AT our "Partners" media forum in Max's Restaurant at Scout Tuazon near Roces Ave., QC last Friday, the issue of Republic Act (RA) 11659 was discussed by several enlightened minds in the legal and media professions, including Atty. Larry Gadon, Atty. Ferdinand Topacio, Rodolfo Javellana Jr. and columnist Charlie Manalo and Jenni Munar.
The two lawyers joined Javellana Jr. in saying that the law, signed by President Rodrigo Duterte just before he bowed out from office, is constitutionally flawed because by redefining "public utilities," Congress had actually revised an important part of the Constitution.
In fact, Javellana's United Filipino Consumers and Commuters (UFCC) has initiated the filing of a petition for certiorari and prohibition before the Supreme Court seeking to declare the new law as unconstitutional.
"We are here joining with the UFCC led by its president, Rodolfo Javellana Jr., because we strongly believe that this unconstitutional and railroaded law will be a sure threat to our national economy and security," Gadon and Topacio said.
Because of this law, danger lurks in every step of the way in terms of national security of the Philippines, for RA 11659 allows full or 100 percent foreign ownership of airports and wireless communication facilities and broadcast networks, among other vital installations.
They added that only the high court has the final say if there is a need to redefine "public utilities."
"On matters of such concern like public utilities, the voice of the people must prevail and be heard, not only those at the [legislature], some of [whose members] had hidden agenda when they pushed for its passage," Gadon said.
Topacio said he could not understand how the lawmakers during the time of Duterte redefined public utility services when they removed from it airports, railroads, railways, subways, broadcast stations and wireless telecommunication but retained seaports, electricity distribution, transmission of petroleum and petroleum products, water distribution and sewerage systems, and public utility vehicles.
In the UFCC's petition filed with the high tribunal, Javellana said that the amendment of the Public Service Act overturned the "almost a hundred years of consistent jurisprudence by redefining a 'public utility' as used in the Constitution so that it refers only to electricity distribution and transmission, petroleum and petroleum products, pipeline transmission systems, water and wastewater pipeline distribution and sewerage systems, seaports, and public utility vehicles."
"As it stands, airports, railroads, railways, subways, wire or wireless telecommunication services, and wire or wireless broadcasting stations are no longer considered as public utilities, thereby achieving the illicit entry of foreign investors in the ownership and operation of these public utility companies," Javellana stressed.
In amending Commonwealth Act 146, the people were not given ample time and opportunity to speak and be heard by the lawmakers because it was the height of the Covid-19 pandemic.
In the UFCC petition, included as respondents are Executive Secretary Lucas Bersamin, Senate President Juan Miguel Zubiri and House Speaker Martin Romualdez.
Since the 1935, 1973 and 1987 Constitutions, according to the UFCC, nationalization of public utilities has been at the forefront of the broader policy of protectionism.
The petition cited the jurisprudence, the case of heirs of Gamboa v. Finance Secretary, GR 176579, Oct. 9, 2012, in which the policy was patriotically renamed as the Filipinization of public utilities and was categorized as mandatory.
Javellana said RA 11659 also violates the equal protection clause when it removed airports but maintained seaports as public utilities.
Aside from terrorism, Javellana said health risks associated with unregulated entry of passengers and cargo from abroad as exemplified by the Covid-19 pandemic pose another national security challenge.
Javellana said he is confident the high tribunal will act on their petition with an issuance of the writs of certiorari and prohibition against RA 11659 for having been enacted and approved with "grave abuse of discretion amounting to lack or excess of jurisdiction and/or for being unconstitutional."