MIRIAM WANTS BETTER NURSING TEACHERS

After the ratification of the Japan-Philippines Economic Partnership Agreement (Jpepa) was concurred by Congress, Sen. Miriam Defensor Santiago proposed more government programs to improve the quality of nurses the country produces.

Santiago's Senate Bill No. 2555, or the Nurse Faculty Higher Education Act, aims to provide scholarships to qualified Filipino nurses who plan to advanced degrees and be part of the nursing faculty.

The bill also seeks to provide grants to accredited nursing schools and hospitals or health facilities for the development of educational programs such as clinical simulation laboratories and distance learning technologies. Grants to hospitals, health facilities and schools will also be used for salaries and paid leaves for qualified nurses enrolled in graduate nurses programs.

By improving the instructors in nursing schools, Santiago's bill also aims to address the steady decline of nursing board passers in the last five years. Of the 64,459 nursing graduates who took their licensure exams last June, only 27,765 or 43.07 percent passed, which is lower than that last December's 43.45 percent.

"Due to the increase in enrollment, our nursing education system is hard pressed to catch up with the demand. The current faculty shortage will be greatly compounded in the next few years by the retirement or migration of many of the current nurse faculty," Santiago said.

Santiago said that the Filipino nurses has much to gain from the Jpepa because of Japan's ageing population, and that this is a big opportunity since this would be the first time that Japan allows the deployment of Filipino health-related professionals in their labor market.

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.

JPEPA SIDE ACCORD OK’D

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, released the exchange of notes between foreign affairs Secretary Alberto Romulo and Japanese foreign affairs Minister Masahiko Koumoura concluded last week.

“In international law, an exchange of notes constitutes a treaty, binding on the parties and implying performance in good faith. This exchange of notes will in effect constitute an integral part of the treaty,” she said.

Santiago said that every senator has been given a copy of the exchange of notes on Philippine constitutional provisions, in order that the senators could take the exchange into due consideration when they vote on the Jpepa.

“The exchange means that areas of investment activities reserved by the Constitution to Filipinos will remain reserved, and will not be opened to Japanese investors,” she said.

Santiago said the exchange confirms that Jpepa will not result in a violation or amendment of any nationalistic provision, notably “the ownership of lands of public domain and exploration, development, and utilization of all waters, minerals, coal, petroleum oils, all sources of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources.”

Santiago said Jpepa will respect the reservation to Filipinos only of all “preferential rights, privileges, and concessions granted to qualified Filipinos covering the national economy and patrimony.”

“For example, the Japanese cannot lease or own alienable public lands. Neither can they own and transfer private lands,” she said.

Santiago said that the exchange of notes prohibits the Japanese from operating any public utility, practicing any profession, or owning mass media or advertising corporations.

Other fields that the Constitution reserves exclusively to Filipinos concern health and educational institutions.

Jpepa will not amend any existing law protecting Filipinos from unfair foreign competition, regulating foreign investments, promoting preferential use of Filipino labor and domestic materials, or regulating the transfer of technology.

Santiago also said that the exchange of notes emphasizes the Jpepa provision that the treaty may be amended by agreement between the parties, in order to allow for future Philippine laws that might not conform to Jpepa, but are intended to enforce the nationalistic constitutional provisions.

“This exchange of notes is of course considered binding between the Philippines and Japan , and will be respected as an integral part of Jpepa,” she said.

Santiago said that under the 1969 Vienna Convention on the Law of Treaties, an exchange of notes is binding, when it is established that the states agreed that the exchange should have that effect.

“Thus, the constitutional issues raised by the treaty have now been resolved,” she said.

In the Senate, Jpepa is at present undergoing the process of interpellation on trade issues, handled by Sen. Mar Roxas.

After the trade issues are discussed, interpellation will proceed on the constitutional and legal issues, to be handled by Sen. Santiago.

After the period of interpellation is closed, three days later, voting on the treaty will be held.

The Constitution requires concurrence by two-thirds vote of the Senate, for the treaty to be considered ratified.

-End-

JPEPA HAS NUMBERS

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that Senate concurrence on Jpepa is “virtually assured,” because 14 senators have already signed the committee report.

“The required two-thirds vote of the Senate is only 15 senators, so we only need one more vote. That won’t be hard, because the issue of constitutionality has already been settled,” she said.

Santiago said that just a few days ago, Japanese foreign minister Masahiko Komura authorized Ambassador Makoto Katsura to sign an exchange of notes with foreign affairs secretary Alberto Romulo, in effect amending the treaty.

“The result of the exchange of notes will be that all Philippine constitutional provisions reserving certain economic activities to Filipinos and to corporations 60% Filipino owned shall prevail over Jpepa,” she said.

Santiago said that in effect, the exchange of notes will cancel the Jpepa provision that Japanese in our country would get “national treatment” – meaning, the same treatment as Filipinos in investment activities.

“Our national patrimony and natural resources will remain safely in Filipino hands,” she said.

Santiago said that pursuant to the RP Constitution, many areas of economic activity will continue to be reserved to Filipinos, such as land ownership, use of natural resources, operation of public utilities, practice of all professions, ownership of schools, of mass media, of advertising industry, etc.

“Under the Vienna Convention on the Law of Treaties, Art. 13, an exchange of notes in effect constitutes a treaty in itself, provided it states that the exchange shall have that effect,” she said.

Santiago said that Jpepa might be RP’s most important bilateral economic agreement in the last 50 years.

“Agriculture and exports will be the biggest winners. The treaty will immediately have a positive impact on farmers, fishermen, and food processors,” she said.

Santiago said that the moment Jpepa becomes effective, immediately 95% of RP exports to Japan will enjoy zero duties.

“ Japan has already concluded similar economic partnership agreements (EPAs) with Singapore , Mexico , Malaysia , Thailand , Chile , Brunei , and Indonesia ,” she said.

Santiago said that Japan will certainly increase its foreign direct investment (FDI) in RP, which in 2002-2006 already amounted to US$938 million.

“Japan is our biggest source of official development assistance (ODA) which in 2006 already amounted to US$4.7 billion. With Jpepa, ODA will get even bigger,” she said.

Santiago said that with Jpepa, RP exports to Japan is expected to reach $405 million or P 559 billion by 2011.

“Although there will be zero tariffs on 145 waste products, they cannot come in, because they are banned by R.A. No. 6969 on toxic wastes, and R.A. No.9003 on ecological solid wastes,” she said.

Santiago also said that both countries are bound by the 2007 exchange of notes between the RP and Japanese foreign ministers, stating that “Japan would not be exporting wastes to RP, in accordance with the Basel Convention” on the control of transboundary moment of hazardous wastes.

The 14 senators who signed the committee report were: Sen. Santiago, Roxas, Angara , Arroyo, Enrile, Gordon, Lapid, Revilla, Zubiri, Biazon, Legarda, Estrada, Pangilinan, and Pimentel. All had reservations except Angara and Enrile.

The 5 senators who did not sign were: Honasan, Madrigal, Trillanes, Pia Cayetano, and Escudero.

RP, JAPAN SLATE NEW JPEPA TALKS

Sen. Miriam Defensor Santiago, chair of the committee on foreign affairs, said she has deferred her Jpepa sponsorship speech, to give more time for senators to study her committee report, and to give time for foreign affairs secretary Alberto Romulo to discuss and negotiate with the Japanese ambassador a possible exchange of notes before the Senate debate.

“The committee recommended conditional concurrence, and insisted on compliance with 15 specified provisions of the Philippine Constitution. The senators first want me to explain what all this means. I have a problem using layman’s language to explain complex issues of political economy,” Santiago said.

But the senator said that her printed and bound Jpepa report for senators, written in layman’s language, will be distributed this week, possibly together with a separate report written by Sen. Mar Roxas, chair of the committee on trade and commerce.

“Unfortunately, the reports will take a lot of reading, because they are thick. That would delay the concurrence process. It cannot be helped,” the senator said.

Santiago said that in a nutshell, the Philippines is merely asking for the same concessions that Japan has already granted in its economic partnership agreements (EPAs) with such countries as Singapore, Malaysia, Thailand, Brunei, and Indonesia.

The senator said that senators are wary of the term “conditional concurrence,” because they are unfamiliar with it.

“The term ‘conditional concurrence’ is often used in the United States to refer to a package of reservations, understandings, and declarations that become a common attachment to major treaties, particularly to multilateral human rights conventions. This became the practice in the last century, because strictly speaking, the Senate cannot amend a treaty,” she said.

