“Unless otherwise provided by law.” This is the only phrase that is sought to be added to the various nationalization provisions of the 1987 Constitution in the most recent attempt to institute charter change in the Philippines. Compared to the previous move of the Duterte administration to overhaul the Constitution, or shifting to a federal form of government, it may seem negligible. It does not intend to remove limits to terms of elected officials, nor create constitutional bodies beyond our control, nor lift any safeguards currently in place in such event that martial law is declared. How could then such a brief phrase be so alarming after all?
A short answer is that such a move would demote the constitutionally guaranteed principles—or protections—into the realm of mere statute or legislation.
Constitutional absurdity of the phrase
Last February 2, 2021, the House Committee on Constitutional Amendments approved through an overwhelming majority of 64-3-3 a resolution that in effect endorses the proposed amendments to the House Plenary. The provisions that would be affected are as follows:
In contrast, the constitutional provisions to which the “unless otherwise provided by law” proviso was originally attached include commencement of the term of office of Senators (Art. VI, Sec. 4) and Representatives (Art. VI, Sec. 7), number of members of House of Representatives (Art. VI, Sec. 5 (1)), day of regular election for Senators and Representatives (Art. VI, Sec. 8) and for President and Vice President (Art. VII, Sec. 4), bringing of any decision, order, or ruling of Constitutional Commissions to the Supreme Court on certiorari (Art. IX-A, Sec. 7), prohibition on concurrent holding of office by appointive officials (Art. IX-B, Sec. 7), nationalization requirements of educational institutions for foreign temporary residents (Art. XIV, Sec. 4 (2)).
Those immediately above do not particularly protect national values and interests that could drastically affect people’s lives. Unlike these, one could easily see that the provisions sought to be amended (refer to the table) relate to nationalized industries, which was intended to be either exclusively or dominantly owned or managed by Filipinos – in line with a protectionist policy of a post-colonial state. However, all of these, if the proposed amendments were to be approved, may be subject to modification by a mere statute or legislation.
The proposed amendment, however brief it seems, is not benign.
Chief Justice Reynato Puno, citing an authority in Philippine political law, has described the nature of the Constitution as a social contract: “[A] constitution is a written instrument which serves as the fundamental law of the state. In theory, it is the creation of the will of the people, who are deemed the source of all political powers. […] This notion expresses the old theory of the social contract obligatory on all parties and revocable by no one individual or group less than the majority of the people; otherwise it will not have the attribute of law.”
The Constitution occupies the highest level in the hierarchy of laws. For instance, where the non-delegable power to ratify, and to amend or revise, the Constitution is exclusively reserved to no less than the Filipino people (Art. XVII, Sec. 4), the power to enact, amend, or repeal a statute or law not repugnant to the Constitution is a delegated power to the Legislative Department of government or Congress as the democratically elected representatives of the people (Art. VI, Sec. 1, 26, and 27). Procedurally, tinkering with the Constitution requires substantially greater rigor than what is required by a simple law.
There is a purpose in placing a principle within the constitutional protection, instead of a mere legislation. Constitutional principles may only be altered when the people themselves speak that, yes, it is already time for such change. What is highlighted here, however, is the potential of abuse, and not the actual abuse of political power for we do not know whether Congress will actually enact a law that would allow 100% foreign ownership of said industries, or only limit it to 90%, 80%, or 70%. The fact that we are uncertain is the very constitutional absurdity that it presents. This is precisely the problem in demoting highly regarded constitutional protections into matters that can be shaped by the whims of politics that come and go.
Insecure Philippines
Until this point, we have not yet talked about anything regarding the intent and the end sought to be achieved by the proposed amendments. Proponents mention the COVID-19 pandemic and the economic recession that the country is experiencing as the motivation of opening up the countries’ protected industries to a more lenient foreign ownership regulation. However, critics mention that this move is not a silver bullet that would necessarily save our economy.
Without particularly discussing the potential economic impact of the amendments and picking a side of the debate, this article explores some overlooked issues from a human security perspective that must be incorporated into said debate to have a more holistic appreciation of the next steps that this country is about to take.
