JPEPA FLAWED, BUT OK WITH CHARTER
Sen. Miriam Defensor Santiago, chair of the foreign relations committee and principal sponsor of the Jpepa said that it is “flawed,” but can pass the test of constitutionality.
Santiago made the statement after the Senate concurred in the ratification of the Jpepa at nearly midnight last Wednesday, the last day before Congress takes a one-month break.
During interpellation, Santiago said she had insisted to the executive branch that a supplemental agreement should contain three exemptions from Jpepa, but only one was secured.
The supplemental agreement was made by an exchange of notes between foreign affairs Sec. Alberto Romulo and Japanese foreign minister Masahiko Koumura.
“After months of locking horns, our negotiators were able to get only one of the three exemptions that are necessary to make the Jpepa airtight in protecting Philippine interests. For now, the exemption obtained will enable Jpepa to pass Supreme Court scrutiny,” she said.
Santiago said she sought to limit Jpepa by three proposals, but only one was accepted by Japan.
“ Japan accepted the first proposal, but insisted on using language that should have been left out. We shall have to trust that it will observe these exemptions in good faith,” she said.
The first Santiago proposal was that the Jpepa shall observe all existing Philippine constitutional provisions, laws, and rules and regulations concerning investment activities
The second Santiago condition was that the Jpepa shall observe any future Philippine laws, including those passed by Congress, local governments, and administrative agencies.
“My second proposal was temporarily shelved, with a commitment by Japan that in the near future, it shall accept negotiations to amend Jpepa,” she said.
The third Santiago proposal was that Jpepa shall observe any act of Congress or any Supreme Court decision limiting the President’s delegated power to set tariffs applicable to RP-Japan trade.
“This third proposal was also shelved, with the Japanese commitment that it will be considered during future negotiations for amendment,” she said.
Sen. Francis Pangilinan said that by next year, he would file a resolution requesting the Office of the President to renegotiate Jpepa in order to amend it, by incorporating the three Santiago proposals.
“Unfortunately, we operate in the world as it is, not as it ought to be. Just the first proposal alone exhausted and endangered the health of trade Sec. Peter Favila, who was the lead negotiator,” she said.
But Santiago said she is confident that if questioned in the Supreme Court, the Jpepa will pass the test of constitutionality, because it has been modified by the August exchange of notes between the two governments.
“Under the Vienna Convention on the Law of Treaties, an exchange of notes, if so intended, is in itself a treaty binding on the parties. The Senate resolution of concurrence provides that concurrence is conditioned on the exchange of notes,” she said.
The first exchange of notes was on the Japanese commitment not to export hazardous wastes to the Philippines .
The second exchange of notes was on the observance by Jpepa of all Philippine constitutional provisions that require Philippine citizenship in certain investment activities.
Before the voting, Santiago was grilled on constitutional and legal issues by Sen. Aquilino Pimentel, Sen. Francis Pangilinan, and Sen. Jamby Madrigal.
Undecided senators like Sen. Loren Legarda said that after Santiago answered the interpellation on constitutional and legal issues, they decided to vote for the treaty, because it appears that it now has bright chances of being declared constitutional, if it is brought to the Supreme Court.
Santiago had earlier warned that if the Supreme Court declares Jpepa as unconstitutional, under international law, Japan would have the right to seek damages before an international tribunal.
During interpellation, Santiago paid tribute to the Jpepa opposition, particularly the Magkaisa Junk Jpepa Coalition, whom she said provided “helpful insights” on the treaty.
Santiago said she tried “to do better than my best” during the interpellation in order to obtain the required two-thirds majority vote, before she leaves for the United Nations in New York, where elections for the International Court of Justice to which she has been nominated, will be held on November 6.
While Santiago defended the treaty on the floor, her husband, Sec. Narciso Santiago, Jr., presidential adviser for revenue enhancement, was undergoing surgery for bleeding ulcers at St. Luke’s Medical Center in Quezon City .
To questions from her fellow senators, Santiago said that the surgery was successful, and her husband is expected to be discharged soon.
Labels: constitutional law, JPEPA, Miriam, Sec. Alberto Romulo