SECRETARY OF JUSTICE STATES CONSTITUTIONAL CHANCE NOT REQUIRED FOR RENUNCIATION OF SABAH CLAIM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000300110001-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 27, 2016
• Document Release Date: October 19, 2012
• Sequence Number: 1
• Publication Date: September 29, 1977
• Content Type: CABLE

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MESSAGE REFEREINt.0 NC.
A233
Departmen'a of State
Amembassies Bangkok, Ruala Lumpur, Jakarta Singapere
Amembassy Manila
N/A
PBOR, MY, RP
;SECRETARY OF
/ REQUIRED FOR
MANILA 12524
.DATE: ,Sep!.:. 29, 1977
'JUSTICE SPATES CONSTITUTIONAL CHAT...]: fa.D113
1.4
t?Z
RENUNCIATION OF SABnH CLAIM
In a report on the legal issuessurrounding the
renunciation of the Philippine claim to Sabah,
Secretary of Justice Vincent e Abed Santos, has niltel
it is not necessary to amend the Philippine .
constitution to drop formally the Philippine clai
te Sabah. Article I, Section 1 of the Philippir..e
constitution defines the territory of the Philip' .nse
as "the Philippine archipelago, with all the ise,:eds
and waters embraced therein, and all the other
territories belonging to the Philippines by hist.eric -
right or legal title.." Though not mentioning.
Sabah by name, 'the minutes of the 1972 constitUtional
convention show that the phrase referring to '1eni,c1.
title" was placed in the constitution to suppo::t the
Sabah claim. Abad Santos concludes, however, .1:1,t the
Philippines has ?"neither.a historic right nor a .legal ?
title" .to Sabah, but only a disputed .claim.? ?
. .
Abed Santos also addressed the question of Republic
Act 5445, which defines the-baselines of the
territorial sea of the Philippines. Section 2 of ?
this act notes that the definition of the baselines.
TI ..'''.....ene,?1,,er0.COgIVAA4471ITIFICATIONAPPR,M00-1,
CR7P,20/4/GMTa1COttihr1 9/27/77 6
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POL/DCEllson (draft); POL/R:HliNatzke (draft); LO/LtcHitt (draft)
90R?1 DA-11111
mra ?
77,-1"FrPTED?eVe-Id.a.la.
MANILA
Page 2
of the Philippine territorial sea "is without prejudice to th,
delineation of the baselines of the territorial sea around tb.
territory of Sabah...over which the Republic of the Philippin.
has acquired dominion and sovereignty." Abed Santos .concludec
that although a Philippine law cannot be invoked to support ai
international claim, R.A. 5446 should be repealed "if only to
dispel any doubt as to the sincerity of the government..."
COMMENT: The expectation here continues to be that President
? Marcos, as promised at the ASEAN Summit. in Kuala Lumpur, will
indeed take steps to drop the Philippine claim to Sabah.
Exactly how he will accomplish this, however, remains uncerta.
The question of the manner in which the Philippines will lege
drop its claim is evidently of prime importance to the Malays.
Though Malaysian diplomats in Manila are reticent to discuss
issue, both Indonesian and Singapore Embassy officers have op
to the reporting officer that the Philippine constitution mus
be amended, excising the phrase referring to territories
- belonging to the Philippines by historic right or legal title
in order to convince the Malaysians of the sercusaess of the
Philippine desire to settle finally the Sabah dispute.
STULL
Attachment: 1) Santos Report
2) R.A. 5446
r.-7371/. rEtropp-Icztr?ALLE__
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:-? 'u
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,Q-213
73i2?- OFFICIAL GAZETTE V0L. 65, NO. 29
?
?
to any utility or customer within the area covered by this
franchise at rates tower than those at whicIr power is sold
-
to the grablee and without the latter's, written consent.
SEC. 2. The grantee sh:;11 operate according, and at all
times atthet e, la the "aremcoverage" principle; shall he
"non-profit"; and shall Miring the first twenty-live years
or loran long as its obligations are not fully paid. be
exempt from all taxes, duties and fees of whatever hind
and nature, except incense tax as applicable to nomngri.
cultural cooperatives the provisions .of any existing law.
to the contrary notwithstanding.
