A Disunited Senate’s Powers Tested Again By VFA

The Visiting Forces Agreement may serve as another case for the Supreme Court to answer the question of whether the consent of the Senate, the country’s treaty-ratifying body, is also needed for the president of the republic to abrogate international agreements – but several administration senators are not eager to assert a system of checks and balances.

Senate President Vicente Sotto III on Tuesday raised the possibility of filing a petition before the SC to determine the extent of the Senate’s powers regarding the creation and termination of the country’s obligations to the international community.

Although all but four members of the Senate are members of the majority bloc, Sotto earlier on Feb. 2 said “most are not in favor of terminating” the VFA.

The plan to take the case to the SC gained traction yesterday, as Minority Leader Franklin Drilon committed to join administration senators in filing the petition.

There are observations that Sotto’s position may be put on the line because of this.

“This will be a bipartisan move to assert the Senate’s role in foreign policy. While the President is the chief architect of our foreign policy, the Constitution is clear that such a very critical role is shared with Congress, particularly the Senate,” Drilon said in a statement.

Drilon disclosed that Sotto was already preparing the petition and had asked him to be a co-author.

Not all senators, however, are eager to assert their role of providing checks and balances to the executive in crafting foreign policy. Seven even abstained from the Feb. 10 adoption of Senate Resolution No. 312, which “requested” Duterte to reconsider his plan while the chamber conducts a review and impact assessment “with the end in view of ensuring the continued safety and security of the Philippines and the Asia Pacific and maintaining the existing balance of power within the region.”

The issue of the Senate’s role in the abrogation or termination of international agreements remains unresolved.

An earlier petition filed by Drilon and other senators questioning Duterte’s withdrawal from the Rome Statute of the International Criminal Court remains pending before the SC. The withdrawal took effect on March 17, 2019, as the SC did not issue any injunction to put Duterte’s action on hold.

Article 7, Section 21 of the 1987 Constitution only provides 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. To defend the unilateral withdrawal from the Rome Statute, the Office of the Solicitor General used the silence of the constitutional provision on withdrawal from or termination of international agreements.

Andre Palacios, Integrated Bar of the Philippines international law committee chair and

University of the Philippines College of Law professor, said “the Philippine government needs to comply with the Philippine constitutional requirements to terminate a treaty.”

“The power to make and break treaties is a shared constitutional power. It is shared between the President and the legislative branch through the Senate. It is a shared power because treaties have the effect of modifying the application of legislative statutes and modifying substantive rights under Philippine law,” Palacios told The Philippine STAR on Jan. 27.

On the other hand, Antonio La Viña, a professor at the UP College of Law and the Ateneo de Manila University School of Law, told The STAR on Jan. 26 that the Rome Statute case was not comparable with the VFA. He believed that the VFA was not a treaty, but an executive agreement that did not require the Senate’s involvement.

The Constitution, however, requires a treaty approved by the Senate to allow foreign military forces to conduct activities in the Philippines. So the VFA had to be submitted to the Senate for ratification as a treaty. There is no such constitutional requirement in the United States, which considers all its VFAs with other countries as executive agreements.

Security experts warned that the Philippines would have more to lose than the United States in terms of access to badly needed counterterrorism training and assistance. On the other hand, jurisdiction over crimes committed by American forces is a persistent sticking point. The agreement states that Philippine authorities “will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines.”

Although united by the goal of asserting the Senate’s power, the administration and opposition senators expressed different views on Duterte’s move.

Sotto even highlighted the President’s crucial role in crafting the country’s foreign policy. He said the Senate’s role in the decision is to be “consulted.”

“I am inclined to support it because in this case, we thought a review is proper. We thought that we should have been consulted and we were giving out our sense that it should be reconsidered, knowing that there are very serious implications…,” Sotto said. “We thought that we should have been consulted, but nevertheless, the chief architect of the foreign policy is the President, the buck stops with him. So be it,” Sotto added.

During the Senate’s plenary session last Tuesday, Sen. Richard Gordon expressed the desire to defend the Senate in what he called a “constitutional crisis,” even as he clarified that he was not “attacking the President.”

“There must be an overt act of the Senate to continue to be part of the conversation. We must act – without attacking the President, and sharing what the President feels like –  to create a justiciable situation,” Gordon said. “We like to tell the Filipino, now there is a constitutional issue and the Supreme Court must not shirk from its responsibility.”

Drilon pointed out that Duterte’s actions compelled the Senate to henceforth explicitly state in its resolutions ratifying 25 treaties that the chamber’s concurrence would be required before these could be terminated.

As leader of the Senate’s opposition bloc, Drilon, in his statement, expressed alarm that Duterte had been concentrating the power to make extremely important foreign policy decisions in his hands alone.

“The Supreme Court should rule on this issue once and for all. We cannot continue putting the fate of critical treaties such as the VFA, which termination has far-reaching consequences, in the hands of one man,” he stressed.

On Monday last week, the chamber had adopted Senate Resolution No. 312, voting viva voce. This means it was adopted by every senator recorded as present in the roll call who did not abstain or object. There were 20 senators present at the session.

Initially, only Sen. Ronald dela Rosa, whose US visa cancellation had triggered Duterte’s move to abrogate the VFA, abstained. At the time, Duterte had not yet sent a notice of termination to the United States.

The following session, however, Senators Pia Cayetano, Christopher Lawrence Go, Imee Marcos, Ramon Revilla, Jr., Francis Tolentino and Cynthia Villar said they would have abstained from the adoption of the resolution had they been aware that voting was taking place.

Tolentino, in his privilege speech, cited the constitutional principle of separation of powers and the President’s role as the chief architect of the country’s foreign policy in defending the unilateral termination of the VFA. He noted that the President “has access to the most comprehensive and confidential diplomatic information and ultra-sensitive military intelligence data,” which other branches of government do not.

He argued that exposing the wisdom of the President’s foreign policy decisions to the scrutiny of the people’s elected representatives in the Senate would create an obligation that was not explicitly stated in the Constitution.

“The principle is one of the cornerstones of our democratic government. It cannot be eroded without endangering our government,” Tolentino said.

In the absence of any guideline in Philippine jurisprudence, Tolentino cited the decisions of the US Supreme Court, which upheld the US president’s unilateral withdrawal from their country’s Mutual Defense Treaty with Taiwan, the Treaty of Friendship with Nicaragua and the 1972 Anti-Ballistic Missile Treaty.

“Can the Senate inquire then into the President's wisdom to abrogate a treaty?” Tolentino asked. “While I am of the opinion collectively with the members of this chamber that we should strengthen the powers of the Senate relative to foreign affairs, the reason why this is solely lodged with the President is by virtue of the Constitution and by reason of his office.”

Tolentino expressed sadness over the termination of the VFA. “Baka sa mga darating na araw ay wala nang tutulong sa atin kapag mayroong disaster (Maybe in the future, no one will help us in times of disaster),” he said.

“Pero ganyan siguro talaga ang itinatadhana ng ating Saligang Batas, na dapat manaig ang desisyon ng Pangulo (But perhaps the Constitution really destined that the President’s decision should prevail),” he added.

Go, Duterte’s longtime aide, similarly said the President’s role as the architect of the country’s foreign policy gives him the “power and prerogative to cause the review and the termination of treaties and agreements, taking into consideration the best interests of our sovereign democracy.”

Marcos said she would have supported the adoption of a resolution she authored, Senate Resolution No. 306, which called for the review of the VFA but “makes no mention of advisement or pressure upon the President who clearly has a free hand in the formulation of foreign policy.”

Cayetano said she supported “the similar view,” while Villar and Revilla abstained without any explanation.