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With Due Respect

Agreeing to disagree with Justice Carpio

Congratulations to new Chief Justice Diosdado M. Peralta. In appointing him, President Duterte — I was told by Executive Secretary Salvador C. Medialdea — wanted to “instill stability in the Court”; thus, he chose the most senior of the three nominees. And if I may add, his appointment also assures a smooth transition because he is an ideological partner of outgoing Chief Justice Lucas P. Bersamin; they have voted on the same side most (but not all) of the time. I will write more about him in the future.

Meanwhile, let me continue my piece last week on Senior Justice Antonio T. Carpio. During a recent testimonial held in his honor, I said that we have developed a “long (since 1992) and close, even if at times testy, friendship.”

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In his response, he acknowledged that indeed, we were of one mind on important national issues, but on a few occasions “we have agreed to disagree,” pointing to two recent decisions he penned that are unfavorable to a publicly-listed company where I am an independent director.

Surprised, some well-meaning friends asked, “You’re such good friends, have you really taken opposite sides?”

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Yes, though we (together with his wife Ruth and my wife Leni, plus a few other friends) socialize regularly and enjoy warm personal ties, we have differed a number of times on how to interpret the Constitution and the law. Let me cite three examples.

First, in a recent interview by GMA News and by ANC with Karen Davila, I vigorously supported the resolution of the Supreme Court requiring both Vice President Leni Robredo and former senator Bongbong Marcos to comment on (1) the report of Justice Alfredo Benjamin S. Caguioa showing that VP Leni increased her lead by about 15,000 votes during the recount in the three pilot provinces involved in the “Second Cause of Action” of the election protest; and, on (2) the viability of the “Third Cause of Action” for the annulment of all the votes cast in three other provinces in Mindanao due to alleged massive fraud, terrorism and other irregularities.

He dissented from the resolution, arguing that Bongbong’s protest should be dismissed outright since Caguioa’s report showed no “substantial recovery.” However, I countered that, without passing judgment on the merits of the case, due process must first be observed before the Presidential Electoral Tribunal could act with finality.

Second, I opined in several columns that while we should celebrate our arbitral victory in the West Philippine Sea (WPS) dispute, we should also explore alternative ways to uphold our sovereign rights.

I wrote that since China refuses to recognize the arbitral award, much less to obey it, we should alternatively invoke China’s Note Verbale dated April 13, 2009, addressed to the UN Secretary General impliedly admitting our maritime entitlements in the WPS. Notably, China has never denied this Note and its implications.

Another alternative is the Memorandum of Agreement made in November last year, in which China agreed to a 60-40 sharing in our favor of the resources extracted in the WPS. China has expressed willingness to abide by this MoA.

To me, these two alternatives are win-win solutions because without loss of face for China, we will be able to harvest our WPS resources consistent with our Constitution.

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Third, I wrote the first two decisions on the party-list: (1) Ang Bagong Bayani v. Comelec (June 26, 2001) limiting the system “only to the marginalized and underrepresented sectors,” and (2) Veterans Party v. Comelec (Oct. 6, 2000) restricting the party-list winners only to those obtaining at least 2 percent of the total votes cast, and ruling that the constitutional allocation of 20 percent of all House seats to the party-list was merely directory, not mandatory.

After I retired, Justice Carpio reversed my ponencias, and held (1) in Atong Paglaum v. Comelec (April 2, 2013) that party-list candidates need not represent the marginalized and underrepresented, and (2) in Banat v. Comelec (April 21, 2009) that the 20-percent allocation is mandatory, thereby opening the party-list floodgates.

Despite these differences, he and I (and our spouses) remain the best of personal friends, enjoying our 95-percent harmony and overlooking our 5-percent cacophony. Indeed, friends can differ without being difficult.

Comments to [email protected]

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