JPEPA unconstitutional, legal experts tell Senate

By Dona Pazzibugan and Jerome Aning
Published in the October 9, 2007 issue of the Philippine Daily Inquirer

Two constitutional experts denounced the proposed Japan-Philippine Economic Partnership Agreement (JPEPA) as unconstitutional.

In separate position papers before the Senate foreign relations committee hearing Monday, former Supreme Court Associate Justice Florentino Feliciano and former dean of the University of the Philippines College of Law Merlin Magallona said the treaty violated constitutional safeguards on national patrimony.

Administration Sen. Miriam Defensor-Santiago, chair of the Senate foreign relations committee, agreed after the hearing that “Virtually, if we go by the objective analysis of these independent experts, JPEPA is dead.”

The two experts said the JPEPA violated the Constitution because it gave the Japanese the right to exploit the country’s marine resources when this is exclusively for Filipino nationals; it gave Japanese businesses the right to own land; and it assumed the power that rests solely on Congress to set and modify tariff rates.

Feliciano was in Washington and had his position paper read by lawyer Roberto San Juan.

Both experts said the treaty also took away the government’s constitutional right to form a national development policy since government negotiators had given up certain reservations on laws to be formed in the future.

Unless the treaty is ratified by the Senate by a two-thirds vote, the JPEPA cannot take effect.

Interviewed by reporters, Santiago conceded that JPEPA could be unconstitutional on several constitutional grounds.

“As a constitutional law student, I am personally godsmacked by what the imminent constitutional law experts have said. They were very strong in their view that the JPEPA is unconstitutional. That is the most fundamental priority of all these hearings: is it constitutional or not,” she went on.

Along with Santiago, Senators Juan Ponce Enrile, Edgardo Angara and Manuel Roxas II who were at the hearing were “unanimous” in concluding that JPEPA is unconstitutional.

Santiago described Feliciano as “the most famous international law expert for Asia and therefore in the world.”

“In my personal view, when Justice Feliciano says something, that is no longer debatable,” she said.

Roxas, chair of the Senate trade and commerce committee, said after five hearings the government has yet to show the country’s gains and losses from the treaty.

“It’s possible that we will recommend that it be renegotiated,” he told reporters.

It was the Senate foreign relations committee’s fifth and penultimate hearing on Monday. The government and the opposition groups have been given until Oct. 23 to submit all their position papers.

Former senator Wigberto Tañada, lead convener of the Free Fair Trade Alliance, was among those who argued against the pact.

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