Wednesday, November 21, 2007

Antonio Abaya on Pakistan and Musharraf

I just got this email from columnist Antonio Abaya on Pakistan and Musharraf in reaction to my previous post in this blog on the recent declaration of martial law in Pakistan.

If Pakistan Collapses

By Antonio C. Abaya

Written on Nov. 19, 2007

For the Standard Today,

November 20 issue

The ruling neo-cons in Washington DC are facing a geopolitical dilemma: what to do if the government of Gen. Pervez Musharraf were to collapse.

Pakistan has replaced Iran as the Crisis-of-the-Month. The Americans (and the Israelis) have been itching to bomb Iran back to, at least, the pre-industrial age. Iran has one of the largest known oil reserves in the world, which the Americans covet, and is developing the technology to build nuclear weapons, which the Israelis fear will be used against them.

Iran’s president, Mahmoud Ahmadinejad, has after all said on many occasions that the state of Israel should be wiped off the map.

On the other hand, Pakistan may have no oil, but it does have nuclear weapons and the delivery systems with which to lob them to as far as the Mediterranean Sea.

(Oil deposits that have been discovered in Central Asia are programmed to be piped across Afghanistan to the Pakistani port city of Karachi. That is why some 30,000 troops from the North Atlantic Treaty Organization (NATO) are fighting Islamic militants in Afghanistan, thousands of miles away from the North Atlantic. Like Iraq, Afghanistan is also about oil.)

In any order of battle, therefore, Pakistan is now Top Priority. If the government of Gen. Pervez Musharraf were to collapse, Pakistan’s nuclear arsenal and ballistic missiles would be in danger of falling into the wrong hands.

Not into the hands of former prime minister Benazir Bhutto, who is trying to wrest power from Gen. Musharraf through middle-class People Power street protest action, with the help of hundreds of nattily dressed lawyers protesting Musharraf’s moves against the country’s Supreme Court chief justice (whom he had fired earlier over a constitutional point.) .

The fear of the neo-cons is that Pakistan’s nuclear arsenal and ballistic missiles might fall into the hands of Islamic militants, who are also trying to overthrow Musharraf, but for their own sectarian goals: the establishment of an Islamic state under Sharia law.

A nuclear-armed theocratic state in Pakistan would be the unforeseen realization of the neo-cons’ worst fears about Iran. Except that it would exist in the here and now, not something that could happen in two, five or ten years.

In addition, a nuclear-armed Pakistan in the hands of Islamic militants would ratchet up the simmering conflict with India over Kashmir, and would embolden the Talibans in Afghanistan to finish off the NATO contingents..

It would also give the Al-Qaida’s Osama bin Laden and Ayman al-Zawahiri, who are believed to be holed up in the mountainous tribal areas in northeast Pakistan,. more room for maneuver as they plan their next moves against the Crusaders and the Zionists.

What to do? An article in the Nov. 18 issue of The New York Times, written by Frederick W. Kagan and Michael O’Hanlon, may suggest what the US response might be.

Neo-con Kagan was the chief architect of the Surge Plan which President George W. Bush put into play last January and which has achieved a measure of success in Baghdad and neighboring Anbar Province. O’Hanlon, a senior fellow at the Brookings Institution, was a signatory to the Project for the New American Century declaration of 2000, which set the neo-con parameters for American defense policies under George W. Bush, one year before 9/11.

In their joint article, Kagan and O’Hanlon suggest that the US could send Special Forces to seize Pakistan’s nuclear facilities and ship the “nuclear material to someplace like New Mexico,” but acknowledge that “even pro-American Pakistanis would be unlikely to cooperate. More likely, we would have to settle for establishing a remote redoubt within Pakistan, with the nuclear technology guarded by elite Pakistani forces, backed up (and watched over) by crack international troops….” Another Coalition of the Willing to which President Arroyo would conceivably send 51 fearsome Filipino policemen.

“A second broader option would involve supporting the core of the Pakistani armed forces as they sought to hold the country together in the face of an ineffective government, seceding border regions and Al-Qaida and Taliban assassination attempts against the leadership…”

In December 2005, Gen. Musharraf survived TWO assassination attempts in TWO weeks, believed to have been hatched by members of his own military’s Inter-Service Intelligence (ISI), a pro-Islamic militants agency which had helped organize the Taliban in Afghanistan during the Soviet occupation (1979-1989).

If Musharraf were assassinated the third time around, Benazir Bhutto and the middle class lawyers would not likely inherit the seats of power. More likely, Pakistan may fragment into smaller states, with the Islamic militants grabbing what can be grabbed. For us, this would be bad news because the Islamic militants in Mindanao, Basilan and Sulu have organizational links with Islamic militants in Pakistan, not with those in Saudi Arabia or Egypt..

