G.R. No. 187167 (Prof. Merlin Magallona, et al. v. Eduardo Ermita, et. al.)
July 16, 2011
C O N C U R R I N G O P I N I O N
VELASCO, JR., J.:
I concur with the ponencia and add the following complementary arguments and observations:
A statute is a product of hard work and earnest studies of Congress to ensure that no constitutional provision, prescription or concept is infringed. Withal, before a law, in an appropriate proceeding, is nullified, an unequivocal breach of, or a clear conflict with, the Constitution must be demonstrated in such a way as to leave no doubt in the mind of the Court. In the same token, if a law runs directly afoul of the Constitution, the Court’s duty on the matter should be clear and simple: Pursuant to its judicial power and as final arbiter of all legal questions, it should strike such law down, however laudable its purpose/s might be and regardless of the deleterious effect such action may carry in its wake.
in these proceedings is the constitutionality of Republic Act (RA 9522)
entitled “An Act to Amend Certain
Provisions of [RA] 3046, as Amended by [RA] 5446 to Define the Archipelagic
Baselines Of The
As its title suggests, RA 9522
delineates archipelagic baselines of the country, amending in the process the
old baselines law, RA 3046. Everybody is agreed that RA 9522 was enacted in
response to the country’s commitment to conform to some 1982 Law of the Sea
Convention (LOSC) or UNCLOS III provisions to define new archipelagic baselines
through legislation, the
As indicated in its Preamble, 1982
LOSC aims, among other things, to establish, with due regard for the
sovereignty of all States, “a legal order for the seas and oceans which will
facilitate international communication, and will promote the peaceful uses of
the seas and oceans.” One of the measures to attain the order adverted to is to
have a rule on baselines. Of particular relevance to the
1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baseline shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.
x x x x
9. The archipelagic State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. (Emphasis added.)
obviate, however, the possibility that certain UNCLOS III baseline provisions
would, in their implementation, undermine its sovereign and/or jurisdictional
interests over what it considers its territory,
Government of the Republic of the
signing of the Convention by the [GRP] shall not in any manner impair or
prejudice the sovereign rights of the [RP] under and arising from the
Constitution of the
Such signing shall not in any manner affect the sovereign rights of the [RP] as successor of the United States of America [USA], under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1898, and the Treaty of Washington between the [USA] and Great Britain of January 2, 1930;
x x x x
Such signing shall not in any manner impair or prejudice the sovereignty of the [RP] over any territory over which it exercises sovereign authority, such as the Kalayaan Islands, and the waters appurtenant thereto;
The Convention shall not be construed as
amending in any manner any pertinent laws and Presidential Decrees or
Proclamations of the Republic of the
The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic state over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty independence and security;
The concept of archipelagic waters is
similar to the concept of internal waters under the Constitution of the
Petitioners challenge the constitutionality of RA 9522 on the principal ground that the law violates Section 1, Article I of the 1987 Constitution on national territory which states:
Section 1. 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
According to Fr. Joaquin Bernas, S.J., himself a member of the 1986 Constitutional Commission which drafted the 1987 Constitution, the aforequoted Section 1 on national territory was “in substance a copy of its 1973 counterpart.” Art. I of the 1973 Constitution reads:
Section 1. The
national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein, and all other territories belonging to the Philippines by historic right or legal
title, including the territorial sea, the air space, the subsoil, the insular shelves, and other
submarine areas over which the Philippines has sovereignty or jurisdiction. 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
may be noted both constitutions speak of the “Philippine archipelago,” and, via the last sentence of their
respective provisions, assert the country’s adherence to the “archipelagic
principle.” Both constitutions divide the national territory into two main
groups: (1) the Philippine archipelago and (2) other territories belonging to the
Article I of the 1987 Constitution cannot be fully understood without reference to Article I of the 1973 Constitution. x x x
x x x x
x x x To understand [the meaning of national territory as comprising the Philippine archipelago], one must look into the evolution of [Art. I of the 1973 Constitution] from its first draft to its final form.
