No lawyer can claim to have won all his cases. If any lawyer claims otherwise, he or she is obviously lying.
In public interest litigation, an actual victory need not be the ultimate goal. Sometimes, the fact that a petition against a tyrannical or a whimsical act of government is filed in court is victory by itself. This is because the filing of the petition is the message itself, forming part of an overall advocacy strategy intended to provoke public debates on issues involving the public interest.
Such was our concern when we challenged the constitutionality of the 2009 Archipelagic Baselines Law.
Our primary basis for challenge was because the law seeks, pursuant to the United Nations Convention on the Law of the Sea, to reclassify our internal waters into “archipelagic waters.”
Under this new regime, all vessels, including the USS Guardian or the Chinese fishing vessel that recently grounded in Tubbataha, are given the right to innocent passage in the waters within our straight baselines. This despite the fact that Article 1 of the 1987 Constitution refers to these waters as “internal waters.” Passage through internal waters always requires the consent of the coastal state, whereas the exercise of innocent passage does not.
Moreover, the UNCLOS provisions on archipelagic states allow aircrafts the right of overflight over these waters. Worse, it allows vessels transit passage, or non-suspendible innocent passage, in archipelagic straits. These are maritime superhighways governed by the same legal regime applicable in international straits. The legal regime in these waters is that vessels must always be allowed uninterrupted passage. If these transits are not designated, then the actual straight shall be determined through actual usage. This means that the West Philippines Sea, where 80 percent of all maritime traffic goes through, would be governed by the legal regime of international straights.
Obviously, our argument was that the constitutional “internal waters” could not be made into “archipelagic waters” either through law or through treaty. Only a constitutional amendment could achieve this.
But we lost our case. The Supreme Court said that despite the radically different legal regime of archipelagic waters, the scope and breadth of our territory had not been altered. It was not until the landing of the Royal Sulu Army in Sabah that I realized the import of the Court’s ruling in this regard—that even if the 2009 law did away with the provision in the 1950 baselines law that the use of basepoints and baselines was without prejudice to our claim to Sabah, the passage of the 2009 law did not abandon our claim to Sabah. This was a clear case of judicial legislation.
In any case, what the Convention approved as the regime for archipelagoes was not what our delegates to the UNCLOS wanted. They wanted, pursuant to our Constitution, the exercise of complete sovereignty and jurisdiction in our “internal waters” given that military vessels may otherwise be able to exercise the right of innocent passage through these waters. When they failed in this regard, the Senate, as a precondition to our ratification of the UNCLOS, required our delegation to deposit a “declaration” that our territory shall continue to be defined by our Constitution.
The grounding of the USS Guardian and the Chinese fishing vessel in Tubbataha are only the beginnings in the folly created by this archipelagic baselines law. In the past, neither vessel could have sailed through the Sulu seas without our consent. The law has done away with such consent. Worse, we have reduced by at least 229,000
square kilometers the scope of our territorial waters, which is subject to our sovereignty and jurisdiction. In this regard, the Supreme Court erroneously concluded that the loss had been compensated through our gain in terms of Exclusive Economic Zone.
This however, is non sequitur since a state can only exercise the right to explore and exploit the resources found in the EEZ. It cannot exercise powers of sovereignty in them.
Ultimately, the Court ruled that pacta sundt servanda—or treatyobligations must be compliedwith in good faith—should prevail even against an express provision of the Constitution. In so ruling, it forgot that the Constitution itself provides a policy crafted by the Filipino people. In the case of our territory, the sovereign people decreed that all the waters of our archipelago, because of national security considerations, precisely of the type that we now face with China, should be subject to our sovereignty and jurisdiction. But because Congress, when it legislated the 2009 law, and the Court, through its ruling in Magallona vs. Executive Secretary, defeated the will of the sovereign people in this regard, expect the recent groundings in Tubbataha as a foreboding of worse things that are yet to come.
May the heavens help this land (and waters)!
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development and its RA 9646, the Real Estate Service Act of 2009, visit
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