MIRIAM CONDEMNS NORTH KOREA NUCLEAR TESTING

Senator Miriam Defensor Santiago, chair of the Senate committee on foreign relations, joined world leaders in condemning the nuclear weapons test conducted by North Korea earlier today, 25 May 2009.

North Korea’s official Korean Central News Agency earlier reported that North Korea “successfully conducted one more underground nuclear test on May 25 as part of the measures to bolster up its nuclear deterrent for self-defense in every way as requested by its scientists and technicians.”

The nuclear test was reportedly “safely conducted on a new higher level in terms of its explosive power and technology of its control.”

Santiago said the nuclear testing was a breach of United Nations (UN) Security Council Resolution 1718, which prohibited North Korea from conducting nuclear tests.

The senator urged Malacañang to support Japan’s call for an emergency meeting of the UN Security Council in the wake of the nuclear weapons test conducted by North Korea.

Meanwhile, Asia-Pacific stock markets dipped today, spooked by the nuclear testing.

South Korean and Japanese stocks dropped after North Korea said it had conducted a nuclear test. New Zealand shares fell in sympathy with the Asian markets.

Santiago said the government should calm the Philippine stock market to prevent it from being jittery just like other Asian markets.

“There is no cause for panic. North Korea cannot immediately produce a nuclear weapon at this early stage of the testing,” Santiago said. “It will take years before North Korea can weaponize its nuclear capability.”

MIRIAM WANTS ‘BOOK BLOCKADE’ INVESTIGATED

Known booklover and author Senator Miriam Defensor Santiago today urged the Senate to investigate the alleged “book blockade” being reported in various newspapers and blogs.

Booklovers are up in arms over the book blockade, which is reportedly caused by the imposition by the Bureau of Customs (BOC) of customs duties on imported books.

According to the BOC, Republic Act No. 8047, or the Book Publishing Industry Development Act, only exempts from import taxes and duties “books or raw materials to be used in book publishing.”

The imposition of customs duties on imported books has reportedly caused book importers to reconsider future importations due to higher importation costs. Foreign books have become more expensive, and are in danger of becoming scarce or completely unavailable in local bookstores.

Santiago, chair of the Senate foreign relations committee, said the BOC interpretation of RA 8047 violate the 1950 Florence Agreement on the Importation of Educational, Scientific and Cultural Materials, of which the Philippines is a state party.

“The Florence Agreement provides that the contracting States undertake not to apply customs duties or other charges on, or in connection with, the importation of books, publications, and documents,” Santiago said. “The Philippines is bound by this treaty under the principle of pacta sund servanda. This simply means that every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Santiago said the government cannot use RA 8047 to evade its obligations under the treaty.

“The Philippines, as a party to the treaty, is not authorized to invoke the provisions of its internal law as justification for its failure to perform the treaty,” she said.

“Moreover, RA 8047 itself provides that the Philippines’ national book policy is to reaffirm and ensure the country’s commitment to the UNESCO principle of free flow of information and other related provisions as embodied in the Florence Agreement and in other similar international agreements,” the senator said.

Santiago also said that the BOC’s interpretation of RA 8047 is erroneous because the exemption from import taxes and duties applies equally to books and raw materials to be used in book publishing.

“The legislative intent of RA 8047 is to adhere to the Florence Agreement and exempt books from import duties,” Santiago said. “The BOC’s interpretation has no legal basis.”

WASHINGTON TO DECIDE WB REPORT RELEASE

World Bank Country Director Bert Hofman said that he has forwarded to the World Bank main office in Washington D.C. the letter from the Senate protesting and requesting reconsideration of his refusal to give a copy of the World Bank documents on the collusion scandal that implicates the First Gentleman and others.

This was contained in the letter dated February 9 sent by Hofman to Sen. Miriam Defensor Santiago, chair of the economic affairs committee, in reply to Santiago ’s letter of 6 February 2009.

“Your letter raises important considerations of national and international law with respect to availability of information in the context of the World Bank recent debarment of international and domestic firms on grounds of collusion,” Hofman said.

Hofman said he forwarded Santiago ’s letter to the Washington D.C. legal department, apparently to study the points of international law raised by Santiago , who was Philippine nominee to the International Court of Justice.

In his latest letter, Hofman promised Santiago that he will provide the Senate with a copy of the Redacted Report, which is being finalized by the World Bank Integrity Vice-Presidency, and will then be reviewed by the Philippine government.

The reviewing officer will apparently be executive director to the Philippines Jorge Humberto Botero.

Santiago told media that there are apparently four WB documents: Referral Report November 2007; Notice of sanctions proceedings May 2008; Decision of Sanctions Board 12 January 2009; and Redacted (Edited) Report, to be posted in the WB website.

