MIRIAM WARNS RP WATERS IN PERIL

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned “alarmists in Congress” to stop pushing for a new baseline bill without expert advice, because the Philippines “would virtually lose sovereignty over our internal waters.”

“These alarmists will unwittingly turn over our internal waters to foreigners,” said Santiago, reacting to weekend news that some senators want a new baseline bill to be passed, without consulting international law experts.

Under the Philippine Constitution, Article 1, the internal waters are “the waters around, between, and connecting the islands of the archipelago.”

Santiago said that the move to pass immediately the baseline bill would be “a case of the blind leading the blind,” because RP internal waters would be transformed into “archipelagic waters” under the UN Convention on the Law of the Sea (Unclos).

She said that the “archipelagic waters” concept would allow foreigners to enjoy many rights inside Philippine territory such as: right of archipelagic sea lanes passage; right of innocent passage; traditional fishing rights by neighboring states; and right to repair or replace existing submarine cables laid by foreign states.

“Alarmists should understand that the right of innocent passage given to foreign vessels include the right of navigation and overflight, not only for foreign commercial vessels, but also for foreign military vessels and aircraft. Can we handle that?” Santiago said.

Santiago, also a constitutional law expert, said that Unclos conflicts with the Philippine Constitution, not only because of the archipelagic waters concept, but also because Unclos would severely limit Philippine sovereignty over the 200-mile exclusive economic zone (EEZ).

The Constitution, Article 12 Sec. 2 Paragraph 2 provides: “The state shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”

Santaigo said that under Unclos, this constitutional provision will become invalid, because Unclos provides that when RP does not have the capacity to harvest the entire allowable catch, RP should “give other states access to the surplus of the allowable catch.”

“In other words, instead of reserving the EEZ exclusively to Filipinos, RP has to allow foreigners to fish in the EEZ. Thus, the Supreme Court will certainly declare Unclos as unconstitutional. And then the foreign state may sue RP for violation of Unclos before a foreign tribunal,” said Santiago, the Senate’s recognized expert in international law.

The baseline of the Philippine archipelago consists of straight lines connecting the outermost points of the outermost islands.

The baseline is the starting point for computing the area of the 12-mile territorial sea, 24-mile contiguous zone, 200-mile exclusive economic zone, and the 200-mile continental shelf.

The Philippines needs a new baseline bill, in order to compute the area of the extended continental shelf (ECS), which can be up to 350 miles.

The deadline for filing a claim for ECS with the United Nations is 13 May 2009.

“Since we have one year to meet the deadline, why do we need to rush the baseline bill? First, we should create a Congressional Commission on National Territory, so that we can use as background material the report and recommendations of international law experts,” Santiago said.

Santiago said it was “grave error” for certain quarters to push for a baseline bill first, and then to create the commission later.

“That is putting the cart before the horse. International law is radically different from domestic law. There are only two international law experts in the Philippines. They are Justice Florentino Feliciano and Dean Merlin Magallona. All others are self-proclaimed,” said Santiago, herself listed as an international law expert by the United Nations.

Santiago said that experts have to decide whether the Philippines is a party to the Unclos.

The senator said that when during martial law the Philippines ratified the Unclos, it made an impermissible reservation to fix the limits of the Philippine territorial sea under the 1898 Paris Treaty.

Under the Vienna Convention, Art. 19, when a treaty prohibits any reservation, and a state ratifies the treaty but makes an impermissible reservation, that state is not a valid party to the treaty.

“Before we rush to a baseline bill, lawmakers should first have the benefit of advice from international law experts. Otherwise, to a great extent, we lose our sovereignty over our own internal waters. That would be anomalous, because our archipelago will become an open maritime highway. Filipino fishermen will have to compete in our own waters with foreign fishermen,” she said.

Santiago said that if Congress votes to defer the creation of the congressional commission and to pass a baseline bill first, she would refuse to defend the baseline bill.

“I cannot defend a bill that will turn over our internal waters to foreigners, and run the high risk of being declared as unconstitutional by the Supreme Court,” said Santiago, who is also a constitutional law expert.

Santiago said the Senate Rules prohibits senators who voted in favor of a committee report, to change their minds and oppose the bill in plenary session.

The committee report recommending that the commission should first be created and its report submitted, before the Senate discusses the new baseline bill, was signed by 14 senators.

“The point that the order of priority should be reversed has become moot and academic, because this particular committee report to create the commission has already been passed by a majority of senators,” Santiago said.

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-