Lawyers dispute Salceda on issue of public utilities

Published September 28, 2020, 6:36 PM

by Ben Rosario

Albay Rep. Joey Sarte-Salceda may rank among the country’s top economic wizards but interpreting the law can be his weakness.

Albay Representative Joey Salceda (photo by ali vicoy)

The lawyers’ advocacy group Tagapagtanggol ng Watawat made this observation as it insisted that Salceda had misunderstood the Supreme Court decision on a legal controversy involving the supposed “declassification of public utilities.”

Reacting to Salceda’s claim, TanggolWatawat president Arnel Victor Valena assailed the approval by the House of Representatives of House Bill 78 that allows the exclusion of telecommunications under the classification of public utility, thus lifting prohibition on foreign ownership, and in fact, allows full foreign control of firms involved in the telecoms.

 TangolWatawat strongly backed the contention  of retired Supreme Court Justice Antonio Carpio that enacting the bill is unconstitutional because such provision of the Charter cannot be amended by merely passing an ordinary legislation.

 “Whether or not one is a public utility is a matter of judicial, not legislative determination,” said Valena.

Reacting to Carpio’s stand on the issue, Salceda had reportedly stated that “the Supreme Court already sanctioned the declassification of public utilities” in decisions which upheld the exclusion of shipyards and which “no longer considered” power generation to be a public utility operation.”

Valena pointed out that  the SC decisions cited by Salceda were inapplicable to telecommunications because they did not involve the issue of whether Congress could narrow down the terms in the Constitution to avoid certain restrictions.

Unlike telecommunications, Valeña said shipyards—where ships are built or repaired—only serve a limited clientele and not the public in general.

He clarified that contrary to Salceda’s claim, SC was actually enforcing the definition of ‘public utility’ in its 2003 decision on JG Summit Holdings, Inc. vs. Court of Appeals.

The TanggolWatawat officer explained that shipyards were only classified as a ‘public utility’ under ordinary laws, such as Act No. 2307 in 1913, the Public Services Act in 1936, and Batas Pambansa Blg. 391 in 1983.

Currently, the inclusion of shipyards is repealed by Executive Order No. 226 in 1987. In other words, shipyards were treated as a ‘public utility’ only by “legislative declaration,” not by the Constitution, noted Valena.

He added: “This was unlike telecommunications companies, which the framers of the Constitution explicitly declared to be a ‘public utility’ during their deliberations.”

“The framers of the 1987 Constitution were categorical that public utilities included telecommunications.  No amount of legislative declaration can remove a certain business from the definition of a public utility if, in fact, the business as conducted is impressed with public use or carried on for the public benefit,” Valeña said.

“The intent of the framers of the 1987 Constitution when they included a provision on public utilities and the 60-40 foreign equity limit should be considered,” stated the lawyer.