A POLICY OF BETRAYAL (Second of three parts)


Posted at Mar 17 2008 10:31 AM | Updated as of Mar 17 2008 06:31 PM

Lawmakers let Palace get away with JMSU deal


The two chambers of Congress, headed by President Arroyo's staunchest allies, aided the Executive in pursuing the constitutionally questionable agreement with China, and then with Vietnam, to survey Philippine waters for possible oil deposits.

Ironically, only the President and executive officials could be held criminally liable for the act. The legislative leaders could suffer only from "political liability" or adverse public opinion for being remiss in their duty to balance Malacañang, according to a former legal adviser of the President. Almost four years after it was signed, the joint marine seismic undertaking (JMSU) agreement is being questioned by various quarters for conceding as disputed a portion of the Philippines' exclusive economic zone (EEZ). The EEZ, which is acknowledged by local and international laws, makes the Philippines the country nearest to the disputed Spratly islands that five other countries are claiming.

Since the JMSU is within the Philippine area and meant to eventually exploit its natural resources, legal and diplomatic experts we consulted said it should have been covered not just by an agreement but by a treaty.
They said that the Senate's dereliction of duty is very clear.

Franklin Drilon

Under Drilon’s watch

Senate President Franklin Drilon did not call for an official briefing on the details of the proposed JMSU despite the fact that he had consultations with Acting Justice Secretary Merceditas Gutierrez about its possible unconstitutionality - a possible ground for the President's impeachment. Legal experts said the JMSU should, at the very least, have been covered by a treaty, not just by an executive agreement. It is the Senate's responsibility to ratify treaties and be on the look out if Malacañang is trying to bypass it for agreements that require Senate approval.

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Making a Claim

"The senators are admittedly remiss. They should be on the lookout for agreements that circumvent the requirement of Senate ratification," said the former presidential legal adviser.

The House of Representatives can be faulted, at the most, for its Speaker's alleged involvement in the negotiations for the deal. Speaker Jose de Venecia Jr., according to sources privy to the deal, personally helped package the agreement, with the assistance of Energy Undersecretary Eduardo Mañalac. The Speaker has connections with Chinese government officials, while Mañalac had previously dealt with China's oil companies.

Franklin Drilon

Loans for JMSU

Before there was the JMSU, Congress had been sitting on bills that would have helped strengthen our claims over the disputed Spratlys that sits next to the Philippines' EEZ. These called for delineating our territorial boundaries.

The bilateral JMSU pact between the Philippines and China was negotiated along with billions in dollars of Chinese loans and projects from 2002 to 2004. It was signed on Sept. 1, 2004. When Vietnam protested, it was accommodated in a tripartite agreement that was signed March 14, 2005.Drilon was Senate President from 2001 to 2006, while De Venecia was Speaker from 2001 until last month. From supporting then Vice President Arroyo in ousting President Joseph Estrada in 2001, Drilon and De Venecia both actively worked for Ms. Arroyo's election in 2004, an exercise marred by allegations of fraud. China was the first country visited by President Arroyo after that election, in September 2004, when the JMSU was signed along with four more bilateral agreements. In mid-2005, Drilon joined the opposition and called for President Arroyo to resign after the systematic cheating in her election was exposed. De Venecia, for his part, was ousted by the President's allies after his son accused the President's husband of corruption and influence peddling in a Chinese national broadband project that the younger De Venecia failed to clinch.

Dinner at JDV'S

Related Data/DownloadsList of Bilateral Agreements Between the Philippines and China
Agreement for Joint Marine Seismic Undertaking in Certain Areas in the South China Sea between China National Offshore Oil Corporation and the PNOC
Tripartite Agreement for Joint Marine Seismic Undertaking in the Agreement Area in the South China Sea (JMSU)
Area covered by the agreement signed among PNOC, CNOOC and PetroVietnam on March 14, 2005

abs-cbnNEWS.com/Newsbreak gathered that weeks before the signing of the bilateral JMSU deal in 2004, a dinner was held at De Venecia's residence in Dasmarinas Village in Makati to discuss primarily the Chinese loan that would fund the Northrail project, a known pet project of De Venecia's. In that dinner, the Chinese ambassador reportedly said, "No Spratlys, no Northrail." It was unclear from our source's account if the statement was directed at De Venecia or any particular person in the group.

Present at the dinner were representatives of the foreign affairs and energy departments, of the National Economic and Development Authority, and Northrail Corp. executive Jun Cortes (now deceased).On Sept. 1, 2004, the JMSU deal was signed in Beijing by representatives of the two countries' national oil companies, with De Venecia witnessing the event. It was during President Arroyo's state visit. In the same ceremony, the Supplemental Memorandum of Understanding between North Luzon Railways Corporation and China National Machinery and Equipment Corporation (Group) was also signed.

Northrail was later exposed as the first Chinese project with padded amounts and technical inferiority, according to a study done by University of the Philippines. Northrail became the subject of a Senate investigation, but construction work continues to this day despite a court order putting the project on hold. We asked De Venecia's spokesman, Noel Albano, about the account that the Chinese ambassador pressured De Venecia.

