Colmenares: Key phrase in Charter amendment centralizes power to Congress

MANILA, Philippines — Using the phrase “unless otherwise provided by law” to open the 1987 Constitution’s economic provisions would centralize powers to Congress, Bayan Muna chairperson Neri Colmenares warned lawmakers on Tuesday.

At the hearing of the House committee of the whole on Resolution of Both Houses No. 7, Colmenares said that powers would be concentrated with Congress because lawmakers can file and pass bills that would practically dictate how much foreign firms can acquire from local industries without needing a three-fourths vote or a plebiscite, which are requisites in amending the Constitution.

“My comment on ‘unless otherwise provided by law’ is Mr. Speaker, it centralizes a lot of power unto Congress Mr. Chair, to amend the Constitution.  Because Congress can pass a law that practically amends the Constitution, Mr. Chair, Mr. Speaker, and I think this should not be allowed and contemplated,” he said.

“So if a law is passed, Mr. Speaker, for example, in this provision of the Constitution — aliens are not allowed to, say for example, buy public utilities, and the Congress passes a law to that effect, then Congress is practically amending the Constitution. And this time around, the amendment to the Constitution does not require a three-fourths vote; it doesn’t even require a public consultation or a plebiscite,” he added.

Colmenares also warned that if the proposed amendments take place, it would put Congress closer to lobbying businesses that seek to place provisions that would favor them and in effect, bring in lobbying money to the legislature.

“And of course Mr. Speaker, needless to say, if that were the case, Congress has the power to otherwise the Constitution, Congress will be buffeted by intense lobbying and lobby money from transnational corporations and many interests, Mr. Speaker, Mr. Chair, to have their beneficial provision in the Constitution,” he noted.

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

READ: House leaders file RBH 7, mirrors Senate version of economic amendments

In effect, this would allow the House and the Senate to identify the percentage of foreign ownership that would be allowed.  However, former chief justice Reynato 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.

Meanwhile, several lawmakers and retired Justice Adolf Azcuna believe that placing this phrase would make the Constitution’s previously restrictive economic policies more flexible.

READ: Solons wants key phrase retained in Constitutional amendments 

“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,” Azcuna noted.

But Colmenares believes this phrase could cause more economic problems rather than solve issues because enacted laws would now contradict the Constitution.

“And the Constitution will now be an ocean of contradictory policies and conflicting paths because there are laws that go contrary to the policy of the Constitution.  So for example, there is a law that says, the Constitution says [to] increase the equity of Filipinos in education.  And then suddenly there is a law that says foreigners shall be given administration of public utility or education institutions,” he said.

“So basically, the Constitution on one hand allows or in fact encourages Filipinos to own and or participate in many of our industries, and there is another law that practically deviates from this policy […] there will be an ocean of contradictory policies and conflicting paths causing confused and aimless economic direction, and in my opinion, Mr. Speaker, will actually lead to more economic problems on our part,” he added.