Wisdom from a legal giant

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Last Saturday, I wrote about and extensively quoted from Associate Justice Antonio Carpio’s commencement speech to the 2 PHD in Leadership and 32 Masters in Public Management graduates of the Ateneo School of Government. The speech is entitled “My Journey in Public Service” and it is full of lessons for public servants and for those who work on governance issues in the country. I proudly claim several affiliations with Justice Carpio—a shared name, similar place of origin Mindanao, the same undergraduate dorm (Cervini Hall) and college (Ateneo de Manila University), and a common legal education (the University of the Philippines College of Law).

In the Saturday column, I wrote about the governance lessons Justice Carpio identified from addressing monopolies in telecommunications and the shipping industry as well as in attempting to eradicate jueteng in the county. In today’s column, I will share Carpio’s insights from dealing with formidable legal issues.

One issue that the Ramos administration (and others before it) had to contend with was the long delay in resolving administrative cases. In the Malacanang legal office alone, according to Carpio, the backlog stretched to almost 20 years when he assumed office. Likewise, this kind of backlogs existed in different government offices. I can affirm that as I run the legal office of the Department of Environment and Natural Resources from 1996 to 98 and our backlog stretched to 50 years and I had more than 5,000 pending cases when I joined the department.

Justice  Carpio recalls how he addressed this problem: “I proposed to the President an Administrative Order introducing two measures. First, all parties should submit affidavits in lieu of direct testimony of their witnesses. This would cut down the time for taking testimonies of witnesses by at least 50 percent. Second, all parties should submit draft decisions of their cases, and the head of office would choose which one to adopt either wholly or partially. This would allow the head of office to promptly dispose of cases submitted for decision.”

According to Carpio, he explained to the President that this was the procedure adopted in the United States and other countries to efficiently and fairly dispose of administrative cases. President Ramos was convinced and signed the Administrative Order. The result: “This allowed the Malacañang legal office, headed by then Assistant Secretary Renato Corona whom I recruited to join the Ramos Administration, to wipe out the almost 20 years of backlog of cases in the Malacanang legal office.” Other departments emulated this approach successfully. That included the DENR legal office, under my watch. With the support of then-Environment Secretary Victor Ramos, we wiped out the backlog six months before President Ramos’ term ended.

Justice Carpio emphasized the lesson here: We do not have to reinvent the wheel. The problems of our government bureaucracy are likely not unique to the Philippines. Governments of other countries have faced them and have instituted solutions, some successfully and others unsuccessfully. We can learn lessons from these successful and unsuccessful solutions and craft our own solutions.”

In the Supreme Court, Justice Carpio also succeeded in convincing his colleagues to adopt the Judicial Affidavit Rule. This has significantly sped up the resolution of cases in trial courts by at least 50 percent. There was initial resistance from the prosecutors but eventually the rule has been accepted.

Justice Carpio points out that that there are some institutions that are slow to adopt reform. The judiciary is one of those because it operates on precedents, “but one should never give up because one day the logic of the situation will make reforms inevitable.” As Carpio describes it: “In the case of the Philippine judiciary, the ever-growing population, with the corresponding increase in court cases, is forcing the judiciary to be more receptive to novel reforms. The ideal judge to population ratio is 1 trial judge for a population of 20,000. The ratio in the Philippines is one trial judge for a population of 58,000. Budgetary constraints prevent us from reaching the ideal ratio. So, our trial courts will always be overloaded with cases. The solution is to make trial courts more efficient by simplifying procedures. The Judicial Affidavit Rule is an example of this solution.”

Finally, and most significant of all, Justice Carpio shares lessons from his advocacy on the West Philippine Sea. It started with a realization that, as the writer of the decision in the Magallona v. Ermita case that upheld the constitutionality of the 2009 amendment to the Baselines Law, the Philippines was in danger of losing a great part of its Exclusive Economic Zone (EEZ) in the West Philippine Sea to China, including all the fish, oil, gas and other mineral resources within it. According to Carpio: “China wants to grab 80 percent of our Exclusive Economic Zone in the West Philippines Sea. What is at stake in this dispute is a maritime area as large as the total land area of the Philippines—either we keep this huge maritime area or we lose it to China forever. The Philippines is of course no match to China militarily and economically. So how do we defend and protect our EEZ against a hegemon like China?”

That is why in 2011, Justice Carpio started a public advocacy—“that in the defense of the West Philippine Sea the Philippines should use the greatest weapon ever invented by man—a weapon that could neutralize warships, warplanes, missiles and nuclear bombs—and that weapon is the Rule of Law.” He proposed that the Philippines pursue an arbitration case against China before a tribunal of the UN Convention on the Law of the Sea or UNCLOS, “a forum where there is a level playing field—where the dispute would be resolved solely in accordance with the Law of the Sea.”

The rest is history. We did file the case on January 2013 and three years later, on July 12, 2016, the arbitral tribunal ruled in our favor, that China’s nine-dashed line was without legal effect and could not be the basis to claim any part of the South China Sea. As summarized by Carpio: “By any yardstick, it was an overwhelming victory for the Philippines. It was also the most important case on the Law of the Sea decided by an international arbitral tribunal.” But Justice Carpio warns: “We have won a great victory but there are now forces in our midst that threaten to help China snatch defeat from the jaws of the hard-won victory of the Filipino people.”

The lesson from this experience on the West Philippine Sea is clear: “We must rely on the Rule of Law to maintain peace and stability on our planet. For states that are small, or do not have the military might or nuclear bombs to defend themselves, but are unfortunately bound by geography to live with a giant, powerful and nuclear-armed neighbor, their only salvation to remain sovereign and independent is the Rule of Law. We must learn to cherish the Rule of Law, which ensures equality between small and big states, and between weak and strong states. The Rule of Law is the oxygen that allows countries like the Philippines to breathe and survive as a sovereign nation.”

Let me end this column by echoing the words of this legal giant: “There are solutions even to the most intractable, insurmountable and age-old problems facing our country. All it needs is the correct diagnosis, a practical and workable solution, perseverance, courage and a lot of political will.”

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