MANILA – Former Solicitor Gen. Florin Hilbay on Wednesday said the Senate must conduct an investigation into the "informal agreement" of President Rodrigo Duterte with China that allows it to fish in Manila's exclusive economic zone (EEZ).
"You need to have an investigation at the minimum by the Senate. What was bargained away by President Duterte, what the specific terms were, and whether or not it undermines the provision of our Fisheries Code and article 12 of our Constitution," Hilbay told ANC's Early Edition.
The President earlier said he could not bar Chinese fishermen in the Philippines’ EEZ due to a "mutual agreement" he made with Chinese President Xi Jinping.
Hilbay, who participated in the Philippines arbitration case against China, described the agreement as "not fair, not practical, and in clear violation of the Constitution."
"I think if they wanted to enter into some kind of informal agreement pwede naman nilang sinabi na (they could have said) we won this case, but we understand you have a very powerful navy out there," he said.
"We’ll allow the Chinese fishermen to fish in our EEZ but every time we catch them we’re going to complain, we’re going to file a protest because we have a national territory to protect."
Hilbay added that there's "no way under Philippine laws and Constitution" that the verbal deal could be "valid and binding," as Presidential Spokesperson Salvador Panelo earlier said.
"Informal agreements are okay but how can that be valid and binding when you have a clear provision of Fisheries Code reserving to Filipinos our EEZ, and Article 12 provision exclusively reserving to Filipinos our marine wealth," he said.
Panelo had cited Article 2, Section 4 of the Constitution which states government's duty to "protect and serve" the Filipinos as the legal basis for the agreement.
He said the President was upholding that provision instead of the Article 12, Section 2 provision stating government must protect the Philippines' marine resources, which Duterte earlier called "thoughtless and senseless."
Hilbay, however, said the President could not choose which provisions he would uphold.
"You have to take the Constitution as is and entirely. You can’t say in the guise of protecting the people I’m going to pick and choose the provisions of the Constitution I want to use," he said.
"That’s dictatorship basically. I’ll use it for my own ends when I want to on those conditions that suit me. Otherwise, I’m not going to use the Constitution, I’m going to disregard that particular provision of the Constitution."
Duterte has several times said he is avoiding conflict with China, which would lead to a war that cannot be won by the Philippines.
Hilbay, meantime, said the Philippines has asserted its rights in the past by arresting Chinese poachers, citing incidents in 2014 and 2016.
"We have a history of enforcing our EEZ which has not led to war…They were subjected to the jurisdiction of the regular courts, the Fisheries Code was applied," he said.
Hilbay said the President's remarks were "obviously just an excuse to take the side of China."
"If China really believe it owned our EEZ, it would be enforcing its own laws. Arresting Filipino fishermen for fishing in Recto Bank, for example. They’ve never done that," he said.
"It’s not as if they’re enforcing their own domestic laws within our waters, it’s us refusing to exercise our own laws within our own waters."
"I think China knows it doesn’t have rights over these waters, they’re simply trying to bully the Philippine government into submitting and recognizing those rights."
The President's remarks might affect the decision of arbitral tribunals in the future, Hilbay warned.
"Just because we won the decision in Philippines vs China, it doesn’t mean that we have that forever. If an administration in some point ends up recognizing the rights of China and allows China to exercise rights within our rights, then it undermines our rights," he said.
"At some point, a future tribunal will say ‘You had a right but you lost it because you recognize the other party’s rights after it lost.’"
Beijing has refused to recognize the 2016 United Nations-backed arbitral ruling that invalidated its sweeping claims in the disputed South China Sea.