Qualified concurrence to Jpepa

MANILA, Philippines — My column last Sunday batting for a qualified Senate concurrence to the Japan-Philippines Economic Partnership Agreement (Jpepa) drew several telephone calls, e-mail and texts from government leaders (like Foreign Secretary Alberto G. Romulo), diplomats (like Ambassador to the World Trade Organization Manuel Teehankee, Ambassador to Japan Domingo Siazon Jr., retired Ambassadors Cesar Bautista and Nelson Laviña), jurists (like retired Justices Florentino P. Feliciano and Jose C. Vitug), and private citizens (like lawyer Jose S. Songco).

Domestic validity. Traditional legal wisdom concedes foreign policy as the domain of the Executive Branch. The President or her representatives negotiate and conclude international covenants on behalf of the whole government. However, pursuant to the doctrine of checks and balances, the Constitution decrees that “(n)o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

In the past, this concurrence had been an “all or nothing” proposition; the Senate either approved or rejected the treaty in toto, without any modification or condition. In contrast, the United States Senate has long ago included qualifications, reservations, understandings, interpretations, declarations or other statements in its concurrences. In turn, the US Supreme Court—for instance, “United States vs Stuart” in 1983—has upheld the validity of these qualified actions.

I see no plausible reason why the same practice should be disallowed in the Philippines. True, the US Constitution requires the “advice and consent of the Senate” while the Philippine Charter necessitates only concurrence; still, both Constitutions do not prohibit qualified approvals. But because of the word “advice” (a term not found in the text of our Constitution), US senators are now normally included in US treaty negotiating panels, in theory to render advice, but in more practical terms, to assure smooth ratification.

As a further check, our Supreme Court may review the validity of treaties. But as held in “Tañada vs. Angara” (May 2, 1997), a decision I had the honor of writing for the Court, this judicial authority is exercised sparingly. “This Court will not review the wisdom of the President and the Senate” in concluding a treaty. “Neither will it rule on the propriety of the government’s economic policy” embodied in the agreement. In deference to the President, the Senate and the signatory-state(s), it will void a ratified agreement only on the ground of grave abuse of discretion.

Going back to Jpepa, even Justice Feliciano—in his telephone call to me last Nov. 6—affirmed that, if the treaty can no longer be renegotiated in view of its unanimous ratification by the Japanese Diet, the best alternative is a qualified concurrence. His suggested revisions and insertions could be included as “qualifications” in the Resolution of concurrence.

International validity. Since these qualifications are constitutional provisions found mainly in Articles II and XII, or are current, or future legislations, to implement these basic mandates, I believe the Japanese government—or any foreign government for that matter—will easily accept them. Justice Feliciano opines that, during the treaty’s negotiation stage, his suggestions could have been included at the sole discretion of the Philippines, in the same manner that at its pleasure, Japan had inserted a long list of reservations.

In any event, I think that constitutions, whether here or elsewhere, are sacred. I believe that a Senate reservation of the primacy over Jpepa of our Constitution and, reciprocally, that of Japan, once accepted by both governments, would not be a problem if the treaty is challenged before international tribunals.

If, after formally receiving the Senate’s qualified concurrence, Japan does not object, then it would be deemed to have accepted the reservations. An even better way is an exchange of letters between both governments expressly acknowledging the validity and binding effect of the Senate qualifications. “Back door” diplomatic channels should be able to confirm this procedure before the qualifications are actually approved.

This suggested process is not only legally justified but also diplomatically propitious. The use of “reservations” instead of “revisions,” and of letter exchanges instead of outright rejection or renegotiation are more gracious and more palatable to the domestic constituents of the non-reserving state.

East Asian Community. In his e-mail from Geneva, Ambassador Teehankee, the bar topnotcher son of Chief Justice Claudio Teehankee, requested me to inform readers that, contrary to some impressions, Neda Deputy Director General Marge Songco was a “tough” Jpepa negotiator who “while not perfect… did quite a bit of work trying to dot the i’s and cross the t’s in relation to the reservations on constitutionally protected industries.”

He added that, apart from Japan and the Asean countries, the two other economic super powers in our region (China and Korea) are included in the East Asian Community that, as I wrote earlier, these Economic Partnership Agreements should eventually give birth to. In this larger sense, the Jpepa acquires urgency and value to our economic development, in the same way that the European Union had become vital to the well being of many states, especially the former Soviet Republics, in Europe.

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