I was pleasantly surprised the other week to read a recent column by former Chief Justice Art Panganiban, where, to paraphrase, he ended by counseling his fellow jurists not to disrespect the prerogatives of the Executive.
Notwithstanding his avowed judicial activism and his often pro-PNoy politics, it was good to note that the former CJ still remembers, and abides by, first principles.
Unfortunately, the same can’t be said for the honorable Senior Associate Justice Antonio Carpio, who of late—perhaps out of boredom with his non-CJ-befitting duties—has taken upon himself the additional burden of instructing a mere mayor from Davao City how to run this country.
Carpio was the only non-PNoy appointee among the four justices who voted against former President Arroyo, thereby outdoing the two PNoy appointees who did vote to release her from detention.
Was his exceptionalism purely the product of his brilliant intellect, and not at all influenced by the bad blood that grew over the years between him and the lady President who gave him and The Firm all the breaks during happier times?
Not likely, to say the least. But it should reassure us that Carpio is not afflicted by any inclination towards excessive gratitude—or, perhaps, any kind of gratitude at all.
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Right now, Carpio is confining his unsolicited advice to Duterte to foreign policy issues, specifically our troublesome relationship with China. But tomorrow, who knows where he’ll be going with this?
Sagacity unchallenged is sagacity unbounded. Let’s try and parse what he’s been saying.
When Duterte let slip in public that Chinese President Xi had threatened to go to war over our maritime dispute with them, Carpio immediately jumped on his soapbox.
1. “The threat of China to go to war against the Philippines…is a gross violation of the UN Charter, UNCLOS, and the Treaty of Amity and Cooperation in Southeast Asia!”
2. “As a nation that…has renounced war as an instrument of national policy, the Philippines’ recourse is to bring China’s threat of war to another UNCLOS arbitral tribunal!”
3. “The President has the constitutional duty to use all legal means under international law to protect Philippine EEZ!”
4. “The President cannot simply do nothing, or worse, acquiesce to China’s action, for inaction is the opposite of protecting Philippine EEZ!”
[Quotes taken from this newspaper, the Inquirer, and the Philippine Star last Sunday]
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Notice how cleverly the honorable Senior Associate Justice dissembles. This non-lawyer columnist would beg to point out the following:
1. The Chinese threat could be up to fourth-hand information: first, as issued by President Xi; second, as translated by his interpreter; third, as filtered through Duterte’s understanding and recollection; and lastly (if Carpio simply read about it) as reported by some online or offline source.
Are we being asked now to go to court—let alone to war—over a fragmentary third- or fourth-hand statement?
2. In part because of our Constitutional renunciation of war, one legal way to respond to any threat from Xi is, as Carpio proposes, to go back to UNCLOS for another ruling. BUT it is also perfectly legal, as Duterte has decided, to first try out exhaustive diplomatic consultations, whether multilateral or bilateral.
Both approaches are legal. So why is Carpio’s choice the only correct one, while the President’s choice amounts to “doing nothing”?
3. Carpio implies very clearly that Duterte’s “inaction” will somehow weaken or invalidate the earlier UNCLOS ruling in our favor. By contrast, the President, in his usual earthy fashion, says the ruling “will be there for all time and it will always bug China.”
So who’s right between the two? To be specific: Is Carpio willing to go on the record and tell us that, yes, there’s some kind of statute of limitations on the UNCLOS ruling?
Because right now, what Duterte’s obviously doing is to use that ruling as part of his diplomatic armory, in his own way and his own time, instead of relying exclusively on legal theory or the courts.
That’s what Presidents are elected to do. It’s not what Supreme Court justices are supposed to do.
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If Carpio is really getting bored with just being a Supreme, here’s a short list of things out in the real world that he and his colleagues could work on:
One, unclog the dockets of case backlogs and find ways to speed up the work of the courts. The judges should be tired by now of hearing that “justice delayed is justice denied.”
Two, stop the odious practice of issuing temporary restraining orders over the slightest excuse. This abuse of judicial privilege for a heady taste of Executive power may suit some judges, but it will screw up the infrastructure-building plans that drive DuterteNomics.
Three, prepare for the run-up to a federal and parliamentary make-over of government by studying how the judicial system can likewise be appropriately reorganized. For example, there may be not one, but three supreme courts: One to rule on Constitutional issues alone, a second to handle disputes between the States, and a third to review regularly-appealed decisions as per current practice.
These are all exciting and meaningful reforms for someone like Carpio to sink his teeth into, so that he can leave the President alone to do his job as well.
Readers can write me at firstname.lastname@example.org.