LAST Feb. 11, the Duterte government formally sent notice of its termination of the Philippines’ Visiting Forces Agreement (VFA) with the United States of America. This followed the President’s tirades against the US government after it was made known that Senator Ronald Dela Rosa’s visa to “the land of the free” had been cancelled.
Senate President Vicente Sotto III has manifested the desire of the Senate to bring up to the Supreme Court the question of whether the VFA abrogation is valid without the concurrence or approval of the Senate. The basic theory appears to be that since treaty-making is a shared power between the executive department and the legislature acting through the Senate, then termination of treaties must also be a joint, shared power.
This is not without precedent. Two years ago, the Duterte government formally submitted its notice of withdrawal from the Rome Statute, a multilateral treaty that established the International Criminal Court (ICC) and defined certain international crimes over which it could exercise jurisdiction. The withdrawal was likewise made without Senate concurrence.
The antecedents leading to the withdrawal from the Rome Statute are no less controversial. It was seen to have been impelled by reasons that were personal to the President and the police authorities working under him.
A month before the withdrawal, the office of the trial prosecutor of the ICC announced the formal opening of a preliminary examination into the situation in the Philippines for alleged crimes against humanity committed since July 1, 2016. The Duterte administration launched the war on drugs on the day of its assumption to office.
Minority senators and other groups have questioned the legality of the withdrawal before the Supreme Court. The issue remains pending until now. An earlier resolution could have averted the subsequent unilateral action by the President on the VFA. Or possibly serve as a deterrent to the current action of the Senate should the Supreme Court agree with the Solicitor General that the President can abrogate a treaty on his own.
The President’s actions with respect to the two mentioned treaties is anchored on the silence of the 1987 Constitution on the matter of withdrawal from a treaty or international agreement. This contrasts with the explicit requirement of the Constitution 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.
It is our view, however, that despite the silence of the Constitution, the withdrawal of treaties continues to be a shared power between the executive and legislative branches of government. This is consistent with the system of checks and balance provided for in the 1987 Constitution. There is no legislation in existence that accords the Philippine President the sole, unlimited power to terminate or abrogate treaties.
The same legal issue confronted the Supreme Court of South Africa when that country’s executive branch decided to withdraw from the Rome Statute in 2016 without first securing the approval of its parliament. The text of the decision is searchable in the internet for the guidance of all.
As here, the case was argued largely on the basis that there is no provision in the Constitution of South Africa for withdrawal from international treaties. In ruling against the executive department, the South African Supreme Court reasoned that there is good reason why the Constitution provides for the power of the executive to negotiate and conclude international agreements but is silent on the power to terminate them.
The “good reason” supplied by that Supreme Court: as the executing arm of the state, the national executive needs authority to act. That authority will flow from the Constitution or from an act of parliament. The national executive can exercise only those powers and perform those functions conferred upon it by the Constitution, or by law which is consistent with the Constitution. This is a basic requirement of the principle of legality and the rule of law.
According to the South African Supreme Court, the absence of a provision in the Constitution or any other legislation of a power for the executive to terminate international agreements is confirmation of the fact that such power does not exist unless and until parliament legislates for it. It is not a lacuna or omission.
In a similar manner, the Philippine President may not abrogate a treaty without authority from the Senate. Such power does not exist in our laws. It is not that the Constitution is silent. It is that the Constitution does not confer upon the executive department the exclusive power to terminate international agreements.
Blending of powers as in the case of treaties is consistent with the principle of separation of powers among the three branches of government. Concentration of powers in the executive department is illogical and contrary to the republican spirit that propels the Constitution./PN
