Spratlys Agreement Unconstitutional: Joint Marine Seismic Undertaking Is Void

The Joint Marine Seismic Undertaking [JMSU] signed by the Philippine government with China and Vietnam is unconstitutional for violating the National Economy and Patrimony provisions of the 1987 Constitution. If it is confirmed that the signing of the same is related to the fraud that attended the various contracts with China, the said Agreement is also void.

BY ATTY. NERI JAVIER COLMENARES
Secretary General, National Union of Peoples’ Lawyers
Posted by Bulatlat
Vol. VIII, No. 7, March 16-29, 2008

Unconstitutional and a sell-out of Philippine Patrimony

Article XII, Section 2 on National Economy and Patrimony provides that :

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. x x x The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. x x x 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. x x x

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

The legal context under which the JMSU was signed, with the authorization of the Philippine government through Pres. Gloria Arroyo, is that the Spratlys or Kalayaan islands are part of Philippine territory and therefore, all the “natural resources” therein are “owned by the State”.

Firstly, the JMSU is unconstitutional because it violates the provision requiring that the government must have “full control” of the exploration, development and utilization of our natural resources and that any joint venture in the same must be with ‘corporations or associations’ 60 percent of which capital are Filipino owned. The Philippine government represented by the PNOC (Philippine National Oil Company) conducted a joint venture agreement with the China National Offshore Oil Corp. [CNOOC] and Vietnam Oil Gas Corp, both of which are 100 percent foreign owned. Furthermore, the Philippines only has one-third share in the management and control of the joint venture, being only one of the three countries involved in the same. This immediately violates the requirement that partner in the joint venture must be a corporation at least 60 percent Filipino owned.

Secondly, the agreement itself was shrouded in secrecy, lacks transparency and in fact contains a confidentiality clause under Sec. 10 of the JMSU that:

The Agreement x x x shall be kept confidential during the Agreement term and within 5 years after its expiration x x x and shall not be disclosed to any third party without the written consent of the other parties.

This immediately violates not only the rule on transparency in government contracts but also the requirement that Pres. Arroyo “notify Congress with every contract entered into within 30 days from its execution”. Not only has Congress not been informed, but the official copy of the Agreement itself has been kept from the official scrutiny.

The fact that the area covered by the JMSU strayed into waters beyond the contested areas in Spratlys and included areas within the Philippine Exclusive Economic Zone only compounds the unconstitutionality of the JMSU.

Lack of Transparency and Fraud

The National Union of Peoples’ Lawyers or NUPL is seriously concerned by the lack of transparency in many contracts, loans and agreements concluded by Pres. Arroyo with China such as the NBN-ZTE Contract which until now remains ‘missing’. The continuing lack of transparency in the JMSU only fuels charges that the said ‘undertaking’ was concluded in exchange for fraudulent considerations in the Northrail and NBN-ZTE transactions and the loans that accompanied these contracts. Should it be confirmed that fraud attended the negotiations and the agreements themselves, the same are void and without effect. Even formal treaties could be voided if attended by fraud as provided for by Article 49 and 50 of the Vienna Convention on the Law of Treaties:

Article 50- Corruption of a representative of a State

If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.

Under the above provision the attendant fraud could be used by the Philippines to revoke the NBN-ZTE contract, the JMSU and the loan agreements with China. The Filipino people should not be forced to pay for loans fraudulently negotiated by representatives of the Philippine government.

The NUPL demands from Pres. Arroyo to publicly present the JMSU agreement not only to Congress but the public as well. The NUPL further demands that Pres. Arroyo allow public scrutiny of all the contracts and loans concluded by the executive branch and desist from effort to suppress information and evidence that would shed light on the corruption that attended these transactions. We urge the people to assert their right to demand accountability from public officials who sell the country’s patrimony and territorial integrity. NUPL/(Bulatlat.com)