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The National Broadband Network (NBN) deal — Just as this Administration has tried to justify its many government projects and even its own legitimacy, it is again obvious to many Filipinos that we are again being taken for a ride.

With conflicting reports coming in from all of our usual suspects, it seems that the Arroyo Administration has been scrambling from day one to find a way to push this deal through. As I have said, the latest ploy is of course having the National Broadband Network (NBN) deal under the umbrella of an Executive Agreement, which, according to our very insightful Justice Secretary Gonzales, is legal.

But suppose the deal is legal, because somehow, maybe, the Administration can manufacture the papers for the Executive Agreement, then another thought comes to mind. Shouldn’t we investigate the Executive Agreement itself? This loophole, it seems, is ripe for misuse, and because of its lack of oversight, and Senate Approval, can be used in even more future “Executive Agreements”.

Isn’t this the job of lawmakers? Not knowing much about “Executive Agreements”, I would have to confer with lawyers on this. But I suggest that maybe, just maybe, we should severely limit the scope of this type of agreement. It’s very concerning that during this National Broadband Network issue, no one has keyed in on this “Executive Agreement”.

This Executive Agreement was actually brought about by an Executive Order during the Fidel Ramos Administration. But, let’s not spew the only in The Philippines slogan again. Executive Agreements have been in use long before all of us were born (unless of course, you’re over 100 years old).

MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES

EXECUTIVE ORDER NO. 459

PROVIDING FOR THE GUIDELINES IN THE NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS RATIFICATION

WHEREAS, The negotiations of International agreements are made in pursuance of the foreign policy of the country.

WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of 1987, provides that the Department of Foreign Affairs shall be the lead agency that shall advised and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations.

WHEREAS, Executive Order No. 292 further provides that the Department of Foreign Affairs shall negotiate treaties and other agreements pursuant tom the instructions of the President , and in coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification of international agreements by the different agencies of the government.

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order:

SECTION 1. Declaration of Policy. - It is hereby declared the policy of the State that the negotiations of all treaties and executive agreements, or any amendment thereto, shall be coordinated with, and made only with the participation of, the Department of Foreign Affairs in accordance with Executive Order No. 292. It is also declared the policy of the State that the composition of any Philippine negotiation panel and the designation of the chairman thereof shall be made in coordination with the Department of Foreign Affairs.

SECTION 2. Definition of Terms.

A. International agreement shall refer to a contract or understanding, regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in single instruments.

B. Treaties - international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.

C. Executive Agreement - similar to treaties except that they do not require legislative concurrence.

D. Full Powers - authority granted by a Head of State or Government to a delegation head enabling the letter to bind his country to the commitments made in the negotiations to be pursued.

E. National Interest - advantage or enhanced prestige or benefit to the country as defined by its political and/or administrative leadership.

F. Provisional Effect - recognition by one or both sides of the negotiation process that an agreement be considered in force pending compliance with domestic requirements for the affectivity of the agreement.

SECTION 3. Authority to Negotiate. - Prior to any international meeting or negotiation of treaty or executive agreement, authorization must be secured by the lead agency from the President through the Secretary of Foreign Affairs. The request for authorization shall be in writing, proposing the composition of the Philippine delegation and recommending the range of positions to be taken by that delegation. In case of negotiations of agreements, changes of national policy or those involving international arrangements of permanent character entered in to the name of the Government of the Republic of the Philippines, the authorization shall be in the form of Full Powers and formal instructions. In case of other agreements, a written authorization from the President shall be sufficient.

SECTION 4. Full powers - The issuance of Full Powers shall be made by the President of the Philippines who may delegate this function to the Secretary of Foreign Affairs.

The following persons, however, shall not require Full Powers prior to negotiating or signing a treaty or an executive agreement, or any amendment thereto, by virtue of the nature of their functions:

A. Secretary of Foreign Affairs,

B. Heads of Philippine diplomat missions, for the purpose of adopting the next of a treaty or an agreement between the Philippines and the State to which they are accredited;

C. Representative accredited by the Philippines to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

SECTION 5. Negotiations.

