Philippines "Down Under": Negotiating the ASEAN-Australia-New Zealand FTA

A number of treaties are now being negotiated by the government in its effort to promote trade liberalization. One of these is the ASEAN-Australia-New Zealand Free Trade Agreement (AANZFTA) that is expected to be concluded by the end of the year. Surprisingly, different Non-government Organizations got said information not from Philippine agencies but from the information available in the websites of New Zealand and Australia.

We’ve learned that this agreement will be comprehensive in nature and it will cover liberalization of investment, government procurement, competition policy and trade facilitation which will result to an unfair agreement as it threatens to eliminate the remaining powerful tools the Philippines still have in order to protect and develop its own domestic industries. The negotiation also seeks to eliminate all forms of barriers to trade including preferences given to Filipinos. The agreement seeks to give access to Australian and New Zealand miners the right to explore, develop and utilize Philippine natural resources as the agreement seek to give national treatment to these two countries.

New Zealand and Australia are demanding no limitation on the schedule of trade in services. The services offers of New Zealand and Australia seek 100% ownership and control of foreign investment opportunities in the Philippines which is against the pertinent provisions of Philippine laws. No 100 % ownership and control is allowed under Philippines laws in advertising services, public utilities, practice of engineering, architecture and mining, the practice of law, accountancy, and environmental planning, agriculture, fisheries, forestry, and education which are the services interests of the two foreign countries.

Question is, are consultations to domestic stakeholders being made by the government? How come that our government cannot provide said information about the negotiation if New Zealand and Australia can?

In the recent decision of the Supreme Court in AKBAYAN vs. Aquino in the disclosure of the JPEPA, the Supreme Court said that diplomatic negotiations are recognized as privilege in this jurisdiction. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

What will warrant a strong public interest to overcome the privileged status of diplomatic negotiations? Based from said decision, it can be viewed that strong public interests can be shown only by those whose functions involve the right to be involved in treaty-negotiation. If we will study our law, and based on the decision, it says that negotiation is the sole power of the President. If that is the case, will there ever be a situation that other people will be involved in treaty-negotiations?

In light of the negotiation of the AANZFTA, what will happen now to the people’s right to participate at all levels of social, political and economic decision-making? How do we build a strong showing of need that will overcome the privileged status of diplomatic negotiations? How do we do effective and reasonable participation during the negotiation of treaties such as the AANZFTA?