AKBAYAN Rep. Mayong Aguja

Archive for November, 2006


Posted by tin on November 6, 2006




I rise on a matter concerning the disturbing features of the recently signed Japan-Philippines Economic Partnership Agreement (JPEPA), a bilateral preferential trade treaty between Japan and the Philippines that seeks to remove barriers to investments and the trade of goods and services between the two countries. The JPEPA is the first bilateral trade agreement entered into by the Philippines since the 1946 Parity Amendment with the United States.

The Philippine government peddles the JPEPA as a means for the entry of an unlimited number of our health workers and caregivers to Japan. However, a closer scrutiny at JPEPA reveals that not only are we trading goods and services with Japan, we are also allowing the entry of toxic wastes to our already ailing environment.

History of the JPEPA and earlier attempts to look into the JPEPA

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, this Representation together with Congressman Erin Tanada of Quezon Province called for an inquiry into the JPEPA.

During the various hearings held by the Committee on Globalization, it became apparent that the JPEPA was no ordinary 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 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”, such that it is 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.

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 in November, 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.

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, this Representation 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 me to Undersecretary Aquino, saying that the latter would be in the best position to respond to the request for information. In Usec Aquino’s own letter-response dated November 2, 2005, I was informed 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.”

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, we decided to take the matter up to the Supreme Court.

Taking the JPEPA to Court

Cong. Tanada and this Representation, together with fellow Akbayan representatives Etta Rosales, Risa Hontiveros-Baraquel, CIBAC representative Joel Villanueva, our party-list Akbayan! Citizens Action Party, peasant organization Pambansang Katipunan ng mga Samahan sa Kanayunan (PKSK), national labor center Alliance of Progressive Labor (APL), as well as individuals 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.

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.

We 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 reject it. We 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 our Reply, we 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.

We 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. 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.

Race against time

The Supreme Court case managed to delay the signing of the treaty by almost an entire year. However, without the full text being released to the public, 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.

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.

Philippines, a dumping site for Japan’s wastes

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. Under the JPEPA, should there be importers wanting to bring in toxic waste shipments from Japan, the Philippines has no choice but to receive Japan’s waste products into the country. This runs counter to the Basel Convention on Transboundary Movement of Hazardous Wastes of which both the Philippines and Japan were signatories. Local laws such as the Philippine Clean Air Act (RA 8749), Toxic Substances and Hazardous and Nuclear Wastes Control Act (RA 6969), Ecological Solid Wastes Management Act (RA 9003), and An Act to Safeguard the Health of the People and Maintain the Dignity of the Nation by Declaring it a National Policy to Prohibit the Commercial Importation of Textile Articles Commonly Known as Used Clothing and Rags (RA 4653), also prohibit the importation of the wastes included under JPEPA.

When the JPEPA took a beating through the media, both the Japan and the Philippine governments justify the inclusion of the controversial provisions in the JPEPA saying that existing domestic and international environmental laws would be observed accordingly. Unfortunately the governments’ statements is not an assurance that the Philippines will not be a dumping ground for Japan’s wastes. As experience has shown, in 1999, even when the Basel Convention and RA 6969, were in full force and effect, 122 containers declared as “recyclable paper”, which turned our to be clinical wastes arrived at the Port of Manila. If indeed it was the intention of the parties to follow international and local environmental laws, such provisions should not have been included in the first place.

Legally speaking, there is likewise the possibility that the provisions of the JPEPA will supersede the Basel Convention prior Philippine environmental laws that this House has painstakingly approved under the principle that binding treaties constitute the law of the land. Case law provides that in the event of irreconcilable conflicts the later enactment would supersede the earlier one. The language of Article 4 of the JPEPA on the Review of Law and Regulations likewise reveals the intent of the JPEPA to amend or repeal laws that would affect the implementation and operation of this agreement.

Touch, move?

Although it is an upset that the JPEPA has already been signed, it is far from being a done deal as far as the Philippines is concerned. The JPEPA is not yet in force and effect as approval by 2/3 of the Senate is necessary before it can be fully implemented. We call on the Senate to carefully determine the full implications of the JPEPA on the country’s trade, environmental, economic, and foreign policies and laws.

It must be remembered, that aside from waste products, there are other issues that should be pointed out regarding JPEPA, particularly the inclusion of the ‘Singapore issues’ in JPEPA. These are the very same concerns that the Philippines and other developing countries rejected in the WTO’s Cancun Ministerial in 2003. Why then, institutionalize something that we rejected in the WTO? It begs to question the consistency of our trade policy (if we have any). Developing countries have opposed the “Singapore issues” precisely because these are limitations on the right of developing countries to freely chart their domestic economic policies. Outside the WTO, this bilateral agreement hastily concluded puts the Philippines as a weaker developing country in an inherently disadvantageous position against a stronger developed Japan.

Dancing the JPEPA

While the Administration has been pushing for Charter Change that will in effect abolish the Senate, they should be reminded that it was thru the failure of the Executive to fully disclose the contents of the JPEPA before it was signed that the agreement now is under attack. Fortunately for us, it is the Constitutional mechanism of checks and balance, prescribing that Senate ratify international treaties entered into by the Executive, that can save us from this destructive deal.

Given this circumstances at which the JPEPA has been hastily concluded, shrouded in secrecy without meaningful participation of the Filipino people, and with provisions disadvantageous to our people and our environment, at this point it would be wiser to JUNK JPEPA altogether. Any effort to advance an agreement between the Philippines and Japan should include the participation of the Filipino people.

Negotiating with the people

In line with this, together with Cong. Erin Tanada, we in Akbayan urge this House to pass the bill creating the Philippine Trade Representative Office that will strengthen coherence in trade and development policy formulation and recognize the people’s right to access information and to participate effectively in economic decision-making by influencing the outcome of international trade treaty negotiations, not only for JPEPA but in subsequent trade negotiations.

Ito po yung totoong People’s Initiative, kapag ang ating mga mamamayan na ang lumalapit sa atin upang pag-usapan ang mga isyung may kinalaman sa kanilang kabuhayan, kalusugan, at kapaligiran. Wag po natin silang tanggihan. Ito po ang esensya ng demokrasya, upang bigyang tinig ang ating mga manggagawa, magbubukid at mangingisda sa pagsusulong ng kanilang kabuhayan na sya ring magsusulong ng ating pambansang pag-unlad. Huwag po nating hayaan na tayo ay maging imbakan ng basura, at yurakan ang ating pagkatao. Isulong natin ang isang polisiya sa pangangalakal bilang isang sambayanang isinasaalang-alang ang kapakanan ng bawat Pilipino ngayon at bukas. Sama-sama po nating “Ibalik ang Dangal ng Pilipino, at Ipaglaban ang Kinabukasan Ngayon”.


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