Phl must reject ‘lopsided’, ‘unconstitutional’ verbal deal with China – Carpio

Maris Federez   •   July 5, 2019   •   1310

Supreme Court Senior Associate Justice Antonio Carpio

Supreme Court Senior Associate Justice Antonio Carpio believes that the Philippines must set aside and reject what he calls as a “lopsided” and “unconstitutional” verbal agreement it forged with China.

The court official also expressed his agreement with Foreign Affairs Secretary Teodoro Locsin, Jr. when the latter said in an interview that only the Philippines is allowed to fish in Philippine waters.

Justice Carpio, in a statement, said there is no official policy that allows China to fish in Reed Bank (locally known as Recto Bank).

“Secretary Locsin knows that there is no recorded minutes of the so-called verbal agreement between President Xi and President Duterte allowing the Chinese to fish in Reed Bank in exchange for Filipinos fishing in Scarborough Shoal,” said Carpio.

The Senior Associate Justice added, “Any such verbal agreement, if confirmed by the Philippine government, will bind the Philippines to allow the Chinese to fish in Reed Bank for as long as China allows Filipinos to fish in Scarborough Shoal.”

Carpio also underscored the difference between Reed Bank which is 8,660 sq. km in area, and Scarborough Shoal which is only 150 sq. km in area; emphasizing that “Filipinos can fish only outside the lagoon of Scarborough Shoal, not inside the lagoon which is the rich fishing area.”

He also noted that China has the largest fishing fleet in the world with huge modern trawlers, comparing it with the Philippines whose Filipino fishermen only have wooden boats with outriggers. 

“The Chinese can deplete the fish in Reed Bank very quickly,” he stressed.

Justice Carpio also pointed out that the verbal agreement, aside from being clearly against the Constitution, is so lopsided it should be rejected by the Philippine government.

Reed Bank is within the Philippine Exclusive Economic Zone.

“Under the Constitution, the use and enjoyment of the fish and other natural resources within Philippine EEZ is reserved exclusively for Filipinos,” Justice Carpio further said. (with reports from Mai Bermudez) /mbmf

PH Defense chief says China trespassing in Ayungin Shoal

Robie de Guzman   •   November 25, 2021

MANILA, Philippines – Department of National Defense (DND) Secretary Delfin Lorenzana on Thursday reiterated that the Philippines has sovereign rights over Ayungin Shoal (also called Second Thomas Shoal) following China’s call for the country to remove its grounded vessel in the area.

“Ayungin lies inside our EEZ (exclusive economic zone) which we have sovereign rights. Our EEZ was awarded to us by the 1982 UNCLOS, which China ratified,“ Lorenzana told reporters.

“China should abide by its international obligations that it is part of,” he added.

The Defense chief issued the statement in response to the remark of China’s Foreign Ministry, through its spokesperson Zhao Lijian, demanding the Philippines to remove the BRP Sierra Madre from the shoal.

BRP Sierra Madre is an old Philippine Navy ship that was ran aground there to assert Manila’s claim over the area. It has been serving as the outpost of a small Philippine military contingent since 1999.

In a press conference in Beijing, Zhao claimed anew that Ayungin Shoal (known in China as Ren’ai Jiao) is part of Nansha Qundao, which is the Chinese name for the Spratly Islands also being claimed in part by the Philippines.

But Lorenzana maintained that Ayungin Shoal is within the Philippines EEZ as it is located about 105 nautical miles west of Palawan.

Aside from UNCLOS, the Defense chief also noted that the Permanent Court of Arbitration, in its 2016 ruling on a case lodged by the Philippines, stated that China’s territorial claim over the West Philippine Sea has neither historic nor legal basis.

“Ergo, we can do whatever we want there and it is they who are actually trespassing,” he said.

“Meron tayong dalawang documento na nagpapatunay na meron tayong sovereign rights sa ating EEZ habang sila ay wala at yung claim nila walang basehan, “ he added.

Lorenzana also said that as far as he knows, there is no commitment made by Philippine authorities to remove BRP Sierra Madre from the Ayungin Shoal.

“As far as I know there is no such commitment. That ship has been there since 1999. If there was commitment it would have been removed long time ago,” he said.

China’s demand for the removal of BRP Sierra Madre from Ayungin Shoal came after Philippine military boats completed their resupply mission on Thursday.

The boats were deployed there a week after Chinese coast guard vessels blocked and harassed the first Filipino mission that were sent to the area.

The incident prompted President Rodrigo Duterte to call out China’s action at the contested waters during the ASEAN-China special summit on November 22. (with details from Correspondent Lea Ylagan)

Poe denounces China’s demand to remove BRP Sierra Madre from Ayungin Shoal

Maris Federez   •   November 25, 2021

MANILA, Philippines — Senator Grace Poe has denounced China’s demand for the Philippine government to remove the BRP Sierra Madre from the Ayungin Shoal.

In a statement released Thursday (November 25), Poe underscored that the 2016 arbitral ruling of the United Nations Permanent Court of Arbitration “declared that Ayungin Shoal belongs to the Philippines and is well within our exclusive economic zone and continental shelf.”

