Search deal with China now voided: a back story

It took almost 15 years to come up.

Yet the Supreme Court ruling on June 10 – declaring as unconstitutional a tripartite agreement for Joint Marine Seismic Undertaking (JMSU), signed in 2005 and carried out for three years by the Philippine government with the China and Vietnam governments – was readily welcomed.

Why? At the start of Ferdinand Marcos Jr.’s recent three-day state visit to Beijing, Chinese President Xi Jinping told him that China was ready to “resume oil and gas talks,” which had been initiated with the Duterte government in 2018 but unilaterally terminated by the latter in June 2022 just before his administration ended. “Constitutional limits and sovereignty issues” were the reason, said Teodoro Locsin Jr., the foreign affairs secretary then.

Notably, the June 10 ruling was passed by an overwhelming vote of 12 magistrates, including Chief Justice Alexander Gesmundo. Two other justices dissented, while one was on leave.

We await the public release of the full text, and the various separate opinions that the justices may have contributed. But given the overwhelming majority vote, any appeal to the SC to reconsider the decision, as suggested by someone to the Office of the Solicitor General, may have difficulty succeeding.

The ruling has set the peg for any negotiations, as put forward by Xi Jinping, or any other party, on maritime explorations and further activities with China: These must abide by the provisions of the 1987 Philippine Constitution’s Article XII (National Economy and Patrimony) Section 2, which unequivocally states:

“The exploration, development and utilization of natural resources shall be under the full control of the State.”

Further, Section 2 adds: “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 60 per centum of which capital is owned by such citizens.”

The JMSU, as the SC ruling pointed out, allowed fully-owned foreign corporations of both China and Vietnam to participate in the exploration of the country’s natural resources in the West Philippine Sea (part of the South China Sea) without observing the above-quoted safeguards.

On a personal note, I feel a deep sense of vindication, as one of the lead petitioners questioning the JMSU’s constitutionality in the petition we filed before the high tribunal in 2008. As Bayan Muna party-list members of the House of Representatives Teddy Casiño and I were aided in preparing the petition by our legal counsel Neri Javier Colmenares (who subsequently served three terms after us) and two newly sworn-in lawyers.

Our co-petitioners were three other House party-list colleagues: Crispin Beltran of Anakpawis and Liza Maza and Luz Ilagan of Gabriela Women’s Party. Two other progressive legislators joined us: then Reps. Lorenzo “Erin” Tanada III and Teofisto “TG” Guingona III.

Respondents to our petition were then president Gloria Arroyo, executive secretary Eduardo Ermita, the then secretaries of foreign affairs and of energy, plus the Philippine National Oil Company (PNOC) and the PNOC Exploration Corporation.

We fought hard to get the SC to act promptly on our petition. Twice, Bayan Muna filed urgent motions for immediate resolution of the issue.

In May 2014, two years after the petition had been submitted for decision, we asked the SC to act on the case so that China could not use the JMSU in its opposition to the Philippine case before the Permanent Arbitration Tribunal (which the Philippines won in 2016). No response to our appeal.

On Nov. 20, 2018, the Duterte and Xi governments signed a Memorandum of Understanding (MOU) for oil and gas exploration and development in the SCS/WPS. The following day, Bayan Muna agitatedly prodded the SC to rule on our petition because the JMSU had been shown to be detrimental to Philippine national interest, and the MOU signed by the Duterte government would likely turn out to be another mistake.

“The JMSU treacherously offered 142,886 square kilometers of the West Philippine Sea, including 24,000 square kilometers of areas that indisputably belong to the Philippines and not contested by China,” wrote Colmenares at the time.

“China became aggressive after the JMSU elapsed,” he warned, “because it had managed to pinpoint the exact locations of natural gas and oil reserves in the area.” He charged that China had given the Philippines “blurred images and vague data, despite the JMSU provision that all information gathered [during the exploration] shall be equally shared.”

“Tuso ang gobyerno ng China. Bakit magtitiwala tayong mga Pilipino dito?” he asked. “Dapat pinigilan natin ito [referring to the JMSU].”

With the 2018 MOU, Colmenares said then president Duterte might have given China a legal foothold to strengthen their intrusive positioning in the West Philippine Sea.

“We are apprehensive that the new joint exploration deal with China may be unconstitutional and might bring the Philippines into debt to the very country that has rapaciously built islands and occupied our seas in defiance of our sovereign rights in the West Philippine Sea,” he stressed.

“Duterte’s new deal with China will most likely go the way of the 2005 joint exploration deal signed by the Arroyo government, in exchange for loans to fund overpriced and corruption-ridden projects like the NBN-ZTE deals and the Northrail projects,” he warned. He then appealed to the country’s highest tribunal:

“We urge the Supreme Court to resolve our 10-year-old petition and declare the JMSU and other similar exploration deals [referring to the 2018 MOU] unconstitutional and save the future generation of Filipinos from being deprived of the resources that could help in developing our country.”

We, the petitioners and all those who supported our struggle to defend and fight for our sovereign rights to our maritime resources in the West Philippine Sea, express profound appreciation to the Gesmundo court for responding positively to Bayan Muna’s repeated pleas for judicial action.

This may be justice somewhat delayed, but it will not be justice denied.

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Published in Philippine Star
January 14, 2023

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