Aquino’s SC appointees lean toward Duterte in West PH Sea case

Lian Buan
Justices Estela Perlas Bernabe, Francis Jardeleza, and Benjamin Caguioa seem inclined to dismiss the petition that accuses the Duterte government of neglect in the West Philippine Sea

SUPREME COURT associate justices Estela Perlas Bernabe, Francis Jardeleza, and Benjamin Caguioa  

MANILA, Philippines – Three of the 4 remaining Aquino appointees to the Supreme Court appeared to lean toward President Rodrigo Duterte in a petition that accuses his government of neglect in the West Philippine Sea.

Associate justices Francis Jardeleza and Benjamin Caguioa, who both served in the executive branch during Benigno Aquino III’s presidency, said the petition has procedural flaws.

Caguioa even called the petition “asking for the impossible.”

The petition, filed by fishermen of Kalayaan and Zambales, wants to compel the Duterte government to prosecute Chinese fishermen who were found to have intruded and poached in Philippine waters in 2012, 2013, and 2014. 

The Hague ruling, which invalidated China’s historical claim of a 9-dash line in the West Philippine Sea, also declared the ecological damage caused by China.

The petition says that there is a continuing neglect because, given the Hague ruling, the Duterte government can pursue prosecution under the Philippine Fisheries Code, but is just choosing not to.

Jardeleza, who was Aquino’s solicitor general during the arbitration, said the violations are not continuing. He said the petition is not specific enough in its allegations and in respect to what it wants to happen.

“As the government is arguing, your petition fails to state cause of action, and that’s not a technical matter, it is a matter of due process of law. It should be dismissed because you deprive the respondents the ability to answer,” said Jardeleza.

Jardeleza asked whether Aquino officials, such as himself, were at fault too. (READ: Justice Reyes: Instead of West PH Sea, spend on Pasig river)

“As far as the prosecution of those responsible are concerned,” said Chel Diokno, one of the lawyers for the fishermen.

The other lawyers are the counsels of the Integrated Bar of the Philippines (IBP), represented by international law professor Andre Palacios in the oral arguments.

Diokno eventually clarified that the Aquino administration was being cautious because the arbitration was still ongoing during their time. In contrast, he said, the Duterte administration has the benefit of the Hague ruling, which it has chosen to set aside in exchange of better relations with China.

“The present respondents should take action because the tribunal’s decision is already out, there’s nothing there to pause an issue for, and they should continue enforcement of our laws,” said Diokno.

‘Asking for the impossible’

Caguioa, who both served as presidential legal counsel and justice secretary for Aquino before being appointed to the Supreme Court, said the petition was “asking for the impossible.”

“Are you not asking for the impossible – 2012, 2013, 2014 for these vessels that may no longer be there, and you cannot even certify as a fact that they are still there? Are you not asking the impossible?” said Caguioa.

Caguioa pointed out that while the fisheries code recommends imprisonent against foreign intruders, the United Nations Convention on the Law of the Sea (Unclos), which the Philippines is a signatory to, says penalties should not include imprisonment.

I think, your honor, it would still have value that these criminal complaints be filed by the Bureau of Fisheries and Aquatic Resources if needed. It would record the criminal violations of the foreign poachers,” said Palacios.

But Caguioa said a record already exists in the form of the arbitral ruling.

Although Diokno and Palacios insisted that they were not asking for the enforcement of the arbitral ruling, but rather domestic laws, Caguioa said the petition was inevitably tied with the Hague decision.

“You’re using that as an evidence, so you see I’m not getting it, I’m really not getting it,” said Caguioa.

“If it’s just a matter of prosecuting fishermen, I think the return of the writ has already shown the efforts of the respondents of complying to environmental laws. If you’re saying that that is not enough, that they should file cases against the people who are found by the arbitral tribunal, those inside the ships, are you not asking the impossible?” added Caguioa.

Associate Justice Estela Perlas Bernabe said the government would not be able to prosecute perpetrators because the petition failed to identify them.

“The intruders into our shores, are you definite that they are Chinese? They can even be Malaysians, Vietnamese, or even Filipinos,” said Bernabe.

Only Associate Justice Marvic Leonen, the ponente of the case, appeared to lean toward the petition, even comparing Duterte’s tough approach when it came to protecting Boracay and Manila Bay.

“He closed down an entire island, and in the entire island he made the remediation measures…. If the President can do that for Boracay, why can’t he do that in the West Philippine Sea, is there something he’s afraid of?” Leonen said. 

Solicitor General Jose Calida, who represents the Duterte government, will present in the resumption of oral arguments on July 9 at 2 pm. – Rappler.com

 

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.