SANCIONES EN OTROS PAÍSES

LA BUGAL-B’LAAN TRIBAL ASSOCIATION vs. RAMOS RA 7942 (The Philippine Mining Act) is UNCONSITUTIONAL for permitting fully foreign-owned corporations to exploit Philippine Natural Resources. The said law is invalid insofar as said act authorizes service contracts. Although the statute employs the phrase “financial and technical agreements,” its pertinent provisions actually treat these agreements as

!))" service contracts that grant beneficial ownership to foreign contractors

contrary to the fundamental law.

The FTAA between WMCP and the Philippine government is likewise UNCONSTITUTIONAL since the agreement itself is a device contract. These contractual stipulations and related provisions in the FTAA taken together, grant WMCP beneficial ownership over natural resources that properly belong to the State and are intended for the benefit of its citizens

3. PRIVATE LANDS

1. Citizenship requirement 1973 CONSTI ART. XVII Sec. 11 LEE vs REPUBLIC

The constitutional proscription on alien ownership of lands of the public or private domain was intended to protect lands from falling in the hands of non-Filipinos. In this case, however there would be no more public policy violated since the land is in the hands of non-Filipinos qualified to acquire and own such land.

2. Exception

a) Acquisition by legal succession RAMIREZ vs VDA DE RAMIREZ

The constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land.

b) Acquisition by former natural born citizen ART. XII

Sec. 8 (EXCEPTION FOR FORMER PHILIPPINE CITIZENS)

% As a response to clamor from former Filipinos who were living abroad and who expressed a wish not only to own residential land but also to participate in the development of the country, the strict

requirement that the exception be only for residential

purpose and up to an area not exceeding 1,000 hectares was deleted. The matters of both purpose and area were left for the discretion of Congress to determine.

3. Agrarian Reform ART. XIII Sec. 4

% Land-to-the-tiller program

% Lands not devoted to agricultural activities are outside the coverage of the Comprehensive Agrarian Reform Law

% Agricultural lands-lands which are arable and suitable agricultural lands and do not include commercial, industrial, and residential lands % JUST COMPENSATION- fair or market value of

the property as between one who receives, and one who desires to sell

% The extent that it sets retention limits-POLICE POWER

% Taking of private lands for redistribution-EMINENT DOMAIN

Sec. 5

% Farmers and regular farm workers are given the right to participate, more than just the right to be consulted in the planning, organization, and management of an agrarian reform program

Sec. 6

% Mineral and forest resources, including timber concessions, although covered by existing valid contractual and vested rights, come under the principle of agrarian reform in one way or another

Sec. 7

% Subsistence fishermen are given PREFERENTIAL, but not EXCLUSIVE right of the use of communal marine fishing resources, both inland and offshore.

% Subsistence fishermen shall also have the right to expect support from government by way of appropriate

!)*" technology and research, adequate financial, production,

and marketing assistance, and other support services. Sec. 8

4. Urban Land Reform and Housing ART XIII

Sec.9

% Social housing program addresses those who can not afford even low cost housing and therefore need some form of subsidy

% Urban land reform and housing are to be undertaken in cooperation with the private sector

% Important elements of the program should be “basic services” and “adequate employment opportunities” Sec. 10

% Urban or poor rural dwellers refers principally to squatters

% Evictions are not prohibited but must be conducted in accordance with law and in a just and humane manner % Due process must be observed

4. Lease to foreigners of private lands valid

SMITH, BELL & CO. vs REGISTER OF DEEDS(in Spanish) Those who are disqualified to buy land are also disqualified to lease.

5. Regulation of economic activities 1. Rationale

ART. XII Sec. 6

% Rejection of laissez faire and adopts the principle of solidarity

Sec.12 (FILIPINO FIRST POLICY)

This provision enshrines in the Constitution the Filipino-first policy enunciated in:

% CA No. 138 - Giving native products and domestic entities preference in government purchases

% RA No. 912 -Prescribing the use of Philippine-made materials

% RA No. 5183- Governing procurement contracts of government

% Flag Law - giving Filipino contractors a 15% advantage in government contracts.

Sec.13 (FORMS AND ARRANGEMENTS IN ECONOMIC EXCHANGE)

% Must serve the general welfare – health, safety, security, idea of protection of local enterprises

% Must be characterized not only by reciprocity but also by equality which imports mutual benefit

2. Organization and regulation of private corporations ART. XII

Sec.16 (PRIVATE CORPORATIONS)

% Creation of GOCCs- they must show capacity to function efficiently in business and that they should not go into activities which the private sector can do better; economic viability-not just financial viability but also capability to make profit and generate benefits not quantifiable in financial terms

3. Operation of Public Utilities ART. XII

Sec. 11 (PUBLIC UTILITITES)

PUBLIC UTILITY - a utility corporation which renders service to the general public for compensation

-the public or private character of a utility does not depend on the number of persons who avail of its services but on whether or not it is open to serve all members of the public who may require it

% Congress has the authority to grant franchises but it can also delegate the authority to government agencies

!*+" % Filipinization of public utilities- requires that any form

of authorization for the operation of public utilities should be granted only to “citizens of the Philippines at least 60 per centum of the capital of which is owned by such citizens.”

