Former Supreme Court Justice Antonio Carpio has been the strongest and most consistent voice against China’s incursions into Philippine territory. He explains to Howie Severino the Chinese strategy of using intimidation to win control of the sea and what’s holding China back from even more aggressive behavior.
But Carpio believes the Philippines still has space to maneuver in the maritime powder keg and proposes an approach to gain the upper hand, including building a lighthouse and other civilian facilities in disputed territory.
But Carpio believes the Philippines still has space to maneuver in the maritime powder keg and proposes an approach to gain the upper hand, including building a lighthouse and other civilian facilities in disputed territory.
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NewsTranscript
00:00 (speaking in foreign language)
00:03 Thank you for joining us.
00:24 (speaking in foreign language)
00:28 Viewers.
00:29 Sir, even before you retired as Supreme Court Justice,
00:34 you had made the defense of our maritime territory
00:37 against China one of your chief causes,
00:40 if not your main one.
00:43 Why did you decide to devote a large part of your time,
00:46 resources, and thinking to this issue?
00:50 And corollary to that, sir,
00:52 was there a tipping point for you when you decided,
00:55 I need to spend much or most of my time on this?
00:59 Yeah, well, it goes back to 1995 and early 1996,
01:05 when China seized Mishi Frith.
01:08 I was then with President Fidel Villaramas
01:12 as his chief presidential legal counsel in Malacca, Nyang.
01:16 And we were really like a headless chicken at the time
01:21 because we couldn't do anything.
01:24 We didn't know what to do.
01:26 We already ratified UNCLOS at the time,
01:29 but China had not ratified UNCLOS,
01:32 so we could not sue China before an UNCLOS tribunal.
01:35 And the US had just left.
01:38 We kicked them out in 1992.
01:41 So there was a power vacuum in the South China Sea.
01:45 Of course, if there's a power vacuum,
01:47 the next power will come in, will rush in,
01:49 and China rushed in and seized Mishi Frith.
01:53 And we didn't know how to respond
01:55 because, well, militarily, we were much weaker,
02:00 and legally, there was no avenue.
02:03 There was no tribunal where we could go.
02:06 And that really struck a deep chord in my mind
02:10 because we were losing our maritime zone,
02:14 and yet we couldn't do anything.
02:16 And so ever since, I've tried to think about it
02:22 and to think how we can defend ourselves in the future
02:25 against Chinese expansion
02:28 because I knew it was not the last seizure
02:32 of our maritime zone by China.
02:34 And at the time, they would seize more
02:36 of our maritime zones.
02:38 I had the opportunity when the new baselines law
02:43 was brought to the Supreme Court, it was challenged.
02:47 The constitutionally was challenged by some professors,
02:52 including Harry Roque, and I decided that case.
02:56 And I saw there that we could defend legally
03:01 our maritime zones by going to UNCLOS,
03:05 but we had to first comply with the requirements of UNCLOS
03:09 as to our baselines, because if we go to an UNCLOS tribunal
03:13 and challenge China's illegal baselines, the Nine-Dash Line,
03:21 China will say, "Oh, you have also your illegal baselines.
03:24 "You have also you're treating the Treaty of Paris lines
03:29 "as your baselines."
03:30 So we had to put our house in order
03:34 before we could bring a case against China
03:38 because it's of the principle in international law
03:40 that he who comes to court must come with clean hands.
03:44 I mean, if you go to court,
03:47 you cannot accuse somebody of an illegal act,
03:51 which you yourself is guilty of.
03:53 So that's also a principle in domestic law.
03:57 So I thought that if we become compliant with UNCLOS,
04:02 then we could bring China to an UNCLOS tribunal.
04:07 That's how it started.
04:08 - Okay, so you said that your keen interest began in 1995
04:16 with the Chinese occupation of Mischief Reef.
04:20 That's almost 20 years ago, no?
04:23 And you have said that this is an intergenerational struggle
04:28 that future generations will inherit.
04:32 No, so it's not going to end soon.
04:36 So you've been devoted to this cause for almost 20 years,
04:39 but you say this is gonna stretch far into the future.
04:43 On the other hand, some have also said
04:45 that China can really make this quick and dirty
04:49 with a short, sharp war
04:51 that would basically end our opposition, no?
04:54 What do you think of that scenario?
04:57 (speaking in foreign language)
04:58 It might actually end with this generation.
05:00 Isn't there a great risk now of a sudden escalation
05:03 that would permanently drive us out
05:06 of these disputed territories?
05:09 - Well, the last thing that China would want to do
05:11 is to give the US an opportunity
05:14 to intervene by engaging an armed attack on the Philippines
05:19 or Philippine public vessels, no?
