Former SolGen: Gov't policy on China is 'betrayal of public trust'

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  • Betrayal of public trust is ground for impeachment
  • Hilbay acknowledges Duterte impeachment unlikely
  • Hilbay: Cayetano could be lying about 50 to 100 protests
  • Hilbay disputes Cayetano: Written protests superior to verbal protests
  • Losing territory in West Philippine Sea could mean higher electricity rates

Metro Manila (CNN Philippines,  July 12) — The government's foreign policy violates the law and betrays public trust, former Solicitor General Florin Hilbay said on Thursday.

Hilbay told CNN Philippines' The Source that the government's approach could be one of "waiver," where inaction on the part of the Philippines could eventually cause it to lose its claim.

"I'd say it's a culpable violation of the Constitution," he said. "There's no doubt in my mind as a constitutionalist, as the agent who served as counsel for the Republic, that these are clear betrayals of public trust."

The betrayal of public trust is a ground for impeachment under the 1987 Constitution.

However, Hilbay acknowledged it would be difficult to unseat Duterte, as the ruling party has a supermajority in Congress.

He added that the foreign policy was not only defeatist, but is often expressly pro-China.

Hilbay's remarks coincide with the second anniversary of the Philippines' win at the arbitral tribunal at The Hague. The ruling recognizes the Philippines' sovereign rights over the disputed waters.

China has refused to recognize the decision. It has maintained a growing military presence and recently faced outcry as its Coast Guard took Filipino fishermen's catch. President Rodrigo Duterte has promised to bring up the ruling by the end of his term, but it was placed in the backburner during talks with the eastern giant.

A potential case before the SC

Given their disagreement with foreign policy, Hilbay and allies that he did not name are considering filing a case at the Supreme Court (SC). Specifically, he wants the SC to compel the Department of Foreign Affairs (DFA) to be transparent about the diplomatic protests it filed.

"We have in fact been thinking of filing a case before the Supreme Court to specifically compel the [DFA] to show any of those protests," Hilbay said.

The protest is a method of diplomatically expressing disagreements with the actions of another nation. It also functions as the record should a case be elevated to an international court.

Foreign Affairs Secretary Alan Peter Cayetano previously said the government had filed between 50 to 100 protests, but has repeatedly maintained the government cannot divulge them to protect national interest.

However, Hilbay does not think the protests have to be revealed in its entirety. He said the arbitral ruling is a public document, and portions of the diplomatic protest that cite it could be publicized.

"Portions of the complaint where they invoke portions of that public document should not be confidential at all," he said.

Senator Risa Hontiveros also urged the Senate Committee on Foreign Relations to look into the matter. She challenged Cayetano to "present proof, or it didn't happen."

RELATED: Minority senators seek probe on Chinese military aircraft landings

Malacañang on Thursday said that Hilbay was free to file charges as he saw fit.

"It's a free country, they can file it and we will meet them in court," Presidential spokesperson Harry Roque said in a briefing.

Roque maintained that the government was "not hiding" its efforts to protect sovereignty in West Philippine Sea.

"I have said that we are discussing this in the bilateral mechanism we have with China which also has the effect of a protest," he continued. "The President has publicly protested in some instances and I know of formal protests filed directly with the embassy upon express direction of the President."

In a previous interview with The Source, Cayetano said that raising concerns at the Bilateral Consultative Mechanism with China was already a form of protest. He maintained that verbal and written protests held the same weight in foreign policy.

Hilbay disputed this, saying there was no way of tracking or verifying a verbal complaint and it could not be cited in future court cases. He said a written protest was "superior," and it does not have to bank on one person's word alone.

"You don't have any evidence of this (verbal) protest. Whether it can be seen on the transcript, we don't even know," said Hilbay. "On the other hand, a formal written protest can be publicized, can be filed (at) a (United Nations) agency, can be a ground for establishing evidence under arbitration."

The government's evasiveness is what leads the former Solicitor General to believe the country's top diplomat could be lying.

"We're faced with the possibility that even the Secretary of Foreign Affairs is lying just to justify the failure to invoke the decision," said Hilbay. "[The] best evidence of those protests would be documents saying that we are invoking the decision... We've never seen that."

For regular Filipinos, losing the territory could translate to less food on the table and higher electricity prices. One of the disputed territories, Reed Bank, is being eyed as a source for oil and gas as the current Malampaya Gas Field may run dry.

Duterte has repeatedly maintained that the Philippines cannot afford to go to war with China, although analysts and experts say that war is not the end-all option. Malacanang has fostered warm ties with Beijing, which has promised billions in investments and loans to the Philippines. Duterte's critics fear that this could result in a debt trap.

CNN Philippines senior digital producer Eimor Santos and intern Samantha Corrales contributed to this report.