Transcript of Senator Miriam Defensor Santiago’s interview after the fifth hearing on the JPEPA

As a constitutional law student, I am personally godsmacked by what the imminent constitutional law expert have said. They were very strong in their view that the JPEPA is unconstitutional.

I have already emphasized that the constitutional issue is a threshold question because in a hypothetical case, even if the committee reports the treaty favorably to the plenary session in the Senate; and the Senate, by a minor miracle, approves it, the opposition, who is very emotional and committed to their cause, will certainly bring a case to the Supreme Court. If the Supreme Court decides that the JPEPA is unconstitutional, it will become unnecessary to discuss all other points. That is the most fundamental priority of all these hearings: is it constitutional or not. That is why I deliberately left the issue of constitutionality for last because it is a very technical issue and will be very difficult for the public to understand.

Among our experts is the preeminent legal scholar of this country and actually the most famous
international law expert for Asia, and therefore in the world, Mr. Florentino Feliciano. His paper
consisting of seventeen pages is categorical. He is citing chapter and verse the Constitution, not just one but several. In my personal view, when Justice Feliciano says something, that is no longer debatable. Even the administration spokesperson on this particular issue conceded that Justice Feliciano’s opinion is simply in the level of the supernatural—when he says something, there is almost nothing that you can say against it.

The same is true for the other expert in international law, former Dean of the UP College of Law and Oxford graduate Dean Merlin Magallona. Virtually, if we go by the objective analysis of these independent experts, the JPEPA is dead. JPEPA is unconstitutional in several constitutional grounds, and then they went on to explain which ones of these provisions are, and why they adversely impact the validity of the JPEPA.

But as I’ve said, we are not finished, in fact there will be an additional hearing to be presided by either Senator Roxas or Senator Angara. I have to keep an open mind until after that last hearing and until after all the parties directed should have submitted their written memoranda by October 23. But as a lawyer, for me the preeminent question is constitutionality. Once you have a valid and substantial constitutional question, then there is no point in discussing the JPEPA. It is the ultimate first priority. Since our objective experts who were testifying or having their papers read were categorical in their findings.

The power of the Senate is confined merely to ratification or rejection. We cannot possibly amend the treaty. What we can do is send back the treaty to the executive branch for renegotiation for amendment, addition, or exclusion as we shall see fit in the Senate floor. But of course, they will take my recommendation as chair of the committee into full significance.

If that is the case, I will first have to get a majority vote of my own committee. But notice there
were three administration senators present, but we were unanimous at least in this hearing that there is no question that JPEPA is unconstitutional.

But as I’ve said, I will struggle very hard against my own instincts to try and keep an open mind, because after all, there will be one more hearing, and then I still have to wait for the memoranda from all parties.

On the JPEPA provisions claimed by experts to be unconstitutional

The Philippine Constitution is one of the few in the world that has a nationality provision. In other words, we consider that, as a matter of Filipino nationalism, certain areas of business, trade and industry should be reserved only for Filipino citizens or corporations that has at least a majority or controlling share is owned by Filipinos. According to these experts, the JPEPA, if implemented, will violate these nationality provisions. Under the treaty, only Japanese entities may invest in the Philippines. However, there is a practice in international trade law where, to get around that requirement, they can form a corporation which would be the “grandfather,” and that corporation can form another one, and so on, until it reaches a point where the registered Japanese corporation is no longer controlled by the Japanese but might be controlled by Americans, Europeans or whoever. There is actually a backchannel or loophole in that provision, that is why it might be unconstitutional on that ground.

In the 1993 Oposa v. Factoran, the Supreme Court said that all activities on the part of the government must apply to the constitutional provision of protection of the environment on a balanced ecology. And so, it is likely that that provision will be applied as well, and that would be the second ground for unconstitutionality. That is the problem: it is not only one ground, but several. If you don’t get it declared in one ground or one provision, there are still other provisions you have to contend with.

That is why I am very worried about the fate of JPEPA even on committee level only. But in plenary level, we are already disadvantaged because the numerical majority belongs to the opposition, and this series of hearings provided the opposition senators with very strong ammunition. I for one confess that I will not be able to defend the constitutionality of the JPEPA
on the Senate floor.
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