By Adolfo Quizon Paglinawan

 

Part 12: A nation with Many Strange Voices

Let us dissect piece by piece, the new narrative from Antonio Carpio, regarding how, according to Senator Rodante Marcoleta and real international law experts, the expired Asso Justice gave away 224,030 square nautical miles of Philippine territorial sea, that qualifies him for treason for giving away sovereign territory.

International law expert, Melissa Loja asserts: “Carpio not only amended Article I on the definition of the national territory, he, now also wants to amend Art XVII on amendment and revision by now declaring that mere customary international law can change the constitution.”

“In styling himself an international law expert, retired Justice Antonio Carpio has only managed to tie himself up in contradictions.

“His recent attempt to defend his ponencia in Magallona v Ermita (2011) only tightens the knot he now struggles to untangle. The landmark case had sought to declare Republic Act No. 9522 (2009) or the Archipelagic Baselines Law unconstitutional,” but if I may add – Carpio twisted it making a monumental error.

This is what Marcoleta is trying to cure in aid of legislation, while Carpio desperately sweeps it under the rug.

Santiago’s wisdom

Loja surgically explains, that RA 9522’s lead author, Senator Miriam Defensor Santiago, had anticipated a potential conflict between the UN Convention on the Law of the Sea and our Constitution.

The packaging of the language of Republic Act 9522 is mostly concerned with issue of sovereignty in land territory and territorial sea. The singular mention of UNCLOS in the law is to make sure that the law is “consistent” with our treaty obligations explicitly Article 121 (3) of the Convention.

Santiago, deliberately omitted mention of exclusory aspects against UNCLOS, as its Article 47 knocked off the Kalayaan island Group as originally intended by President Ferdinand Marcos in his Presidential Decree 1596 to be an archipelago.

Let us review how she creatively composed the picture:

The senator had exercised care and wisdom by avoiding a proviso in RA 9522 locking the limit of the territorial sea to the prescribed 12 nautical miles  by UNCLOS. Her framing of the law was silent about  the limits of Treaty of Paris, Senator Santiago ingeniously inserted Section 3 to serve as a “no-prejudice clause “affirming that

“The Republic of the Philippines has dominion, sovereignty and jurisdiction over all portions of the national territory as defined in the Constitution and by provisions of applicable laws….”

Section 1 of the Act establishes the 95 to 100 specific basepoints  in WGS 84 format, while Section 4 and 5 ensures this technical data is properly documented and recognized internationally.

Section 4 states: “This Act, together with the geographic coordinates and the chart and maps indicating the aforesaid baselines, shall be deposited and registered with the Secretary General of the United Nations.”

The phrase “Aforesaid baselines” does not only refer to the archipelagic baselines detailed in Section 1:

“The baseline in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as “Regime of Islands” under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596; and b) Bajo de Masinloc, also known as Scarborough Shoal.” (Section 2)

With these submissions, the Philippines complies with international standards to define its maritime zones.

Section 5: “The National Mapping and Resource Information Authority (NAMRIA) shall forthwith produce and publish charts and maps of the appropriate scale clearly representing the delineation of basepoints and baselines as set forth in this Act.”

Section 4 and 5, proves Carpio did not know what he was talking about when he claimed that basepoints and coordinates, or public submissions were already complied with by Philippine submissions on our archipelagic baselines. submissions which were done before the UN May 2009 deadline.

The rest, he claimed, were “automatic”.

Carpio’s oido

Loja exposed that “Carpio ignored these red flags by Santiago’s legislative genius.”

It was by judicial fiat, that the expired asso justice grafted Article 3 of the UNCLOS into RA 9522, imposing a 12-NM limit on our territorial sea.

“By one stroke of his pen, the national territory provision of the 1987 Constitution was amended without the requisite constitutional procedure.”

Carpio shrugged off our substantial territorial loss by saying it is more than compensated by a gain of 382,669 square nautical miles of exclusive economic zone (EEZ).

Loja bares, “This betrays a lack of knowledge of a basic principle of international law that territorial sea (TS) always trumps the EEZ (Nicaragua v Colombia, 2012;Nicaragua v Honduras,2007).”

The TS is part of a state’s territory; the EEZ is not.

In its TS, the Philippines enjoys full sovereignty, including dominion over all oil and gas resources in situ, or in its original place even before they are discovered and extracted. In the EEZ, the Philippines enjoys limited economic rights, such as vested ownership of the oil and gas only after discovery and extraction.

Loja also disclosed that Carpio’s “Faustian” bargain may have enabled us to prevail over China’s nine-dash line (2016 Arbitral Award, paragraphs 223,225-228,261).

But we wonder, she said, given Carpio’s actuations of late: “Why did China’s nine-dash line map surface in 2009 just some two months after RA 9522 became law? Was the judicial sacrifice of territory worth an EEZ, especially as, until now, pockets of it are disputed?”