05:23 Because then we could invoke the Mutual Defense Treaty
05:27 and then China will be confronted
05:31 not with a weak military power like the Philippines,
05:34 but with a nuclear armed power,
05:36 which is, you know, China's about 450 nuclear bombs.
05:41 The US is about 5,500.
05:44 In a nuclear war,
05:46 not a single Chinese would remain alive in mainland.
05:49 They would be totally destroyed.
05:51 So there is this doctrine of China,
05:56 the three warfares doctrine, which they have approved,
06:00 all the way from the People's Congress
06:02 to the Politburo to the Military Commission.
06:05 Basically, it says that China will win the South China Sea
06:08 without firing a single shot.
06:11 They will win the South China Sea
06:13 without firing a single shot.
06:15 First warfare is a PR warfare.
06:18 So China is saying they own the South China Sea
06:20 since 2,000 years ago.
06:21 We have blunted that warfare
06:23 because we have exposed that the Nine-Dash Line
06:26 is a fake claim
06:31 that was ruled upon by the tribunal at The Hague
06:35 that there's no historical basis for the Nine-Dash Line.
06:39 Second warfare of China is a legal warfare.
06:41 China is saying that they are exempt from UNCLOS
06:45 because the Nine-Dash Line stretches back to 2,000 years ago
06:49 but that has been debunked also by the tribunal.
06:52 The third warfare of China is
06:54 they will intimidate all the other claimant states
06:59 with their huge air and naval bases in the Spatlys,
07:03 with their huge naval fleet.
07:05 They have the largest naval fleet in the world
07:08 with their numerous fighter jets and bombers
07:13 and by their huge coast guard,
07:18 the largest coast guard in the world.
07:20 So they will intimidate everybody.
07:23 And if you are dumb enough to be intimidated, you lose.
07:26 Like Duterte, he said, "We cannot fight China
07:29 "because it will be a massacre."
07:31 I mean, if you have that mindset, then you lose
07:33 because under the three warfare strategy of China,
07:36 that's precisely what they want, to intimidate you.
07:39 And if you get intimidated, you lose.
07:42 So in all these three warfare of China,
07:45 they avoid at all cost a war, a shooting war,
07:50 because a small skirmish, if it's an armed skirmish,
07:54 it would escalate into a nuclear war,
07:57 especially if the Philippines is involved
07:59 because we have a mutual defense treaty.
08:01 So all that China is doing is to intimidate us
08:06 by their huge air and naval bases, by their water cannon,
08:10 but they will not use an armed attack
08:13 because that will draw the Americans in.
08:16 And if the Americans are in, then they're in a great peril
08:21 because as of this time,
08:23 they are still not much of the Americans.
08:26 So that's why they are doing an intimidation
08:30 just to intimidate us.
08:32 So we should understand the three warfare strategy of China.
08:35 - So you sound quite confident in the US commitment
08:40 to our defense as a deterrent to an all out war by China.
08:47 But so far, are you satisfied with the US response
08:55 to what China has been doing?
08:56 Because China has not exactly been passive.
08:59 (speaking in foreign language)
09:03 I mean, from there, it's fairly easy to imagine
09:08 some accidental gunshot that will spiral out of control.
09:14 And wars have started that way,
09:17 with a single gunshot.
09:18 World War I started that way.
09:22 So do you think that the US will really come to our defense?
09:27 - Well, a single gunshot will not really start a war
09:32 because there is a principle of proportionality.
09:35 You can invoke self-defense
09:39 if you are subjected to arm attack,
09:42 but there is a principle of reciprocity.
09:44 If there's only one single gunshot,
09:46 then you cannot really use all your cruise missiles,
09:50 all your torpedoes.
09:52 I mean, it should be proportional.
09:54 There is that proportionality.
09:57 That's precisely to avoid any accidental war.
10:01 You must exercise proportionality in your response.
10:05 So it has to be a real arm attack, I mean, intentional.
10:09 Those small skirmishes arising from accidents,
10:15 that can be resolved by being circumspect
10:18 about your response,
10:22 because there is the principle of proportionality
10:25 under international law.
10:26 Let's say the Chinese will say,
10:28 "Okay, one option is for us to attack the Philippine Navy
10:33 in Ayuninshol or in Scarborough Shoal."
10:39 So then the Philippines will invoke
10:43 the Mutual Defense Treaty.
10:44 What will be the response of the US?
10:47 First, if the US responds by attacking us also,
10:53 then that would be against their three warfare strategy.
10:58 They don't want a war with the US.
11:00 So that's a no-no for them.
11:04 If the US responds,
11:05 now, if the US does not honor the treaty,
11:08 the US says, "We will not honor the treaty,"
11:11 then what will happen?
