Legal experts agree: Senate must have say in VFA scrapping
The 1987 Constitution abhors the idea of absolute power, according to Far Eastern University (FEU) Institute of Law Dean Mel Sta. Maria, one of the legal experts who on Thursday supported the senators’ stand that Senate concurrence is needed in the termination of a treaty.
The legal experts’ position agreed with that of Senate Minority Leader Franklin Drilon who, with Senate President Vicente Sotto III, is planning to bring the matter to the Supreme Court and is hoping to have the weight of the Senate as an institution behind the move.
Drilon has also authored a resolution expressing the sense of the Senate that its concurrence is needed before termination of a treaty, which is pending on the committee on foreign relations.
Constitutional silence
But Sen. Aquilino Pimentel III, chair of the foreign relations committee, was not inclined to share the position, saying he believed the 1987 Constitution’s silence on the need for Senate approval in ending a treaty was “intentional.”
“It’s important in constitutional law because when you state a power, you also intentionally not state a power. That means they are withholding that power,” Pimentel said.
Pimentel said he would get the consensus of the 15-member committee on Drilon’s resolution and if it got majority backing, it would be reported out to the plenary for approval
If the committee and the plenary do not approve the resolution, then Sotto and Drilon will have to file the petition as individuals and will not be able to bring the name of the Senate as an institution into it.
Pimentel led the hearing on Drilon’s resolution on Thursday and got the opinion of several legal experts, most of whom shared Drilon’s view.
Drilon’s action followed President Duterte’s decision to terminate the Visiting Forces Agreement (VFA), which allows US troops to come to the Philippines for joint exercises with and train Filipino soldiers and carry out humanitarian missions.
Mr. Duterte decided to terminate the VFA after the US government canceled the US visa of Sen. Ronald dela Rosa, a former chief of the Philippine National Police who carried out the President’s brutal war on drugs, and barred from the United States other Philippine officials involved in the detention of Sen. Leila de Lima.
President’s diplomatic power
At Thursday’s hearing in the Senate, Assistant Foreign Secretary Igor Bailen maintained that the President would not need to get the approval of the Senate in ending a treaty, noting that only the President could negotiate a treaty and Congress could not intrude into this.
“When President Duterte sent the VFA notice of termination, he was merely exercising his diplomatic powers granted to him by the Constitution. As the power to enter into treaties is vested in the President, the power to terminate the same is incidental or residual thereto,” Bailen said.
He also noted the Constitution’s silence on the need for Senate concurrence in withdrawal from a treaty.
FEU’s Sta. Maria said that while the Constitution is silent on whether Senate concurrence is necessary for the termination of a treaty, termination must be done in the spirit of the Constitution, which is against giving absolute power to anyone, including the President.
Sta. Maria cited an emerging theory that when a Constitution requires a parliamentary or legislative approval for a treaty subject to ratification, it likewise, by implication, requires the consent of parliament or the legislature to withdraw from the treaty.
Checks and balances
“The application of this theory is consistent with the spirit of the 1987 Constitution,” Sta. Maria said.
One reason is that absolute power is anathema to the Philippines, a republic and a democratic state, he said.
“Any interpretation of an ambiguous provision or omission must not lean toward absolutism but toward the heart of an accountable structure: checks and balance among the three great powers of government,” he said.
Any attribution of “king-like” power to the President violates the spirit of the fundamental law of the land, he said.
The Constitution, he pointed out, is replete with provisions highlighting its repugnance of absolute power, such as the one requiring legislators’ concurrence in the declaration of martial law and in the declaration of war.
“The spirit of absolutism is just too glaring,” he added.
Since a treaty has the same standing as a statute, he said, its abrogation, whether expressed or implied, needs the Senate’s participation.
Former Sen. Francisco Tatad also spoke in support of Senate concurrence.
Tatad said no court could question the President’s decision to abrogate the VFA, since this is a political act that is not subject to judicial review.
“But the manner it was carried out must follow the sense of the Senate and the rule of equity and fair play,” Tatad said.
Catholic priest Ranhilio Aquino of the San Beda University’s Graduate School of Law noted that the Philippine Constitution is based on the US constitution, which is also silent on the need for Senate concurrence in ending a treaty.
But the US charter is silent not because it intends to give this power to the President alone, but because for the first decades of American history, the cancellation of treaties was a congressional function, he said.
Policy implications
Drilon said the issue of Senate participation in the termination of a treaty was a “substantial” one because ending a treaty had a lot of policy implications.
He said he could not accept the proposition that this was the sole prerogative of the President.
“The Congress, being the primary policy-making branch of the government, must have a say in the termination because it involves policy issues,” he said.
