4th mode of Cha-cha

In 2013, then House Speaker Quezon City 4th District Rep. Feliciano “Sonny” Belmonte Jr. first initiated a move to amend to the economic provisions of the 1987 Constitution by legislation – a law approved by Congress. Under Belmonte’s proposal, both chambers of Congress could vote separately to pass these economic amendments into law instead of a wholesale amendment of the Constitution.

Specifically, Belmonte’s proposal would allow Congress to relax existing constitutional restrictions on foreign investments by mere legislation. As proposed by Belmonte, the phrases “unless otherwise provided by law” will be added to certain economic provisions. Should the amendments be approved, Congress would still have to pass specific laws to relax those provisions. The proposal, however, failed to muster approval.

As the Speaker during the 16th Congress, Belmonte revealed his biggest regret was the failure to push through an economic Charter change (Cha-cha). The Upper Chamber headed then by Senate president Franklin Drilon stopped the Cha-cha initiatives dead in its tracks. Any moves to tinker with the Constitution did not stand a chance during the watch of the late president Benigno Simeon Aquino III. After all, the post-EDSA Constitution was the legacy of his late mother, former president Corazon Aquino.

Like his predecessor, present House Speaker Ferdinand Martin Romualdez is also among the chief proponents for Cha-cha. Incidentally, the Leyte congressman challenged but lost to Belmonte in the Speakership race during the 16th Congress.

Unfazed, Belmonte re-filed House Bill (HB) 4787 in the succeeding 17th Congress to push economic Cha-cha legislation. There were at least three other similar bills filed by like-minded fellow lawmakers. Former president Gloria Macapagal-Arroyo, who won her second term as Pampanga congresswoman, also filed HB 4389; Albay Rep. Joey Salceda (HB 4468) and Bohol Rep. Arthur Yap (HB 4501).

As the first attempt of economic Cha-cha by legislation failed, the second attempt likewise failed to take off.

As one of the principal authors of these bills, Mrs. Arroyo underscored the need to amend the 80-year-old Public Services Act (PSA) of 1935. An economist, Mrs. Arroyo cited this amendment of the PSA could provide better quality services to the Filipino people if these industries are opened up to foreign investors.

It took erstwhile president Rodrigo Duterte to certify as urgent administration measures these re-filed HBs, which identified in particular the need to amend the PSA. Although Mr. Duterte also favored amending the country’s Constitution, he was, however, more inclined to specifically shift the country’s presidential form of government to a federal system.

However, the amendments to the PSA finally got off the legislative mill during the 18th Congress that ex-president Duterte signed into law. Republic Act (RA) No. 11659, or “An Act Amending Commonwealth Act No. 146 otherwise known as the Public Service Act” as amended was signed by the president on March 21, 2022. This measure is supposed to allow up to 100 percent foreign ownership of public services in the country.

The amendments to the PSA removed the 40 percent foreign nationality ownership restriction being imposed on most public service companies under our country’s 1987 Constitution. The new PSA limits the definition of a “public utility” to particular sectors and introduces the concept of “critical infrastructure” which will be subject to certain foreign restriction requirements.

But it took more than a year before the Executive branch was able to come out with its implementing rules and regulations (IRR). RA 11659 finally became effective on April 4, 2023. But it suffered another setback when its constitutionality was questioned before the Supreme Court (SC). Although there was no restraining order issued, its resolution remains pending up to now at the SC.

Fast forward. Senate President Juan Miguel Zubiri filed last Monday a proposed Joint Concurrent Resolution at the 19th Congress to propose the amendment of specific economic provisions of the Constitution, including public services (still languishing at the SC), the education sector and the advertising industry. Co-authored by Senate President Pro-Tempore Loren Legarda and Sonny Angara, Zubiri revived anew the economic Cha-cha legislation in a bid to stop the surreptitious attempt to amend the country’s Constitution via People’s Initiative (PI).

The PI has earned the monicker “politicians’ initiatives” over allegations of certain national and local politicians as principally behind it.

Zubiri disclosed that no less than President Ferdinand “Bongbong” Marcos Jr. (PBBM) strongly objected to such “divisive” mode that has even become more controversial amid reported use of government funds to convince people to sign petitions calling for Cha-cha. According to Zubiri, he met with PBBM and Speaker Romualdez in “colorful and vigorous discussions” on the latest attempts to conduct PI.

While the amendment of the Constitution provided three methods – a Constituent Assembly (Con-Ass); a Constitutional Convention (Con-Con) and a People’s Initiative – Zubiri argued Senate-led initiatives can be done separately by both chambers, without having to meet physically in Con-Ass mode that Speaker Romualdez is in favor of.

It is timely to reprint excerpts of my Commonsense column published on Feb. 13 last year about the PSA, or almost a year ago but the situation is almost the same. In that column, I extensively quoted former Finance secretary Margarito Teves, who revealed during our Kapihan sa Manila Bay news forum last year when we tackled the latest Cha-cha moves initiated early on by the 19th Congress. At that time, neophyte Senator Robinhood Padilla filed a Cha-cha bill seeking to amend the same economic provisions.

Teves spoke in behalf of the Forum for Economic Freedom (FEF) as among advocacy groups supporting Cha-cha to lift the “restrictive economic provisions” in the country’s Constitution. Let me reprint pertinent portions only:

“Speaking for the FEF, Teves cited the PSA is the best example where a mere legislation done by Congress could suffice without going through a divisive process such as Cha-cha. Many countries such as Singapore have been doing this, Teves noted.

“RA 11659 provided though a Separability Clause in case SC declares unconstitutional one or more of its provisions, the amended PSA remains valid and effective. Except, if the SC rules for the repeal of RA 11659.”

Let me quote my takeaway from the same column a year ago which methinks seems to be still applicable: “Meanwhile, the Public Service Act of 2022 remains inactive… Or, is this intentionally withheld to bolster the need for Cha-cha?”