Proposed changes to constitution’s national patrimony provisions
Posted by butalidnl on 6 October 2006
http://butalidnl.wordpress.com/2006/10/06/proposed-changes-to-constitutions-national-patrimony-provisions/#comment-713
Charter change proponents say that their proposed amendments (or “revision”?) to the Philippine constitution will help push national development. In addition to the supposed benefits of a unicameral parliament to national development, the proposals also included changes in the “national patrimony” provisions of the 1987 Philippine constitution. Which specific provisions are they proposing to change?
There are actually three sets of charter change proposals. They are the: House of Representatives proposal, the proposal coming from the Consultative Commission (ConCom), and the People’s Initiative proposal. The most comprehensive set of “national patrimony” changes are put forward in the ConCom proposal, while the Peoples Initiative proposal does not deal with the question directly. Let us start with the ConCom proposal.
The ConCom proposed to change the following national patrimony provisions in the 1987 Constitution:
1. “The state shall protect Filipino enterprises against unfair foreign competition and trade practices” (Article 12, Section 1) has been deleted.
2. On the exploration, development, and utilization of natural resources(including marine wealth). The 1987 Constitution reserves the right to undertake these activities to Filipino citizens or corporations/associations/cooperatives which are 60% owned by Filipino citizens. The proposal is to allow foreigners to do these activities. It is also proposed to increase the period of lease of such lands from 25 to 50 years.
3. On reserving certain areas of investments to Filipino citizens or corporations/associations at least 60% Filipino-owned. The proposal is that the parliament shall merely “provide for limitations on foreign ownership” in these areas of investment.
4. The provision in Article 12, Section 10 that says “In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos. ” has been deleted.
5. On the operation of public utilities (Article 12, Section 11) . This is now limited to Filipino citizens or “associations or corporations organized under the laws of the Philippines” (actually, there is no real limitation on foreign ownership here!) This is to be deleted.
6. Article 12, Section 13 which states: “The State shall pursue a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity.” is to be deleted.
The House proposal is generally the same as that of the ConCom for points #1-3 above, except in two details in #2. The House proposal retains the period of lease for public lands at 25 years. It also reserves the exploitation of marine resources to Filipinos.The House proposes to retain the original 1987 Constitution provisions for #4, 5 and 6 above.
As for the Peoples Initiative, it formally does not touch on the national patrimony provisions at all. However, in its Article XIII or “Transitory Provisions” , Section 4, Number 4. it states “Within forty days from the ratification of this amendment, the interim Parliament shall convene to propose amendments to, or revisionof, this Constitution consistent with the principles of local autonomy, decentralization and a strong bureaucracy.” With this provision, the Peoples Initiative effectively paves the way for the Constituent Assembly mode of revising the constitution. It also shows that other proposed changes to the constitution, including those on national patrimony, are waiting on the sidelines of the Peoples Initiative.
Thus, in the end, what really matters would be either the House proposal or the ConCom proposal - at least with regards to the national patrimony provisions.
Monday, September 29, 2008
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Charter Change Debate?
Posted by butalidnl on 22 October 2006
http://butalidnl.wordpress.com/2006/10/22/charter-change-debate/
The more I try to understand the so-called Philippine charter change debate, the more I realize that it is not a debate at all. The two sides are not talking about the same things, so there is no way of really weighing one side against the other. According to the pro charter change side, the shift to the unicameral-parliamentary system would streamline government, spur development, and make the country overcome corruption. The opponents of charter change point out to the so-called transitory provisions which provide for a concentration of power in the present president, the automatic extension of the terms of elected officials till 2010 (when many terms would have expired in 2007), and the concentration of power on the present legislators from the Senate and the House of Representatives.
On what, at first glance, is a side issue, there seems to at least be two sides. This is the issue of the national patrimony provisions. The charter change proposals of the House of Representatives and that of the Consultative Commission (ConCom) clearly want to open up ownership of land, natural resources, public utilities and mass media to foreigners, because according to them, this will result in national development etc. And of course, the opponents of charter change are saying that this will complete the sell-off of our national patrimony to foreigners, and that these steps will not result in economic gains for the country.