Wrote Kagan and O’Hanlon: “The great paradox of the post cold-war world is that we are both safer, day to day, and in greater peril than before. There was a time when volatility in places like Pakistan was mostly a humanitarian worry. Today it is as much a threat to our basic security as Soviet tanks once were. We must be militarily and diplomatically prepared to keep ourselves safe in such a world.. Pakistan may be the next big test.” *****

Reactions to Other articles in and in

Erap pardon: absolute or conditional?

Here is my reply to my friend The Filipino Reporter (USA) columnist Manny Caballero's recent query re: the currently raging issue of whether the Erap pardon is absolute or conditional and its legal effects:

Yes, in executive clemency, the president has the power to revoke a conditional pardon, if a condition thereof is violated by the pardonee.

The rule is the same in judicial probation. The courts may revoke a judicial probation it has granted if their conditions are violated by the convict.

As you already know, GMA did not remit the fines and forfeitures imposed in the dispositive portion of the SB judgment.

In fact, the pardon order clearly set as a condition the full compliance by Erap of the settlement of the fines/forfeiture aspect of the judgment.

And, further, the last whereas clause of the order expressly cited the undertaking of Erap not to run again for a public office as one of the grounds why the pardon was granted.

Erap accepted the pardon without hesitation. (Application and acceptance are mandatory in a pardon).

The rules of the board of pardons and parole may be downloaded from

GMA skipped the said rules, e.g., no publication was made so that the public could comment/oppose the proposed idea to pardon Erap, the Erap pardon was granted on a rush and special basis without regard to
the other/overdue pending applications of convicts who were equally or more than qualified as Erap, etc.

Raul Gonzalez and Art Panganiban were wrong when they concluded that the reiteration in the pardon of the fine/forfeiture aspect of the judgment was not a condition but merely a pro forma affirmation by GMA of the dispositive part of the judgment, and that it was up to the SB to enforce it.

The order is clear: Erap was pardoned on the condition that he would fulfill or comply with the fines/forfeiture aspect of the decretal of the SB judgment.

By the way, under Art. 94 of the Revised Penal Code (RPC), conditional pardon is a mode for the partial extinguishment of criminal liability.

Under Art. 95, RPC, Erap must comply with the conditions of the pardon, otherwise, his pardon may be revoked and he shall be arrested to serve the unexpired term of his penalty.

Under Art 113, RPC, Erap is obliged to satisfy the civil liability of his crime.

Nobody believes the utterances of Raul Gonzalez anymore here. He deserves to retire and rest.

The Art Panganiban opinion did not consider the holistic spirit and letter of the pardon order, in relation to the Const. and the RPC.

You may use, cite, or paraphrase my foregoing statements in your column.

Visit or for the text of the RPC. Bookmark them for future reference.

Have a blessed and liberated day.


Thursday, November 15, 2007

Double murder in Las Pinas city court

Today (November 15, 2007) a lady trial lawyer (Atty. Rebecca Manuel Basa) and her lady client in a marriage annulment case were shot to death by a professional killer inside the courtroom of RTC Branch 199 (Family Court) of Las Pinas City. The killer walked away and his identity was unknown. The incident left the court staff traumatized. It has created fear and anxiety in the local Justice System and the local Bar of our great city.

It is tragic that the double killing happened on the very birthday of our Executive Judge, Hon. Leopoldo Baraquia, and on the eve of our city’s Bench and Bar Dialogue, which will be held tomorrow, whole day, at the garden of Sen. And Rep. Manny and Cynthia Villar in BF Resort Village, Las Pinas City.

May I urgently suggest to the Chief Justice the following:

1. That the sala of RTC 199 be moved soonest to the renovated hall of justice of our city (at present Branch 199 occupies a small structure near the local post office);

2. That metal detectors be issued to all police guards of all salas in our city:

3. That a security re-training program be conducted for all local judges, court staff and court security personnel;

4. That the security manpower in courts be increased;

5. That the Chief Justice visit our courts and its judges to boost the moral of our local justice system.


Board Consultant, Las Pinas City Bar Assn, 2007-08

Founder, Las Pinas City Bar Assn, 2001

Past Director and VP, IBP PPLM Chapter, 1995-2007

Tel/Fax 8742539

Sunday, November 11, 2007

New rule on children facing drugs cases

I have digested below the very fresh EN BANC A.M. No. 07-8-2-SC took effect (“RULE ON CHILDREN CHARGED UNDER REPUBLIC ACT NO. 9165 OR THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, in relation to the Rule on Juveniles in Conflict with the Law, the Rule on the Examination of a Child Witness,

Republic Act No. 9344, and Republic Act No. 8369, also known as The Family Courts Act of 1997). It took effect on November 5, 2007.

