The Constitution, in Section 21, Article VII, provides: “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.” In accordance with this provision, the Visiting Forces Agreement (VFA) between the Philippines and the United States was submitted to the Senate which approved it on May 27, 1999.
There is, however, no provision in the Constitution requiring Senate concurrence in any termination of an agreement. Thus when President Duterte informed the US that the Philippines was ending the VFA, he simply notified the US government through the US Embassy in Manla on February 11, 2020, and the termination takes effect after 180 days.
There are some quarters who question the wisdom of ending the agreement with the US, saying the Philippines needs US help in case it is attacked. On the other hand, there are also many who believe it is time to let go of our dependence on US protection and adopt a more independent foreign policy.
Many Filipinos today continue to hold the US in high esteem, a view shared by many officials, including some members of the Senate. This is is one reason some senators questioned President Duterte’s decision to end the VFA last February.
But there is another reason some senators have reservations about the President’s action on the VFA. This reason has to do with the Senate’s role in the entire system of checks and balance in the Philippine government. And the question is: If the government needs the concurrence of the Senate before it can enter into a treaty or other agreement with another country, does it not need the same concurrence if it should decide to end the agreement? That would be the reasonable thing to do. But since this is not expressly provided in the Constitution, it was not done when the present administration scrapped the VFA last February.
Last March 2, the Senate approved a resolution asking the administration to hold any decision on the VFA while the Senate conducts a thorough review of the agreement. There were 12 yes votes and seven abstentions, an indication of how the individual senators felt about questioning a decision of President Duterte.
Then Last Monday, March 9, six senators led by Senate President Vicente Sotto III took another step and filed with the Supreme Court a petition that it rule on the issue of whether Malacanang needs the concurrence of at least two-thirds of the Senate. They said the unilateral decision of Malacanang to revoke the VFA “violates the principle of checks and balance and separation of powers.” They also pointed out that because of the Senate approval, the VFA is also domestic legislation with the force and effect of law.
Here the matter rests today. Some members of the court, many of whom are Duterte appointees, may decline to rule on the matter. They may well decide it is a political issue that should be resolved by the leaders of the executive and the legislative branches of government.
But it would help if this issue of Senate concurrence in ending a treaty – not the issue of a need for VFA – would be resolved and put to rest in the interest of good government. Ultimately, it should be made part of the Constitution in its next embodiment as the basic law of the nation.