Monday, 22 September 2008

The The Japan-Philippine Economic Partnership Agreement [JPEPA] and the Issue on Hazardous Waste

Classes in my GDL course have commenced and I am already in the midst of a forest of books and cases. Still the desire to write about the JPEPA and the issue on hazardous waste is one I could no longer ignore. So like the poor mariner heeding the siren's call, I foray headlong into the rocks and crevices of the bilateral contract we call the JPEPA.

Environmental Law is a field of law closest to my heart and soul. In fact, in my LLM degree at University College London, one of my favorite courses was environmental law.

There have been a plethora of concerns about the JPEPA treaty- sovereignty, bilateral trade, and environmental issues abound. Undoubtedly, once ratified by the Philippine Senate, the treaty would introduce far reaching consequences to the Philippines.

The issue on the possible transport of waste to the Philippines from Japan is one of the thorny topics of debate. In the context of environmental concern, opponents of the treaty fear the entry into the Philippines of scrap and waste that may include hazardous or nuclear waste from Japan's health and industrial institutions under Article 29 (2) (j) of the treaty. This fear is well founded.

Proponents of the treaty argue that there are sufficient Philippine environmental laws that prevent such a possibility. On its face, they have a point. On the domestic front, Republic Act No. 6969 [ Toxic Substances and Hazardous and Nuclear Wastes Control Act 1990] prohibits the entry, transit or storage and disposal of hazardous and nuclear waste in Philippine territories. Republic Act 8749 [The Clean Air Act] and Republic Act 4053 [ Prohibits the entry of used clothing and used rags] are also relevant. On the international level, the Philippines is bound by the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal on 21 October 1993. Japan is also bound by the Basel Convention by its accession to the treaty on 17 September 1993.

The terms of the Basel Convention are the most relevant to the provisions of the JPEPA Bilateral Treaty considering its international stature and Philippine domestic environmental laws are not binding to Japan.

Potential problems may arise pertaining to the definition of waste or hazardous waste. Both parties may have different definitions in their respective domestic jurisdictions and I may be wrong but I could not find any definition in the treaty [ 153 pages long] itself. Moreover, how do the parties of the treaty determine the percentage of a mixed waste and scrap transported items that would classify the load as waste or scrap? In other words, if a pallet of transported goods from Japan contains a mixed scrap and hazardous waste load, how would the parties determine whether to classify it as a scrap or hazardous waste load?

In the event of conflict between the definitions of hazardous waste or its percentage composition in a load adopted under the treaty and domestic definition in Philippine law, is there a need to amend or repeal the latter to conform with the definition under the treaty?

It is submitted that under international law, the provisions of the treaty will prevail over the domestic law pursuant to the pacta sunt servanda principle. But there is really no need to amend the conflicting domestic laws. Take the case of the United Kingdom. In the UK case of Factortame [No 2] a UK domestic law was in conflict with European Union [EU] law on discrimination. The House of Lords "disapplied" the offending provision of domestic law instead of repealing it and enforced the international EU law. In this wise, United Kingdom Parliamentary Sovereignty is preserved while adhering to its international obligations.

If both parties could not agree under the treaty as to disposal of scrap and waste, recourse to the Basel Convention would resolve the disagreement. The Philippines and Japan are both parties to the Convention thus binding themselves to its terms. Waste and Hazardous Waste are defined in Articles 1 and 2. More importantly, the transboundary movement of hazardous waste is undertaken in compliance with the principle of "Prior Informed Consent"- The state party of destination must first be informed of the proposed hazardous waste movement and its consent to the transport be granted before the movement is undertaken. In other words, the Philippine state's prior informed consent must first be obtained by Japan before any transboundary of hazardous waste to the Philippines would even commence.

However, laws and conventions are only effective depending on the political will of the state. Granting that the Arroyo government has the political "balls" to be nonsubservient to illegal demands by Japan, the Basel Convention prevents Japan from dumping hazardous waste into any inch of Philippine territory without the consent of the Philippine government. Hence, the fear that the Philippines could become a dumping ground for hazardous waste from Japan is a creation borne of being uninformed. It could only happen if the Philippine government surrenders its Constitutional obligation and responsibility to protect the state from environmental destruction and bow down to economic and trade pressures from Japan.