This clash on the issue of national patrimony is, in a sense, overblown. After all, hasn’t the present government already found ways to circumvent constitutional restrictions in order to get foreigners to operate and lease utilities and mining concessions? The thing that is now limiting the entry of foreign mining companies in the Philippines is the opposition from the Catholic church hierarchy, and not the Constitution. And I very much doubt whether opening up what little is still closed to foreign investment would spur economic development.
Thus, we are now saddled with a charter change non-debate.
And then, there is the more interesting (from the spectator’s point of view, that is) struggle regarding the technicalities of how to change the constitution. The House of Representatives is trying to push the point of a 2/3 vote as meaning 2/3 of the total members of the House of Representatives and the Senate, even if these legislators are all from the House of Representatives. This is a creative interpretation, and will be unique in the world - anywhere where the legislature has two chambers, they are required to get the required majority votes separately, unless the law specifically says that they should sit jointly for certain decisions. The House is trying to do everything to push their creative interpretation of the 2/3 vote requirement; but this will clearly get nowhere.
And the so-called peoples initiative is also getting stranded in a lot of legalese. It seems like it is anything but a peoples initiative, with all the government bodies tinkering with the process. It will indeed be a surprise if the Supreme Court accepts the Sigaw ng Bayan etc initiative as valid.
The charter change issue is clearly getting nowhere. But what can we conclude from all this?
First of all, it really seems like the whole charter change issue or debate is one giant smokescreen (or red herring, if one prefers that analogy). With both the content and the procedure going nowhere, why on earth is the government still pushing it? As long as all eyes are on the charter change issue, other issues including that of the Garci-tapes scandal become less prominent in the public eye. Also, legislators are less prone to be anti-charter change or anti-GMA because they have everything to gain if charter change “transitory provisions” are implemented.
The second conclusion that one could draw from the current charter change issue is that there seems to be a consensus that there is something wrong with the Philippine political system, and that it needs some radical changes. While many people don’t agree with the currently proposed set of amendments to the Constitution; a lot of these people are in favor of some changes, at least if these would help get rid of the corrupt and inept politicians currently running the country.
It is a pity that this underlying base of support for fundamental political change is being used by both sides in order to push their various short-term aims. What we need now is a call for genuine discussions on how best to design a political system that fits the Philippines today.
What we need now is a real debate on charter change.
Constitution’s “national patrimony” provisions should be strengthened
Posted by butalidnl on 26 August 2006
http://butalidnl.wordpress.com/2006/08/26/constitutions-national-patrimony-provisions-should-be-strengthened/
One of the “charter change” proposals of the House of Representatives and the Consultative Commission (ConCom) is the opening up of most of the Philippine economy to foreign investors. And unlike the other, more debated, proposals e.g. federalism or the parliamentary form of government, the proposal to open the economy to foreigners does not seem too controversial. It seems that the majority of Filipinos accept the need for additional investment funds from outside the country, and assume that foreigners are the only source of such funds. Even some progressive groups are trying to tiptoe around this issue because they are afraid of getting marginalized if they defend the 1987 Constitution’s “national patrimony” provisions too energetically.
I disagree with the proposal to drop the “national patrimony” provisions. In fact, I think we can even strengthen these.
I believe that what the Philippines needs is not the money from foreigners, but rather their technology and market access. There is enough money from rich Filipinos in the Philippines, as well as from Overseas Filipinos to fund most investment projects. Of course, if a foreign company wants to set up a large airplane assembly plant or something as big as that, perhaps this would be a bit beyond the capacity of local and overseas Filipinos; but this kind of project will be so rare that the government could be authorized to allow this kind of exceptional projects. What the country needs is a good system to tap Overseas Filipinos’ investment funds.
As for accessing foreign technology, this is still best done through licensing, franchising, joint ventures or management contracts.
And access to foreign markets are a matter of trade negotiations. This could be exchanged for market access to the Philippines on a reciprocal basis. This is different from opening sectors to foreign ownership.
At present, with the government is doing all it can to get foreign investments, it is relegating Overseas Filipinos to minor development roles. Filipinos abroad who have other passports are treated worse than “white” foreigners, when it comes to investment incentives. This should be corrected, and Overseas Filipinos should be treated the same way as Philippine-based Filipinos when it comes to the rules that govern their investments.
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