By Ado Paglinawan, Part 4 (Conclusion)
Our lawyers have gone wild twisting our laws.
We have to wise up to restore law and order in our society from the beholders of political power and the very top of our institutions.
In the landmark quo warranto case removing Maria Lourdes Sereno who had usurped the position of Chief Justice of the Supreme Court, ponente Noel Tijam wrote in the final decision:
“No one is above the law and the Constitution, not even a Chief Justice who took an oath to protect and defend the Constitution and obey the laws of the land. The Court in Francisco, Jr. v. The House of Representatives, says it tritely – ‘the Chief Justice is not above the law and neither is any other member of this Court.’
“All public officers whether in the Executive, Legislative or Judicial departments are bound to follow the law. If public officer violates the law, he or she shall suffer punishment, sanctions and adverse consequences.
“The obligatory force of the law is necessary because once we allow exceptions, concessions, waiver, suspension or non-application to those who do not want to follow the law, nobody else will obey the law.”
The above Tijam classic is an elaboration of the maxim of Roman law “dura lex sed lex” meaning “the law is harsh but it is the law”. As such, however regrettable the outcome of the legal decision may be, the law must be proclaimed and enforced.
Sereno’s predecessor, Renato Corona, the 23rd chief justice of the Supreme Court of the Philippines, was also removed from office, however, by impeachment by the House of Representatives on December 12, 2011. The Senate, convened as an impeachment court, began the trial a month after.
On May 29, 2012, Corona was found guilty of article two of the articles of impeachment filed against him pertaining to his failure to disclose to the public his statement of assets, liabilities and net worth.
None of the charges against Corona was proven; it was largely a political vote by 20 senators who after the exercise, allegedly met at the house of Senator Loren Legarda to pick up their pork barrel estimating P50 million each as earmarked by President Noynoy Aquino.
Sadly, our justice system has been corrupted!
The rule of thumb is that everything which is not forbidden is allowed – a legal maxim expressing a general power of competence. Commonsensically. citizens are generally free to act in a democracy “unless prohibited by law”.
Prohibitions can be “Malum in se” (an act that is inherently evil or wrongful in itself like murder, stealing or adultery) or Malum prohibitum (an act that are not inherently evil or wrong but only wrong because those acts were prohibited by statute and punishable by law.)
Our ensuing discussion is primarily concerned with malum prohibitum.
Article XVIII, Section 25, of the Constitution states that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except (1) under a treaty duly concurred in by the Senate and, (2) when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, (3) and recognized as a treaty by the other contracting State.”
The letter of the operative policy is “shall not be allowed”.
As this is a malum prohibitum at the level of the Constitution, only Constitution itself can provide exceptions.
The letter of the Constitutional exemption is “and”. Not “or”.
As such no lower regulation, be it enabling legislation by Congress or executive order by the President, or any ordinance below the Constitution, can be used to allow it.
In the case of Enhanced Defense Cooperation Agreement, the Senate did not concur, the people never ratified, and the contracting state, the United States, never recognized it as a treaty.
This is why I am now questioning the interpretation of the Supreme Court that the executive agreement between the Philippines and the United States is constitutional.
As earlier quoted, the Constitution is explicit in prohibiting military bases, troops or facilities in the Philippines. EDCA even violate the expressed exemptions under which they could be allowed – there is no treaty, no act of Congress ratified by a referendum and lastly no recognition by the other contracting state.
Pray tell me, how can an executive order reverse the Constitution? For that matter even an act of legislation by Congress requires all of the stringent qualifying exemptions to be present. Mark that the operative preposition in the caveat is not “or”, but “and”.
The distractive debate on whether the American military presence in the Philippines is temporary or permanent, and whether they are merely Americans in Philippine bases, are irrelevant.
That EDCA as an executive agreement is merely an implementation of the Mutual Defense Treaty is also lame, because the MDT itself was never ratified by the Senate of the United States, the other contracting party.
Again sadly, this is where the malevolent lawyer found the loophole.
