JPEPA Update

Subject: JPEPA Update December 11th 2008, 2:05 pm

Dear Friends,

May peace be with you and our country in this season of the Christ Child.

Because I initiated the full-page ad which came out on Aug. 6, 2008 in the Philippine Daily Inquirer urging the Senate to reject the Japan-Philippine Partnership Agreement (JPEPA), I feel I owe you, who agreed to sign the ad, a briefing on the developments subsequent to its publication and its present status.

As you know, the Senate ratified JPEPA last Oct.8, 2008. This in spite of the fact that interpellation after interpellation on the Senate floor showed that it was the most infirm of treaties constitutionally and economically. This even after it was shown thatthat it violated the Constitution and that the exchange of notes, contrary to Senator Miriam Defensor Santiago’s assurance, was not a correction and was in fact an affirmation of JPEPA since it says that the side notes “do not modify the rights and obligations of the parties under the provisions of JPEPA.” See Former U.P. Dean article at a later part of this letter.

JPEPA was ratified on the last day of its previous session, just before the one-month break, on Oct. 8, 2008. The voting was done around 10:30 p.m. When most media had gone, when the civil society audience had dribbled to a few. We never expected the vote to be called at that late hour, for such a controversial treaty. (I myself was under the weather but I would have forced myself to attend had the vote been announced three days before as there is the prescribed length of notice). However, we had members of the coalition Magkaisa Junk JPEPA present and they gave us the salient high points of the evening:

As the evening, wore on, the news was going around the Senate plenary hall, that Malacanang had certified the ratification of the treaty as urgent. It seems that such certification is the cue for the Upper Chamber to waive the 3-day notice. Though much of the earlier hours of the plenary session that afternoon were devoted to other less important matter, the interpellations on JPEPA were suddenly resumed at around 7:00 p.m. from where it left off the day before. Senator Madrigal was giving a lengthy interpellation when Senator Migz Zubiri suddenly arrived (straight from NAIA from Singapore where he attended a conference). Senator Jinggoy Estrada strode down from the platform where he was presiding over the session as President Pro tempore to shake Senator Zubiri’s hand in welcome. At that point, Senator Madrigal, who was not yet done with her questions, suddenly announced: “since there is an overwhelming yes votes for JPEPA, I will terminate my interpellation and submit later my 150-page dissenting vote.” Odd.

Other odd things worth noticing during that fateful night at the session hall were the following:

· The outright constitution of the ethics committee on that day, which was moved by Sen. Ping Lacson, resulted in a heated debate and an impasse as no administration senator would want to become a member. Earlier in the afternoon, Senator Pia Cayetano, the supposed chair of the committee, stayed on to wait for the approval of her bill (the creation of a sanctuary in Mindanao ). She left immediately soon after, even as her colleagues were in a very serious huddle as to who should constitute the committee she heads;

· As chair of the environment committee, Sen. Pia did not even bother to interpellate for or against JPEPA. She did not cast her vote either – even in absentia;

· Senate President Manny Villar was constantly seen in a very serious huddle with Sen. Escudero, a sight not normal and typical of Villar to Escudero. It was learned later that Villar was worried that Sen. Zubiri could not make it that day. It was learned later that he was trying to convince Sen. Escudero to vote yes.

· In justifying the waiver of the three-day notice before the Senate votes on a measure on third and final reading, Sen. Roxas instructed the secretariat to read the letter of the President to Villar congratulating him for the ratification. The letter seemed like Malacanang was so sure that JPEPA would be ratified.

The following senators voted for ratification:

Senators Miriam Defensor Santiago, Mar Roxas, Ping Lacson, Loren Legarda, Juan Ponce Enrile, Kiko Pangilinan, Migz Zubiri, Alan Peter Cayetano, Jinggoy Estrada, Lito Lapid, Gringo Honasan, Manny Villar, Dick Gordon, Ed Angara, Rodolfo Biazon and Bong Revilla.