The Rule aims “to provide a rule of procedure in the Family Courts or the Regional Trial Courts, as the case may be, for children charged with any of the acts penalized under The Comprehensive Dangerous Drugs Act of 2002”, taking into consideration their “developmental age and potential to recover from dependence on drugs and to stop substance abuse, so that they can live productive, substance-free and crime-free lives”.

The Rule shall be “construed and interpreted liberally in favor of the child in conflict with the law, consistent with the best interest of the child, the declared state policy, the rights of the child in conflict with the law and the principle of balanced and restorative justice”.

A child charged before the prosecutor’s office with a criminal offense not penalized by the Act (RA 9165), but with an imposable penalty of imprisonment of not less than six years and one day, shall be subjected to a “mandatory drug test”. (Note: My petition [with companion cases} in the Supreme Court questioning the constitutionality of certain parts of Art. 3 of RA 9165 in re: suspicionless, random and mandatory drug tests, in relation to the 4th Amendment, are still pending in the Supreme Court).

A positive screening laboratory test must be confirmed for the positive finding to be valid in court.

A child who is a drug dependent or suspected to be one may ─ personally or through the parent, guardian or relative within the fourth degree of consanguinity or affinity ─ “apply to the Board or its duly recognized representative for treatment and rehabilitation of the drug dependency”. The Board shall then “submit the matter to the court, which shall immediately order that the child be examined for drug dependency”.

The court shall likewise “direct the court social worker to prepare and submit to it a Case Study Report” for its consideration pursuant to Section 19 of the Rule on Juveniles in Conflict with the Law.

The examination for drug dependency shall be conducted by an accredited physician of the DOH. If the results show that the child is a drug dependent, “the court shall order that the child undergo treatment and rehabilitation in a Center designated by the Board for a period of not less than six months”.

A child drug dependent may be placed under the care of a DOH-accredited physician if: “(a) no Center is near or accessible to the residence of the child; or (b) where the child is a first-time offender and nonconfinement in a Center will not pose a serious danger to his/her family or community”.

The court shall also direct that the intervention treatment program include the active participation and collaboration of “the child’s family, the law enforcers, the child’s school, if any, various community organizations dealing with at-risk youths, and the court system itself”.

Confinement in a Center for treatment and rehabilitation or under the care of a DOH-accredited physician shall “not exceed one year”, after which time the head of the Center or the said physician, as the case may be, shall apprise the court, as well as the Board, of the status of the treatment and rehabilitation of the child. The court, together with the Board, shall determine “whether further confinement or care will be for the welfare and best interest of the child drug dependent and his/her family or the community”.

A child drug dependent under the “voluntary submission program” who is “finally discharged from confinement” shall be “exempt from criminal liability” under Section 15 of the RA 9165, subject to the following conditions:

(a) He/she has complied with the rules and regulations of the Center or those imposed by the DOH-accredited physician, the applicable rules and regulations of the Board, including the aftercare and follow-up program “for at least eighteen months following temporary discharge from confinement” in the Center or, in the case of a drug dependent placed under the care of the DOHaccredited physician, the after-care program and follow-up schedule formulated by the Department of Social Welfare and Development (DSWD) and approved by the Board;

(b) He/she has never been charged with or convicted of any offense punishable “under the Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended, the Revised Penal Code, as amended, or any other special penal law”;

(c) He/she has “no record of escape from a Center” or, if an escapee, has “surrendered personally or through the parents, guardian or relative within the fourth degree of consanguinity or affinity, within one week from the date of the escape”; and

(d) He/she “poses no serious danger to his/her person, family or community”.

Should the child fail to comply with any of the above conditions, the case shall be “referred to the prosecutor for regular preliminary investigation”.

Upon certification by the Center or the DOH-accredited physician that the child drug dependent under the voluntary submission program may be temporarily released, the court shall order such release on condition that the child shall report to the DOH for after-care and follow-up treatment, including urine testing, for a period not exceeding eighteen months under such terms and conditions that the court may impose.

If at any time during the period of after-care and follow-up program, the child is certified to be rehabilitated, the court shall order his/her “final discharge, subject to the provisions of Section 12 of this Rule, without prejudice to the outcome of any pending

case filed in court”.

Should the DOH find that during the initial after-care and follow-up program of eighteen months, the child “requires further treatment and rehabilitation” in the Center or by the DOH-accredited physician, he/she “shall be so recommitted”. Thereafter, he/she “may again be certified for temporary release and ordered released” for another after-care and follow-up program pursuant to Section 13 of this Rule.

A child drug dependent under the voluntary submission program who is discharged as

rehabilitated by the Center or DOH-accredited physician, but does not qualify for exemption from criminal liability under Section 55 of the Act, may be charged under the provisions of the Act.

However, “the court upon its discretion may order that the child be placed on probation and that he/she undergo community service in lieu of imprisonment and/or fine, without prejudice to the outcome of any pending case filed in court”.

