ASPAUCULE

Fr. Bernas: Public has right to know Spratlys accord

Constitutional law expert Fr. Joaquin Bernas on Wednesday said the government should release the Spratlys project agreement among the Philippines, China, and Vietnam following reports that the trilateral pact is unconstitutional. Bernas, Dean of the Ateneo de Manila Law School and one of the authors of the 1987 Constitution, said Article 3, Section 7 of the 1987 charter states that the public has the right to information on matters of public interest. "I believe this is a matter of public interest so the information about this has to be made public," he told radio dzMM. Bernas disagreed with Chief Presidential Legal Counsel Sergio Apostol who said Wednesday that the government cannot reveal the full details of the agreement since it was agreed with China and Vietnam that the agreement must be kept confidential. "They cannot agree to hide from the people a matter of such public interest because there are constitutional issues involved in this," he said. Based on a copy he received via e-mail, the Joint Marine Seismic Undertaking agreement signed March 14, 2005 covers about 20,000 square kilometers of land and water, which could intrude into the Philippines' exclusive economic zone. He said the agreement allowed a Chinese company to conduct a seismic survey of natural resources in Philippine territory. It also included a provision which says that if petroleum is found in the area, the President may enter into financial and technical assistance with foreign corporations subject to the limitation imposed by Congress. They must also report to Congress within 30 days. "It seems to me that this is exploration, with financial and technical assistance of Chinese. Its covered by the Constitution. And whatever the agreement, its the President who enters into the agreement, according to the constitution, not anybody else,'" Bernas said. "So there are very serious questions here and I dont know the clear answer." A report by Barry Wain in the Far Eastern Economic Review earlier revealed that the Philippines might have weakened its claim on the Spratly group of islands when President Arroyo agreed to the JMSU, which was signed by the national oil companies of the Philippines, China, and Vietnam. The 3-year JMSU provides for “joint acquisition of seismic data in order to assess the petroleum resource potential” of the area covered in the study, according to a press statement on the Philippine National Oil Co. -Exploration Corp. website. The PNOC-EC said the tripartite agreement “covers an area of 142,886 kilometers west of Palawan.” It took effect July 2005. ASK THE SUPREME COURT Bernas said any Filipino taxpayer could file a petition for mandamus before the Supreme Court if the administration refuses to release the full agreement in public. If a mandamus petition is granted, the government would have to disclose the information and agreements affected by public interest. He also said Congress could also use its oversight function to get a copy of the JMSU from Malaca�±ang. Former Philippine National Oil Corp. President Eduardo Manalac and former House Speaker Jose de Venecia earlier challenged the government to release the map that would show where the search for oil and gas was conducted in the disputed South China Sea. Both officials said said the public disclosure of the map would help determine if the agreement among the three countries violated the Philippine Constitution or any law. Both asserted that the JMSU, signed in March 2005, was above board. The PNOC-EC has refused to disclose the map, citing a confidentiality agreement among the three countries. Manalac said it was better for the three countries to share in the oil or gas finds than to just let these energy resources stay untapped. He said the Philippines does not have the millions of dollars needed for oil exploration. If oil or gas is found, he said the Philippine government only has to ensure the 60% government share in royalties from the income of the project. He said Philippine law allows 100% foreign ownership in oil exploration, but it must be 60%-40% sharing in favor of government in the royalties. Manalac said it would be good if the JMSU is taken to its next step�”drilling for oil or gas�”since the money invested in the seismic survey would be put to waste if the project is not pursued. In this next stage, the Philippines would have to come up with a production-sharing service contract. China and Vietnam each has its own law to follow in the next stage of the project. Manalac said the initial results of the seismic survey were “very encouraging”. They showed “potential prospects” for oil or gas drilling. TOO CLOSE TO PALAWAN An /Newsbreak report earlier revealed that energy officials were aware as early as 2004 that the bilateral agreement they signed with China to explore the Spratlys for oil deposits covered an area that was within Philippine waters and should not have been allowed. The tacit admission was made when they decided half a year later to revise the map annexed to the JMSU, according to interviews with government officials privy to the agreement. Last Friday, the Department of Energy presented a map that showed how clearly the area covered by the Philippines joint seismic survey with China and Vietnam is within the Philippines 200-nautical-mile Exclusive Economic Zone . abs-cbnNews.com/Newsbreak was shown the map presented to select members of the Cabinet led by Executive Secretary Eduardo Ermita. The map, a revision of the one annexed to the pact with China, showed that the survey area still encroaches on the Philippines waters, and therefore violated local and international laws. The new map served as the annex to the tripartite JMSU pact that was signed on March 14, 2005, which by then already included Vietnam. The original map, which was annexed to the bilateral pact between the Philippines and China signed half a year earlier, showed a survey area closer to Philippine territory. It was revised after a Cabinet official pointed out in 2004 that the original location targeted by the JMSU with China was “too close” to Palawan. The revised map moved the 142,886-square-kilometer seismic survey area farther from Palawan toward the southwest. The new map shows that the new location is now slightly below the Malampaya exploration site, based on another map published earlier by the Philippine National Oil Corporation , which signed the JMSU pact on behalf of the DOE. The map that PNOC made public in 2005 did not show the lines of the Philippines EEZ. ENCROACHMENT Still, the new survey area encroaches on Philippine waters, according to legal experts. With a line showing where 200 nautical miles from the Philippine territorial lines end on the new map, it was established that, still, around 80 percent of the 142,886-square kilometer area of the joint marine seismic undertaking is within Philippine waters. The 200-nautical-mile EEZ was delineated by the Philippines under Presidential Decree 1599 of President Ferdinand Marcos and is acknowledged by the international community under the United Nations Convention on the Law of the Sea . Legal and science experts Newsbreak consulted said that it doesnt matter if the survey area was moved a little farther from the original location; it still violated both local and international laws. Worse, agreeing to the area covered by the JMSU, the Philippines derogated its sovereign rights over the area. They said that allowing China and Vietnam to operate within this EEZ effectively acknowledged that the area, already belonging to the Philippines, is disputed. “The bottom line is, we have weakened our case because we are saying that the area is not exclusively ours,” said a legal expert formerly with the Cabinet. The Philippines is a claimant to a group of islands in the Spratlys. Its EEZ shows it as the country nearest the disputed area.