"Area-coverage", as used in this Act, ineans that if -a-
person lives in the territory of :in electric service coop-
erative system, he shall he entitled to receive electric
-
service regardless of the place of his residence mion his
becoming a member of such cooperative and regardless
of the cost of the service to him, whether moldable or
not, tile feasibility or financial possihility of providing hint
service being based on the principle that the cooperative's
system is designed to serve the interest of all its members
collectively, all not individually: Provided, That member-
ship in the cooperative shall not permit any preference
or discrimination.
"Non-profit" means that the cooperative shall be oper-
ated without any pink or dividend to its members, lust
the rates, fees, rents or other charges for electric energy
and any other iacilities, supplies mailma n'',tic services
furnished by the cooperative shall luc sufficient at all times:
(et) to nay all operating and maintenance expenses neves.
nary yr &sir:dile for the prudent conduct of its business
and the prinCipat of and interest en the ebligations issued
or assumed by the cooperative in the performance of the
purpose fm: which it was organized; am: 0) for the
creation of reserves. The revenues of the cooperative
shall be -devoted . first to the payment of operating asssi
maintenance expenses and the principal said interest -Sri
outstanding obligatious, and thereafter to such reserves
for improvement, Ile, construction, depreciation mot .:on-
tingencies as the board may f titne to time joescuthe.
? SEC. 3. The grantee is hereby authorized to mortgage
this franchise and its assets favor of the Electrifica-
tion Administration, the Philippine National thud: mul
its subsidiaries, the Development flunuk of the Philippines
or any chluer lending institution subject to the approval of
the Publie Service Commission. The Development hank
of the Philippines is hereby authorized to obtain fordo
- loans for II:lending to the grantee pm-swot to he pro.
visions of section three of Republic Act Numbered Fear
times:old eight bandred sixty.
SEC. This Act shall take effect upon its approval.
- Approved, September 9, 19G8.
S. NO. 934
PuTPCMIC AcT No. Nth] ?
AN AT TO AMEND SECTION ONE CP REPLI111.10
? ACT EIDIBERED THIRTY HUNDRED ASI
FORTY-5131, ENTITLED "AN ACT TO riEFINE
ii
JULY 21, 1059 OFFICIAL GAZETTE
?
'120
?
??THE BASELINES OF THE TERRITORIAL SEA ?
? OF THE PHILIPPINES".
- 'Ile it enacted by the Senate and House of Representatives
' of the Philippines la Congress assembled: .
SECTION 1. To correct typographical errors, Section one
of Republic Act numbered. thirty hundred and forty-six
ta amended to read as follows:
"SrcrioN 1. The baselines for the territorial sea of the
Philionin es-site hereby defined and described specifically
as follows:
? ?
1"auoi Island (E)
Line 1 (Y'and I. (17?)
N. Lutilli,le E. LonL?ity.tle Ashoullt
21,07'03" 121'57'24"
Dibbvien
In
. ?Talmo uk Lk.).
333'27'
71,050
? Tunearuk Ilk.
2023'23" 122`02'06-
. Line 2 (Tune:cult Pk.
--Pal int ang Is.) ?
317.13'
511,105
Ilalintang Islands - .
195743" 122'09'28"
.
. Line 3 (Ilaliatang. 10.
? ?1.1itlica'A irk.)-
- .
333't5'
97,735
. Pidicas 11k,
? Una 4.41.1idicas 111:,?
Pror5o" 122?12.18"
Iligail Pt.) ,
. 330'39
30,155
. Lligan 1-'1. ? ?
18?18'45" 112?20'15"
Line 5 (thee" VL7--
? -
biloltaor Pt.) ? .?
- 351'23'
130,030
Ditolong I'd.
17?037511" 121'31,11"
- Lino li tIlitolong 11.?
. .
? Piviuisa Pt.) ? , ,?
IMO'
34,378
.. Divini.,0 It, ,
? Lice 1 (Divilosa Pt.--
10'.18'00" 122'20.06"
. Ilijohati
21'01'
57,781
..11.)
