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.”

Read also:

11 Responses to JPEPA: ‘Unconstitutional’ on 15 counts yet…

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lestercavestany

May 15th, 2008 at 12:13 pm

The fact that the two countries have to exchange “notes” to patch up the holes of the treaty is proof enough that it’s not looking good. To use a very simple analogy, if there are holes in a brand new tire that you want to buy, would you settle for vulcanizing jobs knowing that you deserve top quality? I doubt it.

The Filipino people deserve nothing but the best. Let’s not shortchange ourselves.

http://LesterCavestany.com

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nosi balasi

May 15th, 2008 at 12:37 pm

the post says: 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.”

For me the treaty should be a win-win situation…in any boxing match…You want to win, and so does your opponent. Don’t let anxiety knock you right out of the ring. If you succumb to their nitpicking, you’ll be down for the count. No fair rushing toward tomorrow. It may not the way they expected to be — and besides, what’s so wrong with today? with or without JPEPA…nothing has change still…unless the Government should focus on building a strong republic…which was their antique slogan for a long time. For me a strong republic, has abundant supply of resources ( food, shelter, clothing, and people)…which the Government has no passion at all. Even we do not have JPEPA, Japan is importing many products from the Philippines…what if our resources are in abundance and overflowing…the Japanese themselves and other nations will no such agreements…tayo pa ang mag-dictate ng conditions.

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nosi balasi

May 15th, 2008 at 12:46 pm

correction: …the Japanese themselves and other nations will not need such agreements…

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lestercavestany

May 15th, 2008 at 12:53 pm

The fact that the two countries need to exchange “notes” is proof enough that the treaty has many holes in it. Please don’t sign a lemon treaty, Senators.

To this day, I still remember what happened in August 1999 when toxic wastes from Japan were found in 92 (yes, 92!) 40-foot container vans at Manila Pier. They were marked as recyclables but they contained used diapers, used syringes, incinerator ash, radioactive waste. Yuck! Imagine all that Japanese toxic waste going into our soil and water.

Lester
http://LesterCavestany.com

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lestercavestany

May 15th, 2008 at 12:55 pm

Nosi balasi, tama ka pre! Wag tayong magpadikta sa mga “mayayamang” bansa. Dapat win-win ang treaty

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Alecks P. Pabico

May 15th, 2008 at 1:25 pm

There were 122, not 92, vans, Lester. As we posted here two years ago in light of the signing of the JPEPA by Gloria Macapagal-Arroyo and then Japanese Prime Minister Junichiro Koizumi in Helsinki in September 2006:

“Seven years ago, Japanese trash found its way to Philippine shores neatly packaged in 122 (124 in some reports) 40-foot container vans which arrived at the Port of Manila in July 1999. The consignee, Sinsei Enterprises, declared the shipment as carrying waste paper for recycling. But upon visual inspection, port authorities discovered that the vans contained hazardous, toxic and infectious clinical wastes, which included:

  • needles for intravenous injections
  • medical rubber hose and tubes
  • used adult and baby diapers
  • used sanitary napkins
  • discarded intravenous syringes used in blood letting and dextrose
  • garments
  • bandages, and other hospital wastes

There were also electronic equipment, PVC plastic materials mixed with industrial and household wastes, styropor packaging materials, sacks, plastic sheets, PVC pipes, plastic packaging materials, paper, and plastic food packaging materials.”

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amorsolo

May 15th, 2008 at 6:33 pm

JPEPA is quite specific on the applicability of diplomatic notes as found in Article 163, Sec.2 of the Agreement –

“2. If the amendments relate only to the following areas, the amendments may be made by diplomatic notes exchanged between the Governments of the Parties:
(a) Annex 2 referred to in Chapter 3 Product Specific rules;
(b) Annex 3 referred to in Chapter 3 Minimum Data Requirement for Certificate of Origin; or
(c) Part 2 of Annex 4 referred to in Chapter 6 Sectoral Annex in relation to Article 61.”

