Press Release
November 10, 2015


Mr. President, distinguished colleagues:

On behalf of my twelve other co-authors, I have the honor to sponsor Senate Resolution No. 1414, entitled "Resolution expressing the strong sense of the Senate that any treaty ratified by the President of the Philippines should be concurred in by the Senate, otherwise the treaty becomes invalid and ineffective."

The Resolution that we will approve is Constitutional Law. The strong sense of the Senate that it embodies is a confirmation of its supremacy over any self-serving speculation that is forced subjectively on the Constitution.

Central to the thesis of the Senate in this Resolution are the general and the particular principles which combine as the law of treaties under the Constitution.

The general is contained in the Treaty Clause of the Constitution which reads in Article 7, Section 21, thus:

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.

This is the only provision of the fundamental law that determines the validity and effectiveness of treaties as law of the land. Other than concurrence of the Senate, no authority expressly transforms a treaty into law.

This general mandate is brought into application to a treaty of a particular kind, namely, as described in the Constitution, Article 18, Section 25:

.... foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate.... and recognized as a treaty by the other contracting State. (Emphasis added)

In particular concurrence of the Senate becomes an integral element of a treaty of a special kind in which concurrence forms part of its essential nature. This time there cannot be a treaty without Senate concurrence; the treaty is void.

Before the Supreme Court is the constitutionality of the executive agreement concluded by authority of the President with the United States Government, entitled Enhanced Defense Cooperation Agreement (EDCA). In defiance of the Constitution, Article 18, Section 25, EDCA is without question a prohibited treaty of "foreign military bases, troops, or facilities" concluded in the absence of Senate concurrence.

The oral arguments presented in behalf of the Executive Department in the Supreme Court by the Solicitor General clearly described EDCA in the nature of "foreign military bases, troops, or facilities" and thus constitutes a judicial admission that it is of the category that "shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate", by authority of the Constitution, Article 18, Section 25.

The textual composition of EDCA in itself evidences that it belongs to the category of prohibited treaty, namely, it is a treaty of foreign military bases, troops, or facilities" without the concurrence of the Senate. That such a prohibited "treaty" has been concluded by the Executive Department as an executive agreement testifies to its inherently prohibitory nature under the Constitution, by reason of EDCA's substantive provisions dealing with the establishment, location, stationing of the United States military forces and storage of military facilities in Philippine territory.

While the prohibitory nature of the constitutional mandate is inescapably clear, the Executive Department is in the attempt to wash it off from the fundamental law in avoidance of legal consequences which should include the Civil Code, Article 5 which reads:

Acts executed against the provisions of mandatory or prohibitory laws shall be void except when the law itself authorizes their validity.

Perhaps, the saving clause of this provision may call for the application of Senate concurrence to "save" the troubled executive agreement. But how does this agreement survive the demand of Article 7 of the same Code in the following terms: Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.

The only "defense" of the executive agreement in question may rely on the Constitution, Article 8, Section 4(2), which provides that:

All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc.... shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

While this procedural provision deals with the "constitutionality of a treaty, international or executive agreement," it does not pertain to any treaty, international or executive agreement of a particular subject-matter at issue on the constitutionality.

Hence, on the remote assumption that this provision may be applicable to a case involving the constitutionality of a treaty or executive agreement, it must exclude from its applicability or interpretation the prohibited treaty as described with particularity in the Constitution, Article 18, Section 25, i.e., the case of constitutionality of a treaty (or executive agreement) concerning "foreign military bases, troops, or facilities." The prohibitory character of this provision must command supremacy over the general and ambiguous language of the Constitution, Article 8, Section 4 (2).

We begin with the confidence that Senate Resolution No. 1414 is an expression of Constitution Law on the matter of critical importance to the integrity of the Senate and the honor of this Republic.

It is on this premise that we believe with the same confidence that the Supreme Court will consider this Resolution with decisive concern.

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