. Dijelian It.
16'1843" .122'14.25"
? . Line 70 (1)ij..Inin Pt.-
- - Belubalik Pt.)
, 10"52'
141,380
..;.? Ilulatralik l't. ? ,
? Line 8 ( tlolohalik Pt.
13.02'50" 121?59.30" ?
?
-,Tiii;Wa I.)
. 300'15'
120,983
. Tinaga, I.
14'29'45" 123'57'16"
? ? Line 9 (Tillage I.--
?lloradalet 1:1;s.) ?
250?27'
1.13,1300
Plorsulalea Ms. ? ? ?
1 l'011'II". 121'16'54"
Line I'S (11 ora.laInt
Rks.-8Intolin 1:k.)
300'34'
1,053
- ? Malulin 1:k.
11"00'211" 124'17'23"
Line 11 (31nlolin Ilk.
--Atalaya Pt.)
? 331*.in'
178,4C0
Atnlaya Pt.
125?0,1'02"
? Line 11a (Alalayn Pt.
.12'10'59"
?? ?Pinch ISO.)
313'30'
22,238
- 057545-4
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73E8
OFFICIAL GAZETTE
VOL 65, No. 29
Didanee
N. LnIlltule E. Lonettule As!math Metier%)
flagman I.
Line 30a (Baguet' I.-
Taganak I.)
Taganak 0.
Line 37 (Taganak 1.-
Gt. Ilnkkungann
6'0600"
6?04'05*
118?26'42"
118?1810"
Cl. Ilakkungaan
610'12"
119'06'42"
Line 37a (GL Bak.
kungaan-Sibaung I.)
Sibnung I.
6'17'45'
117'69'15"
Line 38 (Sibaung-L-
Muligi I.)
Muligi 1.
6?53'00"
119'25'00"
Line 39 (Muligi
Mangsee Is.)
Mangsee Is.
7'30'10"
117'1820"
Line 29a (Mangsee In.
-Cape Melville)
Cape Melville
74850"
116'59'30"
Line 40 (Cape Mel-
ville-Ligas Pt.)
Lips Pt.
7'5628"
110'55'45"
Line 41. (Ligan Pt.-
Cay)
Cay
750'30'
1165515"
Line 41a (Cay-Secam
L)
Secam I.
8'10'47
117?00'30"
Line 42 (Scram L-N.
of Canipan Bay)
N. of Cnnipan Boy
83650"
117'15'06"
Line 43 (1. of Cold-
pan Bay-Tatub Pt.)
'Caleb Pt.
8'44'40"
117'21'211"
Line 41 (Tatub Pt.--
Punta Baja)
Punta Baja
9'02'60
117'37'53"
Line 45 (l'unta Baja
-Ma(apackun I.)
Malapackun 1.
9'15'30"
117'50'04"
Line 46 (Malnpackun
T.-Piedras Pt.
Piedra!! Pt.
10?11'28*
11848'18'
Line 47 (Piedras Pt-
Tapiutan I.)
Tapiuten I.
11'1340"
ne? 1 rur
Line 48 (Tapiutan I.
-Pinnacle Bk.)
Pinnacle Pb.
121684"
119'51'45"
Line 40 (Pinnacle Ilk.
-Cape Celestite)
7662' 15,535
118?39' 24,805
110?01' 18,470
21636 79,915
119'14' 140,541
134'50' 48,815
153'64' 15,665
170'40' 5,666
20452' 22,925
201;09' 54,990
218'57' 18,570
222'04' 45,125
223'30' 92,195
225'00' 148,260
203'19 124,900
20847' 108,000
200'40' 134,230 ,
JULY
-
JuLY 21, 1969
PIDAHISE696:44...jr,ar:'.
OFFICIAL GAZETTE
7387
DIAtanee
I n
N. LatIlltd? E. lAtteltude Misuth Meters)
Cape Calavite
Line 50 (Cape Cala-
13'2610'
120'1800"
vite-Cabra I.
148'12'
58,235
Cobra I.
