In my e-mail and cell-phone messages yesterday, I couldn’t help but notice a similarity in the conclusions of two lawmakers talking of distinctly different issues. Both are saying that government moves related to two separate issues affecting public interest have no legal basis.

The similarity, to me, was not such a big deal, but mildly amusing just the same. And the fact alone that the two statements reached me on the same day was enough to impel me to use them as material for the Omerta potboiler. So here goes.

The coinciding, though unrelated, messages were those of two prominent lawmakers—one from the House and the other from the Senate. They’re both stressing the illegality of the government’s position in both controversies.

One pertained to the P69.2-billion Philippine Long Distance Telephone (PLDT)-Digitel share-swap deal now hanging fire before the National Telecommunications Commission (NTC).

Party-list Rep. Teddy Casiño of Bayan Muna is saying the PLDT move to acquire a controlling stake in rival Digital Telecommunications Philippines Inc., operator of Sun Cellular, “is not only illegal on its face, but it would also result in noncompetition and essentially higher prices for telecommunications services.” Casiño’s position is that no deal of this magnitude between two telecoms operating under congressional franchises can possibly be legal without the approval of Congress.

(When the big news about this deal first broke, it was actually Sen. Joker Arroyo who pointed out that the NTC alone lacks the power to approve such a contract.)

Sen. Francis “Chiz” Escudero, for his part, described current moves in Congress to postpone the Autonomous Region in Muslim Mindanao (ARMM) elections as inadequate, or not in accordance with the ARMM charter.

He told Interior Secretary Jesse Robredo and Presidential Peace Adviser Teresita Deles that the proposed measure postponing the ARMM elections must be approved by a two-thirds vote of both the House and Senate voting separately.

In addition to a two-thirds vote in each of both chambers of Congress, he said, the measure must be ratified by the ARMM electorate in a plebiscite.

Otherwise, the whole exercise—of passing the measure by a majority vote and not presenting it for ratification in a plebiscite—would be unconstitutional.

The young, outspoken senator from Sorsogon also told Robredo and Deles that stopping the August 8 elections by legislation at this late date when the Congress is nearing adjournment is now an impossible dream.

(Meanwhile, the Senate Committee on Local Government, headed by Sen. Ferdinand “Bongbong” Marcos, who has been openly against a postponement, has not yet reported out the controversial bill for plenary debate and voting. “In effect, he’s freezing the ball,” beat reporters in the Senate are saying. “The ball is actually in his court, and he has promised the people of ARMM that he would do his best to stand in the way of its enactment.”)

On the PLDT-Digitel share-swap deal, Casiño’s office issued a statement that the contract between the two would be illegal without congressional approval since both parties were bound by the provisions of their respective congressional franchises.

The Bayan Muna representative’s office issued the following self-explanatory statement:

“Digitel is not Mang Inasal that can be sold to any Tom, Dick or Harry. It is always subject to the limitations of its congressional franchise and the national interest. PLDT already owns Smart Communications Inc., Red Mobile and Piltel. If it is allowed by the NTC to acquire Digitel, that would give PLDT 70 percent of the cellular-mobile market, leaving Globe Telecom with a mere 30 percent. This is clearly a monopoly, and this is not allowed under the 1987 Constitution, as this will negatively impact on the public interest with regard to prices of cellular-phone services. Government cannot allow any monopoly by any telecommunications company if it wants real competition to happen,” Casiño said.

“Article XII Section 19 of the Constitution clearly states that ‘The State shall regulate or prohibit monopolies when the public interest so requires. No combinations in restraint of trade or unfair competition shall be allowed.”

“This is why we cannot understand why the Securities and Exchange Commission [SEC] eased the payment terms for PLDT by exempting it from paying more than P100 million in transaction costs for the 51.55-percent stake it would acquire from Digitel. The NTC is also playing into the desires of PLDT by sending the signals to the public that the merger is in order when, in fact, it violates the Constitution and the Congressional franchise of Digitel [Republic Act (RA) 9180]. The two regulatory bodies should deny this merger, since they cannot act on it without congressional approval. It seems that the SEC and the NTC are facilitating a major sweetheart telco deal,” Casiño said.

Section 16 of RA 9189 states that Digitel “shall not lease, transfer, grant the usufruct of, sell nor assign this franchise or the rights and privileges acquired thereunder to any person, firm, company, corporation or other commercial or legal entity, nor merge with any other corporation or entity nor shall the controlling interest of the grantee be transferred, whether as a whole or in parts and whether simultaneously or contemporaneously, to any such person, firm, company, corporation or entity without prior approval of Congress.”

“Additionally Section 20 of the law says that it is ‘subject to amendment, alteration or repeal by the Congress of the Philippines when the public interest so requires and shall not be interpreted as an exclusive grant of the privileges herein provided for.’ This should be a no-brainer for the NTC and SEC to deny the PLDT-Digitel merger in the name of public interest.”

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