2nd Public Hearing

Committee on Constitutional Amendments and Revision of Codes

Subcommittee on Resolution of Both Houses No. 6

Subcommittee Chairperson: Sen. Sonny Angara

12 February 2024, Monday, 10:00 AM, Session Hall, Senate

Re: Proposed Amendments to the Restrictive Economic Provisions of the

Constitution

• Resolution of Both Houses No. 6¾Sens. Juan Miguel “Migz” F. Zubiri,

Loren Legarda, and Sonny Angara

Background

• The Subcommittee on RBH 6, which seeks to amend the economic provisions of

the 1987 Constitution, particularly Articles XII, XIV, and XVI thereof,
commenced its 1st public hearing on Monday, February 5, 2024, with the
presence of some of the country’s finest legal luminaries, economists, and other
stakeholders.

• The Committee discussed the foundational issues surrounding the proposal to

amend/revise the 1987 Constitution to liberalize its restrictive economic
provisions.

Highlights of the Issues Raised During the First Public Hearing

• Necessity of Amending the Constitution: The invited resource persons stated the
following positions:

Þ Former Chief Justice Hilario G. Davide stated that there are no valid, serious,
and compelling reasons to amend the 1987 Constitution because all that is
needed is to fully implement its principles and state policies, which
Congress has so far failed to do.1 He warned the Committee that
amendments to, or revision of, the Constitution at this time would be a
“lethal experiment.”2

1 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,
2024, p. 30
2 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,

2024, p. 35

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 Þ Retired Justice Adolf S. Azcuna said he favors removing some, if not all, of
the restrictive economic provisions in the Constitution, which, he believed,
should be through ordinary legislation, not in the Constitution.3 To him,
restrictions should be made flexible to meet the changing times in the
economy and should be in legislative form, not in a hard-to-change
constitutional provision.4

Þ According to Atty. Christian Monsod, framer of the 1987 Constitution, RBH

No. 6 would only open the door wider to corruption. He maintained that
there was nothing special about the amendments that would address the
so-called problem of restrictions against foreign direct investment.5

Þ Retired Justice Vicente V. Mendoza contends that RBH No. 6 would weaken
the fundamental principles and policies outlined in Article II of the
Constitution, which sets forth the Republic's aims and goals.6 He argues
that the resolution also overlooks the fundamental principle that any
constitutional amendments must adhere to the provisions specified, rather
than being made solely by Congress acting as a legislative body.7

Þ Dr. Gerardo Sicat expressed support for the proposal to amend the
Constitution. According to him, the restrictive economic provisions of the
Constitution have hampered the country’s progress as it failed to invite or
bring in foreign capital, which is critical for a country lacking sufficient
savings to generate a high level of development.8

Þ Similarly, former Finance Chief Margarito Teves of the Foundation for

Economic Freedom, who has been advocating for the lifting of the restrictive
economic provisions in the 1987 Constitution, believes that the removal of
the said provisions would send a clear and compelling message to foreign
investors, signaling a warm welcome to their investments and business
operations in the Philippines.9

Þ Conversely, Mr. Sonny Africa of the IBON Foundation, after presenting the
state of affairs of the Philippines vis-à-vis its neighbors, opined that
economic Cha-cha is unnecessary and diversionary as it distracts the
country from the more basic changes it needs.10

• Manner of Amending the Constitution:

Þ Retired Justice Adolf S. Azcuna posited that amendments to, or revision of,
the Constitution may be done through the following modes: a Constituent
Assembly where Congress, by a vote of three-fourths of all its members, may
propose amendments to, or revisions of, the Constitution; Constitutional
Convention, which requires two-thirds votes of all its members; or People’s
3
Ibid., p. 40
4
Ibid., p. 40
5
Ibid., p. 49
6
Ibid., p. 55-56
7
Ibid., p. 56
8
Ibid., p. 61
9
Ibid., p. 73
10
Ibid., pp. 78-79

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 Initiative which requires the signature of 12% of the entire electorate
represented by three percent for every district.11

Þ Former Chief Justice Hilario Davide maintained, however, that there are two
ways for Congress to propose amendments to the Constitution:1) in a joint
session, voting separately; 2) in ordinary legislation with one body
submitting a proposal for amendment to a Constitution and approving the
same by three-fourths votes.12

