Clash of the Titans
SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - August 3, 2019 - 12:00am

We understood what they were arguing about. Constitutional violations are a serious matter. But we were equally interested in the sidelight conflict in that Senatorial joust between Francis Tolentino and Franklin Drilon, joined later by Richard Gordon. 

It may have been touted as a battle of academic credentials. Senators Drilon and Gordon are top notch lawyers. So is Senator Tolentino. Apart from his LL.B., the Senator also completed his LL.M. from the University of London (on International Law) and Masters in National Security Administration from the National Defense College. 

If experience were the measure, the careers of Drilon and Gordon, combined, may outpace the collective expertise of the present Cabinet. In the Senate, Drilon is second in seniority only to Senate President Vicente Sotto III. Gordon has been in Government since 1971 as a delegate to the Constitutional Convention. But Tolentino, though new, is no newbie given his record as legendary Tagaytay Mayor, MMDA Chairman and Presidential Adviser on Political Affairs. 

We didn’t see it as upstart vs veteran. The three of them and their arguments all belonged on that floor. But it was interesting for a bonus reason. It was UP vs. Ateneo. Drilon went to UP for both Law and Pre-Law, Tolentino to Ateneo. They were joined on the floor by Gordon, an Atenean for his A.B. who went to UP Law. I don’t know if it was necessarily their academic training that made the exchanges riveting but I am sure that their alma maters were proud to have their products at the forefront of this important debate.

The Senate is manning up. Surely, Tolentino’s defense of the fishing deal is not meant as a surrender of the Senate’s prerogatives. Rather, it’s an argument against putting the Executive on a leash. But, in the end, the issue was referred to committee and the chamber will be debating the important questions. This is exactly the posture that they need as an institution to shore up the dwindling involvement of the Legislature in the critical power of dealing with foreign nations.

The important questions. More than 90% of international agreements are executive agreements (U.S. statistic). But we aren’t talking of executive agreements here. The Duterte – Xi “exchange” cannot be traced to any explicit or implied constitutional or statutory authority to qualify it as an executive agreement. 

In fact, Article 12, Section 2 of the Constitution provides: “The state shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.” Nonetheless, Tolentino would give the President carte blanche. This is in deference to the primary role of the Executive as principal organ in the conduct of foreign relations. 

Yes, this is a power that he exercises in the first instance. But this is so only out of convenience and necessity. It cannot and should not be exercised to the exclusion of subsequent Senatorial and even Congressional participation and oversight. Not even the recognition by the Supreme Court of the Executive’s dominant role should diminish the Legislature’s part in the foreign relations equation.

Of course, this power is to be exercised within the parameters of the Constitution. As far as fishing rights are concerned, he is constrained by the above quoted Art. 12 provision on National Patrimony. 

Not writ in stone. A more interesting legal issue is whether international agreements of this sort may be concluded verbally. Consistent with the Presidential penchant for ruling by decree, this mutual understanding between Duterte and Xi was entered into without any formalities. It’s not unlike the President’s order on suspending PCSO operations. 

In Civil Law, there is the concept of the Statute of Frauds which requires that agreements be in writing in order to be enforceable. Under International Law, the Vienna Convention on the Law on Treaties includes in its definition that the same be in written form. This ostensibly rules out oral international agreements.

In practice, however, the form of the agreement is not a precondition. China relies historically on oral treaties (Zhou-Kosygin verbal agreement on resolving border conflict between China and the USSR). Tolentino was right that form or the absence of it is not a determinant of validity. 

Outrage at the outage. A Blackout hit New York City last July 14. And the city that never sleeps lost all sleep. New York Senator Chuck Schumer, the US House Minority Leader, called for a federal investigation. City Mayor Bill de Blasio had to publicly rule out a terrorist attack. 

Reading up on the history of power failures in America’s greatest city, it turns out that there has only been a smattering of times that New York has lost its lights. The last major event happened in 2012. Their hysteria is understandable. Giant businesses, public transport, food, medical institutions, military installations, security against crime – specially in this day and age of addiction to gadgets and the internet that enables. All are affected adversely when the stable supply of electricity is compromised.

The Blackout exposed the vulnerability of New York. After the tragedy of 9/11, the city has taken every precaution to protect itself only to be brought to its knees by a faulty cable. Governor Andrew Cuomo said that “the fact that it happened at all was unacceptable”. This just shows that we can never truly be 100% safe. 

But we should never be complacent. There still are parts of the world, like here at home, where power outages are commonplace. We shouldn’t be rejoicing when the unreachables tumble down to earth. Rather, we must strive to be like them such that the occasional lapse, like New York’s unscheduled interruption, becomes an event unto itself and not just another day at the office.

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