LOYAL supporters of President Rodrigo Duterte, in their earnest attempt to rationalize his move to abrogate the Visiting Forces Agreement (VFA) with the United States, argue that the President doesn’t need the concurrence of the Senate. In fact, it is not only the six senators who withdrew their votes supporting a resolution asking the President to reconsider, or his spokesman Salvador Panelo, but even many legal luminaries also argue that the crafting of foreign policy is solely a presidential prerogative.
I am not a lawyer, more so a legal luminary. I am only a political scientist who often uses discourse and textual analysis as my analytical tool for inquiring into political texts and narratives. I could be wrong, but in my humble opinion, the claim that the President has the sole power to abrogate treaties is not supported by the logic of the text of the Constitution.
Nowhere in the 1987 Constitution is it stated that the President has sole and absolute power over foreign policy.
He needs the concurrence of Congress in signing treaties. This is stipulated in Article VII, Section 21, which states, “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.”
He needs the consent of the Monetary Board in making foreign loans. This is required in Article VII, Section 20, which stipulates that “The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board.” He needs to inform Congress of any partnership agreements or contracts with foreign corporations in relation to the exploration and utilization of mineral resources. This is stipulated in Article XII, Section 2, which requires the President to notify Congress of every contract entered into within 30 days from its execution. In fact, Congress, and not the President, has the sole power to declare war against other countries, as prescribed in Article VI, Section 23 (1).
Thus, what permeates the text of the Constitution are several provisions that, taken together, suggest that it is never the intent to vest solely on the President the power to devise foreign policy.
In addition to the Constitution, one should also borrow a leaf from the very nature of international treaties and agreements to shed light on the metes and bounds of the powers and prerogatives of the President.
Then-Associate Justice Arturo Brion eruditely discussed this in his separate concurring opinion in GR 204605, where he said that “…the Philippines sees international law and its international obligations from two perspectives: first, from the international plane, where international law reigns supreme over national laws; and second, from the domestic plane, where the international obligations and international customary laws are considered in the same footing as national laws, and do not necessarily prevail over the latter. The Philippines’ treatment of international obligations as statutes in its domestic plane also means that they cannot contravene the Constitution, including the mandated process by which they become effective in Philippine jurisdiction.”
Thus, a treaty is both an executive and a legislative matter, in the sense that treaties become part of statutory law. This is precisely why its approval entails both actions by the President and by Congress. Justice Brion further posited that, “…while a treaty ratified by the President is binding upon the Philippines in the international plane, it would need the concurrence of the legislature before it can be considered as valid and effective in the Philippine domestic jurisdiction. Prior to and even without concurrence, the treaty, once ratified, is valid and binding upon the Philippines in the international plane. But in order to take effect in the Philippine domestic plane, it would have to first undergo legislative concurrence as required under the Constitution.”
The VFA acquired the status of a treaty because it was ratified by the Senate. As such, it carries the authority of both the President and the Senate. It not only has impact as part of international law, but also carries the power and effect of statutory law in the Philippines. In fact, it amended or prevailed over statutory enactments that existed prior to its entry into force, particularly those that apply to the entry and movement of aliens within the country. The VFA, in being a treaty, had the approval of both the Senate and the President. As such, it had the same impact as a statute.
Thus, and in order to be consistent, its revocation would be akin to a repeal of a law, which would require the concurrence of the Senate, which is the branch of Congress that has the power to repeal laws.
It would have been entirely different had the VFA acquired the nature of being only an executive agreement. Justice Brion argued that “since an executive agreement springs from the President’s power to execute laws, it cannot amend or violate existing treaties, and must be in accord with and in pursuant to laws and treaties.” Thus, the President would have had all the power to terminate such agreement considering that it is not in any way treated as a statutory law.
It should be noted that the same arguments could also be raised in relation to our withdrawal from the Rome Statute, which is now pending with the Supreme Court.
In the end, it will be the high court that will finally decide on this matter. It is, however, my humble opinion that while one can argue that the Constitution is silent on the issue of the process of withdrawing from treaties and international agreements where Senate concurrence was obtained, this silence should not be interpreted as carte blanche for presidential prerogative. Constitutions are by nature limitations on state power, and they install mechanisms to check grave abuses of discretion.