11:14 Then what will happen is that Japan, Korea,
11:19 will start to doubt the US commitment.
11:24 And Japan and Korea will be forced to go nuclear.
11:27 There will be a great debate in Japan, in Korea.
11:31 It's an easy decision because an overwhelming majority
11:35 of South Koreans now want to go nuclear already.
11:39 So what will happen is that China will be surrounded
11:44 by nations that are hostile, but with nuclear weapons.
11:47 You have Russia, you have,
11:50 if South Korea will turn nuclear, you have Japan,
11:55 and you have, Australia will go nuclear for sure
11:58 if the US will not honor its commitment
12:02 because Australia will have to defend itself.
12:04 So you have all countries,
12:06 you have India also, nuclear arms.
12:09 So China will be surrounded on all sides
12:12 by nuclear-armed states that are hostile to China.
12:15 So it is in the national interest of China
12:18 not to force the US to give up the nuclear umbrella
12:23 because then all these nations will go nuclear
12:29 and that will be a worse nightmare for China.
12:32 So if I'm the strategist in Beijing, I'm looking at it,
12:36 I will not do anything that will make the US decide
12:46 whether to honor the treaty or not
12:49 because either way it will be bad for China.
12:52 So if you look at it that way,
12:56 all those protected by that nuclear umbrella
12:59 will go nuclear because that is an existentialist threat.
13:03 That's a matter of existence, national survival for them.
13:07 So that's why for the Chinese,
13:11 they want to control the South China Sea
13:14 without fighting a single shot
13:16 because that's easier for them.
13:18 - Well, so far, no, we filed more than
13:21 a hundred diplomatic protests against China
13:25 because of their actions in the West Philippine Sea.
13:28 For those of our listeners who are not very aware
13:33 of the implications of this kind of protest,
13:36 what are the diplomatic protests
13:39 and how can this be effective?
13:42 - Well, first of all, it is a must
13:44 that a country must file a diplomatic protest
13:48 because if your sovereignty is infringed,
13:52 if your maritime zones are infringed,
13:54 and you do not act, you do not say anything,
13:57 then that can be taken as acquiescence, implied consent.
14:02 And if that issue goes to the non-cost tribunal,
14:06 the tribunal will say, "Oh, you acquiesced,
14:09 you impliedly consent that you cannot complain now."
14:12 And that's what exactly raised in the Hague.
14:15 In our arbitration, one of the issues raised was,
14:18 did we acquiesce to the nine-dash line?
14:21 And we presented all our protests,
14:24 all our notes verbal ever since,
14:27 hundreds of them way back in the '90s.
14:31 And the tribunal said, "No, there are sufficient protests
14:36 made by the Philippines way back in the '90s."
14:40 And that is the importance of a note verbal
14:43 because we stop ourselves from being trapped
14:48 in that principle that if you do not protest
14:52 to an infringement on your sovereignty or sovereign rights,
14:55 you are deemed to have impliedly consented.
14:58 Okay, so there's a value in itself to protest.
15:02 We must keep on protesting.
15:04 Beyond that, we have to do something.
15:07 Like, for example, we must have joint patrols with the US
15:11 because a joint patrol in the West Philippine Sea,
15:13 for me, is the strongest action that we can take
15:17 to enforce the arbitral award.
15:19 Because if the Philippines and the US conduct a joint patrol,
15:22 both of them are telling China
15:25 that these are not your waters.
15:27 This belongs to the Philippines.
15:29 It's part of the exclusive economic zone of the Philippines.
15:33 That's why we can conduct naval drills there
15:35 because in the exclusive economic zone under UNCLOS,
15:39 countries conduct naval drills.
15:41 And China said, "You cannot conduct naval drills
15:44 because that's within the Nine-Dash Line."
15:46 But we do that.
15:47 And the more we do that,
15:48 the more we enforce the arbitral award.
15:51 - Well, despite these alliances and our victory
15:55 in international tribunal,
15:58 for the last several years,
15:59 China has been building all kinds of infrastructure already
16:04 in the disputed areas and reefs as if they own it,
16:08 from runways and bases, outposts.
16:11 And there's a growing population of Chinese people
16:15 based there, assigned there.
16:17 Is there a scenario where we can still reclaim those areas
16:23 and reoccupy them for ourselves and the Chinese will leave?
16:29 What's the best scenario for us?
16:31 - Well, first of all,
16:32 I've been saying this since late last year
16:38 that we should challenge China
16:41 to submit the territorial dispute
16:43 because we're talking now of the territorial dispute.
16:45 The maritime dispute has been settled legally.
16:48 We have a full exclusive economic zone
16:50 in the West Philippine Sea.
