Tag Archives: Carpio

Itu Aba: An Inside Track

itu_aba_ge1I guess it’s inevitable that the issue of Itu Aba would surface yet again in the wake of the Philippines’ resounding victory in the South China Sea Arbitration. As I noted in that earlier post detailing what we won before the Arbitral Court, the island — occupied by Taiwan — was a sore point between Justice  Francis Jardeleza (and his successor at the Office of the Solicitor General, Prof. Florin Hilbay), and Justice Antonio Carpio. The latter (with Chief Justice Sereno)  even went as far as opposing the former’s appointment to the Supreme Court because of  Jardeleza’s stance when he was Solicitor General. For background, click here and here.

A few days ago, Rappler came out with a piece recalling the Jardeleza-Hilbay tack on their alleged Itu Aba “miscalculation.”

Hilbay, now back at his old professor’s perch at the UP College of Law (funny, Jardeleza, Carpio and Sereno all served as professors at the College at some point in their legal careers), wrote a retort to Rappler’s rap. Rappler duly reported on his retort here.

This morning, I received a text from Prof. Hilbay expressing his reservations about the treatment his written statement had received in the Rappler news item. I  obtained a copy of his statement and am posting it below, for your own benefit and appreciation:

(A PDF file of the statement and the Memorandum mentioned in it may be downloaded here).

 

21 July 2016 UP College of Law

Response to Ms. Hofileña and Ms. Vitug
By: Prof. Florin T. Hilbay, former Solicitor General (Philippines v. China)

I respond to Ms. Hofileña’s and Ms. Vitug’s Rappler piece accusing me (and Justice Francis Jardeleza) of “miscalculation.”

First. I do not suppose the writers consider themselves experts in the law of the sea, much less official participants with personal knowledge of the West Philippine Sea litigation. I am therefore amused at the accusatorial tone they have taken on previously undisclosed legal strategy which, in fact, resulted in an overwhelming victory. Whether they are adopting the opinion of any person officially or unofficially connected with the case is also not stated. I am therefore left to respond to conclusions based on gossip, even as they were written by people I consider respectable journalists.

Second. In the coming months and years, the nation will have an opportunity to look under the hood of this magnificent legal accomplishment. Thankfully, given the positive legal result, the challenge will be about proper documentation and accurate narration of how this result came about, not about who should be blamed for what. The room is big enough and the pages of history books (or even Facebook) sufficiently spacious to toast the contributions of women and men privileged enough to have had a direct or indirect connection with the case. The bucket can accommodate decent human beings, and there’s no need to reduce oneself into a crab.

Third. Given the magnitude of this case and the multi-layered controversies surrounding it, I consciously adopted a policy of keeping documents and having multiple witnesses. This should eliminate erroneous factual claims and reduce subjective elements in the narration of the history of this case, which I intend to write. I saw myself simultaneously as a participant and an observer. As the former, my goals were to achieve an efficient win, reduce the impact of potential losses, and protect the President. As the latter, I was an excited case biographer.

Fourth. I saw the Itu Aba issue as belonging to the baskets where there was a need to reduce the impact of a potential loss and protect the President. By now, people should be aware that the Itu Aba issue is one where the entire team’s level of confidence was not at its highest. This explains why that feature was not included in our “complaint” in the first place. My discomfort with the treatment of Itu Aba figured prominently in a 2014 Memorandum I sent to Executive Secretary Paquito Ochoa, Jr. and Chief Presidential Legal Counsel (now Justice) Alfredo Benjamin Caguioa. This should be remarkably self- explanatory, and an interesting read.

I invite Ms. Hofileña and Ms. Vitug to reveal any other 2014 “official communication” from me to Malacanan.

Fifth. Ms. Hofileña and Ms. Vitug have a wildly mixed-up sequencing of events, which is to be expected from those who do not have official documents or had no direct and personal knowledge of events. Let me take the cudgels for them on one critical decision- point.