Section 1 of the
first draft submitted by the
After debates x x x, the Committee reported out a final draft, which became the initially approved version: “The national territory consists of the Philippine archipelago which is the ancestral home of the Filipino people and which is composed of all the islands and waters embraced therein…”
What was the intent behind the
designation of the
Report No. 01 of
the Committee on
Now if we plot on a map the boundaries of
this archipelago as set forth in the Treaty of Paris, a huge or giant rectangle
will emerge, measuring about 600 miles in width and 1,200 miles in length.
Inside this giant rectangle are the 7,100 islands comprising the Philippine
Islands. From the east coast of Luzon to the eastern boundary of this huge
rectangle in the
When the [US] Government enacted the Jones
Law, the Hare-Hawes Cutting Law and the Tydings McDuffie Law, it in reality announced to the whole world
that it was turning over to the Government of the Philippine Islands an
archipelago (that is a big body of water studded with islands), the boundaries
of which archipelago are set forth in Article III of the Treaty of Paris. It
also announced to the whole world that the waters inside the giant rectangle
belong to the
When Spain signed the Treaty of Paris, in effect she announced to the whole world that she was ceding to the [US] the Philippine archipelago x x x, that this archipelago was bounded by lines specified in the treaty, and that the archipelago consisted of the huge body of water inside the boundaries and the islands inside said boundaries.
The delineation of
the extent of the Philippine archipelago
must be understood in the context of the modifications made both by the Treaty
From the foregoing discussions on the deliberations of the provisions on national territory, the following conclusion is abundantly evident: the “Philippine archipelago” of the 1987 Constitution is the same “Philippine archipelago” referred to in Art. I of the 1973 Constitution which in turn corresponds to the territory defined and described in Art. 1 of the 1935 Constitution, which pertinently reads:
Section 1. The Philippines comprises all the territory ceded to the [US] by the Treaty of Paris concluded between the [US] and Spain on the tenth day of December, , the limits of which are set forth in Article III of said treaty, together with all the islands in the treaty concluded at Washington, between the [US] and Spain on November [7, 1900] and the treaty concluded between the [US] and Great Britain x x x.
While the Treaty of Paris is not mentioned in both the 1973 and 1987 Constitutions, its mention, so the nationalistic arguments went, being “a repulsive reminder of the indignity of our colonial past,” it is at once clear that the Treaty of Paris had been utilized as key reference point in the definition of the national territory.
the other hand, the phrase “all other territories over which the
Philippines has sovereignty or jurisdiction,” found in the 1987
Constitution, which replaced the deleted phrase “all territories belonging to the
the foregoing perspective and going into specifics, petitioners would have RA
9522 stricken down as unconstitutional for the reasons that it deprives the
Philippines of what has long been established as part and parcel of its
national territory under the Treaty of Paris, as supplemented by the
aforementioned 1900 Treaty of Washington or, to the same effect, revises the
definition on or dismembers the national territory. Pushing their case, petitioners
argue that the constitutional definition of the national territory cannot be
remade by a mere statutory act.
As another point, petitioners parlay the theory that the law in question virtually
weakens the country’s territorial claim over the Kalayaan Island Group (KIG)
and Sabah, both of which come under the category of “other territories” over
It is remarkable that petitioners could seriously argue that RA 9522 revises the Philippine territory as defined in the Constitution, or worse, constitutes an abdication of territory.