“I strongly suggest that any person commenting on the World Bank scandal should specify which of these four WB documents he is referring to. This would avoid confusion in the public mind,” Santiago said.

In her prior letter to Hofman, Santiago cited the following points of international law to support the Senate request for a copy of the World Bank documents:

• International law is evolving away from the concept of absolute immunity.


• There is no Headquarters Agreement between the World Bank and the Philippine Government.


• In the landmark case of Liang vs. People, 355 SCRA 125 (2001), the Philippine Supreme Court ruled that international organizations, but not its officials, enjoy absolute immunity.

SENATE WILL ADMIT ELECTRONIC PROOF

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, said that she will apply the rules on electronic evidence, which are exempt from the hearsay rule, at the hearing scheduled for this Thursday, 12 February, on the World Bank scandal blacklisting three Filipino contracting firms.

Santiago said that under the law, an electronic document refers to information by which a fact may be proved, which is transmitted electronically, including digitally sent documents and any printout or output.

She said that electronic evidence also includes audio and video evidence, but in all cases the evidence has to be authenticated by the person who made the recording, or by some other person competent to testify on its accuracy.

“Under the Rules of Court, an electronic document, including a computer printout, is admissible in evidence, if it complies with the rules on admissibility, and is authenticated,” she said.

Santiago said she will admit even online documents purporting to be part of World Bank records, provided that they are authenticated by digital signature, by Supreme Court-authorized security procedures, or by other evidence showing their integrity and reliability.

“Since the World Bank has refused to give me a complete set of its documents on the blacklisting, I am obliged to apply the rules on electronic evidence since they are considered as the functional equivalent of paper-based documents, unless a privileged communication is involved,” she said.

Santiago said that under the law, the hearsay rule does not apply to electronic evidence, provided that they are authenticated by the custodian or other qualified witness.

“The law presumes that electronic evidence is admissible, but the presumption may be overcome by evidence of the untrustworthiness of the source of information or the method of its transmission by computer,” she said.

The senator also said that the admissibility and evidentiary weight of an electronic document should be established by an affidavit stating facts of direct personal knowledge of the reporter, or based on authentic records.

The economic affairs committee has invited to the hearing Ariel Rufo, reporter of ABS-CBN.news/newsbreak, who wrote the internet report that a World Bank document implicates the First Gentleman and other former public officials in the crime of collusion.

Santiago also said that if the First Gentleman prefers to submit evidence by means of deposition, he can choose whether the deposition should be made from oral or written questions.

“If the First Gentleman proves that there is just cause for him to be excused from making personal appearance at the hearing, I will grant a motion to depose him. I will direct the Senate TV crew to preserve the process on video evidence. Thus, the video could be authenticated by the Senate cameraman,” Santiago said.

Santiago , was absent from the Senate yesterday because of chronic fatigue, which she said rendered her short of breath.

“While the chronic fatigue continues, I am advised to limit my exertions. I was busy in the morning giving phone interviews to the media. After lunch, I no longer had enough energy left to withstand the two-hour trip to and from the Senate,” she said.

MIRIAM SLAMS WORLD BANK, RESUMES PROBE

Sen. Miriam Defensor Santiago, chair of the economic affairs committee, called for a formal protest by the foreign affairs department, over the World Bank refusal to give the Senate a copy of its Referral Report on three blacklisted Filipino construction firms.

“I was being polite, and dutifully observed protocol by first requesting for waiver of WB confidentiality. All I got for my pains was a summary refusal. This is a gross manifestation of the antediluvian mentality that all developing states are beggars to be ignored at whim,” she said.

Santiago said that yesterday (February 6) she received a letter from WB Country Director Bert Hofman, stating that “the confidentiality of the so-called Referral Report, which was shared with the relevant authorities in the Philippines , should be respected and therefore the report cannot be shared with the Senate.”

“In effect, the WB is saying that the finance secretary and the Ombudsman are relevant authorities, but not the Senate. I educate those hoity-toity WB lawyers that in the Philippines , a public hearing is a constitutionally protected power of the Senate,” she said.

Santiago said that since the WB is on Philippine territory, it is governed by our Constitution.

“Under international law, WB has to take our legal system as it finds it. If not, we can evict them,” she said.

Santiago said that under international comity or courtesy, the WB legal department should at least have explained to her the legal basis for the refusal, instead of brushing away her request with just one sentence.

Santiago said that by comparison, even the UN Secretary General has the duty to waive immunity under the 1946 Convention on the Privileges and Immunities of the UN.

“Even the UN Secretary General has the duty, repeat, the duty, to waive immunity, when he believes that immunity would impede the cause of justice, and can be waived without prejudice to the interest of the UN,” she said.