But then that would be another story.....

Monday, 15 September 2008

An Apology too Late: Religion and Science in Conflict?

I had the chance to browse through a number of newspapers last Sunday. On page 5 of the 14 September 2008 edition of the newspaper, "The Mail on Sunday", there's an article about the Church of England's decision to officially apologize to Charles Darwin for its opposition and misunderstanding of his Theory of Evolution. For the uninitiated, Charles Darwin argued in his Theory of Evolution that man [ or should I say, a human being, in this politically correct world] was descended from the apes. Some of Darwin's descendants branded this act as ludicrous and questioned the motivation of the Church. Why, for goodness sake, it took the Church 126 years more or less, to admit it is wrong in its opposition to the Evolution Theory simply beggar's belief.

Surely, there must be other reasons for this turnaround, utilitarian or otherwise.

In respect to science, it is not an isolated incident that the scholasticism that held power in the Church collided with empirical science and humanism. Galileo Galilei was put to trial in 1633 by the Vatican due to his scientific declaration that the earth revolves around the sun.

On its face, science and scholasticism in the Church are at odds with each other. Empirical data against religious faith. But such is the dichotomy of life don't you think? In as much as their light and dark, heat and cold, male and female, day and night, is religion really an opposite of science? Is there really an irreconcilable incompatibility between the two?

Ancient religious texts and religious mystics speak about things that are now being empirically proven through science. For example, it is long since "known" that some eastern religions talk of matter as a form of energy waves that human vision can see long before the birth of modern science. This concept has been proven to be true by quantum physics.

Perhaps, in the future of an enlightened world, the dawn of truth will arise. Parting forever the veil of sevenfold from human eyes, to gaze upon that singular truth- that science and religion are but different manifestations of the same reality.

Tuesday, 9 September 2008

Of Dogs and Gas Chambers

It was reported in the Sunstar newspaper website Cagayan de Oro [09 September edition] the termination of stray dogs by gassing them in chambers in the city pound. For a man's best friend to suffer such a painful death is an abomination. It should not be permitted. It is an inhumane way to terminate a dog's life. Is this how we repay all those countless moments when man's best friend makes him happy?

The city veterinarian claims that financial constraints- an injection putting a stray dog to sleep costs a lot of money. But this lack of budget could not justify by any means the way the stray dogs were killed in the city. The veterinarian even admitted it takes 40 long minutes for the dogs to die by carbon monoxide poisoning!

Dogs are renown for their loyalty. One goes home and find his dog at his doorstep, wagging its tail, and welcoming his patron with no other demands except perhaps a pat on its head. They guard our houses, act as guide dogs for the blind, and do other things that impact on the human life.Is this how we reward their loyalty to the human race?

My sister and I had several dogs when we were growing up. It was one way our parents enabled us to learn about actual responsibility.

In the United Kingdom, owning a dog entails a lot more responsibility. A person walking his dog or dogs is a common sight along its roads and vast parks during any time of the year. Some dog owners even hire professional dog walkers to walk their dogs. The dog walkers even bring with them plastic bags to pick up their dog poo to dispose the excrement properly. Once I saw a well-dressed lady picking up after his dog pooed. A scene like that you will never see in the Philippines. In my years residing in this country, I have never seen a stray dog.

The United Kingdom Royal Society for the Prevention of Cruelty to Animals [RSPCA] has been very active in its mandate to protect all animals with the participation of the people. It has a dedicated workforce that is worthy of admiration. I should know because of an incident. My wife and I were just settling in the house we bought. The house has a sizable backyard abutting an open space with mature trees and a number of squirrels in population. One bright summer afternoon, I heard a commotion in the backyard while making tea in the kitchen. I looked outside through the window and saw a grey squirrel lying on an elevated portion of the ground adjacent to the fence. I went out and approached the squirrel and found it was badly injured. I called the RSPCA and in fifteen minutes or so, an RSPCA officer knocked on our main door to take control of the situation. He softly and cautiously held the squirrel in his hands and placed it inside a box and took the box away. I am pretty sure that the squirrel would die eventually due to its serious injuries [maybe caused from a fight with another squirrel or from an attack by tomcats regularly prowling the area] but the point is the way the RSPCA speedily addressed my concern.