A child drug dependent under the voluntary ubmission program who is “not rehabilitated after a second Commitment” to the Center or a DOH-accredited physician under the voluntary submission program shall be charged and prosecuted, upon recommendation of the Board, with violation of “Section 15 of the Act”. If convicted, the child shall be credited for the period of confinement and rehabilitation in the Center or by the DOHaccredited physician, in the service of the sentence. In addition thereto, the child shall enjoy all the rights provided under the Rule on Juveniles in Conflict with the Law that are not inconsistent with the provisions of the Act.

If, subsequent to a recommitment, the child once again escapes from confinement, he/she shall be charged with violation of Section 15 of the Act and be “subjected to compulsory confinement upon order of the Board or upon order of the court, as the case may be”.

The judicial and medical records of a child drug dependent under the voluntary submission program shall be confidential and shall not be used against him/her for any purpose, except to determine how many times the child by himself/herself, or through his/her parent, guardian, or relative within the fourth degree of consanguinity or affinity underwent voluntary submission for confinement, treatment and rehabilitation or commitment to a Center or to the custody and care of a DOH-accredited physician under the program.

Where the child is not exempt from criminal liability under Section 55 of the Act, or when he/she is not rehabilitated under the voluntary submission program, or when he/she escapes again from confinement after recommitment, the records mentioned in the immediately preceding provisions that are necessary for conviction may be utilized in court as evidence against such child.

Notwithstanding any law, rule and regulation to the contrary, any child found to be dependent on dangerous drugs who “refuses to apply under the voluntary submission program” shall, upon petition by the Board or any of its authorized representatives, be confined for treatment and rehabilitation in any Center duly designated or accredited by the DOH.

A petition for the confinement to a Center of a child alleged to be drug dependent may be filed by any person authorized by the Board with the Family Court, or, in the absence thereof, the Regional Trial Court of the province or city where such person is found.

After the petition is filed, the court shall immediately order a hearing, fix a date therefor, and serve a copy of such order on the child and his/her parents, guardian or custodian.

If the facts established at the hearing so warrant, the court shall order the child to be examined by two physicians accredited by the Board. If both physicians conclude that the child is not a drug dependent, the court shall order his/her discharge. If either physician finds the child to be a dependent, the court shall conduct a hearing and consider all relevant evidence which may be offered.

If a child charged with an offense where the imposable penalty is imprisonment of less than six years and one day is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or the court, as the case may

be, shall suspend all further proceedings and transmit copies of the records of the case to the Board.

In the event the Board determines, after the medicalexamination, that public interest requires that such child drug dependent be committed to a Center for treatment and rehabilitation, it shall file a petition for commitment with theFamily Court or, in the absence thereof, the Regional Trial Court of the province or city where the child is being investigated ortried: Provided, that where a criminal case is pending court, thepetition shall be filed in such court. The court shall take judicial notice of the prior proceedings in the case and shall proceed to hear the petition.

Thereafter, the prosecution of the child for any offense punishable by law shall be instituted or shall continue, as the case may be. In case of conviction and the child has been certified by the treatment and rehabilitation center to have maintained good behavior, the judgment shall indicate that the child shall be given full credit for the period he/she was confined in the Center: Provided, however, that when the offense is for violation of Section 15 of the Act and the child is not a recidivist, the penalty therefor shall be deemed to have been served in the Center upon the release of the child therefrom after certification by the Center and the Board that the child has been rehabilitated.

A child committed under Sections 20, 22 and 23 of this Rule who is finally discharged

from confinement shall be exempt from criminal liability for the use of a dangerous drug under Section 15 of the Act, without prejudice to the outcome of any pending case filed in court.

A child who is not rehabilitated after a second commitment to the Center shall, upon conviction by the appropriate court, suffer the same penalties provided for under Section 15 of the Act, without prejudice to the outcome of any pending case filed in court.

If a child is under eighteen years of age at the time of the commission of the offense and is found guilty thereof, the court shall determine and ascertain any civil liability. However, instead of pronouncing the judgment of conviction, the court shall place the child under suspended sentence, “without need of application”. Suspension of sentence shall still be applied even if the child is already eighteen years of age at the time of the conviction.

While under suspended sentence, the child shall be under the supervision and rehabilitation surveillance of the Board, under such conditions that the court may impose for a period ranging from six to eighteen months.

If the child under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center or care of a DOH-accredited physician, the court, upon a favorable recommendation of the Board or the physician, shall discharge him and dismiss all proceedings under Section 11 of the Act.

The child so discharged shall not be held thereafter to be guilty of perjury, concealment or misrepresentation by reason of failure to acknowledge the case or recite any fact related thereto in response to any inquiry made for any purpose.

If the child violates any of the conditions of the suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance, including the rules and regulations of the Center should confinement be required, he/she shall be returned to the court which, after due notice and hearing and after finding sufficient basis therefor, shall execute the judgment of conviction.