Santiago said that in the past, the Batasan during the martial law years made a similar conditional concurrence with the UN Convention on the Law of the Sea, coincidentally the center of another treaty controversy in Philippine politics today.

“My original recommendation was for the Senate to extend conditional concurrence, to be followed by an exchange of notes between the two governments. Now we shall reverse the process: exchange of notes shall come first, to be followed by Senate concurrence,” the senator said.

Santiago said if the Jpepa is accompanied by an exchange of notes between the two governments, the senators would find it easier to understand Jpepa implications. “The main issue is the difference in viewpoints.

Japan sees Jpepa as a free trade area agreement involving the elimination of import duties and the inclusion of all economic sectors, such as trade in services and trade-related areas.

The Philippines believes that Jpepa should support our economic development, contribute to the elimination of poverty, and include measures to promote the structural transformation of the Philippine economy,” she said.

Santiago said it was “highly laudable” of Japanese Ambassador Makoto Katsura to explore the possibility of an exchange of notes that will facilitate Senate concurrence in Jpepa.

-o0o-

Transcript of Senator Miriam Defensor Santiago ’s interview

On the Commission on National Territory

Present in the Joint hearing of the Senate Committees on Foreign Affairs, and National Defense and Security were Senators Miriam Defensor Santiago, Rodolfo Biazon, and Juan Ponce Enrile. The panel of guests consisted of Prof. Merlin M. Magallona of the UP College of Law ; DFA Usec. Rafael Seguis for Special and Ocean Concern; Atty. Henry Bensurto, Secretary General of the Commission on Maritime and Ocean Affairs; Usec. Milo S. Ibrado of the National Security Council; and Mr. Diony Ventura , Administrator of the National Mapping and Resource Information Authority [DENR-NAMRIA]

We have reached a consensus in this committee hearing, both among the senators and members of the resource panel, that before we even try to discuss the pending bills about the archipelagic baselines in both the House of Representatives and the Senate, we must discuss the matter very carefully because it has many unintended consequences. It is not as if we never declared our claim to ownership over the Kalayaan Island Group. This has been done since 1978. So the international community cannot say that we have waived our rights over there, or that by our mere silence we have consented to ownership by other countries.

However, the point today is that if we include the KIG in our definition in our archipelagic baselines, that would be considered 1) a violation of international law since the drawing of baselines has never been an accepted method in acquiring territory. There are other methods like occupation, conquest, or cession. So if we include the disputed KIG and the Spratlys just by drawing archipelagic baselines we would already be violating international law.

Number two, we would also be violating the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea which concerns the disputed KIG. In 2002, all the claimant countries agreed that they would simply observe the status quo, and not use force or threat of force in implementing their claims of ownership and sovereignty over these islands, but they would instead settle all their territorial disputes by means of negotiation and mediation, and that they would observe utmost self-restraint. So if we draw our baselines, and by that means try and claim ownership over the islands by including them within our baselines, that would be considered as an offensive act by our co-parties to the 2002 declaration. It would naturally be a source of irritants between our country and with China and other claimant countries.

During the hearing, we gave some examples of how complex the problem is if we declare ourselves as an archipelagic state. That is different from simply being an archipelago. An archipelago is a geological state. But if you declare yourself as an archipelagic state under the UNCLOS, then in the case of the Philippines , our territorial seas will immediately shrink by miles. In that case the waters around, between, and connecting out islands will no longer be our internal waters over which we have complete sovereignty. They would become archipelagic waters of which there would be a right of innocent passage by foreign vessels. There would be a right of archipelagic sealanes passage also by foreign vessels, perhaps of a military nature. We would have to allow in our archipelagic waters our immediate neighbors to continue to fish, if that was their practice before. So we suffer a lot of inhibitions and restrictions if we declare ourselves an archipelagic state by drawing our archipelagic baselines.

For that reason, since we don’t have the expertise to handle all these legal niceties, plus the scientific and technical knowledge to be able to draw the maps properly. Both the resource panel and the two committees decided to file a committee report to the Senate plenary session to establish a Joint Commission on National Territory. There is a counterpart resolution in the House, so if the two chambers concur, then all it needs is the signature of the President.

The only problem now is whether the Office of Maritime and Ocean Affairs of the Office of the President support the establishment of the Commission or will instead claim that the Commission should operate under them. In other words, should we have a Commission on National Territory that is legislative in character as I have proposed, or should it be executive in character. Even if it becomes an executive agency, I have no strong objection. I just want a complete, scientific, and scholarly study and analysis of the impact of the archipelagic doctrine on our national territory.

On the JPEPA

The senators are asking for time to study the full committee report. In this case, the senators told me that they find it hard to understand the resolution and its annexes. I don’t blame them because it is so technical. That is why, in anticipation, I already told my secondary chair that each of us should prepare a bound volume. Mine was finished. I thought that I would publish one volume combining the work of the two committees. Mine was thick, but his was even thicker. So we have to issue two volumes next week, and I will not sponsor it yet because the senators find it a very strange and new territory for them.

21 April 2008

“HISTORIC” JPEPA STARTS STORMY SENATE PATH

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, filed a committee report recommending conditional concurrence in the ratification of the Japan-Philippines Economic Partnership Agreement (Jpepa), and described it as “an improved treaty, because the condition requires compliance with at least 15 specified constitutional provisions.”

Santiago said that this will be the first time in Senate history that the Senate will extend “conditional” concurrence with a treaty ratified by the president, as contrasted with “simple” concurrence in the past.

“The Constitution has no provision either expressly allowing or disallowing a conditional concurrence. The rule in constitutional construction is that where the law does not distinguish, courts should not distinguish. The Constitution gives to the Senate the power of concurrence. Thus, it implicitly gives the power of conditional concurrence. This is the practice in the United States,” she said.

Santiago said the rule in Latin is: ubi lex non distinguit, nec nos distinguire debemos, and it has been applied repeatedly by the Philippine Supreme Court.

Santiago said the condition ensures that Jpepa will observe the constitutional provisions on: public health, protection of Filipino enterprises, ownership of public lands and use of natural resources, ownership of alienable public lands, ownership of private lands, reservation of certain areas of investment to Filipinos, and giving preference in the national economy and patrimony to Filipinos;

Regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and materials, practice of professions, ownership of educational institutions, state regulation of transfer of technology, ownership of mass media, and ownership of advertising firms.

The condition imposed by the committee also makes reservations for future exceptions to at least three Jpepa articles dealing with national treatment, most-favored-nation treatment, and prohibition of performance requirements.

Santiago explained that the condition prohibits three clauses, as follows:

• A national treatment clause accords Japanese the same rights as those accorded to Filipinos;
  

• A most-favored-nation clause between the two states provides that each state will treat the other as well as any other state that is given preferential treatment;
  

• A performance requirement imposes certain conditions for investment activities in the Philippines, such as to achieve a given level of domestic content, give preference to goods or services produced in the Philippines, or to hire a given level on Filipinos.
  

Santiago said the condition is necessary to protect private ownership of land, sectors listed in the Foreign Negative Investment List, and the policy under the Labor Code of hiing Filipinos first.

“The basic issue with Jpepa was that the advantages were in favor of Japan, but not necessarily for the Philippines. Another issue was that Jpepa failed to include reservations that Japan has already conceded to Thailand, Malaysia, and Indonesia. We just want equal treatment,” Santiago said.

“It was a highly technical and exhausting makeover. But Sen. Roxas and I still face the Scylla and Charybdis of getting the majority vote of the two committees, and then getting 16 votes in the plenary session. And finally, foreign affairs Sec. Alberto Romulo has to negotiate a supplemental agreement with the Japanese ambassador,” Santiago said.

The senator said that the agreement might take the form of an exchange of notes, and shall emphasize the “common understanding” of the two countries that no investor of either country shall be entitled to any right or preference under the Jpepa, “unless such investment shall have been made in accordance with the requirements of the laws of the other country.”

Answering media questions, Santiago said that if Japan refuses to agree to a supplemental agreement, “there will be no 2008 Jpepa, but the two countries will likely negotiate a 2009 Jpepa or later.”

The senator said the conditions for concurrence “are an absolute necessity,” because otherwise the Supreme Court would declare the Jpepa unconstitutional.

“The Vienna Convention on the Law of Treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Thus, if the Supreme Court declares Jpepa to be unconstitutional, in international law the Philippines would still be liable in damages to Japan for non-performance of treaty obligations,” Santiago said.

