Constitutionality of RA 11659 challenged in October 2022

ON OCTOBER 3, 2022, I filed a petition for certiorari and injunction in the Supreme Court to challenge the constitutionality of Republic Act 11659, signed by President Rodrigo Duterte on March 21, 2022.

The challenged law amended Commonwealth Act 146, or the Public Service Act, as amended. Why is Republic Act 11659 unconstitutional? Under Commonwealth Act 146, as amended, certain businesses in the country are declared public utilities, which means they are not only vital to the public interest; they are also governed by the 60 percent minimum Filipino ownership and management requirement under the 1987 Constitution.

Those businesses airports, seaports, telecommunications.

Republic Act 11659 reclassified airports and telecommunications, among others, from public utilities to mere public services (ordinary businesses).

This means that airports and telecommunications, which used to be covered by the 60:40 ownership and management ratio in favor of Filipino citizens under the Constitution, may now be fully owned and managed by aliens.

I stressed in my petition that Republic Act 11659 is unconstitutional because the 1987 Constitution explicitly requires Congress to uphold the Filipino First Policy in vital businesses, enshrined in Section 19, Article II and Section 10, Article XII of the 1987 Constitution. include, among transportation others, and

In addition, I pointed out in my petition that Republic Act 11659 undermines several established decisions of the Supreme Court declaring that airports and telecommunications are public utilities, and that these businesses should not be left to the ownership, influence and control of aliens.

I maintained in my petition that Republic Act 11659 is unconstitutional also because it violates the equal protection clause of the Constitution, which provides that “... nor shall any person be denied the equal protection of the laws” (Section 1, Article III, 1987 Constitution).

Under the equal protection clause, businesses similarly situated should be treated similarly, and that classification by legislation, to be valid, must be based on distinctions which make real differences.

Simply put, Republic Act 11659 violates the equal protection clause because, while it reclassifies airports no longer as public utilities (subject to the 60:40 Filipino ownership and management ratio) but as mere public services (open to full alien ownership and management), it retains seaports as public utilities.

Since both airports and seaports are ports of entry and exit, there is no valid reason for the different classification or treatment given by Republic Act 11659 to airports on the one hand, and seaports on the other.

Thus, for all intents and purposes, it appears that Republic Act 11659 was enacted by Congress to suit certain alien businesses, to the prejudice of Filipino interests.

Named respondents in the my petition are the Department of Transportation, the Civil Aviation Authority of the Philippines, and the National Telecommunications Commission.

About two weeks after I filed my petition, the Office of the Solicitor General, as legal counsel of the aforesaid government agencies, filed its opposition to my petition.

In my opinion, the OSG’s defense of Republic Act 11659 is an uphill battle, considering that the said law manifestly violates the Filipino First Policy enshrined in the 1987 Constitution, its equal protection clause, and established jurisprudence.

Withal, I trust that my petition will be given due course, and that the parties shall be required by the Supreme Court to file their respective memoranda. Thereafter, my petition shall be deemed submitted for decision.

Last week, however, a group which calls itself the United Filipino Consumers and Commuters, filed a petition for certiorari and prohibition in the Supreme Court, likewise challenging the constitutionality of Republic Act 11659.

According to a news story, the group is led by lawyer Ferdinand Topacio and defeated senatorial candidate Larry Gadon. Attys. Topacio and Gadon lauded the consumers and commuters group for filing its petition.

From what I have read in news reports, it seems that the new petition raises the same arguments I have raised in my petition.

Only the respondents are different in the new petition. Named respondents in the new petition are Executive Secretary Lucas Bersamin, Senate President Juan MIguel Zubiri, and House Speaker Martin Romualdez.

I welcome this development, considering that the new petition lauded by Atty. Topacio will enhance the public interest aspect of the challenge to the constitutionality of Republic Act 11659.

My legal advisers hope the United Filipino Consumers and Commuters is actually a corporate personality because the Supreme Court may be strict when it comes to entertaining petitions challenging the constitutionality of laws enacted by Congress.

I share Atty. Topacio’s suspicion that President Rodrigo Duterte may have been tricked by some vested interest groups with links to alien businesses into signing Republic Act 11659.

It is so unlikely for him to allow such an antiFilipino piece of legislation.