| CONTACT: |
| Supreme Court of the Philippines Library Services, Padre Faura, Ermita, Manila, Philippines 1000 |
| (632) 8524-2706 |
| libraryservices.sc@judiciary.gov.ph |
[ VOL. II, August 26, 1986 ]
JOURNAL NO. 65
Monday, August 25, 1986
CALL TO ORDER
At 9:59 a.m., the President of the Constitutional Commission, the Honorable Cecilia Muñoz Palma, called the session to order.
NATIONAL ANTHEM AND PRAYER
The National Anthem was sung followed by a prayer led by Mr. Jose N. Nolledo, to wit:
"Ama naming Makapangyarihan, sa panahong ito ng hidwaan at di-pagkakaunawaan ng mga inatasang bumalangkas ng Batas ng mga batas, ibaling po Ninyo ngayon din ang Inyong paningin sa aming lahat saan man naroroon ang mga iba sa amin; Inyo pong pukawin ang aming mga isipan; Inyo pong ipatong at ipadama ang Inyong kamay sa puso ng bawa't isa sa amin; at Inyo pong ibulong sa amin na ang pagkakaisa ay kailangan sa kabila ng mga masalimuot na mga pangyayari at sa kabila ng mga paniniwalang di-magkatugma.ROLL CALL
Ang bawa't isa sa amin, Ama, ay may sariling paninindigan na handang ipaglaban nang mapayapa. Kung sakaling kami’y makalimot sa aming mga sarili at maghari ang apoy ng pagkapuot at paghihiganti, Ama, gawin po Ninyo ang nararapat na sa wakas ay manatili ang tunay na pagmamahal at matapat na pagbibigayan.
Itulot po Ninyong ang aming mga suliranin ay malutas sa pamamagitan ng paghanap ng mga binagong alituntunin na tutugon sa adhikain hangga't maaari ng lahat sa amin at kung ito'y hindi mangyari, sana, Ama, ay maging mahinahon ang bawa't isa sa amin sa pagtanggap ng mga pangyayaring hindi maiiwasan sapagkat panahon lamang ang makapagsasabi kung ang ginawa ng bawa't isa sa amin ay tumpak o tunay na makabayan.
Hinihingi po namin ang mga ito sa Ngalan ni Jesus.
Siya Nawa."
Upon direction of the Chair, the Secretary-General of the Commission called the Roll, and the following Members responded:
READING AND APPROVAL OF THE JOURNAL
With 31 Members present, the Chair declared the presence of a quorum.
The following Members appeared after the Roll Call:A.M.
Azcuna, A. S. Maambong, R. E. Laurel, J. B. Ople, B. F. Lerum, E. R. De los Reyes, R. F. P.M.
Gascon, J. L. M. C. Garcia, E. G.
The following Members were absent:
Messrs. Rosales and Treñas were sick.
On motion of Mr. Calderon, there being no objection, the reading of the Journal of the previous session was dispensed with and the said Journal was approved by the Body.
REFERENCE OF BUSINESS
On motion of Mr. Calderon, there being no objection, the Body proceeded to the Reference of Business.
REFERRAL TO COMMITTEES OF COMMUNICATIONS
Upon direction of the Chair, the Secretary-General read the titles of the following Communications which were, in turn, referred by the Chair to the Committees hereunder indicated:
Communication No. 626 — Constitutional Commission of 1986
Communication from Mr. Marlowe O. Camello of 2323 West Beverly Blvd., Suite 204A, Los Angeles, California, U.S.A., proposing an Article in the new Constitution that barangay governments be transformed into Citizens' Investigative BodiesCommunication No. 627 — Constitutional Commission of 1986
TO THE COMMITTEE ON LOCAL GOVERNMENTS
Letter from Mr. Arturo N. Abeando, Sr. of Pioneer Insurance and Surety Corporation, seeking inclusion in the Constitution of a provision obliging the State to protect the life of the unborn from the moment of conceptionCommunication No. 628 — Constitutional Commission of 1986
TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES
Letter from Mr. Gene C. Sibayan of 48443 Spokane Place, Fremont, California, 94539, U.S.A., urging the retention of the United States Military Bases in the Philippines beyond 1991Thereafter, Mr. Calderon sought recognition to speak on a question of collective privilege, to which the Chair replied that the Body would fist consider the Unfinished Business before allowing its Members to rise on questions of privilege.
TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES
UNFINISHED BUSINESS: CONTINUATION OF CONSIDERATION OF COMMITTEE REPORT NO. 24 ON RESOLUTION NO. 496
Thereupon, on motion of Mr. Rama, there being no objection, the Body resumed consideration, on Second Reading, of Committee Report No. 24 on Resolution No. 496, entitled:
Resolution to incorporate in the new Constitution an Article on National Economy and Patrimony.The Chair recognized Mr. Villegas, Chairman of the Committee on the National Economy and Patrimony, and the members thereof for further individual amendments.
AMENDMENT OF MR. DE CASTRO JOINTLY WITH MESSRS. AZCUNA, CONCEPCION, RIGOS, JAMIR, MS. TAN, MESSRS. TREÑAS, TINGSON, FOZ, MAAMBONG AND DE LOS REYESAfter Section 15, Mr. de Castro, jointly with Messrs. Azcuna, Concepcion, Rigos, Jamir, Ms. Tan, Messrs. Treñas, Tingson, Foz, Maambong and de los Reyes, proposed to add a new Section, to read:
SECTION ___. THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF FILIPINO LABOR AND LOCALLY-PRODUCED GOODS AND MATERIALS.He explained that his proposal would enshrine in the Constitution the Filipino First Policy which was enunciated in Commonwealth Act No. 138, Republic Act No. 912 and Republic Act No. 5183. He stated that it would give impetus to the production and use of Philippine products, especially in the manufacture of fertilizers, feeds, garments, and meat production. He stressed that it would lower the cost of importation and eventually increase the viability of local industries with Filipino labor.
Mr. Monsod stated that the Committee would be agreeable to the sentiment behind the proposal but suggested to amend it to read:
SECTION ___. THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF FILIPINO LABOR, MATERIALS AND PRODUCTS WITH MEASURES THAT HELP MAKE THEM COMPETITIVE IN THE MARKET.He explained that in line with the philosophy of Section 1 of the Article, Filipino products and materials should be made competitive by helping Filipino entrepreneurs design their own products both in substance and appearance, like what the Design Center of the Philippines is encouraging. He also stated that the results of products' standard tests of Filipino products should be publicized so that the people would know that they are as good, if not better, than imported ones. He suggested that like Korea, which spends 2% of its gross national product for research, the Philippines should also increase the budget for the National Science and Technology Authority to make Filipino products and materials more competitive with applied research.
He opined that trade fairs and trade caravans would inform the people on the quality of Filipino products which need advertisement of their appearance, packaging, content and quality especially in the international market.
Finally, he underscored that all efforts of government in trade negotiations and bilateral agreements should be able to lift protectionism in other countries so that Filipino products can fairly compete in the international markets. He stressed that Filipino products and producers could not be more competitive if the market were shut off or protected too much.
In reply, Mr. de Castro agreed with Mr. Monsod's amendment and explanation, but suggested that the phrase "locally-produced goods" be retained, to which Mr. Monsod replied that it would mean the same as "Filipino products".
Mr. Monsod, however, accepted the use of the phrase "locally-produced goods".
INQUIRY OF MR. FOZ
In reply to Mr. Foz' query, Mr. Monsod affirmed that "preferential use" has reference to the government as well as to the private sector. He pointed out that the existing Flag Law provides that Filipino contractors would have a 15% advantage in government contracts.
Mr. Monsod also affirmed that the word "Filipino" describes "materials", and one of the measures that would make Filipino products more competitive would be to ensure that the right technology is used in processing the materials. He added that vocational courses and seminars to upgrade skills should be encouraged so that the labor sector would have better skills in the market.
On whether Filipino materials would also refer to those locally-produced by foreign companies, Mr. Monsod stated that foreign companies could help in adding some value to Filipino products so that they could be more competitive in the market.
On whether Mr. de Castro's proposal would also include the award of contracts to Filipino contractors, Mr. Monsod reiterated that the Flag Law would give Filipino contractors a 15% advantage because of the disadvantage that the Filipinos have for reasons beyond their control. He pointed out, however, that Congress may still increase the 15% advantage for Filipinos as other factors arise.
On Mr. Foz' suggestion to change "promote" to "encourage", Mr. Monsod explained that the former would be more definitive of all aspects of the duty of the State to help make Filipino products more competitive, while recognizing the importance of the initiative of the private sector. He opined that too much dependence on the government would not make local industries strong.
Thereupon, Mr. de Castro restated his proposed amendment, as amended by Mr. Monsod, to wit:
SECTION ___. THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF FILIPINO LABOR MATERIALS AND LOCALLY-PRODUCED GOODS WITH MEASURES THAT WILL MAKE THEM COMPETITIVE IN THE MARKET.