The Jpepa committee report is now being circulated for signature among senators who are members of the Senate foreign relations committee chaired by Santiago, and members of the committee on trade and industry headed by Roxas.

Under Senate rules, the committee report must be approved by a majority of its regular and ex officio members. Santiago said the process could take this whole week, hence she has rescheduled her sponsorship speech for Monday April 28.

Santiago is distributing to all senators the proposed Senate resolution of conditional concurrence, with Annexes A and B. She said that in addition, she will distribute the separate Full Committee Reports, with one volume written by herself, and another volume written by Roxas.

-End-

9 March 2008

SENATE SETS APRIL SPRATLY PROBE, JPEPA VOTE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that the public hearing on the controversial 2005 Spratly Islands agreement, as well as the Jpepa committee report, will be taken up on April 28, when Congress resumes session after the Holy Week break.

“Following Senate practice, the Spratly Islands investigation will probably be assigned to two committees: foreign relations committee for the constitutional and legal aspects, and blue ribbon committee for the criminal aspect,” she said.

Santiago said that the 2005 tripartite Joint Marine Seismic Understanding (JMSU) among the Philippines, China, and Vietnam, raises the issue of whether it violates the constitutional provision on Philippine sovereignty or jurisdiction over defined national territory.

“A mere scientific or technical cooperation agreement, which does not diminish or threaten Philippine sovereignty or jurisdiction, is constitutional,” she said.

The JMSU will collect data and information on the potential oil and gas reserves in the area, planned to last for three years, at US$15 million.

Santiago said that former Sen. Franklin Drilon, when he was justice secretary, issued a 1990 opinion stating it was “legally feasible” for the Philippines and Australia to conduct a similar Offshore Seismic Project.

She quoted Drilon, who ruled: “the project proposal which involves data-gathering, processing, and interpretation techniques envisioned pre-exploration activities which are not covered by constitutional limitations.”

“Drilon in 1990 said that a seismic project with Australia was legally feasible. Now Drilon in 2008 is saying that a similar seismic project with China could be a legal basis for impeaching President Arroyo. He will have to explain his mental calisthenics before the committee,” she said.

Santiago said that in his 1990 opinion, Drilon stated that after completion of the seismic project, “the President may enter into a service contract with a wholly-owned Australian corporation for large-scale exploration, development, and utilization of petroleum resources in accordance with P.D. No. 87, and other pertinent laws.”

“In 1990, Drilon approved not only the seismic project, but even a service contract with a foreign country for the use of petroleum resources. By contrast, in 2008, Drilon implies that a similar seismic project, without a service contract is already illegal and exposes the President to impeachment. This is a flip-flop that shows intellectual inconsistency,” she said.

Santiago cited the 1992 ASEAN Declaration on the South China Sea issued in Manila, where ASEAN foreign ministers resolved, “without prejudicing the sovereignty and jurisdiction of countries having direct interests in the area, to explore the possibility of cooperation in the South China Sea relating to the safety of maritime navigation and communication, protection against pollution in the marine environment . . .”

Santiago said the 1992 Declaration was followed by the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea, which she said “is merely a political declaration, without binding legal force, seeking to turn a sea of disputes into a sea of cooperation, pursuant to the policy of the late Chinese leader Deng Xiao Ping.”

Deng advocated the principle of “putting aside the disputes and jointly exploiting,” the area of the South China Sea.

“There is a curious question of timing. Since the pact was signed three years ago, why is it only now that it is being assailed as alleged presidential misconduct? What is the basis for the charge by a foreign writer that it is an alleged sellout?” she said.

Santiago warned that RP-China relations should not be dragged into the political fray, noting that China has extended preferential loans to the Philippines for various development programs, and is now the main financial provider for Southeast Asia, ahead of the World Bank, the Asian Development Bank, and aid programs from the US and Japan.

“The anti-Arroyo campaign should not be turned into an anti-China campaign. We should consign power plays to the domestic arena. International relations and diplomacy are too important to our national interest to be used as partisan political ploys. It takes decades to build up good interstate relations,” she said.

In another development, Santiago said that when Congress resumes on April 28, she will release a Full Committee Report recommending conditional concurrence with Jpepa.

“Ordinarily, a committee report is only two pages, bearing the signatures of committee members. But this time my committee report will be so extensive that it will be a bound volume. Jpepa is an extraordinary treaty, raising significant issues of constitutional and international law,” she said.

Santiago said that Jpepa committee report will comprise at least four documents: the standard format with the signatures of nearly all 23 senators who are members of the two committees; the draft Senate resolution setting out the conditions for concurrence; the report on the constitutional and legal issues filed by herself as chair of the foreign relations committee; and the report on the trade and industry issues to be filed by Sen. Mar Roxas as chair of the trade and commerce committee.

The senator said she finished Jpepa hearings in November last year, but Sen. Edgardo Angara requested additional hearings that took another month.

“In January, the Senate could not take up Jpepa, because the budget always takes priority. In February, it was overtaken by the NBN probe. This March, there is an extended Congress break. That is why April, when session resumes, is the earliest date available,” she said.

Santiago said she hopes Japan will accept the conditions, without resubmitting the Jpepa to the Japanese Diet or parliament.

“The constitutional issues are paramount. Hence, the Senate should ensure that the Supreme Court will not declare Jpepa unconstitutional. If we do not take scrupulous care in the Senate and the court declares it unconstitutional, such declaration of unconstitutionality will not be a valid defense, if Japan later sues the Philippines for nonperformance of contract obligation. This is a provision of the Vienna Convention on the Law of Treaties,” the senator said.

Santiago will be abroad until November this year, to campaign for the post of judge of the International Court of Justice where, if elected by the United Nations, she will be the only female among 15 judges elected worldwide on the basis of the highest qualifications in international law.
But Santiago said she plans to be in Manila when session resumes in April, so that she can deliver her Jpepa sponsorship speech and defend it, as well as preside over the Spratly Islands hearing, before resuming her hectic campaign schedule abroad.

- End -

16 January 2008

MIRIAM SEEKS JPEPA CONDITIONAL CONCURRENCE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said she is drafting a resolution of conditional concurrence which she hopes to present to her committee and then to sponsor on the Senate floor when session reopens on January 28.

“The process of Senate concurrence will be twofold, consisting of an exchange of notes between the two governments, and passage by the Senate of a resolution expressing conditional concurrence,” Santiago said.

Santiago said the target date for the entire process is “before March” in order to finish Jpepa before session adjourns on 29 March 2008.

“The exchange of notes will contain the shared understanding of both governments that Jpepa is consistent with their respective constitutions. Specifically, this refers to the Jpepa provisions to accord national treatment and most favored nation (MFN) treatment to, and to refrain from imposing performance requirements, on Jpepa investors,” she said.

Santiago said that constitutional issues in the Philippines are represented by Jpepa provisions on investment in Chapter 8, as well as the Schedule of the Republic of the Philippines in Parts 1 and 2 of Annex 7, giving national treatment and MFN treatment to Japanese investors.

“The Senate concurrence resolution will contain the condition that implementation under Jpepa of national treatment and MFN treatment does not impose any obligation on our country that would be inconsistent with the mandatory provisions of our Constitution,” Santiago said.

Santiago also said that the Senate resolution will also contain the condition that Jpepa will not violate the Philippine Constitution relating to the rights of any person to acquire or dispose of immovable property, public or private.

“The Japanese ambassador has graciously accepted this concept in principle. Our government has explained that the conditions of concurrence serve only to confirm the interpretation of Jpepa, and that the Senate resolution will not modify the obligations of the parties. Thus, there will be no need to return the treaty to the Japanese Diet, which is Japan ’s main concern,” Santiago said.

The senator said that while the exchange of notes will be brief, the Senate resolution will be much longer, because it will list certain reservations and exceptions, many constitutional provisions, and provisions on customs duties.

“It is important that the Senate concurrence resolution should clarify that any Japanese investment in our country should be made in accordance with the requirement of Philippine laws,” the senator said.

Santiago said that the concurrence resolution will explicitly contain provisions for additional funding of safety nets and other remedial administrative measures.

The senator said that the concurrence resolution should not be rushed because it has to observe the following constitutional provisions: right to health of the people, protection against unfair foreign competition, ownership of all lands of the public domain, utilization of all natural resources, lease and ownership of alienable public lands, ownership and transfer of private lands, reservation of certain areas of investments to Philippine citizens and corporations, preference to qualified Filipinos in the grant of rights covering the national economy and patrimony, regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and domestic materials, practice of professions, ownership and control of additional institutions, transfer of technology, ownership of mass media, and ownership of corporations in the advertising industry.

