I just appeared as a resource person in the Senate Foreign Affairs Committee to give my views on Senator Franklin Drilon’s Resolution expressing the sense of that body that any withdrawal from a Treaty should have Senate concurrence.
I arrived late since the invitation was sent only by text yesterday late afternoon and I stood as a sponsor at a wedding in Tanay at 8:30 in the morning.
Nonetheless, Senator Imee Marcos expressed relief that I did arrive as, apparently, all but one of the resource persons, Assistant Secretary Igor Bailen of the Department of Foreign Affairs, took the view that Senate concurrence is required before we can withdraw from a Treaty.
I only heard two of the resource persons. Dean Andres Sta Maria expressed the view that the senators as policy makers must be consulted in Treaty Withdrawals as, otherwise, there might be “abuse of power” as in this instance when the President allegedly “withdrew from the VFA (Visiting Forces Agreement) on the whimsical grounds, i.e. the revocation of Senator Bato’s visa.”
Likewise, Dean Ranny Aquino gave the opinion that Senate concurrence was a requirement for Treaty withdrawal in their draft changes to the 1987 Constitution.
I took the floor twice. First, I gave a short answer to the Senate inquiry: that Senate concurrence is not a requirement for withdrawal from the VFA. Why? Because the Supreme Court said so in a case that I argued in the Highest Court, the case of Salonga vs Executive Secretary.
Since our case was already a second challenge to the constitutionality of the VFA, the first being the case of Bayan vs Zamora where the Court said that the VFA was a valid international agreement recognized as such by both the Philippine and the US government; hence, the issue of concurrence on the part of the US Senate was an issue beyond the scope of review of the Supreme Court.
This being the stare decisis, we had to argue on changed circumstance, which was that Art 18, Section 25 of our Constitution specifically requires a Treaty duly recognized by the other contracting party as such, as a requirement for the stationing of foreign troops and facilities in the country.
Bayan appeared to be premised only on the general rule under Art VII Section 21 of the Constitution that provides for the general rule — that is, that no treaty shall be valid and binding without a concurrence of the Senate.
In Salonga, we additionally argued a violation of the equal protection clause which was not a ground invoked in the earlier case of Bayan, precisely to compel the court to revisit the issue of the VFA’s constitutionality.
I then stated that since we invoked new ground in the second petition questioning the constitutionality of the VFA, the Court had to address the issue of whether VFA was a treaty that would require Senate Concurrence. And the ruling of the Court was crystal clear: it is not a treaty but a mere implementing agreement to a treaty, the Mutual Defense Pact of 1951.
This way, the Court squarely addressed the point on whether Senate concurrence on the part of both the Philippines and US Senate were required. It was not since the basis upon which it was anchored was a treaty duly concurred in by both Senates.
In my second intervention, I addressed the issue of whether withdrawals from Treaties per se, as we know them under domestic law, those which formulate a new national policy as held in Commissioner vs. Customs case vs Eastern Trading, require Senate concurrence.
I argued that since the Constitution merely requires concurrence in order that a Treaty may be valid and binding under our local laws, the concurrence with withdrawals from a treaty does not require concurrence.
In fact, in the latest case of Intellectual Property Association of the Philippines vs Ochoa, the Court declared that the Chief Executive is the chief architect of foreign affairs. Apparently, the likes of Senator Franklin Drilon confused the phrase “in order to become valid and binding” as legislation — i.e., that Senate concurrence is to make a treaty part of domestic law.
This is erroneous. It only has the effect of law but is not law per se as otherwise, concurrence of the House of Representatives would also be required. Since concurrence by the House was not required in the Constitution, then the concurrence exercised by the Senate alone was not legislation per se, but something akin to it in order that a treaty shall become valid and binding.
I ended my second intervention with the observation that the issue of whether a withdrawal from a Treaty requires senate concurrence was already submitted for resolution in the Court. This is the series of challenges against the President’s decision to withdraw from the Rome Statute of the International Criminal Court.
I made my observation that majority, if not all of the Justices, noted in the oral arguments the lack of textual commitment in the Constitution for Senate concurrence in case of withdrawal from a treaty.
I concluded by asking why the Senate as an institution did not intervene in the Rome statute petitions and yet appears to be determined to challenge the lack of Senate concurrence in the instance of withdrawal from the VFA. Could it be that the issue of Senate concurrence to a decision to withdraw from a Treaty is dependent on the specific content of the Treaty? I do not think so