By Vanne Elaine Terrazola
The Consultative Committee (ConCom) formed by President Duterte to review the 1987 Constitution believed that the Senate’s concurrence is also needed for the withdrawal from international agreements and treaties.
Fr. Ranhilio Aquino of the now defunct ConCom told senators this on Thursday as the Senate committee on foreign relations continued its inquiry into the Philippines’ termination of its Visiting Forces Agreement (VFA) with the United States.
Senate leaders and senior members have insisted on the Upper Chamber’s authority over treaties entered into by the executive branch, although the Constitution is silent about the abrogation of such agreements.
Aquino admitted that the issue on treaty withdrawals was also discussed by members of the ConCom, led by former Chief Justice Reynato Puno, when they were reviewing the provisions of the 1987 Constitution to draft a proposed federal charter.
“The journals of the committee will reveal that the sense of the committee at the time was — the understanding was Senate’s concurrence was necessary for withdrawal,” Aquino recalled.
When asked by Senator Nancy Binay why it was not included in their recommendations to the President, Aquino said, “We were very wary about putting it in at that time, senator, because that was the time that the ICC issue was very much discussed. And we were afraid that we would be sending a signal, as a case has already been filed before the Supreme Court, that we were taking sides.”
The law professor was referring to President Duterte’s March, 2018 decision to pull the Philippines out from the International Criminal Court (ICC) after it started its examination on the high number of killings being attributed to his war on drugs.
The move was then being questioned by human rights advocates and opposition senators, including Senate Minority Leader Franklin Drilon, who sought to invalidate Duterte’s decision for its lack of Senate concurrence.
“But we let it remain on the records, that that’s our sense. It was our understanding as a committee that Senate concurrence was necessary for withdrawal,” Aquino reiterated to the Senate foreign relations panel.
The 1987 Constitution states that “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.”
It did not provide for rules on the termination of treaties.
In Thursday’s Senate hearing, the Department of Foreign Affairs maintained that President Duterte is the “single authority” on the country’s foreign policy and external affairs. Assistant Secretary Igor Bailen said the role of the Senate over treaties, under the Constitution, is limited only to the ratification.
Aquino, however, warned the government about the consequences of insisting on this position.
“If we maintain the proposition that the President alone, or the President has unilateral power to bring about the revocation of treaties or the denunciation, then the consequences that he can unilaterally withdraw the Philippines from the United Nations or even [from]…ASEAN, a consequence which would not only be disturbing, but also absurd,” he said in his opening statement.
He said that while the Constitution was silent about the abrogation of treaties, other countries like the US have recognized the authority of Congress, particularly the Senate in the termination of treaties.
“We are, after all, heirs to the American Constitution, and the provenance of the treaty provision of the Philippine Constitution is clearly American, and the American Constitution is likewise silent,” he said.
He cited, for instance, the objections to former US President James Carter’s attempt in 1978 to withdraw from the Mutual Defense Treaty with Taiwan without the concurrence of their Senate. It has not been settled to date, Aquino said, as the US Supreme Court has not yet ruled on the issue.
“Because it is both a creation of Congress, through the Senate, and of the President, the President cannot claim sole power to withdraw from than legal order,” he said, referring to the treaty.
Aquino also echoed Drilon’s position that the “mirror principle” should apply to the withdrawal of treaties.
The ConCom ceased operations in 2018 after submitting its proposed federal charter to President Duterte.
READ MORE: Palace: Let SC decide on VFA