11'53'30'
120'00'08'
Line 51 (Cabra
Capones Is.)
179'20'
119,400
Capones Is.
1955'00"
120'00'20"
Line 52 (Capone!' Is.
-Palauig rt.)
168'09'
59,100
Palauig Pt.
152650"
119'58'40"
Line 53 (Palauig.-
Ilermana Mayor I.)
16417'
40,870
Hermann Mayor I.
15'4710*
119'47'20"
Line 53a (Hermann
Mayor L-Tambobo
Pt.)
16710'
20,490
Tambobo Pt. ... . . .
15'58'00"
119'44'65'
Line Si (Tambobo I't.
-Rena Pt.)
181'43'
22,010
Rena Pt.
16'10'25"
119'45'18"
Line 64a (Rena Pt.-
Cape Bohm))
191'39'
18,675
Cape Bolinao
16?20'20"
119?97'25"
Line 55 (Cape Bolinao
--Darigayos rt.) .
22620'
80,016
Darigayos Pt.
16'50'15"
120'20'00"
Line 66 (Darigayoa
Pt.-Dile Pt.)
179'08'
81,616
Dile Pt.
178436'
12019'58'
Line 56a (Dila Pt.-
Pinget 1.)
18827'
12,060
Pinget I.
1740'68"
110'20'53"
Line 5Gb (Pinget
Badoc I.)
102'46'
27,170
Radoc I.
17'55'20'
12024'22"
Line 57 (Badoe
Cape Bojeador)
19503'
65,270
Cape Bojeador
18'29'90"
120'84'00"
Line 58 (Cape Mica-
dur-Dalupiri I.)
222'16'
101,740
Dalupiri 1.
10'10'15"
121'1302"
Line 59 (Dalup(ra
Catimapan Pt.)
213'26
25,075
Catanapan Pt.
16'21'35"
121'20'58"
Line 60 (Catanapan
PL-Deguey I.)
202'27'
118,870
Denary I. . ......
26'2608"
121'4636'
Line 61 (Dequey
Rana)
180'47'
42,265
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7394
OFFICIAL GAZETTE
VOL 65, No. 29 .
Finch Ilk.
Line 12 (Finch Ilk.-
SE of Manjud Pt.)
SE 51anjud Pt.
Line 12a (SE of Man-
jud PL-Sora Cay)
Sera Cay
Line 13 (Sora Cay-
Runga Pt.)
Ilunga Pt.
Line 13a (13unga Pt
-Tubabao 1.)
Tubabao 1.
Line 14 (Tubabao
Tugnug Pt.)
Tugnug Pt.
Line 15 (Tugnug Pt.--
Suluan I.)
Suluan island
Line 16 (Sultan,
Tuason Pt.)
Tatman Pt.
Line 17 (Tuason Pt.-
Cauit Pt.)
Cauit Pt
Line 18 (Cauit Pt.
A rangusa IL)
Arangasa Is.
Line 19 (Arangusa
-Quinablangan I.)
Quinablangan I.
Line 19a (Quinabla-
. ngan I-Above Lan-
guyan It.)
Above Languyan R.
Line 20 (Above Langu
yan R.-Pusan Pt.)
Pusan It.
Line 21 (Pusan Pt.-
Tugubun Pt.)
Tugubun It.
Line 22 (Tugubun Pt
-Cape S. Agustin
N.)
Cape San Agustin (N)
Line 22a (Cape S.
Agustin (N)-Cape
San Agustin (5)
Cape San Agustin (5)
Line 23 (Cape S.
Agustin (S)-Pan.
oil Bate Pt.)
