1. Negociaciones
2. JPEPA

The Right to Information in International Trade Treaties

By: Atty. Ma. Tanya Karina A. Lat

The right of the people to information on matters of public concern is a fundamental right that has been enshrined in the Bill of Rights of the Philippine Constitution, [1] and which has been held to be self-executory (i.e., not requiring enabling legislation) by the Supreme Court in a long line of cases.

The right to information is not an end in itself, but is a means for ordinary citizens to inquire into various government transactions, and to exact accountability from their officials. [2] Moreover, the right to information is necessary for the people to exercise an even more important right under the Constitution, which is the right to participate effectively and reasonably at all levels of social, political, and economic decision-making. [3] As stated by the Supreme Court in the case of Senate of the Philippines v. Ermita:

“Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value - our right as a people to take part in government.”

This is, in short, a recognition that ordinary citizens have a right to know about and actively participate in government decisions that will impact on their daily lives.

In the past, government economic decision-making was driven largely by domestic concerns and considerations. However, with the rapid advance of globalization over the past two decades, and the country’s membership in multilateral trade arrangements such as the World Trade Organization (WTO) and regional trade arrangements such as the ASEAN Free Trade Area (AFTA), international trade arrangements are now becoming the driving force behind Philippine domestic economic policy.

Such international trade arrangements have tremendous effects on the lives of the average Filipino, affecting not just prices on agricultural and industrial products, but more importantly, the job security and employment of the Filipino workers who make them, the household income of the families who rely on them, and the continued viability of the local industries who employ them. Moreover, these trade commitments determine to a large extent the flow of revenues into the national treasury, and shape how our economy is run, what economic policies are adopted, what legislation is passed, and in more extreme cases, how the Philippine Constitution and existing legislation are to be amended or revised. In short, the Philippines’ trade commitments determine the state of the Philippine economy and of the lives of all Filipinos who are part of that economy.

Yet these international trade arrangements are being determined, not by elected officials, but by technocrats and professional diplomats who are not directly accountable to the people. Moreover, information on the full extent of these trade commitments has remained largely out of reach, with the Philippine government neglecting, or worse, refusing to disclose vital information despite sustained clamor from concerned industries and sectors for such information. In most instances, the Filipino public is informed of new trade commitments or new trade policies only after the fact, and without public consultation and involvement in the decision-making process. This is what happened when the Philippines joined the AFTA in 1992, and the WTO in 1994.

And now, the Philippine government is embarking on a new series of international trade commitments consisting of bilateral and plurilateral international trade agreements with various countries. The first such bilateral trade agreement is the Japan-Philippines Economic Partnership Agreement (“JPEPA”), which is more comprehensive than any of our existing trade commitments, and will set the tone for all future bilateral trade agreements. The JPEPA was signed by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junihiro Koizumi last September 9, 2006 in Finland, away from the glare of the media, and without the knowledge, scrutiny, and participation of the Filipino people.

Attempts of Congress to inquire into the JPEPA

The JPEPA is a bilateral preferential trade treaty between Japan and the Philippines that seeks to remove barriers to the trade of goods and services between the two countries. The JPEPA is the Philippine component of the Initiative for Japan-ASEAN Comprehensive Economic Partnership, which was proposed by Prime Minister Koizumi to ASEAN in January 2002. In May 2003, the Philippine Coordinating Committee (“PCC”), headed jointly by DTI Senior Undersecretary Thomas G. Aquino and DFA Undersecretary Edsel Custodio, was created to study and negotiate the proposed JPEPA. Formal negotiations between the Philippines and Japan commenced in February 2004.

In November 2004, following complaints that the DTI had denied requests for a copy of the full text of the proposed JPEPA as well as government announcements that the JPEPA would be signed by the first quarter of 2005, Congressman Mario Joyo Aguja of the Akbayan! Citizens Action Party and Congressman Lorenzo Tanada III of Quezon Province called for an inquiry into the JPEPA. The Special Committee on Globalization of the House of Representatives (the “Committee on Globalization”) proceeded to conduct hearings on the JPEPA on February 28, 2005, May 4, 2005, August 31, 2005, and October 12, 2005.

