A POLICY OF BETRAYAL (Last of three parts)


Posted at Mar 17 2008 01:03 AM | Updated as of Mar 17 2008 09:03 AM


Supreme Court can void exploration deal
The Philippines can still back out of the exploration deal with China and Vietnam that threatens to weaken its claim on the Spratly group of islands southwest of Palawan—if the Supreme Court declares the tripartite agreement void.

And in the event that the joint marine seismic undertaking (JMSU) agreement is voided, it could still be a ground to impeach President Arroyo and to charge her and other responsible executive officials for graft, according to lawyers abs-cbnNews.com/Newsbreak consulted.

A former legal adviser to the Palace said that even if the Supreme Court declares the JMSU agreement void, it could still be a ground for President Arroyo's impeachment, because her allowing it could constitute betrayal of public trust.

Ms. Arroyo and then Philippine National Oil Corp. (PNOC) president Eduardo Mañalac, who signed the pact, may also be liable under the anti-graft law for entering into a contract disadvantageous to the government.

The lawyers we consulted said that any taxpayer or interested party may question the deal before the tribunal, but it would be best if it's the Senate that will do it.

The ball is with the Senate
"The Senate can investigate it and assert that it should have been a treaty [not an executive agreement], bring the case to the Supreme Court, then the Supreme Court can decide on it, declare it void," the former legal adviser to the Palace said.

The case should not be about stopping the surveys for oil deposits that the JMSU agreement allowed.It should be about nullifying the Philippines' acknowledgment that the JMSU area is disputed in spite of the fact that a large portion of it is within the Philippines' 200-nautical-mile exclusive economic zone (EEZ).

The Philippines' EEZ makes it the claimant country closest to the disputed Spratlys. Conceding part of the EEZ as disputed will weaken its position before five other claimants that include its JMSU partners.

"What is important is that we should not make a legal waiver," the former Palace counsel said, in reaction to the point that the three-year JMSU pact is expiring anyway in June.

Former Senate President Franklin Drilon did not assert the Senate's authority to review the proposed JMSU agreement to see if it had to be a treaty. This was despite the fact that he knew as early as the negotiation period in 2004 that the agreement could violate the Constitution.The present Senate, however, can still question the agreement.

In the past, Malacañang bypassed the Senate and signed the Visiting Forces Agreement with the United States as an executive agreement. The Senate had the agreement recalled and succeeded in transforming it into a treaty that had to obtain the Senate's approval.

GMA’s violations
If the JMSU area is within the EEZ, then it should be operating under the provisions of the Philippine Constitution and Republic Act 387 (Petroleum Act of 1949).Article XII of the Constitution, under the title National Patrimony, provides that "all...natural resources are owned by the State," and therefore their "exploration, development, and utilization...shall be under the full control and supervision of the State.

"In cases when the Philippines enter into a joint venture with a private company to exploit those resources, it should be a "at least sixty per centum of whose capital is owned by [Filipino] citizens."

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens."

The Constitution allows the President--not any deputy--to enter into an agreement with foreign corporations for large-scale petroleum exploration for technical or financial assistance. "In such agreements, the State shall promote the development and use of local scientific and technical resources."

Finally, "The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution."

The Executive department violated all of this because: one, the JMSU pact provided China and Vietnam with equal authority over the survey area; the President did not sign the agreement, and the Palace did not notify Congress about it.

Where’s the agreement?
Until now, Malacañang has not made the agreement public, owing to the provision that "this agreement and all relevant documents, information, data and reports" with respect to the JMSU shall be kept confidential for eight years. (Newsbreak has uploaded copies of the bilateral and tripartite JMSU agreements on www.newsbreak.com.ph.)

The JMSU also violated the Philippines' Petroleum Act of 1949. The law says that, "All natural deposits or occurrences of petroleum or natural gas...belong to the State," and that "the right to explore for, develop, exploit or utilize the petroleum resources...[should be undertaken] under a contract of service executed for the Republic of the Philippines by the President and approved by the Congress of the Philippines."