Inuisnes
N. mounts R. Loseaste Astma(b 5114.)
12'3240" 125'12'57"
12'27'54" 12517'59"
12'21'47" 125'22'46*
12?1210" 125?3040"
12'06'06" 125.'33'58'
11'21'06* 125'37'40"
10'45'20" 125'57'40"
9'48'33" 126'1000"
9'18'35" 12612'25"
811260" 126?20'23"
7'4258" 126?3430"
7'29'10" 120'3610'
7?16'50" 12611650"
0119.24" 12628'00"
6117'03" 120'1208"
6'1615" 126'11'40"
313'56' 12,665
322'27' 14,225
321'03' 22,793
331110' 12,086
355'22' 83,235
331'03' 75,326
317?61' 107,070
355'25' 65,415
342'44' 49,703
318'40' 131,330
353"08' 25,619
356'52' 22,489
26119' 36,259
20'33' 83,350
30116' 1,707
39'23' 125,100
301.? 21, 1969
OFFICIAL GAZETTE
7385
N. Latitudo E. Longitude
Asietuth
141)
Panguil Data Pt.
5113'45' 1252842"
Line 23a (Panguil
Hato PL-Tapundo
Pt.)
66'32'
7,484
Tapundo Pt.
5'22'08" 1252459"
Line 21 (Tapundo l't.
-Manumit 1.)
89'19'
7,667
Manumit I.
5'22'05" 125'20'50"
Line 24a (Manamil I.
-Habit I. (W)
139'01'
3,051
Raba I. (W)
5'23'20" 125?1945"
Line 25 (Baba I. (W)
-Middle of 3 Ilk.
Awash)
12447'
149,840
Middle of 3 Ilk. Awash
6?09.39" 124'13'02"
Line 26 (Middle of 8
Ric. Awash-Tong.
quit I.)
36'18'
259,490
Tougguil I.
6'00'15" 121'12'45"
Line 27 (Tongniiii I.-
Sundstwunilla Li
61'29'
115,950
Sumba:amulet I.
5'3010" 12011735"
Line 2$ (Sumbasuunba
1.-Iiiini1,usan Is.)
43'19'
44,415
Kinapusan Is.
5"1237" 12041'05"
Lino 29 (Kinapusan
Is.-Manuk Manka
1.)
63'14'
101,290
Manak Mart T.
447.50" 119112'10"
Line 30 (llanuk Moo-
ha L-Franees Reef)
98?30'
80,847
Fi futures Reef
411-151" 119'1454"
Line 31 (Frances Reef
-Ilajapa Reef)
134'34'
29,330
Sabina Reef
4119.04" 119'0336"
Line 39 (RaJapa Reef
-Pa(lguan I.)
161'05'
13,480
Patignati I.
4?431ur 119?0136*
Line 33 Wanganui 1.-
Oniapay I.)
238'48'
42,470
(hammy I.
455312" 11921'15"
Line 34 (Onnipoy
Sunga-Sunga I.)
240'11'
51,005
Staiga.Sanga I.
6'011'12" 119'46'30"
Line 35 (Sanga-Sanga
I.-Pearl Dank)
170'05'
80,200
Pearl Rank
5'49'04" 119'39'01"
Line 36 (Pearl Rank-
Ragaun 1.)
103'13'
137,050
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.4.14.4tit/9,2-17
Republic of the Philippines
KAGAWARAN.NG KATARUNGAN
? Department of. Justice.
' ? Nanila..
REPORT OF THE SECRETARY OF JUSTICE
ON THE CONSTITUllONALITY -TT Tar
W1THDRa1Tt OF THE SPIIAH CLA1g7
AND OTHER LE(iirTaULTHELATED TMETO
The decision to drop the Philippine claim to SO
raises two legal issues: (,) uhotnor the renuncia'Aoh4A-
necessitate an amendment to the Constitution, particularly
Article I, Section 1,' defining the national territory; and
(2) whether there is .a necessity to repeal or amend N.A.
No. 3046, as amended by RA, No. 5446, otherwise known as
the "baselines law".
Article I, Section 1 of the Constitution provides as
follows:
"SEC. 1. The National territory .comprises -
the Philippine archipelago, with all.the'islan.ar.i
.and waters embraced therein, and all theother
territories belonging to the Philippines by
?historic right or legal title, including the
territorial sea, the air space, the subsoil, the
seabed, the insular shelves, 'and the other sub-
marine areas over which the Philippines has .
sovereignty or jurisdiction. The waters around,
between, and connecting the- islands of the archi-
pelaao, irreepectivo of their breadth and dimen-
sionn, form part of the internal waters of the
Philippines." (Art. I.)
