Tuesday, January 25, 2011

Legislative Bans to Protect the Environment : Are They Worth the Hassle?

CURRENT LEGAL CONCERNS
Elpidio V. Peria
23 January 2011

Legislative Bans to Protect the Environment :
Are They Worth the Hassle?


            The week that passed was full of news reports about the recent Muntinlupa City Ordinance that took effect January 18 2011  banning the use of plastic bags and polystyrene items (also known as styrofoam) as packaging materials. As an alternative, the ordinance, Ordinance No. 10-109, fosters the use of environment-friendly bags like those made of recycled and reusable materials like cloth.

            One of the rationale cited by the promoters of the ordinance was the fact that plastic bags do not degrade well and get mixed up in solid waste, and as the experience of typhoon Ondoy has shown, and others like it, have contributed to the clogging of esteros and other waterways in Metro Manila, leading to flooding and all the other miseries associated with it.

            It is hoped that with this ban, plastics will become less and less be  a part of the solid waste stream in Metro Manila, hopefully improving the flow in the waterways that are usually clogged.

            To ensure that this is followed through, the Metro Manila Development Authority (MMDA) issued a press release urging other local government units (LGUs) in Metro Manila to do the same.
           
            The Philippine Daily Inquirer noted that it is a landmark measure as it is the first of its kind in Metro Manila.

            First here means on the banning of plastics.

            Many years back, in the early nineties, I can recall then Green Forum, an environmental NGO based in Manila, advocating the use of “bayong” and other similar bags made of indigenous materials, to do away with plastic, especially in high-end groceries in Makati.
           
            Come to think of it, there were other similar local legislative measures banning other things, all  in the aim of protecting the environment. 

            We have an existing ordinance banning the entry, planting and even selling of genetically-modified organisms (GMOs) in the province of Negros Occidental, which evolved from a joint declaration by the two Negros provinces making  Negros Oriental and Occidental an “Organic Island” back in 2006 whereby organic  agriculture will be practiced, to tap the export markets for these types of products.

            Much earlier, if you will also call it that, as it has the same effect, is the moratorium on mining, in the province of Mindoro. I can't recall now which part of Mindoro was it but it was a 25-year moratorium, perhaps our readers will be so kind to update us what has happened to this legislative measure.

            A more recent moratorium is the indefinite ban on metallic mining in Romblom Province, the ordinance of which was signed only last January 10, 2011 by Romblon Governor Eduardo Firmalo.

            If you count the ban on smoking also as a measure to protect the environment, then we have gone this way before, with Davao City assiduously implementing it, with one municipal trial court judge even penalizing a lawyer for violating it.



            While we're at this, let us not forget the ban on open-pit mining here in South Cotabato which is still being opposed by pro-mining groups and those who stand to lose a large amount of income from mining.

            There is also an existing ban on fishing pelagic fish species, or those taken from the high seas going beyond the 15km limit currently imposed in the waters in South Central Mindanao agreed upon by our officials in the Bureau of Fisheries and Aquatic Resources with the Western Pacific Fisheries Commission, an inter-governmental body taking care of fisheries matters in Western Pacific  and the reason was that the fish stocks need this ban in order for the fish to grow to a size where it can reproduce and that the entire fish population can continue till the next generation, enough for it to be “economically useful” to the consuming public.

            It is also important to stabilize the already depleted fish stocks in the country.
           
            Ultimately, as this column asks -  these bans -  are they worth the hassle?

            It must be said that these bans starts out with good intentions, and with a serious purpose, in all types of legislative measures, a ban on something is tantamount to a death sentence or a maximum penalty on a certain activity.

            But there appears to be no serious study or evaluation if they have really attained their stated aims.

            Of course, the answer to this is that they have not been given the chance to work.

            The debate is clouded by complaints by those affected by the ban, either in the loss of livelihood and other existing trade and other benefits  existing prior to the ban.

            There should however be a serious evaluation, perhaps either by NGOs or academic institutions, especially those involved in public administration, to objectively assess these bans, when they are implemented,  and see if they really work, and if not, to find ways to remedy the situation it is also trying to solve.

            But to say these bans are useless should not be the way to go, they should be given all the chance to be effective, and after a certain period of implementation, if they are proven, after a serious study to really not work, then, by all means, it's about time to try something else.