Santiago said that out of courtesy to the Senate, Hofman should at least have directed the legal department to submit a legal memorandum to the Senate.

“Mr. Hofman is impeding a Senate inquiry in aid of legislation. It is insensitive for the WB to fail to explain why giving the Senate a copy of the Referral Report would prejudice the WB,” she said.

Santiago , who is also chair of the Senate foreign relations committee, said that the WB does not have a Headquarters Agreement with the Philippines .

“No Headquarters Agreement, no immunity, no confidentiality. The provisions of the 1947 Convention on the Privileges and Immunities of the Specialized Agencies are obsolescent at best and obsolete at worse,” she said.

In her reply sent yesterday, February 6, immediately after receiving Hofman’s letter, Santiago virtually lectured the country director, pointing out that under international law, the immunity principle has evolved from an absolute rule to a relative rule. (See enclosed Santiago letter).

“In the final analysis, it is the Philippine Supreme Court which has power to decide whether there are compelling reasons to rebut the presumption of confidentiality made by the World Bank. It is only a presumption, and this is the right time to test this in a Philippine court. It is arrogance like this which gives rise to the spreading call of the international community to revamp the UN system because it is skewed in favor of rich states. They may be richer, but there are more poorer states,” she said.

Santiago also set the resumption of the hearing on the World Bank scandal for Thursday, 12 February.

The economic affairs committee has sent out invitations to certain Filipino public figures mentioned in news report alleging that they were implicated in World Bank documents, namely: First Gentleman Mike Arroyo, former Rep. Prospero Pichay, former Rep. Jerome Paras, former DPWH Sec. Florante Soriquez, DPWH Boy Belleza, Project Director Lope Adriano, and DPWH Asst. Director Tito Miranda.

The Committee also issued subpoena duces tecum (order to bring the WB Referral Report) to: Finance Secretary Margarito Teves and Ombudsman Merceditas Gutierrez.

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-

PALACE-SENATE ACCORD ON TREATIES

President Gloria Macapagal Arroyo has agreed in principle that henceforth, all negotiating panel for treaties like the controversial MOA-AD should include at least one member of the Senate Foreign Relations Committee.

Sen. Miriam Defensor Santiago said that the accord was reached, when she and President Arroyo discussed the constitutional issues arising from the MOA-AD and the Jpepa.

“President Arroyo accepts that since the Senate has to concur with her ratification, the Senate should play an active role in treaty negotiations, at least with respect to constitutional and other issues,” Santiago said.

Santiago said that at a meeting in Malacañang last Friday, August 29, President Arroyo said she had issued instructions that the MOA-AD shall not be signed at all.

“That will preempt the declared intent of some Christian and Ilaga leaders in Muslim Mindanao to arm themselves, in anticipation of Muslim marauders in their communities,” the senator said.

Santiago said that under the Vienna Convention on the Law of Treaties, care should have been taken in drafting the MOA.

“If signed, the MOA would become part of the preparatory documents that constitute the context of any treaty. As part of the context, it is considered as a guide to the interpretation of the treaty itself. Thus, it is significant,” she said.

Santiago said the mere terminology used – “Memorandum of Agreement” – was already unfortunate.

“The title of the document should have been more neutral. Since it was so unequivocal, it immediately raised a furor,” she said.

The Senate said that even if the MOA is characterized as a political question, the Supreme Court would still have the power to acquire jurisdiction, if it can be shown that there was grave abuse of discretion on the part of executive officials.

“In the United States, it has been a long-standing practice to invite senators belonging to the Senate foreign relations committee to join the negotiating panel, so that the senators can anticipate what problems the treaty might raise in the Senate. Thus, verbal booby traps can be avoided,” she said.

-End-

Transcript of Sen. Santiago's interview

After the Senate Committee of Foreign Relations hearing on the ASEAN Charter

The Committee on foreign affairs has decided to circulate a committee report for signature by the members recommending Senate concurrence for the ratification of the ASEAN Charter. Today, we heard several criticisms mostly based on the fact that Burma has not released Daw Aung San Suu Kyi and therefore any ASEAN Charter should contain provisions that are stronger than what are contained in it at present. At present, there is a human rights body but the charter confines itself to its creation and its provision than its terms of reference, that means its implementing rules and regulations shall follow. At this point, there is no clear definition on what the human rights body is authorized to do. This human rights body was the initiative of the Philippines and therefore, on the part of the Philippines, there could be no accusation that the charter will be a paper tiger because the Philippines fought very bravely to include this provision in the charter. It is incumbent now on these ASEAN members to establish this human rights body and go after the Myanmar issue.