Filipinos have a lot of catching up to do in regard to treating our animals in life or in death. The creation of a more active workforce to implement animal welfare laws in our country and the education of our people about responsible animal ownership would be huge steps in the right direction.

Monday, 8 September 2008

Executive Privilege and the need for an ASEAN Court of Human Rights

In a decision dated 04 September 2008, the Philippine Supreme Court en banc, denied the Motion for Reconsideration filed by the Respondents in the case Romulo Neri v Senate Committee on Accountability, et al., G.R No. 180643. The Supreme Court upheld the argument of the petitioner Neri regarding Executive Privilege, thus giving him legal basis not to answer specific questions raised during the respondents' Senate committee hearing involving the allegedly anomalous government contract with a Chinese company Zhong Xing Telecommunications Equipment [ZTE] Limited for a national broadband service in the Philippines. Thus speak the highest court of the land.

As it always had been in these islands we call our beloved Philippines, the decision elicited varying degrees of reactions from lawyers and cause-oriented groups, among others, ranging from utter disbelief and vehement frustration to complete resignation. Some writers even appear to have derided the majesty and impartiality of the Justices of the Supreme Court by alluding to the fact that the justices who upheld petitioner's claim for executive privilege in the majority decision were appointees of the President Arroyo to the court, conveniently excluding the other fact that some of those who dissented to the majority decision were also appointed to the highest court by the same president.

Since classes in the graduate schools in the UK are yet less than two weeks away, I had the time, occasion and enthusiasm to read the full account of the main case decision as well as the decision on the motion for reconsideration. A lot of issues were involved in the reports but I must say I thoroughly enjoyed the experience.

And let me gingerly jump with trepidation into the cauldron of opinions about this matter.

First, the contract for national broadband network project negotiated by the Philippine government and the ZTE Ltd. is in the nature of a private contract considering that ZTE Ltd. is a publicly listed company. In other words, the negotiation was not between two sovereign states but between a government and a private company. Is it not a basic principle in Philippine constitutional law that a government takes on the mantle of a private individual when it enters into binding private contracts with private entities such as ZTE Ltd? Should executive privilege apply in this context especially with allegations of impropriety amounting to criminal acts?

But then, if indeed there were no underhanded negotiations in the botched broadband deal, why hide behind the skirt of the privilege? Why refuse open disclosure? It would have improved the otherwise battered image of the presidency and regain precious ground in the battle for the people's rapidly diminishing trust in the current dispensation and its leaders. All it does now is to fuel the smoldering ambers of suspicions and insinuations that something "fishy" indeed happened and only recourse to technical defences could exculpate responsible individuals from the bludgeoning hammer of truth.

Secondly, the three questions squarely raised by the Senate committee that led to the issue of executive privilege are, with due respect, a bit cheeky. It was like "taking the bait to the quarry". The motive to connect the president's office to the allegations of impropriety was all too obvious and reckless that any senior government official asked the same questions would wantonly shout, "mother!" and hide behind the shield of Executive Privilege. Incidentally, the Court categorically states the case was not about the right of the people to a full disclosure of public information but the right of the respondent committee to obtain information for the purpose of legislation.

Would the issue in this case be decided in the same way if instead of the Senate a taxpayer files a petition for the full disclosure of the facts surrounding the contract on the constitutional right to access to public information?

A petition for the disclosure of the circumstances confounding the issues founded on human rights would certainly further human rights jurisprudence in the country and test the waters as it were.

Executive Privilege draws its breath of life from the Doctrine of Separation of Powers in Constitutional Law. Derived from United States jurisprudence, it is a right claimed by the President of the United States and other officials of the executive branch of the government to withhold from Congress, the courts or individuals, information that has been requested or subpoenaed. It is also invoked to prevent executive employees or officials from testifying in Congressional hearings. The privilege was adopted and applied in Philippine jurisprudence in several landmark cases.

