Voting 16-4, the Senate has railroaded Wednesday night the ratification of the JPEPA. The wicked scheme of Malacanang, Miriam Santiago and Mar Roxas was swift and was over in a matter of less than three hours. At 8:30pm, I received a text message from a Senate staff: “Nagbibilangan na dito. Gusto nila ipasa JPEPA tonight”. And at around 10:58pm, another text message came: “JPEPA has been approved on third reading. Pimentel, Aguino, Escudero and Madrigal voted no”.

The events that transpired at the Senate on Wednesday night, however, is not really surprising anymore. From the start, JPEPA has been shrouded in secrecy – it was negotiated by Malacanang away from public eye.  It was signed by GMA on the sidelines of a major international event in Finland. Civil society groups had to petition the Supreme Court just to force Malacanang to make public important documents about the JPEPA (which unfortunately the SC turned down, setting the precedent for more undemocratic and non-transparent negotiations on economic treaties in the future – at our expense, of course) That it was ratified by the Senate while the rest of the country is asleep is only a fitting conclusion to an agreement that has been kept away from public scrutiny.

This is not the first time that Congress, with apparent pressure from Malacanang and powerful lobby groups, has rushed the approval of an unpopular measure or initiative in the dead of the night. From impeachment complaints against GMA, to EPIRA and VAT, and now the JPEPA, legislators and Malacanang have the propensity to cloak their wicked plans against the Filipino people in the darkness of the night.

The press releases from Malacanang and JPEPA’s main proponents today are loaded with the expected sound bites. GMA was quoted as saying that the JPEPA will protect the country from the onslaught of the global economic recession – I guess GMA must hire new speech and PR writers to come up with more interesting and fresh sound bites, this is exactly what she has been saying to justify the VAT. Miriam, for her part, is denying that they railroaded the JPEPA. Inisahan na tayo, ginagawa pa tayong tanga.

But the fight is not yet over. One option is to file a petition before the Supreme Court to question the constitutionality of the JPEPA. Legal luminaries like former SC justice Feliciano, Prof. Dean Magallona and Prof. Harry Roque, among others have pointed out the constitutional defects of the treaty such as its provisions on foreign ownership and investment. We can pursue this option to stop JPEPA’s implementation. But like all government institutions, we can only expect a favorable ruling from the Supreme Court if we have a strong mass movement that will exert political pressure to defend the country’s patrimony and sovereignty.

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)

Part 1 of a two-part series

The Japan-Philippines Economic Partnership Agreement (Jpepa) is on top of the agenda of the Philippine Senate when it resumes from its Holy Week break on April 28. Senator Miriam Santiago, chair of the Senate committee on foreign relations, said she will release a full report endorsing “conditional concurrence” with the treaty.

Originally, the upper chamber was supposed to ratify the Jpepa before the Lenten break. But the Senate schedule on the treaty has been derailed by the alleged $329-million broadband corruption scandal. Since February, senators have been preoccupied with the inquiry on the anomalous broadband contract that caused renewed calls for Pres. Gloria Arroyo’s resignation or ouster.

Nonetheless, Filipino trade officials have been quietly but aggressively promoting the Jpepa through the media. The Japanese embassy has also become more insistent in its lobbying efforts for Jpepa’s ratification. But as the Senate vote on the treaty draws near, many fundamental issues remain unresolved. In fact, the proposed conditional concurrence of Santiago underscores the failure of the Jpepa to pass crucial constitutional issues.

If ratified, the Jpepa sets a dangerous precedent wherein treaties could be approved in spite of clear constitutional flaws. Worse, Jpepa ratification ignores the legitimate concerns brought up by fishers, workers, nurses, environmentalists, nationalists, and other cause-oriented groups. Beyond the constitutionality of the Jpepa, the bigger issues involve the treaty’s lasting impact on the livelihood of marginalized groups and the country’s economic sovereignty.

National treatment

Retired Supreme Court (SC) justice Florentino Feliciano raised several constitutional questions in one of the Senate’s hearings on the Jpepa last year. He pointed out that the Jpepa’s provisions granting national treatment to Japanese investors and prohibiting performance requirements violate the 1987 Constitution.

National treatment, which is contained in Article 89, means that Japanese investors and their investments will be treated like their Filipino counterparts. But this provision contradicts the ownership limits set by the Constitution. “It is common knowledge that entry into certain sectors of economic activity in our country is constitutionally restricted to Filipinos or to juridical persons at least 60% owned by Filipinos”, Feliciano said.

Government negotiators actually had the chance to hurdle such legal challenge. Article 94 of the treaty gives the Philippines an option to list all constitutional and legal provisions that do not conform to Article 89. But while the negotiators did exercise this option, they failed to provide a full account of such provisions. “The most dramatic example of omission”, observed Feliciano “is relating to the operation of public utilities”.

Article XII Section 11 of the Constitution requires a minimum of 60% Filipino ownership in public utilities. “If the Jpepa comes into effect, Japanese investors would be entitled to own more than 40% of a public utility. This would be a direct contravention of our Constitution”, Feliciano maintained.