The following voted against it: Senator Noynoy Aquino, Chiz Escudero, Jamby Madrigal and Nene Pimentel

On Oct. 13, a number of civil society groups submitted to the Supreme Court a petition to declare the treaty unconstitutional and to issue a Temporary Restraining Order to stop the implementation of the treaty while the High Tribunal deliberated on the petition.

Soon after, the Supreme Court issued an order for those responsible for the passage of the treaty to answer the charge within 10 days. These respondents are mainly the 16 senators, the Department of Trade and Industry. They asked for more time to prepare their answer.

A few days after, the Foreign Affairs Department / Ministry of the Philippines and Japan exchanged diplomatic notes to the effect that the treaty may now be implemented. According to the lawyers of the Magkaisa Junk JPEPA coalition, this exchange seals the treaty. It will take effect on Dec. 11, 2008. What the Supreme Court did was wash its hands off the issue at this time, by allowing the exchange of notes to take place without the Court ruling on its constitutionality.

This is a sad day for our country. It is terrible that the Supreme Court allowed this most controversial treaty to take effect in that way. If it deemed the treaty constitutional, then they should have ruled accordingly. If it needed time for more study, then it should have issued a TRO. But no, it resorted to a Pontius Pilate strategy. Thus it is as responsible for this treaty as are the Executive who wrote it and the Legislative who ratified it. The Supreme Court blessed it with its action.

But the Supreme Court has to rule on the JPEPA’s constitutionality sometime. It is hard to think that the justices will declare that it does not violate the Basic Law of the Land. Below is the article on the legal opinion held by former U.P. Law Dean Magallona open the side notes.

In an Exchange of Notes dated August 22 and 29, 2008, Philippine Secretary of Foreign Affairs Alberto G. Romulo and Japanese Minister of Foreign Affairs Masahiko Koumora have formally expressed “the shared understanding ... on the interpretation of the Japan-Philippine Economic Partnership Agreement (JPEPA)”.

This “shared understanding” came about on the request of the Philippines purportedly to save (JPEPA) from rejection by the Senate, owing principally to its provisions on investments which are in derogation of the Philippine Constitution.

The Romulo-Koumora Exchange therefore appears as a response to the condition set by the Senate that it may not act in concurrence on JPEPA unless the issue of constitutionality is resolved. Apparently, authoritative Senate sources are of the view that JPEPA contains investment provisions in serious conflict with the citizenship requirements of the Constitution.

However, the Exchange of Notes reaffirms “the rights and obligations” of the Parties under . . . the provisions of the JPEPA and, in the overall result, JPEPA remains at war with the Constitution.

1. The entire Exchange of Notes is devoted to the interpretation of the Japan-Philippines Economic Partnership Agreement (JPEPA). It does not in any way seek to change the intent of the parties. Neither does it amend the text of JPEPA.

The essence of a treaty in international law is that it creates legal relations between the states parties, and the core of such relations consists of rights and obligations embodied in the meaning of the text of the treaty in question. For this reason, instead, the Exchange of Notes appears as a reaffirmation of the legal relations between Japan and the Philippines in JPEPA and has the effect of reinforcing their intent to adhere to the rights and obligations as provided in JPEPA. On this point, the Exchange of Notes is emphatic, thus:

2. The present exchange serves only to confirm the interpretation of, and does not modify the rights and duties of the Parties under, the provisions of the JPEPA (Emphasis added).

This paragraph is a component of what the Exchange of Notes describes as the “shared understanding of the Republic of the Philippines and Japan on the interpretation of the Japan-Philippines Economic Partnership Agreement (JPEPA).” It stands to reason that it is their intention to interpret JPEPA in terms of the rights and obligations stipulated in JPEPA as its text stands now, without any modification — which are precisely in derogation of the Philippine Constitution.

3. In the international law of treaties, the task of interpretation, says Lord McNair in his Law of Treaties (1961, p. 365), is “the duty of giving effect to the expressed intention of the parties, that is, their intention as expressed in the words used by them in the light of the surrounding circumstances.” (Emphasis by McNair.)

The “shared understanding” in the Exchange of Notes must necessarily subserve the clear statement of rights and obligations as set forth in JPEPA. It cannot pretend to modify that statement, which the Exchange of Notes itself asserts.