MR. DAVIDE'S AMENDMENT TO THE AMENDMENT
Thereafter, Mr. Davide proposed to amend the proposal to read:
SECTION ___. IN ALL ECONOMIC ENDEAVORS THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF FILIPINO LABOR, DOMESTIC RAW MATERIALS, AND LOCALLY-MADE PRODUCTS AND GOODS AND ADOPT MEASURES TO MAKE THEM COMPETITIVE.Mr. Monsod opined that the first part of the proposal is a surplusage in the Article.
Mr. Davide agreed but he insisted that “with measures” should be substituted with AND ADOPT MEASURES TO.
Mr. Villegas accepted the amendment.
Thereupon, Mr. Villegas read the amendment as follows: THE STATE SHALL PROMOTE THE PREFERENTIAL USE OF FILIPINO LABOR, DOMESTIC MATERIALS AND LOCALLY-PRODUCED GOODS AND ADOPT MEASURES THAT HELP MAKE THEM COMPETITIVE.
At this juncture, Mr. Tingson manifested that he would be glad to cosponsor the proposal with Mr. de Castro because it would strengthen the overriding philosophy and thinking of the Commission that the country's national economy and patrimony are gifts from God which Filipinos have the full right to use and enjoy.
The proposal was submitted to a vote and with 27 Members voting in favor and none against, the same was approved by the Body.
DEFERMENT OF CONSIDERATION OF AN AMENDMENT
At this juncture, Mr. Monsod manifested that the Committee had already accepted the amendment proposed earlier by Mr. Ople, with Messrs. Natividad, de los Reyes, Maambong, Davide and Azcuna as coauthors. He then inquired whether in the absence of Mr. Ople, the Committee could adopt it as a Committee amendment but attribute the authorship to Mr. Ople and his coauthors.
Mr. Sarmiento, however, requested for deferment of consideration of the proposal, stating that Mr. Ople may have additional comments thereon, to which Mr. Monsod agreed.
The Chair granted Mr. Sarmiento's request.
PROPOSED AMENDMENT OF MR. SARMIENTO JOINTLY WITH MESSRS. NOLLEDO, FOZ, DAVIDE, GUINGONA,
MS. TAN AND MR. UKA
Mr. Sarmiento then proposed, jointly with Ms. Tan and Messrs. Nolledo, Foz, Davide, Guingona and Uka, to add a new section, to wit:
SECTION ___. THE USE OF FILIPINO DUMMIES TO DEFEAT THE CONSTITUTIONAL AND LEGAL PROVISIONS ON NATIONAL ECONOMY AND PATRIMONY SHALL RESULT IN FORFEITURE IN FAVOR OF THE STATE OF FOREIGN EQUITY AND INCREMENTS AND IN PERPETUAL DISQUALIFICATION OF THE DUMMY TO PRACTICE HIS PROFESSION IN ADDITION TO CRIMINAL RESPONSIBILITYMr. Sarmiento explained that it would be useless to talk of 60% Filipino equity if Filipinos would allow themselves to be willing partners of multinationals by acting as dummies in flagrant violation of the Constitution. He stressed that the circumvention of the 60:40 sharing scheme in the Constitution would result in foreign domination of the country's economy. He then adverted to Senator Claro M. Recto's warning that "a country dominated by foreigners enriches the foreigners, a few of the nationals but seldom its workingmen. Our country therefore, is poor, its workingmen are poor and many thousands are jobless mainly because we have had an alien-dominated economy and political life for more than four centuries now. The Filipinos had not been independent from foreign domination in those four centuries. With the tremendous natural resources in their homeland they would surely have found better ways of developing their economic assets to achieve the high standard of living and prosperity for all elements of the population including the mass of workingmen".
REMARKS OF MR. GUINGONA AND INTERPELLATION
OF MR. RODRIGO
Speaking in support of the proposal, Mr. Guingona stated that during the previous session, he voted for the 75:25 equity ratio in favor of the Filipinos mainly because of his concurrence with Mr. Davide's observation that it is highly possible that although on paper the foreigners have minority ownership, their actual ownership are in fact more than 40% because of the use of Filipino dummies. He stated that with a 75:25 ratio, there would be lesser chances of foreign control than with a 60:40 ratio which would make it easier for foreign investors to use Filipino dummies for the additional 11% to gain control and which would have tremendous detrimental effects on the country in that 1) the national security would be exposed to danger because of too much foreign involvement particularly in such activities as telecommunications; and 2) more profits would go to foreigners who would be entitled to bring them out of the country. He stressed that although the country needs foreign investments, they should be allowed under our terms, one of which is the proposal of Mr. Sarmiento.
On Mr. Rodrigo's query whether constitutionalizing the provision rather than leaving it to legislation would not cast an ugly reflection on the people or imply that there is a plague of dummies in the Philippines, Mr. Guingona replied that the amendment should be constitutionalized as a preventive and safety measure which the Filipinos are entitled to.
On Mr. Rodrigo's contention that even if the provision is included in the Constitution it would still need legislative implementation particularly as to the sanctions that should be imposed, Mr. Guingona maintained that the proposal is not a purely legislative matter which should be considered by Congress, and even assuming that it is, the Body had already approved other provisions which are legislative in character.
Mr. Rodrigo, however, reiterated his misgivings that the proposal might cast an ugly image on the Filipino people by creating an impression that dummyism is so prevalent in the country that there has to be a constitutional provision against it.
At this juncture, Mr. Nolledo also expressed support for the proposed amendment because, as many lawyers agree, the Anti-Dummy Law has proven to be ineffective. He stressed that the provision, once constitutionalized, would mandate the government to strengthen its fight against the employment of dummies. He opined that this would not discourage foreign investments if indeed foreigners act in good faith when they decide to come to the country to invest. He then stressed the need to constitutionalize safeguards against violations of constitutional provisions designed to protect Filipino interest in the wealth of the nation.
REMARKS OF MR. CONCEPCION
Speaking against the proposal, Mr. Concepcion stated that he could not agree to the idea of providing sanctions in the Constitution since this is a matter which primarily belongs to Congress. He pointed out that during the deliberations on the Article on Citizenship, he warned the Body that applying for Filipino citizenship is the biggest door for circumventing the provisions on natural resources. He stressed that the country should be more strict in the implementation of the naturalization laws.
Mr. Romulo, on behalf of the Committee, stated that while the Committee would accept the basic concept of Mr. Sarmiento's proposal, another set of amendments along the same line was proposed by Messrs. Ople, Bennagen, Maambong and Mrs. Quesada who had not yet come, in view of which, he requested for a deferment of consideration of the proposal so that Mr. Sarmiento could work out his proposal with them.
SUSPENSION OF SESSION
Upon request of Mr. Sarmiento, the Chair suspended the session.
It was 10:51 a.m.
RESUMPTION OF SESSION
At 11:03 a.m., the session was resumed with the Honorable Francisco A. Rodrigo presiding.
Upon resumption of session, Mr. Sarmiento informed the Chair that the Committee objected to the use of the term "Filipino dummies" and that his amendment had been reformulated, to wit: THE VIOLATION OF THE PROVISIONS OF THIS ARTICLE SHALL RESULT IN FORFEITURE IN FAVOR OF THE STATE OF FOREIGN INVESTMENT AND ITS INCREMENTS IN ADDITION TO CRIMINAL RESPONSIBILITY.
REMARKS OF MR. MONSOD
In reply to the Chair's inquiry, Mr. Monsod adverted to the amendment of Mrs. Quesada and Messrs. Ople and Maambong and appealed to the proponents to harmonize their views inasmuch as these are addressed to the same act. He informed that the proposal of Mrs. Quesada which reads ACTS WHICH CIRCUMVENT OR NEGATE ANY OF THE PROVISIONS OF THIS ARTICLE SHALL BE DEALT WITH BY LAW, upon suggestion of the Committee, would be modified with the insertion of the phrase ARE INIMICAL TO THE NATIONAL INTEREST between the words "article" and "shall".
Mr. Monsod explained that the modification was made in the light of the approval of Section 5 of the Article on Citizenship which provides that "dual allegiance of citizens is inimical to the national interest and shall be dealt with by law". He pointed out that the acts of a dummy partake of the nature of dual or unqualified allegiance. He added that it would be better to align the two provisions which address the same type of problem.
Mr. Sarmiento, reacting thereto, adverted to the statement of Mr. Bernas that the Body cannot frame a Constitution in a vacuum but should contend with realities and respond to the signs of the times. He stated that inasmuch as national economy is the lifeblood of the people, the Body should give more teeth to its safeguards.
