The COVID-19 Challenge
AS A MATTER OF FACT - Sara Soliven De Guzman (The Philippine Star) - March 23, 2020 - 12:00am

Sometime in February when news was spreading about the New Coronavirus, the President and his men did not seem to see any urgency on the threat. All he warned us about was to stop being xenophobic.  When the first local community transmission of COVID-19 happened on March 5 in San Juan, nothing and no one could stop the anxiety of the people not even the President. It seems that a few days after, the President had no choice but to address the problem because it was just getting worse day by day. 

On March 16, the President told the mayors to go ahead and issue executive orders to make the environment of their municipalities more conducive to a healing process.  But on March 19 he took his words back and said that this is an emergency of national proportions; therefore, it is the national government who should call the shots. Then he said, “do not try to overdo things or think that you can do what you want to do, because that is not allowed.”

Possibly, the President has all the good intentions but doesn’t he realize that he is confusing us?  He is also making it more difficult for the mayors to do their task because he keeps on changing his stand.  His first national advisory was actually a bummer.  He wasted so much of our time and we did not hear anything substantial.  All we clearly heard was his love for China and that we must thank China.  What a guy! At the height of the Wuhan-borne virus, how can he say that?  Sanamagan!

We have witnessed the chaos that resulted from the initial implementation of the community quarantine. People were massing at checkpoints in complete disregard of social distancing; local government officials are threatened with administrative charges for directives not aligned with national government instructions; and people are still debating on the need to protect the privacy of an unidentified infected patient against the seeming greater necessity of immediately warning those who may have had contacts with him. Certainly, Tom Hanks, Senator Zubiri and Christopher De Leon, while physically isolated, were never ridiculed, and I guess they have earned more fans simply for being candid. 

It is wistful thinking, but is there anything our government should have done earlier? What if the executive branch banned travel to and from the affected countries at the first instance? Would we be facing a diplomatic problem instead of this outbreak? What if Congress, being aware that thousands of Chinese nationals enter the Philippines daily for tourism and POGO employment, fast-tracked legislation to deal with this problem when the disease was initially reported in Wuhan? Would it have made our response to the pandemic faster and more orderly? Or were legislators just too busy with other matters like passing House Bill 78 allowing foreigners 100% ownership of public utilities, such as common carriers and telecommunication companies?  I rest my case.

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On House Bill 78: The Constitution provides that the operation of a public utility shall be granted only “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,” and “all the executive and managing officers of such corporation or association must be citizens of the Philippines.”

Father Joaquin Bernas, a member of the Commission that drafted the 1987 Constitution, wrote that this “Filipinization provision is one of the products of the spirit of nationalism which gripped the Constitutional Convention of 1935”. It was in “recognition of the sensitive and vital position of public utilities both in the national economy and for national security.” While the term public utility was not defined, it may be stated that the prevailing Public Service Act and Supreme Court pronouncements at the time the 1987 Constitution was crafted, consider the terms “public utility” and “public service” interchangeably, to include any business supplying the public with commodity or service of public consequence such as electricity, gas, water, transportation, telephone, communications system, broadcasting stations and other similar public services.

The approved House Bill 78 and its counterpart Senate Bill 1372 propose, among others, an amendment to the Public Service Act by differentiating “public service” from “public utility” and limiting the latter, which is governed by the Filipinization rule, only to the business of distribution of electricity, transmission of electricity, water pipeline distribution and sewerage pipeline services. If this is signed into law, all other public service companies, including common carriers and telecommunications, may already be 100% foreign-owned.

The proponents justified this shift by stressing the need to attract more foreign investment. Yet we all know that foreign investment even in nationalized industries is being done through the issuance of Philippine Depositary Receipts (PDRs), where foreigners get the benefits of owning the right to the shares of stocks without technically being owners of the same.

Is there a chance the Solicitor General will win its quo warranto case against ABS-CBN, which this proposed amendatory law would eventually render moot and academic? If this legislative definition of a public utility will be allowed, what would stop congress from proposing further amendment to also remove the business of supplying electricity and water from the concept of public utility and render the constitutional proscription totally irrelevant?

Has our sense of nationalism been erased to oblivion by pragmatic economic considerations? Or is this development an inevitable result of globalization? Well, if our government is not at all alarmed by China taking over Philippine territory in the West Philippine seas, granting full ownership of public utilities to foreigners is but an insignificant drop in a bucket. Will it not compromise our national security if telecommunication companies are fully controlled by foreigners? Or is there no significant difference since our telecommunication equipment and gadgets are foreign-made anyway?

If the Senate and the President will share the position of the House of Representatives in redefining the concept of public utility, I wonder how the Supreme Court, as the final bastion of justice, shall resolve this constitutional issue. With resilience, perseverance, discipline and our great faith in the Unseen, our people will certainly survive the coronavirus imported from foreign lands as well as the imminent foreign invasion in the control of what used to be Filipinized public utilities.

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