Senators to ask Supreme Court to define role of Senate in treaty withdrawal

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Metro Manila (CNN Philippines, February 20) – Some senators will ask the Supreme Court to define their rights in treaty withdrawal following the current administration’s move to unilaterally terminate the Philippines’ decades-old Visiting Forces Agreement with the United States.

“We will address the Supreme Court in a petition for declaratory relief to define the constitutional boundaries between the Senate and the executive [branch] insofar as withdrawal from treaties are concerned,” Senate Minority Leader Franklin Drilon said during a Senate hearing on Thursday.

Drilon warned against 'serious consequences' of the administration’s assertion that the President has the sole authority to terminate the VFA. The presumption is that the President can abrogate any treaty without the concurrence of the Senate, he noted.

“There are a lot of implications on a unilateral withdrawal, ignoring the Senate,” he said, adding that this goes “beyond the VFA” issue.

He pointed out that in at least 20 concurrences of agreement ratifications, including the Paris Agreement on Climate Change, the Senate inserted a clause, which states that pulling out from a treaty “should carry the concurrence of the Senate also.”

He was reacting to the pronouncement of Foreign Affairs Special Assistant Igor Bailen who told the Senate on Thursday that VFA termination does not require concurrence of the Senate.

No Senate concurrence required

Bailen said that when Duterte ordered the DFA to send the notice of VFA termination to the United States, he was merely exercising his diplomatic powers granted to him by the Philippine Constitution.

The official cited Section 21 of Article 7 of 1987 Constitution, which provides that “no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”

“The President’s prerogative as the chief architect of the nation’s foreign policy has long been acknowledged sacrosanct as a Constitutional cornerstone,” he said.

Atty. Harry Roque, who was also in the hearing to provide his legal opinion, came to the defense of the current administration, saying the fact that the framers of the 1987 Constitution limited the role of Senate in concurrence means that the participation of Congress in the VFA termination also has boundaries. Roque was the former spokesman of Duterte.

But Atty. Mel Sta. Maria, dean of the Far Eastern University Institute of Law, said the President's decision to unilaterally end the VFA is an affront to the Senate.

Sta. Maria said there's an emerging view that any treaty which needs Senate concurrence for adoption should also seek Senate approval if these are ended, adding the Constitution has several provisions against absolute power.

The VFA is set to expire on August 9 after the DFA sent the United States the notice to terminate the VFA on February 11. Under Article IX of the agreement, expiration will take effect 180 days from the time either party notifies the other.

The VFA was brought to light in January after Duterte threatened to scrap it in response to US' cancellation of Senator Ronald "Bato" dela Rosa's tourist visa. Dela Rosa acknowledged that the revocation of his visa may have something to do with the alleged extrajudicial killings under his watch as chief of the Philippine National Police from 2016 to 2018.

The VFA is a 1998 agreement between Manila and Washington on the protocol over the presence of American military personnel in the country. Among its controversial provisions are the lax visa and passport policies for American troops and the authority granted to the US government to retain jurisdiction over military personnel if ever they commit crimes locally.

READ: ​Philippines formally ends Visiting Forces Agreement with US​​​​​

READ: EXPLAINER: The Visiting Forces Agreement 

Meanwhile, a legal expert advised the lawmakers that before they bring their petition to the high court, they must first send a resolution to the Office of the President, expressing their position on treaty withdrawal. Drilon said as far he is concerned, the Senate’s stand is that their consent is needed before a treaty could be validly abrogated. If the resolution gets snubbed, then it is possible the Supreme Court could issue an order outlining the rights and obligations of concerned parties under applicable laws, San Beda University Law Dean Ranhilio Aquino told Drilon in the hearing.

“If the Palace disregards the resolution, that is then that an actual controversy exists and then the matter would be ripe for the Supreme Court to decide,” the lawyer said.

Drilon said they will do Aquino’s suggestion but they will also “argue that this is a transcendental issue that should merit the attention of the SC even if technically it should be with the lower court.”