-End-

16 January 2008

MIRIAM SEEKS JPEPA CONDITIONAL CONCURRENCE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said she is drafting a resolution of conditional concurrence which she hopes to present to her committee and then to sponsor on the Senate floor when session reopens on January 28.

“The process of Senate concurrence will be twofold, consisting of an exchange of notes between the two governments, and passage by the Senate of a resolution expressing conditional concurrence,” Santiago said.

Santiago said the target date for the entire process is “before March” in order to finish Jpepa before session adjourns on 29 March 2008.

“The exchange of notes will contain the shared understanding of both governments that Jpepa is consistent with their respective constitutions. Specifically, this refers to the Jpepa provisions to accord national treatment and most favored nation (MFN) treatment to, and to refrain from imposing performance requirements, on Jpepa investors,” she said.

Santiago said that constitutional issues in the Philippines are represented by Jpepa provisions on investment in Chapter 8, as well as the Schedule of the Republic of the Philippines in Parts 1 and 2 of Annex 7, giving national treatment and MFN treatment to Japanese investors.

“The Senate concurrence resolution will contain the condition that implementation under Jpepa of national treatment and MFN treatment does not impose any obligation on our country that would be inconsistent with the mandatory provisions of our Constitution,” Santiago said.

Santiago also said that the Senate resolution will also contain the condition that Jpepa will not violate the Philippine Constitution relating to the rights of any person to acquire or dispose of immovable property, public or private.

“The Japanese ambassador has graciously accepted this concept in principle. Our government has explained that the conditions of concurrence serve only to confirm the interpretation of Jpepa, and that the Senate resolution will not modify the obligations of the parties. Thus, there will be no need to return the treaty to the Japanese Diet, which is Japan ’s main concern,” Santiago said.

The senator said that while the exchange of notes will be brief, the Senate resolution will be much longer, because it will list certain reservations and exceptions, many constitutional provisions, and provisions on customs duties.

“It is important that the Senate concurrence resolution should clarify that any Japanese investment in our country should be made in accordance with the requirement of Philippine laws,” the senator said.

Santiago said that the concurrence resolution will explicitly contain provisions for additional funding of safety nets and other remedial administrative measures.

The senator said that the concurrence resolution should not be rushed because it has to observe the following constitutional provisions: right to health of the people, protection against unfair foreign competition, ownership of all lands of the public domain, utilization of all natural resources, lease and ownership of alienable public lands, ownership and transfer of private lands, reservation of certain areas of investments to Philippine citizens and corporations, preference to qualified Filipinos in the grant of rights covering the national economy and patrimony, regulation of foreign investments, operation of public utilities, preferential use of Filipino labor and domestic materials, practice of professions, ownership and control of additional institutions, transfer of technology, ownership of mass media, and ownership of corporations in the advertising industry.

-o0o-

Transcript of Sen. Miriam Defensor Santiago’s Interview
14 December 2007

On the JPEPA

By January, on the first working week, I intend to sponsor the JPEPA, provided that I am able to convince the Japanese ambassador that we shall have a side agreement or an exchange of notes that will preclude any finding of unconstitutionality by the Supreme Court. As I have said, that is the threshold question. I think we have also because more or less we have reached a consensus on the language to be employed. The main concern here is that if we substantially alter the provisions of JPEPA, then, under Japanese law, the JPEPA will have to go through the Japanese parliament or Diet all over again. Naturally, the Japanese government does not wish to do that. It is going to delay the matter maybe by a year.

So what we are trying to do is very sensitive. What we are trying to do is craft a vocabulary or a formula that would be acceptable to the Japanese government and will preclude the necessity of submitting the JPEPA all over again to the parliament, and at the same time will satisfy the constitutional requirements of our own Philippine Constitution, so that we can be safely assured that if any petition is brought to the Supreme Court, at least the question of constitutionality, we shall be upheld both on the part of the Senate and the executive branch.

I think we are nearly there because the Japanese ambassador has been very accommodating and cooperative. The formula is with me. I am trying to word it very carefully and calling on all resources of academic training so that we can meet the requirements of Japanese law and Philippine law at the same time.

With regards to the trade and industry provision, there will be no major changes, maybe just a slight amendment on the language employed. I don’t think it would cause any controversy. I think we will have a JPEPA by the first three months of the new year.

On the JCPC’s contempt charge against Transco President and CEO Arthur Aguilar

He submitted a motion for reconsideration, and under the Epira Law that grants powers and jurisdiction of the JCPC of which I am chair, then I find his explanation acceptable and will reconsider the citation for contempt. Apparently he is also very sick.

On the proposed revival of the Anti-Subversion Law

That is a step backward. Under the Anti-Subversion Law, mere membership is punishable, and that would be unconstitutional because it would impinge on the constitutionally protected right of freedom of assembly and association. Although the previous Anti-Subversion Law provided that any member could be prosecuted provided that the member is in possession of arms or in the act of calling on an uprising against the government. Nonetheless, the language is so vague that it could be justifiably accused of unconstitutional infringement of the freedom of assembly and association. Just because you are a member of a party it does not mean that you are guilty of whatever some members have committed, that would be guilt by association which has already been rejected by our Supreme Court.

I believe that the present provisions of our Penal Code on insurrection, sedition, inciting sedition, and the Anti-Terror Law or the Human Security Act already provide amply for the protection of the state against rebels and subversives. But you cannot just hail a person to detention just because you suspect him to be a subversive. That was the authority granted to law enforcers in the Anti-Subversion Law, and that is why it was repealed in 1992.

Do you think it would gain support in the Senate?

No. Considering that the Senate is opposition dominated, plus because of the constitutional issues that it raises, I don’t think it would gain any ground in the Senate or even in the House. These two chambers of the legislature are very sensitive to public opinion, and I think it is indefensible to be able to arrest and prosecute a person just because he or she is a member of a political group. That is antidemocratic.

On the Senate Committee on Energy hearing

The Renewable Energy Bill has been filed in various forms by thirteen senators, so I can already foresee a brief and happy debate in the Senate because we already have thirteen votes, meaning even before we have debated it is already sure of being passed in the Senate. We want to develop renewable energy so that we will no longer be dependent on the fluctuating price of oil. This is actually an oil independence law. We want to give incentives to people who want to develop renewable energy facilities by, for example, exempting them from tariff duties, value-added tax, giving them substantial discounts in realty taxes and income taxes. There are a lot of fiscal and non-fiscal incentives.

On the part of the consumer, the law provides for green energy option, meaning if you choose not to avail of your electricity from the standard electricity supplier which is always sourced from oil, but from a supplier that sources its energy from a renewable energy source. It provides for a discount or a tax holiday when you avail of this option. Binibigyan natin ang consumer ng karapatan para mamili kung alin ang panggagalingan ng kanilang kuryente. Kung oil, kung tumaas ang presyo ng langis, tataas rin ang presyo ng iyong kuryente. O kaya kung renewable energy sources, bibigyan ka ng diskuwento ng gobyerno o babawasan ang iyong income tax. Basically this is an incentives bill so that our country will be weaned away from total oil dependence to renewable energy. We have already agreed with the executive branch that his will be prioritized.

Can the proceeds from the sale of the government’s energy assets be used to lower electricity rates?

You can use it in that sense only if the money is turned over to the National Treasury. Remember when we sell our electricity assets, part of it will go to the government, part of it will go to the National Treasury. That part that goes to the National Treasury can be used by Congress by the President when she submits her proposed budget to subsidize oil prices.

As you have heard the PISTON president this morning, apparently this (public transportation) is an industry crying for help, and the only way you can help an oil industry-based service sector is by subsidy, either by exempting oil from the usual taxes or by government stockpiling it. He made a very radical proposal; he wants government to buy Petron, which we already sold. As I’ve pointed out yesterday, it is very important that we must reconsider and study carefully the sale of our asset kasi kapag nabenta mo na iyon, mahirap na bilhin ito muli.

I say that [subsidy] is a real possibility. Imagine, the peso-dollar parity is now almost Php40, baka bumaba pa. We cannot go back to oil regulation. That would be a step backward.

You’ll notice that there is a periodic sense in the public to change presidents whenever there is an oil price increase. Any president who is historically-conscious will make sure that the almost cyclical increases in oil prices will not affect his or her incumbency.