While agreeing that the offense is against national interest, Mr. Monsod underscored that by making a very strong statement of principle in the Constitution, Congress would be mandated to act accordingly. He added that since the Members of Congress would be voted by the people to represent them, Congress should be answerable and accountable to the people. He stressed that it is not for the Commission to prescribe the penalties for such a crime and that Congress, which will study this matter, can prescribe penalties therefor, perhaps not merely by forfeiture, but also by strengthening the existing legislations like the Anti-Dummy Law. He stated that the failure to properly implement the Anti-Dummy Law in the past does not mean that there is a need to constitutionalize penalties for dummy acts.
The Chair, at this time, clarified that there are three proposals, namely: the amendment of Mr. Sarmiento; the amendment of Mrs. Quesada jointly with Messrs. Ople and Maambong; and the Committee amendment to synchronize the first two proposals.
SUSPENSION OF SESSION
The Chair suspended the session.
It was 11:08 a.m.
RESUMPTION OF SESSION
At 11:13 a.m., the session was resumed.
Mr. Sarmiento, at this juncture, informed that the Committee had reformulated his amendment. to wit: ACTS WHICH CIRCUMVENT OR NEGATE ANY OF THE PROVISIONS OF THIS ARTICLE SHALL BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS AS MAY BE PROVIDED BY LAW
INQUIRY OF MR. NOLLEDO
On the inquiry of Mr. Nolledo as to whether the civil sanctions would include forfeiture of foreign investments and increments, Mr. Sarmiento replied in the affirmative.
Mr. Monsod informed that the Committee agreed with the proponent that this is one of the sanctions which Congress may prescribe.
POINT OF INFORMATION OF MR. REGALADO
Apropos the comment of Mr. Monsod, Mr. Regalado informed that any person who commits a criminal offense will be subject to the subsidiary penalty of confiscation and forfeiture under Article 45 of the Revised Penal Code.
In reply, Mr. Nolledo stated that while it is true that the sanctions are also provided for in existing laws, these are mere statutes which can be amended, modified or repealed. He stressed that the Body would be providing a constitutional basis for punishment of dummies.
MR. DAVIDE'S AMENDMENT
TO THE AMENDMENT
Mr. Davide proposed to use the word SHALL instead of "may" in the phrase AS MAY BE PROVIDED BY LAW which was further modified by Mr. Monsod to AS PROVIDED BY LAW. Mr. Davide accepted the modification.
INQUIRY OF MR. BACANI
In line with the explanations given by Messrs. Nolledo and Monsod, Mr. Bacani asked clarification on the exact import of Mr. Sarmiento's amendment.
Mr. Nolledo clarified that the Body would leave it to Congress to determine whether the sanction may be provided although it would be an urgent message to Congress to adopt forfeiture as a sanction if warranted by the circumstances. Mr. Monsod agreed with the interpretation.
INQUIRY OF MS. AQUINO
For the record, Ms; Aquino asked the proponent to clarify the coverage of the acts which would amount to circumvention of the prohibition in the Constitution.
Mr. Sarmiento explained that such acts would cover all acts of a dummy, to wit: 1) those who, having in their names or under their control, a right, franchise, privilege or property, the exercise or enjoyment of which is expressly reserved by the Constitution to Filipino citizens or to Filipino-controlled corporations or who permit the use, exploitation or enjoyment of such right, franchise, privilege or property by a person or corporation not possessing the requisites prescribed by the Constitution; 2) those who transfer or convey such right, franchise, privilege or property to a person or corporation not qualified under the Constitution; 3) those who; in any manner, permit or allow any person or corporation not qualified under the Constitution to acquire, use, exploit or enjoy such right, franchise, privilege or property which is expressly reserved by the Constitution to Filipino citizens or to corporations controlled by them; 4) those who permit or allow non qualified persons to intervene in the management, operation, administration or control of such right, franchise, privilege or property either as officer, employee or laborer.
Ms. Aquino stated for the record that such acts would, in effect, be constitutionally prohibited without the Body expressly providing so in the Article, violations of which would be subject to criminal punishment by imprisonment or fine or forfeiture of property.
INQUIRY OF MR. OPLE
On Mr. Ople's inquiry if the person who allows himself to be a dummy would be the only party who shall be subject to criminal and civil prohibitions, Mr. Sarmiento explained that these would also cover persons who initiate the commission of the offense such as foreigners who would profit from such prohibited acts as well as those who would knowingly abet, assist, or aid in their planning and perpetuation.
Mr. Ople remarked that in the original formulation of the Quesada amendment, the phrase "in conspiracy with foreign interest" was used although this was lost in the negotiations. He noted with satisfaction that foreign investors who abet such prohibited acts would be held liable.
INQUIRY OF MR FOZ
Upon inquiry of Mr. Foz whether the persons who "assist or collaborate in the commission of the offense" would include lawyers, accountants and other professionals who would have a hand therein, Mr. Sarmiento replied in the affirmative.
INQUIRY OF MS. AQUINO
To Ms. Aquino’s question whether the enumeration read by Mr. Sarmiento as acts covered by the Anti-Dummy Law would not be exclusive, Mr. Sarmiento replied in the affirmative.
Mr. Sarmiento, upon inquiry, affirmed that the acts which can be interpreted to circumvent the constitutional prohibition could be expanded to include sophisticated and insidious acts which have been devised recently. In relation thereto, Mr. Sarmiento affirmed that the statutory implementation of the provision would not be limited to the interpretation according to the "antiquated" Anti-Dummy Law.
INQUIRY OF MR. DAVIDE
Mr. Davide noted that what is prohibited in the proposed section would be "acts which negate or circumvent the provisions on the Article on National Economy and Patrimony". Moreover, he stated that various sections therein mandate Congress to enact the necessary legislations to promote or enhance the national economy or national patrimony, to protect Filipino enterprises and to promote the preferential right of Filipino labor.
As to whether, in case of failure of Congress to act as mandated which would be the best way of negating this Article, the Members thereof would be held liable, Mr. Monsod replied that the Members would not be held liable. He stressed that the accountability of Congress can be reckoned with in the election process and in the reserved right of the people to change the laws.
PARLIAMENTARY INQUIRY OF MR. TINGSON
At this juncture, in reply to Mr. Tingson's query whether it would be proper to address the Presiding Officer as Mr. President, the Presiding Officer stated that he would not be in a position to answer the question because of the absence of the President of the Commission.
INQUIRY OF MR. GUINGONA
Mr. Guingona reiterated his earlier request for Mr. Sarmiento to elaborate on "civil and criminal sanctions", to which Mr. Sarmiento replied that such sanctions would be without prejudice to perpetual disqualification of the dummy from practising his profession.
VOTING ON MR. SARMIENTO'S AMENDMENT,
AS AMENDED
Thereafter, Mr. Villegas restated the additional section, as amended, to wit: ACTS WHICH CIRCUMVENT OR NEGATE ANY OF THE PROVISIONS OF THIS ARTICLE ARE INIMICAL TO THE NATIONAL INTEREST AND SHALL BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS AS PROVIDED BY LAW.
With 32 Members voting in favor, 1 against and no abstention, the additional section was approved by the Body.
PROPOSED AMENDMENT OF MRS. ROSARIO BRAID
JOINTLY WITH MR. REGALADO
Mrs. Rosario Braid proposed an amendment, to wit:
THE STATE SHALL ENCOURAGE TECHNOLOGICAL INDEPENDENCE, REGULATE TECHNOLOGY TRANSFER AND ENSURE MUTUAL BENEFITS FOR BOTH PRODUCER AND RECEIVER COUNTRIES.Mrs. Rosario Braid explained that most Third World countries, including the Philippines, are often at a disadvantage in terms of technology transfer; of cost not only in direct payments for technology in the form of royalties and license fees but also in terms of practices like over-invoicing of imports and under-invoicing of exports; loss of control of the local citizens over decisions; the unsuitable characteristics of the technology received, like the technology in hardware such as equipment from producer to receiver countries; and also intellectual property such as patents, copyrights, formulas, designs, trademarks, franchises and manufacturing rights.
She then quoted from the paper written by Lilia Bautista, entitled Critique on Technology Transfer, to wit:
"In 151 agreements, there were 124 restrictive clauses, although restrictive clauses are not allowed in these agreements. These restrictive clauses are those which restrict the use of technology supply after the expiry of the agreement; those which require payments for patents and other industrial property rights after expiration, termination or invalidation; and those which restrict technology recipients from access to continued improvements in techniques.Mrs. Rosario Braid pointed out that there is very little transfer of technology because of the control of transnational corporations to the extent that they are reluctant to engage in local sourcing that might initially be less profitable, and reluctant to part with technologies over which they have monopoly of control. She stated that she proposed the provision on technology transfer because the present Technology Transfer Board has not really functioned the way it should in terms of preventing restrictive clauses in technology transfer agreements.