Warning bells

During the various hearings held by the Committee on Globalization, it became apparent that the JPEPA was no ordinary, run-of-the mill trade agreement, but a ground-breaking treaty that would set the tone for all future bilateral trade agreements.

The PCC revealed that the JPEPA would cover a wide range of trade issues, including:

· Trade in Goods, both industrial and agricultural;
· Trade in Services, Movement of Natural Persons;
· Rules of Origin;
· Investment;
· Intellectual Property;
· Customs Procedures and Paperless Trading;
· Competition Policy and Emergency Measures;
· Government Procurement;
· Dispute Avoidance and Settlement; and
· Bilateral Cooperation.

Philippine trade law experts Justice Florentino Feliciano [4] and Professor Meilou Sereno - who were part of the government legal team reviewing the JPEPA - testified before the Committee on Globalization that the JPEPA is a “mega-treaty”, i.e., a combined Bilateral Investment Treaty and Bilateral Free Trade Agreement that adopts many key features of the North American Free Trade Agreement (NAFTA) that took all of ten (10) years to negotiate before finally being signed by the United States, Canada and Mexico.

Justice Feliciano and Prof. Sereno warned the Committee that such a combined treaty would have difficulties that are “twice as large, twice as formidable” than if they were negotiated separately, and thus, the Philippine government needs to be “twice as awake, twice as vigilant” in determining whether the country is indeed ready to undertake a treaty of this nature. Prof. Sereno likewise stated that the implications of JPEPA are “very far-reaching”, and may possibly require full-bodied legislation and/or amendments to existing legislation; thus, the Philippine government should not be rushed into concluding and ratifying the JPEPA.

During the Committee hearings, Undersecretary Aquino likewise testified that the JPEPA aims to reduce, if not totally eliminate tariffs on industrial products, as well as those on agriculture, forestry, and fishery products, which would inevitably invite a flood of Japanese products into the Philippine market.

It was likewise revealed that the JPEPA would cover the issues of investment, competition policy, and government procurement - the so-called “Singapore issues” which have not made headway in the WTO talks given the insistence of developing country members that the more fundamental and developmental WTO issues (such as subsidies in agriculture and non-agricultural market access) be satisfactorily resolved first. This has led many officials of the DTI and the DFA to label the proposed JPEPA as “WTO-plus” or “FTA-plus,” i.e., binding the Philippines into commitments over and beyond those already committed under the WTO.

Invoking the right of access to information

As early as the first hearing on February 28, 2005, the Committee on Globalization requested the PCC’s chief negotiator, DTI Undersecretary Aquino, to furnish the Committee with copies of the full text of the latest draft of the JPEPA. However, despite repeated requests by the Committee - which were reiterated in subsequent Committee hearings and even during the budget hearing of the DTI on November 10, 2005 - Undersecretary Aquino refused to act on the request, saying that the negotiations were still ongoing. During the DTI budget hearing, Undersecretary Aquino even asserted that it would be necessary to secure the permission of the President before the full text of the JPEPA can be disclosed.

While the Committee on Globalization had already resolved to subpoena the records of the DTI with regards to the JPEPA, Speaker Jose de Venecia did not want to sign the subpoena as he first wanted to get the consent of the President.

When it became evident that no information would be forthcoming from Undersecretary Aquino, and in view of the alarming indications that the Philippine government seemed bent on concluding the JPEPA without full disclosure to Congress or to the public, Congressman Aguja wrote to the other members of the PCC and requested for information on the status of the JPEPA negotiations and copies of the full text of the latest draft of the JPEPA. However, this proved to be futile as well. The other members of the PCC referred Cong. Aguja to Undersecretary Aquino, saying that the latter would be in the best position to respond to the request for information. In his own letter-response dated November 2, 2005, Undersecretary Aquino informed Cong. Aguja that the PCC would be able to provide a copy of the latest draft legal text of the agreement “once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted.”