The second is related to the first. The main objection was why does the ASEAN Charter enshrine the policy of non-intervention in internal affairs? That’s a very simple question to answer. The UN charter began when it was formally submitted with a clause concerning domestic jurisdiction, in effect, the provision of non-intervention in the proposed ASEAN Charter is simply an echo of that provision in the UN charter. Non-intervention is a logical outcome of state sovereignty. No state will allow in any document to which it is a party to, to allow any certain foreign entity to interfere with how it runs its own government.

Basically, the objections are in the nature of idealism versus reality. We wish it were a more perfect document, but because of the variated cultures of our region, it is very difficult to get a consensus on a document that will govern with legal force the affairs of these member governments. That’s the best we could do at this moment.

Ambassador Rosario Manalo of the ASEAN Charter Task Force: The ASEAN Charter provides the Association with a legal basis--a legal personality--which means that one, we can sue and be sued if it is internationally recognized, and secondly, that state parties will have the obligation to comply with whatever agreements or decisions are taken.

We think that this is a move forward from the loose association into this rules-based organization. The purpose of the Charter is to have the organization set up an ASEAN community which will be more effective in addressing the challenges and the risks confronting the region and the globalized world.

The Charter by itself is just a framework. It is envisioned that there will be subsequent protocols to flesh out the provisions of the charter. It is not an all-cure for certain, but it is certainly a base to build and strengthen further the region of the member states of Southeast Asia.

Commissioner Quisimbing of the Commission on Human Rights on why the Philippines supports the charter: The CHR welcomes the hearing on the Committee on Foreign Relations as well as your just announced intent to recommend the ratification to the committee members.

The criticism of the charter is that it sets up an ASEAN human rights mechanism but is vague on what its powers are going to be and what its mandate is going to be. However, this is the first time in history that an ASEAN body is even thinking of having a human rights body. Asia is the only region in the world that does not have a human rights body. We see this as a very important step and welcome the fact that the Philippines is the one that championed putting this into the charter and convinced countries like Myanmar, Laos and Vietnam, which are less democratic, to even let it be put in this important charter for ASEAN. We do not expect that something as specific as the power of who will be members of an ASEAN mechanism, will be put in this. We can look at the Charter as a constitution, and as Ambassador Manalo said, the details of such a mechanism can be put down in future documents.

We in the Philippines, with our human rights orientation and our pledge to the UN to champion regional human rights cooperation and protection, will work for a strong mechanism, not one that’s just going to be advisory, all of that is still open for discussion. But the fact is all ten countries of ASEAN have agreed to at least take this very important step.

The ASEAN Charter is a legally binding document that is why we are pushing for it. Today, there is no such document or understanding that could provide the legal power to enable the rest of ASEAN to see to it that Myanmar complies with human rights laws. All the ten member states will comply if the ASEAN makes a declaration or issues a decision to take a certain course of action.

MIRIAM: SENATE TO CONCUR WITH ASEAN CHARTER

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, said that she will submit by next month her committee report recommending Senate concurrence with the Asean charter, and expects Senate concurrence before the end of the year.

“If all ten member states ratify the charter by December, it will enter into force in 2009. Thus, Asean will ratify its constitution even ahead of the European Union, whose charter was rejected by two countries,” the senator said.

Of the ten Asean members, seven have already ratified the charter, while three countries including the Philippines are engaged in the process of ratification.

The ten Asean members are: Brunei Darussalam, Cambodia , Indonesia , Laos , Myanmar , Malaysia , the Philippines , Singapore , Thailand , and Vietnam .

“It was the Philippines that first proposed the Asean charter in the 1970s. To be consistent, the Senate should concur. The Asean charter is a treaty and is therefore binding,” she said.

Santiago said that although the Asean charter includes the principle of non-interference in the internal affairs of member states, it will speak out on humanitarian or self-defense events, such as the release of Daw Aung San Suu Kyi in Myanmar .

“It was also the Philippines who took the initiative in providing for an Asean human rights body, now part of the charter. If Myanmar ratifies the charter, it will be obliged to comply with its provisions and all other Asean agreements,” she said.

Santiago said the Asean Human Rights Body will enable Asean to stop depending on foreign human rights monitors, and instead manifest to the world Southeast Asian regional perspectives on human rights.

“The charter also enshrines the so-called Asean Way of settling differences, meaning consultation and consensus. This is the basic decision-making principle in Asean,” she said.

“The main tangible result of the charter will be the creation of an Asean Economic Community. This means the creation of a single market and product base. In the Asean Economic Community, there will be free flow of goods, services, investments, and capital. It will also facilitate movement of business persons, professionals, talents, and labor,” Santiago said.

The charter provision for the creation of an Asean Economic Community is a direct result of the Asean Economic Community blueprint signed in Cebu last year, when President Arroyo presided at the Asean Summit.

