Speech of Senate President Vicente C. Sotto III on Proposed Senate Resolution 337 asking the Supreme Court of the Philippines to rule on whether or not the concurrence of the Senate is necessary in the abrogation of a treaty previously concurred in by the Senate.

My esteemed colleagues thank you very much. Thank you to the chairman of the Committee on Rules and the Majority Floor Leader for calling this very important sense of the Senate.

Mr President, Section 21, Article 7 of the 1987 Constitution 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. On the other hand, Section 25, Article 18 of the 1987 Constitution states and I quote, "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 when 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 the other contracting state."

Mr. President, although it is clear in the provisions of the 1987 Constitution that the concurrence of at least two-thirds of all the members of the Senate is necessary for the validity of a treaty or international agreement, there is obviously a lacuna legis, or an absence of an explicit provision in the 1987 Constitution as to whether or not the concurrence of the Senate is necessary for the termination of any treaty earlier concurred in by the body.

Now, it involves important constitutional questions brought about by the Executive's withdrawal from an agreement or a treaty like the Visiting Forces Agreement (VFA) as well as the earlier Rome Statute creating the International Criminal Court (ICC) which affect the core of the Constitutional mechanism of checks and balances.

The resolution before us now, Mr. Senate President, does not question any of the two issues of the issue on the ICC or the VFA. The resolution simple seeks to find out if the power to ratify carries with it the power to concur in abrogation. Remember, there is no treaty if we do not ratify.

Mr. President, the Executive and the Legislative branches of government have a shared competency on treaty-making, so it is the submission of this representation and many other members of the Senate, that the concurrence of the Senate is necessary not only to accede to a treaty, but also to its abrogation, a theory which is in adherence to the mirror principle.

This question being raised by this representation involves an issue of transcendental importance that impacts on the country's constitutional checks and balances. It presents a constitutional issue that seriously affects the country's legal system as well as the country's relations in the international community.

The honourable Supreme Court ruled in Tañada versus Saguisag, the power to concur in a treaty or an international agreement is an institutional prerogative granted by the Constitution to the Senate. Thus, any member of the Senate has standing to question before his honourable court the impairment of this institutional prerogative.

Now, Mr. President, as earlier manifested by Justice Secretary Menardo Guevarra on the ABS CBN franchise that "when there is a gap in the law, equity comes in to fill in the gap." Now, since there is a gap in the law in this case, maybe the same principle can be adopted.

There is also the emerging view which has been known as the "act de contraire" theory. Simply stated, it posits that when a Constitution requires parliamentary or legislative approval for treaties subject to ratification, it likewise, by implication, requires the consent the parliament or the legislature to withdraw from such treaties.

Mr. President, I respectfully adhere to the rule that yes, the President of the Philippines is the sole representative of our country in foreign affairs and I do not intend to go against the tide. I just want clarity. We want clarity, and I hope that once and for all, the honourable Supreme Court shed light on this purely question of law.

So, Mr. President, I urge my colleagues to adopt a resolution, this resolution respectfully asking the Supreme Court to rule on whether or not the concurrence of the Senate is necessary in the abrogation of a treaty previously concurred in by the Senate.

We ask that our colleagues be part of the Senate as it is, a Senate of the people.

Thank you, Mr. President.