Jardeleza removable only by impeachment – SC

A sitting justice of the Supreme Court (SC) like Associate Justice Francis Jardeleza can only be removed by impeachment.

This was the ruling of the SC en banc in a disbarment case filed against Jardeleza amid the filing of motion for reconsideration of the Judicial and Bar Council (JBC) questioning the recent SC ruling that Jardeleza should be included in the short list that paved way for his appointment.

The 15-man tribunal junked the disbarment case lodged against Jardeleza, contending that he is now an “impeachable officer.”

A resolution dated August 26, 2014, signed and promulgated by lawyer  Enriqueta Vidal, Clerk of Court of the SC en banc,  dismissed the complaint filed by lawyer Reynaldo Cortes against Jardeleza when he was the then- Solicitor General.

The High Court argued that in view of the appointment of Jardeleza as justice of the SC, he is now considered an impeachable officer under the 1987 Constitution.

This means that Jardeleza can only be removed from office via impeachment proceedings.

Cortes filed the disbarment case, citing Jardeleza’s alleged violation of the Code of Professional Responsibility when he was still the Solicitor General.

His case supports Chief Justice Maria Lourdes Sereno dropping Jardeleza from the shortlist of nominees when he was applying as Associate Justice of the SC.

Cortez filed an Opposition in Intervention in the SC by also questioning the integrity of Jardeleza as a lawyer.

Sereno and Associate Justice Antonio Carpio blocked the nomination of Jardeleza in connection with the “Itu Aba” property dispute in Taiwan and the Chief Justice  even raised an “immorality” issue against Jardeleza.

According to an SC insider who talked to The Manila Times on condition of anonymity, this ruling of the High Court will be echoed in the motion for reconsideration filed by the JBC against Jardeleza.

The source said it was only Sereno who cannot accept that Jardeleza is now in the SC.

“The move to attack Jardeleza again is an exercise in futility… because everybody in the court knows that it will be moot and academic,” the SC source added.

With a vote of 7 against 4, the SC granted a petition of then Solicitor General Francis Jardeleza to be included in the shortlist of nominees for a vacant post in the tribunal.

The seven justices who granted the petition of Jardeleza believed that Sereno and the JBC deprived Jardeleza of his right to due process by excluding his name from the shortlist despite his garnering the required majority vote.

source:  Manila Times

Stopping ISIS: What international law and the Pope have to say

THE OUTRAGE generated by ISIS’ atrocities effected unity of sorts among people of different persuasions. Except for the Left in the United States, which is incapable of grasping the notion that President Obama’s foreign policy is effete at best and likely nurtured ISIS’ rise, many are of the belief that the world’s governments should do something concrete to stop the terrorist onslaught. Right that sentiment may be, but in international law terms it’s easier said than done.

Which is ironic, as Pope Francis himself was reported to have approved of the air strikes against ISIS (more on that later). The legality, however, of the air strikes (or any military move by a foreign power) against ISIS is, believe it or not, questionable at this time.

Colum Lynch in a Foreign Policy piece correctly pointed out:

“International legal experts say the United States has an uphill battle convincing many of its allies that there is a legal rationale for extending strikes into Syria. The UN Charter offers two major paths to military action. A government is permitted, under Article 51, to use force against an armed aggressor in self-defense. It can also invite foreign powers to help it defend itself, as Iraq has done. The UN Security Council can, under Article 42, authorize a military intervention. But those roads may be blocked for the time being.

“The Syrian government has not approved American air power. Syrian Foreign Minister Walid Muallem warned that Bashar al-Assad’s regime would consider American military intervention in its territory an ‘act of aggression’ unless it coordinated its activities with Damascus -- a condition Washington has rejected. And Russia -- while no friend of the Islamic State -- may not be inclined to approve a Security Council resolution granting Washington a blank check in Syria.”

Ryan Goodman, on the other hand, stated:

“In conducting attacks against ISIS, the United States might assert either (1) the right of individual self-defense due to ISIS’ direct threat to the United States; or (2) the right of collective self-defense in coming to the aid of Iraq. At this point, the former is a weak one -- without a truly imminent or actual ‘armed attack’ against the United States. The latter is solid.

“But what about US forces crossing the border into Syria? The US government would likely assert that Syria is ‘unwilling or unable’ to deal effectively with the ISIS threat. This is the same prerogative that the United States invokes in other parts of the world (think: the US operation to kill Osama bin Laden without seeking Pakistan’s approval). The ‘unwilling or unable’ test is now a fairly well settled part of the US government’s legal position. Nevertheless, it remains controversial under international law.”

Regarding “collective self-defense” that Goodman indicated above, the same could be legally defensible but politically difficult. Considering the dynamics involved in Security Council votes, as well as Obama’s continuing inability to show leadership in this matter, for it to authorize actual military force is currently improbable.

As for the Pope himself agreeing to the use of force, what he actually said was aptly described by Think Progress as follows: “‘I can only say this: It is licit to stop the unjust aggressor,’ the pontiff said in reference to ISIS, according to CNN. ‘I underline the verb: stop. I do not say bomb, make war, I say stop by some means.’ ‘But we must also have memory,’ he added. ‘How many times under this excuse of stopping an unjust aggressor the powers [that intervened] have taken control of peoples, and have made a true war of conquest.’”

Indeed, under the teachings of the Church, military force may be morally permissible if “the following conditions are simultaneously present:

• the suffering inflicted by the aggressor must be lasting, grave and certain;

• all other peaceful means must have been shown to be ineffective;

• there are well-founded prospects of success;

• the use of arms, especially given the power of modern weapons of mass destruction, must not produce evils graver than the evil to be eliminated.”

And even then, “during a war the moral law always remains valid. It requires the humane treatment of noncombatants, wounded soldiers and prisoners of war. Deliberate actions contrary to the law of nations, and the orders that command such actions are crimes, which blind obedience does not excuse. Acts of mass destruction must be condemned and likewise the extermination of peoples or ethnic minorities, which are most grievous sins. One is morally bound to resist the orders that command such acts.”

Which just goes to show that, even in war, what is moral is not necessarily legal. And vice versa.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com