Mishearing constitutional silence

President Duterte has temporarily suspended the Philippines’ withdrawal from the Visiting Forces Agreement. The question remains: Was the withdrawal itself valid to start with?

The 1987 Constitution expressly requires Senate approval for a treaty to become “valid and effective,” but is silent on treaty withdrawal. President Duterte seized upon the textual gap to withdraw the country from the VFA with the United States, maintaining that treaty termination fell within his sole discretion. The Philippine Senate has resolved to test that claim by asking the Supreme Court to construe the sound of Constitutional silence.

Senate President Vicente C. Sotto III argues that the executive and the legislative branches’ “shared competency” in treaty-making would require Senate concurrence even for treaty termination. Though syllogistically sound, a real problem remains: Filed before the Philippine Supreme Court is a question of law, not logic. And, like it or not, these two realms are not necessarily co-extensive. In fact, as observed by Prof. Hannah Woolaver, of those states that have codified rules on treaty withdrawal, most “apply distinct rules to joining and leaving treaties.”

The solution, I propose, is not to tinker with the Constitutional text, but to begin with that time-honored tenet: the separation of powers. The bedrock doctrine divides the great powers of government into three: the legislature that makes law, the executive (embodied by the President) that enforces the law, and the judiciary that settles controversies in the application of law.

An international compact can come in the form of either a treaty or an executive agreement. How are they different? Executive Order No. 459, s. 1997 draws a rudimentary distinction: Treaties are “international agreements […] which require legislative concurrence after executive ratification,” while Executive Agreements are “similar to treaties except that they do not require legislative concurrence.”

The VFA is a full-fledged treaty. But even more significant for our purposes: Who decided on the form of the agreement? Why, it was the President himself. The “shared competency on treaty-making” is thus triggered by presidential prerogative. He himself shifts the agreement from the executive to the legislative realm, subjecting it to legislative processes.

The treaty status of the VFA determined not only how we bound ourselves then, but how to unbind ourselves now. For the Supreme Court to rule that treaty withdrawal requires legislative imprimatur is therefore not a case of judicial overreach but of judicial restraint. To decide that legislative approval is required to abrogate a treaty is to give full effect to the presidential characterization of an international agreement qua treaty law.

An executive agreement cannot amend a treaty, yet President Duterte has attempted to withdraw from the VFA by mere presidential say-so. The President may be “the chief architect of foreign policy,” but when foreign policy crystallizes into international law, which is of equal juridical status to municipal law under the 1987 Constitution, then its modification is no longer only executive but also fundamentally legislative in character.

All that is left to be determined, therefore, is the form legislative imprimatur must take. In this respect, the Constitution is no longer silent. Legislative power is vested in a bicameral Congress. Absent a special provision on treaty withdrawal, the general rules of law-making apply. Legislative imprimatur must therefore take either one of two forms: (a) a statute passed by both Congressional Houses, or (b) a subsequent treaty through the principle of lex posterior derogat priori (a later law repeals an earlier one).

The Senate is thus only partially correct. The separation of powers rebuts any claim to plenary presidential authority on treaty termination, but that is not to say that legislative imprimatur is theirs alone. We must distinguish between spirited interpretations of the Constitution and the wanton invocation of a phantom provision.

Raphael A. Pangalangan is an Oxford-Bonavero Human Rights Fellow and is completing his LL.M. at Cambridge. He is the appointed associate dean of the Jindal Global Law School, India’s highest-ranked law school.