Antonio Carpio: Constitution must prevail

MANILA, Philippines — Is Recto (Reed) Bank part of Philippine territory?

Senior Associate Justice Antonio Carpio asked this question as he admitted this is a “justiciable issue” as domestic and international laws provide conflicting answers.

He said, however, that the Constitution must prevail, and it provides that the EEZ is part of Philippine territory.

Carpio last week said Recto Bank in the West Philippine Sea and other areas declared as exclusive economic zones (EEZ) of the Philippines are part of the country’s territory under the 1987 Constitution.

He warned that President Duterte’s reported decision to allow Chinese fishermen to trawl in the EEZ would violate the Charter.

Carpio, however, explained yesterday that international laws do not consider EEZs as part of the national territory.

“Under international law, the Philippines has sovereignty over its territorial sea (within 12 nautical miles from the baseline), and jurisdiction over its EEZ (beyond 12 nautical miles up to 200 nautical miles). International law does not recognize sovereignty beyond the 12-nautical mile territorial sea,” he said.

The United Nations Convention on the Law of the Sea (UNCLOS), which limited territories of states and provided a framework for resolution of territorial disputes, defines sovereignty as exclusive legal authority of a state over its waters, particularly its internal waters and territorial seas.

On the other hand, it classified “sovereign rights” as “limited” entitlements or privileges of a state to its EEZ.

Article 56 of UNCLOS provides that a state has sovereign rights in its EEZ for the purpose of “exploring and exploiting, conserving and managing the natural resources… of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds.”

Under UNCLOS, having sovereign rights over a particular area does not confer sovereignty, thus not tantamount to being a sovereign territory.

Carpio pointed out the 1987 Philippine Constitution provides a contrary perspective.

“Under our Constitution, our national territory includes our EEZ because the Constitution says our national territory includes submarine areas (EEZ) over which the Philippines has jurisdiction. It defines our national territory to include ‘other submarine areas’ over which the Philippines has ‘sovereignty’ or jurisdiction,” he pointed out.

Given this legal conflict, Carpio said the Constitution should prevail over international laws.

He said the Supreme Court has provided guidance in resolving such issues even as it has not ruled on any specific case involving Recto Bank.

“The rule is, as repeatedly held by the Supreme Court, in case of conflict between our Constitution and international law, our Constitution will prevail and this is what our government officials must follow,” he stressed.

Carpio suggested that such legal conflict could be avoided by the government.

“We can avoid a conflict by classifying our national territory into two: those over which the Philippines has sovereignty, and those over which the Philippines has jurisdiction. In any case, the Philippines must defend both types of national territory because that is the mandate of the Constitution,” he explained.

“Just because we do not have sovereignty, but only sovereign rights, in our EEZ does not mean we should not protect our EEZ. Sovereign rights are priceless too, that is why the Constitution directs the State to protect its marine wealth in its EEZ,” Carpio added.

Carpio said Malacañang’s decision to allow Chinese fishermen to trawl in Recto Bank violates the 1987 Constitution.

He explained that Recto Bank is part of the country’s EEZ where Filipinos should enjoy exclusive sovereign right to fish and explore its resources under the Charter.

He cited Article XII, Section 2 of the Charter, which 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.”

“The Philippines has exclusive sovereign right to exploit all the fish, oil, gas and other mineral resources in its exclusive economic zone. This sovereign right belongs to the Filipino people, and no government official can waive this sovereign right of the Filipino people without their consent,” Carpio pointed out.

He also cited the 2016 ruling of the United Nations- backed Permanent Court of Arbitration, which declared Recto Bank as part of the country’s EEZ.

Carpio suggested the government should instead tap the Armed Forces to protect Recto Bank and other parts of its EEZ from poaching foreign fishermen.

The issue on Recto Bank stemmed from the incident last June 9 involving a Chinese trawler that rammed a fishing boat, leaving 22 Filipino fishermen adrift.

Carpio said the government must demand compensation from China over the sinking of the F/B Gemver by what he believed was a Chinese maritime militia vessel.

Critics have voiced anger over the Chinese trawler’s failure to rescue the 22 Filipino fishermen.

President Duterte downplayed the incident, describing it as a “little maritime accident.”

Duterte even allowed the Chinese to continue fishing in Recto Bank, saying the provision in the Constitution mandating the protection of the EEZ is “thoughtless and senseless.”

