SC seen as next venue of Jpepa legal row

By Benjamin B. Pulta and Michaela P. del Callar
Published in the October 9, 2007 issue of The Daily Tribune

The row over the necessity and legality of the Arroyo government’s forging of a controversial trade pact with Japan could ultimately be brought to the Supreme Court (SC) for decision.

Administration Sen. Miriam Defensor-Santiago yesterday said this after coming out of the resumption of public hearings on the Japan-Philippines Economic Cooperation Agreement (Jpepa) conducted by the Senate committee on foreign relations and the committee on trade and commerce, which she and colleague Sen. Manuel “Mar” Roxas II head, respectively.

Speaking to reporters, Santiago reiterated that the question of Jpepa’s constitutionality takes precedence over whether it would be ratified by the Senate.

“I have already emphasized both in this particular hearing and in any other occasion that the constitutional issue (on the Jpepa) is a threshold question. Because in a hypothetical case, even if the committee reports the treaty favorably through the plenary session of the Senate, and the Senate, by a minor miracle, approves it, the opposition, who are very emotional and committed to their cause, will certainly bring the case to the Supreme Court,” she said.

Santiago said when the case is brought to the SC and it rules that it is unconstitutional, all other issues surrounding it will be mooted.

“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?” she said.

Santiago added it was for that very reason and because “it is a very technical issue that will be very difficult for the public to understand” that she “had deliberately left the issue of constitutionality for last.”

The Palace-allied senator said due to its “defects” and “constitutional infirmities,” the pact would likely not get enough votes for plenary consideration, and because of that, the Senate would likely recommend sending it back to Malacañang for renegotiation.

She said because the authority of the Senate is confined to ratification or rejection of a government-forged pact, it cannot amend the Jpepa.

“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,” she said.

Earlier, during the hearing, former Sen. Wigberto Tañada, former Justice Florentino Feliciano and UP Law dean Merlin Magallona cited several legal “infirmities” in several provisions of the Jpepa that allegedly violate the Constitution.

Tañada, lead convenor of the Fair Trade Alliance (FTA), said instead of ratifying it, the Jpepa must be returned to the Palace for it to renegotiate it and purge it of its “imbalances.”

Citing Article 12, Section 13 of the 1987 Constitution, Tañada stressed that “the State shall pursue a trade policy that serves the general welfare and utilizes all forms of arrangements on the basis of equality and reciprocity.”

“The prudent action of the Senate is to withhold concurrence on Jpepa and (let the executive) make the correction now and get back to the negotiating table to make our relations with Japan a fair, just, balanced and a sustainable one,” he said.

“If we go by the objective analysis of these independent experts, the Jpepa is dead,” Santiago said.

The FTA, the Junk the Jpepa Coalition, the Philippine Nursing Association (PNA) and Greenpeace International are among the organizations urging the Senate to repudiate the bilateral treaty.

In the Senate hearings, the FTA has particularly raised the issue of the Jpepa having no provision that opens for skilled Filipino workers access to the Japanese job market. The PNA, meanwhile, criticized the stringent requirements for Filipino nurses to undergo a six-month training course in the Japanese language and to take the licensure examination given by Tokyo to qualify as full-fledged nurses.

Greenpeace, for its part, warned that when the pact is finally adopted, it would allow Japan to freely dump toxic waste materials to the Philippines, despite safeguards embodied in the treaty.

Trade Secretary Peter Favila, however, argued that the Philippines will be placed at a great disadvantage if the Jpepa is disapproved by the Senate because the country will be deprived of the privilege to expand its agriculture and industrial exports to Japan without tariff.

He said without the Jpepa, the country’s exports to Japan are projected to grow an average of 8.51 percent a year, but with the pact, exports will expand by 9.29 percent by next year and by 16 percent by 2010.

Under the agreement, Japan agreed to remove the tariff on such farm and marine products as shrimps, prawns, vegetables, dried bananas, guavas, mangoes, mangosteen, papayas, coconut and copra, durian, rambutan, as well as manufactured goods such as knitted and crocheted fabrics.

The pact also aims to increase the level of Japanese overseas development assistance to the Philippines, which, in 2009 alone, reached $4.7 billion, or 49 percent of the total ODA received by the country from foreign sources.

At the conclusion of the hearing, Santiago instructed the proponents and oppositors of the Jpepa to submit written memoranda justifying their positions before the joint committees which will decide the fate of the accord on the last week of this month.

The hearing yesterday dealt with constitutional issues and the movement goods and services.

Santiago said although the hearing was supposed to be the last of five scheduled hearings, another hearing is to be set with Sen. Edgardo Angara presiding.

Those who attended the hearing from the government side included Favila, Agriculture Secretary Arthur Yap, Health Secretary Francisco Duque III, acting Justice Secretary Agnes Devanadera and Ambassador Manuel A. J. Teehankee, Philippine Permanent Representative to the World Trade Organization, who was designated head of the Jpepa legal panel.

The Jpepa was signed on Sept. 9 last year by President Arroyo and then Japanese Prime Minister Junichiro Koizumi during the Asia-Europe Meeting in Helsinki, Finland.

The agreement aims to promote a freer transborder flow of goods, persons, services and capital between Japan and the Philippines. It also seeks to promote a comprehensive economic partnership, which includes intellectual property, competition policy, improvement of business environment and bilateral cooperation in such fields as human resources development, information and communications technology and small and medium enterprises.

The agreement cannot be enforced unless ratified by the Senate. It can still be renegotiated five years from ratification.

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