“The emergence of China and India as economic powers has created new realities for Asean. The Asean Economic Community will keep the Philippines competitive alongside these two Asian giants. The Asean Economic Community will be established by 2015,” Santiago said.

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.

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

On Congress possibly investigating Meralco’s high power rates

Kailangan na talagang imbestigahan ang Meralco dahil napakataas ng binabayad natin sa kuryente, at mataas naman pala ang kinikita nila. Kukumbidahin ko ang chairman ng House committee on energy na sumama sa Senate energy committee para sabay na lang kaming mag-imbestiga. Nalaman ko na inutusan ni Speaker Nograles si Cong. Mikey Arroyo, na chair ng House committee on energy na imbestigahan ang maaring pagbabago sa pag-aari ng Meralco para matupad ang pagbababa ng bayad sa kuryente. Kung gayon Kinukumbida ko ang House committee on energy na sabay na lang kami ng imbestigasyon ngayong linggong ito, kung maaari sa Biyernes, para iisa na lang at hindi paulit-ulit.

Ang pinakamalaking tanong ditto ay bakit sa buong Asya tayo ang bansa na may pinakamataas na presyo ng kuryente, samantalang naibenta na ang isang bahagi ng Napocor at ibebenta pa ang naiwan.

Ang isa pang tanong ay kung bakit napakabagal ang pagpapa-privatize ng Napocor. Kung totoo ang sinasabi ng Pangulong Arroyo na bababa na ang pagbenta ng kuryente ng Napocor sa Meralco, bakit hindi natin nararamdaman na bumaba ang pagbayad natin sa Meralco. Dahil kung mura ang bili nila ng kuryente sa Napocor, na pag-aari ng gobyerno, dapat mura rin ang signil sa taong-bayan. Nakikita natin na may disconnect sa prosesong ito. At bakit kung nanakaw ang kuryente, iyong tinatawag na systems losses, bakit tayo ang magbabayad nito? Hindi naman natin ito napakinabangan. Dalawang beses nang sinabi ng Korte Suprema na masyadong mataas ang pagsingil ng kuryente ang Meralco. Inutsan pa itong ibalik ang Meralco na ibalik sa consumers ang binayad natin. Kung gayon, mayroong may kasalanan diyan Bakit walang imebstigasyon kung bakit mataas ang singil sa kuryente at kung sino ang may pananagutan doon? Lahat ito ay dapat masagot sa joint hearing ng committees of energy ng House at Senate.

There is no congruence in the explanation of the government that it has already lowered the sale price by Napocor to Meralco, and yet Meralco has not lowered its own selling price to the retail consumer. Why is there a disharmony between the process of generating power and bringing it to the consumer? That is the function of the JCPC under the Epira, to see to it that the electricity rates are set as low as possible. Apparently we have not achieved it. Meralco now is the focus of attention and what is stopping the power industry from lowering electric rates so that we can be competitive in the region.

What will be the objectives of the hearings?

If we want to insert more provisions in the Epira law, which is already under debate on the Senate floor. We are still in the process of seeing what kinds of amendments to the Epira will be made. And if we hold these hearings, the conclusion will take the form of possible amendments to the Epira law.

On the possibility of the baselines bills to be reassigned to another committee

Ang ating mungkahi diyan ay tapusin muna ang pag-aaral ng isang grupo ng mga eksperto, na tatawagin nating Congressional Commission on National Territory , at saka tayo gumawa ng public hearing at possible plernary debates tungkol sa bagay na iyon.

Kailangan ko talagang aksyunan ang baselines bills. Ang sinabi ko lang ay hindi ako papayag na madaliin iyon dahil ito ay napakalalim na paksa. Hindi maari na sukat pinag-usapan mo o inisip mo ay gagalaw ito dahil nakasalalay rin dito ang ibang bansa. Kaya dapat diyan ay pag-aralan nating mabuti.

This is really an international problem because it concerns the concept of the extended continental shelf. We need to understand this profoundly. We cannot act on the spur of the moment.

Since it involves a lot of issues, can the bills be tackled by the Committee of the Whole?

Iyan ang siguradong paraan na babagal ang discussion diyan. Una, dahil ang paksa na ito ay para sa mga dalubhasa, which requires highly expert opinions because we shall be debating in an international forum with experts from every country in the world. So we better be sure of our scientific, technical, and legal data. So in that case, we need to conduct it by committee, not by a committee of the whole.

MIRIAM URGES SPRATLYS PROTEST VS. TAIWAN

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, urged foreign affairs Sec. Alberto Romulo to send a note to Taiwan , through its Manila Economic and Cultural Office, to halt the proposed visit next week to the Spratly islands by Taiwan ’s defense chief and a group of legislators.