16:53 But the territorial dispute was not part of the ruling
16:56 of the UNCLOS tribunal
16:57 because UNCLOS does not regulate territorial disputes.
17:01 There is no convention or treaty
17:06 regulating territorial disputes.
17:08 So China and the Philippines
17:11 and the rest of the claimant states
17:12 must submit voluntarily the territorial dispute
17:15 to voluntary arbitration
17:18 by the International Court of Justice.
17:20 But that has not happened yet.
17:22 I am now asking the government to challenge China
17:28 to submit the territorial dispute
17:30 to voluntary arbitration.
17:32 We challenge China, Vietnam, Malaysia, and Brunei
17:36 to submit the territorial dispute to voluntary arbitration
17:40 because the UN charter says
17:42 all disputes must be settled peacefully
17:44 by negotiation, mediation, or finally by arbitration.
17:49 And we are just following the UN charter.
17:53 So we should challenge China.
17:54 If China does not agree,
17:56 then we present all our evidence before the world.
18:00 We will tell the world
18:02 that these are the evidences of the Philippines
18:06 on why we have sovereignty over these disputed islands,
18:10 these territories.
18:11 Because then if we cannot go
18:14 to the International Court of Justice,
18:17 then we go to the Court of World Opinion
18:20 because that's the only thing we can do
18:25 to get the world on our side.
18:27 And we have the ironclad evidence
18:32 that we have a better right than anybody.
18:34 China, Vietnam, Malaysia, and all the other countries,
18:39 we have the best title.
18:42 We have the best claim
18:44 because we follow international law.
18:46 There's so many principles of international law
18:49 we can use to say that we have the strongest claim.
18:54 That's why we should challenge everybody
18:57 to submit the territorial dispute
18:59 to voluntary arbitration.
19:02 Well, that's on the legal side.
19:05 On the practical side,
19:07 we should not give up our claim
19:10 because sea level rise by the end of the century
19:14 will be one to two meters
19:15 and even higher than that beyond the century.
19:19 And that will submerge all the islands in the Spatlys.
19:23 And once submerged,
19:24 they will form part of our exclusive economic zone
19:27 if within 200 nautical miles.
19:29 So all you have to do is to hang on to our claim.
19:33 Never, never give up our claim
19:37 because everything will be underwater in that area
19:41 by the end of the century and beyond
19:46 because of sea level rise.
19:48 - Okay, Justice, you mentioned the need
19:50 to court public opinion, world opinion.
19:54 Many have noticed that the Philippine government
19:56 has actually been more assertive lately
20:01 in terms of courting that opinion.
20:04 The Coast Guard, the Navy have been sharing a video
20:08 of what's going on there in the maritime world,
20:13 the harassment by Chinese vessels,
20:16 bringing the media, foreign journalists to these areas,
20:19 et cetera.
20:20 What else can the government do?
20:24 And what are the options now of the Marcos administration?
20:27 - Well, the template is there.
20:30 We follow what Malaysia and Indonesia did.
20:33 Malaysia depends on oil and gas exports
20:37 to fuel its economy and their reserves have gone down.
20:41 So they decided to open new wells.
20:45 They sent their drill and survey ship
20:47 to their exclusive economic zone,
20:49 but within the nine-dash line,
20:51 the Chinese said, "You cannot do that.
20:53 "That's within the nine-dash line.
20:54 "There will be war."
20:55 But they still proceeded.
20:57 They sent their survey and drill ship
20:59 and accompanied by their Navy and Coast Guard.
21:03 And at the same time, the US and Australia
21:05 conducted naval drills in the same area.
21:08 So the Chinese Coast Guard couldn't do anything.
21:11 So the Malaysians were successful
21:14 and that's why Anwar Ibrahim said recently,
21:18 "We don't have a problem with China on the South China Sea,"
21:20 because they are getting the gas.
21:23 Even if China does not recognize
21:24 their exclusive economic zone,
21:26 as long as they are getting the oil and gas,
21:28 they are winning.
21:30 Because at bottom, the exclusive economic zone
21:33 is about how you can exploit the natural resources
21:36 in the exclusive economic zone.
21:37 So Malaysia is happy
21:40 because they are getting the oil and gas
21:41 despite the threats of China.
21:45 Indonesia did the same.
21:46 Indonesia wanted to survey and drill in the Natunas,
21:51 but it fell within the nine-dash line of China.
21:53 And China said, "You cannot do that.
21:55 "There will be war."
21:56 Indonesia sent its survey and drill ship
21:59 to the Natunas, accompanied by its Navy.
22:03 At the same time, the US sent its aircraft carrier,
22:06 the Ronald Reagan, in the same area.
22:08 So the Chinese couldn't do anything.
22:10 So Indonesia completed its survey and drilling.
