Amending the Charter: More of the same?

05 June 2015

Luis V. Teodoro

Even some members of the House of Representatives and of the Senate were themselves surprised by House Speaker Feliciano Belmonte’s and Senate President Franklin Drilon’s announcement that they would convene both chambers as a constituent assembly that will propose and approve amendments to the 1987 Constitution.

Although the House has passed its own version, the Senate is after all still in the process of addressing such contentious concerns as the Bangsamoro Basic Law. And as seemingly premature as it may be, both the representatives as well as senators are this early already in election mode, and generating media if not citizen interest in who’s going to run for what post and with whom in 2016.

Both Belmonte and Drilon as well as other proponents say they will consider “only” the economic provisions of the Constitution and will stay clear of amending its political sections. In much of their statements, they’ve been consistent with the implication that the amendments won’t be as crucial as amendments to the Charter’s political sections, while at the same time contradicting themselves by declaring that those amendments are absolutely necessary.

The speed with which they suggest the amendments should be adapted — in fact the revelation that the economic provisions can be amended wholesale solely by adding the phrase “unless otherwise provided by law” — also suggests that despite their attaching the word “only” to them, they actually and in reality believe them to be crucial.

The economic provisions Congress would target are presumably those in Article XII (“National Economy and Patrimony”), which consists of 22 sections.

The original of Section 11, for example, partly provides that “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.”

Should the scheme prosper, it could be amended to read: “Unless otherwise provided by law, 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.”

Again, Section 14, which bars foreigners from practicing their professions in the Philippines, could be amended to read thus: “The practice of all professions in the Philippines shall be limited to Filipino citizens unless otherwise provided by law.”

Other than these provisions, there have also been suggestions that the ownership of mass media organizations, currently limited to Filipinos, should be opened to foreign ownership.

The intent, say some proponents, is to open the country further to foreign investments and to institutionalize free trade. Others of a more expansive outlook declare that the amendments are necessary for the Philippines to “keep pace” with international developments, the argument being that the world is much more open today, implying and even declaring that the protectionist clauses of the 1987 Constitution are “outmoded” and no longer (or have never been?) necessary.

The “openness” that supposedly characterizes the world order that’s been mentioned by, among others, Senator Serge Osmeña, refers to the voluntary and at times forced relaxation and even total abolition by many countries of restrictions on trade and foreign investments. Although it is difficult to trace when it began, what is now often called neo-liberalism was aggressively driven by the United States during the presidency of Ronald Reagan and by the British during the prime ministership of Margaret Thatcher.

“Neo-liberalism,” say Dag Einar Thorsen and Amund Lie of the Department of Political Science of Norway’s University of Oslo, is “a loosely demarcated set of political beliefs which most prominently and prototypically include the conviction that the only legitimate purpose of the state is to safeguard individual, especially commercial, liberty, as well as strong private property rights.” Further, it argues that “the state ought to be minimal or at least drastically reduced in strength and size.”

These political principles “could apply to the international level as well, where a system of free markets and free trade ought to be implemented. The only acceptable reason for regulating international trade is to safeguard the same kind of commercial liberty and the same kinds of strong property rights which ought to be realized on a national level.”

The attempt to amend the Constitution, although seemingly in keeping only with the decades-old policy of attracting foreign involvement and investments as the primary engine of economic development, would actually go even further, consistent with these neo-liberal protocols, which emphasize non-intervention by the State in commerce and trade.

Is the 1987 Constitution, because of its protectionist economic provisions, “outmoded” then? In the first place, foreign investments have been getting into the country despite the Constitution, while, again despite the Constitution, both local and foreign media groups have found ways around the ban on foreign ownership of the media.

The prohibition on foreign ownership of land does seem more difficult to evade, but there are more than rumors that through the expert navigation by lawyers through the turbulent waters of Philippine law, there have been and are exceptions that have resulted in de facto foreign control over land.

These realities notwithstanding, the point seems to be to so open the country to foreign corporations and interests that it would practically reduce State intervention and supervision to zero, or somewhere approximating that level.

Which raises a fundamental question as to the role of the State in human affairs. Is that role, as neo-liberalism claims, solely that of assuring the free and untrammeled operation of corporations, or is it to assure justice and fairness, as well as the welfare and well-being of everyone?

Critics of neo-liberalism say that, reduced to bare essentials, what the doctrine is all about is “profit over people.” To that, the counter-argument is that, as Thorsen and Lie note, “Free markets and free trade will, it is believed, set free the creative potential and the entrepreneurial spirit which is built into the spontaneous order of any human society, and thereby lead to more individual liberty and well-being, and a more efficient allocation of resources.”

Unfortunately, there’s the Philippine example to consider. As supposedly dynamic and rapidly growing as the Philippine economy has been in a regime that for decades has been basically neo-liberal, the fact remains that it has hardly dented the incidence of poverty and unemployment, among whose indicators is the continuing flight from these shores of thousands of Filipinos every day, among whose consequences is the devastation of family lives. To these human problems that are among the responsibilities of the State to resolve, is the solution even heavier doses of the same alleged cure?

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One Response to Amending the Charter: More of the same?

  1. June 5, 2015 at 3:35 pm
    manuelbuencamino

    Nampucha amending the economic provisions are just an accomodation to Salim. His investments PLDT, Meralco,TV5, various newspapers, PPP projects, etc etc will forever remain open to question unless the econ provisions are amended. Pushing those amendments is the job of Manny Pangilin, Salim’s Filipino face. Nandiyan din si Secforaf Albert del Rosario, another Salim man, the man that Boy Yuchengco claimed forced his father A.Y. to sell his PLDT holding company shares to the Salim group.

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