"They cannot pressure the Speaker on this because the Speaker is not engaged in treaty making nor in [forging] executive agreements." He acknowledged that "it was not unusual that diplomats and government officials go to his house for dinner." However, Albano said, the guests only "probably brought up the topic" informally, but not to negotiate. De Venecia, all this time, had been "just proposing a general outline to determine the economic potential of the Spratlys," but "not the details" of any agreement, he said.

Deeper involvement

Other Related Stories/DataGov’t Leases 1 Million Hectares to China Firm in Vague Contract
Summary of RP-China Deals Relating to Fisheries and Agriculture

Other sources attested to De Venecia's deeper involvement. The JMSU area has hit the exploration site of a British company, Forum Energy, whose local subsidiary was headed by his brother Oscar de Venecia and the latter's son Oscar Jr. The father and son tandem reportedly had to leave the company because they couldn't defend its interests against JMSU "under pressure" from Jose de Venecia, a source close to the family said. A Cabinet official said it had always been known in the Palace that "in anything that has to do with China, the President always deferred to JDV."

The source said: "When it [involves] China [matters], the President would tell us, 'Kay Joe, siya ang nakakaalam niyan,'" (Consult with Joe de Venecia, he's the one who knows that.)A presidential adviser pointed out that the falling out between Ms. Arroyo and the former Speaker was really about De Venecia's extensive links to the Chinese being wrested by the President's camp. "Let's face it, this quarrel is about somebody losing control of the China deals."

No copy of agreement

For his part, Drilon, no longer senator and now with the opposition, claimed that then acting Justice Secretary Merceditas Gutierrez consulted him about the JMSU for possible unconstitutionality. The latter was supposedly afraid it could be used to impeach the President. Gutierrez countered that it was Drilon who sought her to air those concerns over JMSU. The point, however, is that Drilon knew about the potential problems that the JMSU presented as early as negotiation stage, but he didn't object to it. Drilon said the Senate did not act on it because the justice department didn't send them a copy of the agreement.

"Drilon's Senate should have subpoenaed the documents," a legal authority formerly with the Cabinet said. In the past, Malacañang also bypassed the Senate when it treated the Visiting Forces Agreement as an executive pact and signed it without getting Senate approval. The Senate went after the agreement and forced the Palace to submit it to the Senate for ratification.

It’s a treaty

The Palace has defended the agreement, saying it was a purely scientific undertaking. Mañalac, the Philippine National Oil Corporation president who signed the pact, said it was a purely commercial transaction. Former Foreign Affairs Undersecretary Merlin Magallona disagrees. Presenting copies of the tripartite JMSU agreement provided by abs-cbnNEWS.com/Newsbreak, he said in a press briefing in UP last Friday, "This is not just a seismic agreement but a framework for succeeding agreements."

"In my view, it should be a treaty and therefore calls for the concurrence of the Senate," said Magallona, a former dean of the UP College of Law. Another former Law dean, Raul Pangalangan, said the "pre-exploration" phrase was "concocted after the fact" to hopefully lessen the objectionability of the agreement. "They refer to it as scientific study as if scientific study is a separate and remote matter. It was to be conducted by parties for [the end goal of] commercial exploitation," Pangalangan said.

"What passes for a legitimate agreement suddenly becomes suspect because of constitutional shortcuts taken. It was not submitted to Congress [for approval], and it violated the provision that explorations should be under the sole control of Philippine state," he said.

'What baseline?'

Mañalac refuses to acknowledge that some 80 percent of the JMSU site is within the Philippines' 200-nautical-mile exclusive economic zone, and therefore should not have been referred to in the agreement as a disputed area."200 nautical miles from where? Where's the baseline? Where's the map?" he said in a press conference last Monday. Mañalac may have put Congress on the spot. The Philippines, since the 8th Congress, has failed to pass any bill confirming its territorial boundaries and EEZ as set by the United Nations Convention on the Law of the Sea. During the 8th Congress, Senator Leticia Ramos Shahani filed that baseline bill, but it included Sabah, which Malaysia is also claiming. At the time, there were suggestions that the bill provide for "partial delineation" of the Sabah area.

Early during the Arroyo administration, then Negros Occidental Rep. Apolinario Lozada Jr. filed a baseline bill, but it didn't prosper. Lozada has since been defeated in the congressional elections by the President's brother in law, Ignacio Arroyo Jr.

“We didn't want to offend Malaysia then, we don't want to offend China now,” a former Cabinet secretary said. He was referring to the baseline bill now being deliberated in the House, and to which China is reportedly objecting. The current consolidated bill delineating the Philippine baselines includes the Spratlys.

"Why would we listen to China?" an administration congressman said. "In 1992 they delineated their baselines and included the farthest island in the Spratlys. Did we object? Do you think China would have shelved their delineation if we objected?" The Senate under Drilon also sat on Senator Manuel Villar Jr.'s bill that operationally and financially will strengthen the Maritime and Ocean Affairs Center.

The MOAC is the office that will present before the international court the country's evidence that the underwater landmass of Spratlys is the natural prolongation of the one in Palawan. A committee at UP had identified as early as 2000 three areas where there is a continental shelf: Spratlys, Scarborough Shoal, and Benham Rise. Of recent oil discoveries, 85 percent were made in continental shelves. They had advised President Arroyo on what evidence needed and the cost of gathering them to prove the country's extended continental shelf. No action was ever taken.

(First posted: 3/15/2008 5:48:16 PM)