Will Marcos dare defy the Supreme Court Tuesday ruling declaring “unconstitutional” the Joint Marine Seismic Undertaking entered in 2005 by Gloria Macapagal Arroyo with China and a hesitant Vietnam by pursuing exploration for oil and gas in the West Philippine Sea?
With the Supreme Court’s ‘unconstitutional’ ruling last Tuesday of the Joint Marine Seismic Undertaking (JMSU) signed between the Philippines, China and a hesitant Vietnam in 2005 under Gloria Macapagal-Arroyo, should the Marcos administration pursue exploration negotiations with China on the South China Sea (nee West Philippine Sea).
The Department of Foreign Affairs said it would carefully study the SC’s decision voiding the tripartite JSMU agreement among state-owned oil companies of the Philippines, China and Vietnam involving the 142,886- sq. kms area in SCS, of which 80 percent of JMSU site is within eh Philippines’ 200-mile exclusive economic zone.
DFA Secretary Enrique Manalo, explained the bilateral relations between the Philippines and China, saying that oil and gas were “basically one aspect of the relationship.”
The DFA is currently crafting parameters for future oil and gas exploration negotiations, in keeping with President Marcos’ express desire to resume negotiations on joint oil and gas exploration in WPS—which Duterte began in 2018 but terminated in 2022.
The DFA’s statement said its actions and policy recommendations “are anchored on the Philippine Constitution and laws. Cases decided by the SC form part of our legal system, and the Department is duty-bound to take applicable cases into consideration in any future discussion with China on oil and gas.”
China has maintained that the JMSU “played an important role in promoting stability, cooperation, and development in the region. It was an important step by the three countries to implement the DOC (Declaration on the Conduct of Parties in the South China Sea) and a useful experiment for maritime cooperation to the SCS, ” Chinese Foreign Ministry spokesman Wang Wenbin said Wednesday.
China said it remains committed to properly handle maritime disputes in SCS with countries directly concerned, including the Philippines, through dialogue and consultation, and to actively explore ways for practical maritime cooperation including joint exploration,” Wenbin said.
Despite the high court's ruling, he said Beijing will continue to actively explore ways for “practical maritime cooperation,” including energy exploration with Manila.
Fishers group
Pamalakaya, a fisherfolk group, said SC’s decision strengthens calls against any efforts to revive such negotiations. “The Marcos administration should adhere and recognize this ruling by way of actively asserting our sovereign rights against China’s aggression,” it said Thursday.
“We now have two strong legal bases to assert our territory; the International Tribunal on the Law of the Sea that recognizes our exclusive economic zone in the West Philippine Sea, and the SC decision declaring the unconstitutionality of joint venture with China,” Pamalakaya pointed out. “The Marcos administration has no reason not to actively uphold our national sovereignty.”
The decision
Voting 12-2-1, the Court en banc ruled that the JMSU is unconstitutional for allowing wholly- owned foreign corporations to participate in the exploration of the country’s natural resources without observing the safeguards provided in Section 2, Article XII of the 1987 Constitution.
The said provision mandates that the exploration, development, and utilization (EDU) of natural resources shall be under the full control and supervision of the State.
Then Bayan Muna Party-List Representatives Satur C. Ocampo, Teodoro A. Casiño, and former Senator Teofisto Guingona III filed the petition before the SC in 2008 assailing its constitutionality.
Petitioners argued that the JMSU was illegal as it allowed foreign corporations wholly- owned by China and Vietnam to undertake large-scale exploration of the country’s petroleum resources, in violation of the of the Constitutional provision which reserves the EDU of natural resources to Filipino citizens or corporations/ associations owned 60 percent by Filipinos.
They added that even if the agreement is merely for a pre-exploration activity all the data and information acquired in the implementation of the agreement shall be jointly owned by the parties, a clear proof that the Philippines has conceded or forfeited its ownership over the country’s petroleum and other mineral oils.
The agreement covers 6 islands claimed and occupied by the Philippines in Spratly such as Pag-asa Island, Likas Island, Lawak Island, Kota Island, Patag Island and Panata Island.
Named respondents in the petition were then president Gloria Macapagal-Arroyo, her executive secretary Eduardo Ermita, her DFA and DoE secretaries and the Philippine National Oil Co. (PNOC) and the PNOC-Exploration Corp.
The Court, noting that the term “exploration” pertains to a search or discovery of something in both its ordinary or technical sense, ruled that the JMSU involves the exploration of the country’s natural resources, particularly petroleum.
That the Parties designated the joint research as a pre-exploration activity is of no moment,” as it does not detract from the intent and aim of the agreement to discover petroleum, which is tantamount to exploration, the Court said in a decision penned by Associate Justice Samuel H. Gaerlan
Chief Justice Alexander G. Gesmundo and 10 other Associate Justices concurred with the ruling. Associate Justice Amy C. Lazaro-Javier and Associate Justice Rodil V. Zalameda dissented, while Associate Justice Ramon Paul L. Hernando was on leave and did not take part.