Groups question Jpepa constitutionality at SC

MANILA, Philippines - Several groups on Monday questioned the constitutionality of the recently-ratified Japan-Philippines Economic Partnership Agreement (Jpepa) and asked the Supreme Court to stop its implementation. The petition to halt the Jpepa was filed by the party-list group Akbayan and several non-government organizations under the Magkaisa Junk JPEPA Coalition. In its plea, the group - composed of 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 Rep. Ana Theresia Hontiveros-Baraquel - asked the SC to issue a temporary restraining order or preliminary injunction enjoining the implementation of the treaty. In it, the groups accused the Senate of gravely abusing its discretion in ratifying the Jpepa, a bilateral pact which 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. Named respondents were 16 senators led by Senate President Manny Villar; 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, Mar Roxas, Edgardo Angara, Rodolfo Biazon, Alan Peter Cayetano, “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 54-page 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. The group cited several contentious portions of the Jpepa, which they said run counter to the constitutional provisions 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 deemed Article 18 - wherein the Philippines assumes the obligation to reduce to zero percent many of the tariff rates applicable to goods imported from Japan - as the most crucial. They claimed that this provision, being a unilateral act of the executive, overstepped 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 Jpepa does not digress from the fact that Jpepa is a treaty and not a statute passed by Congress. Hence, the Philippine tariff rates in Jpepa were set by the President under the purported authority under the Tariff and Customs Code," the group said. On top of that, the group claimed that the pact will open the floodgates for Japanese toxic waste materials. They said 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. Among these were 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 elimination of tariffs creates the vital economic incentive and market condition (which) 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. Liberalization The group also warned that the Jpepa would also pave the way for amendment of the constitutional provision against foreign ownership of land. It said that a survey conducted by the Tokyo Japanese Chamber of Commerce stated “(that) the constitutional provision against foreign ownership of land is a big barrier to investment in real estate development." The business group had also requested the 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. “At the international level and pursuant to the rules of the international legal order, in application and in settlement of disputes over JPEPA’s interpretation, JPEPA will prevail over the Constitution," said the group. Legal battle over Jpepa Last July, the SC voted 10-4 as it upheld Malacanang’s invocation of executive privilege in refusing to make a full disclosure of the terms of the Jpepa. At that time, the high court said that petitioners failed to prove that there was sufficient public interest to overcome the claim of privilege in compelling government to disclose the respective “offers" of 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 Arroyo and Japanese Prime Minister Junichiro Koizumi on September 9, 2006, and the subsequent endorsement to the Senate for concurrence. But in his 120-page 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 that 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 also said that there cannot be a blanket invocation of privilege by the executive; they must give a reason in invoking diplomatic negotiations privilege. - GMANews.TV