“The U.S., particularly, is in the business of selling royalties to countries which already have technocratic, intellectual support to demand, and it is not in the business of selling pure information such as knowhow and showhow to the LDCs (less developed countries), so that multinationals are more interested in setting up direct affiliates and withdrawing branch earnings than in turning information over to less developed countries.”
Responding thereto, Mr. Villegas informed Mrs. Rosario Braid that the Body had already approved Section 3 which provides that "the State shall promote the development and use of local scientific and technical resources". He also invited attention to Mr. Ople's proposal to which her amendment can be incorporated.
Thereupon, Mrs. Rosario Braid manifested that she would withdraw her proposal on the understanding that Mr. Ople's amendment would focus on the need for regulation in the existing Technology Transfer Board to prevent violations of technology transfer agreements in the form of restrictive clauses in favor of producer-countries.
Thereupon, Mr. Rama suggested a conference between Mr. Ople and Mrs. Rosario Braid on the amendment.
Meanwhile, Mr. Rama asked the Chair's recognition of Mr. Calderon on a question of privilege.
QUESTION OF PRIVILEGE OF MR. CALDERON
At this juncture, Mr. Calderon took the floor on a question of privilege and expressed the sense of outrage and dismay that, he said, he and other members of the Commission felt over the campaign of vilification and calumny that had been launched against them by certain Members of the Commission.
Mr. Calderon invited attention to the joint statement released to the press by five Members of the Commission, claiming that "the democratic ideals and nationalist aspirations of the Filipino people no longer stand a chance in that deliberative Body", referring to the Constitutional Commission. He observed that even certain sectors of the media seemed to be falling into a propaganda trap, judging from some news headlines which indicate agreement with the allegation that some provisions were indeed anti-Filipino, thus passing the bias to the reading public. Mr. Calderon stated that the implication of all such allegations is that the majority who opposed their stand were undemocratic and anti-nationalist. He deplored this as a scurrilous aspersion designed to deceive the people into thinking that the Members of this Commission who, because of the congruence of their votes, have become the majority in this Chamber, are engaged in a conspiracy to sell the Filipino people to the multinationals. He stressed that this was a distorted and mean propaganda gimmick designed to deceive the people into thinking that they who formed the minority in the Chamber, because they failed to convene the greater number to vote with them, were the true champions of democracy and nationalism.
Mr. Calderon stated that he took the floor to unmask the deception because while said Members claimed to be for democracy, and railed against what they called the tyranny of the majority, they could not submit to the will of the majority in the Commission as expressed in the collective vote of its Members. He asked if, perhaps, the democracy they claimed might be the kind that is appended to the names of socialistic or communistic countries.
Mr. Calderon also questioned their claim to a monopoly of nationalism, patriotism or love of country with them alone loving the Philippines and the Filipinos. He asked if such love of country could not be attributed to other distinguished Members of the Commission like former Justice of the Supreme Court Cecilia Muñoz Palma, now President of the Commission; former Senators Padilla, Rodrigo, Alonto, Rosales and Sumulong; the religious leaders, Pastors Rigos and Tingson and Bishop Bacani; Commissioners Yusup Abubakar and Uka; former Speaker Laurel; Commissioners Bengzon, Jr., Monsod, Romulo, Villegas, de Castro, Colayco and Regalado; Ople, Natividad, de los Reyes and Maambong; former Chief Justice Concepcion and Commissioner Rama and others. He asked if these gentlemen are less nationalistic than the self-proclaimed patriots who did not have the grace to accept a parliamentary defeat. He noted that some of his colleagues, particularly Messrs. Rama, Rodrigo and himself, actually suffered in jail in the hands of Mr. Marcos because of their fight for the restoration of democracy and nationalism, yet they never proclaimed to the world that they had a monopoly of nationalism and love for democracy.
Mr. Calderon stated that while said Members claimed that they have done their best to cooperate, they had judged their proposals not on their merit but on the basis of black politics which is most undemocratic and dangerous, the implication being that they alone possess what is meritorious, correct and true. He stated that even in the Supreme Court, disagreements were resolved by vote by which everybody afterwards abides since the essence of democracy is finding the collective will by majority vote.
Mr. Calderon also questioned their claim to being the only ones who were right and who possessed the key to the recovery of this nation. He noted that when rejected in the voting, they claimed that the rejection was a conspiracy against the Filipino people. He asked, who authorized them in the first place to speak for the people? By what right, he asked, did they arrogate unto themselves the title of nationalists, progressives and lovers of democracy when they could not even abide with grace and politeness by the will of the majority? He stated that they claimed they were trying to cooperate, yet they behaved so brazenly when defeated in a vote. He opined that by their conduct, it would seem that they would cooperate with the majority only as long as their proposals were accepted. He then raised the possibility that judging from their conduits and the way they interpret democracy, said Members may in the future capture the government through force or violence.
Mr. Calderon then reminded his colleagues of the prayer he said before the Body, to wit:
"As crucial issues are submitted to a vote, fortify us, Almighty God, with humility in victory, with grace in defeat, and with the wisdom to understand that every vote in this Chamber is a vote of conscience intended to achieve the common will, and certainly not a partisan stand designed to defeat a foe. For in this Chamber, O Lord, there are no foes, only colleagues in the common endeavor to structure the foundation of this nation."
Finally, Mr. Calderon appealed to his colleagues the Commission to take opposing stand but not to call each other names nor claim monopoly of nationalism and of merit.
REMARKS OF MR. DE CASTRO
Additionally, Mr. de Castro quoted Mr. Adlai Stevenson on patriotism, to wit:
"Patriotism is not the sudden and frenzied outburst of emotion, but the tranquil and steady dedication of a lifetime."
CONSOLIDATED AMENDMENT OF MR. OPLE
Thereafter, Mr. Ople proposed the following consolidated amendment, coauthored by Messrs. Regalado, Rigos, Nolledo, Maambong, Guingona, Bennagen, de los Reyes and Natividad and Mrs. Rosario Braid, to wit:
THE STATE SHALL AIM BY LAW AND POLICY TO PROMOTE THE SUSTAINED DEVELOPMENT OF A NATIONAL TALENT POOL OF FILIPINO ENTREPRENEURS, SCIENTISTS, MANAGERS, PROFESSIONALS, HIGH-LEVEL TECHNICAL MANPOWER AND SKILLED WORKERS OR CRAFTSMEN IN ALL FIELDS. THE STATE SHALL PROMOTE APPROPRIATE TECHNOLOGY AND REGULATE TECHNOLOGY TRANSFERS FOR THE NATIONAL BENEFIT.Mr. Nolledo explained the second paragraph by stating that the original amendment included the words “absolute equality” but because of the impossibility of its attainment, the proponents deleted the word “absolute” on the understanding that “equality” means substantial equality. He also stated that the word “reciprocity” is interrelated with the word “equality”, the purpose being to lend more importance to the provision that the patrimony and economy of the nation must be under the control of Filipinos. He pointed out that in the exercise of rights and privileges, all concessions under the provisions on National Economy and Patrimony would also involve the exercise of profession, thus the necessity to align the exercise of profession with the exercise of rights and privileges.
THE PRACTICE OF ALL PROFESSIONS IN THE PHILIPPINES SHALL BE LIMITED TO FILIPINO CITIZENS SAVE IN CASE OF RECIPROCITY BASED ON EQUALITY WITH THE CITIZENS OF FOREIGN COUNTRIES AS MAY BE PRESCRIBED BY LAW.
REMARKS OF MRS. ROSARIO BRAID
Mrs. Rosario Braid informed that when she filed her resolution, the rationale given her by a group coming from various sectors was that there were reports of illegal practice by aliens in the medical, engineering and architectural professions, especially where loans are obtained from foreign sources to finance local projects. She stated that the package would usually include technical services to be rendered by Filipino engineers and architects but projects involving grants-in-aid would also include technical services to the prejudice of Filipino professionals. She pointed out that while this may be acceptable, it should not extend to services beyond the initial operations since the Filipino engineers are in a position to render the required services.
Mrs. Rosario Braid also pointed out that during the past regime, one of the problems in the medical profession was the practice of inviting and allowing doctors who were formerly Filipinos but who subsequently became American citizens to come and practice their profession in the Philippines, to the detriment of local Filipino professionals.
INQUIRY OF MR. ROMULO
At this juncture, in reply to Mr. Romulo's inquiry whether the Commission would allow a reciprocal right if a Filipino lawyer is allowed to practice law in New York, Mr. Ople stated that the consensus among the proponents of the amendment was to delete the clause "save in case of reciprocity based on equality with the citizens of foreign countries as may be prescribed by law", such that the second paragraph would read:
THE PRACTICE OF ALL PROFESSIONS IN THE PHILIPPINES SHALL BE LIMITED TO FILIPINO CITIZENS SAVE IN CASES PRESCRIBED BY LAW.Mr. Villegas accepted the amendment.
