No statute can amend the Constitution, and the fundamental law can only be amended through a constitutional amendment proposed by a constituent assembly, constitutional convention or by people’s initiative under Article XVII of the Constitution.

The “New Public Service Act”, if enacted into law, is a mere statute which cannot amend the fundamental law.

In fact, there are many pending Resolutions seeking the amendment of the economic provisions of the Constitution, including Section 11 of Article XII, through a constituent assembly.

These resolutions manifest the clear intention of amending the Constitution through a constituent assembly, not through an act of the Congress as a legislative assembly.

In the 17th Congress, a similar bill (H.B. 5828) was passed by the House but ignored by the Senate.

EDCEL C. LAGMAN