"It makes no sense to hold that the Executive Department subsequently can act unilaterally on something that started out as a bilateral matter."
"It makes no sense to hold that the Executive Department subsequently can act unilaterally on something that started out as a bilateral matter."
Claiming that the President of the Philippines is the sole architect of this country’s foreign policy and can abrogate treaties without the concurrence of the Senate, the Secretary of Foreign Affairs, upon instruction of President Rodrigo Duterte, has served notice on the US government of the Philippines’ desire to abrogate the VFA (Visiting Forces Agreement) signed by the Philippines and the US in 1999. When a group of Senators led by Senate President Vicente Sotto III files its opposition with the Supreme Court in the coming days, there will be—to use judicial parlance—a joinder of issues.
There is no question that the Philippines cannot sign treaties with other countries without the convenience of two-thirds of the 24-member Senate; that is stated clearly in the Constitution. What is at issue is whether the role of the Senate with regard to treaty-covered Philippine external relations ends with its concurrence to a treaty. President Duterte, the Secretary of Foreign Affairs and their advisers think it does; Senate President Sotto and his colleagues beg to disagree.
Before addressing the core issue that is involved here—whether the President of the Philippines is the sole architect of foreign policy—one needs to examine the process by which the Senate arrives at a decision to grant or withhold its concurrence to a treaty. It is a lengthy process.
The process begins with the submission to the Senate by the DFA (Department of Foreign Affairs) of the text of the proposed treaty and a request for Senate concurrence. The president of the Senate then refers the proposed treaty and the supporting material to the chairman of the committee on foreign relations, whose staff then schedules public hearings on the matter.
During the course of the hearings, whose duration will depend on the complexity and sensitivity of the proposed treaty, the representatives of the Executive Department and the Senate will be fully heard. All the Senators—not just the members of the committee on foreign relations—will direct searching questions at the representatives of Malacañang and DFA in an effort to arrive at a judgment on whether the treaty will be good for and fair to the Philippines; the latter will do their best to satisfy any concerns and assuage any doubts that the Senators may have.
Thus, the process by which the Constitutional mandate of Senate concurrence is obtained is by no means an abbreviated, pro forma affair. The Senators take their treaty-concurring function seriously and can be very exhaustive in their approach to the matter of concurrence in, or rejection of, a proposed treaty. The classic instance of this is, of course, the Senate’s 1991 rejection of the Cory Aquino administration’s proposed treaty for the extension of the Military Bases Agreement with the US.
After the hearings, the chairman of the committee on foreign relations calls for a vote on the proposed treaty, and the members then vote for or against it. The committee’s decision is transmitted to the Senate president, who orders its being calendared for a vote by the entire Senate membership. The proposed treaty either obtains the Constitutionally mandated concurrence or it is rejected by the Senate.
Given the importance and care that they attach to their treaty-concurring function, Senators Soto and Franklin Drilon and their colleagues find unacceptable the Duterte administration’s position that the President of the Philippines is the sole architect of Philippine foreign policy and, as such, can abrogate a treaty without Senate involvement in that process. The Senate is of the firm belief that it must be involved in the treaty-making process throughout and that it cannot be consulted at the evaluation phase and unconsulted at the abrogation phase. That, in the Senate’s view, is both illogical and unfair.
I agree entirely. Although the Constitution is silent on whether Senate approval is needed for the Executive Department’s abrogation of a treaty, it makes no sense to hold that the Executive Department subsequently can act unilaterally on something that started out as a bilateral matter.
If there is to be no role for the Senate in the abrogation of a treaty—if, in other words, the Executive Department may unilaterally abrogate a treaty—the Constitutional provision on the need for Senate concurrence might as well be scrapped altogether.