A. In cases involving negotiations of agreements, the composition of the Philippine panel or delegation shall be determined by the President upon the recommendation of the secretary of Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.

B. No treaty or executive agreement, or any amendment thereto, shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultations with the member of the negotiating panel.

SECTION 6. Entry into Force and Provisional Application of Treaties and Executive Agreements.

A. A treaty or an executive agreement enters into force upon compliance with the domestic requirement stated in this Order.

B. No treaty or executive agreement shall be given provisional effect unless it is shown that a pressing national interest will upheld thereby. The Department of Foreign Affairs, in consultation with the concerned agencies, shall determine whether a treaty or an executive agreement, or any amendment thereto, shall be given provisional effect.

SECTION 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. - The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall them be returned to the Department of Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties regardless of their designation, shall comply with the requirements provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be require

Consequently, it was last year that there was wide speculation that this Administration would try to make the JPEPA an “Executive Agreement”, thus not having to have it be ratified by the Senate.

I have a few early articles relating to the JPEPA, if anyone is interested:

1. Introduction to JPEPA
2. Cayetano: JPEPA to Face Rough Sailing in The Senate
3. Palace To Review JPEPA on Toxic Wastes
4. ROXAS: SENATE TRADE COMMITTEE TO MEET ON JPEPA
5. Pimentel and Madrigal Submits Resolution on JPEPA

It seems like this is becoming a habit to shove down the throat of the The Filipino People, deals that it does not want.

Also, with regards to Executive Agreements and the JPEPA fiasco, Blurry Brain, has an interesting article on the JPEPA and some insights into Executive Agreements.

The Supreme Court, citing the case of Altman vs. U.S. (224 U.S. 583) in USAFFE Veterans vs. Treasurer of the Philippines (105 Phil 1030), held that an ‘international compact negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is a treaty internationally, although as an executive agreement it is not technically a treaty requiring the advice and consent of the senate’.

The Supreme Court also held in Commissioner of Customs vs. Eastern Sea Trading that treaties (which will require Senate concurrence for validity) generally refer to basic political issues, changes in national policy and permanent international arrangements; while executive agreements (which do not require such concurrence) refer to adjustments of detail carrying out well-established national policies, and temporary arrangements.

The Supreme Court, it must be emphasized, ruled in the USAFFE case that ‘international compact[s] negotiated between the representatives of two sovereign nations and made in the name and or behalf of the contracting parties and dealing with important commercial relations between the two countries, is an executive agreement‘ not requiring the advice and consent of the Senate. This ruling was further made clear in Adolfo vs. CFI, whereby the Supreme Court declared executive agreements as those which ‘cover such subjects as commercial and consular relations, property relations like parent rights, trademark and copyrights, postal, navigation, settlement of private claims, tariff and trade matters’.

But the safeguards on whether or not a deal can be classified as an Executive Agreement is very weak,

Under Memorandum Circular No. 89, Office of the President, it is provided that, in case there is a dispute as to whether or not an international agreement is purely an executive agreement, the matter is referred to the Secretary of Foreign Affairs who will then seek the comments of the Senate Representative and the legal adviser of the Department, and after consultation with the Senate leadership, the Secretary of Foreign Affairs shall then, on the basis of his findings, make the appropriate recommendation to the President.

And of course, with The Department of Justice stressing that an executive agreement does not fall under R.A 9184 (Government Procurement Reform Act) which basically has all procurement activities going through public bidding, it is no wonder why I’m a on the edge when it comes to Executive Agreements.

Lastly, I suggest that with regards to these loopholes, especially in the light of The President’s plan for her upcoming dream Pork Barrel Projects involving the Super Regions, that laws be legislated on the matter of procurement so that these be specifically made to pass through the Senate as well as maybe a Congressional Committee. Limiting the President’s power in executing these “Executive Agreements” will insure that indeed, we still have a fair amount of check and balance on all matters, especially when it comes to taxpayer’s money.

tags: JPEPA