            The Department of Interior and Local Government, instead of acting like a court giving its own opinion to LGUs on the legal merits of such bans, should rather instead study closely these bans while it is in effect, and recommend measures later how to regenerate the natural resources, which the ban seeks to achieve, among other things.

oOo

Sunday, January 16, 2011

Exploring Other Duty-Free Exporting Schemes

CURRENT LEGAL CONCERNS

Elpidio V. Peria
15 January 2011

Exploring Other Duty-Free Exporting Schemes
to Other Countries under GSP or GSTP Schemes

While DTI Usec Adrian Cristobal, Jr, in a Business Mirror online news article dated 13 January 2011 urged Filipino exporters to continue exporting to the US under its duty-free scheme called the Generalized System of Preferences (GSP) which even if it expired last December 2010 will most likely be renewed, Filipino exporters should also consider exploring the other GSP schemes of other countries, or the duty-free schemes among developing countries, called the Generalized System of Trading Preferences. (GSTP).

According to the UN Conference on Trade and Development (UNCTAD), the original international body tasked by the United Nations to tackle issues relating to trade and development, the GSP, is a scheme of preference-giving done by developed countries whereby “selected products originating in developing countries are granted reduced or zero tariff rates over the most favored-nation or MFN rates. The least developed countries (LDCs) receive special and preferential treatment for a wider coverage of products and deeper tariff cuts.”

The so-called most favored-nation or MFN rate is a rate that is provided by countries that are trading with each other, which means a preferential rate that is not usually given to countries that don’t have a trading partner relationship with such country.

Under the rules of the World Trade Organization, such concept has been enshrined as key principle of the global trading system whereby each country trading with each other are supposed to give such treatment to each other. There are other trading principles such as “national treatment”, among others, which can be discussed in later columns.

The UNCTAD website also notes that “the idea of granting developing countries preferential tariff rates in the markets of industrialized countries was originally presented by Raul Prebisch, the first Secretary-General of UNCTAD, at the first UNCTAD conference in 1964. The GSP was adopted at UNCTAD II in New Delhi in 1968”.

According to UNCTAD, there are currently “ 13 national GSP schemes notified to the UNCTAD secretariat. The following countries grant GSP preferences: Australia, Belarus, Bulgaria, Canada, Estonia, the European Union, Japan, New Zealand, Norway, the Russian Federation, Switzerland, Turkey and the United States of America.”

Checking further the GSP handbooks from the same website, the Philippines is a beneficiary of GSP schemes of Belarus, Canada, EU, Japan, New Zealand, Norway, Russia, Switzerland, Turkey, and of course, the US.

In the case of Australia, the trade preferences given out by this country could be seen in the recently signed EU-ASEAN Free Trade Agreement, of which the Philippines is a signatory, being an ASEAN member country.

Exporters therefore should consider also the possibility of exporting to these countries as they are also eligible for duty-free or low-tariff preferences in these countries. It might be useful for them to consult further the websites or embassies of these countries here in the Philippines for the details of these trade preferences, which may either include duty-free entry of export products to these countries or preferential tariff rates.

The Global System of Trade Preferences among Development Countries or GSTP, meanwhile is also another trade preference agreement among developing countries, of which Philippines is an original signatory on April 13, 1988, with 48 developing countries, in then unified Yugoslavia.

A check on the GSTP website within the UNCTAD website shows that as of 1989, a total of 43 countries have provided their tariff concessions to members, including, as a matter of surprise considering their developed-country status now, South Korea and Singapore.

The GSTP is a South-South trading scheme that predated the WTO trading system, thus it remains, on top of the developing countries’ respective commitments in the WTO.

Data from UNCTAD’s trade analysis unit show that intra-GSTP exports are growing faster than GSTP countries’ exports to the rest of the world, where between 2000-2005, intra-GSTP exports increased by 50%, while exports by GSTP to the rest of the world increased by 39%.

Total GSTP exports to the world (2005) were 17.5% of total world exports or 48.7% of total DC exports to the world.  Total exports from GSTP to the rest of the world totaled $1.8T in 2005.

oOo

Sunday, January 9, 2011

Appointing Election Losers After the One-Year Election Ban

CURRENT LEGAL CONCERNS

Elpidio V. Peria
10 January 2011

Appointing Election Losers After the One-Year Election Ban
– Who Loses, Who Wins?

