Terminating the VFA

The Senate recently held an inquiry whether the President needs the Senate’s concurrence to terminate the Visiting Forces Agreement (VFA). Two theories were advanced why the President, acting alone, can terminate a treaty like the VFA that has been ratified by the Senate.

First, while the Constitution requires the Senate’s concurrence to make a treaty valid, the Constitution is silent on how a treaty is terminated. Second, the President is the Chief Architect of foreign policy. Thus, these theories assert, the President acting alone can terminate a ratified treaty.

While the Constitution prescribes the procedure how a law is enacted, and how a treaty is ratified, the Constitution is silent how a law or treaty is terminated, except that a people’s initiative may “reject” a law passed by Congress. Why?

A fundamental principle in constitutional law is that laws are repealed or amended only by subsequent laws, either expressly, or impliedly due to irreconcilable inconsistency between the prior and later law. This principle is so fundamental that it is not even written in the Constitution.

However, this principle is found in our Civil Code. Article 7 of the Civil Code provides, “Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practices to the contrary.”

It is well-settled that a ratified treaty can expressly amend or repeal a prior law. The amendment or repeal may also be implied when there is an irreconcilable conflict between a prior law and a later treaty, in which case the treaty prevails. Every time the Senate ratifies a tax treaty, the treaty amends the existing National Internal Revenue Code by carving out exemptions from the Code.

A ratified treaty itself may also be amended or repealed, expressly or impliedly, by a later law. A ratified treaty has the same status as a law enacted by Congress in that it can amend a prior law and can be amended by a later law. And just like any other law enacted by Congress, a treaty cannot amend the Constitution.

Clearly, a ratified treaty is a law, but a special one because the President must initiate it and the Senate must ratify it.

The VFA as a law can be repealed or terminated only by another law, either by a law enacted by Congress or by termination of the VFA by the President with the concurrence of the Senate. Since making a treaty into a law requires the joint act of the President and the Senate, terminating the treaty as a law must also require the joint act of the President and the Senate.

The President is described as the Chief Architect of foreign policy. The term Chief Architect, however, is not found in the Constitution. Jurisprudence has coined the term Chief Architect for two reasons.

First, under the Constitution, the President exercises “control” over all executive departments, including the Department of Foreign Affairs (DFA). This means that the President can instruct the Secretary of Foreign Affairs what to do, and amend or even reverse his decisions. Second, the President exercises the sole authority to negotiate and enter into treaties, subject to concurrence by the Senate.

However, in exercising control over the DFA and its Secretary, the President must still follow existing laws and the Constitution. Article 7 of the Civil Code provides, “executive acts xxx shall be valid only when they are not contrary to the laws or Constitution.” It is basic that any act of the President must not violate the law, otherwise the act is not valid.

An executive action of the President that violates a law, like the VFA, is not valid. The unilateral termination by the President of a law like the VFA, without the concurrence of the Senate, is also not valid. In fact, such unilateral termination of a law is the gravest violation of the law.

Article 7 of the Civil Code lays down the fundamental principle that no one is above the law, not even the President. The law is forever, unless amended or repealed by a subsequent law. If we allow the President to terminate a law like the VFA by his sole action, then we have placed the President above the law.

acarpio@inquirer.com.ph