It is here that I smell American meddling.

Before we get a carried away, let us return to a short reflection on our Constitutional history.

1987

Republic Act 9522 was legislated under the 1987 Philippine Constitution that states in its Article I:

“National Territory. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas.

“The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”

Republic Act 9522 is the latest baselines act, enacted in 2009 that amended the Republic Act 3046 enacted in 1961 the earlier version of the baselines act.

1935

Republic Act 3046 was based on the 1935 Philippine Constitution that states in Article I:

“ARTICLE I, The National Territory. SECTION 1. The Philippines comprises all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on the tenth day of December, eighteen hundred and ninety-eight, the limits which are set forth in Article III of said treaty, together with all the islands embraced in the treaty concluded at Washington between the United States and Spain on the seventh day of November, nineteen hundred, and the treaty concluded between the United States and Great Britain on the second day of January, nineteen hundred and thirty, and all territory over which the present Government of the Philippine Islands exercises jurisdiction.”

Did the 1987 Constitution amend, change, replace or repeal the national territory provisions of the 1935 Constitution? No.

1973

Carpio also referenced Article I of the 1973 Constitution? Well, read it for yourself:

“ARTICLE I The National Territory SECTION 1. The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all the other territories belonging to the Philippines by historic right or legal title, including the territorial sea, the air space, the subsoil, the sea-bed, the insular shelves, and the submarine areas over which the Philippines has sovereignty or jurisdiction. The waters around, between, and connecting the islands of the archipelago, irrespective of their breadth and dimensions, form part of the internal waters of the Philippines.”

Did it change anything in its national territory provision to amend the 1935 Constitution? No.

In fact, the 1935, 1973 and 1987 Constitutions are united in the definition of our national territory.

Carpio’s new narrative

The expired magistrate, however, ignores Article I and goes straight and rushes to Article 2 of three Philippine Constitutions. Once again, he follows his usual and patent cherry-picking modus conveniently skips the Articles I of these Constitutions.

Why are these Article I issues vital and essential?

First, contrary to Carpio’s claim, in Magallona v Ermita, where University of the Philippines Law Dean Professor Merlin Magallona et al questioned the validity of RA 9522, it was not Magallona who wanted to claim all the waters within the treaty limits as territorial waters.

It was our earlier baselines law RA 3046 that legislated that all the waters within the treaty limits are territorial waters using the 1935 Constitution in its preamble:

“WHEREAS, the Constitution of the Philippines describes the national territory as comprising all the territory ceded to the United States by the Treaty of Paris concluded between the United States and Spain on December 10, 1898, the limits of which are set forth in Article III of said treaty…”

Loja also noted that RA 3046 drew jurisprudence from Article 1 of the 1898 treaty and Article 1 of the 1958 Territorial Sea and Contiguous Zone Convention: “Even the United States as party to the Treaty of Paris and the colonial government of the Philippines declared before the Arbitrator Max Huber in Island of Palmas case (1928) that these waters adjacent to the Philippine archipelago and up to the treaty limits are part of the Philippine territory.”

In a separate occasion, Carpio openly admitted that even China recognizes these treaty limits.

This bolsters the imperative that any change in the territorial sea referenced by RA 3046 requires a constitutional amendment because as we illustrated earlier,  the 1987 constitution (and the 1973 Constitution before it) carried over the definition of the national territory under the 1935 constitution.

Ultimately it  was Carpio who, in an effort to please American lobbyists, locked the territorial sea to 12nautical miles from the new archipelagic baselines, a position he keeps up to the present time estopping any application of the treaty limits serving as our territorial waters from its Western & Northern Boundary:

“Starts at a point near the 20th parallel north latitude, passing through the middle of the navigable channel of (Bashi Channel) from the118th meridian east of Greenwich to the 127th meridian east of Greenwich.

Loja explains that Magallona had simply sought to preserve this vast territorial sea and the sanctity of the definition of the national territory in the Constitution.

Our new coordinates are now delimited according to basepoints and coordinates, as close as possible to the Philippine coastlines and its internal waters”.  Republic Act 9522 pulled back the limits of the territorial sea, and reduced the area of the territorial sea.

Carpio did all that without awaiting a constitutional amendment. He did that purportedly to ensure the Ph gains an EEZ. He was obviously ignorant of the fact that unlike the TS, the EEZ is not part of the Ph territory.

Territory, given away

So, did the new and latest baselines law, Republic Act 9522, as interpreted by GR187167, amend Republic Act 3049, particularly on its territorial sea provisions? Yes.

Loja uncovers that Carpio’s ponencia presented a table comparing the extent of territorial sea (TS) and exclusive economic zone (EEZ) under the old baselines law (RA 3046, 1961) and the new baselines law (RA 9522, 2009).