And Section 2 of R.A. No. 54469 which law amends R.A. No.
3046 (defining the baselines of the territorial sea of the
Philippine Archipelago) reads as follows:
-2-
"SEC. 2. - The definition of the baselines ?
of the territorial sea of the Philippine Archi-
pelago 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 end sovereignty."
1. It must be observed at the outset that the definition
of the national territory in the Constitution makes no .
specific reference to the Sabah territory. Nowever, sore
. ? .
Quarters have suggested that the inclusion of Sabah in the
national territory is to be deduced from the phrase "all
the other territories belonging to the Yhilippinee by
historic right or legal title". The question then that has
to be resolved is whether Sabah territory belongs to the
Philippines by historic right or legal title. Unfortunately,
we can only honestly assert that what the Philippieee has
?in respect of the Sabah territory in Neeth Borneo is neither
a historic right nor a legal title thereto but a diapeted
claim. Hence, all references in connection with the relation
of Sabah to the Philippines invariably ore to a so-called
-"Sabah claim".
As a matter of law, the tern "historic right" as used
with. reference to the acquisition of territory by a state,
.connotes title created in deroealtion of internatielial law
through historical processes by which one Gtate has asserted
a jurisdiction originally illegal and this has bees acquiescei
in by the community of nations. In essence, the title is
validated only by the creation of A specific Custom, which
is. an expression of universal or almost universal consent.
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1388 OFFICIAL GAZETTE
VoL. 65: No. 29
Raile
Line 62 (Mille?rani'
N. LANhole
20?13'00"
E. Longitude
121?46'55".
Asinsuth
planner
iln
Meters)
1. (W)
200?30'
48,110
Y'aini I. (W)
21?07'26"
121'56'39"
Line 63 (ranii I.
(W)?I"aini I. (51)
2G8?40'
237
rami I. (W)
21?07.30"
121'.;6'16"
'Line 64 (Y'anii 1.
(M)?Y'anii I. (E)
307*08?
1,376
Y'aini I. (E)
21 *07113"
121?57'21"
?
SEC. 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. Philip-
pines has acquired dominion and sovereignty. -
SEC. 3. This Act shall take effect upon its approval.
- Approved, Sept. 18, 1968.
? H. No. 17066
(RErusuc ACT No. 5447]. -
AN ACT CREATING A SPECIAL EDUCATION FUND
TO BE (70NSTITUTED FROM THE PROCEEDS
OF AN ADDITIONAL REAL PROPERTY TAX
AND A CERTAIN PORTION. OF.THE TAXES ON.
VIRGINIA-TYPE CIGARETTES. AND DUTIES ON
? IMPORTED LEAF TOBACCO, DEFINING THE
ACTIVITIES TO BE FINANCED, CREATING
SCHOOL BOARDS FOR THE PURPOSE, AND -
APPROPRIATING FUNDS THEREFROM.
De it enacted by the Senate and House of Representatives ?
of the Philippines in Congress- assembled:
SECTION 1: Declaration, of policy: creation of 'Special
Education Fund.?It is hereby declared to be the policy of .
the government to contribute to the'linancial support of the
goals of education as provided by the Constitution. For.
this purpose, there is hereby created a. Special Education -
Fund, hereinafter referred .to as the Fund, to be derived- .
from the additional tax on real property and from a' cer-..
tain portion of the taxes on Virginia-type cigarettes .and -
duties on imported leaf tobacco, hereinafter provided for,
which shall be expended exclusively for the following acti- ?
vities of the. Department of Education: '.? ?
(a) the organization and oneration of such number of ?.
, .
extension- classes as may be needed to accommodate all
children of school age desiring to enter Grade I:including'
the creation of positions of classroom teachers, head
teachers and principals for such extension classes, which
shall not exceed the-standard requirements of the Bureau
of Public Schools: Provided, That under equal' circums-
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Absence of nrotest is the key to the legal reallty of the
title. (O'Connell, International Law, Vol. I, pp. 485-486.)
