Transcript of Senator Miriam Defensor Santiago’s media interview after the fourth JPEPA hearing

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. -o0o-