Duterte went on to brand Carpio as “buang” (Visayan word for crazy) and “stupid” after the senior magistrate said the Chief Executive’s decision to allow Chinese fishermen in the Philippines’ EEZ is unconstitutional.

The incident occurred in Reed Bank, which is within the Philippines’ 200-nautical-mile EEZ and far from China’s nearest major landmass.

The Philippines and Vietnam have partial claims over the South China Sea, where Beijing has staked “indisputable sovereignty” and built artificial islands with military facilities and airstrips.

Taiwan, Brunei and Malaysia also have claims in the area.

Dismal treatment

Although the Philippines filed a diplomatic protest against China, the foreign media perceived Manila’s handling of the incident as dismal.

“It’s funny your president has repeatedly put up a tough stand in the international community even on trivial matters like threatening to launch a war against Canada over garbage but won’t even lift a finger when his people end up in the wrong end of the so-called sea mishap,” said Anh Hoang Pahm, a sub-editor of the Viet Nam News.

He said government officials are acting as lawyers for China and have even downgraded the incident as an “ordinary sea accident” without waiting for an official report on the investigation.

“Only those who have no self-respect will allow themselves to be pushed around,” Anh said.

“Your government has given much already and maybe that’s understandable because you don’t want conflict. But when your people are threatened that’s another story,” Anh said, recalling how Vietnam repulsed China’s agression during the 1979 Sino-Vietnamese war.

Ravi Velloor, an award-winning Singaporean journalist, said China’s actions in the South China Sea are deliberate and calculated to secure the area.

“China has always been aware and have taken precautions to guard their national security because the South China Sea is a weak spot for them. They want to protect their submarines that is why they would always feel vulnerable and this is one reason they will never give up their claims in that area. This is a non-negotiable thing for them,” said Velloor, an associate editor of The Straits Times.

He said China is willing to stand against international public opinion on the South China Sea issue and willing to pay the price for it because it is absolutely essential to their national interest.

“Maybe your president (Duterte) understands this because he is a friend of China but he should also think about your own national interest,” Velloor said.

Chinese-friendly

Back home, opposition politicians as well as segments of the public and the media charge that Duterte has bartered away Philippine sovereignty with little to show in return.

Critics also took note of Duterte’s allowing the Chinese to fish in the country’s EEZ amid the public outcry over the Recto Bank incident.

Vice President Leni Robredo said the government should make public the supposed agreement between Duterte and Chinese leader Xi Jinping to allow Chinese fishermen in Philippine waters.

She stressed Duterte’s admission that he made a deal with China allowing Chinese fishermen to exploit marine resources of the Philippines is a serious concern.

Robredo emphasized that any agreement should not violate the Constitution.

Former foreign affairs secretary Albert del Rosario said Duterte’s failure to protect the Philippines’ territory can be used as basis for his impeachment.

He said the President’s remark allowing China to fish in the EEZ out of “friendship” will embolden Chinese fishermen and worsen the situation in the South China Sea.

Former ombudsman Conchita Carpio-Morales asserted the Philippines has sovereignty over its EEZ as provided in the Constitution, contrary to Duterte’s remark that no country in the world has that right.

Sen. Panfilo Lacson said the government’s action over the Recto Bank incident could have lasting repercussions on the country’s maritime claims in the South China Sea.

Lacson noted the diplomatic protest filed against China as well as the complaint before the International Maritime Organization.

He said the recent actions and pronouncements from Malacañang seem to be weakening the country’s position on the incident, and consequently, its maritime claims.

“We could say this… goes beyond President Duterte, goes beyond (Foreign Affairs) Secretary (Teodoro) Locsin, goes beyond (presidential spokesman) Secretary (Salvador) Panelo because this incident will outlive their terms,” Lacson told dzBB.

He said upon Duterte’s assumption in 2016, his focus was on combating illegal drugs and corruption but he appeared to be unprepared in dealing with tense situations in the South China Sea.

He said nationalism and protecting the country’s interest should be a no-brainer when it comes to defending and protecting maritime interests.

“When it comes to national interest, we choose only one thing—the Filipino (people). But from what we see, especially from the (presidential) spokesman… why does it appear that we’re like the defense counsel of China when it comes to this matter?” Lacson remarked. – With Rey Galupo, Pia Lee-Brago, Paolo Romero