It is general knowledge that the Philippines has not
.sucCeeded in establishing or perfecting its cl_EiainInnallah
as against i:elaysia, which has consistently disputed our
claim to this territory. It is to be conceded also that
no state has acquiesced in, or supported, the Philippine
nnnn
claim, and that the Philippines has never at any time exer-
cised effective possession, much less jurisdiction or
control over any part of the North Borneo territory; worse
still, the Philippines has not made much headway in press-
----------------
ing its claim it will be recalled that in 1963, the
P.hilippine government signed an accord whereby it agreed
to an ascertainment., in line with the principle of self-
determination, through a survey to be conducted by the UV
Secretariat, of the preferences of the people of North
Borneo. This accord allowed for the possibility that the
result might. be favorable to the ? inclusion of Sabah in the
federution of Malaysia. As it turned out, the UN survey .?
----------
revealed that the North Borneans wanted to join Malaysia,
and this result necessarily militated against the strength
of our claim. Furthermore, the continued refusal of the
government of 'malsysia to submit to the jurisdiction of the
International Court of Justice, the ]egal iseue on the
Philippine claim, deepite the in:vitation of the Philippine
government to do so, has made a legal solution to the Sabah
oro-elere more elusive than ever. And a military solution to
the problem is definitely out of the question. For such an
action will contravene the Charter of the United Nations,
the Philiopine Conetitution and the ASEAN Treaty of Concord
and Amitr Aceerdinvly, it would be pretentious and untenable
. "
to assert, that Sabah is a territory bolonging to the
_ 4 -
Philippines by historic right or legal title and that it is
already a part of the Philippine territory as defined by
? the Constitution.
The conclusion that what the Philippines has, with
respect to Sabah, is only a claim, in shared by the framers
of the new Constitution as indicated by the report of the
subcouncil of the Constitutional Convention that drafted the
article on national territory. The report states as follows:
"This provision had been lengthily
discussed on the floor of the Convention but
just to recapitulate, the idea here is to
adopt the archipelagic theory in the definition
? of our National Territory; to remove the vestige
of colonialism by deleting the treaties mentioned
? in Article I of the 1935 Constitution which showed
that the Philippines had been the object of inter-
national commerce; to provide for a broad and ell-
embracing delineation of our territorial juris-
diction no as. to include the waters in and around
.and in between our multifarious islands regardless
of their breadth and length; and finally, to
safernand.oniLnkaips to eertainterritories, like
Sabah, through historical right or legal title."
(Pp. 3?-36, Vol. XVI, No. 5, Journal of th:,
titutional Convention of 101.)
In justifying the need to "protect the pendin,; :2-abah
claim of the Republic of the Philippines", the corittae
recited the unsuccessful efforts undertaken by the Philip-
pine government in .pressing its claim over North Borneo
since April 24, 1962 when the Nouse of Representatives
approved a resolution urging the President of the Philip-
pines to take the necessary steps to recover the Sabah
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-.5-.
territory, up to the breakdown of the )Bangkok talks .in ?
1968 when the Malaysian representative refused to discuss
the .modes of settlement of the Philippine'claim. ? The
committee stated that "it is probable that there will be
talks on the Sabah dispute in the future.' and it was be-
cause of this probability, among other reasons, that the
comMittee justified the phraseology of tha article on
national territory in the Constitution. Separate stateMents
of committee members also invariably make references to the
Sabah territory as "a claim" of the Philippine Government .
(e.g. sponsorship speech of Delegate Jai M. Arad on Feb, 12,
-1972; Position Paper of Delegate- j. Hermosa dated Jan. 13,
1972.)
It is clear, therefore, that ? by making reference to
territories belonoing the Ph-llippines by leotoric right
or legal title, the framers of the. Constitution did. have in
r.ind?the Zele,h claim, but there .:as ne doubt in their minds
that we only hold a claim. The report indicates that. the . ?
Convention merely ootleipoted the poosibility that the ?
? ?
Philipoine claim mighl: ultimately be decided in our favor.
