(US Pres. Donald Trump with PH Pres. Rodrigo Duterte at the ASEAN gala dinner in Manila on November 12, 2017; Photo from here)

Manila’s ambassador to Washington Jose Manuel Romualdez recently announced that the first round of negotiations for a bilateral free trade agreement (FTA) with the US will start in September in the US capital. The FTA negotiations, with an estimated timeline of one to two years, is the direct result of US President Donald Trump’s Manila visit in November last year where he agreed with President Rodrigo Duterte to, among others, discuss a potential FTA between the two countries.

(Based on a report which came out two days prior to the statement by Romualdez, and quoting Finance chief Carlos G. Dominguez III and US Deputy Trade Representative for Asia Jeffrey Gerrish, the bilateral FTA talks appear to be still exploratory. Nonetheless both camps are said to be “prepared to move forward” and proceed to “high-level discussions in the near future”.)  

The envoy’s announcement came as the Duterte administration shifts into high gear its charter change (Cha-cha) drive, with the President planning to endorse the draft federal charter as a priority measure and a new Constitution already ratified as early as next year per Malacañang’s target.

US remains a key player in PH economy

We may thus be seeing the real possibility of a new wave of liberalization of the economy under Pres. Duterte where foreign business interests could be allowed as much as 100% ownership of Philippine lands and public utilities, among others. Although the Duterte administration has depicted the shift to federalism as the main motive behind Cha-cha, current efforts to rewrite the Constitution remain driven, as in the past, by the persistent push of American and other foreign lobby groups to further open up the economy.

While China is rising and cultivates an increasingly more prominent role in the Philippines and elsewhere, the US (along with Japan) remains a key player in the national economy. From 2007 to 2017, the US accounted for 24.1% of the cumulative net foreign direct investments (FDI) that flowed into the country, the second largest behind Japanese FDI.

During the said period, US net FDI flows totaled US$4.10 billion while Japan had US$4.36 billion (25.6%). European Union (EU) countries’ net FDI flows to the Philippines recorded US$1.46 billion (8.6%) while ASEAN members had US$1.38 billion (8.1%). China, on the other hand, posted a measly US$84.74 million or just 0.5% of the total. (Note: the figures exclude reinvestment of earnings and debt instruments where country breakdown data are not available, per the Bangko Sentral ng Pilipinas or BSP.)

Direct bilateral trade with the US remains significant at US$168.58 billion from 2006 to 2016 or 13.3% of total trade during the period (second largest behind Japan’s 14.4%), based on data generated from the World Bank’s World Integrated Trade Solution (WITS) online database. The US is the second largest foreign market for Philippine exports, accounting for 15.6% of total exports (behind Japan’s 18.5%) at US$88.95 billion, and second largest source of imports with 11.4% of total imports (behind China’s 11.8%) at US$79.63 billion.

American businesses operating in the Philippines are bullish about the country’s growth prospects and the potential to generate greater profits here as the Duterte administration and its economic manager remain firmly committed to liberalization. In the 2018 ASEAN Business Outlook Survey conducted by the US AmCham, 85% of Manila-based executives representing US firms anticipate increased profitability from their Philippine operations while 70% expect to expand their operations in the country in the coming years. (As cited here)

Talks of a US-Philippines FTA have long been floated by various American and Filipino trade officials but have not really taken off. Under former Pres. Barack Obama, the US had focused more on plurilateral or regional FTAs, especially the Trans-Pacific Partnership (TPP) of which the Philippines – despite the previous Aquino administration’s repeated expression of interest – never became a party to mainly due to foreign ownership restrictions in the 1987 Constitution.

PH bilateral FTA with US to have TPP elements

While Trump has abandoned the TPP and now prefers bilateral arrangements, it remains the standard with which the US will pursue bilateral FTAs including with the Philippines. As one trade official put it, a US-Philippines FTA must have the elements of the TPP as a “new age” FTA, which means that it should cover not just trade in goods but also services and international standards.

The Philippines TPP readiness assessment, a 2016 report backed by the US Chamber of Commerce (AmCham) and US Agency for International Development (USAID), identified key areas of policy reforms that the country must undertake to meet the TPP’s requirements. This report could serve as a useful guide in what the US could seek in its negotiations with Filipino trade officials on the planned bilateral FTA.

According to the report, while the Philippines “is already ‘TPP-ready’ in many key respects, pursuing TPP membership will demand… further significant adjustments in the policy environment, as embodied in administrative measures, laws, and the Constitution itself.” It noted that constitutional provisions restricting foreign ownership and participation in Philippine businesses is the biggest hurdle to our TPP accession.

