De Lima files bill requiring Senate concurrence in termination, repeal of treaties

Opposition Senator Leila M. de Lima introduced a measure providing for Senate concurrence in the abrogation, termination, or repeal of treaties and international agreements.

De Lima filed Proposed Senate Bill (SB) No. 2436 which explicitly requires the concurrence of at least two-thirds of the Senate to any act of withdrawal from, or abrogation of, a treaty or an international agreement, before the same becomes effective.

"This bill aims to protect the interests of our people by making sure that the constitutional checks that are in place during our entry into treaties remain so during our withdrawal from the same," she said.

It may be recalled that, last March 15, 2018, the President unilaterally announced that the Philippines was withdrawing from the Rome Statute and, on the next day, the Notice of Withdrawal from the International Criminal Court (ICC) was submitted to the United Nations.

Petitions were subsequently filed with the Supreme Court questioning the constitutionality of Mr. Duterte's unilateral withdrawal from the treaty, including a petition filed by opposition Senators, entitled Sen. Francis Pangilinan, et al. v. Alan Peter Cayetano, et al., G.R. No. 238875.

On 16 March 2021, the Supreme Court, in said case, proclaimed that "the President's discretion to withdraw [from treaties] is qualified by the extent of legislative involvement on the manner by which a treaty was entered into or came into effect."

De Lima noted that, the Supreme Court, according to the Supreme Court imposition of Senate concurrence as a condition may either be made piecemeal, through individual Senate resolutions pertaining to specific treaties, or through an encompassing legislative action, such as a law, a joint resolution by Congress, or a comprehensive Senate resolution.

"Thus, according to the Supreme Court, a law may be passed to impose Senate concurrence as a condition prior to withdrawal from treaties," she said.

In highlighting the need for Senate concurrence, De Lima cited Retired Supreme Court Senior Associate Justice Antonio Carpio, who earlier stated that "[i]f the Senate does not assert its prerogative to concur, it will lose its prerogative to concur."

The lady Senator from Bicol said 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," she noted.

Even as the President has near exclusive access to information and expertise from our Department of Foreign Affairs (DFA) and his many sources of intelligence, De Lima stressed that the Senate has two crucial things: a direct mandate from the people and the constitutional power to disagree with the President in treaty-making.

Ultimately, De Lima said the Senate represents the legislative will of the whole country that is why it stands to reason that Senate should be able to express its power to give or withhold concurrence to the withdrawal from treaties and international agreements, just as it is able to express legislative concurrence to their ratification.

"In as much as a law requires both executive and legislative action before it is repealed, it is submitted that a treaty, akin to a law, should also require both executive and legislative action," she said. "Otherwise, it would lead and, indeed, has already led to an absurd situation, whereby an action of unilateral withdrawal by the Executive, not sanctioned by the Filipino people through their duly elected representatives in the Legislature, would be legally and constitutionally invalid and, supposedly, ineffective domestically, yet has been considered binding on the Philippines as a State on the international level," she added.