WE are not supreme because we are infallible; we are infallible because we are supreme.”
So explained then-Chief Justice Enrique Fernando to us wide-eyed law school freshmen a lifetime ago on what the basis was for the Supreme Court’s enormous “power” at the top of the judicial branch, making it — despite being an unelected branch of government — a major player in any democracy.
And every law-student-turned-lawyer naturally takes those words to heart, conscious that any resolution or judgment issued by the High Court was as close to God Himself muttering something important from on high. One chose to challenge these pronouncements at one’s peril, although, yes, there were processes and procedures to do just that, up to a certain extent.
It was thus with much eagerness that I lapped up the press statement of an old friend from UP pre-law and law school days, former Presidential spokesperson and international law professor Harry Roque, who was taking exception to a recent ruling by the High Court.
Headlined “Gov’t Must Expedite Appeal on SC JSMU Ruling,” the former spox “expressed dismay over the Supreme Court’s declaration that the Joint Maritime Seismic Undertaking (JSMU) is unconstitutional and said the Philippines could only invoke ‘sovereign rights’ and not sovereignty over the agreement area.” The Court decision effectively voided the country’s 2005 tripartite agreement with Chinese and Vietnamese oil firms.
‘So: Was the infallible fallible after all — at least on this issue? Let’s see what happens
if and when the OSG appeals the decision.’
“With all due respect to our esteemed Justices,” Roque said in his statement, “the decision to nullify JMSU is incompatible and inconsistent with the relevant provisions of UNCLOS. We do not have sovereignty over the area covered by the JMSU even if it falls within our exclusive economic zone (EEZ).”
He explained: “The Philippines cannot enforce its Constitutional and legal jurisdiction beyond its sovereign territory. Thus, any provision of the 1987 Constitution should not apply to JMSU.
“The Convention defines a coastal state’s sovereignty as extending beyond its land territory and internal or archipelagic waters to an adjacent belt of the sea called the territorial sea.
“This territorial sea is limited to 12 nautical miles from the baseline of a coastal or archipelagic state like the Philippines,” Roque continued. “We cannot exercise sovereignty over our EEZ. It is 200 nautical miles from the Philippine archipelagic baselines.”
But the Philippines could claim “sovereign rights” over parts of the 142,886 square kilometer agreement area within the Philippine EEZ.
Sovereign rights, Roque explained, “do not give the country supreme and absolute power over its EEZ but allow the Philippines to explore, exploit, conserve, and manage natural resources within the zone.”
While exercising its rights and duties in the EZZ, the country is mandated by UNCLOS to have due regard to the rights and freedoms of other states, according to Roque.
“In my view, the High Court’s ruling would imperil future joint maritime agreements that seek to explore the gas and oil-rich WPS,” Roque said in his statement.
He added that the Philippines would lose out on potential economic benefits from a joint pre-exploration of natural resources with countries or parties that possess the required capital and technology.
“Terminating our agreement with China and Vietnam, and the Recto Bank deal with China in 2022, could further jeopardize the dispute settlement in the Kalayaan or Spratly Group of Islands,” Roque noted.
“In my view, a joint undertaking of this nature that operates outside the ambit of our Constitution would have been an ideal win-win solution for the claimant countries of the Spratly archipelago.”
So: Was the infallible fallible after all — at least on this issue? Let’s see what happens if and when the OSG appeals the decision.