ÏLIBRT President Duterte’s abrogation of the VFA will only be effective if

concurred in by the Senate of the Philippines.

The Arguments
The Philippines adhere to the principles of separation of powers and the checks and balances i.e.,
operating to maintain that legislative power to be owned and vested primarily to the legislative
department and the executive powers to be solely owned by the President, and the power of
each departments is given to restrain the others for exceeding Constitutional authority.

Does abrogation of a treaty part of the powers of the Congress to check and balance every
decision the President makes in the process?

Nowhere in the 18 articles, -- sections of the 1987 Constitution will you find that the abrogation
needs a concurrence of the Congress. And we submit that what is excluded shall not be included,
which is a very important principle found in Statutory Law.

1. The Constitution is silent on senate concurrence on VFA abrogation;

2. Concurrence on ratification, not abrogation;
3. Special law over General Law;
4. Not as commonly believed;
5. Crafting of foreign policy is solely a presidential prerogative;
6. Identical rules; and
7. Conclusion.

THE CONSTITUTION IS SILENT ON SENATE CONCURRENCE ON VFA ABROGATION.

Sec. 21, Article VII of 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.”
This is primarily written on the Executive Department. If we look at the intent of the
framers, and if they really intend to allow the Senate to concur in every Treaty abrogation,
then what could have stopped them from expressing it under the Legislative Department?
There is a reason why.
Justice Cruz, in his book Philippine Political Law, has provided a meritorious explanation
on interpreting the Constitution and has provided us three ways. One of them is
 interpreting the Constitution as a whole stated in the first place. While there could be
other two to interpret the Constitution, it being in number one is a logical explanation
that it is usually the first way people use more often than not.

CONCURRENCE ON THE RATIFICATION, NOT ABROGATION

Under Sec. 25, Article XVIII of the 1987 Constitution, while it says that the
concurrence of the Congress for a treaty is needing majority of votes, it does not,
however say that the abrogation shall be done in the same way.

“The concurrence of the Senate is only required “to bind” the state to any treaties or
international agreements. However, there is no similar provision requiring the same
to abrogate a treaty. Senate obligation lies not in the termination of treaties and
international agreement but in its creation,” – Senator Tolentino.

In Pimentel versus Office of the Executive Secretary (GR No. 158088, July 6, 2005), the
Supreme Court explained thus:

"In our system of government, the President, being the Head of State, is regarded as
the SOLE organ and authority in external relations and is the country's sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with respect to international affairs. The
President is vested with the authority to deal with foreign States and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties and
otherwise transact the business of foreign relations. Thus, the President has the
discretion, even after the signing of the treaty by the Philippine representative
whether or not to ratify the same."

SPECIAL LAW OVER GENERAL LAW

The 1987 Philippine Constitution contains two provisions requiring the concurrence
of the Senate on treaties or international agreements. Section 21, Article VII, which
herein respondents invoke, reads:
"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."

Section 25, Article XVIII, provides:

 "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, when the Congress so requires, ratified
by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State."

NOT AS COMMONLY BELIEVED

In a case decided by the Supreme Court, the Court held that, "In our jurisdiction, the
power to ratify is vested in the President and not, as commonly believed, in the
legislature. The role of the Senate is limited only to giving or withholding its consent,
or concurrence, to the ratification." (BAYAN (Bagong Alyansang Makabayan) vs. Exe.
Secretary. Ronaldo Zamora, G.R No. 138570, October 10, 2000.)

This could only mean that although it is a must that the Senate will concur, it is not
however, a mandatory provision. The president will still have the final statement with
regards to the concurrence. Now who are we to submit that the President, in
abrogating a treaty, shall be solely upon the approval of the Congress?

CRAFTING OF FOREIGN POLICY IS SOLELY A PRESIDENTIAL PREROGATIVE.

In BAYAN vs. Executive Secretary Zamora, the Court ruled in favor of the then-
President Estrada that "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 many
ways, the President is the chief architect of the nation's foreign policy; his "dominance
in the field of foreign relations is (then) conceded." Wielding vast powers an influence,
his conduct in the external affairs of the nation, as Jefferson describes, is "executive
altogether."

Of course the opposing team would submit that since the concurrence of the Senate
is appreciated in the ratification of an agreement, it is just as logical to think that they
might have the power of concurrence to change the tide, an implication that the
concurrence of the Senate shall also be needed in abrogating an agreement, in which
the Court held in the same case, "As regards the power to enter into treaties or
international agreements, the Constitution vests the same in the President, subject
only to the concurrence of at least two-thirds vote of all the members of the Senate.
In this light, the negotiation of the VFA and the subsequent ratification of the
agreement are exclusive acts which pertain solely to the President, in the lawful
 exercise of his vast executive and diplomatic powers granted him no less than by the
fundamental law itself. Into the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it. Consequently, the acts or judgment calls of
the President involving the VFA-specifically the acts of ratification and entering into a
treaty and those necessary or incidental to the exercise of such principal acts -
squarely fall within the sphere of his constitutional powers and thus, may not be
validly struck down, much less calibrated by this Court, in the absence of clear showing
of grave abuse of power or discretion."

IDENTICAL RULES

This predicament is not unique in the Philippines. The United States of America, with a
similar Constitutional set-up like the Philippines at least insofar as treaty-making is
concerned, also has identical rules. As a matter of fact, a similar issue had already been
decided by the US Supreme Court in the past when President Carter unilaterally
abrogated its treaty with Taiwan in order to follow the ONE China Policy, Goldwater
questioned the matter before the US Supreme Court but the Court ruled thus:
"... while the Constitution is express as to the manner in which the Senate shall participate
in the ratification of a treaty, it is silent as to that body's participation in the abrogation
of a treaty. 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 case must be controlled by political standards, even
more so because it involves the conduct of foreign relations." (Goldwater vs. Carter, 444
US 996, December 13, 1979).