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[av_heading heading=’‘Keep your faith in the rule of law’’ tag=’h3′ style=’blockquote modern-quote’ size=” subheading_active=’subheading_below’ subheading_size=’15’ padding=’10’ color=” custom_font=”]
BY GLENDA SOLOGASTOA
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ILOILO City – Supreme Court (SC) Associate Justice Francis Jardeleza shared his personal story about “integrity and keeping faith with the rule of law” with the members of the Integrated Bar of the Philippines (IBP) – Western Visayas region at the start of the lawyers’ regional convention at Hotel del Rio yesterday.
Jardeleza, the keynote speaker, titled his speech “Integrity, Itu Aba and the Rule of Law in the West Philippine Sea Arbitration.”
“Every experience will carry with it its own lessons, each one as important as those of the person sitting next to you. It is, I believe, in the sharing of, and learning from, these experiences that we help move our profession just that bit nearer to our common aspiration, that of a legal system based on respect for the rule of law,” Jardeleza told the lawyers.
Jardeleza aspired for a seat in the Supreme Court but his application was blocked by the Chief Justice and a Senior Associate Justice on the ground that he lacked integrity, citing his handling of the Republic’s West Philippine Sea arbitration case against China.
According to Jardeleza, Chief Justice Ma. Lourdes Sereno and Senior Associate Justice Antonio Carpio disagreed with a decision on legal strategy that he made in the case filed against China.
In the arbitration case, the Philippines had four principal submissions and what they knew as causes of action under the Rules on Civil Procedure. One of the submissions related to the status of certain features in the West Philippine Sea.
Under the United Nations Convention on the Law of the Seas (UNCLOS), Jardeleza explained, there were three kinds of land features: an island (ex. Luzon island), a rock (ex. Scarborough Shoal) or a low tide elevation (ex. Subi Reef, before China introduced improvements to convert it into an artificial island).
Status determines right to the adjacent sea, Jardeleza explained. An island would be entitled to a 12 nautical miles (NM) territorial sea and a 200 NM economic zone. A rock, on the other hand, would be entitled to a 12 NM territorial sea while a low tide elevation would not be entitled to anything.
The Philippine submission was part of a low-risk strategy, purposely designed to protect the country’s interest in Scarborough Shoal and Reed (or Recto) Bank, said Jardeleza. It was limited to eight features (occupied either by the Philippines or by China) which were either low-tide elevations (like Subi Reef) entitled to nothing or, at most, rocks (like Scarborough Shoal) entitled to more than a 12 NM territorial sea.
“I called it a low-risk strategy because it presented what the team thought as an ‘acceptable’ worst-case scenario, that is, any or all of the features we included in the suit would be declared rocks entitled to a 12NM territorial sea. Otherwise stated, we were confident that none of the features we identified would conceivably be declared an island (as defined under UNCLOS) capable of generating a 200 NM EEZ. More importantly, none of the features we identified would be capable of generating a 200 NM to overlap with our EEZ and put Reed Bank at risk,” Jardeleza.
THORNY ITU ABA
However, said Jardeleza, toward end of 2013 and a few months before the Philippine Memorial was due, the country’s foreign counsel Paul Reichler from Holey Hoag recommended that they amend their submissions to include Ayungin Shoal, Pagasa plus four Philippine-occupied features and Itu Aba, a feature located just outside the Philippines’ EEZ and occupied by Taiwan.
Fast forward, the Philippine legal team which Jardeleza headed and reported directly to then Executive Secretary Paquito Ochoa, readily agreed to amend the country’s claim to include Ayungin Shoal, which they asserted to be a low-tide elevation.
However, amending to include Itu Aba was an entirely different matter, said Jardeleza.
He said the Philippine team was unanimous in deciding against amending the country’s submission to include Itu Aba and four other features occupied by the Philippines.
“We explained to Mr. Reichler that doing so would deviate from the low-risk strategy that permeated the filing of the arbitration, that the risk posed by the inclusion of Itu Aba was not acceptable,” Jardeleza explained.
