I consider the recent Supreme Court decision voiding the “Tripartite Agreement for Joint Marine Seismic Undertaking (JMSU) by and among China National Offshore Oil Corporation, Vietnam Oil and Gas Corporation and Philippine National Oil Company” as a subtle reminder to our negotiators to comply rigorously with the constitutional safeguards (1) subjecting the exploration, development, and utilization (EDU) of our natural resources to “the full control and supervision of the State,” and (2) limiting such EDU only “to Filipino citizens, and corporations or associations at least sixty (60) percent of whose capital is owned by such citizens.” These safeguards are sacred and must be complied with strictly and faithfully.
THOUGH UNDER THE TERMS OF THE JMSU, the Chinese and Vietnamese companies were allowed to conduct only “pre-exploration activities,” the Court went beyond the literal words used, delved into the parties’ intent, and held “that it is clear that the JMSU was executed for the purpose of determining if petroleum exists in the Agreement Area.”
“That the Parties designated the joint research as a ‘pre-exploration activity’ is of no moment,” continued the Court. “Such designation does not detract from the fact that the intent and aim of the agreement is to discover petroleum which is tantamount to ‘exploration.’”
THE PHILIPPINE PANEL CURRENTLY NEGOTIATING the “Joint Development” with China on the natural resources in our exclusive economic zone (EEZ) in the South China Sea (SCS) should, IMHO, also consider the 12-2-1 decision, penned by Justice Samuel H. Gaerlan, as a reminder of how far they could give in to Chinese demands.
And equally important, the Chinese panel should take it as a message that the Philippine panel is powerless to go beyond what has already been drafted in the memorandum of understanding (MOU) of the parties as of February 2022.
As pointed out in my column on Dec. 5, 2022 (titled “Chinese cooperation to extract our EEZ wealth”), “Quietly, Chinese and Philippine diplomats have tried for three years to conclude an MOU. Vitally, China had reportedly agreed that ‘the oil and gas operations shall be subject to the laws of the Philippines’ provided the MOU ‘shall not be interpreted as a renunciation by either party of any right relating to the SCS, or a recognition of or support for the other party’s position with regard to any claim relating to the area.’”
I respectfully submit that this simple provision satisfies the strict constitutional safeguards on “full control” and “citizenship.”
NOW THAT THE CHINESE PANEL HAD BEEN SUFFICIENTLY MADE AWARE of these safeguards and of the limitations on the authority of the Philippine panel, it should, in my humble opinion, now agree to finalize the draft MOU. A Chinese refusal to recognize this message of our Supreme Court can be taken to mean that China is not really interested in a speedy conclusion of the “Joint Development” of our EEZ wealth. Given that the negotiations had long been ongoing, it is difficult to understand why the Chinese want to set aside the draft MOU and begin anew from the very beginning. This procrastination smacks of just “dribbling the ball and refusing to take a shot,” a wasteful tactic already rejected in basketball-crazy Philippines.
Consequently, if such procrastination continues, I will not fault our President should he revert to his stand in late November 2022 that our country may abandon government-to-government talks and “find other ways” to address this “small matter to China [which] for us, is something huge. So, we need to fight for it and benefit from it…”
In looking for other ways, the Philippines may turn to its traditional ally and partner, the United States which may be all too willing to enter into a reasonable MOU that faithfully honors our constitutional safeguards. Such an MOU will give a reason for the US to deploy permanently 24/7 its powerful armed forces in our EEZ in the guise of implementing the MOU, and enforcing the PH-US Mutual Defense Treaty which can be interpreted to include an attack on a Philippine Coast Guard vessel in our EEZ as an attack on the Philippines.
AS A RELEVANT ASIDE, my pal Eddie Yap, the indefatigable private sector advocate of the Edsa Busway, texted me: “CJ, why did it take 15 years to decide a constitutional issue which is pretty straightforward even to lay persons?” My answer: There are many reasons for the delay which I will take up when I have the space. Meanwhile, please take comfort in the coincidence that the delayed ruling turned out to be a timely reminder to our negotiators—as well as a message to China—on the constitutional limits in the EDU of the natural resources in our EEZ.
MY CONDOLENCES to the family of the late Ambassador Manuel M. Lopez. He was an amiable diplomat, a hardworking business executive, a loving husband, a dedicated father, a humble billionaire for others, a dear friend, and a faithful disciple of our Lord Jesus. May he rest forever in the peace, joy, and love of our Father in heaven.