In cases involving violations of Sections 11 and 15 of the Act, the court, upon application and in its discretion, may place the child under probation. “Probation may still be availed of even if the sentence provided under the Act is higher than that provided under the Probation Law”.

Any parent or guardian who, without valid reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of a child, or in any manner prevents or delays the after-care, follow-up or other programs for the welfare of the childdrug dependent, whether under a voluntary or a compulsory submission program, may be cited for contempt by the court.

Atty. Manuel J. Laserna Jr.

LCM Law, Las Pinas City, Philippines

Musharraf destroys law, justice, and democracy in Pakistan

On November 5, 2007 the world mass media reported that Pakistani lawyers had launched massive non-violent protest actions against the declaration of national emergency (read: martial law) by Pakistani president Pervez Musharraf.

According to Reuters, Pakistani police baton-charged and scuffled with lawyers protesting outside the High Court in Karachi. Hundreds of lawyers, student leaders, and opposition stalwarts were arrested.

Karachi Bar Association president Iftikhar Hafeez was arrested.

A lawyer, Abdul Hafeez, while being arrested, shouted, “We are not scared of these arrests. We will continue our fight, come what may”.

Musharraf seized power in 1999 in a coup. This is his second martial law adventure..

US Secretary of State Condoleezza Rice, in a bid to distance her superior Pres. George W. Busch from his own puppet Musharraf, urged the latter “to rejoin the road to democracy”, with a warning that US aid to Pakistan would be placed under review.

USA funds Pakistan’s imported war on terror to the tune of US $2 Billion a year.

The Pakistanis believe that Musharraf’s main motive in declaring martial law was to preempt the Supreme Court from invalidating his reelection as president last month.

In the light of the Pakistan experience, what action must the Filipino lawyers take to express their unity with their oppressed and injured brothers and sisters in the legal profession in that country, considering the principle of universality of justice, freedom, and truth?

So far, I have heard no strong institutional response and expression of support from the Philippine bar associations on this matter, especially the Integrated Bar of the Philippines (IBP).

Musharraf cited the judicial activism of the Supreme Court as one of his bases for the sudden declaration of martial law.

A president who is frightened by the alleged activism of an independent and scholarly Judiciary and who expresses such unfounded fright thru the abhorrent forms of martial law, oppression of his constituents, clamp on basic freedoms, and destruction of institutional democracy is bound to be exiled, at the least, if not killed, by his own people.

This statement should serve as a warning to our own militaristic president Pres. Gloria Arroyo and her generals and to the leaders of the overstaying military junta of Burma.

I propose the following:

1. 1. That the IBP convene an ad hoc national convention of leaders of all bar associations in the Philippines to adopt a formal resolution condemning the Pakistani martial law, the destruction of its Constitution, and the prostitution of its judiciary; and

2. 2. That the said convention discuss ways of pressuring the Philippine Government to unite with other concerned members of the United Nations and its mandated human rights organizations to establish a semi-permanent UN monitoring office in Pakistan that shall conduct continuing contacts and mediations with the martial-law president and military leaders of that country to work for the restoration of democracy therein and to protect the life and limb of protesters, NGOs and the opposition in its major cities;

Atty. Manuel J. Laserna Jr.

LCM Law, Las Pinas City, Philippines

Tuesday, November 6, 2007

JPEPA: the people's right to know

The People’s Constitutional Right to Know the Full Texts of Treaties and Executive Agreements: The Case of JPEPA


In the latter part of 2005, the cause-oriented AKBAYAN, et. al., filed a petition for prohibition and mandamus, under Rule 65, before the Supreme Court, against the government, represented by HON. THOMAS G. AQUINO, in his capacity as Chairman and Chief Delegate of the Philippine Coordinating Committee for the Japan-Philippines Economic Partnership Agreement, et . al., seeking to compel the government to disclose the full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) and seeking the issuance of a temporary restraining order against its final negotiation. The substance of the petition is digested hereinbelow, for legal research purposes of the readers.

The World Trade Organization (WTO) operates the global and liberalized multilateral trading system on the following foundational principles:

(1) non-discrimination, which is operationalized among trading partners through the “most-favored-nation” or “MFN” principle (i.e., a special favor extended to one trading partner must be extended to all other trading partners in the WTO) and the “national treatment” principle (i.e., foreigners should be treated the same way as locals);

(2) freer trade by lowering trade barriers through negotiations among trading partners;

(3) predictability through binding of tariffs and transparency in trade rules; and

(4) promotion of competition.

Liberalization refers to the freeing of trade, investment, and capital flows between countries.