In the hearing on the merits last November 2015, the Tribunal made the Philippines grapple with a hypothetical: what happens if a feature (Itu Aba) were declared an island under UNCLOS (which therefore generates an Exclusive Economic Zone of 200 nautical miles from its coastline)? The original, proposed answer was that the Tribunal would retain jurisdiction to control, by some means, the conduct of the parties “pending agreement on delimitation or joint development arrangements.” I thought this was both novel and strange. This was the first time this theory was broached, and the proposal to softly offer “joint development arrangements” if we lose on the Itu Aba issue was problematic.

Witnesses to the agent’s discussion with foreign counsel, assuming they’re not deliberately forgetful, will remember two important points I repeatedly emphasized—

1) Commit to the wave. I did a short lecture on how surfers are able to catch big waves. Itu Aba is a wave we absolutely needed to catch, and we should not signal to the Tribunal that we think we might lose. We needed to focus our firepower on winning that issue instead of sheepishly offering “joint development arrangements” for when we lose. We should not, therefore, telegraph our punches.

2) Avoid impression of selling out. The Philippines, in this litigation, should not be seen as offering “joint development arrangements” as a second option or a compromise. For myself, I was particularly worried about being seen as inserting a very specific economic incentive as trade-off for losing the Itu Aba question. I told everyone “I will not be the Solicitor General who sold this case to China.”

Those who were in that meeting were former Secretary of Foreign Affairs Albert Del Rosario, Justice Francis Jardeleza, Justice Antonio Carpio, Ambassador Jaime Ledda, Deputy Executive Secretary Menardo Guevarra, and the entire contingent of Foley & Hoag.

In the aftermath of that meeting, foreign counsel strengthened (even more) the arguments on Itu Aba, dropped “joint development,” and recast the Philippines’ post-loss scenario to not make it appear we were not confident about winning Itu Aba.

At the conclusion of the hearings, Paul Reichler and Bernard Oxman (who delivered the wonderfully powerful speech for that hypothetical) thanked and congratulated me for my intervention. On my flight back home to Manila, I emailed Prof. Oxman: “I am serious when I tell you that your speech on the third day will probably be remembered as one of the most important speeches on the South China Sea disputes, and I’ll surely remind everyone of that fact.”

I think we won the Itu Aba issue because everyone from the Philippine side and the foreign counsel’s side was professional enough to realize that our occasional disagreements in this case could lead, rather thankfully, to compromises over our strongly held opinions. Fortunately, the brew was sufficient to convince the Tribunal that our arguments on the various submissions were correct.

Moving forward, I think the wise attitude here is to celebrate the victory, not malign anybody’s contribution. Justice Jardeleza, always fond of quoting JFK, would usually remind me that victory has a thousand fathers, but defeat is an orphan.

I couldn’t care less if this victory had a million parents.

-30-

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Filed under International Law, ITLOS, Nine-Dash Line Claim, PCA, Philippines, South China Sea, Uncategorized, UNCLOS

The Next Chief Justice

By Romel Regalado Bagares

Forty four days after it commenced the impeachment trial of Chief Justice Renato Coronado Corona, the Senate handed down a guilty verdict on a 20-3 vote, marking for the very first time in the history of our Republic that its highest magistrate was removed from office through an impeachment.

Under the leadership of Senator Juan Ponce Enrile, the Upper House stayed the course through the many distractions occasioned by the trial and showed to Filipinos that the constitutional design for its institutions can indeed work – and how.

An overwhelming majority of senators, crossing party lines, agreed that Attorney Corona had indeed violated the public trust when he failed to declare in his Statement of Assets, Liabilities and Networth (SALN) some US$ 2.4 million in four dollar accounts and another P80 million in five peso accounts.

As the Judicial and Bar Council (JBC) – the constitutional body tasked to nominate to the President candidates to judicial vacancies – begins its deliberations to look for a Mr. Corona’s replacement, many informed sectors of society are asking whether President Benigno Aquino III will be appointing as the next Chief Justice someone affiliated with The Firm.

