Tuesday, April 28, 2015


THE 26th Asean summit meeting is slated to happen next week in Kuala Lumpur, Malaysia. High on the agenda would very much likely be a discussion on China’s massive “reclamation” activities in the South China Sea (SCS). How the Asean leaders will tackle the ongoing disputes in the upcoming meeting will apparently have regional and international implications and will also prove the relevance of the regional grouping.

China’s accelerated construction activities in recent months in the SCS have further intensified the ongoing maritime disputes between China and its Southeast Asian countries, particularly the Philippines and Vietnam. The “reclamation” activities have not only complicated the nature of the ongoing disputes at the expense of other claimant countries, but also signaled China’s growing military assertiveness in order to consolidate its strategic ambitions in the area.

China’s ongoing construction activities will fortify its already expansive presence in the contested areas, fulfilling Beijing’s broader strategy of dominating adjacent waters, particularly vital Sea Lines of Communication such as the South China Sea. More seriously, the construction activities could very well pave the way for the establishment of a Chinese Air Defense Identification Zone in the area which will pose serious consequences for freedom of navigation and flight in the area.

It is evident that China is now faced with a fairly serious challenge of how to deal with international reaction to its massive island reclamation in general and with its impact on the upcoming Asean summit in particular. Only a few months ago, Chinese officials dismissed the mounting protests from the Philippines about this island grabbing and said they were simply acting within their sovereignty and were merely improving the living conditions of Chinese personnel stationed the area. But when top US political and military officials joined the criticism, particularly when President Obama and Defense Secretary Carter made strong statements against China, Chinese officials had no choice but to provide a more detailed explanation in an attempt to defuse the growing international condemnation.

The recent statement from the G7 summit has contributed to the international pressure on China. Though it did not directly mention China by name, the G7 statement mentioned the issue of maritime security in the SCS for the first time and criticized unilateral acts such as island reclamation which seek to change the status quo in disputes. It also supported the use of international dispute settlement mechanism to resolve such issues.

Given the growing international criticism over China’s island grabbing or reclamation, the focus of international attention will now shift to the upcoming Asean summit. It is expected that the Asean leaders will not only express serious concern over China’s unilateral activities but also come up with a concrete action plan which could mobilize international support for a peaceful solution to the dispute. The Asean leaders are also expected to reiterate the need and urgency in forging an agreement on a binding Code of Conduct which has been stalled by China.

So there will probably be a fierce diplomatic battle that will ensue at the Asean summit and it remains to be seen what the outcome will be. However, hopes are high that the Asean will prove its relevance when it comes to a common challenge for the whole region.
I, for one, am glad if the Supreme Court will throw out that silly idea that if a politician wins an election, whatever sins or crimes he has committed are wiped off life’s slate and he is as pure as a new born. Why should reelection absolve an official from administrative liability? Or put another way, isn’t it about time that the doctrine that voters give the crooks and the other erring officials a clean slate when they give them their jobs back? In fact, most voters are mainly unawares of what the politicos are really doing.

Chief Justice Maria Lourdes Sereno gave the lawyers of Makati City Mayor Junjun Binay a dressing down during the second round of oral arguments on Tuesday on the power of Ombudsman Conchita Carpio Morales to suspend the Makati mayor.

She scolded Binay’s lawyers for insisting that an official, once reelected, may no longer be made to answer for administrative violations.

In a lengthy and heated exchange with Binay lawyer Sandra Marie Olaso-Coronel, an angry Sereno confronted her former law student with the possible implications of her argument that the doctrine of condonation covers the Makati mayor.

“This is the kind of legal regime you want us to propagate? We believe that this is wrong and you are telling us to continue along that doctrine?” Sereno told Coronel in an interpellation that lasted for more than an hour.

Coronel could barely respond.

“You will insist on a rule of procedure that will wreak havoc on our constitutional framework?” Sereno said, as she reminded Coronel that as a professor at the University of the Philippines College of Law, she taught her students the virtue of honesty and integrity.

Sereno considered the Binay camp’s position an affront to the Constitution and to future generations of Filipinos, and the kind of governance that jurisprudence would allow.

“It is the duty of this court to promote honesty and integrity in public service, because the Constitution is, first and foremost, our most important document and covenant that we must uphold,” she said.