“The Philippines has good grounds to protest because it is a provocative act for Taiwan officials to visit their newly constructed airstrip on Taiping island in the Spratly chain,” the senator said.
Santiago said that the Taiwan visit to the Spratlys will violate the 2002 China-Asean Declaration on the Conduct of Parties in the South China Sea .

“Even if Taiwan is not a party to this Declaration, it has most likely evolved into regional customary international law, since it was signed six years ago by nine countries: China , Brunei , Cambodia , Indonesia , Malaysia , Myanmar , Philippines , Singapore , and Thailand . As customary international law, the Declaration binds all states in the Asian region, including non-parties,” she said.

Santiago explained that Taiwan was not invited to sign the Declaration, because China claims sovereignty over Taiwan , and China has insisted on a one-China policy in the United Nations.
The Declaration states “that the parties are committed to exploring ways for bringing trust and confidence on the basis of equality and mutual respect.”
The Declaration also commits the parties to “the freedom of navigation in and overflight above the South China Sea, as provided for by international law, including the 1982 UN Convention on the Law of the Sea.”

“The Taiwan airstrip jeopardizes the freedom of overflight above the Spratly chain. It is a provocative act and the Taiwanese visit there will add to the provocation. I hope that the foreign affairs department would be able to bring this controversy to the attention of President-elect Ma Ying-Jeou, before he takes office on May 20,” the senator said.

The Declaration binds the parties to exercise restraint and to hold dialogues and exchange of views between their defense and military officials.

“In our protest note, we should instead recommend that there should be dialogues between the Philippine defense secretary and armed forces chief of staff with their Taiwanese counterparts,” Santiago said.

-End-

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.

Transcript of Senator Miriam Defensor Santiago’s interview

On the baselines bills

I believe that the archipelagic baselines bills filed in both chambers of Congress were sincerely intended and crafted out of intellectual honesty. I won’t say anything derogatory to the authors of the bills, except that they separately treat the archipelagic problem, particularly what are the boundaries of our national territory in a piecemeal manner. They pick certain provisions from the UNCLOS and then they try to apply it in their bills. You can’t do that.

The Philippines is a geographical archipelago, but if it makes a declaration that it is an archipelagic state, immediately we lose our rights to our internal waters. They will become in effect a highway for foreign vessels. Secondly, we would lose our right to protect our local fishermen from poaching of foreign vessels. These are just examples. There are many consequences of a declaration of an archipelagic state.

So first we must talk to the experts, meaning the scientists familiar with the measurements of the maritime boundaries. And we must talk with the legal experts, if possible officials in the foreign affairs connected with the negotiation of the UNCLOS.

I am not necessarily against those bills but I think it is premature to act on them at this time since the bills happen to include the Kalayaan Island Group and other disputed islands within the baselines.

Even the international limits in the Treaty of Paris do not include those disputed islands within our territorial boundaries. In doing so, the bills constitute a violation or at least a disregard of the 2002 ASEAN-China Declaration on the Conduct of Parties in the South China Sea. That could be considered an offensive act of aggression by China.

On some senators on the doubting the legality of JPEPA’s conditional concurrence

I simply have to educate them. They are afraid because they don’t know about it. Fear is usually the result of ignorance. They’ve never had any experience with it. But in the United States , they have been practicing it since the 19th century and nobody has ever objected. The United States has entered into treaties with the world’s greatest powers, especially with Russia during the Cold War, and Russia never objected.

I know that a colleague has issued a press release, which I view as entirely unfortunate. He has fallen into the trap a freshman normally would. When you read for example the Vienna Convention on the Law of Treaties, you have to be aware that the Vienna Convention is not a codification of general international law. It is not as if you are reading the Revised Penal Code, that if you don’t find it there, then it is not allowed by law. That is not the case with an international treaty particularly when it is multilateral in nature.

In any event, this is a very technical matter and I would be happy to educate my colleagues at this point. I think it is unfortunate to muddy the waters this early. The only question here is can we explain why Jpepa is advantageous to the Philippines during the plenary debate. Thereafter, we can proceed with subsidiary question of its procedural niceties.

Transcript of Senator Miriam Defensor Santiago’s interview
21 April 2008

On the rice crisis

The rice problem as we know is not national in nature nor is it regional (to Southeast Asia). It is global in nature. For the Senate to investigate the rice problem will have to confine itself to certain activities of Filipino corporations or nationals, for example: Are they hoarding? Are they manipulating? Is there a conspiracy in respect to trade? And so on. In effect, that would be a criminal investigation.

But if we are going to investigate the rice situation, that would necessarily be global in nature, and we simply do not have the faculties to conduct such an investigation.