Just as quickly, media were awash with items defending the record of The Firm –and its former partner, Attorney Corona’s arch enemy at the High Court, Associate Justice Antonio Carpio, perhaps one of the more intellectual occupants of the High Court in recent years, and now its  most senior magistrate.

In fact, one of the arguments put forward by supporters of Attorney Corona to the general public was that his conviction would mean the return of the Firm into the high places, by way of Carpio’s ascension in the former’s stead to the post of Chief Magistrate.

Attorney Corona’s supporters wished to remind people that until recently, the Firm was up there in the corridors of power, until it had a falling out with the Arroyo administration in the last few years of Mrs. Gloria Macapagal-Arroyo’s reign of political terror.

There too was the yarn on Hacienda Luisita – stated for the record by Attorney Corona himself on the witness stand at his impeachment trial – that President Aquino wanted him removed from his office in retaliation for the Supreme Court’s ruling awarding much of the Cojuangco-controlled Hacienda Luisita to farmers.

Another tact was to link the outcome of Transportation and Communication Secretary Mar Roxas’s election protest against Vice President Jejomar Binay now pending before the Presidential Electoral Tribunal – which happens to be chaired by the Chief Justice – to a guilty verdict in the impeachment trial.

If Corona lost, so the argument went, Mr. Roxas, who is represented by The Firm in the protest proceedings, is sure to win his protest against the Vice President, because that would mean President Aquino, who supports his party mate’s electoral protest, will now be able to appoint as Chief Justice Mr. Carpio. Presumably, Carpio will take it from there and maneuver the proceedings in the PET to Mr. Roxas’s satisfaction, or that at least, is how the argument went.

But Vice President Binay’s allies in the Senate were unconvinced, as all of them voted to convict Attorney Corona. If some pundits were to be believed, they weren’t looking farther than 2013, when the midterm elections takes place. In other words, they were paying more attention to what the public was saying about the disgraced Chief Justice here and now than to an event that is still far into the horizon.

For its part, Malacanang has repeatedly stated that President Aquino is open to appointing a court outsider to the Office of the Chief Justice.

President Aquino now has an opportune chance to prove all his critics wrong and he would do well not to waste it. Already, his two most recent appointments to the High Court were seen as uninspired by many observers who wanted heavy weights, or at least, appointees of the intellectual and moral caliber of his very first appointee, Associate Justice Maria Lourdes Sereno.

By tradition, Associate Justice Carpio has the edge over other potential candidates. And he is not without his supporters outside of his former Firm, who say that the President will do better to follow this time the rule of tradition in the High Court.

But “tradition” this time around carries with it a darker meaning, given the current political configurations. It would mean putting into the post of Chief Justice someone who carries a lot of political baggage with him that it could wear down President Aquino himself.

But the day he appoints a Chief Justice who has no ties to any of the political parties is the day we will have moved farther towards a polity where what counts most of all is not political or familial ties but the public interest. With one stroke, he will have silenced his critics on all three issues: Hacienda Luisita, Mar Roxas, and the Firm.

Of course, judicial independence should not solely be defined by the lack of any political leanings or connections on the part of a magistrate. Instead, our notion of judicial independence must be founded on the conviction that judges owe fidelity to no one else but the norms of justice.

In the words of the late Dutch jurist and philosopher Herman Dooyeweerd, our courts’ proper functioning must be measured according to how they’re able to meet the demands of “public justice. ”

It is of the kind not dictated by private interests or political affiliation or political patronage but by genuine regard for what properly and rightfully belongs to the different spheres in society.

Where we are right now, this all sounds like utopia.

But come to think of it, we’ve already done the unimaginable: impeach, try and hold guilty of violating the public trust a sitting Chief Justice. From there, our next bold step into the future should be a little easier.*

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This essay first appeared in my weekly column for the Iloilo City-based The News Day.

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Filed under Impeachment, Supreme Court