4. In reference to provisions of the Constitution requiring citizenship requirements, which JPEPA intends to eliminate by parity treatment of Japanese investors, the “shared understanding” states that “Nothing in the JPEPA requires amendment of any of the existing provisions of the [Philippine] Constitution”.

It is true that JPEPA does not intend to directly amend the Constitution. With JPEPA, the Constitution will remain intact, but JPEPA will supersede or supplant it, in application and in settlement of disputes over JPEPA’s interpretation, JPEPA will prevail over the Constitution in the event that the Senate gives its imprimatur. In case of incompatibility between JPEPA and the Constitution as an issue to be decided by an arbitral tribunal that may be created by the parties pursuant to JPEPA, that tribunal will apply JPEPA over and above the Constitution pursuant to the fundamental principle of the pacta sunt servanda and in accordance with the basic norm of international law that a party to a treaty cannot invoke its internal law, including its Constitution, as a justification for failure to perform its obligation under the treaty.

The choice before the Senate is clear: JPEPA or the Philippine Constitution.

Magallona, Merln. “The Romulo-Koumora Exchange of Notes.” Philippine Star, 9 October 2008, p. 16.

Senator Santiago herself had verbalized, early in the process, her fear that if JPEPA and the Constitution were found by the Supreme Court to be at odds, that JPEPA would prevail, if questions were to be brought to international courts. (In spite of knowing this, she pushed for the treaty’s ratification.)

What now? Whatever the Supreme Court decrees in the future will be practically moot and academic. The treaty is already running, as if it was declared constitutional. If the Supreme Court decides it is unconstitutional, it would have no effect because international courts will honor it, not our constitution, and we will have to abide by it.

God help our country.

Thank you for your attention and support.

Nina Galang
Miriam College Environmental Studies Institute &
Green Convergence for Safe Food, Healthy Environment & Sustainable Economy

Subject: Re: JPEPA Update December 18th 2008, 3:46 pm

Amen!...

thanks for the post!

kindly visit this please:

http://usapangkalikasan.multiply.com/photos/album/4/MAGKAISA-JUNK_JPEPA

Subject: Re: JPEPA Update December 18th 2008, 4:43 pm

salamat sa Link

Subject: Re: JPEPA Update December 19th 2008, 1:53 am

wala pong anuman...

sana maging myembro ka ng multiply group na yan.
at maging updated sa usapin at kalagayan ng bansa patungkol sa kalikasan.

Salamat po!

Subject: Re: JPEPA Update December 19th 2008, 4:10 pm

magaling kaibigang Lanyag...

siguro papel natin na mga may-access sa mga ganyang information ang i-update ang mas maraming tao... kagaya ng ginawa mo na gumawa ka ng link...

sama-sama tayo... laban ng lahat ito... dahil usaping kalikasan na ito...

Subject: Re: JPEPA Update December 19th 2008, 6:20 pm

Yap!...

sa susunod maglagay ako ng membership form sa mga gustong maging myembro ng isang organisasyon ng mga taong naglilingkod sa kalikasan...

sana magmyembro kayo...

salamat po!

Subject: Re: JPEPA Update April 8th 2009, 3:38 pm

Naranig ko kahapon dun sa Speech sa Bataan... ipinagmamalaki nung Japanese Ambassador yung JPEPA...

Siguradong matitikman na natin ang lupit ng kasunduan na ito... lalo na sa Kalikasan...

Ang nakalulungkot lang... sa panahon natin pinirmahan at ipinatupad ngunit ang siguradong maaapektuhan ay mga anak ng mga anak natin...

Subject: Re: JPEPA Update September 10th 2009, 6:32 pm

manong jhuly, matagal nakakatakot isiping di lang magsisimula ang epekto ng JPEPA, kundi masmabigat na epekto ng matagal ng ginagawa ng gobyerno natin kasama ang Japan..sa pagpapahirap ng kapwa nating pinoy.

hayssstt! God bless the pinoys!

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