The journey of a thousand (nautical) miles that began with a single case

By Atty. Jose Mari BFU Tirol

(The author is the dean of the College of Law of the University of San Agustin)

Many years ago, the previous administration filed a case to assert our claims in the West Philippine Sea (which is not the same as the South China Sea, in the same way that the Philippine Sea on our eastern seaboard is not the same as the Pacific Ocean). If it did not, we would eventually be considered to have accepted China’s view, and thus waived whatever rights we have over the WPS.

But the previous administration did file a case. And it proved our case.

Of course, China has its own view of the arbitral ruling. So what? It is not uncommon for the supposedly Communist heirs of the Middle Kingdom to have self-centered views about a lot of other people (the Uyghurs, the Tibetans, and the Taiwanese), places (Xinjiang, Tibet, and Taiwan), and things (COVID19).

Will we just sit idly by and twiddle our thumbs, pity ourselves since the 5-year old ruling in our favor has not automatically resulted in our gaining/regaining possession of the disputed features in the WPS, and blame the previous administration for filing the case? If we do, then we would be doing exactly what China wants: for us to accept and to normalize its view. Is that what we really want?

Thankfully, retired Supreme Court Justice Francis H. Jardeleza, our Solicitor General and Agent during the arbitration case, has requested the President to certify to Congress that it “enact an amendment to Republic Act 9522, and legislate a new Baselines Law, consistent with the award … having an appropriation in the incoming General Appropriations Act appropriating certain amounts to advance to protect the gains of the arbitration award,” in order to provide our Coast Guard and armed forces with a detailed piece of legislation, a clear textual basis for when they assert their authority to foreign vessels.

His view is different from that of retired Supreme Court Justice Antonio T. Carpio, who was also a member of our arbitral team, who said that legislation would not be practical, as “it is better to name, and to state the coordinates and description of these geologic features, in a Presidential Proclamation.”

Their differing opinions on whether to approach the problem thru a law a passed by Congress or thru an administrative proclamation issued by the Executive is democracy at work. The full expression of opinions in the free market of ideas, especially by lawyers, will necessarily result in discussion, deliberation, and debate. Nevertheless, their dissonant voices concerning their recommended approaches to the issue should not distract us from the fact that they share the same goal: the enforcement of the arbitral ruling in our favor, thru the Rule of Law.

As the Supreme Court said in Jardeleza v. Sereno (2014), concerning J. Jardeleza’s handling of the arbitration case: “Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the legal community. A lawyer has complete discretion on what legal strategy to employ in a case entrusted to him provided that he lives up to his duty to serve his client with competence and diligence, and that he exert his best efforts to protect the interests of his client within the bounds of the law.”

Nobody said it would be easy to prove our case. Yet we did. And nobody said it would be easy to enforce the ruling. However, law and the Rule of Law are not about what is easy, or even about what is popular. They are about what is right and just.

The previous administration, our good Justices, and their comrades-in-law have given us a priceless gift that is infinitely more valuable than the $34 million worth of bananas that Lucy Torres is worried about: the affirmation by a competent international body, and of many nations, that we have inalienable rights in the WPS.

The case, and the arbitral award, were the first of the many steps that we have to take to assert our legal rights over, and to secure what is legally ours in the WPS. Our good Justices continue to take the cudgels for us, because the unfortunate hesitancy of the chief architect of our nation’s foreign policy. Which raises questions about whether he will act on their requests to either certify to Congress the amendment of the Baselines Law, and/or to issue the relevant presidential proclamation. While we await his (in)action, we must remain vigilant about the sugary words and sinister moves of China and its surrogates and advocates.

We have a long way to go in this journey that is not just about the WPS, but about nation-building. Which should be led by a chief architect who advocates a foreign policy that promotes our interests, and recognizes the rights of other states. But not at our expense.

Our journey continues. Padayon.