The conditional concurrence being proposed by Sen. Santiago in view of 1987 Constitutional Provisions favoring Filipino citizens, particularly in the exploitation of natural resources and practice of professions, require the amendment of main provisions of JPEPA pertaining to national treatment (Article 89), most-favored-nation treatment (Article 90) and prohibition of performance requirements (Article 93). This cannot be cured by diplomatic notes under Article 163 but through bilateral renegotiation of the JPEPA main provisions. Similarly, Annex 7 and 8 of JPEPA which contains the present and future measures that each country shall indicate (the Philippines failed to fully indicate its existing laws with prohibition or limitation on ownership by foreign nationals as well as future measures involving economic and developmental policies or laws on certain businesses) requires also renegotiation instead of diplomatic notes being not included in Article 163.

“JPEPA is said to harbor other “highly anomalous” arrangements, one of which is reducing the government to an insurance company for Japanese investors, as former University of the Philippines law dean Merlin Magallona points out…. Magallona, an acknowledged expert on international law, says that under Article 96, the Philippine government is liable for loss or damage to Japanese investments due to armed conflict or state of emergency such as revolution, insurrection, civil disturbance, or any other similar event in the country. And that any payment made by the Japanese government to their investors is “effectively realizable, freely convertible and freely transferable” to the government of the Philippines.” (JPEPA to reduce gov’t to ‘an insurance firm for Japanese investors, PCIJ, August 20, 2007)

Under Article 96 of JPEPA, any transport or labor strike, rallies, barricades (anti-mining, pro-environment, farmers groups), etc. that would result to stoppage or affects the profits or investments of Japanese investors, the Philippine government will indemnify them. It is just one of the grounds in case of investor-state disputes. Other provisions of JPEPA if not implemented or complied with directly or indirectly can also result to payment of damages or compensation to investors by the government. Disputes are resolved, if not amicably by the parties, through international arbitration (not by local courts). The payment will be sourced from future collections of national taxes in the event that it will be resolve by the international arbitration in favor of the japanese investor. Other South American countries has experienced the impact of this investor-state disputes (Mexican government has been sued for more than US$1.7 billion through 15 NAFTA investor-state disputes since 1996). We are certainly the loser under JPEPA unless we renegotiate it.

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jcc

May 15th, 2008 at 9:29 pm

The Japanese government thinks that because we have garbage all over Metro Manila including the smokey mounntain at Payatas right in the nose of Congress, dumping another shipload of gargage would not matter much, anyway.. and to think that recycling is a component aspect of industrialization, it is strange that Japan does not have this to incenerate her own waste right in her own backyard, unless off she sees the Philippines as her own backyard. Equality of nations, comity and friendship are big jokes. Our government officials can sell our patrimony as well as our sovereignty at the drop of a mighty yen and Japan has no respect for us since 1941. We are not looking for escapegoats here. We can only point to ourselves as the culprits. We refuse to grow up and remain divided and other nation scorns us with their shipload of garbage.

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nosi balasi

May 16th, 2008 at 1:10 pm

JCC tama po kayo…Japan has no respect to our country and other nations as well…only because we dont respect ourselves…we even allowed the Presidency to be robbed in our very own eyes. Who else should be blamed?…tama po ulit kayo JCC…we can only point to ourselves as the culprits…nandyan na ang mga facts and evidence about the ZTE scandal…still been ignored…who else to be blamed?…no one…because we refuse to grow up. Like this treaty…they (people who are in favor of JPEPA)put too much pressure on congress specially to those who are in doubt of the treaty by saying that our economic relationship to Japan will be affected if the JPEPA will be rejected. And they (people who are in favor of JPEPA) applying all the weights in blaming those patriotic lawmakers. This is one of the mood and style of the present Government…takutan! (kelan naman kaya sila mumultuhin)

sabi nga sa kanta ni Corita…ang takot ay nasa isip lamang…yung panakot…pang-bata lang yun…kaya tama pa rin po kayo JCC…di na talaga mag-grow up ang bansa natin.

Lester totoo po…di dapat tayo mag padikta sa maling dikta.

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The Daily PCIJ » Blog Archive » JPEPA: A case of ‘giving away everything but getting nothing’

August 30th, 2008 at 12:51 pm

[…] INDEPENDENT consultant Edna Espos offers her own critique of the controversial Japan-Philippines Economic Partnership Agreement (JPEPA), giving senators yet more reasons why they should not ratify the proposed treaty many of whose provisions have already been established to be constitutionally infirm. […]

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September 13th, 2008 at 8:20 pm

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