In March 2014, Reichler and his team proposed to include 14 paragraphs into the Memorial which would mention that Itu Aba, even as it was the largest high tide feature in the Spratly Islands, was incapable of sustaining human habitation or economic life of its own of which Jardeleza argued against.
The conflicting positions were discussed with then President Benigno Aquino III wherein he decided to defer to the advice of the foreign counsel.
On March 30, 2014 Jardeleza said the Memorial was filed including the 14 paragraphs mentioning Itu Aba.
INTEGRITY
“Little did I realize that my actions concerning the mention of Itu Aba in the Memorial would later be used to impugn my integrity to block my nomination to the Court. The charge against me centered on a memorandum relating to a judgment call made at the highest level of government,” said Jardeleza said.
In refusing to include Itu Aba in the claim, Jardeleza asked, did we in fact do the right thing?
“For my part, I can assure you that I acted only in the best of intentions. Did I act with integrity? I would like to believe so, even if in the end the President chose to go another way,” Jardeleza maintained.
Eventually, the arbitral tribunal unanimously decided that Itu Aba, like Pagasa, was a rock that does not generate an entitlement beyond a 12 NM territorial sea. Thus, the Reed Bank is securely within the Philippines’ EEZ.
“This astounding win for the Philippines, and for President Aquino, merits a story by itself about the role of the Rule of Law under international law. The promulgation of the decision also allowed me to talk, publicly and for the first time, about the integrity issue raised against me in the Judicial and Bar Council (JBC) during my nomination to the SC. I have chosen to break my silence about this issue in my home town, before you, because it is here in Iloilo where the foundations of the integrity I have tried to embrace under a life in the law were first nurtured,” Jardeleza said.
The team had many agreements and a few disagreements, but Jardeleza said they all worked as band of patriots blessed to play a role in the making of history.
Jardeleza was accused of betraying national interest when he pressed for the deletion of the Itu Aba information from the memorial.
Carpio raised the matter as a question on his integrity before the JBC. Sereno joined Carpio in opposing Jardeleza’s nomination.
“I kept quiet, even if I was being called a traitor. I did not respond. Why? Because if I had confirmed that we were fighting about Itu Aba, what do you think the Chinese intelligence would have done? It would have meant you were confirming that we were scared. So I kept my peace,” Jardeleza said in a Philippine Daily Inquirer report in July this year.
Jardeleza said the hurtful allegations caused him sleepless nights but he held on to the discipline of keeping mum.
“My only complain is, just because we disagree, I’m seen as less loyal to my country… Do not say the other guy is less patriotic than you are. We are all patriots,” he said.
UP CLOSE AND PERSONAL
“The meaning of the Rule of Law became so personal to me in a way I never imagined. I was close to professional death, an inglorious end to a career I worked so hard to nurture. It is an experience I would not wish on anybody,” Jardeleza said yesterday.
For him, the Rule of Law prevailed as the SC decided to allow his name to be placed in nomination and President Aquino appointed him to the Court.
“You spend a whole lifetime building a reputation worthy of your parents and of your family. When my integrity was attacked, I knew I had to fight back, if only to clear my name. But, at that time, as agent of the Republic of the Philippines to the arbitration, I had a duty to keep the confidences of my client. I was sworn to keep sensitive secrets about our litigation’s strategy and tactics affecting the arbitration. One does not telegraph them to the opponent. Considering its sensitive nature, I could neither deny nor confirm the existence of the leaked Foley Hoag memorandum, much less discuss its content. To do so will reveal the reasons for – the positions taken by the government to the possible prejudice of our success in the arbitration. Thus, at that time, I was constrained to put up a defense purely on due process grounds and hope that the rule of law would prevail,” revealed Jardeleza.
The Ilonggo Associate Justice said he shared his story “because I want to share with you, from real life experience, how we can deal with opportunities and challenges and act in ways to ensure a legal system based on the Rule of Law…I hope though that by sharing with you my story, you would encouraged to continue keeping your faith in the Rule of Law,” Jardeleza told the Western Visayas lawyers./PN
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