At the time the Constitutin was enacted, the Convention
could oot have ignored the manifest fact that Sabah vas not
pet a 7e.rt of the fhilippine territory, and in coatemplating
to "safeaeord our claim" to Seboh, it msrely provided for a
contire-eney, oe ineued it wao Sri no lefeoi pooition to affirm?
f"..?
a conclusion 'Rich is not oaly obviously contrary to fact,
but also one actively disputed by parties upon Lhom the
Philipeine Constitution has no binding effect. ------
It is true that R.A. NO. 5 446 was already in force at
the tine Of the adoption of the Constitutin. Section 2
of this law, which amended P.A. No. 3046, defining the base-
lines of the territorial sea of the Philippines, provided
that the definition Of the baselines therein 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". But it. cannot
seriously be contended that this law conferred legal title
or confirmed "historic right" to Satah. The Philippine
elaim is being disputed by Malaysia, .and the Sabah issue
is not a domestic or internal problem to be settled by
national legislatien. The onactmeot therefore cf
5446 amounted to no mere than a unilateral or
declaration or assertion on the Dart of the governeent,
-------
which cannot have binding effect upon or be decisive of the
rights of, e. foreign state disputing the Claim. Al: the- elmS-
of the enactment ef R.A. No. 5446, the le,-islature was not
unaware the'; the legal merits of the Philippine claim to
Sabah had already been considerably weakened by ,nA result
of the UN Secretariat's survey which was favorable to tha
inclusion of Sabah in the l'ederatioo of Malaysia. Pc. aeorent
of legislation. con establish the coneelusion that the Philip-
_
piaes?had acouired dominion anti sovereignty over SAbah whore
this assertion is manifeotly 2Qoainst the existing facts.
There is reason to believe that the statutory deolaratien
merely reflected the Instrument executed by the liviro heirs
of the Sultan of Sulu en April 24, 1962, wher/O.,y the said
liaise recognezed and accepted the ultimate soyereionty, title
and dominion of the Republic of the Philippines over the
Sabah territory and authorized the Philippine Government to
prosecute the claim to said property through airy and all
peaceful modes of international settlement, as well as the
"Instrument of Cession of the Territory of North Borneo"
dated September 12, 1962, whereby the heirs of theSultan of
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Sulu formally ceded and the Philippine Government formally
accepted, the Territory of North Borneo which, according
to.the.instrument, had theretofore been. under the sovereignty,
title and dominion of the Sultanate of Sulu for "the last
two hundred and more years", and a later document executed
in 1968 whereby the said heirs recognized the right and
authority of President Ferdinand E. Marcos to act for or on
their behalf with a view to effecting settlement of whatever
proprietary rights and benefits the heirs may be entitled
to. But R.A. No. 5446, being purely municipal law, cannot
be the basis of historic right or legal title as against
Malaysia.
In fine, the inclusion in the definition of the national
territory in the Constitution of "territories belonging to
the Philippines by historic right or legal title" provided
for the possibility that Sabah might eventually become a part
of Philippine territory, but it did not, as it could not,
have settled or established the Philippine claim to Sabah,
even by a- categorical declaration that Sabah is a part of
the Philippine territory. It is my conclusion, therefore,
that the renunciation of the Sabah claim docu.not require
an arLendment of Article I, Section 1 of the Philippine
Constitution, as Sabah is not included in the definition of
the national territory, whether expressly4or by necessary
inference.
2. iiegarding the necessity to repeal the provision of
Section 2 of R.h. No. 5446, amending N.A. No. 3046 (defining
the baelines of the Philippine territorial sea), it is my
opinion that this section ought to be repealed, if only to
dispel any doubt as to the sincerity of the gpvernment in its
announced position that it is no longer pursuing its claim
- 8 -
against Malaysia. While, as earlier stated, our own law
cannot be invoked to support cur claim as against Malaysia,
the fact remains that the expressed intent to extend the ?
baselines of the Philippine territorial sea to the baselines
-Of the territorial sea around the territory of Sabah, is
inconsistent with the present position of the Philippine
government to abandon or renounce the Philippine claim to
Sabah.
Submitted by:
(SOD.) VICENTE ABAD SANTOS
Secretary of Justice
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