COMMENTARY

Belonging ‘… by historic right or legal title’

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A MIDST China’s persistent reclamation and building spree in the Spratly Islands reinforced by its allegedly historical “nine-dash-line” sovereign rights claim to all features in the West Philippine Sea, what comes to mind is the significant provision in the 1973 Philippine Constitution which says “The national territory consists of the Philippine archipelago…..and all other territories belonging to the Philippines by historic right or legal title.”

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Unknown to many is the fact that the territory of the Philippines under the present 1987 Constitution includes, among others, those contemplated in the clause “belonging to the Philippines by historic right or legal title” in the 1973 Constitution per Resolution No. 21 (1 July 1986) of the 1986 Constitutional Commission.

What is the reference or in what context is the use of the clause “by historic right or legal title” in the fundamental law of the land?

While a detailed provision on national territory is not indispensable in constitution-making, inclusion of one such article in the 1973 Constitution was motivated by Philippine advocacy of the archipelago doctrine as a novel method of territorial delimitation during the time of negotiations for a UN Law of the Sea Convention while, at the same time, the 1971 Constitutional Convention (Con-Con) was in session. Another reason is to assuage the feelings of insecurity from the fear that the silence of the Constitution might be interpreted internationally as abandonment of unsettled Philippine territorial claims.

It came to light that as our Sabah claim gained international prominence during the early 1960s we were asked, “If Sabah is really yours, why is it that it does not even appear in the records of the 1935 Philippine Constitution?”

Coincidentally, resolutions were filed at the 1971 Con-Con regarding our legal claims over Sabah and part of the Spratlys then known as Freedomland and subsequently renamed Kalayaan.

The Con-Con Committee on National Territory hearings on those resolutions were graced by the presence of prominent resource persons, among them, Princess Tarhata Kiram (Sabah), discoverer-lawyer aptly referred to by the media as Admiral Tomas Cloma (Spratlys) and National Archives Director, Dr. Domingo Abella, who gave insightful testimonies about our legal and historic right over those territories.

Briefly, the Philippine claim over Sabah strongly hinges on a “padjak” or lease contract executed by Sultan Kiram of the Sultanate of Sulu while that of part of the Spratly Islands group called Freedomland or Kalayaan is based on discovery and occupation as a mode of acquiring sovereignty over a territory which is “terra nullius,” that is, territory which belonged to no state. The Marianas Islands, on the other hand, was discovered by Magellan and were a dependency of the Philippines during the Spanish colonial period (1521-1898). Its civil affairs were under the direct control of the Governor- General of the Philippines based in Manila while its ecclesiastical administration was under the jurisdiction of the Bishop of Cebu.

These territories were all omitted in the Treaty of Paris (1898), the Treaty of Washington between the US and Spain over the islands of Cagayan de Sulu and Sibutu (1900), the treaty between US and UK over the Turtle and Mangsee islands (1930) and the 1935 Constitution which (covered Batanes under a general statement and)defined our national territory.

The clause “by historic right or legal title,” therefore, has two objectives: (1) To protect and insure that the Philippine claim of territories other than those referred to in the 1935 Constitution; and (2) To prevent the forfeiture of those claims by their omission from the constitutional definition.

Be that as it may, eminent constitutionalist, Fr. Joaquin G. Bernas, S.J., expresses the view that “The validity of our territorial claims does not rest on constitutional sanction but on our historic rights……” but counsels, “…….on the other hand, would a constitutional definition of territory have the effect of legitimizing a territorial claim not founded on some legal right protected by international law ?”

Ambassador Amado S. Tolentino Jr. was elected one of the youngest delegates to the 1971 Constitutional Convention and served as a member of its 8-man Committee on National Territory chaired by (Ambassador) Delegate Eduardo Quintero.

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