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Query: Whether Or Not There is a Need For Legislative Concurrence

To Withdraw From a Treaty?

INTRODUCTION

The President, as the chief architect of foreign policy is vested with the authority to
deal with foreign states and enter into diplomatic relations. Thus the president can enter
into treaties and ratify treaties, but in order for it to form part of our municipal law it
requires the concurrence of senate. It is a joint act, a power shared both by the executive
and the legislative department. Therefore, "A treaty or international agreement ratified by
the President and concurred in by the Senate becomes part of the law of the land and may
not be undone without the shared power that put it into effect.1

ARGUMENTS & DISCUSSION

1. Incorporation Clause in regards to the statute of Auto-Limitations.


2. Repeal of Statutes
3. Check and Balance Principle of the Constitution

I. Incorporation Clause In Regards To


The Statute Of Auto-Limitations

Sec. 2 Art. II of the 1987 Philippine Constitution provides states that:

“xxx adopts the generally accepted principles of


international law as part of the law of the land xxx”

The phrase cited above refers to norms of general or customary international law
which are binding on all states2, and that, under Philippine law, it forms part of the law of
the land. There are two methods how international law may be come part of the law of land
either (1) by transformation and (2) by incorporation.

1
17th Congress, Senate Resolution No.: 289, 17 February 2018
2
Kuroda vs. Jalandoni, 42 O.G. 4282.
The first method speaks of transformation. With this method, it is required that an
international law be transformed into a domestic law by enacting a statute. On the other
hand, the incorporation method merely requires constitutional declaration.

By virtue of the doctrine of incorporation, rules of international law are given equal
standing with, and are not superior to, national legislative enactments3. In other words,
generally accepted principles of international law ipso facto are given the force and effect
of a domestic law.

But, in Philip Morris, Inc. v. Court of Appeals4, the Court made a clarification and
stated that the fact that international law has been made part of the law of the land, it does
not by any means imply the primacy of international law over national law in the municipal
sphere.

, where a Treaty does not fall under the generally accepted principles of
international law, and does not ipso facto become part of the law of the land, thus needing
a positive act. The aforesaid positive act has already been provided for by the Constitution,
to wit:
“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.5”

The aforesaid positive act in this case is the concurrence of Congress or ratification
of a treaty entered into by the President. Thus, in a case decided by the Supreme Court:

“Nonetheless, while the President has the sole


authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of
the Senate for the validity of the treaty entered into by
him.6”

Hence, the treaty or International Law becomes part of the Municipal Law. To
which, we limit our sovereignty through our acts in entering into treaties and such treaties

3
Secretary of Justice v. Lantion, G.R. No. 139465, January 18, 2000.
4
G.R. No. 91332, July 16, 1993.
5
Art. VII Sec. 21, 1987 Philippine Constitution.
6
Bayan v Executive Secretary. G.R. No. 158088. July 6, 2005.
upon effectivity becomes part of our Municipal Law. In fact, Treaties have often effectively
amended our municipal laws. Wherefore, once we enter into treaties we limit our sovereign
powers in consonance with Pacta Sunt Servanda. Thus, in the case of Agustin v. Edu7 the
court stated in the wise:

“It is not for this country to repudiate a commitment to which


it had pledged its word. The concept pacta sunt servanda in
the way of such an attitude, which is more over, at war with
the principle of international morality.”

Thus, Presidential fiat alone is not enough to withdraw from the treaty after
Legislative concurrence. The proper remedy then would be a Legislative enactment in
consonance with the Constitution to wit:

“The legislative power shall be vested in the Congress of


the Philippines which shall consist of a Senate and a
House of Representatives, xxx”8

Furthermore, While it may be argued that our constitution is silent with regards to
the need of senate’s concurrence in the withdrawal of a treaty, however in our jurisdiction
we adhere to the “Doctrine of Necessary Implication, the doctrine which states that what
is implied in a statute is as much part thereof as that which is expressed”9 Therefore, as our
1987 Constitution expressly provide under Art.VII, Sec.21. 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, it is also then implied that invalidating or withdrawing from a
treaty or international agreement would still also need the concurrence of senate.

While this issue is might be noble in our jurisdiction, we are not precluded to seek
guidance from cases decided in other states. Like the case of South Africa, where they tried
to withdraw from the Rome Statute, however it was not approved by their parliament,
which was unconstitutional under their law, thus in their Depositary Notification to the
United Nations they state that:
I wish to inform you that the Gauteng High Court of the Republic of
South Africa has on 22 February 2017 issued a judgement in the matter
between the Democratic Alliance and the Minister of International

7
88 SCRA 195, February 2, 1979
8
Const (1987), Art. VI Sec. 1
9
Natl. Assoc. of Trade Unions (NATU) v. Torres, GR 93468. Dec. 29, 1994
Relations and Cooperation and others and found that the approval of the
Parliament of South Africa had to be obtained before the Instrument of
Withdrawal from the Rome Statute of the International Criminal Court can
be deposited with the United Nations as provided for In Article 127(1) of
the Rome Statute of the International Criminal Court. Consequently, the
abovementioned depositing of the Instrument of Withdrawal was found to
be unconstitutional and invalid.