MR. OPLE'S AMENDMENT, AS MODIFIED
Mr. Villegas restated the amendment with his modification, to which Mr. Ople agreed, to wit:
THE STATE SHALL PROMOTE THE SUSTAINED DEVELOPMENT OF A NATIONAL TALENT POOL OF FILIPINO ENTREPRENEURS, SCIENTISTS, MANAGERS, PROFESSIONALS, HIGH-LEVEL TECHNICAL MANPOWER AND SKILLED WORKERS OR CRAFTSMEN IN ALL FIELDS. THE STATE SHALL PROMOTE APPROPRIATE TECHNOLOGY AND REGULATE TECHNOLOGY TRANSFER FOR THE NATIONAL BENEFIT.Submitted to a vote, and with 26 Member voting in favor and none against, the amendment was approved by the Body.
THE PRACTICE OF ALL PROFESSIONS IN THE PHILIPPINES SHALL BE LIMITED TO FILIPINO CITIZENS SAVE IN CASES PRESCRIBED BY LAW.
MANIFESTATION OF MR. MONSOD
At this juncture, Mr. Monsod manifested that there were proposals for amendments but some proponents were not present, and in fairness to them, he stated that he was reserving their right to make amendments later.
He then stated that the period of amendments should not be closed, to which the Floor Leader agreed.
AMENDMENT OF MR. OPLE
Thereafter, Mr. Ople reiterated his previous amendment to add a new Section to be numbered later, to read:
SECTION ___. THE STATE SHALL PROTECT THE NATION'S MARINE WEALTH IN ITS TERRITORIAL WATERS AND ECONOMIC ZONES AND RESERVE ITS USE AND ENJOYMENT EXCLUSIVELY TO FILIPINO CITIZENS.He pointed out that his amendment was originally proposed in the Article on Social Justice but it was suggested that the same be transferred to the Article on National Economy and Patrimony.
The Sponsor accepted the proposed amendment.
In reply to Mr. Davide's query, Mr. Ople affirmed that marine wealth includes wealth in submarine areas like the seabed. He added that territorial water would include the territorial sea which extends to the 200-mile economic zone under the Convention on the Law of the Sea.
In view thereof, Mr. Davide proposed to amen Mr. Ople's amendment, to read:
SECTION ___. THE STATE SHALL PROTECT THE NATION'S MARINE WEALTH IN ITS TERRITORIAL WATERS, TERRITORIAL SEA AND EXCLUSIVE ECONOMIC ZONE AND RESERVE ITS USE AND ENJOYMENT EXCLUSIVELY TO FILIPINO CITIZENS.Mr. Ople accepted the amendment to his amendment.
The Sponsor, likewise, accepted Mr. Ople’s amendment, as amended by Mr. Davide
In reply to Mr. Bacani's query, Mr. Ople affirmed that his proposal would not allow foreigners to use the local waters even if they pay rent therefor, or enter into any agreement or treaty obligation providing for any payment for fishing rights in the country's territorial waters.
However, Mr. Ople agreed with Mr. Concepcion's statement that the economic zones are part of the high seas; therefore, the provision thereon would be subject to the general principles of international law.
APPROVAL OF MR. OPLE'S PROPOSED AMENDMENT
Thereafter, submitted to a vote, and with 26 Members voting in favor, none against and one abstention, the proposed amendment of Mr. Ople was approved by the Body.
FURTHER AMENDMENT OF MR. OPLE
Mr. Ople also proposed another new Section to read:
SECTION ___. IN THE INTERNATIONAL FIELD IT SHALL BE THE RESPONSIBILITY OF THE STATE TO HELP INDUSTRIES ATTAIN ACCESS TO TECHNOLOGY, MARKETS AND FINANCE. FOREIGN INVESTMENTS, DETERMINED TO BE NECESSARY TO THE COUNTRY'S ECONOMIC DEVELOPMENT ACCORDING TO THE NATIONAL DEVELOPMENT PROGRAM, MAY BE WELCOMED TO SUPPLEMENT THE PRIMARY ROLE OF DOMESTIC ENTERPRISES.SUSPENSION OF SESSION
At this juncture, on motion of Mr. Monsod, the Chair suspended the session.
It was 12:09 p.m.
RESUMPTION OF SESSION
At 12:12 p.m., the session was resumed.
RESTATEMENT OF MR. OPLE'S
PROPOSED AMENDMENT
Upon resumption of session, and after consultation with his co-proponents, Mr. Ople restated his proposed amendment to read:
SECTION ___. FOREIGN INVESTMENTS DETERMINED TO BE NECESSARY TO THE COUNTRY'S DEVELOPMENT MAY BE ENCOURAGED WITHIN THE FRAMEWORK OF THIS ARTICLE.
He explained that the phrase "the framework of this Article" refers to Section 9 which grants Congress the power to raise to the highest level the equity participation of Filipino businessmen in all investment areas.
The Sponsor accepted the proposed amendment.
Mr. Davide, however, opined that the proposed amendment would not be necessary because the participation and control of foreign investments have been recognized in various Sections of the Article, in reply to which Mr. Ople stated that his proposal would clarify the policies of the Article on National Economy and Patrimony.
Mr. Davide contended that it is already clear that the provisions of the Article would allow participation of foreign investors.
In this connection, Mr. Bacani underscored that it is the Filipino First policy that is being provided in the Article without discouraging foreign investments, in reply to which Mr. Davide maintained that there is an inconsistency between the provision on protection of Filipino entrepreneurs and the proposed amendment which encourages foreign investments.
Mr. Ople, however, noted that all foreign investments would be subject to the regulatory provisions of the Constitution, particularly the Article on National Economy and Patrimony.
REMARKS OF MRS. ROSARIO BRAID
Mrs. Rosario Braid pointed out that the first sentence of the original proposal of Mr. Ople which was deleted would encourage self-reliance within the Asian region and the formulation of preferential trade schemes among the developing countries for the development of local technology. She stated that without such provision, the legislature would be left responsible for proposing such generation and transfer of technology development.
In reply, Mr. Monsod explained that the Body had already approved a proposal that the trade policy should serve the general welfare and should utilize all forms and arrangements of exchange on the basis of equality and reciprocity.
He added that the Article has already included the concepts of multilateral arrangements, common market provisions, and suppliers and buyers getting together to improve terms of trade. He stated, however, that a provision on the formation of cartels would not be appropriate because it would invite retaliation.
Mrs. Rosario Braid, however, stated that even if it would not be constitutionalized, developing countries like the Philippines should work towards the transformation of an inequitable international trade system into an equitable one by generating appropriate technology and preferential trade policies in order to be independent of the international order which is tied up with inequality, to which Mr. Monsod agreed.
REMARKS OF MR. SARMIENTO
At this juncture, Mr. Sarmiento supported Mr. Davide's observation that Mr. Ople's proposal was unnecessary. He manifested his stand on foreign investments by quoting Claro M. Recto who said, "What we need are foreign loans, not foreign investments. Capital is always necessary in economic development. Other things being equal, the greater the capital, the larger the production and the faster the rate of economic growth . . ."
Mr. Sarmiento stressed that foreign loans at reasonable rates of interest would complement internal financing in the procurement of capital goods. He stated, however, that foreign investment would mean foreign ownership of business and profits.
He underscored that his opposition to direct foreign investments is not based on purely emotional nationalism but on the belief in industrialization by Filipino capitalists, if not simply the prevention of industrialization by foreign capitalists; the exploitation of the country's natural resources by Filipino capital; the development and strengthening of Filipino capitalism and not foreign capitalism; and in the increase in national income without being shared with non-Filipinos.
In reply, Mr. Ople stated that the statements of Claro M. Recto should be analyzed in the contemporary context. He opined that like other Latin American countries, the present economic crisis was brought about by dependence on foreign loans and not on foreign investments, which was a reverse policy of the miracle countries in Asia.
He pointed out that there are two ways of acquiring capital goods, namely, by bringing them in through foreign loans or foreign investments; and by fabricating local tools with local capital goods. He explained, however, that if the country is not capable of manufacturing local capital goods, it may seek the help of other countries.
He reiterated that the phrase "within the framework of this Article" would subject foreign investments to the regulatory provisions of the Article on National Economy and Patrimony.
REMARKS OF MS. AQUINO
Ms. Aquino took exception to Mr. Ople's statements, stating that the proposal could be interpreted as providing constitutional restraint for the influx of foreign investments on one hand, and a constitutional refuge for foreign investors on the other. She opined that small countries like the Philippines should not be protecting giant countries.
Mr. Ople pointed out that there is nothing in the proposal that could support such saturnine view of the statement on foreign investment because: 1) it will be for the interest of the country and necessary for the country's economic development; and 2) if foreign investments are allowed to come in, they will be subject to the entire range of constitutional controls that are explicitly set forth in the Article on National Economy and Patrimony.
