OPINION: And we are back to square one

Edmund S. Tayao

Posted at Mar 02 2020 12:13 PM

I can’t recall anymore how many times I have been asked why I am actively engaged with the initiative to revise the constitution. All of those who asked whether recently, that is under the current administration, or before, during the time of former Presidents Ramos, Macapagal-Arroyo and Erap Estrada, have the same reason not to support any and all efforts to change the constitution. One is that it’s not yet time, and two that the one pursuing the change should not and cannot be trusted.

I have written and explained in interviews countless times that revising the constitution is a political act and is never just a question of time and or timing. As to the usual assertion that the one pursuing it cannot be trusted, there will never be any time or any President for that matter who will be trusted by everyone. Obviously, not everyone votes for a winning President and under the current circumstances, there will never be a time that a winning candidate will be voted by more than 50 per cent of all voters.

In other words, the two reasons that are always used to rebuff charter change are simply untenable. I would even go as far and say absurd. If you try to make sense of it, these are but excuses not to change the rules of the game, rules that allocate and determine the use of power in society. In fact, these very reasons are among the fundamental reasons why this constitution has to be revised. It is no surprise that we find ourselves back to square one.

There are those who say that the people don’t want a Big Bang or wholesale change. But this is exactly what is needed as the problem is systemic, which means it is the whole mechanism that requires reengineering. Either the opponents of systemic reforms have been able to present compelling reasons or that we are simply afraid of the unfamiliar that we are back to square one. We are back to the same approach we have been at from the very start, piecemeal or tingi reforms. This can be seen in many pending bills in Congress. 

As the initiative to revise the constitution now seems to taper, what with the President’s remaining 2 years in office, Congress has now resorted to ordinary legislation the long advocated lifting of restrictions to foreign investments, particularly on public utilities. It is now just one step away from being passed in the House of Representatives. Some might say that the Senate will likely not support it as it has always stood in the way of changing the constitution. But precisely, the route that is resorted to is by ordinary legislation. Assuming that Congress can in fact pass such a legislation, it will likely be more acceptable to the Senate as it is certainly just about foreign investments, compared to when one opens the constitution for amendments for whatever supposed objective.

Without a doubt, there is broad support to at the least relax the economic restrictions. This has been the case from the very start. Let’s face it, it requires billions to start and operate a telecommunications company. The same considerable amount is needed in broadcast media, power generation and distribution, and even water. This explains why you have the same people or family engaged in these businesses as there are but a few who can afford the capital requirements. The specter raised that we might find ourselves at the mercy of foreigners is not without basis though. So much capital is needed if we expect to have better service in any and all of these industries, but there should be a way to make sure better service is indeed achieved as a result and sustained in the process without compromising the country’s integrity.

It goes without saying that attracting needed capital is just a piece of the puzzle. In fact, this is not the first time we have tried to address problems in the public utilities sector. As I wrote in a book before, as early as 1989, the telecom industry was opened up. Executive Order No. 59 was issued in 1993 and prescribed policy guidelines for Compulsory Interconnection of Authorized Public Telecommunications Carriers. As early as 1995, we already have Republic Act (R.A.) 7925 or the Public Telecommunications Policy Act of the Philippines intended to provide a “healthy and competitive environment… while maintaining affordable rates” (Art. II, Sec. 4f).

I understand that for this law to actually work, there has to be competition, which again brings us back to the huge capital requirement. Maintaining “affordable rates,” on the other hand, or at the very least, ensuring reliable service, could have been pursued more effectively and vigorously. But no, the regulatory mechanism simply is not there, or effectively nonexistent. The same is true in the electric power industry. R.A. 9136 or the Electric Power Industry Reform Act (EPIRA) was enacted in 2001 in order “to achieve reliable and competitively priced electricity”. Of course, we know that we have yet to enjoy that intended benefit up to now. Now imagine opening up the economy but having the same, at best, tenuous regulatory mechanism.

Opening up the economy will no doubt result in competition and would likely result to better services and or even affordable price. On the other hand, without a strengthened regulatory mechanism, national security might be compromised, not to mention possible negative impact on labor. We are in fact already experiencing this in many industries. The more we delay needed reforms in the constitution, the more there is every incentive to circumvent the law. How much of the major companies now are actually owned and controlled by Filipinos? 

We don’t seem to notice that we are trying so hard to put the provisions of the 1987 Constitution into action that we don't realize or perhaps we just don’t want to accept that it is just good on paper. The mechanisms needed to implement the provisions are simply not there. The social justice provisions have always been cited as among the best parts of the constitution but how much of these are actually effectively enjoyed by the people?

Recently, I was invited to take part in a public hearing at the House of Representatives to give inputs on: 

1.    “Institutionalizing the Participation of Civil Society Organizations (CSOs) in the Preparation and Authorization Process of the Annual National Budget, Providing Effective Mechanisms Therefor, and For Other Purposes” (House Bill No. 230) and,

2.     “An Act Creating a System of Partnership Between Local Governments and Civil Society Organizations Through the Establishment of a People’s Council in Every Local Government Unit, Prescribing Its Powers and Functions” (House Bills, 832, 4244 and 6151).

As I pore over the proposals, each purportedly gives powers and privileges, which are already provided by law in the first place. Section 7 of HB 230, for example, provides “Privileges and Incentives” that include participating in local development councils, receive notices to public meetings, observe budget deliberations, access to copies of budget proposals etc. These are all but provided for by no less than the constitution itself. Apparently, there is a need to determine which Civil Society Organization (CSO) is qualified to participate.

Hence, the provision suggested in both bills to “accredit qualified” CSOs. Now, don’t we already require these organizations to be registered at the Securities and Exchange Commission (SEC) and secure their papers and maintain books of account following the requirements of say the Bureau of Internal Revenue (BIR)? CSOs are therefore supposed to update both agencies on everything so that they are qualified to be active and legitimate organizations. What then is the point of accrediting them again? And by which office or agency?

I raised this and the explanation given to me is that apparently, there are many institutions where some people claim to be of a huge CSO but made up only of a few; or that the same people are into several CSOs and therefore difficult to determine who is qualified or not. Of course, anyone and everyone should do due diligence before working with any organization and determine their qualification. What is needed is just to provide a mechanism for these organizations to participate.

Similarly, I asked how HBs 832, 4244 and 6151 compare with provisions on local sectoral representation (LSR) in R.A. 7160 or the 1991 Local Government Code (LGC). I also asked how these proposals impact on R.A. 8371 or the Indigenous Peoples’ Rights Act (IPRA), particularly the mandatory Indigenous Cultural Community (ICC) or Indigenous Peoples (IP) representation in policy-making bodies and other legislative councils. Apparently, the same issues were already raised by other participants invited but other than informing me of that, there was no answer offered to my questions. Perhaps, it was already taken up before I could make it in the hearing.

The point, however, is these proposed legislations are at best superfluous. The constitution and even specific laws already provide participation but the mechanism is simply not working or not there entirely. This is where new laws are perhaps needed. Ultimately however, an assessment of public institutions, of the system of public administration and the political system that puts it in place should be undertaken. Concomitant systemic reforms should then be pursued in order to address the limitations that will surely come out of the assessment. Until then, we’ll all just be doing palliatives that create more problems.

(The author is the Executive Director of the Local Government Development Foundation and a professor of Modern Local Governance at the Ateneo School of Government.)

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.