22:15 We should do the same in Rydbank
22:18 because the template is there.
22:20 And we have a mutual defense treaty with the US,
22:24 and the US said, "Yes, we're happy
22:27 "to accompany you to Rydbank."
22:29 So it requires only political will.
22:32 During the time of Duterte, of course, he said,
22:34 "No," he intimidated us on behalf of China
22:37 that there will be massacre if we do that.
22:40 And so we did not send our survey and drill ship.
22:44 But Malaysia did, Indonesia did, and they succeeded.
22:48 So we just have to follow that.
22:50 There's the template already on how to get your gas.
22:53 It doesn't matter that China doesn't recognize our EEZ
22:58 because at bottom, the EEZ about the use
23:01 of the natural resources, the oil and gas.
23:03 If we can get the oil and gas,
23:05 even if China doesn't agree, then we're winning.
23:10 - That's it.
23:11 - So Justice, you've also suggested
23:13 building civilian structures such as lighthouses
23:16 or a research center so that we can file a complaint
23:20 to UNCLOS in case China shows us aggression again.
23:25 Explain to us the logic of that
23:30 because right now what's going on are military activities
23:34 and not civilian, therefore they're not covered by UNCLOS.
23:37 Is that right, Justice?
23:39 - Yes, that's correct.
23:40 When we filed the arbitration against China in 2012,
23:45 we included that.
23:47 We asked the tribunal to direct China to stop harassing us
23:51 every time we send a resupply to BRP Sierra Madre.
23:56 And the tribunal said, "We cannot order you,
24:00 "cannot order China to stop harassing you
24:03 "because that's a military activity."
24:05 And military activity are excluded
24:07 because China in the reservation, and that's allowed,
24:11 said that we will not be subjected
24:14 to compulsory arbitration on matters
24:18 involving military activities
24:20 and on matters involving overlapping
24:23 exclusive economic zones.
24:25 So that's allowed.
24:26 So the tribunal refused to order China
24:30 to stop harassing us whenever we resupply Sierra Madre.
24:35 So what we should do is to put up a civilian structure
24:40 like a lighthouse operated by the Coast Guard.
24:45 The Coast Guard is civilian,
24:46 so that if China stops us from building that structure,
24:51 lighthouse, or stop us from resupplying that lighthouse
24:56 with a marine research center,
24:58 we can go to the tribunal
25:00 and pile up these judgments against China.
25:04 So that's the way out of that dilemma
25:08 that we are being harassed by China,
25:11 but there is no tribunal to go to.
25:14 - Okay.
25:15 Why is China so intent on expanding their territory
25:21 at other nations' expense
25:23 and at the expense of China's own reputation?
25:27 What is the big picture here, Justice?
25:31 I mean, China's also risking a lot by doing all of this.
25:35 They are offending us, threatening many other countries.
25:40 They feel threatened by China's actions.
25:45 Why is China doing this in the first place?
25:47 - Well, because the present leadership in China
25:52 are imperialistic.
25:53 They said they will recover everything that China lost
26:00 during the century of humiliation,
26:02 but they never possessed the South China Sea.
26:06 Because if you look at all the ancient maps of China,
26:10 throughout the Chinese dynasties,
26:12 their southernmost territory in the South China Sea
26:15 was Hainan.
26:16 It never went further south than Hainan.
26:19 They're using their historical claim,
26:22 but their historical claim in the South China Sea
26:25 is totally false.
26:27 But why do they do this?
26:28 Because they are acting as an imperialist power.
26:33 They want to control the South China Sea
26:36 to own it as their national territory,
26:39 which is against international law,
26:41 against Hong Kong, against history.
26:43 I mean, no country can now claim an entire sea.
26:47 That's just out of this world.
26:48 That's outlandish, absurd.
26:50 But China still says,
26:52 "Oh, we own the South China Sea since 2,000 years ago."
26:55 Nobody believes that.
26:57 That has been debunked by the tribunal.
26:59 There's no evidence, historical evidence of that.
27:01 But why is China doing this?
27:03 Because Chinese leaders are greedy.
27:05 They want to get all the natural resources
27:08 in the South China Sea for themselves.
27:11 It's out of greed.
27:12 Imperialism is the manifestation of greed, national greed.
27:17 And it's because of this greed by the Chinese leaders.
27:23 They want to deprive everybody else.
27:26 They want to get it.
27:27 But they're getting, let's say,
27:30 in the South China Sea, you have high seas.
27:32 The high seas belong to the global commons.
27:35 It belongs to all mankind.
27:37 It belongs to Nepal, belongs to Switzerland,
27:40 landlocked countries, but they still ignore that.
27:44 They want to get the high seas,
27:46 which belongs to all mankind.