At this juncture, Mr. Nolledo clarified that he merely suggested to the Committee the use of the phrase "within the framework of this Article" to save the provision from disaster without necessarily agreeing to it.
APPROVAL OF MR. OPLE'S AMENDMENT
Thereupon, the; proposed amendment was submitted to a vote and with 12 Members voting in favor, 10 against and 2 abstentions, the same was approved by the Body.
Mr. Davide made a reservation for a reconsideration of the amendment.
Mr. Sarmiento joined Mr. Davide's manifestation.
The Chair stated that even without the manifestation, the Rules allow a motion for reconsideration until the next day.
MR. MONSOD'S SUGGESTION
Thereafter, Mr. Monsod suggested that the Body reconsider the approval of the phrase "nor shall such franchise, certificate or authorization be exclusive in character or for a period of not longer than 25 years, renewable for not more than 25 years" which was proposed by Mr. Davide on Section 15. He pointed out that the purpose of the proposal is to align Section 15 with another section on natural resources. He stated that the Committee is requesting a review of the provision because the nature of a "public utility" is such that it has to be exclusive most of the time, otherwise, it would be too expensive for the country and for the consumers.
Mr. Davide explained that when he introduced the amendment, the idea was not to align it with the provision on the exploitation and utilization of natural resources. He pointed out that the provision he introduced existed under the 1935 and 1973 Constitutions and that he merely divided the 50 years maximum period provided for in both Constitutions by making it 25 years renewable for not more than 25 years. He stressed that there must be a limit to the certificates or franchises; they cannot be perpetual, otherwise, the Body would constitutionalize monopolies in favor of existing public utilities like the Manila Electric Company (MERALCO) and the Philippine Long Distance Telephone Company (PLDT).
Mr. Monsod opined that the purpose of the provision to limit the exploitation and utilization of natural resources is to harmonize it with the provision in the Corporation Code limiting the life-span of a corporation to 50 years. He stressed that there are some public utilities which are exclusive in character and are natural monopolies such as power and telephone companies which may need to exist for more than 50 years because the longer they exist, the more stockholders they attract. He suggested that perhaps the Body could add the phrase "for a period as may be determined by law" so that there would be recognition of the different types of enterprises that engage in public utilities.
In reply to the Chair's query whether a motion for reconsideration would be filed, Mr. Monsod answered in the affirmative.
Mr. Davide made a reservation to object to such motion if filed.
On Mr. Guingona's query whether under the Rules the Committee is allowed to ask for reconsideration since the motion must be made only by a Member who voted in favor of the provision, Mr. Monsod stated that all the Members of the Committee voted for the provision but because of the confused stage of the previous deliberations, it was not subjected to a full debate.
Mr. Monsod suggested that the motion be taken up in the afternoon deliberation.
SUSPENSION OF SESSION
On motion of Mr. Jamir, the Chair suspended the session until two-thirty in the afternoon.
It was 12:39 p.m.
RESUMPTION OF SESSION
At 2:54 p.m., the session was resumed.
MR. DE LOS REYES' MOTION FOR RECONSIDERATION
OF MR. OPLE'S AMENDMENT
Upon resumption of session, Mr. de los Reyes, who voted in favor of Mr. Ople's amendment on foreign investments, moved for reconsideration of its approval.
Mr. Ople, in support of the motion for reconsideration, stated that he came to the conclusion that the new section he introduced, as presently worded, might be susceptible to misinterpretation.
INQUIRY OF MR. DE CASTRO
On the query of Mr. de Castro, Mr. Ople informed that he is withdrawing his amendment, the sense of which is already expressed in other provisions of the Article on National Economy and Patrimony.
As to whether he was aware of this fact at the outset, Mr. Ople admitted that in a vague sense, he was aware that the sense of his amendment was reflected in Sections 1, 9 and 15 of the Article. He then adverted to the original formulation submitted to the Committee, to wit: "In the international field, the State shall help national industries attain access to technology, market and finance. Foreign investments may be welcomed to supplement the primary role of domestic resources and initiative and within the framework of this Article". As approved by the Body, the amendment reads: "Foreign investment may be encouraged within the framework of Article 15 of this Constitution." He stated that after consultation with Members who voted for the amendment, he had come to the conclusion that it would be better to leave it out than make an explicit provision in the Article.
Mr. Ople affirmed that he had fully studied his proposal before introducing it on the floor, noting, however, that Mr. de Castro's question was loaded with innuendo which he could not accept.
Mr. de Castro, in response thereto, stated that he voted for the amendment and he wanted an explanation from the proponent why he would withdraw it.
SUSPENSION OF SESSION
At this juncture, the Chair suspended the session.
It was 3:01 p.m.
RESUMPTION OF SESSION
At 3:03 p.m., the session was resumed.
APPROVAL OF MOTION
The Chair submitted the motion to a vote, and there being no objection, the motion for reconsideration was approved by the Body.
WITHDRAWAL OF MR. OPLE'S AMENDMENT
On motion of Mr. de los Reyes, there being no objection, the Body approved the withdrawal of Mr. Ople's amendment.
REMARKS OF MR. MAAMBONG
Mr. Maambong stated that when Mr. de los Reyes moved for reconsideration, he mentioned that there are four Opposition Members of the Commission. He clarified that although they were appointed from a list of the Opposition Party, as far as the Constitutional Commission is concerned, they are not Opposition Members.
AMENDMENT TO SECTION 15
Mr. Monsod called attention to the fact that prior to the noon break, the Body was discussing Section 15, specifically the phrase "nor shall such franchise, certificate or authorization be exclusive in character or for a period of not longer than twenty-five years renewable for not more than twenty-five years". He stated that consultations with lawyer-Members and the proponent, Mr. Davide, on the jurisprudence of the specific section, had resulted in a compromise on how to clarify the meaning of the phrase. He then requested Mr. Davide to explain the jurisprudence of the phrase so as to resolve the issue.
REMARKS OF MR. DAVIDE
Mr. Davide explained that the provision on which the particular Section is based is Section 6 of Article XIV of the 1973 Constitution which sets the limit at not more than 50 years. He noted that he had no objection to a modification of this clause by incorporating the language of the 1935 or 1973 Constitution which would read: "nor shall such franchise, certificate or authority be exclusive in character or for a period longer than fifty years". He added that insofar as jurisprudence is concerned, there is a wealth of jurisprudence on the provisions of the 1935 and 1973 Constitutions.
Mr. Monsod informed that the Committee agrees with the position of Mr. Davide with respect to the issue relative to the words "exclusive in character" and with respect to the term of the franchise as stated in the 1973 Constitution. He added that the Committee would be agreeable to revert to the language of the 1973 Constitution which would resolve questions or issues on this matter.
INQUIRY OF MR. SARMIENTO
On Mr. Sarmiento's query relative to the limit of the original proposal, Mr. Davide clarified that it would be limited to 25 years but renewable for a period not longer than another 25 years or a total of fifty years.
On whether the amendment is not different from the original proposal, Mr. Davide stated that the only difference is that the original "franchise, certificate or authority" must be for 25 years but there is an option to have it renewed for another 25 years. He added that under the proposal, the Body would follow the jurisprudence in the interpretation of the 1935 and 1973 Constitutional provisions.
Mr. Davide further explained that the reason for adopting the new formulation is the settled jurisprudence on the matter and that in the operation of public utilities, the original period of 25 years may not be sufficient. He stressed that the franchise, certificate or authority would not be exclusive in character and would also be subject to the condition that it could be repealed, amended or modified.
With reference to the phrase "not exclusive in character", Mr. Davide explained that it simply means that there is no monopoly granted to any franchise holder to operate the public utility.
MOTION FOR RECONSIDERATION OF SECTION 15
Thereafter, on motion of Mr. Monsod, there being no objection, the motion for reconsideration of Section 15 was approved by the Body.
AMENDMENT TO SECTION 15
Mr. Monsod, on behalf of the Committee, proposed that the phrase "for a period of not longer than twenty-five years, renewable for not more than twenty-five years" be deleted and in lieu thereof, insert the phrase FOR A PERIOD NOT LONGER THAN FIFTY YEARS as provided for in the 1973 Constitution. As amended, the sentence would read:
NO FRANCHISE, CERTIFICATE OR ANY OTHER FORM OF AUTHORIZATION FOR THE OPERATION OF A PUBLIC UTILITY SHALL BE GRANTED EXCEPT TO CITIZENS OF THE PHILIPPINES, OR TO CORPORATIONS OR ASSOCIATIONS ORGANIZED UNDER THE LAWS OF THE PHILIPPINES AT LEAST SIXTY PERCENT OF WHOSE CAPITAL IS OWNED BY SUCH CITIZENS, NOR SHALL SUCH FRANCHISE CERTIFICATE OR AUTHORIZATION BE EXCLUSIVE IN CHARACTER OR FOR A PERIOD NOT LONGER THAN FIFTY YEARS.At this juncture, Mr. Regalado pointed out that there is a double negative in the amendment, which Mr. Monsod acknowledged and Mr. Maambong read the precise phrase of Section 5 of Article 14 of the 1973 Constitution, to wit: NOR SHALL SUCH FRANCHISE, CERTIFICATE OR AUTHORIZATION BE EXCLUSIVE IN CHARACTER OR FOR A LONGER PERIOD THAN FIFTY YEARS.