On Sen. Madrigal’s insistence that there is an anomaly in the Transco sale

That is for her to prove. As far as we could gather from yesterday’s JCPC hearing, there is no documented evidence of her charges. She makes these accusations, but in court you need evidence, and it could either be testimonial or documentary. You have to have a witness who has first hand knowledge that there is a subversion of the Anti-Dummy Law because in effect the charge is that there is no Razon name in any of the papers involved and he is acting through somebody else. To make that charge stick you have to present either a witness who can testify through first hand knowledge, or documentary evidence. I doubt very much if that is possible.

There is an accusation, but even from a fact-finding point of view there is no probable cause. There has to be more than mere verbal accusation. There has to be evidence to support it.

-o0o-

Transcript of Senator Miriam Defensor Santiago’s Interview

16 November 2007

On the Transfer of Sentenced Persons Agreement between the Philippines and Spain
Kung matapos [ang pagpasa sa] treaty, pwede nang ipalipat ang mga convicted na mga Pilipino (mula) sa Espanya. Meron na tayong ganitong treaty sa Hong Kong at sa Thailand . Meron pang mga treaty na tapos na ngunit hindi pa kumpirmado ng Senado galing sa Canada at Cuba , at susubukan natin na ang ganitong uri ng mga treaty ay mapalawak natin para sa ating mga overseas Filipino workers, lalo na ang mga naco-convict halimbawa sa Middle East . Para silang incommunicado bilang mga preso doon at wala silang pamilya doon na bibisita sa kanila. Iyan ang pakay natin.

Nag-public hearing kami ngayong araw, at sa Lunes ay iso-sponsor ko na sa Senate floor, para pagkatapos ng mga debate ay maghihintay na lang ng tatlong araw para maaprubahan na for third reading sa Senado.

Ilan ang Pilipinong nakakulong sa Espanya?
Pito lang naman sila, out of about 50,000 Filipinos. Ang problema natin sa mga natapos ng treaty sa Hong Kong at Thailand ay hindi pa tayo nag-iimplement ng mga treaty na iyan dahil sa ilalim ng lengguwahe ng mga treaty na ito ang Pilipinas ang gagastos para sa pag-uwi ng mga Pilipino. Walang appropriations sa budget para diyan. Kaya kinakailangan kapag humingi tayo ng concurrence ng Senado, hihingi rin tayo ng kahit limang milyong piso man lang para pambili ng tiket ng mga uuwing sentensyado o convicted persons.

I raised many cracks (in the treaty) or gray areas that are not covered so that they could be covered by the implementing rules and regulations by the Department of Justice.
[Larrañaga] will be the most celebrated beneficiary of the treaty dahil siya ay dual citizen. Citizen siya ng Pilipinas at citizen din siya ng Spain . Dito siya nakakulong pero hindi pa tapos ang kaso niya dahil ang sentensya niya ay reclusion perpetua [at] pinaapela niya ang kanyang sentensya sa Korte Suprema. In his case, the judgment is not yet final. The treaty will apply only if the judgment has become final.

Pero ipalagay natin kapag nasentensyahan na siya ng Korte Suprema, kung gusto niya at magrequest siya dahil Spanish citizen siya, or if the Spanish government makes a request and he consents, doon siya ikukulong sa Espanya. May sasabihin diyan ang pamilya ng biktima, natural, dahil gugustuhin nila na dito sa Pilipinas (siya makulong). Kaya pag-iisipan natin ang mga kasong ganoon. Baka mamaya, ang pakiramdam ng publiko ng Pilipinas ay nadehado ang pamilya ng mga biktima. We cannot entertain any request for transfer from the convict or the state until judgment has become final in our Supreme Court, in the case of Larrañaga.

Who must initiate the request for transfer, the sentenced person or either of the governments?
It is indispensable that the prisoner must consent whether or not he initiated it. Pwede na i-initiate ng Spain , as long as the prisoner later on consents, because we are talking of starting the process. In any event, even if the process has started, if the prisoner does not give his written consent, then everything else that took place before will become invalid.

On the JPEPA
The last hearing will be conducted on Friday next week, 23 November 2007. I am leaving for the ASEAN aspect for my candidature for the International Court of Justice the following Sunday. I will be present on Friday, but for the purpose of continuity, the chair of the secondary committee will continue to preside because he presided already over the additional hearing. He (Senator Roxas) and I have already agreed in principle that we have to find a way so that the treaty will not be declared unconstitutional by the Supreme Court but will also be recipient of the approval and consent of Japan . It is very, very tricky. It depends on the way the language (of the treaty) will be couched. Remember that no state, particularly Japan , wants to lose face, so we cannot say that this treaty is unconstitutional under Philippine law—it is my prediction as a humble scholar of constitutional law that it will be declared unconstitutional by the Supreme Court.

Unfortunately under international law, a state cannot relieve itself of the obligation to implement a treaty just because its Supreme Court ruled that it is unconstitutional. Philippine constitutional law is internal to us, and does not have any validity with respect to an interstate dispute before an international court. We cannot plead that as a defense, but we cannot enforce this treaty because the Supreme Court says that it is unconstitutional. So we have to find a way so that we can accommodate the constitutional dimension in the treaty, but at the same time be able to encourage or persuade the Japanese government to give its consent because this is a bilateral treaty—the other party must always give its consent, both to the treaty and to any subsequent conditions and provision, in which in international law could be called a reservation, understanding, or declaration. The supplemental agreement, or the clause that will assure constitutionality of the treaty for the country, will be contained either in a reservation or an understanding or declaration or exchange of notes. In any event, it will require approval of the Japanese government.

The most practical thing to do, as chair of the committee, is to draft the diplomatic language and consult with DFA and the Japanese ambassador on whether the language is diplomatic enough that it will be considered acceptable by Japan, because if Japan does not consent nothing will come out of these efforts. We cannot just run the risk of campaigning just for concurrence by the Senate plenary only to have it rejected as unconstitutional by the Supreme Court. It will already be an embarrassment for both President and the Philippine Senate who would have concurred. At the same time, it would be a ground for dispute with Japan in an international court. It is in fact crucial for us to be able to deal with the aspect of constitutionality raised by the oppositors but in a manner acceptable to the Japanese.

We must save the treaty because there are good provisions there. We just have to make sure that it does not work to the disadvantage of our people. While I am hoping that I may accomplish this before the Christmas break, it all depends how hospitable an attitude the Japanese ambassador will show. I am very happy that the Japanese ambassador has not rejected any effort to put a postscript to the treaty. Normally other state parties will be very adamant if they already have the upper hand in a treaty, but at least he is very open-minded. In effect, we will just be applying the provision already in the treaty that within one year, each party may expand its reservations. The problem here is this: When they were negotiating the treaty, the Japanese government’s panel were very alert. They made very comprehensive reservations. Unfortunately for us, the reservations we made are too few. What happens now under the treaty is that the Philippines is in a disadvantage. The negotiators made reservations to the “National Treatment” clause, the “Most Favored Nation” clause, and the “Prohibition Against Performance Requirements.” Under the “National Treatment” clause, the state must accord to the nationals of the other state the same treatment but you are allowed to make reservations. There are reservations that are much longer than ours.

This kind of comprehensive reservations that Japan made in the treaty is enjoyed by other countries, such as Malaysia and Thailand , which have already ratified their respective treaty with Japan . I will have to explain in the Senate floor why Japan ’s reservations are longer, and why Thailand and Malaysia have longer reservations than us. What we need to do is to make a provision, or to make sure that the article in the treaty that provides for further reservations within the period of one year will include reservation that will ensure constitutionality of the treaty.

On the recent bombing incidents
We have not yet established a pattern. The recent findings even by foreign police teams were that the Ayala blast was caused by an industrial failure. The initial findings of the PNP are that the blast that killed the congressman was only focused on his own personal assassination. We just have to wait for other senators and congressmen to be assassinated by bombing so that we can declare that there is a pattern of assassination that already indicates terrorism.

But before that, we could draw no conclusion. I don’t think that there should be cause for concern among the senators and congressmen since they are always declaiming about their great love of country. More often love of country is illustrated by young men who go off and sacrifice their lives in the battlefront, so I don’t see why very old people or middle aged people should be so afraid to die for their country when young people are automatically shipped to die for their country. So I am counselling everyone in the Congress: wait until you get assassinated. Then we shall know whether this is terrorist or whether this is just assassination.