During the budget hearing on 10 November 2005, Cong. Rolando Andaya informed all those present that Sen. Mar Roxas would be calling for a joint session of the Senate and the House of Representatives to inquire into the JPEPA. On that consideration, the House Committee on Appropriations resolved to approve the DTI budget. However, the promise of the joint session remained just an empty promise.

Having exhausted all possible administrative means to compel the disclosure of the JPEPA, and in the light of newspaper reports that the Philippine government would be signing the JPEPA in December 2005 on the sidelines of the WTO Ministerial Conference held in Hong Kong, Cong. Aguja and Cong. Tanada decided to take the matter up to the Supreme Court.

Taking the JPEPA to Court

Cong. Aguja and Cong. Tanada, together with fellow congressional representatives Loretta Ann Rosales, Ana Theresia Hontiveros-Baraquel and Joel Villanueva, party-list Akbayan! Citizens Action Party (“Akbayan”), peasant organization Pambansang Katipunan ng mga Samahan sa Kanayunan (“PKSK”), national labor center Alliance of Progressive Labor (“APL”), peasant leaders Vicente A. Fabe and Manuel P. Quiambao, labor leader Angelito R. Mendoza, and mother-of-four Rose Beatrix Cruz-Angeles - representing farmer, worker, fisherfolk, youth, and consumer interests - filed an urgent petition for mandamus and prohibition with the Supreme Court last December 9, 2005, and asked for the issuance of a temporary restraining order to prevent the Philippine government from pushing through with the signing of the JPEPA. [5]

The petition for mandamus is premised on the people’s right to information on matters of public concern, and the right of the people to effective and reasonable participation at all levels of social, political and economic decision-making. The petition also invoked the power of Congress, through the Senate, to effectively exercise its role in treaty-making and foreign relations under Art. VII, Sec. 21 of the Philippine Constitution.

The petitioners have asked the Supreme Court to order the PCC to disclose the full text of the JPEPA at the soonest possible time and prior to the signing of the treaty, to afford the Senate ample time and opportunity to fully review the JPEPA and study the full extent of its implications before deciding on whether to concur in it or repudiate it. Petitioners asserted that the Senate cannot and should not be a mere rubber stamp to the President’s act of ratifying what might very well be a bad deal for the Philippines.

In his Comment filed with the Supreme Court in May 2006, Solicitor-General Antonio Nachura argued that the JPEPA falls within the ambit of executive privilege and is therefore exempt from disclosure. He argued that the power to negotiate treaties belongs exclusively to the Executive Branch, and that the right of the people to participate in decision-making is observed through consultative processes, and is protected when the Senate exercises the power to concur in treaties. This implies that the right of the people to participate in decision-making insofar as international trade treaties is concerned is not exercised directly but merely through the Senators.

The Solicitor-General likewise argued that the Supreme Court has no jurisdiction over the case, and that the only time that the Court can come in is when the treaty has been concluded and its constitutionality questioned in a proper case. He likewise asserted that the issuance of a temporary restraining order to restrain the signing of the JPEPA would constitute undue interference.

In their Reply, petitioners pointed out that the PCC failed to provide any legal basis to justify why the text of the JPEPA should be considered a state secret that is privileged and exempt from disclosure. They likewise pointed out that the Solicitor-General’s assertion that the power to negotiate international trade treaties belongs exclusively to the Executive Branch is contrary to the Constitution, since the regulation of commerce is an inherently legislative function.

