Thursday, May 22, 2008 JMSU deal questioned in court
PARTY-list groups on Wednesday questioned before the Supreme Court (SC) the constitutionality of a March 2005 tripartite agreement struck by the Philippine government with China and Vietnam for a joint marine seismic undertaking (JMSU) to explore possible oil resources in the South China Sea.
The assailed agreement, which has been kept secret by the government until it was discovered just recently, was entered by the government through the state-owned Philippine National Oil Company (PNOC), along with the China National Offshore Oil Corp. (CNOOC) and the Vietnam Oil and Gas Corp.
The agreement, which covers a total area of 142,886 square kilometers of archipelagic waters, allows the three countries to conduct joint research of petroleum resource potential of a certain area of the South China Sea as a pre-exploration activity.
Named respondents in the suit were President Gloria Macapagal-Arroyo, Executive Secretary Eduardo Ermita, Foreign Affairs Secretary Alberto Romulo, Energy Secretary Angelo Reyes, PNOC, and PNOC-Exploration Corporation.
In a petition filed by Representatives Satur Ocampo and Teodoro Casiño (Bayan Muna), Liza Maza and Luzviminda Ilagan (Gabriela), Lorenzo Tañada and Teofisto Guingona III and the late Crispin Beltran (Anakpawis) sought the SC's immediate issuance of a temporary restraining order (TRO) and/or preliminary injunction enjoining the government from further implementing the agreement.
Petitioners said that respondents committed grave abuse of discretion, and might have even committed treason, in entering into the tripartite agreement which had the effect of selling to China and Vietnam the country's potential petroleum resource within the agreement area; the clear and undisputed archipelagic waters and claimed land territories.
They said the tripartite agreement runs counter Article 12, Section 2 of the Constitution as it allows the large-scale exploration of petroleum and other mineral oils by corporations wholly-owned by foreign states.
Under the said provision, "exploration, development, and utilization (EDU) of natural resources shall be under the full control and supervision of the State."
"Petitioners maintain that regardless of whether or not the State has such full control and supervision, the tripartite agreement itself, its execution, and its continued implementation are still unconstitutional for the simple reason that the co-equal parties of the PNOC in the joint venture, joint undertaking, or joint partnership in the large-scale exploration of our petroleum and other mineral oils are aliens or foreign-owned corporations -- CNOOC and Petro Vietnam -- and worse, corporations wholly-owned by foreign countries," they said.
Even if the agreement is merely for a pre-exploration activity, the congressmen said all the data and information acquired in the implementation of the agreement shall be jointly owed by the parties, which is a clear proof that the Philippines has conceded or forfeited its ownership over petroleum and other mineral oils.
The petition further stated that the government may only undertake EDU activities by itself, directly and solely or by co-production, joint venture or production sharing agreements with Filipino citizens or corporations, at least 60 percent of the capital of which is owned by Filipino citizens.
According to the Constitution, for large-scale EDU of minerals, petroleum and other mineral oils, the President may enter into agreements with foreign-owned corporations involving either technical or financial assistance.
"Evidently, the tripartite agreement does not involve either technical or financial assistance for large-scale exploration of petroleum or other mineral oils within the contemplation of the 1987 Philippine Constitution," the petitioners claimed.
They added that respondent PNOC compromised the country's claim over the Spratlys by allowing the implementation of the tripartite agreement that lapped the western shores of the country, or about 24,000 square kilometers off the shoreline, and clearly outside the claims by China and Vietnam or any other country.
The area also swallows almost 80 percent of the Kalayaan Group, which the Philippines claims, covering six islands, namely, Pagasa, Likas, Lawak, Kota, Patag and Panata.
At its farthermost eastern edge, the area is around 25 kilometers from the southern tip of Palawan. At its northern boundary, the area abuts the Malampaya oil field and includes an area the Philippines had long awarded to a British company for oil exploration.
The Spratly Island itself, which serves as the reference when referring to the Spratly Group, is at the westernmost edge area covered by the agreement. The island is about 700 kilometers from Palawan.
Resolutions have been filed at both the Senate and the House of Representatives calling for an inquiry into the "sellout" of Philippine territory.
The seismic undertaking was accepted by the Philippine government reportedly in exchange for billions of pesos worth of soft loans for projects like the national broadband network project, the Cyber-Education project, and the North and South Rail projects.
Vietnam initially denounced the agreement, but came on board in March 2005.
According to Executive Secretary Eduardo Ermita, the JMSU would continue to be considered as legal and in effect until the SC declares it unconstitutional.
He said the JMSU is a private undertaking involving PNOC, the China National Offshore Oil Co. and Vietnam Oil and Gas Corp. that covers joint research work in the disputed Kalayaan Group Islands.
He said that until such time that it is declared unconstitutional, "we have to go by the stipulations of the contract. If somebody has filed a case before the Supreme Court, then the Supreme Court will have to come out with a ruling on this whether it is illegal or unconstitutional but at the moment, we know that there is nothing unconstitutional about it." (ECV/JMR/Sunnex)
