First published in Bulatlat.com, Vol. VIII No. 33, Sep 21-27, 2008

It has been more than two years now since President Gloria Arroyo and Japanese premier Junichiro Koizumi signed the Japan-Philippines Economic Partnership Agreement (JPEPA) in September 2006. But the controversial treaty remains pending in the Senate and despite many delays continues to face rough sailing at the upper chamber.

While the treaty’s sponsors, Senators Miriam Santiago and Mar Roxas, still have a lot to explain to their colleagues about the economic implications of the JPEPA, not to mention the still unresolved issues of toxic waste dumping and dubious gains for Filipino nurses and health workers, it seems that the issue of constitutionality will be the most contentious debate among the senators. Constitutionality has been emerging as a key factor that could determine alignments in the Senate once the JPEPA is put on vote.

Conditional concurrence and side agreement

Since the joint committees on foreign relations and trade and commerce, chaired respectively by Santiago and Roxas, closed public hearings in December 2007, the JPEPA has been hounded by questions on its constitutionality. Santiago, who has emphatically recognized the unconstitutionality of the JPEPA, has since insisted for a side agreement that will correct the constitutional flaws of the treaty. These legal infirmities pertain to the treaty’s investment provisions on national treatment, most favored nation (MFN) and prohibition of performance requirements.

By April 2008, the Department of Trade and Industry (DTI) and the Department of Foreign Affairs (DFA) have yet to convince their Japanese counterparts on a detailed side agreement that will amend the country’s unconstitutional obligations in the JPEPA. At that time, Santiago had started to push for what she called “conditional concurrence” wherein the Senate will ratify the JPEPA based on the condition that a side agreement revising the treaty will follow.

Conditional concurrence, however, was criticized by some of her colleagues, notably Senator Francis Escudero who pointed out that both the Constitution and the Vienna Convention on the Law of Treaties do not allow the Senate to issue a conditional concurrence on the JPEPA. More importantly, Malacañang knew that pushing for a conditional concurrence will put the Philippines in a position that could cause the Arroyo administration diplomatic embarrassment because Japan has remained adamant in its stance not to revise the JPEPA. For Japan, striking out the questioned investment provisions from the JPEPA will cancel the most important concessions that they got under the treaty.

Thus, DFA secretary Alberto Romulo had to ask Santiago to defer her scheduled April 28 sponsorship speech, when she was supposed to officially endorse conditional concurrence, and wait until the side agreement between the two governments has already been clinched. Negotiations for a side agreement continued but has not been produced until Congress took a break from its first regular session in June. JPEPA’s next opportunity to get Senate approval was further delayed to August when Congress resumes session.

During the congressional break, DTI secretary Peter Favila continued pursuing the detailed side agreement with Japan. Even Roxas flew to Tokyo in July and met with top Japanese trade and foreign affairs officials to help convince them on the need for a side deal so that the JPEPA could get pass the Senate. But Japan would not budge from its “no revision” position. By end-July, Santiago was forced to admit that the best they could get from Japan was a mere “general statement” of assurance that the JPEPA will not violate the Constitution instead of a detailed side agreement that effectively revises the country’s unconstitutional obligations in the treaty.

Exchange of notes

With the doors for a possible revision of the JPEPA effectively shut, Santiago is left with no option but to endorse concurrence on the treaty as it stands. Santiago, of course, is obliged to do this as a political payback to Arroyo’s nomination of her to the International Court of Justice (ICJ). But Santiago and the JPEPA proponents still need to package the sponsorship for concurrence as if the earlier conditions have been met to counter the anticipated opposition from the public and some senators.

It is in this context that Santiago, in her August 6 sponsorship speech on the JPEPA, said that she is now endorsing (unconditional) concurrence on the treaty because the Japanese have already agreed to an “exchange of notes” that will supposedly correct the constitutional defects of the JPEPA. The exchange of notes actually has not been produced and made public until September 1, which further delayed interpellations in the Senate as some lawmakers including Roxas wanted to see its contents before proceeding with the interpellations.

Only five pages, the actual document is composed of: (1) the diplomatic letter of Romulo to Japanese foreign minister Masahiko Koumura, dated August 22, identifying four major points of “shared understanding” between the Philippines and Japan and (2) Masahiko’s reply to Romulo, dated August 28, citing verbatim the points he raised and a statement confirming the shared understanding.

The first two points of the shared understanding refer to general statements pertaining to the parties’ commitment to respect each others’ national laws, including their constitutions; and to implement the JPEPA in accordance with each other’s respective charters.

Point number three, meanwhile, enumerates the provisions of the 1987 Constitution that the Philippines clarified shall not be amended by the JPEPA. These include provisions in Article II (Section 15), Article XII (Sections 1, 2, 3, 7, 8, 10-12 and 14), Article XIV (Sections 4 and 12), and Article XVI (Section 11). The provisions cover, among others, the protection of Filipino enterprises from unfair foreign competition; restrictions on foreign ownership of public lands and in the exploration and exploitation of natural resources; limitation to Filipinos of certain investment areas; preferential rights, privileges and concessions granted to Filipinos covering the national economy and patrimony; regulation of foreign investments; regulation of technology transfer and promotion; and the promotion of preferential use of Filipino labor, domestic materials, and locally produced goods.