It cannot be over-emphasized enough that RA 9522 is a baseline law enacted to implement the 1982 LOSC, which in turn seeks to regulate and establish an orderly sea use rights over maritime zones. Or as the ponencia aptly states, RA 9522 aims to mark-out specific base points along the Philippine coast from which baselines are drawn to serve as starting points to measure the breadth of the territorial sea and maritime zones. The baselines are set to define the sea limits of a state, be it coastal or archipelagic, under the UNCLOS III regime. By setting the baselines to conform to the prescriptions of UNCLOS III, RA 9522 did not surrender any territory, as petitioners would insist at every turn, for UNCLOS III is concerned with setting order in the exercise of sea-use rights, not the acquisition or cession of territory. And let it be noted that under UNCLOS III, it is recognized that countries can have territories outside their baselines. Far from having a dismembering effect, then, RA 9522 has in a limited but real sense increased the country’s maritime boundaries. How this situation comes about was extensively explained by then Minister of State and head of the Philippine delegation to UNCLOS III Arturo Tolentino in his sponsorship speech on the concurrence of the Batasang Pambansa with the LOSC:
x x x x
Then, we should consider, Mr. Speaker, that under the archipelagic principle, the whole area inside the archipelagic base lines become a unified whole and the waters between the islands which formerly were regarded by international law as open or international seas now become waters under the complete sovereignty of the Filipino people. In this light there would be an additional area of 141,800 square nautical miles inside the base lines that will be recognized by international law as Philippine waters, equivalent to 45,351,050 hectares. These gains in the waters of the sea, 45,211,225 hectares outside the base lines and 141,531,000 hectares inside the base lines, total 93,742,275 hectares as a total gain in the waters under Philippine jurisdiction.
From a pragmatic standpoint, therefore, the advantage to our country and people not only in terms of the legal unification of land and waters of the archipelago in the light of international law, but also in terms of the vast resources that will come under the dominion and jurisdiction of the Republic of the Philippines, your Committee on Foreign Affairs does not hesitate to ask this august Body to concur in the Convention by approving the resolution before us today.
May I say it was the unanimous view of delegations at the Conference on the Law of the Sea that archipelagos are among the biggest gainers or beneficiaries under the Convention on the Law of the Sea.
Lest it be overlooked, the constitutional provision on national territory, as couched, is broad enough to encompass RA 9522’s definition of the archipelagic baselines. To reiterate, the laying down of baselines is not a mode of acquiring or asserting ownership a territory over which a state exercises sovereignty. They are drawn for the purpose of defining or establishing the maritime areas over which a state can exercise sovereign rights. Baselines are used for fixing starting point from which the territorial belt is measured seawards or from which the adjacent maritime waters are measured. Thus, the territorial sea, a marginal belt of maritime waters, is measured from the baselines extending twelve (12) nautical miles outward. Similarly, Art. 57 of the 1982 LOSC provides that the Exclusive Economic Zone (EEZ) “shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” Most important to note is that the baselines indicated under RA 9522 are derived from Art. 47 of the 1982 LOSC which was earlier quoted.
Since the 1987 Constitution’s
definition of national territory does not delimit where the Philippine’s
baselines are located, it is up to the political branches of the government to
supply the deficiency. Through Congress, the
It may be that baseline provisions of UNCLOS III, if strictly implemented, may have an imposing impact on the signatory states’ jurisdiction and even their sovereignty. But this actuality, without more, can hardly provide a justifying dimension to nullify the complying RA 9522. As held by the Court in Bayan Muna v. Romulo, treaties and international agreements have a limiting effect on the otherwise encompassing and absolute nature of sovereignty. By their voluntary acts, states may decide to surrender or waive some aspects of their sovereignty. The usual underlying consideration in this partial surrender may be the greater benefits derived from a pact or reciprocal undertaking. On the premise that the Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.
As a signatory
of the 1982 LOSC, it behooves the
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.
is nothing in RA 9522 indicating a clear intention to supersede Sec. 2 of RA 5446. Petitioners obviously have read too much into
RA 9522’s amendment on the baselines found in an older law. Aside from setting the country’s baselines, RA
9522 is, in its Sec. 3, quite explicit
in its reiteration of the
Section 3. This Act
affirms that the Republic of the
emphasize, baselines are used to measure the breadth of the territorial sea,
the contiguous zone, the exclusive economic zone and the continental
shelf. Having KIG and the Scarborough
Shoal outside Philippine baselines will not diminish our sovereignty over these
areas. Art. 46 of UNCLOS III in fact
recognizes that an archipelagic state, such as the
may well be apropos to point out that the Senate version of the baseline bill that
would become RA 9522 contained the following explanatory note: The law “reiterates
our sovereignty over the Kalayaan Group of
to petitioners’ contention, the classification of KIG and the Scarborough Shoal
as falling under the Philippine’s regime of islands is not constitutionally
objectionable. Such a classification
serves as compliance with LOSC and the
take judicial notice of the effective occupation of KIG by the
The fact that the baselines of KIG and Scarborough Shoal have yet to be defined would not detract to the constitutionality of the law in question. The resolution of the problem lies with the political departments of the government.