In order to adhere to the said judgment, I hereby revoke the


Instrument of Withdrawal from the Rome Statute of the International
Criminal Court with immediate effect.10

And, an excerpt of the decision of the case of in the matter between the Democratic
Alliance and the Minister of International Relations and Cooperation and others is here
provided:

[51] It should also be borne in mind that prior parliamentary approval is


required before instruments of ratification may be deposited with the United
Nations. From that perspective, there is a glaring difficulty in accepting that
the reverse process of withdrawal should not be subject to the same
parliamentary process. The necessary inference, on a proper construction of
s 231, is that parliament retains the power to determine whether to remain
bound to an international treaty. This is necessary to give expression to the
clear separation of powers between the national executive and the
legislature embodied in the section. If it is parliament which determines
whether an international agreement binds the country, it is constitutionally
untenable that the national executive can unilaterally terminate such
agreement.

[52] As the Constitutional Court explained in Glenister II para 96, a


resolution by parliament in terms of s 231(2) to approve an international
agreement is ‘a positive statement… to the signatories of that agreement
that parliament, subject to the provisions of the constitution, will act in
accordance with the ratified agreement.’ Therefore, the approval of an

10
C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification)
international agreement in terms of s 231(2) creates a social contract
between the people of South Africa, through their elected representatives in
the legislature, and the national executive. That social contract gives rise to
the rights and obligations expressed in such international agreement. The
anomaly that the national executive can, without first seeking the approval
of the people of South Africa, terminate those rights and obligations is self-
evident and manifest.

[53] What is more, it is trite that where a constitutional or statutory


provision confers a power to do something, that provision necessarily
confers the power to undo it as well.17 In the context of this case, the power
to bind the country to the Rome Statute is expressly conferred on
parliament. It must therefore, perforce, be parliament which has the power
to decide whether an international agreement ceases to bind the country.
The conclusion is therefore that, on a textual construction of s 231(2), South
Africa can withdraw from the Rome Statute only on approval of parliament
and after the repeal of the Implementation Act. This interpretation of the
section is the most constitutionally compliant, giving effect to the doctrine
of separation of powers so clearly delineated in s 231. The fact that s 231
does not expressly say that only parliament has the power to decide the
withdrawal from the Rome Statute, is no bar to this interpretation.11

Thus, with such decision of the High Court of Africa, they withdrew their
withdrawal from the Rome Statute for it was unconstitutional. In the light of this decision,
we should also consider that South Africa and Philippines are has similarly equal policy as
to the manner in which international agreements are concluded, and made binding in their
country. Such that both country adheres that the negotiating and signing of all international
agreements is the responsibility of the national executive, and an international agreement
binds the Republic only after it has been approved by resolution in both the National
Assembly and the National Council of Provinces, in the case of South Africa, and in with
the concurrence by at least two-thirds of all the members of the Senate in the case of
Philippines. Considering these facts, we could seek guidance from this decision and apply
it in our jurisdiction.

11
In the Matter between the Democratic Alliance and the Minister of International Relations and
Cooperation and others, Case No. 83145/2016, 22 February 2017
II. Repeal Of Statutes

The very nature of legislative power is:

“Legislative power is the authority to make laws and to


alter and repeal them.12”

Wherefore it follows that since the treaty has become part of the law of the land. it
therefore needs legislative fiat to repeal the aforesaid treaty.

III. Separation Of Power

The aforesaid Legislative fiat in order for the Philippines to withdraw from an
aforesaid Treaty, is also in consonance with the time-honored principle of Separation of
Powers, scilicet:

“In the presidential system introduced by the 1935


Constitution which allocated the three great powers of
government – legislative, executive, and judicial – among
the three distinct departments, one basic corollary was
the principle of separation of powers.13”

Thusly, the very reason why bounding or ratification of the Philippines to the Treaty
requires legislative fiat, it also follows that withdrawal from the same or divesting the
Philippines requires legislative fiat. The Supreme Court has already specified that the
Purely Executive power in treaties is the negotiation phase, scilicet:

“As the chief architect of foreign policy, the President acts


as the country's mouthpiece with respect to international
affairs. Hence, 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.14”

12
Bernas, Joaquin G. The 1987 Constitution of the Philippines: A Commentary 676 (2009 ed.)
13
Supra 677(3)
14
See Note 2. Supra
However, it is subject to certain exemptions, to wit:

“Nonetheless, while the President has the sole authority


to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the
validity of the treaty entered into by him.15”

The Supreme Court is clear, the Executives purview is only limited to negotiation and
entering into. However, validity and corollary withdrawal needs legislative fiat. It is further
strengthened by the Supreme Court, scilicet:

“The participation of the legislative branch in the treaty-


making process was deemed essential to provide a check
on the executive in the field of foreign relations. By
requiring the concurrence of the legislature in the
treaties entered into by the President, the Constitution
ensures a healthy system of checks and balance necessary
in the nation's pursuit of political maturity and
growth.16”

Wherefore, we are of the Position that withdrawal from a Treaty is not solely an Executive
function, since there needs to be concurrence of the Legislative or more particularly the
Senate in consonance with the Check and Balance Principle in the Constitution.

15
Ibid.
16
Ibid.