Bad law school recitation in SC

If you could play alongside Michael Jordan, would you insist that the ball be passed to you at crunch time?

Last Nov. 18, a dream team led by Rene Saguisag, a “Magnificent 12” senator who rejected the renewal of the US bases treaty in 1991, asserted at the Supreme Court that the Enhanced Defense Cooperation Agreement with the United States must be sent to the Senate for ratification. Former UP Law dean Pacifico Agabin, the Michael Jordan of constitutional law, argued that any citizen must have the right to question the lack of ratification given its gravity. Longtime UP international law professor Harry Roque argued that the Edca is a major “pivot” in US foreign policy, making it a major agreement requiring ratification under our Constitution.

But Rachel Pastores of the National Union of People’s Lawyers stole the show by overextending the arguments to aggressively claim that the Edca cedes sovereignty over “agreed locations,” citing her experience and opinion instead of the Edca’s actual language. Frustrated, annoyed justices questioned her for over an hour in a painful spectacle not seen since last year’s Reproductive Health Act hearings, where a petitioner fell into awkward silence when Senior Associate Justice Antonio Carpio asked which phrase in the law she objected to.

Acting Solicitor General Florin Hilbay capitalized on this last Nov. 25. In his opening speech, he praised Saguisag, Agabin and Roque as “eminent citizens” with respected advocacies, but minced no words in criticizing Pastores for making political statements that were not legal arguments and would not survive a recitation in law school, much less so august a forum as the high court. (Such is sadly not uncommon in major hearings, and Justice Marvic Leonen decried political manifestos submitted as petitions in one decision.) Hilbay opined that the suit was the fifth involving roughly the same issues and same petitioners.

Hilbay successfully reframed the discussion. He agreed with Roque that the case is primarily governed by Article XVI, Section 25 of the Constitution. This states that “foreign military bases, troops, or facilities” must be governed by a treaty ratified by the Senate and recognized as a treaty by the other country. Hilbay argued that the Visiting Forces Agreement already allows foreign troops while the facilities are ours, albeit built by US contractors. Unlike the original bases treaty, such are not deemed foreign territory and may be used only with Philippine consent. US “operational control” is for construction purposes only.

Hilbay thus diverted attention from the more general, subjective rule requiring ratification for a major agreement and Roque’s original argument of a foreign policy shift. Hilbay also stressed that the President as commander in chief has inherent power over building barracks and runways and prepositioning supplies. This and the Edca are consistent with defensive preparation under the Mutual Defense Treaty.

Leonen noted that it was Hilbay’s first appearance as acting solicitor general, and vigorously opened the grilling. He cited Sen. Miriam Defensor Santiago, who publicly asked why petitioners had not approached her. For Hilbay, the bottom line is that no incumbent senator joined the petitions, nor did the Senate pass a formal resolution as in past cases. There is no case if the Senate itself is not complaining. But it is highly unlikely for the high court to rule that the case was improperly brought.

Leonen posited that the Edca is not considered a treaty by America, Section 25’s second requisite, as the US Medellin decision requires a treaty to be implemented by US legislation. Hilbay tried to argue that this is not the complete Medellin rule and that the case dealt with a very different context, but Leonen cut him off. Hilbay, 40, seemed to have been cut off several times, something that did not happen to his more seasoned predecessor, now Justice Francis Jardeleza, who inhibited from the case.

Carpio cited America’s past pronouncements that it would not intervene in the West Philippine Sea, and asked Hilbay what good the Edca was. Hilbay conceded: “We do what we do, we do what we can, let’s hope for the best.” Asked if he hopes America will change its stance, he said: “Hope is free, your honor, so we may as well have it.” For once, it was unclear where Carpio was headed with this seemingly unrelated angle.

Hilbay largely spent the four-hour hearing restating his speech. Justices asked about a reciprocal waiver of US criminal jurisdiction over Philippine troops and the Mindanao peace process, but nothing undercut Hilbay’s core argument, especially after Pastores’ opinions were dismissed as speculative. Some justices’ questions related to a partial nullification, however.

Where Jardeleza oozed gravitas, Hilbay is casual and understated, speaking as though in ordinary conversation and cracking jokes. Addressing Roque’s allegation that US forces will operate a telecommunications network without a franchise, Hilbay quipped that they are not going to play Taylor Swift songs for the public and our military networks are exempt from franchise requirements. He is not yet as smooth as Jardeleza or Agabin when evading unfavorable questions, though, and was sometimes cited as unresponsive, with one justice complaining that his answers were going around in circles.

But overall, Hilbay seems off to a good start, especially considering the unavoidable comparisons between him at the start of his career and Jardeleza at his peak.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association committee on constitutional law and teaches this subject at the University of the East, and securities law at San Beda Graduate School of Law.