21 April 2008

“HISTORIC” JPEPA STARTS STORMY SENATE PATH

Santiago said that this will be the first time in Senate history that the Senate will 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.

Santiago said the rule in Latin is: ubi lex non distinguit, nec nos distinguire debemos, and it has been applied repeatedly by the Philippine Supreme Court.

Santiago said the condition ensures that Jpepa will 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;

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 condition imposed by the committee also makes reservations for future exceptions to at least three Jpepa articles dealing with national treatment, most-favored-nation treatment, and prohibition of performance requirements.

Santiago explained that the condition prohibits three clauses, as follows:

• A national treatment clause accords Japanese the same rights as those accorded to Filipinos;
  

• A most-favored-nation clause between the two states provides that each state will treat the other as well as any other state that is given preferential treatment;
  

• A performance requirement imposes certain conditions for investment activities in the Philippines, such as to achieve a given level of domestic content, give preference to goods or services produced in the Philippines, or to hire a given level on Filipinos.
  

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

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

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

Answering media questions, Santiago said that if Japan refuses 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, in international law the Philippines would still be liable in 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 committee chaired by Santiago, and members of the committee on trade and industry headed by Roxas.

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 will distribute the separate Full Committee Reports, with one volume written by herself, and another volume written by Roxas.

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