If you have this series of blasts, of course foreign investment will respond accordingly. So far it hasn’t. It means that the international business community believes that these incidents are anecdotal. That is a very good sign. It means that the international business community believes that the fundamentals of the Philippine economy are sound.

On whether President Arroyo can take back former President Estrada's pardon
I have said that, normally, if the person pardoned violates the conditions of his pardon, then of course the pardon becomes null and void. But I have to see the pardon itself as signed by the President. It was reported in the papers that it was full, complete, and absolute. If that is the case, it is not a conditional pardon. There is no condition for it. Even if he, let’s say, violates the law, then the pardon will continue. It depends on the language employed. I am only trusting what I read in the papers; if it is accurately reported as having been “full, complete, and absolute pardon,” then the mere fact that he has violated the law will of course incur liability in the prosecution service for him, but it will not necessarily lift the pardon.

12 November 2007

Transcript of the interview with Sen. Miriam Defensor Santiago at the Session Hall

On alleged bribery involving Malacañang:

If there’s a charge of bribery against the President, we have to remember that the President always sits in two capacities. One, as President of the country. Two, as nominal President of her political party or, in this case, her party coalition. It is also possibly a valid defense if it is raised by the administration officials that the distribution of money in Malacañang was owing to a decision of the directorate or a council of the coalition of the President’s coalition party. There will be no illegality because all political parties are supposed to give financial backing to all its incumbents in government. There would be nothing wrong in that position. I should know because when I started the People’s Reform Party all the candidates in my ticket were all asking me for money which I did not have. Apparently, this is a standard expectation of all political personalities who belong to a political party.

The problem there is that the coalition officials did not immediately come out and assure the public that this is existing political procedure. If the charge is bribery, because of the impeachment complaint, I would say that there is a very far gap between the handing out of money in Malacañang by the President’s political party and coalition and the impeachment complaint. You cannot just tie them both immediately. There are so many loose ends if that is the proposition. Let the Senate proceedings take place, but I am afraid that the evidence would not be sufficient to even merit a recommendation to the Ombudsman to investigate the matter further.

Even if the act of giving out money is legal, isn’t it improper to give it out in Malacañang?

That is precisely the point. Why do it there? Why not in their party headquarters? If they don’t have an official headquarters, why not hold a dinner in some establishment? I think that is the error. Otherwise, I really do not see any illegality since after all political parties are supposed to do that.

Whether there is a conflict between the Senate hearing on the matter and the impeachment proceedings

The congressional power to conduct inquiries in aid of legislation is plenary, that is the ruling of the Supreme Court. We can virtually investigate anything. There is no prejudicial nature here. Just because it’s being taken up there (Lower House) doesn’t mean it can no longer be taken up here.

On whether the North Rail Project probe should be reopened:

Definitely yes. In the first place, it has not been terminated. Apparently, the evidence received in the last session of Congress is that he (JDV) might have expressed illicit interest in that contract.

On the JPEPA:

Politics is the art of the possible. Among the administration senators, we really want to support President Arroyo on the JPEPA. The immediate goal here is, first, to convince the opposition. Remember, we need 2/3 vote in the Senate to ratify a treaty. The administration senators do not constitute 2/3 of the Senate. Since there are only eight administration allies, we need eight more. In the Senate, as it is really intended to be in the system of checks and balances, the senators do not always vote according to national interest, which is a very abstruse concept. They vote according to partisan political lines. We face the problem of what appears to be an intractable opposition.

Even more important, we have to be sure that when this treaty is brought before the Supreme Court, which I believe is a certainty, the Supreme Court will not embarrass the President because we want to preserve the integrity of the Philippine President as the official spokesperson of the country in the international community, as well as the integrity of the Philippine Senate as a participant in the decision-making process. I know for a fact that some UP Law professors have already finished drafting a petition for certiorari questioning the constitutionality of the JPEPA before the Supreme Court. They are just waiting for the concurrence of the Senate on the treaty before filing the petition with the Supreme Court.

There are two main objections to the JPEPA. The first constitutional objection is it makes no reservation for any future measure that the Philippines may take in order to express preference, for example, for Filipino nationals, or for Filipino goods and services, or for protecting our domestic industries or our domestic workers, or any developmental measure to protect our people from the interest of Japanese investors. That is almost an invidious failure on the part of the negotiating team.

The second objection is that our Constitution is not adequately protected by the present text of the JPEPA. So if this case is brought to the Supreme Court, I’m afraid it’s a no-brainer, but that’s only my preliminary opinion. Since there is one more public hearing, prudence dictates that I should only express a preliminary opinion. But in my humble view, JPEPA should be accompanied by a supplemental agreement. I am willing to sponsor on the Senate floor a resolution for the President to continue talks with the Japanese government in order that we can have a supplemental agreement. After which, both the JPEPA and the supplemental agreement should then be reported out on the Senate floor. I think then concurrence will no longer be difficult.

-o0o-

News Release

12 November 2007

MIRIAM: JPEPA NEEDS SUPPLEMENTAL AGREEMENT

Sen. Miriam Defensor Santiago, chair of the Senate committee on foreign relations, on reporting to the Senate after arriving from New York, said that in her preliminary opinion, JPEPA needs to be accompanied by a Supplemental Agreement, because the treaty in its present form fails to make a reservation for future preferential, protective, or development measures over Japanese investments.

“If the treaty in its present form is questioned in the Supreme Court, the case will be a no-brainer. But prudence dictates that we should wait until the last public hearing,” she said.

Santiago, a constitutional law expert, warned “shallow legal kibitzers” to refrain from misleading President Arroyo, because the senator said ultimately the treaty will be taken to the Supreme Court, and it is the duty of the Senate administration allies to protect the integrity of both the President and the Senate in the treaty-making process.

“My preliminary preference is to propose a Supplemental Agreement to the executive branch, and subsequently to sponsor on the floor both the JPEPA and the Supplementary Agreement,” she said.

The senator said she will advise President Arroyo to follow US common practice, and to appoint senators to negotiating delegations, so that the senators will contribute their sense of what the Senate will accept, thus deterring and disarming Senate opposition.

“The reservation in JPEPA is very narrow, and contrasts with comprehensive reservations made by Malaysia, Thailand, and Indonesia in their EPAs with Japan, and even by Japan in its reservation in JPEPA,” Santiago said.

Santiago pointed to specific constitutional provisions that require the State to intervene, when necessary to protect the Philippine economy, with future performance requirements, such as transfer of technology and nationality in hiring policies.

“In its present text, the negotiating team failed to provide for flexibility in imposing or adjusting for preferential measures, and also failed to provide for nationality in hiring policies,” she said.
Santiago, a former UP constitutional law professor, said that during the public hearing, government resource persons “failed to grasp the crucial difference between Annex 6 on trade and services, and Annex 7 on investments.”

“JPEPA negotiators and their defenders made the fatal mistake of differentiating the rules on trade and services, from the rules on investment negotiation. In fact, under Article 88, the definition of ‘investments’ is so exhaustive that in effect Article 88 defeats Annex 6 on services,” she said.

Santiago said that while she was in New York with foreign affairs secretary Alberto Romulo and Ambassador Hilario Davide, to pursue her national candidature for the International Court of Justice, she kept track of the additional JPEPA hearing conducted in her absence, and found no substantial reason to change her preliminary opinion of the treaty.

“The Senate opposition will not ratify JPEPA, because it will become the first treaty under which the Philippines promises never to impose nationality hiring requirements, or technology transfer requirements, on any foreign investment,” she said.

Santiago said that she will be leaving for a campaign in three ASEAN capitals on November 25 to December 5, but she expects to circulate a committee report before the Senate goes on Christmas break.

-o0o-

Transcript of Senator Miriam Defensor Santiago’s interview after the fifth hearing on the JPEPA

8 October 2007

As a constitutional law student, I am personally godsmacked by what the imminent constitutional law expert have said. They were very strong in their view that the JPEPA is unconstitutional.

I have already emphasized that the constitutional issue is a threshold question because in a hypothetical case, even if the committee reports the treaty favorably to the plenary session in the Senate; and the Senate, by a minor miracle, approves it, the opposition, who is very emotional and committed to their cause, will certainly bring a case to the Supreme Court. If the Supreme Court decides that the JPEPA is unconstitutional, it will become unnecessary to discuss all other points. That is the most fundamental priority of all these hearings: is it constitutional or not. That is why I deliberately left the issue of constitutionality for last because it is a very technical issue and will be very difficult for the public to understand.

