Senators urge Supreme Court to rule on Senate role in termination of treaties

Senate President Vicente Sotto III and five other senators on Monday went to the Supreme Court (SC) to assert the Senate’s role in treaty withdrawals, as the clock ticked towards the termination of a military agreement between the Philippines and the United States.

In a petition for declaratory relief and mandamus, Sotto and Senators Ralph Recto, Juan Miguel Zubiri, Franklin Drilon, Richard Gordon, and Panfilo Lacson asked the justices to declare that a treaty previously concurred in by the Senate should require the concurrence of at least two thirds of the Senate if withdrawn.

They asked that the SC “issue an order directing respondents to forthwith refer the Notice of Withdrawal to the Senate of the Philippines for its concurrence, pursuant to Section 21, Article VII of the 1987 Constitution.”

The petition was filed almost a month after Manila notified the US of its intention to end the 1999 Visiting Forces Agreement (VFA), which governs the conditions under which American soldiers may be present in the Philippines.

The termination will take effect 180 days after the US received the notice. President Rodrigo Duterte threatened to end the VFA after the US cancelled Senator Ronald "Bato" dela Rosa's visa.

Named respondents in the senators’ petition were Executive Secretary Salvador Medialdea and Foreign Affairs Secretary Teodoro Locsin Jr.

In an interview, Drilon said the petition seeks a definition of the "constitutional boundaries" of the powers of the Senate and the executive branch of government, and does not concern the VFA alone.

Sotto, for his part, said the Senate is only asserting its power in treaty withdrawals.

"'Yung ganitong klaseng kabigat na agreement na mahirap pasukan, napakahirap ng pagkakapasok dito, hindi pwedeng tapusin 'to ng isang sulat lang. Hindi ganon kadali ang pananaw namin," he told reporters.

ICC case

Opposition senators have also brought this issue to the SC in a case questioning the Philippines' withdrawal from the International Criminal Court (ICC).

In 2018, Duterte decided to withdraw the country's membership from the ICC weeks after it announced it was reviewing allegations against him over his deadly crackdown on illegal drugs. The withdrawal took effect in 2019.

The petitioners in the ICC case urged the SC to declare the withdrawal "invalid or ineffective" without the concurrence of at least 2/3 of the Senate, which ratified the establishing treaty of the ICC, the Rome Statute, in 2011.

Section 21, Article VII of the 1987 Constitution says treaties or international agreements are valid and effective when concurred in by at least 2/3 of the Senate. Government lawyers argued the Constitution is silent on the need for the Senate's approval in withdrawing from treaties.

The case remains pending.

'Dangerous precedent'

Unlike the ICC case, the new petition does not ask the SC to void the VFA notice of withdrawal.

But it does argue that the executive's unilateral revocation of any treaty or international agreement without Senate concurrence violates the doctrine of separation of powers and the principle of checks and balances.

The senators claimed that a "dangerous precedent" would be set if the executive department, by itself, terminates a treaty, which has the force and effect of law.

"Similar to other domestic legislation, once a law is passed, it is only Congress, through the passage of another law repealing the previous one, that may 'terminate' or withdraw the binding effect of said law," their petition states.

As to the silence of the Constitution on the procedure of withdrawing from treaties, the senators argued that the "silence or the ambiguity of the Constitution on the requirement of the concurrence of the Senate to withdraw from a treaty does not indicate the lack of intent or operability of the same."

They contended that a reading of Section 21, Article VII of the Constitution "supports the construction that any act of the Chief Executive which affects the validity and effectivity of a treaty, as mentioned in the provision, necessarily requires the concurrence of the Senate."

If the SC declares that the Senate's concurrence is necessary and orders the executive to send the VFA notice of withdrawal to the senators for voting, Drilon said the Senate's decision is not yet known.

"If the Senate concurs with the withdrawal then the withdrawal is effective. If the Senate does not concur with the withdrawal, then the withdrawal is not effective," he said.—NB/LDF, GMA News