JPEPA: ’Unconstitutional’ on 15 counts yet...
Philippine Center for Investigative Journalism | May 14, 2008
JPEPA: ‘Unconstitutional’ on 15 counts yet...
This post was written by Ivory delos Trinos, a senior AB Journalism student of St. Mary’s University in Bayombong, Nueva Vizcaya. She is earning her summer internship credits with the PCIJ.
THE Senate’s ratification of the Japan-Philippines Economic Partnership Agreement (JPEPA) is not likely to push through until, possibly, this August. This was after Senator Miriam Defensor Santiago decided to defer her sponsorship of the controversial treaty to await the results of the exchange of notes between foreign affairs secretary Alberto Romulo and Japanese Ambassador to Manila Makoto Katsura.
The renegotiation, citizens’ groups however warned, will not mend the irregularities innate to JPEPA. “The proposed side notes only seek to fix the constitutional problems of the agreement,” said Magkaisa Junk JPEPA Coalition (MJJC) legal counsel Golda Benjamin. “The economic problems are grave.”
The JPEPA, which was signed by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in September 2006 in Helsinki, is said to be unconstitutional in at least 15 of its provisions.
Santiago, chair of the Senate committee on foreign relations, proposed a “conditional concurrence” to rectify the shortcomings of the treaty. Along with Senator Mar Roxas, who chairs the Senate committee on trade and commerce, she has recommended a resolution adopting their joint committee reports recommending the said conditional concurrence.
Two-thirds of the Senate is needed for the JPEPA to come into force. The Japanese parliament already ratified it in late 2006.
The exchange of notes, according to Santiago, would contain the same 15 conditions in her proposed resolution for conditional concurrence to ensure that the treaty abides by the Philippine Constitution. Santiago’s proposal reads as follows:
“For the avoidance of doubt, such comprehensive reservations shall include, without limitation, the right to adopt and maintain in the future any measure, action or decision pursuant to or in implementation of the following provisions of the 1987 Constitution of the Philippines:
– Article II, Section 15 - the protection and promotion of the right to health of the people;
– Article XII, Section 1, second paragraph - protection of Filipino enterprises against unfair competition and trade practices;
– Article XII, Section 2 - ownership of all lands of the public domain; utilization of or exploitation of all waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timer, wildlife, flora and fauna, and other natural resources;
– Article XII, Section 3 - lease and ownership of alienable public lands;
– Article XII, Sections 7 and 8 - ownership and transfer of private lands;
– Article XII, Section 10, first paragraph - authorizing the Congress of the Philippines to reserve to Philippine citizens and corporations or associations with a prescribed minimum local equity content, certain areas of investments;
– Article XII, Section 10, second paragraph - providing that in the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos;
– Article XII, Section 10, third paragraph - regulation of foreign investments;
– Article XII, Section 11 - operation of public utilities;
– Article XII, Section 13 - mandating that the State shall promote the preferential use of Filipino labor, domestic materials and locally produced goods;
– Article XII, Section 14 - practice of all professions save in cases prescribed by law;
– Article XIV, Section 4 (2) - ownership, control and administration of educational institutions;
– Article XIV, Section 12 - state regulation of the transfer and promotion of technology;
– Article XVI, Section 11 (1) - ownership and management of mass media; and
– Article XVI, Section 11 (2) - ownership of corporations and associations engaged in the advertising industry.”
Being unconstitutional, the treaty should only be headed for a rejection, MJJC held, adding that Santiago’s proposal is a desperate move. “The government is trying to save face. They are trying to protect the President and trying not to insult Japan.”
The coalition also dismissed as “empty threats” senators’ fears that the treaty’s rejection will have a negative impact on the economic relationship between the Philippines and Japan, particularly on the issue of Filipino products being restricted from entering Japan.
“We have to remember that the Philippines and Japan are also bound by World Trade Organization (WTO) rules. If suddenly (Japan) blocks our products simply because we rejected JPEPA, that’s a joke,” Benjamin asserted.
Addressing the concern of senators that Filipino products might enter Japan in higher tariffs in case JPEPA is rejected, she explained that both countries are still bound by the ASEAN-Japan agreement.
Santiago, however, sees JPEPA as a way to eliminate import duties, which would redound to the development of the country’s economy and eradication of poverty.
A study of the Philippine Institute for Development Studies (PIDS) said that JPEPA, as a representation of a “new-age free-trade area,” includes “measures towards the smooth movement of people, capital, and information and areas like investment and trade facilitation, as well as cooperation in science and technology, human resource development, small and medium enterprises, and the environment.” Among other benefits, JPEPA will reduce, if not eliminate, tariffs for a certain number of Filipino products that enter Japan.
MJJC does acknowledge that not everything in JPEPA is wrong. “I do agree that we need to improve our business environment, which is a big factor why foreign investors are not going into our country,” said Benjamin.
But as it is, the coalition said the tariff provisions in the JPEPA remain favorable to Japan. For example, of the 200 tariff lines for fish products, only “59 are forever excluded from duty-free treatment; 15 are for deferred market access negotiations; 72 for phased tariff removal; and only 25 duty free from year one.”
What’s more, other agricultural products - oranges, dairy, shiitake mushrooms - that pose no threat to Japanese producers remain protected in the JPEPA deal. Even bananas (traditional exports of the Philippines to Japan) will have to wait for five to 10 years before it could enjoy free access to Japanese markets.
Even WTO agreements are violated, claimed MJJC. The base rate for certain vegetables and fruits, for instance, is seven percent, much lower than their WTO bound rate of 40 percent. The base rate for fish products range from three to 10 percent, far lower than the WTO bound rates of 30 to 40 percent.
“Rather than moving forward, Mrs. Arroyo’s JPEPA negotiators have pulled down the country’s negotiating position. Yes, there is something worse than the WTO. It’s called JPEPA,” the coalition said.
Senator Santiago sees the delay as an opportunity for her colleagues to study her committee report. It will also give her time to explain further to the other senators the “conditional concurrence” on the said agreement.
For MJJC, the delay means more time to protest, to supply anti-JPEPA senators and those who are yet undecided with more information, and to finalize a possible Supreme Court case.
But the delay is also bad news, Benjamin said, because no one knows how much pressure the executive branch or the Japanese groups might exert among the voting senators.
“The fight against JPEPA is not about issues about the World War or issues against Japan, but it is the issue about the treaty itself,” she said. “What we are simply asking for is a certain level of accountability and for the senators to say that they made a mess and (that they are) rejecting the treaty.”