Petitioners likewise asserted that the people’s right to participate in economic decision-making under the Constitution is self-executory and is to be exercised directly by the people, and not simply through their representatives in Congress. They likewise asserted that the non-involvement of the Filipino people in the JPEPA negotiation process effectively results in the bargaining away of their economic and property rights without their knowledge and participation, in violation of the due process clause under the Constitution. Petitioners concluded by saying that the negotiation of international trade treaties such as the JPEPA should be a collaborative undertaking of both the executive and legislative branches working as co-equals, with the active involvement of the Filipino people, and that such a synergistic model is fully supported by the provisions of the Philippine Constitution.

Unmasking the JPEPA

Despite petitioners’ repeated efforts to convince the Supreme Court of the urgency of the case, [6] the Supreme Court did not take any action on the petition for mandamus and the prayer for the issuance of a temporary restraining order. The JPEPA was finally signed by President Arroyo and Prime Minister Koizumi in Finland on September 9, 2006, on the sidelines of the Asia-Europe Summit.

Up to the last few days leading up to the signing of the JPEPA, the DTI refused to reveal the full text of the agreement to Congress, despite the earlier promises of Undersecretary Aquino to provide a copy of the latest draft legal text of the agreement “once the negotiations are completed and as soon as a thorough legal review of the proposed agreement has been conducted.” It was only when the DTI was threatened with the revocation of its budget that it made moves to provide Congress with copies of the JPEPA. But even then, the offer came too late.

The DTI eventually furnished Congress with copies of the JPEPA on Monday, September 11, 2006, the first working day after the treaty was signed. It also uploaded the text of the JPEPA to its website. [7]

As earlier pointed out by Justice Feliciano and Prof. Sereno, the JPEPA indeed is a comprehensive treaty, with over 1,500 pages of text and annexes, and covering a broad range of trade matters. However, an initial review of the JPEPA already reveals that the Philippines may have indeed agreed to a bad deal.

One of the most alarming initial findings on the JPEPA are indicators that the Philippine government has agreed to make the Philippines a dumping ground of Japan’s waste products. Under the JPEPA, tariff rates on clinical waste, municipal waste, sewage sludge, waste pharmaceuticals, and the like are scheduled to be reduced to 0% as soon as the treaty comes into force and effect. This operates as an open invitation to unscrupulous Japanese businessmen to dispose of Japanese garbage by exporting them to the Philippines.

Comparison of tariff rates on various waste products under the Tariff and Customs Code and the JPEPA by Tariff Heading No., Description, MFN rate (Tariff & Customs Code), and JPEPA tariff rate:

2620.6000 Ash and residues (other than from the manufacture of iron or steel), containing arsenic, mercury, thallium or their mixtures, of a kind used for the extraction of arsenic or those metals or for the manufacture of their chemical compounds 3% 0%

2621.1000 Ash and residues from the incineration of municipal waste 3% 0%

3006.80 (3006.8010, 3006.8090) Waste pharmaceuticals 20% 0%

38.25 (and its subheadings) Residual products of the chemical or allied industries, not elsewhere specified or included; municipal waste; sewage sludge; other wastes specified in Note 6 to this Chapter 30% 0%

3825.1000 Municipal waste 30% 0%

3825.2000 Sewage sludge 30% 0%

3825.3010 Clinical waste - adhesive dressings and other articles having adhesive layer; wadding gauze bandages, surgical gloves 30% 0%

3825.3090 Other clinical waste 30% 0%

3825.4100, 3825.4900 Waste organic solvents - halogenated, and other 30% 0%

3825.6100, 2825.6900 Other wastes from other chemical or allied industries - containing organic constituents, other 30% 0%

3825.5000 Wastes of metal pickling liquors, hydraulic fluids, brake fluids and anti-freeze fluids 30% 0%

6309.00 Worn clothing and other worn articles Prohibited under RA 4653 0%

What is even more alarming is the fact that the Philippine government had initially proposed that waste products be actually excluded from the coverage of the JPEPA. However, in an inexplicable policy turnaround, the Philippine government announced during the Tariff Commission hearing held in February 2006 that it was proposing that the tariff rates on such waste products be slashed to 0%. Despite the vehement objections raised by both the Department of Environment and Natural Resources and members of civil society during said hearing, these objectionable provisions still found their way into the final text of the JPEPA.