Predictions that President Arroyo will be overthrown because of the rice crisis are not related to reality. If that is the case, then all other rulers in Southeast Asia will be overthrown as well.

On the baselines bill

The baselines bill is another mistake. In the first place, these people who have been so valuable in the media do not realize the profundity and the complexity of the baselines issue. I remember the very first article I wrote for the Philippine Law Journal of the University of the Philippines when I was taking my masters in the University of Michigan was on the archipelagic doctrine and that was the start of articles that my friends and I were writing at that time because it is very complex.

Akala nila basta magdrowing ka ng baselines, tapos na. And they included certain contested islands there. There are many complications there. The boundaries of the Philippines will become very much smaller if we declare it an archipelagic state under the UN Convention on the Law of the Sea because the boundaries of the Philippines , as specified in the Treaty of Paris are
so much wider. So why should we be in a hurry to narrow down our own internal waters? If we join the rush to comply with the archipelagic baselines deadline—which is May next year—that will give to all foreign vessels the right of archipelagic sea lanes passage that has been overlooked by all these commentators on our baselines.

Right now, the waters among and between our islands belong to the Philippines . The moment you declare the Philippines as an archipelagic state, foreign vessels will have the right to pass in these waters between our islands without asking for our permission and the freedom to do whatever they want as long as they don’t get caught doing it.

My proposal is to convene a commission of experts. That is the problem with the Senate. This is a very highly technical subject, and everyone is just shooting his mouth off for a sound byte. You cannot do that with this very complicated legal issue.

The UN Convention on the Law of the Sea does not impose a compulsory duty for archipelagic states to draw their baselines because the convention states that “the State may draw”. It does not say “shall draw.” There is no penalty if you don’t declare your baselines.

-End-

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-

25 March 2008

MIRIAM: CHARTER BANS ARCHIPELAGIC STATE

Sen. Miriam Defensor Santiago, chair of the Senate foreign relations committee, warned that the Constitution has already defined the national territory, and any attempt to declare the Philippines as an archipelagic state under the UN Convention on the Law of the Sea (UNCLOS) would require charter change, because it would reduce the national territory.

“The Constitution states that the national territory comprises the Philippine archipelago, and all other territories over which the Philippines has sovereignty or jurisdiction. The Constitution does not describe the Philippines as an archipelagic state, which is a term of art used by the UN Convention,” she said.

The senator said that if the Philippines declares itself an archipelagic state, the declaration would contradict the Treaty of Paris which sets out the boundaries of our national territory, which are wider than those allowed by the UNCLOS.

Under the 1898 Treaty of Paris, Spain ceded the Philippines to the United States, and now serves as the basis for the present Philippine Baseline Law embodied in R.A. No. 3046, together with R.A. No. 5446.

“The Treaty of Paris sets out the International Treaty Baselines of the Philippine territorial sea. By contrast, the bills pending in Congress will eliminate such limits and thus, the Philippines would lose its boundaries,” she said.

Santiago cautioned against declaring the Philippines as an archipelagic state, because under the UNCLOS, the Philippines would be entitled to only 12 nautical miles of the territorial sea which, she said, is “an almost colossal reduction from the wider boundaries of the International Treaty Limits under the Treaty of Paris.”

“If the Philippines declares itself an archipelagic state, our zone of sovereignty would collapse. Our internal waters would become archipelagic waters where the ships of all states will enjoy the right of innocent passage. In addition, foreign states would have the right of so-called archipelagic sea lane passage. Ships of all states would have the right of passage and their aircraft would have the right of over flight,” the senator said.

Santiago also warned that if the Philippines declares itself an archipelagic state, it would adversely affect the environment, because of marine pollution from ships in the archipelagic waters. The result would be that the Philippines as an archipelagic state would have less enforcement jurisdiction over foreign vessels in matters of pollution, than a non-archipelagic state in its territorial sea.

Santiago said that the question of ownership over the Kalayaan island group, sometimes called the Spratly, is related to the issue of archipelagic base lines.

“If the Philippines declares itself an archipelagic state, then we need scientists to determine if, under international law, Kalayaan by itself constitutes another archipelago. Under UNCLOS, an archipelagic state can be composed of two archipelagos. If not, under international law, Kalayaan could be characterized as ‘other islands’ over which the Philippines is entitled to claim sovereignty,” she said.

Santiago said that the present bills seeking to extend the archipelagic baselines so as to include Scarborough Shoal are not advisable, because it would revise the Treaty of Paris.

“International law does not recognize the drawing of archipelagic baselines as a method of claiming territorial sovereignty,” she said.

Instead, Santiago proposed that the Philippines should claim sovereignty over Scarborough Shoal through the method of effective occupation under international law.