Globalization refers to the integration of product and financial markets facilitated by liberalization, as well as the integration of production facilities in different countries under the aegis or ownership of multinational corporations. opened up the Philippine economy to foreign competition on a massive scale, through the various trade commitments undertaken by the Philippines unilaterally through the Tariff Reform Program,4 multilaterally as a member of the World Trade Organization,5 and regionally as a member of the ASEAN Free Trade Area (“AFTA”).6 The effects of these trade commitments on the average Filipino have been manifold, affecting not just prices on agricultural and industrial products, but more importantly, the job security and employment of the Filipino workers who make them, the household income of the families who rely on them, and the continued viability of the local industries who employ them. Moreover, these trade commitments determine to a large extent the flow of revenues into the national treasury, and shape how our economy is run, what economic policies are adopted, what legislation is passed, and in more extreme cases, how the Philippine Constitution and existing legislation is to be amended or revised.

A free trade area refers to a group of countries that adopt free trade (i.e., zero tariffs and no other trade restrictions) among themselves, without necessarily changing the trade barriers that each member has for countries outside the group. The AFTA was implemented in 1992 via the Common Effective Preferential Tariff Scheme, which requires ASEAN countries to systematically reduce their tariffs until full liberalization is achieved. The AFTA is targeted to be fully implemented by 2010.

In a sense, the trade commitments of the Philippines, which is a founding member of the WTO, determine the state of its economy and the lives of all Filipinos who are part of that economy.

Overview and Nature of JPEPA

The JPEPA is a bilateral preferential trade agreement between Japan and the Philippines that seeks to remove barriers to trade, and to promote a freer trans-border flow of the trade of goods, persons, services, and capital between the two countries, resulting in a free trade area between the two countries. The JPEPA is being negotiated in the context of an ASEAN-Japan Comprehensive Economic Partnership (“CEP”), which was proposed by Prime Minister Koizumi to ASEAN in January 2002. The JPEPA will constitute the Philippine component of such Japan-ASEAN CEP. The JPEPA will inevitably affect much of the Philippine economy given its wide coverage. The JPEPA will cover (1) trade in goods, (2) rules of origin, (3) customs procedures, (4) paperless trading, (5) emergency measures, (6) trade in services; movement of natural persons, (8) investment, (9) mutual recognition, (10) competition policy, (11) intellectual property, (12) government procurement, (13) bilateral cooperation, (14) improvement of the business environment, and (15) dispute avoidance and settlement.

Trade in goods covers substantially all of the 11,000++ tariff lines of the Tariff and Customs Code, encompassing agricultural and food products (Chapters 1-24), mining products (Chapters 25-26), and manufactured and industrial products (Chapters 27-97). This section of the JPEPA consists primarily of the reduction of tariff rates, with full tariff liberalization (i.e., reduction of tariffs to 0%) to take effect in 2010. It must be noted that the JPEPA stands to affect the country’s MFN tariff rates, which, as previously mentioned, are governed by the country’s unilateral trade commitments under the TRP, and its multilateral trade commitments under the WTO.

After almost a year of indecision as to whether the JPEPA is a mere executive agreement or a full treaty, the DFA finally announced in October 2005 that JPEPA is a treaty that will require the concurrence of the Senate.

The JPEPA is a “first” for the Philippines in many respects. As the first bilateral free trade agreement that the Philippines will be entering into, the JPEPA will necessarily set a precedent for all future trade negotiations that the country will embark on. Also, as the first possible Economic Partnership Agreement (“EPA”) within ASEAN

As revealed by Philippine trade law experts Justice Florentino Feliciano and Prof. Ma. Lourdes Sereno – who have been given privileged access to the full text of the JPEPA29 - during the hearings of the Special Committee on Globalization of the House of Representatives (the “Committee”) on 31 August 2005 and 12 October 2005, the JPEPA is not just any other ordinary bilateral trade agreement, but a “mega-treaty.”

Reportedly an amalgam of a Bilateral Investment Treaty and a Bilateral Free Trade Agreement, the JPEPA adopts many key features of the North American Free Trade Agreement between the United States, Canada and Mexico, which took ten (10) years to negotiate before finally being signed in its eleventh year into a bilateral agreement, it must be because they think it will benefit them. Justice Feliciano and Prof. Sereno have warned that such a combined treaty would have difficulties that are “twice as large, twice as formidable” than if they were negotiated separately, and thus, the Philippine government needs to be “twice as awake, twice as vigilant” in determining whether the country is indeed ready to undertake a treaty of this nature. Prof. Sereno stated that the implications of JPEPA are “very far-reaching”, and may possibly require full-bodied legislation and/or amendments to existing legislation. She thus warned that the Philippine government should not be rushed into concluding and ratifying the JPEPA. Despite its enormous implications on the Philippine economy and national life, however, the issue of the JPEPA has unfortunately not been sufficiently publicized so as should not at all be hurried, but must be afforded all the scrutiny possible not only because of its impact on legislation, and that is one very big portion already on the existing legislation, but also because of the administrative and financial resource requirements in order that the Philippines can manage this now very complicated obligation and relationship it will have vis-à-vis Japan. So it may also require therefore that there be budgetary apportioning to handle these complications. So it is not a simple question of whether we are recognizing ordinary investor rights, but it may take on the nature of finding out the state of readiness that we have in administering a NAFTA-type treaty.”

