Tuesday, October 14, 2008 RP-Japan trade pact questioned in court
SAYING the Senate gravely abused its discretion in ratifying the Japan-Philippines Economic Partnership Agreement (JPEPA), the party-list group Akbayan and several non-government organizations (NGOs) on Monday asked the Supreme Court (SC) to halt the implementation of the treaty.
The agreement covers trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment, and general and final provisions.
The petition was filed by the Initiatives for Dialogue and Empowerment through Alternative Legal Services Inc. (Ideals), Alliance of Progressive Labor, Ecological Waste Coalition of the Philippines Inc., Mother Earth Foundation, Concerned Citizens Against Pollution, NGOs for Fisheries Reform, Kilusan Para sa Pagpapaunlad ng Industriya ng Pangisdaan, Philippine Metal Workers Alliance, and Akbayan Representative Ana Theresia Hontiveros-Baraquel.
They called themselves the Magkaisa Junk JPEPA Coalition.
Named respondents were 16 senators led by Senate President Manuel Villar Jr., Executive Secretary Eduardo Ermita, Trade Secretary Peter Favila, Foreign Affairs Secretary Alberto Romulo, Finance Secretary Margarito Teves, and Customs Commissioner Napoleon Morales.
Aside from Villar, the senators named as respondents were Miriam Defensor-Santiago, Manuel Roxas II, Edgardo Angara, Rodolfo Biazon, Alan Peter Cayetano, Jose "Jinggoy" Estrada, Juan Ponce Enrile, Richard Gordon, Gregorio Honasan, Panfilo Lacson, Manuel Lapid, Loren Legarda, Francis Pangilinan, Ramon Revilla Jr., and Juan Miguel Zubiri.
In their petition, the coalition questioned the "whimsical, arbitrary, baseless, illogical and unreasonable action" on the part of the respondent senators in concurring in what they called "a social, economic and political tragedy" that has multiple violations of the Constitution.
Assailed in the petition were several contentious portions of the JPEPA, which they claimed run counter provisions of the Constitution on trade, natural resources, labor, education, mass media, legislation, public utilities and foreign policy.
Petitioners asked the high court to enjoin the senators "from transmitting the resolution of concurrence to the executive branch in order for the latter to perform the final acts to make the treaty final and binding."
The group questioned Article 18 of the treaty, deemed the most crucial, wherein the Philippines assumes the obligation to reduce to zero percent many of the tariff rates applicable to goods imported from Japan.
They said this provision, being a unilateral act of the executive, oversteps the tariff-setting powers of Congress, as there is yet no valid law implementing Article VI, section 28 (2) of the Constitution.
"That the Senate gave its concurrence to the JPEPA does not digress from the fact that the JPEPA is a treaty and not a statute passed by Congress. Hence, the Philippine tariff rates in the JPEPA were set by the President under the purported authority under the Tariff and Customs Code," the group said.
On top of that, opponents of the JPEPA said the pact will open the floodgates for the country to be the dumping group for Japanese toxic waste materials.
According to them, the tariff schedule eliminates customs duties and other kinds of charges on all waste products, including those that are considered hazardous wastes under the Basel Convention and are thus prohibited from being traded, such as: ash and residues containing arsenic, mercury, thallium or their mixtures; ash and residues from the incineration of municipal waste; waste pharmaceuticals; municipal waste; sewage sludge; clinical waste; waste organic solvents; wastes containing organic constituents; and wastes of metal pickling liquors, hydraulic fluids and anti-freeze fluids.
This legalization of indiscriminate, free trade in toxic and hazardous waste under the JPEPA is a direct violation of the constitutional duty of the Philippine government to protect and promote the Filipino people's right to health and right to a balanced and healthful ecology, and the country's international commitments, the petitioners said.
Such tariff elimination is to take place immediately upon entry into force of the JPEPA.
"This elimination of tariffs creates the vital economic incentive and market condition will drive the importation of wastes from Japan. Moreover, it creates binding legal obligations: the zero-rating of waste products under the JPEPA creates an obligation on the part of the Philippines to allow importation from Japan at rates no higher than those designated in the tariff schedule," petitioners said.
The group said the absence of references to treaty and statutory commitments to protect health and the environment "is made even more conspicuous by the fact that under the JPEPA, the Philippines has committed to not introduce or maintain non-tariff measures on imports from Japan" and to examine the possibility of amending or repealing laws and regulation that pertain to or affect the implementation and operation of the JPEPA.
Petitioners further told the SC that the 13 out of the 17 papers under the Philippine government's JPEPA research project indicated that in a survey conducted by the Tokyo Japanese Chamber of Commerce, five Japanese corporations, when asked to comment on the investment atmosphere in the Philippines, stated: "(that) the constitutional provision against foreign ownership of land is a big barrier to investment in real estate development," and "we request revision of the constitutional prohibition against foreign ownership of land."
Being an international agreement, the petitioners said the JPEPA will supersede or supplant the Constitution, they said.
"At the international level and pursuant to the rules of the international legal order, in application and in settlement of disputes over the JPEPA's interpretation, the JPEPA will prevail over the Constitution," said the group.
Last July, voting 10-4 with one abstention, the SC ruled to uphold Malacañang's invocation of executive privilege in refusing to make a full disclosure of the terms of the JPEPA.
The high court said petitioners failed to prove that there is sufficient public interest to overcome the claim of privilege in compelling government to disclose the respective "offers" of the Japan and Philippine governments.
The SC further said petitioners' request for the public disclosure of the contents of the JPEPA prior to its finalization has been largely rendered moot and academic after the signing of the agreement by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi on September 9, 2006, and the subsequent endorsement to the Senate for concurrence.
But in his dissenting opinion, Chief Justice Reynato Puno insisted that the right to information is enshrined in the Constitution, and that it is the burden of the executive to prove that there is an exception.
Puno said it cannot be the other way around where the public will show a need, adding that the public has the right; and they need not explain the reason for that right.
He added that there cannot be a blanket invocation of privilege by the executive they must give a reason in invoking diplomatic negotiations privilege.
Petitioners alleged that the refusal of the government to disclose the JPEPA documents as well as the respective country's "offers" violates their right to information on matters of public concern and contravenes other constitutional provisions on transparency of all transactions involving public interest.
The taxpayer's suit was filed seeking to compel the government to disclose the full text of the agreement, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes. (ECV/Sunnex)