The JMSU agreement provides that for it to be valid, it has to be approved by the respective governments of the three national oil companies within 90 days. The question is: Where is the document that shows the Philippine government approved it? Malacañang, and the departments of energy, justice, and foreign affairs have not presented any.

Just a permit?
abs-cbnNews.com/Newsbreak gathered from very reliable sources privy to the events that led to the JMSU that the Philippine government doesn't have that document. It wants the permit that the energy department gave the PNOC Exploration Corporation to operate in a certain part of the EEZ to pass off as "government approval."

This permit specifies as survey area the nine corners of the JMSU site. Moreover, the permit, according to those familiar with geophysical survey contracts, may not be as authoritative as the Special Authority that the President herself signs for foreign petroleum companies. To begin with, said sources in the energy department and oil industry, was there a document authorizing PNOC president Mañalac to sign that agreement? To their knowledge, there was none.

"Did the signatories have full authority from their governments? I suspect there was no full power, so why sign?" said former Foreign Affairs Undersecretary and UP College of Law dean Merlin Magallona.

"If they cannot show authorization, one more reason it should be void," the former Palace counsel said.

Until June 30
The tripartite agreement covers the conduct of seismic survey over 142,886 square kilometers southwest of Palawan. It was signed on March 14, 2005, by the heads of the three countries' national oil corporations. For it to binding, it had to be approved by their respective governments within three months (or up to June 14, 2005). The effectivity date of the contract would be the first day of the succeeding month, or July 1, 2005.

After the three-year contract expires on June 30 this year, the parties have a three-month negotiation period for a "more definitive agreement," which will cover the drilling in geologic structures and, eventually, production of petroleum.

The agreement was signed on the premise that the area it covers is contested, thus the section that says, "the signing of the Agreement…shall not undermine the basic position held by the Government of each Party on the South China Sea issue."This goes against Presidential Decree 1599 by Ferdinand Marcos that specifies Philippine boundaries to include the 200-nautical-mile exclusive economic zone set by the United Nations Convention on the Law of the Sea.

Need to strengthen case
If these boundaries hold, the Philippines will strengthen before the international court its territorial claim on the Spratlys, which sits next to its EEZ."We weakened our case [on the Spratlys] because we're saying [the economic zone] is not exclusive," said a legal authority formerly with the Cabinet.

Aileen Baviera, dean of the University of the Philippines Asian Center, said, "The JMSU legitimized that we have weak or no control on the islands.... If it's ours, why are we allowing foreigners to operate there without our control?"

According to a map produced by the energy department and presented in a meeting of lawyers and select Cabinet officials recently, about 80 percent of the JMSU area is within the Philippine EEZ. Dr. Perry Aliño of the UP Marine Science Institute points out that even China knows that the JMSU area conceded by the Philippines as disputed is actually part of Philippine territory.

In his experience doing ecological studies in parts of the South China Sea, he said China "usually...doesn't want multilateral agreements" when it comes to exploitation of marine resources."

China normally refuses because it knows it means it is acknowledging the area to be disputed when it is claiming it's theirs. Apparently, they agreed this time [with the JMSU] because of obvious reasons" that it's another country conceding what it owns, Aliño said.

Weak military
Baviera said that canceling the JMSU agreement may "compromise the Philippines' diplomatic integrity." And if it asserts its sovereignty over the area and oil deposits are confirmed, "Can we risk going to war with China and Vietnam over this?" She said it might be better to engage the two militarily superior countries in the joint development of the area.

Baviera said that the Philippines may have entered the JMSU agreement because, "The Philippines has enough internal security threats, wouldn't want external threat from China."The lawyer formerly with the Cabinet said: "Militarily, China is really superior. Legally, it's the Philippines that is superior [with its claim], so we should do it the legal way."