Mrs. Rosario Braid called attention to the last phrase of Section 15, in response to which Mr. Monsod assured her that it is still there and the Body was just amending the phrase to be voted upon.
Submitted to a vote, and with 22 Members voting in favor and 4 against, the amendment was approved by the Body.
MOTION FOR RECONSIDERATION OF SECTION 10
Mr. Monsod, on behalf of the Committee, informed the Body that he was seeking reconsideration of Section 10, relative to the Monetary Board, to wit: THEY SHALL BE SUBJECT TO THE SAME DISABILITIES AND DISQUALIFICATIONS AS MEMBERS OF THE CONSTITUTIONAL COMMISSIONS. He stated that since the amendment was passed, the Committee had realized that the disabilities and disqualifications of the Members of the Constitutional Commissions refer to people who are full-time employees or Members of the Commission and under such restrictions these officials cannot occupy any other elective or appointive office. In the case of the Monetary Board, the members from the private sector serve parttime while the ex officio members occupy other appointive offices in the government. He stated that there might be an inconsistency, so that Congress should determine the qualifications and disqualifications of the Members of the Monetary Board.
Thereupon, he requested for a reconsideration of the approval of Section 10 so that the last sentence could be deleted.
In reply to the query of Mr. de Castro, Mr. Monsod stated that this is the last Section on which the Committee would seek reconsideration but the members may have other Sections for reconsideration.
Submitted to a vote, and there being no objection, the Body approved the reconsideration of Section 10.
PROPOSED COMMITTEE AMENDMENT
TO SECTION 10
Mr. Monsod, on behalf of the Committee, proposed on Section 10, the deletion of the sentence, to wit: "They shall be subject to the same disabilities and disqualifications as Members of the Constitutional Commissions".
He explained that the Section will read exactly the same except for the deletion of said sentence.
MR. DAVIDE'S AMENDMENT TO THE AMENDMENT
As proponent of the amendment which is sought to be deleted, Mr. Davide proposed, in lieu thereof, the following: THEY SHALL ALSO BE SUBJECT TO SUCH OTHER QUALIFICATIONS AND DISABILITIES AS MAY BE PRESCRIBED BY LAW.
The Committee accepted the amendment.
INQUIRY OF MR. FOZ
In view of the amendment of Mr. Davide, Mr. Foz inquired whether this set of other qualifications and disabilities would apply to both the regular members as well as members from the private sector, to which Mr. Monsod replied that this will be left to Congress to decide.
With regard to the status of the Monetary Board, specifically whether it can be considered as a body higher than or equal to a Constitutional Commission like the Commission on Elections, Mr. Monsod stated that it is not the same, inasmuch as the provision directs Congress to organize and establish the Monetary Board.
On whether it shall be under the Office of the President, Mr. Monsod observed that even under the present law, the Monetary Board is an independent body.
Mr. Monsod also stated that the Board does not have the same status as the Commission on Elections and that one of the issues which may arise if the provision is retained is the manner of removing the Members thereof, inasmuch as impeachment is the only way of removing officers enumerated in the Constitution by virtue of the Regalado amendment.
Mr. Foz observed that if the Monetary Board would enjoy the same ranking and status as a constitutional body, its members would be subject to the same disqualifications and disabilities as members of the Constitutional Commissions.
Submitted to a vote, and with 21 Members voting in favor and none against, the amendment was approved by the Body.
APPROVAL OF SECTION 10, AS AMENDED
The Chair submitted Section 10, as amended, to a vote, and there being no objection, the same was approved by the Body.
MANIFESTATION OF MR. MONSOD
At this juncture, Mr. Monsod manifested one more amendment for consideration. However, he requested for its deferment in view of the absence of most of its proponents.
In reply to Mr. de Castro's query, Mr. Monsod enumerated Messrs. Sarmiento, Bennagen, Villacorta, Mrs. Quesada, Messrs. Tadeo, Garcia, Gascon, Ms. Tan, Mr. Suarez and Ms. Aquino as the proponents.
SUSPENSION OF SESSION
On motion of Mr. Monsod, the session was suspended.
It was 3:27 p.m.
RESUMPTION OF SESSION
At 3:31 p.m., the session was resumed.
Upon resumption of session, Mr. Monsod informed the Body that the proponents present were withdrawing the amendment.
However, he moved that the period of amendments on the Article on National Economy and Patrimony be left open until morning of the next session.
In reply to Mr. Ople's query on whether the Committee would still receive amendments the following day, Mr. Monsod stated that it would consider only the amendment to be presented by Mr. Garcia.
On Mr. Ople's observation that restricting the amendments to certain Commissioners could raise the issue of discrimination against the others, Mr. Monsod stated that there were no amendments on board and that Mr. Garcia's amendment would be presented pursuant to a reservation. Mr. Ople noted that, although he had no further amendments, he was thinking of other Members who in the meanwhile would be able to think and consider new proposals which should not be prejudiced by the motion.
Thereafter, in reply to Mr. Colayco's query, Mr. Monsod affirmed that the deadline would be until noon of the next day.
APPROVAL OF SECTION 15
On motion of Mr. Rama, the Chair submitted Section 15 to a vote and with 21 Members voting in favor, 3 against and 1 abstention, the same was approved by the Body.
PARLIAMENTARY INQUIRY OF MR. DAVIDE
In reply to Mr. Davide's query on the status of Committee Report No. 32, Mr. Villegas stated that it was part of the interpellations and amendments. He pointed out, however, that the Committee had not received any amendment on the Section proposed therein but should any Member have an amendment thereon, the same could be taken up the following day.
Thereupon, Mr. Davide registered a reservation to present an amendment the following day.
INQUIRY OF MR. MAAMBONG
In reply to Mr. Maambong's query, Mr. Villegas affirmed that in the event Section 1 of Committee Report .No. 32 is approved, it would be assigned a number with the rest of the Article.
SUSPENSION OF CONSIDERATION OF THE ARTICLE ON NATIONAL ECONOMY AND PATRIMONY
Thereafter, on motion of Mr. Rama, there being no objection, the Body suspended consideration of the Article on National Economy and Patrimony until the next session.
MOTION TO VOTE ON THIRD READING ON THE
ARTICLE ON THE EXECUTIVE
Mr. Bengzon moved that the Body approve, on Third Reading, the Article on the Executive.
At this juncture, Mr. de Castro invited attention to page 2; paragraph 4 thereof, to wit:
"The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the members of the Congress."Mr. de Castro stated that upon verification of the transcript of August 6, 1986, he found from the answer of Mr. Regalado that the joint session of Congress would vote separately and not the majority vote of all the Members.
Reacting thereto, Mr. Regalado stated that when the matter was brought to his attention by Mr. de Castro, he checked the portion and found the disappearance of the word "not". He then stated that the Journals had been correspondingly corrected and that the situation should really be that both Chambers of Congress vote jointly. He pointed out only one instance when the two chambers should vote separately, that is, on the matter of disability of the President and the determination thereof.
Thereupon, Mr. de Castro requested that the Secretary-General produce the transcript of August 6, 1986 before the Body vote on the Article.
The Chair opined that with the adoption of the proposal for a bicameral Congress, whenever voting of Congress is mentioned, it is deemed to be voting separately.
The Chair ruled that voting on Third Reading on the Article on the Executive would be deferred.
The Chair then recognized Mr. Monsod for some manifestation.
REMARKS OF MR. MONSOD
Mr. Monsod stated that in any assembly like the Commission, debates sometimes end up in unintended results like what happened in the previous session. He pointed out, however, that after much reflection over the weekend, he was of the opinion that when communications break down, some shortcomings materialize. He then acknowledged that he had committed his share of impatience in the heat of the debate, but he gave the assurance that the friendship he had developed with his colleagues who were not present was not diminished by their disagreements on some issues. He recalled that they had voted together several times and had disagreed at other times, but the sponsorship on the Article on Social Justice was the most memorable because it reminded him of the things they had in common, particularly their aspirations and love of country.
Addressing his colleagues who were absent, he stated that their expertise and ideas are needed to enrich the Commission's collective effort and that there was a reservoir of goodwill and respect for them in the Commission. He stated that, although there are other issues they could not agree on, he was joining Mr. Calderon's appeal for them to return and that he was looking forward to working with them again.
