Two of the resource speakers invited to provide opinion on whether a senate concurrence is needed in a treaty

withdrawal or termination were former Senator Francisco “Kit” Tatad and Undersecretary Igor Bailen of the
Department of Foreign Affairs. Both resource speakers provided insights during their respective opening statements.

Undersecretary Igor Bailen, who heads the Office of Treaties and Legal Affairs in the DFA cited the case of Saguisag
vs Executive Secretary wherein the President carries the mandate of being the sole organ in the conduct of foreign
relations. In line with this, he maintained that the President has the singular voice and authority of the country’s
foreign relations and that the Visiting Forces Agreement termination does not require a senate concurrence.

According to Bailen, the role of the Senate in a treaty process is to give or withhold its consent or to concur in the
president’s ratification. He cited two provisions the Constitution to support such claim, to wit:

Article 7, Section 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.

Article 18, Section 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized
as a treaty by other contracting State.

Furthermore, in the case of Pimentel vs Executive Secretary, the participation of the Senate in treaty making process
was to provide a system of checks and balances on the executive branch in the field of foreign relations but this is
limited to giving or withholding the consent or concurrence of the ratification.

Therefore, when President Duterte sent notice to terminate the VFA, he was merely exercising his diplomatic powers
granted to him by the Constitution. The power to enter into a treaty carries with it the power to terminate the same.

In the other side of the spectrum was former Senator Kit Tatad.

Senator Tatad believes that no treaty is possible without the approval of sixteen out of twenty-four senators hence,
from a layman’s point of view, it is the Senate concurrence that gives validity to a treaty. Without a Senate
concurrence, there is no treaty therefore, no treaty to abrogate.

Since the Constitution is silent on treaty withdrawal, then President could not unilaterally revoke the VFA. This could
be an oversight on the part of the framers or a deliberate act because in International Practice dictates that treaties
are not lightly entered into nor lightly abrogated. However, this defect must be cured by the Supreme Court because
amending the Constitution requires so much time and it is a luxury that we do not have.

He exclaims that the Supreme court can help cure this defect because the court which was able to remove a
impeachable Chief Justice without going thru the impeachment process can easily provide the doctrine which our
framers failed to to put into the existing text of our fundamental law.
Lastly, Senator Tatad said that the decision to abrogate is a political act which is not subject to a judicial review but
the manner in which it is carried out must follow the sense of the Constitution and rule of equity and fair play.