27:48 So you have to have that frame of mind
27:50 where you totally disregard the legal order,
27:54 international legal order.
27:56 You disregard all kinds of morality.
27:59 You disregard the common good
28:02 because you just want everything for yourself.
28:05 That's greed.
28:06 That's the manifestation
28:08 that is what is driving imperialism.
28:11 And that is in the DNA of the present leaders of China.
28:16 But isn't there also somewhere a genuine fear of America?
28:21 Because America is knocking on their door,
28:27 basically, by having a presence in their part of the world.
28:31 There's no Chinese Navy that's going around California,
28:34 maybe, or New York.
28:36 Unlike the American Navy with nuclear weapons
28:39 moving around China.
28:41 If a country as large as China
28:44 that has had a colonial history as well,
28:47 and having been occupied and conquered by foreign powers,
28:51 I mean, isn't that part of their calculation?
28:55 Aside from desiring natural resources
28:59 that belong to others
29:00 or belong to the international community.
29:02 Isn't there a perception in their mind
29:04 that there's a superpower moving around in our neighborhood
29:08 and we need to protect ourselves from them.
29:11 - That is why China has offered the US,
29:13 let's divide the world.
29:15 The world is too big for both of us.
29:17 We can divide it.
29:19 So leave to us the South China Sea, that's ours,
29:23 and the rest will be yours.
29:25 So they know that.
29:28 Of course, the US would not want to do that
29:31 because they would be abandoning their traditional allies
29:34 and they will lose credibility.
29:36 But that's why I'm saying, who knows,
29:39 Trump might become the president next time.
29:41 And he will say, okay, I accept the offer of China,
29:44 we divide the world.
29:46 You take care of the,
29:48 your sphere of influence will be the South China Sea.
29:52 And that could happen.
29:53 That's why I'm saying we should prepare for that day.
29:57 We should now engage our ASEAN neighbors,
30:01 Vietnam, Malaysia, Indonesia,
30:03 that at the end of the day,
30:05 it might be just ourselves trying to defend
30:08 what's ours here in the South China Sea
30:11 because the two superpowers might come to an agreement.
30:16 And that will just leave us on our own
30:20 to defend our maritime zone.
30:22 So let us do it now.
30:23 Let's conduct naval drills jointly to protect,
30:26 to fortify our defenses.
30:31 And that is why I say we have to develop
30:34 our military capability.
30:36 Because at the end of the day, we only have to rely,
30:39 we can only rely on ourselves really.
30:41 And if you look at history,
30:45 countries that failed to develop
30:47 a credible self-defense force were eaten up,
30:51 were absorbed by their stronger neighbors.
30:54 And we have to be prepared for that.
30:57 We cannot rely forever on the US
30:59 because their policy could change.
31:02 I mean, they could get tired of defending others.
31:05 You may have a Trump there who will just say,
31:07 "Okay, let's just divide the world."
31:09 And there's a danger that he could also be the next president.
31:14 So we have to prepare for that.
31:16 I mean, yes, we are allies now,
31:21 but their national interests could change.
31:25 That's why it's important we must develop
31:27 our military defenses.
31:30 We must have a credible self-defense force.
31:34 And we're far from that.
31:36 There is no free lunch in this world.
31:38 If you don't put up your defenses,
31:42 you don't fortify your defenses,
31:45 then you will be erased from the map.
31:48 That has happened to many countries.
31:50 And it could happen to us
31:51 if we don't develop a credible self-defense force.
31:55 - Okay, Justice Carpio,
31:57 in a previous era, we challenged China
32:01 in the international tribunal,
32:03 and the Philippines won.
32:06 And then the Duterte administration
32:09 that came after that,
32:11 after the Aquino administration,
32:12 which challenged China,
32:14 reversed course and decided
32:17 to be friendlier towards China.
32:20 That was their strategy,
32:22 perhaps thinking that Philippines
32:24 will somehow benefit from that kind of stance
32:28 or policy towards China.
32:30 But so looking back now, Justice,
32:34 did the Duterte administration's policy
32:36 of friendship towards China
32:38 help the Philippine cause?
32:40 What did we gain or lose?
32:44 And how would the situation be different
32:46 if President Duterte continued the policies
32:50 of the Aquino administration?
32:52 - Well, we didn't gain anything.
32:53 We were taken for a ride by China.
32:56 China promised us 22 to 24 billion
32:59 in loans and investments.
33:01 That never materialized.
33:02 Only less than 3%, 4% of that materialized.
33:06 And that's nothing compared to the last year,
33:09 six years.
33:10 We didn't do anything.
33:12 We allowed China to fish
33:14 in our exclusive economic zone
33:17 against the express provision of the Constitution.