Among our experts is the preeminent legal scholar of this country and actually the most famous
international law expert for Asia, and therefore in the world, Mr. Florentino Feliciano. His paper
consisting of seventeen pages is categorical. He is citing chapter and verse the Constitution, not just one but several. In my personal view, when Justice Feliciano says something, that is no longer debatable. Even the administration spokesperson on this particular issue conceded that Justice Feliciano’s opinion is simply in the level of the supernatural—when he says something, there is almost nothing that you can say against it.

The same is true for the other expert in international law, former Dean of the UP College of Law and Oxford graduate Dean Merlin Magallona. Virtually, if we go by the objective analysis of these independent experts, the JPEPA is dead. JPEPA is unconstitutional in several constitutional grounds, and then they went on to explain which ones of these provisions are, and why they adversely impact the validity of the JPEPA.

But as I’ve said, we are not finished, in fact there will be an additional hearing to be presided by either Senator Roxas or Senator Angara. I have to keep an open mind until after that last hearing and until after all the parties directed should have submitted their written memoranda by October 23. But as a lawyer, for me the preeminent question is constitutionality. Once you have a valid and substantial constitutional question, then there is no point in discussing the JPEPA. It is the ultimate first priority. Since our objective experts who were testifying or having their papers read were categorical in their findings.

The power of the Senate is confined merely to ratification or rejection. We cannot possibly amend the treaty. What we can do is send back the treaty to the executive branch for renegotiation for amendment, addition, or exclusion as we shall see fit in the Senate floor. But of course, they will take my recommendation as chair of the committee into full significance.

If that is the case, I will first have to get a majority vote of my own committee. But notice there
were three administration senators present, but we were unanimous at least in this hearing that there is no question that JPEPA is unconstitutional.

But as I’ve said, I will struggle very hard against my own instincts to try and keep an open mind, because after all, there will be one more hearing, and then I still have to wait for the memoranda from all parties.

On the JPEPA provisions claimed by experts to be unconstitutional

The Philippine Constitution is one of the few in the world that has a nationality provision. In other words, we consider that, as a matter of Filipino nationalism, certain areas of business, trade and industry should be reserved only for Filipino citizens or corporations that has at least a majority or controlling share is owned by Filipinos. According to these experts, the JPEPA, if implemented, will violate these nationality provisions. Under the treaty, only Japanese entities may invest in the Philippines. However, there is a practice in international trade law where, to get around that requirement, they can form a corporation which would be the “grandfather,” and that corporation can form another one, and so on, until it reaches a point where the registered Japanese corporation is no longer controlled by the Japanese but might be controlled by Americans, Europeans or whoever. There is actually a backchannel or loophole in that provision, that is why it might be unconstitutional on that ground.

In the 1993 Oposa v. Factoran, the Supreme Court said that all activities on the part of the government must apply to the constitutional provision of protection of the environment on a balanced ecology. And so, it is likely that that provision will be applied as well, and that would be the second ground for unconstitutionality. That is the problem: it is not only one ground, but several. If you don’t get it declared in one ground or one provision, there are still other provisions you have to contend with.

That is why I am very worried about the fate of JPEPA even on committee level only. But in plenary level, we are already disadvantaged because the numerical majority belongs to the opposition, and this series of hearings provided the opposition senators with very strong ammunition. I for one confess that I will not be able to defend the constitutionality of the JPEPA
on the Senate floor.

-o0o-

Transcript of Senator Miriam Defensor Santiago’s media interview after the fourth JPEPA hearing

4 October 2007

I am no longer going to give my scorecards round by round because there are only three rounds left, meaning to say the hearing today, the hearing on Monday, and then the written memoranda. So if I continue with my scorecards, you might draw the conclusion that I have prejudged the case before the written memoranda has been submitted because the deadline is October 23.

But I will say that the whole problem all along is that the administration officials on the whole have been merely giving the committee narrative statements, that is to say merely summarizing the treaty for us. They are arguing on a theoretical level on the basis of treaty provisions. The opposition is citing actual experience and empirical evidence. So the two panels presented issues that have never been joined. The issues have never been joined because there is a big gap between theory and reality. Notice that the senators in the committee where virtually dismayed when even the people who should benefit the most—the nurses, the caregivers, the migrant workers—have issued statements against the treaty when normally one would expect that they would support it. I will say at least that the committee members are flabbergasted, as noted even by the administration public officials.

I consider, as a lawyer, that Monday’s hearing will be the most important because it will deal not only on the movement of goods and services but also, and most significantly with the constitutional issues. We have invited constitutional law experts including, most specially, former Supreme Court Justice Florentino Feliciano, who is the country’s most and widely and internationally recognized expert in international law, and having been a Justice, is also an expert in constitutional law; plus the former Dean of the UP College of Law, Merlin Magallona, who is also an expert in international law. You will remember that Justice Feliciano was the brilliant Justice who wrote the concurring opinion in the 1993 case of Oposa v. Factoran, where the Supreme Court for the first time, not only in our country but for the whole world, applied a constitutional provision on a balanced and healthy ecology. So I am very worried because the fundamental issue here as a lawyer is constitutionality.

Suppose the Senate concurs with the treaty, the opposition might, hypothetically, bring a case to the Supreme Court. And suppose we lose it on constitutional grounds. That’s how important the
constitutional issue is. It is the most basic of all issues. If it is unconstitutional, then there is no
point in debating all the other issues. And I have to bear in mind the decision in Oposa v. Factoran, which is cited in all international environmental law text and casebooks because that’s the first time a national Supreme Court upheld a constitutional provision on health and ecology. If we follow that ruling, it is possible that the Senate and the Office of the President will lose the case. That is why I am very hopeful and interested in what the brilliant Justice Feliciano, a former judge of the Arbitral Tribunal of the WTO, and Dean Magallona would have to say.

Can the treaty be renegotiated?

Definitely. We can send it back to the President for renegotiation. That is a definite option, but, in effect, it would mean a rejection of the executive branch. For all you know maybe Japan would refuse to renegotiate it on that basis. Also, there are provisions that when the treaty has become executory, then the parties may continue to renegotiate. But I’m sure the opposition may say “Why are we going to apply that treaty now? Why is there such a big rush? Let’s wait for the renegotiation first.” Renegotiation is a diplomatic way of saying “we reject it in its present form.”

The administration officials never gave us a balanced analysis on what concessions will we surrender and what were the concessions in return made by Japan. They just keep on summarizing the JPEPA for the members, and I’ve already read it. I don’t need someone to summarize it for me.

I am looking at previous Senate practice because it is not mentioned in our Senate Rules. But if I’m not allowed to sit on it, that is to say just send it to the archives, then I will be compelled to issue a report recommending renegotiation.

I just have to keep an open mind until the written memoranda are submitted because I want to summarize the reasons of each side for the entire committee, for all the senators who were not present.

-o0o-

Transcript of today’s press interview with Sen. Miriam Defensor Santiago

27 September 2007

On the possible impeachment of Comelec chair Benjamin Abalos

Impeachment is not strictly a legal or judicial process. It is part judicial and part political. That (impeachment of Abalos) would depend on whether they can raise the numbers in the House of Representatives. Well, there is already a ground because under the Constitution, an impeachment proceeding can be initiated on the ground that there is betrayal of public trust and that there has been culpable violation of the Constitution.

On her statements at yesterday’s ZTE hearing
I will never denigrate the Chinese because I married one. My husband is a Yap, his mother was Chinese. I’ve always been a great admirer of Chinese civilization. I made a trip to China when I was not a public official to see their historical monuments and imbibe their culture.

We were talking about a Chinese contract. My point was if you are a public official and there’s a pending government project with you, to socialize with any of the parties of the contract is very suspicious.

Tomorrow, I will write a letter to the Chinese ambassador.

On the JPEPA

If this were a boxing match, this is already round three of the JPEPA. I already gave the first two rounds to those against the JPEPA. Today, I still give round three to those opposed to the JPEPA. They were presenting the cases of other countries in Southeast Asia which also have economic partnership agreements or EPAs with Japan. Not only that, but they also presented empirical evidence, meaning to say, the experience of these other countries which have EPAs with Japan, showing that there is serious danger that there might be importation of hazardous wastes into our country, notwithstanding our domestic laws on toxic wastes and on ecological management. What we wanted the administration to do was to refute the empirical evidence and not just talk theoretically. Theory is far removed from reality. Again, the administration was unprepared. They didn’t even have prepared statements. We were only treated to what in effect were speculations that it will not happen. What we need in our Senate hearings is actual evidence in actual histories of countries that have EPAs with Japan.