• Whether or Not to Meet Jointly as a Constituent Assembly:

Þ Retired Justice Adolf S. Azcuna maintained that both Houses of Congress

need not meet jointly since neither a joint session nor a joint voting is
required by the Constitution. It is up to Congress whether it should meet
together in a joint session or separately.13 Responding to Senator
Gatchalian’s inquiry, the retired Justice further clarified his position by
citing Father Bernas’ interpretation that there is no need for both Houses
to meet physically, provided, that, it is very clear that the two Houses are
acting not to make a law but to propose amendments to the Constitution.14

• Voting Requirement:

Þ Retired Justice Vicente V. Mendoza argued that amending the Constitution

is not a work of Congress but a non-legislative function, and that it is just
as important as the declaration of war or a state of war, which requires
Congress to meet jointly as one assembly and vote separately.15

• Comments on RBH 6:

Þ Retired Justice Adolf S. Azcuna recommended the following:

o The phrase "Be it enacted" in the enacting clause of RBH No. 6 should
be replaced with "Be it resolved." This change is necessary because
lawmakers are not introducing a bill or passing a law, but rather
amending the Constitution [which is a non-legislative function]. This
change also serves as a signal to the people that the body is operating
as a Constituent Assembly.16

o To strategically place the phrase “unless otherwise provided by law” so

as not to alter the basic principles of protecting the Filipinos but only
the percentages.17

11 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,
2024, p. 40-41
12 Ibid., p. 192
13 Ibid., p. 41
14 Ibid., p. 215-216
15 Ibid., p. 134
16 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,

2024, p. 42
17 Ibid., p. 42

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 o Not to use the word “basic” and let Congress decide what kind of
education should be open to foreign investment.18 By adding the word
“basic,” the proponents acted as if they were revising the Constitution
by changing it, and that it was already doing what Congress should do
later.19

Þ Retired Justice Vicente V. Mendoza explained that if RBH No. 6 is approved,

it would mean permitting the amendment of the Constitution by a method
other than ordinary means of legislation.20 He also claimed that RBH No. 6
sounds more like an amendment to give Congress the power to amend the
Constitution rather than an amendment of economic provisions since the
emphasis is more on the power of Congress to change what has been
declared as fundamental principles in the Constitution.21

Þ Former Chief Justice Hilario G. Davide observed that RBH No. 6 is unclear
whether it is calling for a Constitutional Assembly or simply trying to pass
ordinary legislation by a three-fourths vote.22

• Other Issues/Questions Raised: During the discussion, a range of concerns and

inquiries were raised by senators for the resource persons to clarify, covering
procedural, legal, and substantive aspects of constitutional amendment that
may be further discussed and addressed. Some of these concerns are, as follows:

Þ Minority Floor Leader Aquilino “Koko” Pimentel III raised a point of order
regarding the procedural status of the Subcommittee, questioning whether
it operates under the Senate's legislative function or as part of Congress
acting in its capacity as a Constituent Assembly. In response, Senate
President Juan Miguel Zubiri stated that the Minority Floor Leader's
concern would be addressed by the Committee on Rules, which will
establish specific procedures and rules in due course. The Senate President
explained that once the committee concludes its discussions and finalizes
its report, the Senate can proceed to convene as an assembly. At that point,
the rules formulated by the Committee on Rules would be adopted in the
Senate plenary.

Þ Sen. Francis Escudero stated that there is good reason to proceed

cautiously because all of these proceedings might be for naught, noting that
the debates in all of the laws passed form part of the intent of Congress.23

Þ President Pro Tempore Senator Loren Legarda asked about the effect of the
insertion of the clause “unless [otherwise] provided by law.”24 Additionally,
she asked for the experts' comments on RBH No. 6.25 She also asked
whether the proposed amendments are consistent with the national
economy and patrimony provisions of the Constitution.26 Justice Mendoza,

18 Ibid., p. 43
19 Ibid., p. 126
20 Ibid., p. 59
21 Ibid., p. 152
22 Ibid., p. 123
23 Ibid., p. 140
24 Ibid., p. 121
25 Ibid., pp. 122-123
26 Ibid., p. 149

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 in response, highlighted the perceived emphasis on granting Congress the
authority to alter fundamental constitutional principles. He expressed
concern about the potential contradiction arising from simultaneously
declaring in Article XII, Section 19 the necessity of a Filipino-controlled
national economy while considering amendments to Articles XII, XIV, and
XVI that could potentially allow foreign involvement and diminish Filipino
control. In essence, he cautioned against a Constitution that contains
inherent contradictions, as this could undermine its coherence and
integrity.

