Massive Corruption and Bad Governance under the Duterte Administration - 5th in Series

BAD GOVERNANCE UNDER THE DUTERTE ADMINISTRATION

CIRCUMVENTING THE CONSTITUTION FOR FDIS

By: Solita Collas-Monsod - @inquirerdotnetPhilippine Daily Inquirer / 05:06 AM March 07, 2020

House Bill No. 78, authored by Rep. Joey Salceda and already approved on second reading by the Lower House...

The title of the bill is “Providing for the definition of public utility, further amending for the purpose of Commonwealth Act No. 146…..” Imagine that. By providing for the definition of public utility…

What about the dictionary definition of public utility? Or the Supreme Court’s definition? Won’t that do? Why does HB 78 have to provide one?

Well, Reader, it’s like this. “Public utility,” which covers businesses such as transportation, communication, electricity, water, and sewerage, happens to be mentioned in the past three Constitutions, and is one of the sectors in which foreign ownership is limited to at most 40 percent. But “public utility” and “public service” are used interchangeably. CA 146 is the Public Service Act of the Philippines.

So by amending this act, and making a distinction between public service and public utility—defining public utility very narrowly as electricity transmission and distribution, water pipeline distribution, and sewerage pipeline systems—HB 78 in one fell swoop removes transportation and communication from public utilities and in effect gets around the constitutional restriction on their ownership. Clever, huh? No need to go through a constitutional convention, or a constituent assembly, or a people’s initiative to amend the Constitution.

That is why Rep. Edcel Lagman, et al., are against the bill. He and Joey are both from Albay, representing the first and second districts, respectively.

…The defenders of the bill assume that passing this bill will open the spout to foreign direct investment (FDI), which will then lead to greater competition, higher growth, more jobs, etc. etc. No evidence. Just assertions. And the defenders of the bill also assume that it is the Constitution that is a “binding constraint” to FDI—else why are they trying to get around it?

What does the literature tell us? Here are two:

1. Macro-level data may show an association between foreign investment and higher levels of income, but do not establish causality. Similarly, no generalization can be made about link between the activities of foreign firms and income distribution.

2. On micro- or project level, a majority of projects yielded positive effects on national income, but a sizeable minority—one-third in two studies, anywhere from 25 percent to 45 percent in a third—had deleterious effects.

…And what really influences the amount of FDI that comes in? The World Investment Report enumerates some: adequate infrastructure, skill levels (human capital), quality of the general regulatory framework, clear rules of the game, no uncertainty, and fiscal determination. Does the Philippines have these?

In sum: We don’t need just any FDI, we need the right kind or quality. And if we want it, we don’t need to change the Constitution.

solita_monsod@yahoo.com

Read more: https://opinion.inquirer.net/127864/circumventing-the-constitution-for-fdis#ixzz6HkePUPuf

Passing unconstitutional laws and as a result directly undermining the normative and limiting power of the fundamental law of the land, the Philippine Constitution, dangerously degrades the rule of law, one of the linchpins of good governance.

There is at least one very good reason why the Philippine Constitution is purposely made difficult to change and requires the substantive and majority participation of the people, directly or through their elected representatives: Democracy is founded on the principle that those who govern must obtain the consent of the governed.

Constitutionalism also expresses a basic tenet of good governance, which is the participation of the governed in their own rule, including the choice of their rulers. Further entailed in the regime of good governance is the protection and elevation of the rights of the governed.

Undermining the Philippine Constitution through subversive legislation has an effect opposite to fortifying the rule of law, safeguarding the voice of the people, and ensuring the accountability of the rulers.