Finally, Mr. Monsod urged "we are trying to help bind the wounds of a nation with this Constitution. Let us start with ourselves in this Commission".
REMARKS OF MR. ROMULO
Mr. Romulo stated that in a deliberative body like this Commission, particularly one whose membership represents a wide spectrum of political, social and economic opinions and beliefs, there is bound to be a clash of ideas which, at times, could become heated. He stated that the previous session was one of those days.
He pointed out that such occasions should not prevent a continued exchange of ideas among the Members of the Commission, granting each other's good faith and sincerity in the espousal of varied views which each believes is for the national welfare.
He expressed the hope that the absence of some of their colleagues would only be temporary, not only for the sake of unity, but also in the interest of providing balance in the deliberations and input of ideas, in view of which, he would welcome their return.
REMARKS OF MR. TINGSON
Mr. Tingson stated that he did not wish to waste a single minute of the Commission considering that its deadline was fast approaching. He pointed out, however, that the sacred work, on behalf of the people, could not brook interference by reasons of personal differences but rather, it should be accepted that in a democratic assembly, there would always be healthy differences of opinion. He agreed that members of any assembly could disagree, but they do not have to be disagreeable by stubbornly imposing their will upon others who may be just as honest, well-meaning and patriotic. He said that in the words of Mr. Uka, "when we impose our will on others, it will no longer be democracy, but democrazy".
Mr. Tingson then quoted from the Scriptures some apt words of wisdom, to wit:
"If you are angry, don't sin by nursing your anger. Don't let the sun go down with you still angry. Get over it quickly, for when you are angry, you give a mighty foothold to the devil. Stop being mean, bad tempered and angry. Quarrelling, harsh words and dislike of others should have no place in your lives. Instead, be kind to each other, tender-hearted, forgiving one another, just as God has forgiven you."He likewise quoted the words of St. Paul on the greatest virtue of love, which covered a multitude of mistakes and sins, to wit:
"Love is patient, love is kind, love does not envy, it does not boast. Love is not proud, nor is it rude. It is not self-seeking, it is not easily angered and it keeps no record of wrongdoing on the part of others. Love does not delight in evil, but rejoices with the truth. Love always protects, always trusts, always hopes, always perseveres. And now, these three remain: Faith, hope and love, but the greatest of these is love."REMARKS OF MR. BACANI
Mr. Bacani stated that in a deliberative body such as the Commission which represents so many interests, it is almost inevitable that crisis should occur, and because a severe crisis had come upon the Commission, the Members thereof were given the great opportunity to demonstrate that healing and reconciliation are possible in the midst of crisis. He stated that, without pointing any accusing finger on anybody, it would be best for the Members to each examine themselves and ask what they had failed to do that brought about the moment of crisis.
He observed that, aside from the conflict of ideas, there is an undeniable fact that many of the Members are tired at a late time of the day. He suggested that, in order to reduce the tension and move towards reconciliation, the Members should reconsider their hours of work in the Commission because it is possible that the physical aspect of the proceedings might be taking its psychological toll.
REITERATION OF THE MOTION TO APPROVE ON THIRD READING ON THE ARTICLE ON THE EXECUTIVE
Thereafter, Mr. Rama reiterated his motion to approve, on Third Reading, the Article on the Executive.
At this juncture, Mr. de los Reyes inquired whether the second sentence of Section 17 had already been transposed to the Article on Local Governments. He observed that his engrossed copy still contained said sentence.
Responding thereto, Mr. Regalado, as Vice-Chairman of the Committee, stated that the change eliminating the second sentence took place when he was in the hospital and that upon his return, he found a statement in the Journal on the agreement that said sentence on the supervision over local governments was to be transposed to the Article on Local Governments.
Mr. Davide recalled, however, that it was not the entire second sentence that should be transposed to the Article on Local Governments but only the portion with respect to the general supervision so that the clause “and shall take care that all laws shall be executed” shall remain in the Article on the Executive.
Mr. de Castro then quoted the entire Section 17, to wit:
"The President shall have control of all the executive departments, bureaus and offices. He shall exercise general supervision over all local governments as may be provided by law and shall take care that the laws be faithfully executed."Mr. de Castro pointed out that the clause "He shall exercise general supervision over all local governments as may be provided by law" had been deleted and what remained was the clause "The President shall have control of all the executive departments, bureaus, and offices and shall take care that the laws be faithfully executed".
The Chair stated that Mr. de Castro was correct in that only the last sentence regarding supervision over local governments would be transposed to the Article on Local Governments with the rest of the section remaining in the Article on the Executive.
Thereupon, Mr. Maambong restated the provision of Section 17, to wit:
"The President shall have control of all the executive departments, bureaus and offices, and he shall take care that the laws be faithfully executed."Mr. Regalado stated that he would interpose no objection on the understanding that that was approved by the Commission.
INQUIRY OF MR. DE CASTRO
Mr. de Castro reiterated his query on the majority vote by Congress.
Mr. Regalado recalled that when Mr. de Castro raised the matter during the consideration of the Article on the Executive. the latter pointed out that the practice in Congress was always for the two Houses to vote separately, but the Committee on the Executive stated that under the provisions of the Article, Congress would be voting jointly in order to avoid a deadlock when, for instance, the Lower House votes for A while the Senate votes for B. He also pointed out that according to the transcript of records, the Commission eventually approved that in all procedures, Congress shall be voting jointly except on the matter of disability of the President wherein they shall be voting separately as provided for in Section 11 thereof.
SUSPENSION OF SESSION
At this juncture, the Chair suspended the session.
It was 3:57 p.m.
RESUMPTION OF SESSION
At 4:11 p.m., the session was resumed.
DEFERMENT OF VOTING ON THIRD READING OF
THE ARTICLE ON THE EXECUTIVE
Considering that the question of Mr. de Castro had not yet been resolved, on motion of Mr. Rama, there being no objection, the Body approved the deferment of voting, on Third Reading, on the Article on the Executive.
DEFERMENT OF CONSIDERATION ON SECOND READING OF THE ARTICLE ON HUMAN RESOURCES
Mr. Rama manifested that the Body had scheduled the consideration of the Article on Human Resources after the consideration of the Article on National Economy and Patrimony in the day's session.
However, considering the absence of Mr. Villacorta, Chairman of the Committee on Human Resources, on motion of Mr. Rama, there being no objection, the Body approved the deferment of the consideration, on Second Reading, of the Article on Human Resources until the following day.
DEFERMENT OF VOTING ON THIRD READING OF
THE ARTICLE ON SOCIAL JUSTICE
Likewise, Mr. Bengzon stated that the voting on Third Reading on the Article on Social Justice was scheduled in the day's session.
However, upon request of Mrs. Nieva, the Chairman of the Committee on Social Justice, and on motion of Mr. Bengzon, there being no objection, the voting on Third Reading on the Article on Social Justice was deferred until Wednesday, August 27, 1986.
INQUIRY OF MR. FOZ
In reply to Mr. Foz' query as to when the report of the Committee on Constitutional Commissions on the proposed Commission on Human Rights would be scheduled for consideration on Second Reading, Mr. Bengzon stated that the Body would first finish the consideration of all Articles that had been originally scheduled, and thereafter, consider the additional reports.
Mr. Bengzon informed that, as scheduled, the Body would take up the Article on Human Resources together with the Articles on Family Rights and Education, to be followed by the Article on Declaration of Principles, the General Provisions, the Transitory Provisions and, finally, the additional reports.
On Mr. Guingona's point of information that the Article on Family Rights would be reported out by the Committee on Social Justice, Mr. Bengzon clarified that the agreement was that it would be reported out by the Committee on Human Resources.
Mr. Bacani manifested that it was agreed in the previous caucus that the Article on Family Rights would be considered after the Article on the Declaration of Principles, because the provision regarding the "unborn" in the latter Article would be less controversial than the provision in the Article on Family Rights, to which Mr. Bengzon replied that the Steering Committee was made to understand that the Article on Family Rights, which was originally under the Article on Social Justice, would be considered together with the Article on Human Resources.
In this connection; Mr. Regalado pointed out that precisely the subject of his parliamentary inquiry was as to which Committee would report the Article on Family Rights, in reply to which Mr. Bengzon reiterated that after the Article on Human Resources, the Chairman of the Committee on Social Justice will present a separate Article on Family Rights.
At this juncture, the Chair suggested that the Chairmen of the Committees concerned confer with each other to resolve the matter.
ADJOURNMENT OF SESSION
Thereafter, on motion of Mr. Rama, there being no objection, the Chair declared the session adjourned until nine-thirty in the morning of the following day.
It was 4:20 p.m.
I hereby certify to the correctness of the foregoing.
Secretary-General
ATTESTED:
President
Approved on August 26, 1986