"These links all have consequences."
Legal eagles of the country held a virtual webinar hosted by the Philippine Bar Association to hear an extensive discourse that examined the emerging constitutional issues and geopolitical implications of the recent House of Representatives approval of the Public Services Act (PSA).
The objectives of the bill are sound and supported by well-respected economic think-tanks like the Foundation for Economic Freedom. The principal author, House Committee on Ways and Means Chairman Joey Salceda, said that foreign ownership restrictions on basic services such as telecommunications, water, power, and electricity inhibits competition and foreign investments. Therefore, there is need for a clear definition of public utility.
The measure proposes a more limited list of services that will be subject to the 60/40 foreign equity ownership restrictions on public utilities. Telecommunications has been excluded from the list, therefore if this legislation becomes law, will be open to foreign ownership.
Therein lies the rub. There are two complications being raised. First, is that the passage of HB 78 would be an infringement into Article XII, Section 11 the 1987 Constitution which states that, “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 per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years”.
Retired Supreme Court Senior Associate Justice Antonio T. Carpio clearly expressed his opinion on this issue, saying that it is unconstitutional and that if questioned before the Supreme Court, it will be struck down because it is the power of the Supreme Court that’s being challenged.
“If Congress will pass a law interpreting and redefining these terms and phrases, you are taking away the power of the Supreme Court. This is a battle of turf between the Congress and the Supreme Court. It is the Supreme Court that will decide, and they will also decide that Congress cannot reserve the power of the Supreme Court and to be the final arbiter of interpreting the Constitution,” Justice Carpio said.
The second issue has a more complex geopolitical dimension where our ongoing territorial dispute with China in the West Philippine Sea and National Security comes into play with the owner of the “third telco” DITO Telecommunity and the President.
In the scenario that the PSA is passed at its current form and telecommunications will be open to foreign ownership, third Telco DITO will most certainly be controlled by its major partner, state owned company ChinaTel.
Justice Carpio again illustrates this clearly, “Our problem with ChinaTel is (that) it is a state-owned company of the People's Republic of China. China has a law that any Chinese citizen or corporation must cooperate with the state intelligence services of China. They are bound to give any information that they have to the Chinese intelligence agencies.”
This Chinese law, and considering the conflicting interests and multiple incidents of incursions and harassment of our Filipino fishermen in our own territorial waters in the West Philippine Sea, makes you ask why in high heavens the government allowed ChinaTel to install telecommunications equipment right inside our military camps?
“We do not have that problem with Globe, PLDT, or with the Indonesians because we do not have territorial disputes with them. So, this is unique to DITO and ChinaTel. We have to be very careful because we are fighting to preserve our territorial maritime zones in the West Philippine sea and China is encroaching on our territory maritime zones,” said Justice Carpio.
As technology has a “black box” character where only the real controllers invisibly commanding the inputs and outputs of a device have full control, It really doesn’t take much imagination to identify real risks of how hi-tech espionage, or even sabotage, can be executed through this essential public service that we now are heavily dependent on since the lockdowns that started six months ago.
Reported in news articles, the President’s ally, Davao tycoon Dennis Uy, who controls DITO and the Udenna conglomerate, is partnered with China Harbour Engineering Company, a subsidiary of China Communications Construction Co., a US-blacklisted company because of its role in expanding China’s military capability in the South China Sea, and is poised to be the contractor of the reclamation project of the Sangley Point airport project, a US$1.2 billion project with a local partner, and how swiftly the sincere objections of the Foreign Affairs and Defense Secretaries were reversed, are more than enough dots to connect to see the seriousness of Beijing’s infiltration in our country.
These are alarming connections with consequences that will go beyond this pandemic crisis.