Sabah and US

Sabah has once again become front-page material because of the move of the heirs of the Sultan of Sulu to enforce their claim to a portion of the territory. It may be good to understand what the heirs of the Sultan of Sulu are claiming. As I see it, they are not claiming political sovereignty over the territory. Sulu, not being a sovereign state itself, cannot be claiming sovereign powers over Sabah. What is being claimed is proprietary right. They claim to be the owners and lessors of the property with Malaysia as lessee-successor to a British company.

The Philippine government itself sees the current problem merely as proprietary and not involving sovereignty. But is there a sovereignty problem? There is, but it has been dormant for some time now and there is no indication that the current administration wishes to resuscitate it.  After all, we are concerned about preserving peace among the Asean nations. Moreover, we have accepted the friendly cooperation of Malaysia in solving the Bangsamoro problem. But a look at the sovereignty issue involved in the Sabah problem may be useful.

Part of the problem is permanently recognized by the Constitution. It is not essential that a constitution should have a delimitation of a state’s national territory. After all a constitution is domestic law and it is not binding on other nations.  But our Constitution has an article on national territory for a very special reason. And the Sabah issue is now also there.

In 1935, there was a compelling reason for a careful delineation of Philippine territory in the Constitution. The Constitutional Convention then was aware that it was formulating a Constitution for a government that would not yet be politically independent of the United States; and there was, at that time, the fear that the United States would allow the dismemberment of the nation. The desire of the convention was to tie the hands of the United States and prevent America from slicing off any portion of Philippine territory. Tying American hands was possible because the Tydings-McDuffie Law, which authorized the drafting of the Constitution, required that the work of the Convention be submitted to the United States government for its acceptance. Thus, acceptance of the Constitution by the United States would have been acceptance of the territorial claims of the Philippines. As Delegate Vicente Singson-Encarnacion put it: “Debemos poner aqui lo que es necessario para nosotros que nos consideramos como una cosa necessaria, a fin de que despues no se conviertan algunas de nuestras islas en ‘yoyo’ o sea, que Estados Unidos retire lo que hoy de buena gana nos concede.”

In other words, there was a recognition that a constitution is not an international law but only a municipal law and, as such, binding only on the nation promulgating it. No provision in a constitution binds any other nation. But for reasons peculiar to the Philippines then, the Constitutional Convention also wanted to convert the 1935 Constitution into an international agreement binding on the United States by obtaining that nation’s acceptance of the provision on national territory.  And that is what happened.

When the 1971 Constitutional Convention was formulating the constitution which was to become the 1973 Constitution, the delegates debated on whether to have an article on national territory at all. You can look at the Feb. 14 and Feb. 15, 1972, records for some entertainment. Some of the speeches are dead serious, others comic, and most of them utterly forgettable. At any rate the convention decided to adopt an article on national territory. After fumigating the 1935 version of overt colonial odor, the convention added to the 1935 claim two international challenges: one made the catch-all claim of “all other territories belonging to the Philippines by historic right or legal title,” and the other asserted Philippine acceptance of the “archipelagic principle.”

The adoption of the “archipelagic principle” has not created waves; but the catch-all claim of territories “belonging to the Philippines by historic right or legal title” irritated Malaysia which saw the phrase as the assertion of Philippine claim over Sabah. As indeed it was. And it became an obstacle to smooth relations with this Asean neighbor.

Once again, in the 1987 Constitutional Commission, there was debate on whether to drop the entire article on national territory. In the end, the decision was to keep it. Indeed, it would have been awkward to drop it if, after carefully enshrining it in earlier constitutions, it would be abandoned now. The debate then shifted to the claim over Sabah.

The Sabah debate ended with a softened statement staking its claim in the following language: “all other territories over which the Philippines has sovereignty or jurisdiction.” The original phrase had said “exercises sovereignty or jurisdiction.”  “Exercises” yielded to “has” on the argument that a state could “have” jurisdiction over an area where another state is “exercising” jurisdiction—which Malaysia was doing over Sabah. The language fitted the dormant but still not abandoned claim to Sabah.

It is clear that even with the recent movements in Sabah, the current administration is not inclined to awaken the dormant claim. I agree. Awakening it would serve no useful purpose. We are having enough problem dealing with China’s territorial claims.