MANILA -- Two former justices of the Supreme Court differed on the use of the words "unless otherwise provided by law" in current efforts to revise the 1987 Constitution to empower Congress to regulate foreign investments in public utilities, education and advertising.

While retired Supreme Court Chief Justice Reynato Puno wants the outright deletion of the restrictions instead of using the phrase "unless otherwise provided by law," which he believed would be open to constitutional challenge, retired Supreme Court Justice Adolfo Sevilla Azcuna maintained that lawmakers just have to be very precise in where they insert the controversial phrase. 

Azcuna spoke before the House Committee of the Whole on Resolution of Both Houses #7 a day after Puno gave this thoughts to the same panel, admitting that the use of the words "unless otherwise provided by law" is actually his idea, which he first suggested to a previous Congress.

"About some 5 years ago I thought of a way of changing the economic provisions or more particularly the restrictive portions of the economic provisions of the constitution," Azcuna recalled.

"My idea was to have as an amendment in the strategic places of the economic provisions the words unless otherwise provided by law... This is to me the best solution to the economic provisions restrictions because economic provisions should be flexible and this should not be cast in stone and 37 years is casting in stone. Economic provisions must be responsive to changes in economic conditions," Azcuna said. 

Puno told lawmakers on Monday that he thought the phrase raises a red flag because it empowers lawmakers to amend the constitution without the approval of the electorate.

“I raised a red flag on this way of amending of the constitution amendment by means of a law but having said that I stress that I’m not passing a hard judgment on this model that is being adopted. I’m just saying that this RH 7 maybe constitutionally suspect if we retain that phrase unless provided by law and precisely in order to drive away that fear I suggested that we just repeal outright these 3 restrictive provisions,” Puno said. 

“If we repeal these 3 restrictive provisions that will release the power of Congress to pass the necessary laws in order to liberalize these so called restrictive provisions,” Puno added.

“The use of the phrase ‘unless otherwise provided by law’ is vulnerable to another constitutional challenge,” Puno also said. 

House Minority Leader Marcelino Libanan noted that the phrase “unless otherwise provided by law” appears elsewhere in the constitution.

Puno, however, pointed out that those other instances do not amend the constitution as they are instead non self-executing provisions that need to be further clarified by legislation such as the ban on political dynasties.

“That phrase as maybe provided by law has been used in some other provisions not only of the 1987 Constitution but even in the previous constitution. But the function of that phrase as maybe provided by law is limited it is limited in the sense that it merely signifies that that particular provision of the constitution is not self executing,” Puno explained.

Puno explained that any amendment to the constitution can only be valid if it is approved by the electorate, which is why merely amending it by legislation won’t fly because that will only be approved by the lawmakers and the president.

“What makes any change or amendment or revision in the constitution valid is the approval of the people. That is the point,” Puno said.

Puno believes the amendments are better off simply deleting the 3 restrictions along with a 4th section, Article II Section 19 of the 1987 Constitution which states "the state shall develop a self-reliant and independent national economy effectively controlled by Filipinos".

Azcuna, however, maintained that the phrase can be used in strategic places.

"It has to be done in the precise places otherwise you maybe confronted with changing the bedrock principles. Don't change the bedrock principles change only the percentages of foreign investments allowed as well as the percentages of management allowed," Azcuna said.

Azcuna is against outright deletion. 

"If we provide for unless otherwise provided by law and a law is later on passed, it does not mean that the law can amend the constitution, it's simply operationalizing what the constitution has already that allowed that a law maybe passed to provide a different arrangement that is pursuant  to a power given in the constitution itself," Azcuna added. "I believe it's better than just deleting."

For his part, House Committee on Constitutional Amendments Chair Rufus Rodriguez pushed for a wholesale deletion of all foreign investments limits and blanket empowerment of Congress to pass laws regulating foreign investments. 

Some House lawmakers were unfazed by Puno's warning against appending the phrase "unless otherwise provided by law" to empower Congress to regulate foreign investment restrictions in public utilities, education and advertising.

PBA Party List Rep. Margarita Nograles, 1Rider Partylist Rep. Ramon Rodrigo Gutierrez and Lanao del Sur 1st District Rep. Zia Alonto Adiong insisted during their weekly press conference at the House of Representatives that the phrase gives lawmakers the flexibility and adaptability to meet the changing times.

Meanwhile, a former lawmaker predicts that Congress will concentrate a lot of power unto itself and be met with "intense lobbying" and lobby money if it amends the 1987 Constitution to give itself powers to regulate foreign investments in public utilities, education and advertising by inserting the phrase "unless otherwise provided by law" into its pertinent provisions.

"'Unless otherwise provided by law,' in my opinion Mr. Speaker, centralizes unto Congress massive powers to ‘otherwise’ the Constitution, amending the Constitution without going through the amendatory requisites of three-fourths vote, or public consultation, and plebiscite as required by the Constitution," Atty. Neri Colmenares, former Bayan Muna Representative and its current chairperson, said before the House Committee of the Whole on Resolution of Both Houses #7 which proposes exactly those amendments. 

Colmenares echoed retired Puno's warning that the phrase may allow charter amendments without a plebiscite.

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