A lost cause?

It may seem that the petition for mandamus still pending with the Supreme Court has been rendered moot and academic with the signing of the JPEPA. However, while the request for disclosure is now largely irrelevant in the light of the fact that the full text of the JPEPA has finally been made public, the issues relating to the extent of transparency and public participation in international trade treaty-making are still very much a going concern. With several other bilateral trade treaties in the pipeline, the same issues and concerns relating to access to information, public disclosure, executive privilege, and the meaning of effective people’s participation in economic decision-making are bound to crop up again in subsequent negotiations. A definitive pronouncement by the Supreme Court on these issues would establish the extent of the people’s right of access to information insofar as international trade treaty-making is concerned, and guide the executive and legislative branches on how to act accordingly.

Although the repeated requests for information and the petition for mandamus ultimately failed to compel the executive branch to publicly divulge the text of the JPEPA before the signing of the treaty, some significant victories were nevertheless achieved. After initial reluctance, the Philippine government eventually admitted that the JPEPA is a treaty that will require Senate concurrence before it can come into force and effect. [8] The Philippine government likewise disclosed that the JPEPA would take effect only on the 30th day after the date on which the Japanese and Philippine governments exchange diplomatic notes informing each other that their requisite legal procedures have been completed; this is information that had not been made available previously, and would not have been made available had the mandamus case not been filed. And perhaps most importantly, the JPEPA mandamus case managed to delay the signing of the treaty by almost an entire year.

Far from being a lost cause, the JPEPA case has served as a valuable opportunity for civil society and its allies in Congress to test the limits of the people’s right to access information and to participate effectively in economic decision-making by influencing the outcome of international trade treaty negotiations. The lessons learned from this battle will certainly be useful for the trade wars that lie ahead.

[1] Article III, Section 7, Philippine Constitution.
[2] Examples of cases where ordinary citizens were allowed by the Supreme Court to inquire into anomalous government transactions include the 1989 case of Valmonte v. Belmonte (G.R. No. 74930, 13 February 1989) which involved the grant of behest loans by the GSIS to various public officials; the 1998 case of Chavez v. Presidential Commission on Good Government (G.R. No. G.R. No. 130716, 09 December 1998) which involved the secret settlement of the Marcos ill-gotten wealth; the 2002 case of Chavez v. PEA-Amari (G.R. No. 133250, 09 July 2002) which involved the transfer of reclaimed land to foreign corporations, in violation of the Constitution; and most recently, the case of Senate of the Philippines v. Ermita (G.R. Nos. 169777, 16959, 169660, 169667, 169834, and 171246, 20 April 2006), which involved the constitutionality of Executive Order No. 464 which prevented executive officials from appearing before Congress to testify at Senate and Congressional hearings unless they had secured prior permission from the President.
[3] Article XIII, Sec. 16, Philippine Constitution. This is a new right not contained in the 1935 and 1973 Constitutions, and which complements the other elements of direct democracy and empowerment introduced in the 1987 Constitution.
[4] Justice Feliciano served as Associate Justice of the Supreme Court. Upon his retirement from the Supreme Court, he served as Chairman of the Appellate Body of the WTO Dispute Settlement Body.
[5] This case is docketed as Akbayan, et al. v. Thomas G. Aquino, G.R. No. 170516.
[6] Petitioners filed an Urgent Motion for Early Resolution of their prayer for issuance of a temporary restraining order on March 10, 2006, which they reiterated in their Opposition dated April 27, 2006, and again in their Reply dated September 4, 2006.
[7] www.business.gov.ph
[8] This was admitted during the October 12, 2005 hearing of the Committee on Globalization, and was reaffirmed in the letter of DFA Undersecretary Edsel Custodio to Cong. Aguja dated October 26, 2005, and in the Comment of the Solicitor-General dated May 9, 2006.