On the treaty-making power of the President

Can the President withdraw from a treaty or international agreement without the concurrence of the Senate?

The honest answer to this question is, we do not know. The 1987 Constitution provided only the rule to govern the act of entering into a treaty or international agreement, but prescribed absolutely nothing about withdrawing from it. Specifically, the Charter states, “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 VII, Section 21)

Hence, whether President Duterte can or cannot withdraw from the Visiting Forces Agreement (VFA) without Senate concurrence finds no answer in the text of the 1987 Constitution.

So, the question we really want to ask here is, should we allow our President to withdraw from a treaty or international agreement without the concurrence of at least two-thirds of all the members of the Senate?

In the past weeks, we have seen this matter become the subject of debate among legal and constitutional luminaries. I feel it is no longer necessary to repeat their well-argued points here. Instead, I feel compelled to apply common sense in answering this question.

It must be pointed out that a treaty is not an agreement between governments. It is an agreement between nations. Government leaders are simply the intermediaries, but the treaty binds the entire country. So, entering into a treaty cannot be treated whimsically by the government of the day and its leaders. There must be serious analysis and extensive public discussion before making such a move.

Our Constitution ensures that the President undertakes such a process by incorporating Senate concurrence in his treaty-making power.

Obviously, the decision to withdraw from a treaty will be as weighty as the decision to enter into one. Both will have an impact on the entire nation. Both will affect the lives of the people today and of future generations.

Common sense therefore dictates that withdrawing from a treaty or an international agreement is a decision that should be made only after undergoing thorough analysis and public deliberations. We just cannot allow the President to make such a huge decision on a mere whim.

We really want to avoid the present scenario where it is still not clear, even to the administration, how the decision to withdraw from the VFA would eventually affect the country. I think we all can agree that we do not want our President to make a unilateral decision that would leave the people suffering the consequences. More importantly, we already know that requiring Senate concurrence is an effective way to ensure that thorough study and public deliberations become integral components of the President’s treaty-making powers.

Therefore, we should not allow our President to withdraw from a treaty or international agreement without the concurrence of at least two-thirds of all the members of the Senate. The plain fact is, as citizens we have the responsibility to make sure that the Constitution does not countenance a situation where Filipinos are purposely disadvantaged by government action.

I am particularly reminded of a parliamentary exchange between two senators a few years back. This question was raised: “Can the Senate interpret the Constitution?” The answer of one senator, which today remains uncontested, was that it cannot, because there is no specific provision authorizing the Senate to interpret the Constitution.

However, the Preamble clearly states that it is the “sovereign Filipino people” who “ordain and promulgate” the 1987 Constitution, and therefore as authors of the Constitution, Filipinos, including legislators, do have the inherent authority, indeed the duty, to give meaning to the prescriptions of the Constitution. We should not hesitate to flex this power when the need arises. But the willingness to assert this authority requires us to habitually analyze the 1987 Constitution. Filipinos should not be averse to understanding our Charter through our own lens, using our own thinking.

* * *

Michael Henry Ll. Yusingco, LL.M, is a non-resident research fellow at the Ateneo Policy Center of the Ateneo School of Government.