‘Integrity issue’ vs SolGen: Legal strategy or disloyalty to country?

A handout picture received from Taiwan’s National Security Council on Sept. 1, 2012, shows Interior Minister Lee Hong-yuan holding a national flag at Itu Aba or Taiping, the biggest islet of the disputed Spratlys on Aug.31, 2012. Solicitor General Francis Jardeleza may have committed a “grave mistake” in his handling of the Philippine case against China in the United Nations arbitral tribunal when he directed the government’s international lawyers to exclude the Taiwan-occupied island of Itu Aba from the 4,000-page memorial before it was submitted to the tribunal in The Hague in March. AFP PHOTO/Taiwan’s National Security Council

MANILA, Philippines–Legal strategy or disloyalty to country?

Solicitor General Francis Jardeleza may have committed a “grave mistake” in his handling of the Philippine case against China in the United Nations arbitral tribunal when he directed the government’s international lawyers to exclude the Taiwan-occupied island of Itu Aba from the 4,000-page memorial before it was submitted to the tribunal in The Hague in March.

President Aquino ultimately decided that Itu Aba be included in the memorial.

The 14-paragraph discussion was restored before it was submitted to the UN tribunal.

Ranking government sources told the Inquirer in separate interviews that this was the “integrity issue” raised against Jardeleza by some members of the Judicial and Bar Council (JBC) when they vetted the nominees to the seat of a Supreme Court associate justice that was vacated by Associate Justice Roberto Abad last May.

Deletion of 14 paragraphs

The Inquirer learned that Jardeleza, who as Solicitor General is the chief government counsel, directed the Philippines’ international lawyers in The Hague to delete 14 paragraphs discussing Itu Aba, the biggest island in the Spratlys, from the memorial submitted to the UN on March 30. The Taiwanese also calls Itu Aba Tai Ping Island.

Senior Associate Justice Antonio Carpio was apparently informed of the legal tangles in the Philippines’ memorial. He raised the issue with the JBC as a resource person on Jardeleza’s nomination.

On March 19, the international lawyers—Paul Reichler and Lawrence Martin, of Foley Hoag, LLC—wrote Foreign  Secretary Albert del Rosario to inform him that removing Itu Aba from the claim would damage the Philippines’ case.

“The legal team is convinced there is no reason—in law, tactics, principle or policy—that would justify deletion of this subsection, let alone putting the entire case at serious risk. In our opinion, it would be a grave mistake, serving no valid purpose, to delete the subsection,” the lawyers said.

“It is the unanimous recommendation of the entire legal team—including Professors Oxman, Sands and Boyle, as well as ourselves—which we respectfully make in the strongest possible terms, that the subsection in question (a subsection in the Philippine Memorial describing Itu Aba as a “rock” entitled under the Unclos to a 12 [mile] territorial sea but not a 200 [mile] EEZ [exclusive economic zone]) not be removed,” Reichler and Martin wrote.

Unclos is the United Nations Convention on the Law of the Sea.

Reichler and Martin added: “The legal team believes removal of this section would be severely detrimental to the Philippines’ case, would undermine the Philippines’ credibility with the UN tribunal and the international community, would give China a powerful argument to discredit the case, and would go a long way toward defeating the very purpose of the arbitration the Philippines has brought.”

The lawyers also told Del Rosario that excluding Itu Aba could give the tribunal the impression that the Philippines was “not being candid and transparent” in the case that it brought before the tribunal.

“If we do not mention Itu Aba in the memorial, the tribunal will come to the same conclusion as China’s advocates: That the Philippines is ignoring it because it harms us. This is what judges around the world conclude when a party to a case conspicuously ignores a major issue: They presume the party did not do so by accident, but deliberately chose not to discuss it because the party is defenseless against it,” they said.

President’s decision

An Inquirer source said the Philippine legal team and Del Rosario discussed with the President the international lawyers’ memo to Del Rosario. The President ordered the deletions restored.

One source added that Jardeleza wanted the Itu Aba discussion excluded from the memorial as part of the Philippines’ legal strategy but Reichler, Martin and the rest of the international legal team did not agree.

The source said the Philippines might not have a chance to bring up Itu Aba in the course of the arbitral tribunal hearing if it was not included in the memorial in the first place.

Taiwan’s $100M port

Reuters reported on May 25 that Taiwan was building a “$100-million port next to an airstrip” on Itu Aba, which is “the lone island it [Taiwan] occupies in the disputed South China Sea.”

The report noted how China was not reacting at all to the construction even as it was the “most assertive player in the bitterly contested waters.”

“The reason, say military strategists, is that Itu Aba could one day be in China’s hands should it ever take over Taiwan, which it regards as a renegade province. While Itu Aba, also called Tai Ping, is small, no other disputed island has such sophisticated facilities,” the Reuters report said.

The Philippines has a three-part approach in resolving its territorial dispute with China: Putting a moratorium on activities that could escalate tension in the disputed areas in the South China Sea; a declaration of a legally binding Code of Conduct; and a resolution of disputes through international arbitration.

Originally posted: 2:31 pm | Tuesday, August 19th, 2014

RELATED STORIES

Nominees for SC justice shortlisted; Jardeleza out

The integrity of SolGen Francis Jardeleza