A useless document

A closer look at the contents of the exchange of notes reveals that the document is useless in so far as ensuring that the JPEPA will not undermine the Constitution. It could have been a stronger and more binding document if it explicitly amended the questionable provisions of the JPEPA, as originally proposed by retired SC justice Florentino Feliciano who first raised the constitutional issues during one of last year’s Senate hearings.

In fact, the exchange of notes could be a Trojan Horse just awaiting the opportune time to attack. A closer look at point number four of the shared understanding reveals the hidden intentions of the document:

“4. The present exchange serves only to confirm the interpretation of and does not modify the rights and obligations of the Parties under the provisions of the JPEPA.” (emphasis added)

In other words, the unconstitutional provisions of the agreement remain and will still bind the Philippines once the JPEPA gets ratified. The exchange of notes did not resolve the constitutional issues but in effect just deferred the question to be tested by actual legal conflicts over the treaty’s implementation that may arise in the future. This places the Constitution under unnecessary duress because under the Vienna Convention on the Law of Treaties, the Philippines could not raise unconstitutionality for failure to comply with its JPEPA obligations.

Legal luminaries share the same observation. In a paper, former UP College of Law dean Professor Merlin Magallona described the exchange of notes as a derogation of the Constitution. Magallona wrote: “The essence of a treaty in international law is that it creates legal relations between the state parties, and the core of such relations consists of rights and obligations embodied in the meaning of the text of the treaty in question. For this reason, instead, the Exchange of Notes appears as reaffirmation of the legal relations between Japan and the Philippines in JPEPA and has the effect of reinforcing the intent to adhere to the rights and obligations as provided in JPEPA”.

Magallona also argued that if the Senate ratifies the JPEPA, there is a danger that the treaty will supersede the Constitution in application and settlement of disputes over JPEPA’s interpretation. “In case of incompatibility between JPEPA and the Constitution as an issue to be decided by an arbitral tribunal that may be created by the parties pursuant to JPEPA, that tribunal will apply JPEPA over and above the Constitution pursuant to the fundamental principle of the pacta sunt servanda and in accordance with the basic norm of international law that a party to a treaty cannot invoke its internal law, including its Constitution, as a justification for failure to perform its obligation under the treaty”, Magallona wrote.

Professor Harry Roque, also of the UP Law, meanwhile, belittled the exchange of notes as a scheme to appease domestic opposition to the JPEPA. “The reality is that in a treaty, neither of the parties can invoke a violation of its domestic law as a ground for its non-compliance therewith. In short, even if the JPEPA were to violate the Philippine Constitution, it will not affect its binding nature. Hence, the exchange of note is a superfluity”, Roque pointed out.

Both Magallona and Roque said that the remedy to the unconstitutionality of the JPEPA is not the exchange of notes but non-concurrence on the part of the Senate.

Emerging alignments

While Santiago claims that with the exchange of notes, the JPEPA could now breeze through the Senate and perhaps be finally ratified by October, the reality is that more and more senators are being convinced that the treaty is legally indefensible. Since the exchange of notes was made public, a bloc of senators has emerged pushing for a renegotiation of the JPEPA.

Among them is Senate majority floor leader Francis Pangilinan who said that despite the exchange of notes, JPEPA’s ratification is not assured because he thinks that it failed to cure the major defects of the treaty. He pushed for renegotiation as a “way out” of the debate over the pact. While Pangilinan is careful not to call the move a rejection of the treaty, a renegotiation will, in effect, mean Senate non-concurrence on the current JPEPA. As Santiago noted, “a call for renegotiation will effectively kill the treaty” and asked her colleagues to simply “love it or leave it”.

Senator Benigno Aquino III has already confirmed that he belongs to the renegotiation bloc while Senator Panfilo Lacson has also made public his proposal to renegotiate the treaty. Lacson shares the views that the exchange of notes “may be rejected by the Japanese Diet or could be questioned before an international court”. Unconfirmed reports also list Senators Jamby Madrigal and Antonio Trillanes IV as among those included in the renegotiation bloc although Madrigal has been consistent from the start on her opposition to the JPEPA.

While not reported listed in the renegotiation bloc, Senator Pia Cayetano has also been vocal since the onset about her serious misgivings on the JPEPA specifically on its environmental impact. In addition, reliable sources also disclosed that Escudero and minority floor leader Aquilino Pimentel Jr. will likely vote against the treaty or support the call for a renegotiation. Santiago, interestingly, has also named Senator Gringo Honasan as among those who want the JPEPA renegotiated although he has yet to make any public statement on this.

Thus, there is a fighting chance that the needed eight votes to block JPEPA’s ratification may be mustered as senators forge a consensus around the unconstitutionality of the JPEPA despite the exchange of notes. But nothing is certain at this point considering that the Japanese, according to Senate insiders, have been really aggressive in their lobbying efforts to get the JPEPA approved and unrevised. Also, the propensity of Malacañang to use all the (dirty) tricks in the book to push for its agenda must not be overlooked.

The challenge for anti-JPEPA advocates is to ensure that those who have already come out publicly against the JPEPA, whether for outright rejection or for renegotiation, will firm up their position. The exchange of notes must be further exposed to help convince the other senators who have not yet made up their mind on the treaty. Public pressure, through the combination of one-on-one dialogues and briefing with targeted senators and direct mass actions to pressure the Senate as an institution to vote against the JPEPA must be intensified. (END)