Many of our legislators up to now cannot distinguish industries engaged in public utility and from those engaged in public service. If they cannot differentiate what the two strand for, then they have no business styling themselves as legislators who should always act in the interest of the people.
Many were astonished, including those supporting the Duterte administration, on why there is a need to amend Commonwealth Act No. 146 or the Public Service Law approved on November 7, 1936. This law has been incorporated in Section 11, Article II of the 1987 Constitution, which means they cannot introduce any law that would alter the substance of the constitution. To quote Section 11, Article II of the Constitution:
“Sec. 11. No franchise, certificate or any form of authorization for the operation of 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 per centum of whose capital is owned by such citizens, nor such franchise, certificate or authorization be exclusive in character or for a longer period than fifty years. Neither shall such any franchise or right be granted except under the condition that it shall be subject to amendment, alteration or repeal by Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in the capital, and all the exertive and managing officers of such corporations or association must be citizens of the Philippines.”
Most revealing, the proponents representing the neoliberal ideology did not take into account that granting foreign corporations or associations franchise to operate public utility, they set aside the nationality principle that the majority of the stockholders should be Filipino citizens; can operate public utilities, and must state the citizenship of those who serve as officers or are managing said corporation.
Our legislators have equated the term “public service” to “public utility.” Though both use the word “public,” the difference is that in one industry referred to as “utility” means the need by the people. It is something indispensable and necessary, while the other refers to the use or convenience to the people. It is in the application of public service which gives the grantor the liberality to grant toll and service fees, etc. to compensate for their services and capital requirement.
H.B. No. 78 was certified as urgent by President Duterte yet it simply stated the following as public services being treated as “non-rivalrous or imbued with public interest.” These are: Marine repair shop; Wharf or docks; Canal; Public market; Irrigation system; Gas; Electric light; Heat and power; Water supply and power; Petroleum; Sewerage system; Telecommunication system; and Wire and wireless telecommunication system. Non-rivalrous means no competitor is allowed but just the same they are imbued with public interest if looked upon on the basis of importance to our people.
Note that the authors of the bill could not distinguish the difference between public utility from public service. Public utility industries are referred to as God-given and intended to be owned for the common good or res communes. They are essential to the survival of humanity and to the continuity of civilization. Examples are water and air, and industries residually created for their purpose. This is the reason why President Duterte was fuming mad after knowing how the private operators of our water supply manipulated to create shortages to justify the jacking up of price per liter. The franchisee forgot that MWSS remains the owner of water, and Manila and Maynila Water are merely supervising their distribution.
The old layout made by NPC for the country’s electrification program remains viable to this day. To hasten electrification, mostly private operators purchase their electricity generated by NPC, and sell them to the various distribution utilities. Many electric companies were allowed to operate their missionary lines and even encouraged to organize electric cooperatives which led to the creation of the National Electrification Administration.
It was the neoliberal ideology that led to the closure of the NPC after it failed to pay the huge loan incurred by the Bataan Nuclear Power Plant. It was not corruption as alleged by the puppet and coup- installed president that caused the financial collapse of NPC. This also explains why the transmission grid was separated as a function of NPC and sold to foreigners to pay the World Bank.
H.B. No. 78 limits the definition of public utility to any person or entity that operates, manages or controls for public use the distribution of electricity, transmission of electricity, water pipeline distribution, and sewerage pipeline.
Added to this is the requirement for industries to secure a franchise from Congress. The franchise is a grant to prevent undue competition, especially those needing enormous capital. It is the franchise that has become the basis for allowing them to operate and not on the nature and necessity of the industry.
Many of our legislators are confused, forgetting it was Congress that passed the EPIRA Law, particularly Section 28.
To quote: “In compliance with the constitutional mandate for dispersal of ownership and de-monopolization of public utilities, the holdings of persons, natural or juridical, including directors, officers, stockholders and related interests, in a distribution utility and their respective holding companies shall not exceed twenty-five (25%) percent of the voting shares of stock unless the utility or the company holding the shares or its controlling stockholders are already listed in the Philippine Stock Exchange (PSE): Provided, That controlling stockholders of small distribution utilities are hereby required to list in the PSE within five (5) years from the enactment of this Act if they already own the stocks. x x x. ”
This bill directly contravenes H.B. No. 79 and S.B. 2094. Aside from not mentioning the giving away 100 percent to foreign corporations the country’s public utilities, the bill seeks to annul the EPIRA Law and the Constitution without going through the process of having it ratified by the people.
Even on this specific provision of Section 28 which requires owners of distribution utilities to reduce their holdings to 25 percent, many still refuse to comply with the requirement. The inability of Congress to implement the “de-monopolization” provision simply means that the problem is not foreign or lack of capital but the refusal of public utility operators to obey the law.
Some were allowed to own public utilities in addition to what they already have and control. This attempt to monopolize several franchises by family corporations to operate in various provinces and districts ideally located to their source of power prevents others from competing. This is beyond the idea of giving 100 percent foreign ownership but a total takeover by foreign companies of our public utilities from their source of power like ownership of the country’s hydroelectric dams to ownership of electric companies which is their mainstay in business.
Besides, if by law, judges are punished for knowingly or by negligence rendering an unjust judgement as in Article 204 and in Article 205 of the RPC, is it not possible for the people to file a case against those buffoons for legislating a law contrary to the constitution law or even against our own interest?
This is asked because if we can punish judges for gross ignorance of the law by wrongly interpreting or applying it, why can we not punish stupid legislators for enacting laws violative of the Constitution? It could hardly be said they were not goaded much that they have enough time to deliberate on the bill together with their legal and technical consultants. They should be punished for making a travesty of our constitution that they committed treason by legislating the bills contrary to our interest.
rpkapunan@gmail.com