I’m afraid we only have two more hearings left. So far, those opposed to the JPEPA has already won the majority of the rounds, three out of five. I’m afraid that this agreement may not even muster a majority vote in my committee, much less a majority vote in the Senate itself. It will be my obligation as committee chair to defend this treaty. Right now, I am not receiving enough solid arguments that will enable me to persuade the Opposition who are in the majority of the Senate. If I cannot defend this treaty, it would get rejected in the Senate floor. So I would request advice from my colleagues if we even still need to file a committee report. Of course, under the Senate rules, we must file a committee report, whether for or against. But we can just not submit a report, meaning to say, the report will be negative. I’m afraid I would have to take a straw vote first among the committee members. A number of them have approached me during the course of the hearings to tell me that they are not convinced. Certainly, I will not go against the express sentiments of the committee members because I will be outvoted in the plenary session anyway. The power of the committee chair is vast, but it is also limited.

We prefer to just not submit a report. We can say that the Senate committee on foreign relations is not submitting a report although it has already concluded its hearings. That is a diplomatic way of saying that we recommend that the treaty be rejected.

In today’s hearing, even an administration official expressed doubts as to whether they should endorse the treaty at all. Senator Roxas has privately expressed skepticism over the treaty, even though he was originally a supporter of the treaty.

-o0o-

Transcript of Senator Santiago’s interview after the JPEPA hearing

20 September 2007

As I’ve said, there would be five hearings but now I’ve decided to make the following amendments: 1) we are going to move Environment next week because there are senators who would be going abroad on official business and (since) this is the most controversial aspect; 2) the opposition raised many constitutional issues, and this is a very worrisome to the legislators and we will have another topic in our fifth hearing. We are going to invite former Justice and former WTO Judge of the Arbitrary Tribunal Florentino Feliciano and Dean Merlin Magallona (former professor of the UP College of Law) who is a recognized expert in International Law. We simply have to dispose of the constitutional issues in our final report.

If this were a boxing match, Round 1 went to the opposition, and I’m afraid Round 2 (also) went to the opposition. It is getting worserer and worserer, as Alice said in Alice in Wonderland. (Members of) the government panel do not seem to understand what senators are searching for. Why is JPEPA on the whole better for the Philippines? This is not a zero-sum game. We don’t really want to know if Japan is giving up things or whether Japan would achieve more gains or losses. What will (our) country gain in exchange for all the concessions we are making?

There was no response at all to the issue of why are some provisions that are favorable to the host country not included in our JPEPA version. There are JPEPA versions in Thailand, Malaysia, Indonesia, Singapore, and even Mexico. Why are some of these provisions that these governments insisted on during negotiations absent in ours? We are making so much concessions. That is the first failure on the part of the government panel: the failure to show that our concessions offset or balance what we shall gain. All the government panel could site were theoretical simulations or studies. They are far-removed from economic reality.

The second issue here is what long-term effect will this treaty have. In effect, we are binding future generations of Filipinos. We are only looking at the present. But what about the future? We (the senators) do not see that. It would be extremely difficult to get the senate in plenary session to approve of this treaty. There are questions that are left unanswered as of this second round. It would be extremely difficult for me to defend this (the treaty) if I’m not given the proper arguments. I’ve already been feeding the government panel with leading questions, but still the answers are not supplied. When the opposition raises certain issues, the administration just ploughs over their prepared statements and does not respond. This is turning out to be an experience in the surreal. This is not the way a debate should be; it should always center on necessity, benefits and practicality.

Everything will depend on the last three hearings. But for me as a lawyer, it is very important that we dispose of the constitutional issues raised today.

How am I going to defend this document before my twenty-two peers in the Senate if today the government cannot answer basic questions? I refuse to crucify myself. I’m going to go up in flames.

So far I can see that there is a great sense of resentment and failure on the part of the Committee members. They all sense that [the treaty] is going to be a loser. Unless the government becomes more energetic in its arguments, it is going to be decked by the opposition.

-o0o-

Announcement

The Senate Foreign Relations Committee, chaired by Senator Miriam Defensor Santiago, will hold on 14 September 2007, Friday, 10 a.m., at the Pecson Room, Philippine Senate, the first public hearing on the Japan-Philippines Economic Partnership Agreement (JPEPA). The topic will be trade and investment.

News Release

10 September 2007

JPEPA HEARING SEPTEMBER 14

Sen. Miriam Defensor Santiago, Chair of the Senate Foreign Relations Committee, said the first public hearing on the controversial Japan-Philippines Economic Partnership Agreement (JPEPA) has been moved back to Friday, September 14, because Trade Secretary Peter Favila and Foreign Affairs Secretary Alberto Romulo are obliged to attend the APEC forum in Sydney this week, and will be back only on 11 September. Then both have to appear at budget hearing at the House of Representatives.

Santiago said each hearing of the Committee will be devoted to only one topic, in the order in which they are listed, as follows: trade and investment; economics; movement of goods and services; movement of natural persons; and environmental effects.

Santiago said she will advice the cabinet officials and civil society members concerned to stick to the topic for each session, so that proceedings can start methodically.

The senator added that during each hearing, the government panel will be matched by a civil society panel, so that on each topic, both will always be heard.

Santiago said that after September 14, she intends to hold weekly sessions every Thursday morning, making in all a total of five sessions.

“If the resource persons cooperate with the specified agenda, we should finish public hearings by 11 October. The committee report will then be circulated for signature among the committee members. If the majority votes in favor of the JPEPA, then I should be able to deliver the sponsorship speech by the first week of November,” she said.

She said after plenary debates, she hopes the Senate will concur with JPEPA before the yearend.

Santiago said she did not expect partisan lines to be drawn during the hearings, or during the submission of the committee report.

“I want this to be a sober, scholarly analysis of the JPEPA placed in its regional context. I will try to keep the atmosphere as objective as I can, and will discourage speculation or hypothetical scenarios. There is a good chance the JPEPA will be able to get two-thirds vote of the Senate, if the Foreign Relations Committee takes care to study every argument, unswayed by sensationalist aspects of the treaty,” she said.

-o0o-

Transcript of Senator Miriam Defensor Santiago’s interview

24 January 2007

On the JPEPA hearings:

There is no point conducting any activity in the legislative process, unless there is a reasonable chance that within 9 days the process can be completed. Under the rules, when the new Congress comes in, it replaces entirely the old Congress, and no matter what the stage of the proceedings, a bill that is pending has to go through the entire process beginning from step one, which is we have to refile bill. In the case of the JPEPA, I might be accused of railroading the bill if I try to have voting on it—that is, to collapse the whole process—in just nine days, in competition with the other priority items in the agenda of the Senate. That is why we have mutually agreed with the Majority Leader that we shall have no JPEPA activity and leave it to the next Congress. Presumably I will still be Chair of the Foreign Relations Committee. If that will be the case, the JPEPA will be the highest priority when we resume sessions in July.

On Gov. Chavit Singson’s visit to the Senate following Senator Jinggoy Estrada’s privilege speech last Tuesday:

I understand that it came as a reaction to the privilege speech directed against him. I do not want to see that kind of precedent because that would mean that there might be a chilling effect on senators who don’t have the physical courage to face people who are directly affected. Those senators, who deliver privilege speeches mentioning certain people in a negative sense, must take responsibility for their actions. But the provision of the Constitution is that they must be held to account before their own peers, not before the persons they are attacking. Hence, that would be a diminution of the concept of parliamentary immunity. People like that are allowed to come and debate a senator in his own office. They have to have respect, not necessarily to the senator, but to the Senate as an institution. So I am afraid that I do not approve of the visit because it could have led to more adverse consequences: they could have come to blows, etc. The only remedy there is to allege in court that the remarks were outside in the discharge of official functions. His actions might be misinterpreted as abuse of the powers of an incumbent administration. Whether administration or opposition, if the leaders are subjected to accusations or even attacks by senators, then simply they have to respect the constitutional provision on the parliamentary immunity of a senator.

On the Iloilo raid:

I thought that it is a disproportionate use of force to carry out what may have been a lawful intent. But the means does not justify the ends. They could just have used, for example, tear gas, or they could have turned off the electricity and water. They could not have resorted to that degree of violence.

-o0o-