Press Release
June 30, 2015


Sen. Miriam Defensor Santiago on Tuesday submitted to the Supreme Court a copy of the proposed resolution expressing the strong sense of the Senate that a treaty or international agreement is invalid or ineffective unless concurred in by the upper legislative chamber.

A total of 13 senators signed the resolution. Apart from Santiago, these included Senators Sonny Angara, Pia Cayetano, JV Ejercito, Jinggoy Estrada, TG Guingona, Lito Lapid, Bongbong Marcos, Serge Osmeña, Koko Pimentel, Ralph Recto, Bong Revilla, and Cynthia Villar.

"This is to respectfully enclose, for the presumable information of the Supreme Court, the copy of Senate Resolution No. 1414," Santiago, chair of the Senate committee on foreign relations, said in the letter addressed to Chief Justice Ma. Lourdes Sereno.

Santiago, who is on medical leave due to lung cancer, stage four, hopes to sponsor the resolution before the plenary when Congress resumes. After a debate, the resolution will be put to a vote. A simple majority of senators present in a quorum is required to adopt a resolution.

The resolution was filed as the Supreme Court contemplates on the validity of the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the U.S., which Malacañang claims is merely an executive agreement and thus needs no Senate concurrence.

"The only constitutional ground for the position taken by the Executive is the mere inclusion of the term 'executive agreement' as one of items included in the list of cases which the Supreme Court has power to decide," the senators said in the resolution.

They were referring to the Constitution, Article 8, Section 4, which says: "All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc..."

"'Executive agreement' is a term wandering alone in the Constitution, bereft of provenance and an unidentified constitutional mystery," the senators added. They claimed that no provision defined the term, set requirements for it, or established protocol.

"The Constitution is clear and categorical that Senate concurrence is absolutely necessary for the validity and effectivity of any treaty, particularly any treaty that promotes for foreign military bases, troops, and facilities, such as the EDCA," the senators further claimed.

They cited the following constitutional provisions:

a. "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 7, Section 21)

b. 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 the other contracting State." (Article 18, Section 25)

The resolution was the product of a Senate committee hearing presided over by Santiago in December 2014. Present during the hearing were Malacañang officials led by Foreign Affairs Sec. Albert Del Rosario and Defense Sec. Voltaire Gazmin.

Former UP College of Law Dean Merlin Magallona was also invited, while groups who petitioned against the EDCA were represented by former Sen. Rene Saguisag, Bayan Muna Party-list Rep. Neri Colmenares, and Bayan Secretary General Renato Reyes, among others.

During oral arguments on the EDCA in November 2014, several Supreme Court justices floated the possibility of forwarding the document to the Senate, which they said might be a more appropriate forum for the debate on the agreement's validity.

Santiago assailed the EDCA as soon as it was signed as an unfair surprise on the part of the Senate, which she said shares the treaty-making power with the President. "I have argued that such an agreement should first be submitted for concurrence to the Senate," the senator said.

She clarified, however, that the Senate abides by the Supreme Court ruling in the 2005 case of Pimentel v. Office of the Executive Secretary, which declared that the President cannot be forced to submit a treaty to the Senate for concurrence.

"By this resolution, the Senate merely takes a definitive stand on the non-negotiable power of the Senate to decide whether a treaty will be valid and effective, depending on Senate concurrence," Santiago said.

She nonetheless claimed that the Palace decision to implement the EDCA without Senate concurrence, and to downgrade it for signature not by the two presidents but only by a Cabinet official and the U.S. ambassador in Manila, is a betrayal of a co-equal branch of government.

"This contretemps does not indicate good faith on the part of the two presidents. The use of guile in diplomacy should be limited to state-to-state situations, and should not include a situation involving only two branches of the same government," Santiago said.

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