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MAJORITY
of the senators remain undecided on whether to vote for
ratification or rejection of the controversial
Japan-Philippines Economic Partnership Agreement (Jpepa)
amid grave misgivings that the Jpepa suffers from
serious legal infirmities and may later be declared
unconstitutional by the Supreme Court.
At least
16 senators are required, representing two-thirds vote,
to ratify the accord; even just one vote short of that
would spell its defeat. An informal head count on Monday
showed that so far, only three senators—Edgardo Angara,
Juan Ponce Enrile and Mar Roxas II—have signified their
intention to vote in favor of ratification, while the
rest—Senate President Manuel Villar, Senate President
Pro Tempore Jinggoy Estrada, Majority Leader Francis
Pangilinan, Loren Legarda, Francis Escudero, Gregorio
Honasan, Panfilo Lacson, Rodolfo Biazon, Ramon Revilla
and Miguel Zubiri admitted having reservations. They
remain undecided, preferring to wait for floor debates,
which start next Monday, before making their decision.
Senate Minority Leader Aquilino Pimentel Jr. and Sen.
Pia Cayetano affirmed they would vote against the accord
that has been denounced as heavily lopsided in favor of
Japan. To cure its legal defects, Sen. Miriam Santiago,
chairman of the lead foreign relations committee that
conducted hearings on the pros and cons of the accord,
filed on Monday a committee report endorsing conditional
concurrence by the Senate in the Jpepa ratification
which, she said, “requires compliance [by both parties
in the accord] with at least 15 specified constitutional
provisions.”
She said
the conditional concurrence she recommended would ensure
the Jpepa’s compliance with constitutional provisions on
public health, protection of Filipino enterprises,
ownership of public lands and use of natural resources,
ownership of inalienable 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.
Santiago
said the condition imposed by the foreign relations
committee also makes reservations for future exceptions
to at least three Jpepa articles dealing with national
treatment, most-favored nation (MFN) treatment, and
prohibition of performance requirements.
Should
Japan refuse to accept the Senate’s conditional
concurrence,
Santiago
warned that the Jpepa would be deemed “invalid and
cannot take effect. They [Japan] have to accept that the
Jpepa must conform with the Philippine Constitution.”
She explained that if the Jpepa conditions are not
accepted by the Japanese government, “then there is no
treaty; it does not take effect.”
“If we
approve this Jpepa without conditions in its present
state, the Supreme Court will declare it
unconstitutional and the government would not be bound
to implement it. In that event, international law comes
into play and the Philippines could then be held liable
for non-implementation of a treaty,” she said, adding,
“but if the Japanese government refuses to sign a
supplemental agreement, then we will not have a Jpepa.
They are pretty hard, the 15 constitutional provisions
need to be observed, but they were not explicitly listed
on the Jpepa. And we cannot assume the Japanese will
comply with the provisions of our Constitution because
the Japanese are not bound by such presumption.”
Under
questioning by Enrile,
Santiago
admitted that “we really do not want this treaty” that
was presented for Senate ratification. “We really do not
like this treaty but if we do [reject] that, we will
incur the ire of Japan, so we try and avoid a vote of
nonconcurrence, or no approval; so we chose conditional
concurrence. In effect, what we’re doing is amending the
treaty which is not allowed by international law, but
which was shown to have been done by other countries
before.”
Santiago
also asserted that “the treaty suffers from serious
infirmity because the two parties agreed to give each
other national treatment. That is already a violation of
the Philippine Constitution, which provides only for
Filipino participation.”
Another
flaw, she added, is the MFN provision in the treaty.
“The treaty really has gaps, but
Japan
acceded that we can make exemptions to the national
treatment clause; but the Philippines failed to complete
the listing, that is why we’re having problems on the
general provisions of the treaty.”
Santiago
shrugged off warnings of dire economic consequences if
the bilateral accord with Japan is not ratified. “What
is going to happen?
Japan
is already our No. 1 trading partner even without the
Jpepa. It cannot afford to exclude us because of certain
benefits it will gain from the Jpepa,” she added. “I am
convinced that the SC has no choice but to declare this
treaty unconstitutional. Other provisions may remain
valid except that they are the noncontroversial
provisions but I am sure a petition to declare it
unconstitutional will be filed in the Supreme Court.” |
