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Can Duterte terminate the VFA on his own?

"While many may not agree with the President’s decision to terminate the VFA, this senator tells us that he did not usurp his powers in doing so."

Ever since President Rodrigo Duterte announced his plan to terminate the Visiting Forces Agreement in protest of the US’ supposed intrusion into the country’s internal affairs, and specifically of the revocation of Senator Ronald dela Rosa’s US visa over his reported participation in the prosecution and incarceration of Senator Leila de Lima for alleged illegal drug-related charges, which is viewed by the government as an apparent pressure to free de Lima, questions have been raised whether President Duterte is empowered to terminate the said treaty.

 While I have been writing about the VFA for such a long time already, I have to admit I am not in any way an expert on legalities. All I am aware of is that the VFA is a treaty ratified by the Senate in 1998. It was very much unlike the Enhanced Defense Cooperation Agreement which the Mara Lourdes Sereno-led Supreme court ruled to be a mere executive agreement in 2014.

 As such, like any ordinary mortal, I was of the belief that while Duterte can unilaterally revoke the EDCA being an executive agreement, he would need the concurrence of the Senate in terminating the VFA, it being ratified by the same body. But thanks to legal luminaries like Senator Francis Tolentino, we have been enlightened on the matter.

 In his privilege speech the other day, Tolentino said that while the Philippine Government operates under the time-honored principle of separation of powers as enshrined in the 1987 Constitution, Duterte is well within his powers to do so.

 “Does the President have the power to abrogate a treaty under the 1987 Constitution? I say yes, considering the President’s role as the chief architect of our nation’s foreign policy. This includes the decision to terminate the existing Visiting Forces Agreement, a political process with regional and international consequences. This goes into the very essence of executive power, which in Art. VII, Sec. 1 of the 1987 Constitution, is vested in the sole person of the President of the Philippines,” read part of Tolentino’s speech.

“The Constitution is enduring and upon its inception, is intended to exist for ages. It governs the rights and obligations of the people not only at the time of its framing but also the far-reaching future. Its permanence protects the stability of fundamental rights and liberties,” he stressed.

“The acts of each branch of government must not be controlled by or subjected to the influence of either branch–such is the essence of separation of powers.” (MMDA v. Concerned Residents of Manila Bay; 2008, GR 171947-48).

My vote relative to Resolution 312, adopted last night, would have been to abstain.

Our republic is a sovereign and democratic state which is founded on the will of the people which in turn endows our government with its vast and awesome powers. Maintaining their balance is the time-honored principle of separation of powers, which is enshrined in our 1987 Constitution.

 Now, this principle is being put to the test once again as the country grapples with the recent developments in foreign and national security policies relative to the Visiting Forces Agreement (VFA). We are not voting here for the retention or abrogation of the VFA. We are not voting here to determine whether the VFA is beneficial or detrimental to the country. What is at issue here is the separation of powers among the three co-equal branches of government to maintain the balance required by the Constitution.

Although the unilateral withdrawal from a treaty is something new to the Philippines, Tolentino said it had been done before in other jurisdictions.

The senator cited the Supreme Court ruling in Bayan v. Zamora (2000, GR. No. 138570) and Pimentel Jr v. Executive Secretary (2005, GR. No. 158088) wherein the High Court declared “It is without question that “by constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country.”

In fact, Tolentino said that the US case of Myers v. United Sates (1926; 272 US 52), the court was specific in saying that the Congress’ power to remove or  right to participate in the exercise of a power given to the executive would infringe on the constitutional principle of separation of governmental powers.

 “It is therefore succinct, that in the realm of international relations, executive power reigns supreme. The deference we give to the executive department is dictated by the principle of separation of powers. This principle is one of the cornerstones of our democratic government,” Tolentino adds.

Both cases, Tolentino says, “ruled that in light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties … the instant case … must surely be controlled by political standards. and therefore the challenge to the President’s power vis-a-vis treaty termination raised a nonjusticiable political question.”

Other prominent examples of unilateral withdrawal from international conventions included the withdrawal of Indonesia from the UN in 1965; of Czechoslovakia, Hungary, and Poland from UNESCO in the 1950s; and of the Soviet Union and eight Eastern European States from WHO in the same period. Even more recently the United States has also withdrawn from the Iran Nuclear Deal and the Paris Agreement on Climate Change Mitigation, according to the senator from Tagaytay.

“In sum, states have always operated in the purview of their national interest and have withdrawn from international agreements without congressional interference,” Tolentino says adding that while the Constitution require Senate concurrence to bind the State to such agreements. 

“There is no similar provision requiring the same to abrogate a treaty. Our obligation lies not in the termination of treaties and international agreement but in its creation,” he adds.

Now, can the Senate then inquire into the President’s wisdom to abrogate a treaty? Tolentino emphatically says no. 

“By reason of his office, the President has access to the most comprehensive and confidential diplomatic information and ultra-sensitive military intelligence data,” the lawmaker explains.

So, there you go. While many will not agree with the President’s decision to terminate the VFA, at least we have been enlightened that he did not usurp his powers in doing so, thanks to the good senator.

The debate on the pros and cons regarding its termination is the subject of another debate.

Happy Valentine’s, everyone.

Topics: Charlie Manalo , President Rodrigo Duterte , Visiting Forces Agreement , VFA , Enhanced Defense Cooperation Agreement , EDCA , Senator Ronald dela Rosa , US visa
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