“The Philippines has already exercised many political and administrative acts of a sovereign nature over Scarborough Shoal. Such acts include military exercises, establishment of lighthouse, enforcement of laws against foreign vessels and nationals, which are evidenced by historical data,” the senator said.

Santiago also warned against the wording of the pending bills concerning Sabah.

“In 2001, with Dean Merlin Magallona arguing for the Philippines, the International Court of Justice relied on Philippine law, particularly Republic Act No. 5446, Section 2, which provides that the Philippines has acquired dominion and sovereignty over Sabah, North Borneo and hence, the baselines of the territorial sea include baselines of the territorial sea around Sabah. If the pending bills abolish Sec. 2, the effect is to remove from Philippine law the affirmation of sovereignty over Sabah,” she said.

Santiago was referring to the Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan between Malaysia and Indonesia, where the ICJ ruled that the Philippines will not in any way be affected by its decision on the merits I the case between Malaysia and Indonesia.

Santiago said that under a resolution that she filed, no less than a congressional commission on national territory should be established because the present bills “do not fully appreciate the magnitude and depth of the country’s territorial problems. In fact, the present bills carry the risk of exacerbating the contradictions internal to the territorial regime.”

-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.

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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.

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News Release

5 November 2007

MIRIAM ADDRESSES UN GENERAL ASSEMBLY

Senator Miriam Defensor Santiago delivered an address before the United Nations General Assembly last 2 November 2007 (Philippine time), during the International Law Commission (ILC) Week in New York.

The ILC Week is part of the General Assembly’s 62nd Session, and is the venue to discuss developments in international law.

Senate President Manny Villar, Majority Leader Kiko Pangilinan, and Minority Leader Aquilino Pimentel Jr. sent Santiago their best wishes before she left for New York .

Santiago , chair of both the Committee on Energy and the Committee on Foreign Relations in the Senate, as well as an international law expert, spoke before the General Assembly on the issues of shared natural resources and reservation to treaties.

As the Philippine candidate to the International Court of Justice (ICJ), Santiago ’s participation in the ILC Week served to introduce her to the international law community and highlight her intellectual capacity and grasp of international law issues.

Last 20 July 2007, Santiago was nominated to the ICJ by the Philippine National Group composed of Supreme Court Associate Justice Consuelo Ynares Santiago, retired Supreme Court Associate Justice Florentino Feliciano, then Integrated Bar of the Philippines National President Atty. Jose Vicente Salazar, and University of Santo Tomas Faculty of Civil Law Dean Alfredo Benipayo.

Santiago ’s candidature was endorsed by Chief Justice Reynato Puno, the Integrated Bar of the Philippines , the Philippine Bar Association, the Philippine Women Judges Association Inc., the Philippine Association of Law Schools, and the Philippine Association of Law Professors.

Santiago ’s nomination to the ICJ was announced by President Gloria Macapagal Arroyo during the ASEAN Ministers’ meeting last 30 July 2007.

Foreign Affairs Secretary Alberto Romulo has ordered all ambassadors and consul generals abroad to support the Philippine campaign for Santiago to the ICJ.

Should Santiago get elected to the ICJ, she will be the second Filipino to serve in the World Court . Supreme Court Chief Justice Cesar Bengzon served as ICJ judge from 1967 to 1976.

Santiago will also be the first female Asian judge in the ICJ. She will also be the second female ICJ judge, next to Rosalyn Higgins from the United Kingdom . Higgins currently serves as President of the ICJ.

Five seats in the ICJ will be available in 5 February 2009. Elections will be held at the UN in New York late 2008. A candidate needs to get at least majority vote in both the UN General Assembly and the UN Security Council, voting simultaneously but separately.

The ICJ is the principal judicial organ of the United Nations. The Court decides two types of cases: (1) legal disputes between States submitted to Court (contentious cases); and (2) requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory opinions).

Santiago is banking on her long and distinguished career in government and her strong record of academic excellence to take her to the World Court .

Before her term as senator, she served as presiding judge of the Quezon City Regional Trial Court, Commissioner of Immigration, and Secretary of Agrarian Reform. She was awarded the 1988 Ramon Magsaysay Award for Public Service (the Asian equivalent of the Nobel Prize) for her work as Immigration Commissioner.

She has a Doctor of Science of Law degree from the University of Michigan , where she was a Barbour Scholar and Dewitt Fellow. She was also a Visiting Law Fellow at Oxford University and a Visiting Fellow at the Lauterpacht Research Centre for International Law at Cambridge University . She also worked as professor of law at the University for the Philippines for more than a decade. She is listed in the 2000 United Nations roster of eminent and highly qualified experts in international law and is the author of a number of books on international law and international relations.

Photo by Elmer Cato of the Philippine Mission to the United Nations

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.

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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.

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