Þ Sen. Nancy Binay asked whether the Senate and House of Representatives
should simultaneously convene as an assembly.27 In response, Justice
Mendoza stated that in two decisions of the Supreme Court—Tolentino
versus Comelec, Gonzales versus Comelec— the Supreme Court said:
“When they (Congress) act as an assembly, they do not act with any
distinction whether they are senators or congressmen; they act as one
assembly, members of a constituent assembly.”28

Þ Deputy Minority Leader Risa Hontiveros raised a point of order, which she
later on withdrew, on what she believed was a prejudicial question that
might have been raised by Justice Mendoza.29 The Senator then asked
whether a Constituent Assembly would open the entire 1987 Constitution
for review or amendment and whether no provision is safe.30 She also
inquired about the need for charter change in relation to foreign direct
investments.31. Lastly, she asked whether there is an assurance that local
or foreign capital will come in despite the presence of giant players in the
telecommunications sector and Congress’ inaction to allow other players
who could offer better services at a cheaper rate.32

Þ Majority Leader Joel Villanueva raised concern over which should come first
–removing the restrictions in the Constitution or addressing other issues
deterring foreign investments.33 He further asked whether the Senate could
enter its function as a Constituent Assembly once the
Subcommittee/Mother Committee already has the committee report; what
steps should be taken next for the senators to formally assume the function
as members of the Constituent Assembly and not merely as legislators;
and, if there is a need to have another joint resolution.34

Þ Subcommittee Chairperson Senator Sonny Angara asked whether a Zoom

meeting would fall within the contemplation of the Constitution.35 He also
inquired about the possibility of the US constitutional experience or

27 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,
2024, p. 131
28 Ibid., p. 135
29 Ibid., p. 137
30 Ibid., pp. 195-196
31 Ibid., p. 203
32 Ibid., p. 208
33 Ibid., pp. 164-165
34 Ibid., pp. 158-159
35 Ibid., p. 194

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 jurisprudence having any effect on their interpretation of laws and
Constitution.36

Þ Sen Win Gatchalian asked which of the two methods of amending the
Constitution was the best way to move forward37 and whether the
Constituent Assembly may be limited by the committee report submitted to
the plenary.38 He also inquired whether additional amendments to the
economic provisions, such as land ownership, natural resources, and
ownership of economic resources, could be included once the Lower House
also convenes into a Constituent Assembly.39 Lastly, the Senator asked
about the reason in the past to limit the sectors now subject of RBH No. 6.40

Þ Senator Grace Poe sought the experts’ views on the Public Service Act.41

Possible Points for Discussion

1. Continuation of the discussion on the possible consequences of amending the

economic provisions of the Constitution, particularly on public utilities:
- Potential disruptions in service provision, infrastructure development, and
regulatory oversight
- Impacts on competition, consumer welfare, and national security concerns

2. Effects of restricting foreign ownership in public utilities (electricity, water,

petroleum):
- Implications for technology transfer, capital infusion, and efficiency
improvements
- Risks related to monopolistic tendencies, price stability, and long-term
infrastructure sustainability

3. List of industries covered by the limitation:

- Clarification of sectors such as energy, telecommunications, transportation,
and natural resources extraction

4. Rationale of amending the economic provisions, including the possibility of

attracting more foreign direct investments to public utilities:
- Enhancing competitiveness, modernizing infrastructure, and fostering
economic growth
- International best practices, potential job creation, and the role of private
sector participation in development

5. Impact of increasing foreign ownership of public utilities on the economy:

- Effects on revenue generation, technology diffusion, and service quality
- Repercussions on national sovereignty, regulatory frameworks, and socio-
economic disparities

36 Ibid., p. 224
37 Ibid., p. 213
38 Paraphrased from the TSN of the Public Hearing of the Subcommittee on RBH No. 6, February 5,

2024, p. 217
39 Ibid., p. 219
40 Ibid., pp. 220-221
41 Ibid., p. 236

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