By Butch Fernandez & Bernadette D. Nicolas
FIRST, it must comply with the provisions of the Constitution. Second, it must undergo congressional review. Third, it must not be pursued alongside Charter change, as such may infuse legal uncertainty into negotiations.
These are the priority considerations emerging from a planned joint oil-exploration deal with China in the West Philippine Sea (WPS), even as a maritime law expert said on Thursday the country should not pursue Charter change in the middle of negotiations for such a bilateral arrangement, and before the Supreme Court rules on a similar arrangement with Vietnam in 2005.
Sen. Joel Villanueva, invoking the Senate’s oversight powers, on Wednesday sought submission for congressional review of a separate joint oil- exploration deal with China in the WPS.
“I do not see any problem entering into a similar arrangement with China,” Villanueva said a day after Foreign Secretary Alan Peter Cayetano said the joint exploration deal was nearing completion, but quickly added a word of caution: “the devil is in the details.”
Acting Chief Justice Antonio Carpio said the proposed deal between the Philippines and China on the joint exploration of natural resources in the WPS must comply with the provisions of the Constitution.
“As long as the joint development complies with the Philippine Constitution and there is no waiver of our sovereign rights under the arbitral ruling, I have no objection,” Carpio said in a text message sent to reporters on Thursday.
The senior magistrate earlier welcomed President Duterte’s pronouncement in his third State of the Nation Address (Sona) that Manila will not waver in defending the country’s interests in the WPS despite strengthened ties with Beijing.
“Well, that’s the correct position. We should never give up our rights there. That can be reconciled. We can continue to trade with China while we continue to defend our sovereign rights,” Carpio said in chance interview after the President’s Sona.
“There’s no incompatibility there because we have other relations with China. We have trade. We have cultural and all other matters. But we should not do anything that will waive our rights to the West Philippine Sea,” he added.
Cayetano made assurances that the Philippine government would ink a joint exploration deal with China that is “equal or better” than its contract in Malampaya.
The $4.5-billion Malampaya gas-to-power project is a joint undertaking of the Philippine government and the private sector.
Cayetano also defended the government’s move to pursue talks on the matter with China.
“My question really is if we are to get a partner, whether it’s from Indonesia, Saudi Arabia, or the Dutch, we will eventually get a partner to explore. So what do we lose if we do it with our neighbors?” he asked.
China earlier expressed its willingness for a 60-40 possible joint exploration in the WPS, where the 60 percent would go to the Philippines while China gets the balance of 40 percent.
Cayetano has yet to give a specific timeline on a possible Philippines-China joint exploration, but added that Duterte and President Xi Jinping had basically given a “go signal” for the drafting of a framework.
Charter-change timing
Maritime law expert Jay Batongbacal warned against pushing Charter change or federalism in the middle of the proposed 60-40 joint exploration of natural resources deal with China, as it will complicate things.
In an interview with BusinessMirror, Batongbacal also urged the Supreme Court to issue the ruling first on Bayan Muna’s challenge to the constitutionality of the Joint Marine Seismic Undertaking (JMSU) entered into in 2005 by the administration of then-President Gloria Macapagal-Arroyo with China and Vietnam.
“I am not in favor of Charter change in the middle of all of this because that’s an additional cause for uncertainty,” he said. “Second, I would want for the Supreme Court to already make the decision on the JMSU case so that the stand on the [interpretation of the] 1987 Constitution is already clear.”
Only after that, Batongbacal said, can a decision on the modality of the supposed joint exploration and development deal with China be reached.
Tell Congress
Meanwhile, Sen. Villanueva voiced hopes the Department of Energy will “be vigilant in its job” even as he asked the DOE to submit copies of the proposed joint oil exploration contracts with China “for notification of Congress and to inform our citizens of these deals.”
At the outset, the Senator clarified he was pressing for a Senate review to make sure any agreement entered into with China is “purely for a beneficial bilateral business transaction and will not be used to compromise our economic and political sovereignty.”
This, even as Villanueva also acknowledged the proposed 60:40 sharing arrangement between the Philippines and China is consistent with existing law governing oil and gas exploration and utilization in the country.
He recalled that the Philippine government earlier entered into partnership with multinational companies under this arrangement, citing the Royal Dutch Shell Company which has been extracting natural gas from Malampaya for decades.
‘No legal certainty’
Despite Villanueva’s confidence in the viability of pursuing the Malampaya template, Batongbacal frets over the legal uncertainty that could cloud talks on joint exploration if the Philippines were to pursue Charter change on a parallel track.
“Doing all of this at the same time, dealing with China and going for charter change at the same time is complicated so even for China it would not be advisable because there is no legal certainty,” the professor said. “There are no legal guarantees to whatever deal it enters into right now, so if I’m on the Chinese side, I would advise to hold everything off until the Philippines sorts out its legal issues.”
These legal issues also include the Duterte administration’s bid to shift the form of government from unitary to federal apart from the pending court case.
Batongbacal said that unlike China, the Philippines might have problems if it holds off the talks on the proposed joint exploration deal, especially that there’s a looming energy crisis in the middle of 2020 when Malampaya runs out.
Batongbacal also earlier expressed his disappointment over the proposed federal charter as he said some provisions, especially on National Territory, do not strengthen the Philippines’s claim to the disputed waters.
On Con-com’s proposed provision to give Congress the power to liberalize the country’s restriction on joint exploration of natural resources, Batongbacal considers this as a loophole, as such loosening equity restrictions are in fact ways of opening it up to foreign acquisition.
“That [provision] will open the resources of the country to potentially 100-percent foreign control through private corporations. It doesn’t necessarily say about foreign states but of course, you can expect that what applies to private corporations will also apply to [a] foreign power, which will really open it up.”
Batongbacal also stressed that the issue on the proposed 60-40 joint exploration deal on natural resources with China is really about the matter of where it applies to.
“The 60-40 split per se is not the problem since the [present] Constitution provides for 60-40 splitting between the state and a contractor for natural resources. Just because it’s 60-40 doesn’t mean anything. The issue there is what 60-40 applies to—whether it applies to ownership or sovereignty over the resources,” he said.
He said Cayetano’s statement is not yet clear and final, since the whole idea of joint exploration with China is still subject of the outcome of the ruling on the JMSU case pending in the Supreme Court.
“There is no assurance that the whole idea of joint exploration will be deemed legal by the Supreme Court since the [case] is pending,” he said.
Cayetano earlier said China has expressed its willingness to conduct a 60-40 joint exploration on natural resources in the West Philippine Sea—with 60 percent for the Philippines and 40 percent for China. He said authorities are still crafting the framework agreement for the possible joint exploration, and that officials from the Department of Energy and Department of Foreign Affairs, Chinese officials and international experts will meet to discuss the issue.
With a report from PNA