All told, the concerns raised by the petitioners about the diminution or the virtual dismemberment of the Philippine territory by the enactment of RA 9522 are, to me, not well grounded. To repeat, UNCLOS III pertains to a law on the seas, not territory. As part of its Preamble, LOSC recognizes “the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans x x x.”
This brings me to the matter of transit passage of foreign vessels through Philippine waters.
Apropos thereto, petitioners allege
that RA 9522 violates the nuclear weapons-free policy under Sec. 8, in relation
to Sec. 16, Art. II of the Constitution, and exposes the
The adverted Sec. 8, Art. II of the
1987 Constitution declares the adoption and pursuit by the
A cursory reading of RA 9522 would belie petitioners’ posture. In context, RA 9522 simply seeks to conform to our international agreement on the setting of baselines and provides nothing about the designation of archipelagic sea-lane passage or the regulation of innocent passage within our waters. Again, petitioners have read into the amendatory RA 9522 something not intended.
Indeed, the 1982 LOSC enumerates the rights and obligations of archipelagic party-states in terms of transit under Arts. 51 to 53, which are explained below:
To safeguard, in explicit terms, the general balance struck by [Articles 51 and 52] between the need for passage through the area (other than straits used for international navigation) and the archipelagic state’s need for security, Article 53 gave the archipelagic state the right to regulate where and how ships and aircraft pass through its territory by designating specific sea lanes. Rights of passage through these archipelagic sea lanes are regarded as those of transit passage:
(1) An archipelagic State may designate sea lanes and air routes thereabove, suitable for safe, continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.
(2) All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
(3) Archipelagic sea lanes passage is the exercise in accordance with the present Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
But owing to the geographic structure
and physical features of the country, i.e., where it is “essentially a body of
water studded with islands, rather than islands with water around them,”
the Philippines has consistently maintained the conceptual unity of land and
water as a necessary element for territorial integrity,
national security (which may be compromised by the presence of warships and
surveillance ships on waters between the islands),
and the preservation of its maritime resources. As succinctly explained by
Minister Arturo Tolentino, the essence of the archipelagic concept is “the
dominion and sovereignty of the archipelagic State within its baselines, which
were so drawn as to preserve the territorial integrity of the archipelago by
the inseparable unity of the land and
[H]istorically, the Indonesian archipelago has been an entity since time immemorial. In view of the territorial entirety and of preserving the wealth of the Indonesian state, it is deemed necessary to consider all waters between the islands and entire entity.
x x x On the ground of the above considerations, the Government states that all waters around, between and connecting, the islands or parts of islands belonging to the Indonesian archipelago irrespective of their width or dimension are natural appurtenances of its land territory and therefore an integral part of the inland or national waters subject to the absolute sovereignty of Indonesia. (Emphasis supplied.)
Our position that all waters within our baselines are internal waters, which are outside the jurisdiction of the 1982 LOSC, was abundantly made clear by the Philippine Declaration at the time of the signing of the LOSC on December 10, 1982. To reiterate, paragraphs 5, 6 and 7 of the Declaration state:
5. The Convention shall not be construed as amending in any manner any pertinent laws and Presidential decrees of Proclamation of the republic of the Philippines; the Government x x x maintains and reserves the right and authority to make any amendments to such laws, decrees or proclamations pursuant to the provisions of the Philippine Constitution;
6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence and security;
7. The concept of archipelagic waters is
similar to the concept of internal waters under the Constitution of the
More importantly, by the ratification of the 1987 Constitution on February 2, 1987, the integrity of the Philippine state as comprising both water and land was strengthened by the proviso in its first article, viz: “The waters around, between, and connecting the islands of the [Philippine] archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines. (emphasis supplied)
In effect, contrary to petitioners’ allegations, the Philippines’ ratification of the 1982 LOSC did not matter-of-factly open our internal waters to passage by foreign ships, either in the concept of innocent passage or archipelagic sea-lane passage, in exchange for the international community’s recognition of the Philippines as an archipelagic state. The Filipino people, by ratifying the 1987 Constitution, veritably rejected the quid pro quo petitioners take as being subsumed in that treaty.
