Senate Minority Leader Franklin M. Drilon on Friday asserted that the Supreme Court has recognized the role and power of the Senate in treaty abrogation.
This, he said, was contrary to Presidential Spokesperson Harry Roque’s claim that the high court’s recent decision “virtually said” that the Senate’s concurrence is not needed in withdrawing from treaties or international agreements.
While the Supreme Court dismissed the petition questioning the validity of the Philippine government’s withdrawal from the Rome Statute for being moot and academic, Drilon said the SC affirms the need for Senate’s concurrence in the withdrawal from treaties and international agreements.
“The High Court, in a landmark ruling, recognized and upheld the role and power of the Senate as the partner of the President, not only in treaty-making but in treaty abrogation as well,” he stressed.
Drilon cites the decision in Pangilinan v. Cayetano (GR 238875) that “the President’s discretion on unilaterally withdrawing from any treaty or international agreement is not absolute.”
“As primary architect of foreign policy, the President enjoys a degree of leeway to withdraw from treaties. However, this leeway cannot go beyond the President’s authority under the Constitution and the laws. In appropriate cases, legislative involvement is imperative,” he said.
“The Court may have dismissed the petition on procedural grounds, but the decision made a doctrinal pronouncement, by acknowledging and explicitly ruling that the President may be the ‘chief architect of foreign policy’ but his powers are not absolute.”
He said the decision affirms that the realm of treaty-making and abrogation is not exclusive to the President. It is a shared power with the Senate.
Records will show, Drilon said, that the senator have long been consistently putting forward a position: Since the Constitution requires Senate concurrence for the validity and effectivity of treaties, Senate concurrence should likewise be required to terminate them.
“Since the Constitution expressly provides for shared treaty-making power, it necessarily implies that the power to abrogate the same must also be exercised jointly.”
Drilon therefore is elated that this is echoed in the Pangilinan case, where the Court held that the extent of legislative involvement in withdrawing from treaties is further determined by circumstances attendant to how the treaty was entered into or came into effect.
“Where legislative imprimatur impelled the president’s action to enter into a treaty, a withdrawal cannot be effected without concomitant legislative action. Similarly, where the Senate’s concurrence imposes as a condition, the same concurrence for withdrawal, the president enjoys no unilateral authority to withdraw, and must then secure Senate concurrence.”
In its 100-page ruling, the Supreme Court held: “The President cannot unilaterally withdraw from treaties that were entered into pursuant to the legislative intent manifested in prior laws, or subsequently affirmed by succeeding laws. Treaties where Senate concurrence for accession is expressly premised on the same concurrence for withdrawal likewise cannot be the subject of unilateral withdrawal.”
It can be recalled that upon Drilon’s intervention, there are about 17 treaties that include a provision requiring Senate concurrence prior to withdrawal. Among these treaties and international agreements are the Accession to the Paris Agreement, Convention on Cybercrime and Agreement of the Asian Infrastructure Investment Bank.
Drilon cites as an example the Senate’s concurrence in the accession to the Paris Agreement, which states that the “President of the Philippines may, with the concurrence of two-thirds of all the Members of the Senate, withdraw from the Agreement.”
“The ruling has far-reaching consequences; it strengthens the system of check and balance. The decision validates the role of the Senate, as representative of the people, in the abrogation, termination, or withdrawal from treaties and international agreements,” Drilon said.
“The ruling will provide stability insofar as our treaty obligation is concerned. This is a win for the Filipino people, as treaties will not be subject to the caprice of one man,” he added.
“While we have yet to receive an official copy, we are reading the 106-page Decision as published at the SC website yesterday 21 July 2021, and we are seriously considering our options, including that of filing a motion for reconsideration at the proper time.
“We welcome the guideline pronounced by the Court that “even if [the Philippines] has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings [;] Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.” We take this as a step in the right direction towards attaining government accountability and substantial justice.”
