Bernardo M. Villegas
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Do We Need Charter Change Now? (Part 2)

             Advertising, media and higher education are not crucial at the present time to addressing our most urgent tasks of attaining food security, improving the quality of basic education, and providing better housing and public health to the masses.  Allowing 100% foreign ownership in these sectors that are still restricted by the Constitution can wait.  As far as land ownership is concerned, the feedback I am getting from foreigners who want to invest heavily in agribusiness ventures (following the example of the very successful banana and pineapple industries) is that they are not particularly interested in owning huge tracts of land.  They are content with leasing the land as long as they can be guaranteed long-term stability in policy.  In fact, we are already witnessing a very healthy interest among Philippine conglomerates in investing large amounts of capital in the growing of coconuts, palm oil, bamboo, coffee and cacao on leased land, either rented from small farmers through the cooperative route or through the famous nucleus estate model perfected by the Malaysians in the palm oil industry.  Other large investors in agribusiness are leasing thousands of hectares of deforested lands from the Department of Environment and Natural Resources to plant high-value tree crops.  There is no need to allow foreign ownership of land.  Foreigners who want to own residential or office properties can buy any number of condominium units in numerous real estate developments all over the country. Thus the opening up of media, advertising, and higher education can wait until we are ready for a thorough revision of the entire constitution.

            As a post script, let me declare that that the provisions in the Philippine Constitution of 1987 that should never be amended are those that are anchored on unchangeable truths  based on the very nature of human beings and human society, such as those that protect the right to life of the unborn, the good of the family through the stability of the marriage between a man and a woman, the right to private property, the obligation of the State to promote the common good, and the principle that the common good is a social or juridical order in which every member of society can attain his or her full integral human development.  The common good is not the greatest good for the greatest number and cannot be determined by majority vote.

            As regards the very nature of marriage, I was so glad to learn that unanimously, the World Court of Human Rights has established that there is no right to same-sex marriage.  The 47 judges  from the 47 countries of the Council of Europe, which are members of the Plenary Court of Strasbourg (the most important human rights court in the world) published a statement of great relevance which has been surprisingly silenced  by the progress of information and its field of influence.    In fact, all 47 justices unanimously endorsed the ruling that “there is no right to same-sex marriage.”  The sentence was based on a myriad of philosophical and anthropological considerations based on the natural order, common sense, and positive law.  In the latter case, in particular, the judgment was based on Article 12 of the European Commission on Human Rights.

            This judgment of the World Court of Human Rights is also consonant with treaty resolutions relating to human rights, in particular Articles 17 of the P San Jose Act and 23 of the International Covenant on Civil and Political Rights.  In these historic resolutions, the Court decided that the notion of family contemplates not only “the traditional concept of marriage, that is the union of a man and a woman,” but also that they should not be imposed on governments an “obligation to open marriage to persons of the same sex.”  With regard to the principle of non-discrimination, the Court also added that there is no discrimination, since “states are free to reserve marriage only to heterosexual couples.”  I have extensively referred to this specific case of the nature of marriage to illustrate what I mean by absolute truths that can be enshrined in a basic law of the land as compared to policies or decisions that are mutable according to changing circumstances and the specific good of society at a given moment of time. In this light, the provision in the Philippine Constitution of 1987 that states that “marriage is an inviolable social institution” (Article XV, Sec. 2) should never be amended.

            In contrast, as discussed in the second session of the Senate Subcommittee on Resolution of Both Houses No. 6 (regarding the issue of Charter Change), such mutable principles such as “Filipino First” or “Economic nationalism” have to always be modified depending on changing circumstances.  They cannot be enshrined in the basic law of the land but should be implemented on a case to case basis through either legislation or executive action.  This was the unanimous view expressed by heads of foreign chambers of commerce and industry in the Senate hearing I attended.  Although there can be circumstances (such as those required by national security or protection of local industries from unfair foreign competition), that may warrant restrictions against Foreign Direct Investments, they should be imposed by legislation or executive action, not through the Constitution.  In today’s circumstances, FDIs are absolutely necessary  to  our transport, telecom, renewable energy and agribusiness sectors because there is an acute dearth of long-term capital due to a very low savings rate in the Philippines coupled with a very high debt-to-GDP ratio that makes it difficult for the Government to continue borrowing.  It is possible that ten years from now, when the Philippine economy shall have already attained high-income status, our savings ratio may be at the high of 30% (like those of our neighbors today) and our debt-to-GDP ratio may already have declined to the 30% level that prevailed before the COVID-19 pandemic. Then we can be more restrictive in allowing foreign direct investments as long-term capital becomes more abundant in the Philippines.  These restrictions are better imposed through legislation or executive action.  This was the very important point made by the high officials of the foreign chambers.  They did not say, however, that they agree that now is the time to remove these restrictions from the Constitution.  I had the distinct impression they were neutral about the timing of CHACHA! I hope that the officials of the foreign chambers will clarify this point. For comments, my email address is bernardo.villegas@uap.asia.