“China has no right to dictate what we can do within our waters,” Poe reiterated.

“Its recent statement telling us to remove BRP Sierra Madre from the shoal is another display of utter arrogance and aggression that we must not take sitting down,” she added.

Poe urged the government to step up its efforts in addressing the issue in addition to the diplomatic protests that the Department of Foreign Affairs has filed against China.

“Aside from diplomatic protests, the government should step up efforts in rallying our neighbors to form a united front against China in the South China Sea,” Poe said.

“Time and again, several nations have stood by us and shared our goal of ensuring peace, stability, and harmony,” the lawmaker added.

Poe stressed that every country must always act in deference to the sovereignty of others.

“Mutual respect must always be the cornerstone of our relationship with any nation,” Poe said.

On Wednesday, China’s Foreign Ministry spokesperson Zhao Lijian demanded that the Philippines must remove the grounded BRP Sierra Madre from Ayungin Shoal, saying it should “honor its commitment.”

“China demands that the Philippine side honor its commitment and remove its grounded vessel on Ren’ai Jiao (Ayungin Shoal),” the Chinese official said in a briefing. “This position remains unchanged.”   —/mbmf

Palace welcomes SC ruling junking plea to compel Duterte to defend PH territory

Robie de Guzman   •   November 24, 2021

MANILA, Philippines – Malacañang on Wednesday welcomed the decision of the Supreme Court (SC) to dismiss the petition to compel President Rodrigo Duterte to defend the Philippine territory against China’s claims and incursions in the West Philippine Sea.

“We welcome the decision of the Supreme Court dismissing the petition for mandamus filed against President Rodrigo Roa Duterte,” acting presidential spokesperson Karlo Nograles said in a statement.

Nograles was referring to an SC ruling dated June 29 but only uploaded on its website on November 22.

In a unanimous decision, the SC en banc dismissed the petition for mandamus filed by lawyer Romeo Esmero for “utter lack of merit.”

In his petition, Esmero claimed that it is the president’s ministerial duty to defend the national territory, which includes the West Philippine Sea as established by the UN Arbitral Tribunal.

He also asserted that “there is unlawful neglect or inaction by the president in the performance of his constitutional duty resulting to the detriment of ‘paramount public interest involve (sic) the livelihood of all of our poor Filipino fishermen and their families who are living in the coastal areas of the many islands facing the West Philippine Sea.’”

Esmero also suggested suing China before the International Criminal Court “to demand payment and damages for taking the Kalayaan Islands.”

“Our ruling in De Lima v. Duterte is clear: the president is immune from suit during his incumbency, regardless of the nature of the suit filed against him. Petitioner named President Duterte as the sole respondent in this case. For this reason, this suit should be dismissed outright,” the SC said.

The high court also noted that the petition for the issuance of a writ of mandamus “would still not lie in petitioner’s favor.”

A mandamus petition seeks to compel action and performance of a pre-existing duty, a ministerial function on the part of a board, officer or person, provided that the petitioner has a well-defined and clear right warrant the grant thereof.

“Indeed, the president is the guardian of the Philippine archipelago, including all the islands and waters embraced therein and all other territories over which it has sovereignty or jurisdiction. By constitutional fiat and the intrinsic nature of his office, the president is also the sole organ and the authority in the external affairs of the country,” the ruling read.

The SC said that for all the petitioner’s posturing, he failed to point any law that specifically requires the president to go to the UN or the ICJ to sue China for its incursions into the Philippine exclusive economic zone.

“Neither has he shown a clear and unmistakable constitutional or statutory provision which prescribes how the president is to respond to any threat (actual or imminent) from another State to our sovereignty or exercise of our sovereign rights,” the court said.

The SC said that former President Benigno S. Aquino was under no obligation to file a case against China through the UN Convention on the Law of the Sea (UNCLOS) in 2013.

“Taking China to binding arbitration was risky, as it could potentially damage relations with a major trading partner. On July 12, 2016, the arbitral tribunal issued an award overwhelmingly in favor of claims by the Philippines and ultimately bringing some clarity to the overlapping claims in the area,” the court noted.

The SC said that if President Duterte now sees fit to take a different approach with China despite said ruling, “this does not by itself mean that he has, as petitioner suggests, unlawfully abdicated his duty to protect and defend our national territory, correctible with the issuance by this Court of the extraordinary writ of mandamus.”

“Being the Head of State, he is free to use his own discretion in this matter, accountable only to his country in his political character and to his own conscience,” the SC added.

The 9-page ruling was penned by Associate Justice Rodil Zalameda. All 13 other justices concurred with the decision.

With this ruling, Malacañang said that the “executive power, indeed, rests on the President, including the peaceful and stable conduct of foreign affairs. Matters within the President’s discretion cannot be compelled by mandamus.”

The Palace also maintained that the president is the chief architect of foreign policy and this is affirmed by the latest decision of the High Court.

“Having said this, the president has firmly kept his position to continue the peaceful resolution of disputes,” Malacañang said.

 

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