THE LEGAL FRONT
By JUSTICE ART D. BRION (RET.)
On October 26 this year, Senior Associate Justice Antonio Tirol Carpio will reach his 70th year and retire from the Supreme Court after serving for 18 years.
SAJ Carpio came to the court with an impeccable academic record that expectedly led to an enviable judicial record of achievements. He academically distinguished himself from his earliest years at the Ateneo de Davao, the Ateneo de Manila, and the UP College of Law. During his 18 years with the Court, he waded into, and never flinched from confronting, the most important issues before the court, among them the DAP, the PDAF, the Grace Poe citizenship, and the EDCA cases.
If there is one record that SAJ Carpio missed, it was the distinction of being chief justice (CJ). The preparation, competence, and experience were all there but fate, it seemed, always looked the other way. He had to console himself with being acting CJ during interim CJ vacancy periods or while the sitting CJ was absent, on leave, or was otherwise elsewhere.
But he more than made up for what he formally missed; for many years, we in the Court recognized him – particularly during the Sereno years – as our real leader. He was the senior justice whom we usually looked up to, to lead and show the way in the significant pauses that signified indecision, or in the heated debates that spoke of a badly divided court. That was how he ably led.
His leadership, of course, did not mean that he always had his way in the Court. He had his fair share of dissent and losing arguments, but whether in the majority or in dissent, he showed leadership. A case in point, as described to me by reliable court insiders, was during the pendency of the quo warranto proceedings against CJ Sereno.
It was then the prevalent sentiment within the court that then CJ Sereno should take a leave of absence while the quo warranto case against her was pending. The subject was a sensitive one and carried the potential of showing that the High Tribunal was in disarray – a situation that boded ill for the nation.
Despite the surrounding tension and the pervasive high emotions, the Court duly conveyed its feelings to the then CJ and thereafter accordingly acted. The session, by some accounts, was a strained one. At some point, then CJ Sereno – as she had done in the past – opted to privately consult SAJ Carpio and thereafter decided to take an extended leave of absence.
Outside the court, history will remember SAJ Carpio as the member of the judiciary who strangely took a very active role in the executive role of protecting the country’s interests in the West Philippine Sea dispute with China. Together with AJ Francis Jardeleza (now also retired), he was also in the arbitration that confirmed our maritime rights to the resources within our Exclusive Economic Zone (EEZ).
Fate perhaps intervened in the country’s behalf as SAJ Carpio was at the right place at the right time when China first occupied Mischief Reef in 1995 by slowly building structures in, and reclaiming areas around, the reef. SAJ Carpio, at that time, was President Ramos’ Chief Presidential Legal Counsel and was at the center of action as the country countered China’s challenge.
The Mischief Reef incursion led to SAJ Carpio’s study of the history of Scarborough Shoal; the collection of old maps relating to the Chinese claim of sovereignty over most of the South China Sea; and to his eventual expertise on the United Nations Convention on the Law of the Sea (UNCLOS). His studies and researches led to his book entitled “The South China Sea Dispute” that showed how parts of the South China Sea fall either within Philippine sovereignty or maritime jurisdiction.
In 2011, SAJ Carpio was opportunely assigned to handle the case Magallona et al., v. Eduardo Ermita, where the petitioners questioned the constitutionality of RA 9522, the country’s statutory compliance with UNCLOS. The petitioners argued that the law was contrary to our established baselines under the Treaty of Paris and effectively diminished our country’s territory.
Through SAJ Carpio’s ponencia, the court clarified that the UNCLOS is not about the acquisition of territory; it is about the sea-use rights over maritime zones as these zones are defined in the convention.
In 2012, China once again intruded into the Philippines’ EEZ, leading to a stand-off over fishing rights in Scarborough Shoal; China, with the use of armed coast guard vessels, excluded Philippine ships from access to the shoal.
The long series of Chinese incursions and China’s territorial claims on the islands covered by its claimed nine-dash-line boundary (an imaginary line covering Chinese sovereignty claims over most of the South China Sea) precipitated the Philippines’ decision to seek arbitration to secure a ruling on its maritime rights over its EEZ resources.
The details of the arbitration proceedings are outside the scope of this article. Suffice it to say that an immediate issue posed for the country was how to bring China to arbitration with binding effect since China had refused to arbitrate.
Despite the misgivings of many experts, SAJ Carpio put forward the theory that the Philippines could compel China to arbitrate under the terms of UNCLOS, with respect to the extent and use of the maritime zones of the rocks or islands that China claimed to be within its sovereign territory, but not on the issue of sovereignty which lies outside the scope of UNCLOS.
He likewise presented his planned approach that, among others, convinced our policy makers to adopt the arbitration option to counter China’s bullying tactics.
After initially recognizing jurisdiction over the presented issues in 2015, the international arbitration panel ruled in our country’s favor in July, 2016.
Join me in thanking SAJ Carpio for his exemplary service to the nation!