Losing VP Candidate Mar Roxas recently figured in this weekend’s news cycle because President Noynoy Aquino recently indicated he is willing to appoint him as his “trouble-shooter”, what with the lackluster performance of some of his people in Malacanang, with the exception only perhaps of Sec. Leila de Lima, who, among all his appointees, had favorable approval ratings when 2010 ended.

The appointment of Mar brings to the fore a lot of issues, but given that this is already 2011, this will become a regular staple of news items eventually this year, as the lapse of the one-year election ban approaches, and we will more or less get to see what will eventually happen to those Liberal Party candidates or other allies of the President who lost in the May 2010 get appointed to positions in government.

To enable Juan and Juana dela Cruz make sense of where this election ban comes from, and whether will it really work for his or her own good or that of the losing candidate, it may be useful to examine again this ban item and assess who benefits or who loses in the implementation of this legal provision.

The one-year election ban derives from the Local Government Code, specifically in sec. 94 (b) thereof,which states:

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such election, be appointed to any office in the government or any government-owned or -controlled corporations or in any of their subsidiaries

So, those who ran in the recent barangay elections in October 2010 and lost is not under a one-year ban from being appointed in Pnoy’s government.

The prohibition is from being appointed to (a) any office in government; (b) any GOCC or (c) any subsidiaries of these GOCCs.

My copy of the Local Government Code dating back from my law-school days show a notation in the provision from the my law professor on the subject, UP College of Law local government law expert. Prof. Samilo Barlongay, who indicated that such prohibition is unconstitutional. I can no longer recall the reason why but consulting the 1987 Constitution indicates that the relevant prohibitions on appointment relate only to : (a) the appointment of elective officials to appointive positions (art. IX, sec. 7); (b) appointive officials being appointed to more than one position (art. IX-B, sec. 7); and (c) members of the armed forces from being appointed to certain positions in government (art. XVI; sec. 5(4).

The one-year election ban appears to have no constitutional basis, though a specific law, the Local Government Code, has provided it. Searching the relevant law websites do not indicate that this issue has been questioned before the Supreme Court thus it subsists, and there is further interpretation on how it may apply given specific facts.

There are policy reasons, however, for the ban, since losing candidates in an election can be recycled immediately after election though the harsh fact is that the public has rejected the fellow for the said elective position, thus, the fellow’s consolation prize is an appointive position. In the US, if they have such an election ban, then Hillary Clinton would not have been appointed Secretary of State by then 2008 US Presidential election winner Barack Obama.

The rationale it seems is to let the losing candidates think twice about getting back to public service so soon, or perhaps not let the losing candidate use his perks from the appointive office to pay back his election debts so soon.

But perhaps the one-year ban may be too short; a ban of two years may already be futile as the year after is already an election year, and the losing candidate may, in all likelihood, just use his position to prepare for another run in public office.

The flipside of doing away with the ban is that the public may no longer be deprived of the sterling qualities of the losing candidates. But the fact that the candidate lost in an election is already an indication of the public’s perception of the person’s fitness to public office. In spite of what the public thinks, all these losers will be appointed anyway, and there are reports that some losing Liberal Party Senatoarial candidates are already throwing their weight in line agencies to which they are in line to assume office come July 1 this year. A year therefore is too short for the ban to be useful in attaining its policy objectives.

So, who wins in the one-year election ban? It seems nobody, except perhaps the losing fellow who eventually will get appointed anyway. But nobody also loses, as the public is not deprived of the services of a person who was already rejected in an election, though. Ultimately, however, this one-year ban should just be done away with, to be replaced by a permanent ban for the duration of the term of office of the appointee. This is to give the chance for all Filipinos to be appointed, and also to strengthen the civil service. It should not be littered by political has-beens and also-rans. No one can be a better judge of fitness for public office, except the voters themselves, for as long as their votes were not bought, but that’s another column, for another day. What will the losers do? Well, with their clout and connections, in the Philippine setting, they can always enter showbiz! In that way, they will be more visible come next election cycle…

oOo
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