Miriam files report recommending conditional concurrence for JPEPA

MANILA, Philippines – The Senate committees that tackled the Japan-Philippines Economic Partnership Agreement (JPEPA) recommended yesterday conditional concurrence to the treaty to satisfy the constitutional and other questions on the accord.

Sen. Miriam Defensor-Santiago, chairperson of the Senate committee on foreign relations, said her panel, along with the trade and commerce committee chaired by Sen. Manuel Roxas II, filed a joint committee report backing the ratification of the JPEPA but with certain conditions.

Santiago described it as “an improved treaty because the condition requires compliance with at least 15 specified constitutional provisions.”

Santiago said this would be the first time in Senate history that the upper chamber would 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.

Roxas said while the opposition to JPEPA would be respected, it would be best for the country to approve the JPEPA so as not to be left behind by neighbors like Thailand, Vietnam, Indonesia and Malaysia who had entered into a similar agreements with Japan.

“If we do not approve this, the investments from Japan will go to them instead of us. That is one. Secondly, their products like coconut, sugar and others will be able to get into Japan with low tariffs while ours will remain high. So we will be at the losing end because we will have no more market for our exports,” Roxas said.

He said the environment and other issues were carefully studied and it would be detrimental for the country in terms of jobs and investments if JPEPA would not be approved.

Santiago said the conditions to JPEPA ratification would ensure that JPEPA would 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.

The others are 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 conditions imposed by the committee also make reservations for future exceptions to at least three JPEPA articles dealing with national treatment, most-favored-nation treatment and prohibition of performance requirements.

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

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

“It was a highly technical and exhausting makeover. But Senator 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 Secretary Alberto Romulo has to negotiate a supplemental agreement with the Japanese ambassador,” Santiago said.

The senator said the agreement might take the form of an exchange of notes and should emphasize the “common understanding” of the two countries that no investor of either country would 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.”

Santiago said that if Japan would refuse 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, under international law the Philippines would still be liable for 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 as well as trade and commerce committees.

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 would distribute the separate full committee reports, with one volume written by her, and another volume written by Roxas.