The President ratifies, the Senate concurs


THE Supreme Court has spoken: The Philippines-US Enhanced Defense Cooperation Agreement, now popularly or ignominiously known as EDCA, is valid.

Almost as soon as EDCA was finalized as an “executive agreement, ” petitions were filed with the Supreme Court questioning its constitutionality. One main point of contention was whether EDCA should have been formalized as a “treaty” requiring Senate participation, or as a mere “executive agreement” requiring no such intervention. Some petitioners seemed confused whether a treaty needed “ratification” or mere “concurrence” by the Senate.

In this connection, about five decades ago, in November 1968, then Justice Secretary Claudio Teehankee formally addressed a letter to the Secretary of Foreign Affairs, questioning the validity of the amendments to the 1947 Military Bases Agreement, especially that on criminal jurisdiction, in view of the absence of the “ratification thereof by the Senate in accordance with the Constitution”.

It is apparent that there is a need to clarify some concepts in treaty-making.
In international law, it is the head of state (monarch, president) who ratifies a treaty (Salonga, International Law at 79 (1959); the lawmaking body (parliament, senate, diet) merely concurs in the ratification. Under our Constitution, the president as head of state ratifies the treaty; the Senate only concurs in his ratification, (Sec.21, Art. VII and Sec.25, Art. XVIII, 1987 Constitution). The belief of those EDCA petitioners as well as Sec, Teehankee would then appear to be not in accord with the Constitution.

Under contemporary international law, any international agreement between or among states in written form, whatever its nomenclature (treaty, convention, compact, agreement) is a “treaty” (1969 Vienna Convention on the Law of Treaties). The consent of a state to be bound by a treaty is invariably expressed by “signature, ratification, accession, acceptance or approval”. Internationally then, any agreement concluded by the Philippines, having those characteristics, is a “treaty.”

However, not all international agreements are treaties. In day-to-day diplomacy, many agreements are made without the concurrence of the Senate. G.M. Hackworth alludes to various agreements “since the beginning of Government” falling short of the formalities of treaties, but are nevertheless valid and binding upon the nation (5 Hackworth at 397).
International agreements finalized without Senate concurrence are commonly known as “executive agreements”. (Laviña, Executive Agreement, 44 PLJ, at 452 (1969).

In our jurisdiction, “executive agreements” deal with details and arrangements more or less temporary in nature (Commissioner of Customs vs. Eastern Trading, 3 SCRA 351), An agreement with major, political or financial implications, is executed as a “treaty”. It is evident in this context in what form or category EDCA, which puts a crippling burden, political and financial, on the nation, should have been put.

To make the notion of “ratification” clearer, in our system of government, the president issues full powers to the secretary of Foreign Affairs, an ambassador or any other official to represent him in the negotiation of a treaty. Any one of them becomes his alter ego or agent, whose acts are the acts of the president, unless disowned or reproved by him, pursuant to the doctrine of Qualified Political Agency (Villena vs. Secretary of Interior 67 Phil. 451).

The representative normally signs the document ad referendum, that is, subject to confirmation or ratification. Logically, it is the president who will ratify the acts of his agent. There is of course nothing in the Constitution which would warrant the Senate, much less Congress to exercise the function of ratification.

The President signs the Instrument of Ratification incorporating the Senate Resolution of Concurrence. Treaties and international agreements have to be registered with the United Nations (Art.102, UN Charter).

All these said and hopefully clarified, we turn to the provisions of the 1987 Constitution in relation to the Supreme Court ruling on EDCA.

Sec. 21, Article VII of the 1987 Constitution provides “No treaty or international agreement shall be valid unless concurred in by two-thirds of all the members of the Senate”. The Sereno ponencia closes its eyes to this provision of the Charter.

The SC ruling cites the provision of Sec.25, Article XVIII, which precisely bans foreign military “bases, troops, or facilities” in our territory “after September 1991,” unless there is a treaty concurred in, again, by the Senate.

The EDCA, which deals with “locations” (bases), “troops” and “facilities” cannot be an implementation of the 1951 RP-US Mutual Defense Treaty, because the latter mainly regulates (mutual) defense – but not “bases,” “troops,” or “facilities,” which were covered by the 1947 Military Bases Agreement. The MBA expired in September 1991. Its successor agreement, the 1991 Manglapus – Wisner treaty, however, was rejected by the Salonga Senate also in 1991.

The Visiting Forces Agreement (VFA ) cannot, legally, be the “instrument” to warrant EDCA’s “locations” (bases) and “facilities” – simply because the VFA solely embraces “troops” and “visits” (Balikatan).

The practice in treaty-making and diplomacy, both of the United States and the Philippines, of resorting to the less formal medium of executive agreements sans Senate concurrence appears to have been overtaken by events. In the case of the Philippines, the 1987 Constitution puts a stop to the practice by providing in no uncertain terms that “No treaty or executive agreement shall be valid and effective,” unless concurred in by the Senate. On the other hand, the US Supreme Court has ruled, in Medellin vs. Texas, that any international agreement not approved by the US Senate is generally unenforceable in US jurisdiction. (America avoids treaty obligations at home but reaps unequal benefits abroad!)

The Supreme Court of the Philippines in an earlier decision has ruled that a treaty or an executive agreement is valid and binding upon the nation, unless “it conflicts with the fundamental law” or “runs counter with an act of Congress.” (Gonzales vs.Hechanova, 60 O.G. 802 (1964).

In our system of government, the Supreme Court is purely a legal body, its decisions should be immune from “political cataract,” except on issues involving grave abuse of discretion.

So now, “executive agreements” are outlawed or unenforceable. Hackworth is disowned, Teehankee is vindicated.

The EDCA is a clear constitutional nullity. The SC Sereno ruling is Charter-blind. It is a grave abuse of discretion that can be reviewed by the high court.

Nelson D. Lavinia is a retired ambassador of the Philippines .


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1 Comment

  1. Thank you for sharing your in-depth analysis on this issue; it’s very enlightening. The SC has inf fact abuse its discretion. Hope, it will revert its decision and declare EDCA as unlawful.

    On another note, in order to protect our nation, what we need is to strengthen our nation’s force and unity. No other nation can save us but us. Relying on the aid of other nation to protect our freedom and sovereignty is but a show of weakness. The reliance can become submissiveness and eventually re-colonization. What differs that act or principle then with what we are fearing. Either the the China and US can use us and exploit our resources.