Global governance has seen a shift to human security, from the concept of traditional security, in response to the need to create inclusive and resilient societies that directly address the wide range of interconnected and mutually reinforcing vulnerabilities or insecurities that people experience. To address the root causes of the insecurities, solutions must be people-centered, comprehensive, context-specific, and prevention-oriented. This has been the framework adopted in pursuing the 2030 Agenda for Sustainable Development or what is commonly known as Sustainable Development Goals.
The proposed amendments to the Constitution come at a time when Philippines ranked lowest in COVID-19 response among its Southeast Asian neighbors with 57% disapproval rating. As of year-end 2020, 91% of adult Filipinos are still worried about contracting COVID-19 according to an SWS survey, despite the nearly year-long lockdown. There is still no on-going mass vaccination program, even for the frontline healthcare workers and the vulnerable sectors of society. And the list just goes on.
It is difficult to believe that the proposed amendments to the Constitution is consistent with the human security approach. For instance, such move motivated by economic drive can hardly be considered people-centered and comprehensive, when the more fundamental insecurities of Filipinos with regard to their health and personal vulnerabilities as a result of the pandemic remain unheeded. Assuming for the sake of argument that the opening of the economy to foreigners will boost economic activity, jobs, and investments in the foreseeable future, it is still highly improbable that such economic potential can be maximized. Without a labor force that is confident of their own and their families’ health and of the healthcare available to them, businesses will continue to be unstable.
Another consideration is whether the solution is context-specific or specifically tailored not only to the broad realities (e.g. Philippines as a developing country) but also to the particular situations (e.g. COVID-19 pandemic) of the communities. The foreign equity restrictions provided in the Constitution have been a consistent item in the agenda of any administration with a ubiquitous note that these are barriers to foreign investments and economic growth.
However, the current proposal forwarded by the Duterte administration is unique. Not only is the country facing an economic recession due to the pandemic, there is also increasing doubt on the capacity of the government to conduct a sound foreign policy as seen in the perceived reactive, rather than active, stance on the West Philippine Sea dispute, the withdrawal from the Rome Statute, and flip-flopping on the US-PH military bilateral agreements. If the government is not able to steer its direction properly in these matters of national importance, it would not be an overstretch to think that the government might not be able to enforce hard laws and guidelines in relation to entrant private corporations, once the constitutional restrictions are lifted.
If we are to ride the train of lifting foreign equity limitations without ensuring that the country’s institutions are capacitated to deal with and country’s business community is able to compete with new entrants, the country and its people will again be the undeserving losers. Strengthening the country’s institutions would mean more effective and transparent democratic institutions and regulators, which are insulated from red-tape, bureaucratic delays, and dysfunctional rule of law. On the other hand, support for the business community, especially the MSMEs, can be done by not only creating a more competitive environment but also by appropriating sufficient support, incentive, and protection for local businesses to take part and not settle as spectators in the market.
In the long run, a prevention-oriented solution or response is ideal. Given that the country was caught off guard by the pandemic and was extremely unprepared for a public health crisis, the proposed amendments merely respond to the emergency at hand. While there is a need to respond to the imminent concerns today, it would be better if a plan would be institutionalized to ensure that should any pandemic, or calamity of this proportion, would hit the Philippines, its economy—and most importantly its people—would be ready and would not resort to an absurd phrase nor to a further opening of an already insecure country.
This article was written still with the reservations to Charter Change in this time thoroughly explained in a previously published article, “COVID or not, no charter change”, which can be accessed at https://www.rappler.com/voices/thought-leaders/opinion-covid-not-no-charter-change.
Jayvy R. Gamboa is a student at the University of the Philippines College of Law, where he served as an Editor of Philippine Law Journal Vol. 92. While studying, he concurrently works as Executive Assistant and Policy and Legal Research Associate with Dean Antonio La Viña, and engages in part-time teaching from basic education to graduate school. Jayvy is an advocate of youth formation.
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