FOLLOWING criticisms hurled at the Consultative Committee’s proposed draft federal constitution, some leading members of the Con-com still believe their draft is better written than the 1987 Constitution.
Sought for comment by the BusinessMirror on certain comments by experts last week, Con-com member and San Beda Graduate School of Law Dean Fr. Ranhilio C. Aquino said in a message: “Every sentence is fraught with purpose, every line has history and law as its warrant. What could be so defective about this proposal?”
He was reacting to remarks by maritime law expert Jay Batongbacal on Thursday on the sidelines of the forum on the second anniversary of The Hague ruling on the West Philippine Sea/South China Sea dispute, that parts of the Articles on National Territory and National Economy and Patrimony could cause more problems for the Philippines.
Batongbacal told the BusinessMirror the Con-com’s provision on National Territory is not “well-written” and had “errors,” and that the proposal will only attract protests from China and Malaysia. The professor said the proposed provisions will not strengthen the claim of the country over the disputed waters, negating the Con-com’s earlier stated intent in revising the current provision on National Territory.
Error acknowledged
Although he thinks their draft is “far better written” compared to the 1987 Constitution, Aquino said he “conceded” to what Batongbacal pointed out among the “errors” of the Con-com draft, i.e. that the Philippines has “sovereignty” over the continental shelf.
Batongbacal said in an earlier interview this is not possible because under international law, the country only has “sovereign rights” over the continental shelf.
Aquino said the journal of the Con-com debates will show that he repeatedly underscored this point.
“That is the reason that at the time the draft was printed, I already submitted my comments and asked that ‘continental shelf’ be deleted from the scope of sovereignty,” he said.
Despite the “error,” Aquino stressed he remained confident about their draft provisions and even noted that their draft made explicit claim to sovereign rights and not just sovereignty.
“For one thing, the 1987 Constitution said something about ‘insular shelves’ over which Philippine sovereignty was supposed to extend. What concept of international law or domestic law is that? Where is it found in the Law of the Sea—insular shelves?” he asked. “Where did the 1987 Constitution provide for sovereign rights, which, though not identical with sovereignty, are as economically and even politically important?”
Section 1 of Article I National Territory of the proposed draft federal charter states: “The Philippines has sovereignty over its territory, consisting of the islands and waters encompassed by its archipelagic baselines, its territorial sea, the seabed, the subsoil, the continental shelf, and its airspace. It has sovereignty over islands and features outside its archipelagic baselines pursuant to the laws of the Federal Republic, the law of nations, and the judgments of competent international courts or tribunals. It likewise has sovereignty over other territories belonging to the Philippines by historic right or legal title.”
Aquino said in this provision, the Con-com is not saying that they should wait for the disposition of other issues by international courts or tribunals.
“We are asserting sovereignty over those islands and features outside the archipelagic baselines. In fact, we are asserting what must still remain litigated: our claim to islands and features also claimed – and usurped by the People’s Republic of China,” he said.
Basis for Sabah claim
He also defended their decision to return the phrase “historic right or legal title” because former Senate President Aquilino “Nene” Pimentel Jr. had pointed to the need to provide a constitutional basis for the government to purse its claim to North Borneo (Sabah).
“While we may not actually be in effective control of North Borneo—which is the prevailing criterion in international law insofar as sovereignty goes—we lay claim to it by historic right and legal title,” he said.
Batongbacal also said that domestic law does not apply to international law and questioned the need to mention the Philippine Rise in the proposed provisions, as it will not leave room to accommodate the possibility of some changes in the national territory of the country unlike the 1987 provision, which is still “more flexible and encompassing.”
Section 2 of the same article of the proposed federal charter stated that: “The Philippines has sovereign rights over that maritime expanse beyond its territorial sea to the extent reserved to it by international law, as well as over its extended continental shelf, including the Philippine Rise. Its citizens shall enjoy the right to all resources within these areas.”
Responding to Batongbacal, Aquino said that Pimentel also stressed that no government should, in the present or in the future, compromise the country’s claim to Benham Rise, which the UN body that delineates the limits of the continental shelves has ruled to be a continental shelf of the Philippines.
“Why then the mention of international law and international judgments? To make clear that all our claims are anchored on international law and make jurisprudence of international tribunals, and to anticipate furthermore judgments in our favor,” he said.
“At the present time, the Kalayaan Island is governed by the Regime of Islands. What is wrong in adverting to that and making explicit the 1987 Constitution encompassed by the word ‘domain’?,” Aquino added.
Generoso vs Davide
Former Chief Justice Hilario Davide Jr. on Friday also criticized the draft Charter for not mentioning the West Philippine Sea although it mentioned the Philippine Rise.
Responding to Davide, Con-com Spokesman Conrado I. Generoso said: “If you honestly believe that the phrase ‘West Philippine Sea, should be put in the Article on National Territory, then why are you adamantly opposed to changing a word in the 1987 Constitution? Where is the logic and where is the sincerity in your position?”
Generoso noted that the 1986 Constitutional Commission where Davide was a member had the chance to put the words “West Philippine Sea” or “South China Sea” but did not do so, and did not even make any loose reference to it in the 1987 Constitution.
Unlike the Con-com’s proposed draft, he said the 1987 Constitution only talked of sovereignty over territory. “And they abandoned the Philippine claim to Sabah, which has existed in previous constitutions,” Generoso noted.