POSTSCRIPT / March 10, 2020 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Senators just asking for SC legal opinion?

ARE senators seeking a definitive ruling, or just a legal opinion, from the Supreme Court on whether or not the Senate’s two-thirds vote is always needed to validate and to terminate an international agreement entered into by the President?

The petition filed yesterday with the tribunal by a bipartisan group of senators was triggered by President Duterte’s serving last Feb. 11 a notice of termination of the 1999 Phl-US Visiting Forces Agreement to take effect 180 days after notice.

But the senators, principally Minority Leader Franklin Drilon, have said that the SC ruling they want is not just for the VFA but for all treaties and international agreements binding the Philippines.

However, if they do not directly challenge the validity of the President’s unilateral termination of a specific agreement, such as the VFA, would that not raise the dismissive point that they are merely asking for a general legal opinion — a request better addressed to the justice secretary instead of the SC?

Drilon said the Senate has adopted over 20 resolutions concurring with various treaties and agreements that always included a provision stating the chamber’s concurrence is needed if the pacts are to be terminated, and that no protest was heard from Malacañang.

The Constitution says in Article VII (Executive Department): “Section 21. 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.”

The charter is silent, however, on whether the same vote of two-thirds of all the 24 senators is also needed to terminate or abrogate an agreement already concurred in.

Drilon leads the team that will argue the case before the court, where a similar question was raised nearly two years ago when Duterte ordered the country’s pullout from the 2002 Rome Statute that set up the International Criminal Court.

That background note on the ICC, which has initiated action on charges filed against Duterte for alleged crimes against humanity, is expected to come to the fore when arguments start flying on the Senate’s asserting its shared power to terminate treaties.

If the SC sustains the senators’ contention that the President may not unilaterally terminate an international agreement, that ruling must also apply on his pulling out the Philippines from the Rome Statute and ICC’s jurisdiction.

The need for consistent and equal application of SC rulings in the VFA and the ICC cases could place some justices close to Duterte in a quandary.

The senators’ petition cites Senate Resolution 337 adopted last week. Filed by Senate President Vicente Sotto III, Majority Leader Juan Miguel Zubiri, Sen. Panfilo Lacson, committee chair on national defense and security, and Drilon, the resolution said:

“Considering the urgency of the determination of the purely legal question of whether or not the concurrence of the Senate is necessary in the abrogation of a treaty previously concurred in by the Senate, now is the most opportune time to obtain from the Supreme Court its declaration on this legal question.

“The ambiguity on the concurrence of the Senate in the abrogation of treaties involves an issue of transcendental importance that impacts on the constitutional checks and balances… seriously affecting the legal system and the country’s international relations.”

Drilon warned that an SC decision upholding Duterte’s unilateral conduct of foreign relations could embolden him, for instance, to withdraw from the United Nations Convention on the Law of the Sea, which sets the country’s 200-nautical mile exclusive economic zone, and other treaties that may get in his way.

The senator said: “(The Senate) concurred in the ratification of the UNCLOS by virtue of Resolution No. 121. The UNCLOS is the basis of our entitlements to a 200-nm EEZ in the West Philippine Sea. Our baseline and other laws reflect this and other water marks.”

He asked: “What if the Executive department unilaterally decides to terminate the UNCLOS, will the Senate be left out from the conversation? What about our commitments under the UN, like climate change, protection for women and children, World Trade Organization commitments?”

“We note that these treaties have already been ‘deeply internalized’ in our laws, reflected in our customs and tariff laws, family laws, environmental regulation, etc.,” he added.

Citing various agreements on the avoidance of double taxation, social security and prisoner exchange treaties that if unilaterally revoked would be detrimental to ordinary Filipinos, Drilon stressed:

“The Congress, being the primary policymaking branch of the government, must have a say in the termination (of treaties and international agreements), because that involves policy issues.”

• How the US Senate treats treaties

THE US Senate does not ratify treaties. Rather, it approves or rejects a resolution of ratification of treaties submitted to the chamber by the president for advice and consent.

The Treaty Clause is part of Article II, Section 2, Clause 2 of the US Constitution that empowers the president to propose and chiefly negotiate agreements between the US and other countries, which become binding with the force of federal law upon receiving the advice and consent of a two-thirds Senate supermajority vote.

The president negotiates the treaty, and only after the Senate approves it can the president ratify it. Once it is ratified, it becomes binding on all the states under the Supremacy Clause.

During its first 200 years, the Senate approved more than 1,500 treaties and rejected only 21, according to Google. There is no Supreme Court ruling on whether the president has the power to break a treaty without the approval of Congress.

There is only one treaty between the Philippines and the US — the 1951 Mutual Defense Treaty. Subsequent bilateral pacts were executive agreements, a notch lower than treaties, that did not require concurrence by the Philippine Senate.

(First published in the Philippine STAR of March 10, 2020)

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