“Because if we uphold your theory, we are basically going to say, with respect to all those laws, those offenses and those penalties, they cannot apply to reelected officials. That is what you’re asking us to do,” Sereno said.

The principle invoked by the Binay lawyers–which Sereno described as an “unfortunate doctrine … based on bad case law”–effectively extinguishes a reelected official’s administrative liability from alleged wrongdoing during a previous term.

The doctrine came from a ruling in a 1959 case involving the mayor of San Jose, Nueva Ecija province, in which the Supreme Court ruled, based on American jurisprudence, that the mayor was to be effectively absolved from administrative charges by virtue of reelection.

Binay’s lawyers invoked the doctrine to challenge a March 11 order from the Ombudsman putting Binay under preventive suspension pending an investigation into his alleged involvement in the irregularities in the construction of the Makati parking building.

The Court of Appeals stopped Morales’ suspension order with a temporary restraining order on March 16, prompting the Ombudsman to raise to the high court her jurisdictional conflict with the appellate court.

Sereno was joined by Associate Justices Antonio Carpio and Estela Perlas-Bernabe in raising the possibility of reviewing the condonation doctrine.

The Chief Justice said the Ombudsman-Binay case that is before the court now was “a chance to make up.”

“So if we want to fight corruption, this court will have to make a strong stand for honesty and integrity,” she said.

Carpio said the 1959 doctrine was established under the guidance of the 1935 Constitution.

But Binay’s lawyers argued that the high court was barred from even reviewing this doctrine.

“The opportunity to revisit the doctrine of condonation will have to await a proper case filed before this court … when an error of judgment is alleged in an appeal,” Coronel said.

But Carpio said the power to condone is a constitutional power of the President.

“We should revisit it because the power to pardon in administrative cases is a constitutional power of the President, which we cannot usurp. So it’s a good ground to revisit that doctrine,” he said.
Carpio said the foundation of the doctrine was the 1935 Constitution, but the 1987 Constitution has become much stricter about public accountability.

He cited Article XI of the 1987 Constitution, which stipulates that “public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency; act with patriotism and justice, and lead modest lives.”

Carpio said this provision meant that “public officials can be accountable at all times,” even after the end of their service.

“The issue now is, ‘Can this court say to the people of Makati that we are granting [them] the power to pardon? Can we do that?” he asked.

The 1959 doctrine says the high court has done so, Carpio said, so “we should probably review it.”

The last to interpellate in the four-hour-long oral arguments on Tuesday, Sereno directed both the lawyers of Binay and the Ombudsman to “measure the condonation doctrine” against “the Filipino soul.”
Sereno showed a 63-page slide show, breaking down all the evidence that the Ombudsman has so far gathered against Binay, laws governing administrative liabilities of local government officials, and jurisprudence on administrative cases against local officials.

In her presentation, Sereno also cited the magnitude of public funds that local officials handle–P389.8 billion for disbursement this year and P341.5 billion in 2014–and the kind of impact that condonation would have if officials were allowed to get off easy by virtue of this doctrine.

“Do you imagine the magnitude of that money? That is nearly 20 times [the budget] of the entire judiciary,” she said.

“We’re talking about the magnitude of the problem we’re facing here. The social impact the message is saying is very important for the life of this country,” Sereno said.

Morales appeared last week during the first round of oral arguments on her petition against Binay’s plea against his suspension before the Court of Appeals, even taking questions from justices.

Leonen also noted how ill-prepared Certeza was to tackle questions about the Ombudsman’s supplemental petition, which was filed on Monday last week to update the petition after the appellate court’s issuance of a writ of preliminary injunction, extending the temporary restraining order (TRO) it earlier issued.

“Then it was your client that caused it all. No, not your client. It was your legal advice,” said Leonen, correcting himself.

Three more magistrates joined Associate Justice Diosdado Peralta in recusing themselves from the case for undisclosed reasons. These were Associate Justices Arturo Brion, Presbitero Velasco Jr. and Francis Jardeleza, who were all present during the oral arguments last week.

The high court gave the two sides a non-extendable period of 30 days to file their memoranda on the case, their last chance to persuade the magistrates.
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