Ex-justice backs House: Key phrase in Charter amendment necessary

Adolfo Azcuna. FILE PHOTO

MANILA, Philippines — Supporters of proposals to amend the 1987 Constitution’s economic provisions by inserting the phrase “unless otherwise provided by law” have an ally in a former Supreme Court justice, who said that amendment could be written through legislation.

At Tuesday’s hearing of the House committee of the whole tackling Resolution of Both Houses (RBH) No. 7, retired justice Adolfo Azcuna said that placing this phrase would ensure that the 1987 Constitution’s economic provisions remain flexible and can adapt to changes in the global environment.

“Now the purpose and effect of such an amendment, Mr. Chair, is simply to make the provision that is to which it is attached the ‘unless otherwise provided by law,’ changeable by legislation.  It does not do any other thing, it makes it changeable by legislation,” Azcuna said.

“This is to me the best solution to the economic provisions restriction because economic provisions should be flexible and they should not be cast in stone and 37 years is casting in stone.  Economic provisions must be responsive to changes in economic conditions. Therefore, I believe that we should change the provisions to make them flexible by legislation,” he added.

According to Azcuna, lawmakers should not change the key principles of the Constitution, like ownership of natural resources, noting that it is possible to rake in foreign investments without yielding majority ownership of business to foreigners.

Azcuna cited the case of Spain, where foreign firms can own 49 percent of businesses, leaving the remaining 51 percent to nationals of that country, which results in Spaniards still having majority ownership.

This change, however, can be done through legislation by filing another bill and satisfying the proposal to place the term “unless otherwise provided by law.”

“Don’t change the bedrock principles. Change only the percentages of foreign investments allowed, as well as the percentages of management allowed.  So do not change when it says that the national resources belong to the state, don’t change that,” he said.

“In Spain, for instance, their limitation is not 60-40; it is 51-49, which is still nationalistic. It’s still controlled by the nationals but not 60-40 and many foreign investors are happy with that 51-49. You cannot do that now, but if you have ‘unless otherwise provided by law’ then a law can be passed converting it from 60-40 to 51-49,” he added.

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There has been opposition to RBH No. 7’s proposal to amend sections by inserting the phrase ‘unless otherwise provided by law’, particularly from former chief justice Reynato Puno.

Puno, who was present at the start of the RBH No. 7 discussions on Monday, said that using this phrase might pave the way for questions on constitutionality.

Under RBH No. 7 and the Senate’s RBH No. 6 — which the House version was mirrored from — three parts of the 1987 Constitution would be amended by inserting the phrase “unless provided by law”:

• Section 11 of Article XII (National Patrimony and Economy), where the phrase “unless otherwise provided by law” is inserted in the provision that bars foreign ownership of a public utility shall except in a case where 60 percent of the total capital belongs to Filipino citizens
• Section 4 of Article XIV (Education, Science, and Technology, Arts, Culture, and Sports) where the phrase “unless otherwise provided by law” is inserted in the provision that bars foreign ownership of basic educational institutions except in a case where 60 percent of the total capital belongs to Filipino citizens.
• Section 11 of Article XVI (General Provisions), where the phrase “unless otherwise provided by law” is inserted in two portions: first, the provision that bars foreign ownership in the advertising industry except in a case where 70 percent of the total capital belongs to Filipino citizens; and in the provision that limits foreign investors participation in entities to how much their capital share is

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Instead of using this phrase, Puno said that these sections be repealed, including Article II Section 19, which requires the Philippine economy to be effectively controlled by Filipinos be repealed too.

But lawmakers like Marikina 2nd District Rep. Stella Quimbo and PBA party-list Rep. Migs Nograles insisted on the need for the controversial phrase because of the same reasons mentioned by Azcuna — to make the economy more flexible and attuned to the times.