But is the concept of Executive Privilege absolute? I dare submit a position- that the answer depends on the kind of Supreme Court Justices holding court and deliberating on the issue. It is a question that appeals not only to their legal erudition but also to their individual conscience.

Situations like this where a decision of the Supreme Court leaves a bitter taste in the mouth makes more pronounced the need for an ASEAN Court of Human Rights. The ASEAN states are way behind other regions of the world in regard to human rights development and enforcement. In Europe, the Americas, and Africa already exist regional conventions on human rights providing an avenue for disgruntled parties to appeal decisions of state courts.

There have been several endeavours purposely to create such a convention. The Working Group for an ASEAN Rights Mechanism is a very good example. But there still is a lot of work to do.

Monday, 1 September 2008

To Sheathe or To Unsheathe: Much Ado about Condoms

There is much raging and gnashing of teeth, all about condoms, in the internet editions of Philippine newspapers and tabloids. How a plastic tubing that could even be used as birthday baloons and unguided water rockets elicit such frenetic and vehement exchange of comments has been mindboggling. It has been like a comedy of errors. Seriously....

Roman Catholic Bishops have strongly opposed the Philippine government's plan to distribute or easily make accessible condoms as well as dessiminate information of its use, among others, to combat the spread of AIDS causing HIV. The Bishops maintain this policy as one subterfuge for the ultimate government aim of population control [ The Filipinos, for all our peculiarities, stay true to the biblical blessing, " Go to the world and multiply.."]. That a condom's use in preventing AIDS causing HIV or other sexually spread diseases has not been substantiated by medical research as 100 per cent effective. The Church believes that the best way to avoid HIV/AIDS is abstinence from sex, behavioural change and monogamous partnership of men and women. Bless them....


Begrudgingly or not, the Church indeed has a sensible logic in its two-thousand year plus argument, dont you think? Freudian thought posits the desire for sexual pleasure as one of the oldest and most basic of urges that all humans feel. But if a male person thrust and fire his manhood indiscriminately, then repose his sword in many a naughty different scabbard, it is not rocket science, I dare say, that the risk of HIV/AIDS increase exponentially.


Indeed this government policy may encourage promiscuity among the younger generation and more frequent immoral adventures among the mature ones.


Incidentally, information about condom use is readily available in the internet and condoms could be bought in any reputable drugstore anyway, though buyers would often feel squeamish when buying condoms. So why the big fuss about it? If truth be told, there are a lot of Roman Catholics that have been using it already.


For me, this controversy between the Church and the government is an issue about human rights, i.e. the right to access to information in order to arrive at an informed decision, and religious dogma.


It is every person's human right to receive and access information relevant to an informed and educated decision-making. Even God, would most certainly agree. Isn't it that the biblical God made man [ or should I say, "person", in this politically correct world lest I will earn the righteous indignation of well-meaning feminists!] in His image and has given him a free will? So why would the Church censor information about condoms and restrain its faithful from deciding for themselves to use a condom or not?


I must say let it be done with. Let the faithful gain access to information about condoms. Let the faithful make an informed decision whether to use a condom or not. Wouldn't it strengthen the moral fibers of the Church if the faithful refuse to use condoms after being informed about its uses? The Church is a champion of human rights, is it not? So why oppose the exercise of such right?


The Roman Catholic Church in the Philippines must realize that it must adapt to changing norms of the present times or risk becoming irrelevant. The States of Italy, where the seat of the Roman Catholic Church in the Vatican is situated, and Spain allow abortion under specific circumstances are prime examples. The Church in these countries do not interfere with State affairs as much as the Philippine Catholic Church. As one exasperated colleague commented, " If the Philippine Catholic Church meddle with the Philippine State policies, let it pay taxes like secular companies!".


Make no mistake about it. I was baptized and brought up a Roman Catholic. I was a church acolyte in my hometown during my younger years. My parents are "cerrado" romano catolicos. I have a Bible on my bedside table that I consistently read while waiting to pass through sleep's dark and silent gate every night. And I have a firm belief that the Filipino people are capable of making informed decisions without fear of eternal damnation.