These include, among others, the provision of national treatment obligations (i.e., foreign investors and investments must be given treatment no less favorable than what Filipino investors and investments enjoy) to trade partners that will require the Philippines to “revisit the current range of constitutional constraints relating to nationalized industries and service sectors, and adopt policy reforms in selected areas” namely mass media, private radio networks, advertising; natural resources or mining enterprises; land ownership; public utilities; and education and practice of professions.”

If Duterte’s Cha-cha pushes through, many of the US concerns – also annually reported as foreign trade barriers by the US Trade Representative (USTR) such as its 2018 report on the Philippines and other US trade partners – would be substantially addressed.

Federal charter for all-out liberalization

In the draft federal charter prepared by the Consultative Committee to Review the 1987 Constitution, the new Article XV on National Economy and Patrimony gives Congress the authority to change by law the constitutional requirements on the lease of alienable lands of the public domain supposedly “considering the general welfare of the people and the necessities of conservation, ecology, development and agrarian reform” (Section 3). Congress can reduce or even eliminate the constitutional limit on foreign ownership or control (pegged at 60% Filipino shares of stocks) of entities that can lease a maximum of 1,000 hectares for 25 years (renewable for another 25 years).

Another is on the exploration, development and utilization of natural resources (Section 4) which shall be a shared power of the federal and regional governments. While setting a minimum requirement of 60% Filipino-ownership or control of voting capital for entities with whom the federal or regional governments can have a co-production, joint venture or production-sharing agreements, Congress is again given the power to change by law the said voting capital requirement for the “federal and regional interest of the people, and thus theoretically allow up to 100% foreign ownership or control.

Meanwhile, ownership and management of mass media is reserved exclusively to Filipinos while the advertising industry is restricted to Filipinos owning at least 70% of the voting capital (Section 12) and educational institutions at 60% (Section 15). But similarly, these constitutional requirements can be changed (reduced or removed) by Congress through legislation supposedly for “public welfare and national security” although “for this purpose, such entities shall be managed by citizens of the Philippines”. In other words, such entities can be fully foreign owned although still managed by Filipinos.

For public utilities, the proposed charter (Section 13) states that Filipinos shall own at least 60% of voting capital of a public utility which can be operated through a franchise, certificate or authorization for 25 years (renewable for another 25 years). But like in mass media and advertising as well as educational institutions, Congress can modify the voting capital requirement (allow greater foreign control or ownership) provided that management will still be reserved to Filipinos.

It is also worth noting that Philippine telecommunications which is a particular concern for the US (as pointed out in its TPP readiness assessment) may be already liberalized even before Cha-cha is implemented through the ongoing amendment of the Public Service Act (also a priority legislation of the Duterte administration) that will limit public utilities to the transmission and distribution of electricity and waterworks and sewerage systems.

Duterte to implement long-standing US agenda

Other key provisions of the 1987 Constitution pertaining to preference for Filipino investments over foreign capital have been removed entirely in the proposed new charter of the consultative committee. Most notable is the current Section 10 of Article XII which states that: “The Congress shall… reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.”

Aside from economic sectors, the so-called federal charter is liberalizing as well the practice of all professions (Section 14) which while limited to Filipinos could be opened up to foreign professionals not just through federal law but also by “international agreements providing for reciprocity” (e.g., an FTA). This modification in the Constitution is consistent with the US push to open up to foreigners the practice of professions reserved to Filipinos as noted in the AmCham/USAID TPP readiness assessment of the Philippines (e.g. on nationality requirements for senior management position).

Beyond liberalization, however, is the greater protection for American investments that the US seeks in so-called 21^stcentury FTAs such as the TPP. A bilateral FTA with the US thus will likely require an investor-state dispute settlement (ISDS) provision that affords US investors with full protection under international law and allows them to sue governments for failure to provide, fulfill or ensure such protection for American investments.

In the TPP, ISDS allows foreign investors to challenge a government’s “conduct, including expropriation measures, through binding arbitration and panel proceedings.” Related to this are national treatment and most favored nation obligations that may require constitutional and other policy reforms for the Philippines, with serious implications for the country’s national sovereignty and patrimony.

Cha-cha for greater liberalization of the economy and a bilateral FTA attest to the leading role that the US continues to play in shaping Philippine economic direction even amid the rise of China as a major actor in the country especially under the Duterte administration. The biggest irony is that these long-standing agenda of the US (expressed through many previous and present initiatives of the AmCham, USAID and other US institutions) may be finally realized under a President who vows a foreign policy supposedly independent from its neocolonial master. ###