There are other similar constitutional restrictions that were not listed by the negotiators in Article 94. They include limits relating to the practice of certain professions; ownership and administration of educational institutions; mass media; and advertising.

Performance requirements and future measures

Article 93, meanwhile, limits the authority of government to impose certain requirements on Japanese investments in the country. Government could not oblige Japanese investors to transfer technology, use a particular amount of local inputs in their production, and to hire Filipinos in certain positions, among others.

Feliciano cited Article XII Section 13 of the Constitution as inconsistent with Jpepa’s Article 93. This provision mandates the State to “promote the preferential use of Filipino labor, domestic materials and locally produced goods, and adopt measures to make them competitive”.

A “more serious” constitutional law aspect of the Jpepa that the negotiators ignored, according to Feliciano, relates to the so-called “future non-conforming measures”. Article 94 of the treaty also gives the Philippines an option to list economic activities that the country may want to exclude from Article 89 in the future. However, what the negotiators listed are not reservations for future measures but existing non-conforming measures.

This could undermine Article XII Section 10 of the Constitution. The said provision mandates Congress to reserve to firms at least 60% owned by Filipinos certain areas of investments. Such investment may not be restricted today but “when the national interest dictates” could be restricted in the future.

On trade liberalization, Feliciano raised his concern on possible conflicts between the executive and legislative branches of government. Article 18 of the Jpepa requires the Philippines to eliminate tariffs on imported Japanese goods. “The power to set and modify tariff rates is fundamentally legislative in nature”, Feliciano said. “Although the Constitution (Article VI Section 28) allows Congress to delegate such authority to the President, it is still subject to limitations and restrictions”, maintained Feliciano.

Conditional concurrence

Other legal stalwarts who were not invited in the Senate hearings echo the observations of Feliciano. But while Feliciano proposes to amend the Jpepa to correct its constitutional flaws, they believe that such an option is not possible. Former SC chief justice Artemio Panganiban said that the treaty can no longer be renegotiated because the Japanese Diet already ratified it in December 2006.

“The best option is ‘conditional’ or ‘qualified’ ratification wherein the Senate ratifies the treaty but expresses reservation that the Constitution is superior over the Jpepa”, Panganiban said.

Santiago apparently took her cue from Feliciano’s analysis of the constitutional aspect of the Jpepa and Panganiban’s opinion on how the treaty can survive constitutional challenge. “It (Jpepa) will be declared unconstitutional by the Supreme Court. That is my humble opinion as a scholar of constitutional law”, Santiago admitted.

Note, however, that before pitching for conditional concurrence, Santiago first floated the idea of “exchange of diplomatic notes”. She called it a “side agreement” between Japan and the Philippines which will state that the Constitution shall prevail over the unconstitutional provisions of the treaty. Santiago initiated informal talks about the side deal with the Japanese embassy in Manila last December.

But three months later, Santiago has yet to produce the supposed side deal. Normally, a copy of such agreement is distributed to senators as in the case of the toxic waste issue. In May last year, the foreign affairs departments of Japan and the Philippines had an exchange of diplomatic notes wherein Japan promised not to export toxic wastes in the country under the Jpepa.

Did Santiago fail to convince the Japanese government to sign a side deal that states it will respect the Philippine Constitution in relation to the Jpepa? In her latest statement on the Jpepa, Santiago did not mention the side agreement.

“The Jpepa committee report will comprise at least four documents: the standard format with the signatures of nearly 23 senators who are members of the two committees; the draft Senate resolution setting out the conditions for concurrence; the report on constitutional and legal issues; and the report on trade and industry issues”, Santiago said when she announced the April 28 schedule on the Jpepa.

Will Japan accept it?

Because there is no bilateral side deal where Japan commits to abide by the Philippine Constitution, Santiago is now pushing for a unilateral conditional concurrence. But will Japan accept it? Santiago herself is uncertain. “I hope Japan will accept the conditions, without resubmitting the Jpepa to the Japanese Diet”, said Santiago.

The constitutional issues cited by Feliciano against the Jpepa’s provisions on national treatment and prohibition of performance requirements are non-negotiable for Japan. It defeats Japan’s primary purpose of using the treaty to further maximize its exploitation of the Philippines’ resources and markets. Considering that the country already has a highly liberalized trade sector, the true value of the Jpepa for the Japanese is the commitment of the Philippines to liberalize more investment areas.

But what is more dangerous is the gambit that Santiago is trying to play. Ratifying the Jpepa at its present unconstitutional form creates the risk that the Philippines will be subjected to legal disputes in international courts and face liability for damages. Under the Vienna Convention on the Law of Treaties, for instance, the Philippines could not invoke unconstitutionality as legal defense for non-performance of its Jpepa obligations.

Why not avoid these future complications and say “no deal!” now because the Jpepa patently violates the Constitution?

Most importantly, these restrictions were imposed by the framers of the Constitution because they protect the national patrimony and sovereignty. Thus, the debate should go beyond constitutionality but on how the Jpepa may undermine the country’s efforts in achieving industrialization and in strengthening its self-determination.

(To be concluded)

Part 2 of the series discusses the deeper issues of Philippine patrimony and sovereignty in relation to the Jpepa.