‘No basis to void exploration deal with China, Vietnam’

MANILA, Philippines — Two Supreme Court (SC) justices dissented with the majority opinion that the 2005 tripartite agreement for the Joint Marine Seismic Undertaking (JMSU) signed by the Philippine government with China and Vietnam was unconstitutional.

In their dissenting opinions, Associate Justices Amy Lazaro-Javier and Rodil Zalameda noted that there is no factual basis to void the petroleum exploration deal entered into by the Philippines during the presidency of Gloria Macapagal-Arroyo.

The SC en bank voted 12-2-1 to declare as unconstitutional the agreement among China National Offshore Oil Corp. (CNOOC), Vietnam Oil and Gas Corp. (Petrovietnam) and the Philippine National Oil Co. (PNOC) for petroleum exploration in a 142,886-square-kilometer area within the country’s exclusive economic zone (EEZ).

In the ponencia decision penned by Associate Justice Samuel Gaerlan, the high court voided the deal for violating the constitutional provision against allowing foreign corporations to exploit the country’s natural resources, which reserves this right to Filipino citizens or corporations with at least 60 percent Filipino ownership.

The agreement covered six islands claimed and occupied by the Philippines in the Spratlys such as Pag-Asa Island, Likas Island, Lawak Island, Kota Island, Patag Island and Panata Island. The deal lapsed in 2008 amid the controversy.

In her opinion, Lazaro-Javier pointed out that the petitioners went straight to the SC without going to the trial courts to secure a true copy of the JMSU, a mere photocopy of which was provided to the court, and the official map of the area to be explored, which was not provided to petitioners because of the deal’s confidentiality clause.

In the absence of these documents, the ponencia supplied facts in the case, which is outside the mandate of the highest court in the land, Javier added. For one, the ponencia accepted an unofficial map submitted by petitioners and constructed using coordinates mentioned in a certain online news article.

“Petitioners bear the burden of proving facts. This Court does not unearth the facts for them. Much less should we supply the facts to give substance to their petition,” Lazaro-Javier said, noting that the majority decision was based on “hearsay statements that favor only the petitioners.”

With these key documents missing, petitioners failed to provide the court the factual basis to oppose the agreement, Lazaro-Javier said, noting too that with the expiration of the JMSU in 2008, “we do not know if (it) was ever implemented at all.”

“For us to conclude that there is a grave violation of the Constitution, there must be prima facie evidence of the existence, nature and continuing state of this grave violation… With the JMSU’s expiration, is the Constitution still being violated? Obviously, we cannot conclude that it is because there are no facts to base this conclusion on,” Lazaro-Javier said.

Associate Justice Zalameda agreed that the ponencia “assumed” that the area was within the country’s EEZ even though the “exact location was not fully litigated by the parties” and that the map “was merely based on an unrebutted approximation.”

“I find that our opinion on constitutional issues concerning a terminated agreement whose meaning and scope were not fully ventilated by the parties is speculative and mere advisory in nature,” Zalameda said.

As to the finding that the issue is not moot because it has the “probability of repetition yet evading review,” the justices found that the petitioners failed to prove that another JMSU is in the works.

“The burden is to show a reasonable expectation. Reason requires a basis. We cannot simply speculate that another JMSU is coming. Petitioners have to show facts and circumstances, not merely allege them,” Lazaro-Javier said.

“The ‘capable of repetition yet evading review’ exception also requires that there must be a ‘reasonable expectation’ or a ‘demonstrated probability’ that the same controversy will recur involving the same complaining party… I do not view that the case presented (this). This Court is unaware of any similar agreement entered into by the succeeding administrations involving our natural resources without our territory or even in our EEZ,” Zalameda added.

For Lazaro-Javier, the case concerns a matter of “foreign relations” and not an issue of exploration, development and utilization of natural resources, thus it “requires deference to the reasonable actions of respondents” in connection with the Arroyo administration’s foreign policy.

The respondents claimed that the joint deal was necessary to foster international cooperation and diffuse tension over the disputed waters in the South China Sea. Arroyo at the time was accused of selling the country’s patrimony and sovereignty.

“The JMSU is not primarily for the purpose of inviting other countries to partake of the country’s natural resources. Instead, the primordial purpose is to trail-blaze efforts at establishing a code of conduct among claimant-countries to resolve amicably conflicting territorial claims over disputed territories,” Lazaro-Javier said.

“How we deal with real troublesome neighbor-sovereigns should be a matter left deferentially to the resolution of our foreign affairs officials. The Court must not double dip in these matters in doubtful cases because we risk adverse outcomes to both our national security and international standing,” she added.