In his testimony during the Committee hearing on 12 October 2005, Justice Feliciano stated:

“x x x Sir, the JPEPA is an amalgam of two (2) distinct agreement. It is an amalgam of a BIT, a Bilateral Investment Treaty and a Bilateral Free Trade Agreement. So it is a combination of both. What that means, Sir, into (sic) my personal view, is that you must be twice as awake, twice as vigilant, make sure that you are able to examine very carefully the provisions of the agreement.

“Let me mention that this is the first so-called economic protection agreement combining a BIT with a Bilateral Free Trade Agreement that Japan is seeking to enter. All the other agreements with the ASEAN countries are BIT or are Bilateral Free Trade Agreements. But we are the first one and I think they are experimenting with us to see how we will react to a combined treaty. I say, the difficulties are twice as large, twice as formidable.

“The example I have in mind is the NAFTA. NAFTA is the North American Free Trade Agreement. That, Sir, is a combination of an investment agreement and a free trade agreement. There are only three (3) countries who are members of the NAFTA. That’s the US, Canada and Mexico. And that agreement took ten (10) years to negotiate. It was signed on the 11th year. And the US did not sign it until it came out with a statute, an act of Congress, identifying the requirements of … and the positions of the United States.

“So, if USec Aquino will forgive an unsolicited piece of advice, we should try to separate the two (2) because each one is already sufficiently difficult to deal with. Let’s not make life too hard for ourselves. Let’s do it one by one.” to come within the scope of popular public perception. On the few occasions that it has managed to receive coverage in the newspapers, it is usually relegated to an inconspicuous corner of the business pages. “

The petition assailed the government for its failure to disclose the full text of the JPEPA, even to members of Congress, citing the following provisions of the 1987 Constitution: Article III, Section 7, which guarantees the right of the people to information on matters of public concern; Article II, Section 28, which provides that the state adopts and implements a policy of full public disclosure of all its transactions involving public interest; Article XI, Section 1, which provides that public officers and employees must at all times be accountable to the people; and Article XIII, Section 16, which guarantees the right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making. It also cited Article VII, Section, which provides that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Statement of Facts Showing the Refusal of Government

To Disclose the Text of the Agreement

In January 2002, Japanese Prime Minister Junichiro Koizumi visited the Philippines and four (4) other ASEAN countries. During this visit, he proposed the “Initiative for Japan-ASEAN Comprehensive Economic Partnership”.

In May 2002, during her visit to Japan, President Gloria Macapagal Arroyo proposed to Prime Minister Koizumi that a working group be set up to study the possibility of establishing an economic partnership agreement between the Philippines and Japan.

In June 2002, then DTI Secretary Manuel Roxas III wrote to Japanese Minister Takeo Hiranuma to put in place a mechanism by which bilateral discussions could commence between the Philippines and Japan on the possibility of forging a JPEPA.

In August 2002, informal consultations were held in Tokyo to discuss the modalities for proceeding with the bilateral consultations. It was agreed that a Working Group on the JPEPA would be established. The Terms of Reference of such Working Group were agreed upon as well.

In October 2002, the Working Group on the JPEPA was officially formed. Consisting of representatives from concerned government agencies of Japan and the Philippines, the Working Group was tasked with studying the possible content, substance, and coverage of a mutually beneficial economic partnership between the two countries, including the possibility of forming a free trade area (FTA).

On 28 May 2003, the Philippine Coordinating Committee (“PCC”), which was tasked to study and negotiate the proposed JPEPA, was created under Executive Order No. 213. The PCC would be composed of representatives from eighteen government agencies, and would be co-chaired by the DFA Undersecretary for International Economic Relations and the DTI Undersecretary for International Trade. The PCC was tasked to formulate recommended Philippine positions for the meetings and negotiations with the Japanese counterpart, conduct consultations with concerned government and private sector representatives, and draft a proposed framework for the JPEPA and its implementing agreements.35

During the 5th Working Group meeting held on June 8-9, 2003, the Working Group indicated that both countries were ready to proceed to the next level of discussions and thus concluded its work. The Joint Coordinating Team (JCT) for JPEPA was then created; it held its inaugural meeting on September 26-27, 2003.

In October 2003, ASEAN signed the Framework Agreement for a Comprehensive Economic Partnership (CEP) with Japan. It is envisioned that the ASEAN-Japan CEP will be fully realized by 2012 for the original six (6) ASEAN member countries, including the Philippines.

On 11 December 2003, Prime Minister Koizumi and President Arroyo agreed that the Japanese and Philippine governments should start negotiations on JPEPA.