33:20 We did not do anything to fortify our claim.
33:27 We're doing that now.
33:29 We're having joint patrols
33:30 with all other countries,
33:31 with many countries.
33:32 But that was really a terrible period.
33:36 I mean, it was a nightmare for us
33:39 who were trying to defend the country
33:42 because you have the president
33:44 who was just being fooled by China.
33:48 And it was very obvious
33:49 that the goal of China
33:51 is to get the South China Sea
33:53 within the nine, now 10-dash line.
33:56 That's very clear.
33:57 I mean, to any average person,
34:02 that's very clear.
34:03 But here is a president who said,
34:06 "Oh, China is our friend.
34:08 "I love Xi Jinping."
34:10 So it was a terrible time, really.
34:12 It was a terrible time.
34:14 - Okay, Justice, another issue.
34:15 I just wanna pivot a little bit.
34:17 Before we end, I wanna ask you
34:20 your thoughts on the moves
34:22 to change our Constitution.
34:24 I know you've been speaking out
34:25 about this as well.
34:27 Any latest thoughts about this?
34:30 Is there a need to do this?
34:32 - Well, first, the reason,
34:36 postensible reason that they're saying,
34:38 telling all of us,
34:39 is that we need to change
34:41 the economic provision of the Constitution
34:43 to increase the foreign direct investment.
34:46 Because without foreign direct investment,
34:49 the unemployment will remain high.
34:52 The economic growth will be slow.
34:55 Okay, let's look at that.
34:57 We have already opened the economy
35:01 under the latest amended
35:04 Public Service Act.
35:05 We opened transportation,
35:09 airlines, sea transportation,
35:12 and land transportation,
35:13 except for PUVs,
35:14 so individual jeepney drivers.
35:19 We have opened, even before banking,
35:23 200% foreign ownership,
35:24 we have opened legal trade.
35:26 We require only 10 million per store.
35:29 That's very low.
35:30 We have opened power generation
35:34 for wind, for solar, for tidal,
35:38 for hydro, for thermal.
35:42 We have opened practically everything already.
35:47 There are about four or five items
35:50 that we have not opened up.
35:53 So, as far as our neighbors are concerned,
35:57 we are there among the most liberalized
36:00 countries in terms of foreign investments.
36:05 We have the most liberal
36:07 foreign investments lost now.
36:09 But still, our foreign direct investment is low.
36:11 Why?
36:12 Because the causes of our low
36:16 foreign direct investment are,
36:17 one, high power rate.
36:20 The foreign nationals come to Asia,
36:24 ASEAN, to put up plants, to manufacture.
36:28 The plants use a lot of power,
36:30 and it can be anywhere from 20 to 60%
36:34 of your operating cost.
36:36 So, if they locate there,
36:40 they cannot compete with their competitor
36:42 or establish a plant in Vietnam or China,
36:45 whose power rates are very low.
36:47 So, that's really one of the factors
36:51 of why our FDI is low.
36:53 Second is that we are too bureaucratic.
36:57 To open a plant, you have to go to the barangay
37:00 to get a locational clearance.
37:02 You have to go to the municipality
37:04 to get the mayor's permit and all others.
37:06 You have to go to the executive department
37:09 that has jurisdiction over you.
37:12 It could be the Department of Health,
37:16 if you're manufacturing medicine.
37:17 You have to go to specialized agencies
37:20 that have also jurisdiction.
37:22 So, compared to Vietnam and China,
37:26 you just go to one office.
37:27 You get all your permits there.
37:29 So, in terms of bureaucracy, we're too bureaucratic.
37:34 I mean, it's a nightmare for foreign investors
37:39 to get all the permits in the Philippines.
37:43 The third is that our infrastructure is behind
37:48 compared to our ASEAN neighbors.
37:50 You can just go to our airports
37:52 and you can see that our airports are not on par with them.
37:56 Even our internet, quite slow still,
37:59 although we're improving.
38:01 And the roads, seaports, we have to improve.
38:05 We have really to invest to improve our infrastructure.
38:09 So, we have to address the real causes.
38:14 The Constitution has nothing to do.
38:17 Because if you go to China, you go to Vietnam,
38:21 their citizens cannot even own land
38:23 because the state owns everything.
38:26 Their citizens can only have 75-year lease,
38:28 both in China and Vietnam.
38:32 And in Vietnam or China,
38:34 foreigners cannot own more than 49% of telecommunications.
38:39 We allow 100%.
38:42 We have opened up really our economy.
38:44 We are more liberal than Vietnam or China,
38:47 yet they get more FDI.
38:49 They get more foreign direct investment.
38:52 So, you can see where the problem is.
38:55 Power cost.
