Fel V. Maragay
Manila Standard

LEGAL eagles yesterday identified the “unconstitutional” provisions of the Japan-Philippines Economic Partnership Agreement that were inserted to accommodate demands by Tokyo, saying these should be removed before the treaty is ratified by the Senate.

This developed as Senator Miriam Defensor Santiago, chairman of the Senate committee on foreign relations, said that she and several other senators are seriously considering sending back the JPEPA to the executive branch for possible renegotiations on the grounds not only of unconstitutionality but on objectionable provisions raised during the series of hearings.

Santiago said the constitutionality of the JPEPA is a “threshold question” because even if the Senate committees will favorably endorse the ratification of the agreement and the Senate approves it, the oppositors will certainly bring their case to the Supreme Court.

Retired Supreme Court Justice Florentino Feliciano and former dean of the University of the Philippines College of Law Merlyn Magallona, in separate papers presented to the Senate committees on trade and commerce and foreign relations, said the JPEPA violates the “nationalistic provision” of the Constitution which provides that certain strategic and vital industries must be reserved for companies that are majority-owned by Filipinos.

Feliciano, whose 17-page paper was read by lawyer Roberto San Juan, and Magallona bewailed that the new treaty will prevent the government from crafting a national development policy that will put emphasis on job creation for Filipinos and on technology transfer as far as entry of foreign investments is concerned.

The JPEPA will further liberalize trade between the Philippines by eliminating tariff on products that they trade with each other. However, legal experts claim this will dilute the tariff-setting powers of Congress as a tool for national development.

Santiago said the unfavorable view expressed by Feliciano and Magallona could further imperil the ratification of the bilateral accord by the Senate.

“They are very clear. In fact, they are very strong in their view that JPEPA is unconstitutional,” Santiago told newsmen during a break in the hearing.

“If we go by the objective analysis of these independent experts, JPEPA is dead because they have no reservations that JPEPA is unconstitutional on several grounds,” Santiago said.

The Fair Trade Alliance urged the Senate to remand the JPEPA to the executive branch.

Former Senator Wigberto Tañada, lead convenor of FairTrade, said the treaty does not conform with the constitutional mandate for “reciprocity” in bilateral trade and economic relationships. In JPEPA, he said, “we got very little while Japan got everything it set out to achieve.”

But Philippine Exporters Confederation president Sergio Ortiz-Luis said ratification is a very welcome move for its members “because our industry is in a state of crisis, embattled by the continued strengthening of the peso and increasing costs fueled by the second highest electricity rates in Asia.”

Agriculture Secretary Arthur Yap told the hearing that the country will be assured of the entry of an estimated $419 million worth of agricultural and fishery exports to Japan annually through tariff elimination and other improved market-access concessions under the JPEPA.

Yap said that under the JPEPA, duty free tariffs of major farm and fishery exports to Japan amounting to $353 million will be immediately “locked-in” once the treaty takes effect.

He said the country will be able to secure from Japan an additional $66 million worth of farm exports as a result of the tariff eliminations.

Senator Mar Roxas, chairman of the trade and commerce committee, said a renegotiation is a possibility as he pointed out that it remains unclear what is the sum total of the benefits that the agreement will bring to the country compared to “what we will give up.”