Formal JPEPA negotiations commenced in February 2004.

In their meeting on November 29, 2004, Prime Minister Koizumi and President Arroyo confirmed that both sides had reached agreements in principle on major elements of the JPEPA, and that they would expeditiously proceed with work to finalize the JPEPA, including negotiations on the text.

In January 2005, Cong. Lorenzo R. Tanada III and Cong. Aguja jointly filed House Resolution No. 551, calling for an inquiry into the bilateral trade agreements currently being negotiated by the Philippine government, particularly the JPEPA.

On 28 February 2005, the House Special Committee on Globalization (the “Committee”) held its first hearing on House Resolution No. 551. During this hearing,

PCC Chairman and DTI Undersecretary Thomas G. Aquino admitted that:

(a) This is the first time that the Philippines is entering into an agreement as comprehensive as this;

(b) Under the JPEPA, tariffs on industrial, agricultural, forest, and fishery products will be eliminated or reduced within ten (10) years;40 and

(c) There are costs to entering into the JPEPA, including foregone revenues resulting from tariff reduction.

Upon being questioned as whether the JPEPA was a treaty or an executive agreement, USec Aquino said that it would “still be decided upon later on by the Department of Foreign Affairs.”

On 03 May 2005, the day before the scheduled hearing of the Committee – and 65 days after the request for JPEPA-related documents and information had been made during the first Committee hearing - USec Aquino transmitted to the Committee a list of trade and investment agreements signed by the Philippines, together with prototypes of said agreements. However, with respect to the JPEPA, only the list of the members of the PCC was transmitted.

During the Committee hearing on 04 May 2005, USec Aquino revealed that the PCC was targeting to have the JPEPA negotiations completed by June 2005.

On 10 May 2005, Cong. Teves wrote to Executive Secretary Eduardo Ermita, requesting that the Committee be furnished all documents on the JPEPA, including the latest drafts of the agreement, as well as the requests and offers. Cong. Teves also requested for clarification on whether the JPEPA is being treated as an executive agreement or as a treaty.

On 31 May 2005, the Tariff Commission (“TC”) conducted a public hearing on the JPEPA, ostensibly to elicit reactions on the proposed tariff reduction schedule contained in the “Philippine offer.” However, only the “Philippine offer” was discussed during said public hearing. In response to questions of various attendees as to whether they would be given an opportunity to comment on the Japanese offer, TC Chairman Edgardo Abon stated that the Japanese offer is not being made available to the public.

In a letter to Cong. Teves dated 23 June 2005, Executive Secretary Eduardo R. Ermita informed him that the DFA would be unable to furnish the Committee all documents on the JPEPA since the proposed Agreement “has been a work in progress for about three years”. Sec. Ermita stated that a copy of the draft JPEPA would be forwarded to the Committee “as soon as the text thereof is settled and complete.” He likewise stated that the Committee would be informed of the nature of the JPEPA “once the legal review of the complete draft text is finished.”

On 25 October 2005, Cong. Aguja wrote to the individual members of the PCC, reiterating the Committee’s request for an update on the status of the JPEPA negotiations, the timetable for the conclusion and signing of the agreement, and a copy of the latest JPEPA working draft.60 Cong. Aguja also wrote to the Department Heads of the government agencies that were members of the PCC. None of the individual members of the PCC and department heads of the PCC member agencies provided Cong. Aguja with the requested draft of the JPEPA.

During the DTI Budget Hearing at the House of Representatives held on 10 November 2005, Cong. Aguja interpellated DTI Secretary Favila and USec Aquino regarding the JPEPA negotiations and the DTI’s repeated refusal to furnish Congress a copy of the full text of the JPEPA. USec Aquino refused to divulge the contents of JPEPA, saying that it would be necessary to secure the permission of the President.

As of the date of the filing of the Petition, the PCC has still refused to provide any official documents or information regarding the proposed date of signing for the JPEPA. Based on newspaper reports, however, the Philippine government expected to sign the JPEPA this December 2005.


In fine, the petition sough an order from the Supreme Court to compel the governmentot disclose the full text of the JPEPA citing relevant constitutional provisions: Article III, Section 7, which guarantees the right of the people to information on matters of public concern; Article II, Section 28, which provides that the state adopts and implements a policy of full public disclosure of all its transactions involving public interest; Article XI, Section 1, which provides that public officers and employees must at all times be accountable to the people; and Article XIII, Section 16, which guarantees the right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making; and Article VII, Section, which provides that no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.


Atty. Manuel J. Laserna Jr.

LCM Law, Las Pinas City, Philippines

Email -

November 6, 2007

Acknowledgment: My friend Mr. Virgilio “ Bro. Boy” Hernandez, of Las Pinas City, recently provided me with a copy of the full text of the 2005 Akbayan petition.