Stand on VFA, ICC must be consistent

With Duterte loyalists in the Senate now distancing themselves from a move to question at the Supreme Court the termination of the Phl-US Visiting Forces Agreement, the petition could arrive at the SC with Senate President Vicente Sotto and opposition solons as its pallbearers.

President Duterte has to tough it out with his terminating the VFA without Senate concurrence – even if he has to be consistently wrong – to protect his earlier unilateral withdrawal from the International Criminal Court probing into his brutal war on illegal drugs.

The legal challenge on his VFA action started out last week as a bipartisan reaction of Sotto and other lawmakers to Duterte’s serving on Feb. 11 a notice of termination on the 20-year-old VFA without the advice and consent of the Senate.

Senate Minority Leader Franklin Drilon said he would join Sotto and others in questioning before the high court the President’s move that they said violates the Constitution and undermines national security.

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

He said Sotto has told him that he was preparing the petition which revolves around the Senate’s role in concurring in the President’s entering into treaties and international agreements and in abrogating them.

Drilon said: “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, whose termination has far-reaching consequences, in the hands of one man.

“If treaties and international agreements that the President entered into cannot be valid without the approval of the Senate, the termination of, or withdrawal from, the same should only be effective with the concurrence of the Senate.”

These are relevant sections of the Constitution on foreign policy, particularly treaty-making:

• Article VII (Executive Department): Section 21. 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.

• Article XVIII (Transitory Provisions): Section 4. All existing treaties or international agreements which have not been ratified shall not be renewed or extended without the concurrence of at least two-thirds of all the Members of the Senate.

• Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning military bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate… and recognized as a treaty by the other contracting State.”

Drilon said that once concurred in by the Senate, a treaty or an international agreement becomes part of the law of the land. Hence, he added, a treaty may not be undone without that shared power that had put it into effect.

Sen. Panfilo Lacson, committee chair on national defense and security, noted that something is amiss when the Constitution requires a two-thirds Senate vote to ratify a treaty yet its abrogation is just left to the President. The VFA, although an executive agreement, was concurred in by the Senate.

The same issue of Senate concurrence was raised in 2018 when Duterte withdrew the Philippines from the International Criminal Court as it prepared to look into alleged crimes against humanity in the country during the Duterte regime.

Senators Sotto, Drilon and Lacson authored Senate Resolution 312 adopted on Feb. 10 urging Duterte to reconsider his VFA termination notice while the chamber studies the options and opportunities open to the government.

The resolution was carried with only Sen. Ronald dela Rosa abstaining. The cancellation of the US visa of the senator, former chief of the national police leading the administration’s war on drugs, had been cited as the reason for Duterte’s terminating the VFA.

But when the resolution emerged as a possible problem for Malacañang, some senators earlier marked as having voted for it stood to change their Yes vote: Pia Cayetano, Bong Go, Imee Marcos, Bong Revilla, Francis Tolentino and Cynthia Villar.

We take that as a hint that Duterte would stick to the VFA’s termination even after he was embarrassed by President Trump’s nonchalantly remarking that its abrogation was “fine” and might even save millions for American taxpayers.

The President’s abrogating international agreements that were adopted with Senate concurrence was also an issue in 2018, that time over Duterte’s withdrawing the country from the ICC.

Drilon and senators Francis Pangilinan, Leila de Lima, Risa Hontiveros, and then senators Bam Aquino and Sonny Trillanes asked the SC to invalidate the Philippines’ withdrawal from the ICC for having been done without Senate concurrence. No ruling has been handed down.

The SC’s invalidating Duterte’s unilateral VFA termination must be consistent with its action on the earlier ICC case where Duterte is the central figure, the accused. This could be another reason why he has to insist that his abrogating VFA was valid.

Drilon said that once the SC recognizes the Senate as a necessary partner of the President in entering into and exiting from international agreements, it follows that Duterte’s withdrawal from the ICC without Senate concurrence was invalid.

That could potentially open Duterte to further investigation by the international body – an unacceptable conclusion of his turbulent six-year term ending in 2022.

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NOTA BENE: All Postscripts can be accessed at manilamail.com. Follow author on Twitter as @FDPascual. Email feedback to [email protected]