Panel eases fears on deal with Japan

By Fel V. Maragay and Michael Caber
Published in the November 5, 2007 issue of the Manila Standard TODAY

MALACAÑANG has allayed the apprehensions of law experts and leftist groups that the Japan-Philippines Economic Partnership Agreement may grant an exemption to Japanese companies on the 40-percent ownership limitation for vital industries under the 1987 Constitution.

Ambassador Manuel Teehankee, spokesman of the government’s legal panel on the JPEPA, said that such apprehensions are without basis since there is no provision in the new trade agreement that allows Japanese companies or nationals to invest in mass media, advertising, public utilities and educational institutions.

The apprehension over the JPEPA provisions that allegedly do not conform with the Constitution were fueled by a position paper presented by retired Supreme Court Justice Florentino Feliciano to the Senate foreign relations committee that Japanese investors may request for more than 40 percent ownership in media, advertising, public utility and educational enterprises in violation of the Constitution.

But, Teehankee, permanent Philippine representative to the World Trade Organization based in Geneva, said all forms of mass media and specific service sectors were excluded in the Philippine Schedule of Commitments under JPEPA in keeping with the constitutional requirement “that the ownership and management of mass media shall be limited to citizens of the Philippines or to corporations or associations wholly owned or managed by such citizens.”

The special envoy said that all these concerns are not governed by the Investment Chapter of the JPEPA, adding that even sectors or subsectors specifically mentioned in the Schedule of Commitments are still subject to additional limitations or qualifications as indicated in several other provisions of the treaty.

Teehankee said that there is a one-year period provided in the treaty for each party to complete the list of reservations with respect to all government regulations and municipal laws that could serve as further exceptions to the national treatment and most favored national rules.

Senator Miriam Defensor Santiago, chairman of the Senate foreign relations committee, expressed concern that the alleged constitutional provisions cited by Feliciano, as well as Merlin Magallona, former dean of the UP College of Law and former Senator Wigberto Tañada of the Fair Trade Alliance, may become an insurmountable obstacle to the Senate’s ratification of the JPEPA.

Santiago said she has high respect for Justice Feliciano, praising his position paper as “brilliant and irrefutable.”

Magallona questioned the constitutionality of the reduction or elimination or tariff rates for Japanese products entering the country under the new bilateral treaty, pointing out that only Congress has the authority to do so.

“JPEPA virtually amends the Constitution without going through the Constitutional Convention, Constituent Assembly or people’s initiative and all this is taking place through the backdoor,” he said.

But, Teehankee said that JPEPA provides for a periodic review of the agreement every five years and that either party may terminate it after one year’s notice.

Meanwhile, the Japanese government assuaged fears of Filipinos that it would export toxic wastes and harmful chemicals and substances once the JPEPA comes into force.

Japan Assistant Press Secretary Kazuyuki Yamazaki, director for International Press Division, told Standard Today that the “Japan government would never export its toxic wastes, hazardous chemicals and substances to the Philippines and other countries because it has a very strict environmental policy.”

As a proof, Yamazaki said in an interview over dinner in Tokyo, Japan has signed the “Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal” in 1993 that obliged its country not to export any hazardous waste to foreign countries.

The treaty’s objective, with 168 signatory countries as of December 2006, is to regulate international movements of hazardous waste. The Philippines together with other Asean member-countries are among the signatories to the multilateral treaty.

“This obligation will continue to be valid, even if Japan-Philippines EPA enters into force,” Yamazaki said, adding that “unless Japan’s trading partners declares to import such waste in a written form.”

The timing of the Japanese government’s acceptance of the United Nations multilateral treaties governing several environmental concerns indicates Japan’s priorities on biodiversity, global warming, and depletion of the ozone layer.

Banning transboundary movement of hazardous wastes is the least prioritized, as indicated by Japan’s failure to accept the Ban Amendment to the Basel Convention. The Japanese Environment Agency’s policy statements and budget allocations between 1985 and 2000, as well as other official statements and programs, likewise indicate the same priorities.


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