In that table he acknowledged that the territorial sea  under RA 3046 stretched up to the limit set by the 1898 Treaty of Paris and therefore spanned 274, 36 square nautical miles (SNM). Under RA 9522 and UNCLOS, the TS will stretch only up to 12 NM and therefore contract to 32,106 SNM.

First and foremost, it disregarded the treaty limits

What was the result of this amendment? GR187167 reduced the scope of our national territory, specifically our territorial sea from the original treaty limits set by the 1935 Constitution to only 12 nautical miles from our coastlines or new baselines.

On the ground, what is the consequence of GR187167?

We lost 830,140 square kilometers or 242,030 square nautical miles of territorial sea.

This basic figures in this chart expressed in ‘black’ have been lifted from the Supreme Court GR187167, not RA9522. Enhancements of original measurements have been provided in blue metrics in terms of square kilometers. Figures in red has been provided by the author. Carpio’s original chart is shown below:

Rape of the Constitution

On legality, what was the consequence of Republic 9522? It amended the Philippine Constitution.

What Carpio is saying now is that by virtue of his quoted Article II provisions of the three Constitutions acting in concert with Article 3 of the UN Convention on Law of the Sea, to wit “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention,” the Constitutions AUTOMATICALLY amended themselves.

Can the Constitutions amend themselves? No. They are but inanimate documents. Can customary international law “automatically” amend or change the Philippine Constitution?” Never.

What Carpio wants is tantamount to surrendering sovereignty. It is the other way around, just as RA9522 intended, the procedure is to “harmonize” internal laws to international law.

Can a legislation, passed by both Houses of Congress, signed into law by the President, amend the Constitution? No.

Can such law, upheld by the Supreme Court as not unconstitutional, amend the Constitution? An error supplanted by bigger error? No.

How can the 1987 Constitution be amended? According to its Article XVII, as proposed by Peoples Initiative, Congress acting a constitutional assembly, or Constitutional Convention, and approved by the people in a plebiscite.

But in this case, what happened? The superseding imprimatur of the Supreme Court, GR187167, amended Republic Act 9522, and ipso facto “amended” (?) the Philippine Constitution.

In Latin, there is a philosophical and logical maxim that says “Causa causae est causa causati”. The cause of the cause is the cause of the final effect.

Who was the ponente of GR187167? Then Asso Justice Carpio.

In short, it may be said that Carpio single-handedly “amended” the Philippine Constitution.

With his new narrative, he is now wiggling out of that responsibility.

A twin-masters’ and a PhD holder (other than Ms Loja), who used to be a key official of the Philippine Coast Guard (definitely not Jay Tarriela), said “In all this hullabaloo, it now appears that Carpio does not fully understand the nuances of international law, as he keeps flip-flopping.

“Once again, he tries to project himself as an expert, only to end up misleading the Filipino people, pitting us against one another. As a result, he is confusing and disorienting public discourse, to make himself politically relevant. This is ‘intellectual arrogance’ at its worst.”

As for me, however, this not simply the height of arrogance, but a mental health issue! Something in Carpio’s brains involuntarily triggers “automaticity” when it is not supposed to do so.

This syndrome was first exposed “when he said EEZs are automatic” in setting 200 nautical miles from a state’s coastlines, in malicious avoidance of Article 74 and 75 of UNCLOS that provides resolution in case of an impasse created by disputed claims.

A legal luminary moves through the letter of the law like a “tick”, it crawls on its host. Carpio’s mind, however, functions like a flea – it navigates by jumping between hosts. Maybe clients.

Conclusion

Loja reveals that Carpio is now pushing a revisionist Philippine claim over the Spratlys islands. He argues –‘irony of ironies’– that the Treaty of Paris limits, as extended by the 1900 US-Spain and 1930 US-UK treaties, embraced the islands.

The expired magistrate, she said, fails to realize that in dissolving said treaty limits and downgrading the territorial status of the enclosed waters, his ponencia not only altered the constitutional definition of our national territory but also placed the Spratlys away and beyond its reach:

“Having denied that the waters adjacent to the Philippines and up to the limit of the treaty limits are part of the Philippine territory, how can (Carpio) now leapfrog and claim areas outside that limit, i.e. Spratly Islands, as part of the Philippine territory?”

The Supreme Court settled Magallona versus Ermita.

Loja quips, “History will judge Carpio versus Carpio”.

Next Part: Loopholes show Why Philippines’ Claim is Weakest in the Spratlys

Nota bene: All citations to International Law Post-Doctoral Expert Melissa Loja are also attributable to her fellow Filipino scholars and co-resource persons José Duke Bagulaya and Romel Bagares. Read their magnum opus in its entirety: https://verafiles.org/articles/carpios-contradictions

   

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