The word “exclusively” in the 1987 Charter’s provision on national patrimony could be excluded in the proposed federal constitution, in the process removing obstacles to deals like the joint Manila-Beijing exploration in the West Philippine Sea (WPS) currently being hatched by the two countries.
Arthur N. Aguilar, chairman of the Subcommittee on Economic Reforms of President Duterte’s consultative committee (Con-com), told the BusinessMirror they are studying “very carefully” various options for possible
amendment of the current provision, as it “binds the hands of the government to come up with a compromise to peacefully settle the overlapping claims in the West Philippine Sea.”
“If you say ‘exclusively,’ if you interpret it strictly, there is no commercial compromise with China on the West Philippine Sea,” Aguilar said. “It says ‘exclusively,’ so any president who does that could be violating the Constitution, if interpreted strictly.”
Article XII Section 2 on National Economy and Patrimony states that: “the State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.”
Aguilar noted that they are open to all options, including retaining the provision, removing the word exclusive or removing the whole sentence.
Removing the word exclusive would make the provision general, since there is another constitutional provision that allows the president to go into production sharing with the concurrence of Congress.
“Either we keep it as is, or we revise the language, or give the leeway to government, or to the president with the concurrence of Congress to enter into various agreements with various countries,” he said.
Asked if the removal of the word exclusive would soften the country’s stance on its ownership of the WPS, Aguilar said: “It will. That’s why we need to be very, very careful. That’s why we need to listen to experts, aside from the fact that we have legal luminaries in the committee. We need to get as many opinions as possible.”
Foreign Undersecretary Manuel Antonio J. Teehankee also reported to the subcommittee last week the research and recommendations of the 1999 Preparatory Commission on Constitutional Reforms, which was mandated to focus on economic provisions.
Teehankee said in an interview that the recommendation is to encourage general direction and leave details to the legislature to craft good governance principles by sector.
“Based on the research of the constitutions across the region, that is how economic policy-making is done through legislation because it must address specific circumstances from time to time,” he said.
Maritime law expert Jay L. Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, stressed that the exclusive reservation and use of the nation’s marine wealth to Filipinos and the restrictions on equity and ownership of natural resources development “make it difficult for another country to control any activity concerning natural resources.”
Batongbacal said he is also open to a joint exploration as a recommended way to address maritime disputes, provided that “there should be safeguards to protect our own national interest.”
“Now with the current system, my view is it is actually possible to work out some kind of agreement and arrangement that will allow joint exploration and joint development, but that arrangement, of course, will necessarily incorporate the minimum protections that are present in the Constitution,” he said. However, Batongbacal noted that the assumption worldwide is that joint exploration and development should only be conducted by countries that are in a legitimate dispute.
But because of the arbitral ruling on the WPS, China’s claim on Philippine resources should be considered illegitimate.
“This joint-development agreement, joint exploration really, should be clearly seen as a political accommodation—not a legal arrangement—because if it’s a legal arrangement, then that has a series of implication on our sovereignty and jurisdiction over the area. We are basically giving up something,” he said.
Batongbacal pointed out that the current Constitution allows for foreign partners, but under the sole and direct control of the state, which is the essence of entering into service contracts.
But it is a different case with China since it also wants to control basically the exploration and development of natural resources in the WPS.
“No, it’s not that we’re discriminating against China, it’s that China is the one laying a claim—sovereignty rights—over our resources. The [other] countries, they do not,” he said.
He also doubted that Beijing would agree to the current service-contract system, as this would mean that it is basically accepting that the Philippines owns these resources, and that it is going to do this activity under Philippine sovereignty and control, which is like conceding its claim.
Critics, such as Supreme Court Senior Associate Justice Antonio Carpio, also said that China will have to recognize the Philippines’s exclusive economic rights to exploit resources in its exclusive economic zone if it wants to enter into a joint deal.
On March 6 Presidential Spokesman Harry L. Roque Jr. said China and the Philippines are far from reaching a deal on joint exploration in the disputed South China Sea.
“I had lunch with the Chinese ambassador and [he said], ‘We hope the Philippines will not do that because right now the status quo is serving us very well. We want bilateral talks ahead of unilateral action on the part of the Philippines,’” Roque said in an interview with CNN Philippines’s The Source. “So I don’t know where we are.”
Previously, Malacañang announced a possible joint exploration deal with China in two areas under Service Contracts 57 and 72.
SC 57 covers undisputed waters in offshore Northwest Palawan, while SC 72 covers the Reed Bank located within the country’s exclusive economic zone, but also claimed by China.
However, the Palace clarified that there will be no coownership in the proposed joint exploration following Duterte’s statement that that the best option to handle the issue was through the joint-exploration deal.
China refuses to recognize a 2016 international arbitral ruling recognizing the Philippines’s rights over contested areas in the South China Sea. Despite the ruling, Duterte chose to instead repair diplomatic and economic ties with China, in line with his foreign policy to deviate from the Philippines’s traditional ally, the United States.