Harmonized with the Declaration and the
Constitution, the designation of baselines made in RA 9522 likewise designates
our internal waters, through which passage by foreign ships is not a right, but
may be granted by the
In view of the foregoing, I vote to DISMISS the Petition.
PRESBITERO J. VELASCO, JR.
 League of Cities of the Phil. v. COMELEC, G.R. No. 176951, December 21, 2009, 608 SCRA 636.
 Under Art. VIII, Sec. 5 of the Constitution, the Supreme Court is empowered to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and orders of lower courts in: all cases in which the Constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (Emphasis supplied.)
 December 10, 1982.
 May 8, 1984.
 Available on <http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm> (visited July 28, 2011).
 UNCLOS, Art. 47, December 10, 1982.
Bernas, S.J., The 1987 Constitution of the Republic of the
 See J. Batongbacal, The Metes and Bounds
of the Philippine
 J. Bernas, supra note 7, at 10.
Report No. 01 of the Committee
Report No. 02 of the Committee
 J. Bernas, supra note 7, at 11-14.
 The history of this deleted phrase goes back to the last clause of Art. I of the 1935 Constitution which included “all territory over which the present Government of the Philippine Islands exercises jurisdiction. See J. Bernas, supra note 7, at 14.
 J. Bernas, supra note 7, at 16.
 Petition, pp. 4-5.
 Art. 48 of UNCLOS III provides that the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from the archipelagic baseline drawn in accordance with Art. 47.
 J. Bernas, supra note 7, at 22.
 UNCLOS III, Art. 57.
 June 17, 1961.
 September 18, 1968.
 G.R. No. 159618, February 1, 2011; citing Tañada v. Angara, G.R. No. 118295, May 2, 1997, 272 SCRA 18.
Protest reads in part: “The above-mentioned Philippine Act illegally claims
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/communicationsredeposit/mzn69_2009_chn.pdf> (visited August 9, 2011).
 C. Ku, The Archipelagic States Concept and Regional Stability in Southeast Asia, Case W. Res. J. Int’l L., Vol. 23:463, 469; citing 1958 U.N. Conference on the Law of the Sea, Summary Records 44, Doc. A/Conf. 13/42.
 Hiran W. Jayewardene, The Regime of
 UNCLOS III Off. Rec., Vol. II, 264, par. 65, and also pars. 61-62 and 66; cited in B. Kwiatkowska, “The Archipelagic Regime in Practice in the Philippines and Indonesia – Making or Breaking International Law?”, International Journal of Estuarine and Coastal Law, Vol. 6, No. 1, pp. 6-7.
 4 Whiteman D.G., International Law 284 (1965); quoted in C. Ku, supra note 34, at 470.
 1987 Constitution, Art. I.
 LOSC, Arts. 52 and 54.
 LOSC, Art. 53, par. 2.
 LOSC, Art. 53, par. 2.
 LOSC, Art. 51.
 LOSC, Art. 8, par. 2.
 Cf. B. Kwiatkowska, supra note 38; citing J.D. Ingles, “The United Nations Convention on the Law of the Sea: Implications of Philippine Ratification,” 9 Philippine Yil (1983) 48-9 and 61-2; and Congress of the Philippines, First Regular Session, Senate, S. No. 232, Explanatory Note and An Act to Repeal Section 2 (concerning TS baselines around Sabah disputed with Malaysia) of the 1968 Act No. 5446.