EXCLUSIVE: Proposed constitution asserts PH claims over West PH Sea, Sabah

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Metro Manila (CNN Philippines, July 17) — The proposed new constitution asserts the country's sovereignty over the West Philippine Sea and its historical claim to Sabah.

This was confirmed Tuesday by Consultative Committee (ConCom) member and former Senate President Aquilino "Nene" Pimentel, Jr., who was among the 22 experts appointed by President Rodrigo Duterte to review and recommend changes to the 1987 Constitution.

Pimentel said he had wanted the proposed charter to specifically state that the contested Scarborough Shoal and Spratlys in the South China Sea, and Sabah, which is currently a state of Malaysia - are all part of Philippine territory.

"Gusto ko sana isali na Scarborough, atin yun, Spratlys atin yun, Benham Rise atin… I want it to be that more specific pero sabi nila kung gawin yun, ganun kakapal ang ating [constitution, so] general principles na lang," Pimentel told CNN Philippines' The Source, motioning with his hands that the document would be about two feet.   

[Translation: "I wanted to say the Scarborough, Spratlys and Benham Rise are ours… I want it to be that more specific but other members said the constitution will be too thick if we do that, so we just wrote general principles."]

CNN Philippines on Tuesday also obtained a copy of the ConCom's final draft which Duterte is expected to endorse to Congress.

West Philippine Sea

Article 1 of the proposed constitution has two paragraphs detailing what comprises national territory. 

It states that the Philippines "has sovereignty over islands and features outside its archipelagic baselines pursuant to the laws of the Federal Republic, the law of nations, and the judgments of competent international courts or tribunals."

Pimentel said the last clause was written to refer to the July 2016 arbitration ruling.

The 1987 Constitution makes no mention of any international court ruling, but states that "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."

The 2016 ruling invalidated China's sweeping claims in the South China Sea. It said China's construction and fishing activities in the South China Sea violated the Manila's sovereign rights in areas that are part of the Philippines' exclusive economic zone and continental shelf. The tribunal did not rule on sovereignty.

China has refused to acknowledge the arbitral ruling and continues to claim almost the entire South China Sea. Duterte has repeatedly said the country cannot afford to go to war against China, but he promised to bring up the arbitral ruling with the East Asian giant during his term.

Sabah

As for Sabah, Pimentel said he had always wanted to make it one of the Philippines' federal states, but understood that the government cannot "antagonize" Malaysia and jeopardize the friendly ties between the Asian neighbors.

"We are proposing it now as we already begin to assert our right over Sabah," Pimentel said.

The proposed constitution states that the Philippines "likewise has sovereignty over other territories belonging to the Philippines by historic right or legal title." This is not found in the present Constitution.

The Philippines claims that Sabah was once ruled by the Sultanate of Sulu, citing a January 18, 1878 lease agreement between it and the now defunct private firm British North Borneo Company, over a part of Sabah.

But the Malaysian government says Sabah was recognized as part of its territory since it became part of the federation in 1963.

Pimentel said the Philippines should bring the matter up to the Association of Southeast Asian Nations (ASEAN). Both Philippines and Malaysia are member states of the regional bloc.

"So eventually we'll have to raise that before the United Nations. Ang unang gusto ko sanang mangyari, we do it through ASEAN," Pimental said.

Duterte met with Malaysian Prime Minister Mahathir Mohamad on Monday but the Palace is mum on whether the two leaders talked about their countries' conflicting claims to Sabah.

Benham Rise

Under the present Constitution, national territory includes areas where the Philippines has sovereignty or jurisdiction, including "terrestrial, fluvial and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas."

The proposed constitution makes it clear that the Philippines has sovereign rights over Benham Rise, which the government calls Philippine Rise.

"The Philippines has sovereign rights over that maritime expanse beyond its territorial sea to the extent reserved to it by international law, as well as over its extended continental shelf, including the Philippine Rise," the draft states. "Its citizens shall enjoy the right to all resources within these areas."

No other country has claims in Benham Rise east of the country, but Duterte repeatedly asserted ownership of the vast undersea region after Chinese survey ships were spotted there in March last year. He has since renamed it Philippine Rise.