This has come with utmost significant today because ever since EDCA bases have been allowed since 2014 by a so-called executive agreement, and closer to the territorial disputes between China and the Philippines, and the provocations of the Americans involving Taiwan, such bases could serve as a magnet for retaliatory missile attacks by China or North Korea.
Note closely that the birth of EDCA already fell under the watch of Maria Lourdes Sereno, the only chief justice in our history to be removed as she was found quo warranto not qualified for the post, thus ab initio, or from the very beginning which made her term a usurpation of authority.
This is why many have suspected that the same sitting president, BS Aquino III, once again lobbied for the passing EDCA, as he did for the impeachment of Corona, and used more than his charm to be able to achieve his intended results.
Many faces in the Supreme Court have so far changed.
The hot constitutional issue today is this Joint Venture between China and the Philippines on oil and gas exploration.
This time there is no malum prohibitum.
Former foreign affairs secretary Teodoro “Teddy Boy” Locsin in unilaterally terminating negotiations with the Chinese, justified his action – “But not at the price of sovereignty, not even a particle of it.”
I have gone back and forth Article XII Section 2 that he cited, and I cannot locate any portion where sovereignty is compromised.
The pertinent text follows “All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated.
“The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. xxx”
“xxx The State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
“xxx The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. xxx”
As I have said it in my previous discussions in this issue, the whole Section may even apply to the uniqueness of the facts on the ground regarding China and the Philippines “sovereignty” of Reed Bank/Recto Reef where the exploration is to take place.
The spot is disputed territory.
On the issue of sovereignty and territorial waters, China has a claim on the basis of the nine-dash line which illustrates its historical and legal rights in the South China Seas particularly the Nansha/Spratly Islands.
In 1978, the Philippines however occupied on the basis of international law’s principle of “terra nullius” what it now calls Kalayaan Island Group, in whose quadrant delimitation, by Presidential Decree 1596, Reed Bank has been included as within its 200-mile limit as an exclusive economic zone.
From the start therefore, neither country can effectively claim ownership, so Article XII Section 2 may even be inapplicable to the issue of the joint venture.
Even the United Nations Convention of the Laws of the Seas (UNCLOS) to which China and the Philippines are signatories and ratifiers, cannot also be applicable because exclusive economic zones do not protrude or overlap with sovereign territories of another country. Besides EEZs are not automatic and the Philippines still has to apply, process and get awarded by the United Nations, just as it secured the Benham Rise east of the Philippines.
The malicious attempt of American saboteurs to use an Arbitral ruling at The Hague released in 2016 adds more confusion to the debate because it was activated on the basis on UNCLOS. By its charter UNCLOS and the ipso facto (by itself) and afortiori (with more reason) the much-touted Hague arbitral both have no jurisdiction over sovereignty issues and thus its opinion declaring illegal the nine-dash line is totally misplaced.
“That arbitration was not even an arbitration because there was only one participant”, testifies veteran and distinguished Philippine diplomat Rosario Manalo. It concerned two parties the Philippine and China, both signed UNCLOS but opted out of its provisions on compulsory arbitration, she added.
Stéphane Dujarric, spokesman for the UN Secretary-General, also officially denied the United Nations had anything to do with such arbitral ruling.
So, I have therefore proposed excluding lawyers from this negotiation for the Joint Venture involving the Reed Bank. My reason I simple, many of our lawyers cannot function outside Philippines jurisprudence particularly constitutional law.
The appointment of Locsin to foreign affairs is one of the terrible mistakes of the past administration, because the boy has no competence in international law. He doesn’t even have creativity to form novel legal theories.
This joint venture has qualities beyond our domestic, municipal and national laws. That is why I have forwarded applying the concept of “joint sovereignty” and submitted the Sea Treaty of Timor-Leste and Australia as templates.
If the Supreme Court can allow an Enhanced Defense Cooperation Agreement that is subject of malum prohibitum and also inimical to our national security, why can we not have a joint oil and gas exploration with China, that is allowed by law and with for the obvious benefit of the Filipino people who is the absolute sovereign?
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