38:56 We are too bureaucratic.
38:58 And our infrastructure is lagging behind.
39:04 So, that's why I think there must be something else.
39:07 Why do they want to change the Constitution
39:10 when it has nothing to do with a low FDI?
39:14 Well, I think the answer is that
39:17 in their People's Initiative,
39:18 it's not the economic provisions that are being changed.
39:22 It's how to vote.
39:24 They want the voting to change
39:26 so that only they can propose amendments
39:30 upon the call of the speaker alone
39:33 and the vote of the members of the house alone,
39:36 even if the entire Senate will be against a proposed change,
39:41 they can totally ignore the Senate.
39:45 So, they're changing the check and balance within Congress,
39:49 and that is a revision
39:51 that's not allowed in a People's Initiative.
39:53 So, it's very clear.
39:55 They said the low FDI is to be blamed on the Constitution,
40:00 but they're not changing the provision of the Constitution.
40:06 The economic provision,
40:07 they're changing the political provision.
40:09 - Thank you.
40:10 That's quite clear.
40:11 I want to wind down now, Justice,
40:13 by asking you about one of your pet projects
40:16 while you were in the Supreme Court,
40:19 the e-library or electronic library
40:21 of Supreme Court cases.
40:23 I think you began it about 20 years ago,
40:27 and it more recently became accessible
40:31 to the public for free.
40:35 Why did you start this,
40:37 and what is its value to the public?
40:41 - Well, before I joined the Supreme Court,
40:46 I had on my laptop all the decisions of the Supreme Court
40:51 from 1901 to the present then,
40:54 all the laws of the Philippines from 1901 up to that time,
40:59 and I had a search engine,
41:02 and I could just type a letter, a word, or a phrase,
41:07 and I could get all of this instantly.
41:10 And I said, "A judge to be efficient must have this,
41:15 "because if you don't have that, can you just imagine
41:19 "you have to go through all the decisions,
41:23 "and you need an army of law clerks to do that,
41:27 "and we don't have that."
41:28 So I said, "Okay, I will provide this facility
41:32 "to all the judges and all their law clerks."
41:37 And so I put it up.
41:40 I put that up.
41:41 We bought scanners.
41:43 We scanned all the decisions.
41:45 So you can find there in the Supreme Court e-library now
41:48 all decisions of the Supreme Court since 1901,
41:51 more than a century ago,
41:53 all the laws of the Philippines
41:55 from the very beginning since 1901 up to now,
41:58 and all the circulars, rules and regulations
42:02 handed down by the Supreme Court.
42:03 So it's all there.
42:04 And all the judges now all over the country,
42:11 we are an archipelago,
42:13 and before we used to send mimeograph copies
42:17 of the decisions,
42:18 and it was difficult to send these mimeograph copies,
42:20 they're bulky, and the post office refused to carry them
42:23 because they said it's not mail, it's cargo.
42:26 And we had this running problem with the post office.
42:29 They said, "We will not carry that.
42:30 "That's cargo, that's not mail."
42:32 So we even came out with a resolution
42:36 directing them, mandating them to carry it.
42:38 But the postman, he will just throw away
42:41 those bulky decisions, and will not deliver.
42:46 And that was our problem.
42:47 The judges had no copies of our recent decisions.
42:51 So what we did, because of the internet,
42:55 we gave them access,
42:57 and also on a quarterly basis,
43:01 we sent them CDs, compact discs of the recent decisions.
43:08 So the postmen were very happy
43:13 because they were just carrying the disc
43:14 instead of a pile of cargo of paperwork, paper.
43:19 So that's how all the judges all over the country
43:25 could instantly get the latest decisions
43:28 of the Supreme Court.
43:30 And now we opened that, just before I retired,
43:32 we opened that to the public.
43:34 So all the law schools, all the law students,
43:36 they have access to this already.
43:39 And the public also has access to that.
43:41 - Yeah, so it's useful not just for judges,
43:45 but for any researchers, law students,
43:48 or anyone needing to look up laws
43:50 and regulations of the country.
43:53 So on that note, we wanna thank you, Justice Carpio,
43:57 for this important service of providing those documents,
44:01 that heritage of laws to the public,
44:06 but also for shedding all this light
44:09 about our territorial issues.
44:11 And thank you for spending this time with us,
44:14 former Supreme Court Associate Justice, Antonio Carpio.
44:17 (speaking in foreign language)
44:20 - Thank you, Howie.
44:21 Thank you to our viewers for listening, for watching.
44:23 Thank you.
44:24 - Hi, I'm Howie Severino.
44:27 Check out the Howie Severino Podcast.
44:29 New episodes will stream every Thursday.
44:31 Listen for free on Spotify, Apple Podcasts,
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