Government harnesses legal experts in final fight for Jpepa

By Max V. de Leon
Published in the November 6, 2007 issue of the Business Mirror

RECOGNIZING that the issue of constitutionality is the last major stumbling block for the ratification of the Japan-Philippines Economic Partnership Agreement (Jpepa), the government has decided to seek the opinion of some of the country’s top legal minds in hopes they will back the agreement on legal grounds.

Trade Secretary Peter Favila said they have sought the advice of constitutional experts, including retired chief justice Artemio Panganiban and Ateneo president Fr. Bienvenido F. Nebres S.J., in defending the Jpepa, in spite of the opinion of Acting Justice Secretary Agnes Devanadera that the legal structure of the trade pact follows the prohibitions of the Charter, apparently to show there is no bias in the government opinion.

Favila said these legal eagles would write their opinions in their respective memoranda, which will be submited to Sen. Miriam Santiago, head of the Senate Committee on Foreign Relations now hearing the Jpepa ratification. “That is the only issue left, and people have their own opinion on the matter.”

In defending the Jpepa on the Senate floor anew, Favila said the government will come up with a matrix containing their rebuttal to specific provisions cited by those opposed to the Jpepa.

But it could be a little more complex than Favila stated, since the Fair Trade Alliance has announced its intention to seek a Supreme Court ruling on the pact’s constitutionality even if the Jpepa hurdles the Senate, as a last-ditch attempt to block its implementation.

Favila also reported that he met recently with his Japanese counterpart Akira Amari in Tokyo to give him updates on the Jpepa state of play. “I’ve told Mr. Amari that the Senate is known to make decisions that are best for the country. That is a very comforting statement.”

Former Chief Justice Panganiban is a member of the council of advisers of the Philippine Chamber of Commerce and Industry, which has been vocally advocating for the ratification of the Jpepa.

Recently, the PCCI gathered the other business groups such as the Makati Business Club, Management Association of the Philippines and Employers Confederation of the Philippines to collectively support the Jpepa, the first bilateral economic cooperation agreement to be concluded by the Philippines.

In any case, Devanadera had concluded that the Jpepa upholds the primacy of the Constitution and Philippine laws. In a statement, she said that contrary to the concerns expressed by some legal luminaries, notably retired Supreme Court Justice Florentino Feliciano, Annex 6 of the Jpepa contains the specific provision that “all lands of the public domain are owned by the State. Only citizens of the Philippines or corporations or associations at least 60 percent of whose capital is owned by such citizens may own land other than public lands or acquire public lands through lease.”

Further, under the Jpepa, the Philippine commitments on the operation of public utilities, such as in common carriers, express services, oil, gas, geothermal and coal exploration, telecommunications and port services limits Japanese participation to the constitutional “40-percent foreign equity limitation.”

In the practice of all professions, Devanadera said the Philippine schedule in the treaty contains a horizontal limitation in professional services that requires satisfaction of the reciprocity rule provided for in existing local legislations. “Under this rule, the Philippine government is not obliged to recognize the services output of foreign services suppliers not duly registered in the Philippines.”

Devanadera added that under the “positive list” approach, the Philippines can legitimately impose a 100-percent Filipino equity in mass media as provided for in the Constitution, notwithstanding the lack of any reservation or inscription in the Jpepa.

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