Who is considered a Filipino Corporation: 1. It is organized under Philippine laws and 2. At least 60 per centum of its capital is owned by

Filipino citizens

% The moment for determining whether a corporation is entitled to operate as a public utility is when it applies for a franchise, certificate, or any other form of authorization for that purpose. (Tatad vs Garcia Jr.) % Franchises granted by the government cannot be

exclusive in character

% Authority given to foreign investors to participate in the governing body of public utilities to the extent of their proportionate share in the capital, is a reversal of the Filipinization trend

Sec. 17 (TEMPORARY TAKE OVER OF BUSINESS AFFECTED WITH PUBLIC INTEREST)

% Introduced as a product of the “martial law” thinking of the 1971 Con-Con

% 1987 Constitutional Commission defined national emergency as encompassing threat from external aggression, calamities, or natural disasters, but not strikes.

% The duration of the emergency is the measure of the duration of the takeover

% Obiter dictum in David vs Ermita says that Sec 17 gives the power to the State and not to the President. The President acquires emergency powers when given to her by the Congress in a state of emergency declared by Congress.

% “business with public interest” means “business that has a lot of repercussion on the public, whether it be public utility or other businesses which may partake of the characteristics of public utility but which is not yet considered public utility” or any business “ which concerns a mass-based consumer group” and especially among “the low-income groups.”

4. On mass media and advertising agency ART. XVI

Sec. 10 (COMMUNICATION POLICY)

% what the provision prescribes is a communication structure which allows for a national and international balance that is beneficial to the nation: “the balanced flow of information into, out of, and across the country” % whatever policy is formulated, it must respect “the

freedom of speech and of the free press” Sec.11

% Mass media includes radio, television, and the printed media

% Does not include commercial telecommunications nor advertising agency

% ONE HUNDRED PER CENT FILIPINO OWNERSHIP IS REQUIRED

% Commands Congress to regulate or prohibit monopolies in commercial mass media

% Advertising Industry -70% Filipino-owned 5. Practice of Professions

ART XII

Sec.14 (CARE FOR FILIPINO PROFESSIONALS AND SKILLED WORKERS)

% The limitation on the practice of professions is subject to exceptions found in reciprocity laws.

6. State operation of private enterprises ART XII

Sec.18 (NATIONALIZATION OF INDUSTRIES) Filipinization- Filipino ownership

!*!" Nationalization – State ownership; an instrument toward

Filipinization rather than as an expression of an option against private ownership

% The decision to nationalize may be made by the State through Congress, on the broad grounds of “interest of national welfare or defense.”

% Sec 18 is a textual acceptance of the equation of the concept of “public use” with the broader concept of “public welfare” or “national welfare”

AGAN vs PIATCO

The duration of the emergency itself is the determining factor as to how long the temporary takeover by the government would last. The temporary takeover by the government extends only to the OPERATION of the business and NOT to the OWNERSHIP thereof. As such the government is not required to compensate the private entity owner of the said business as there is no transfer of ownership, whether permanent or temporary. The temporary takeover is in exercise of the government’s POLICE POWER. It is the welfare and interest of the public which is the paramount consideration in determining whether or not to temporarily take over a particular business. Monopolies are not per se prohibited by the Constitution but may be

permitted to exist to aid the government in carrying on an enterprise or to aid in the performance of various services and functions in the interest of the public.

7. Monopolies, combinations, and unfair competition ART. XII

Sec. 19 (MONOPOLIES AND COMBINATIONS) % Espouses competition

% Monopolies are not necessarily prohibited by the Constitution. The state must still decide whether PUBLIC INTEREST demands that monopolies be regulated or prohibited

NEA vs MENDOZA

NEA can approve the increase in the electric rates of the cooperative without any notice of public hearing. The consumers are members of the cooperative ORMECO I who are already represented by the Board of Directors whom they had elected. The necessity of a public hearing is lost. It was no less the ORMECO I which solicited the approval of the NEA to adjust the rates upward and this the NEA granted as it was necessary for the continued financial viability of the ORMECO I.

8. Money, Banking and Credit ART. XII

Sec. 20 (A CENTRAL MONETARY AUTHORITY) % The main concern in the formulation of this provision

was to assure INDEPENDENCE of the central monetary authority from all sectors, local or foreign, but especially from the executive department

% Under the current law, the board of directors of the BSP is the monetary board

% Constitutional requirement: a. Natural-born Filipino citizen

b. Of known probity, integrity, and patriotism

c. Majority of whom shall come from the private sector Sec. 21

9. Cooperatives ART. XII

Sec. 15 (DEVELOPMENT OF COOPERATIVES)

% What was contemplated was a line of agency under the Office of the President and outside the jurisdiction of the Department of Agriculture

% The purpose would be to promote the growth and viability of cooperatives in the private sector 5. COMMUNICATION AND INFORMATION IN NATION

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