Senate asks Supreme Court: Order Duterte to seek our concurrence on VFA scrapping

MANILA, Philippines – Philippine senators, led by Senate President Tito Sotto, on Monday, March 9, asked the Supreme Court to compel President Rodrigo Duterte to seek the Senate's concurrence in terminating the Visiting Forces Agreement (VFA) with the Americans.

Senators filed a petition for declaratory relief and mandamus. Declaratory relief means they want the Supreme Court to clarify questions of law, while mandamus seeks to compel the respondents to do something.

The petition did not implead Duterte but Executive Secretary Salvador Medialdea and Foreign Affairs Secretary Teodoro Locsin Jr.

Senators asked Supreme Court to "issue an order directing respondents to fortwith refer the Notice of Withdrawal to the Senate of the Philippines for its concurrence, pursuant to Section 21, Article VII of the 1987 Constitution."

On the declaratory relief aspect of the petition, senators said the Court should "render a decision declaring that the withdrawal from or termination of a treaty or international agreement that had previously been concurred in by the Senate requires the concurrence of two thirds of all the members of the Senate for the said withdrawal or termination to be valid and effective."

Sotto, a Duterte ally, tried to temper this move by earlier saying it's not an "affront" to Duterte but a mere reflection of the senators' wish to clarify what the law provides.

But by putting in the petition's prayer that they want the justices to order Malacañang to seek the Senate's concurrence, the petition is effectively challenging the wisdom and decision of the President.

This marked the first time that senators of the majority bloc are challenging a policy of the Duterte administration before the Supreme Court. 

The minority senators previously challenged Duterte's unilateral withdrawal from the International Criminal Court (ICC), a case still pending at the High Court.

Duterte's fiercest allies in the Senate, like Senators Ronald dela Rosa and Bong Go, did not sign the resolution that paved the way to the filing of the petition.

What is unclear

The Constitution is clear that a treaty may only be entered into if there is a concurrence from the Senate. Section 21, Article VII of the Constitution says  "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."

But there is no clear textual basis for the requirement to withdraw a treaty like the VFA.

This is what the Senate seeks to clarify. This is also the question in the ICC petition, because Philippines' entry to the ICC was done through ratification of the Rome Statute, also a treaty.

On the part of the opposition, jailed Senator Leila De Lima said that the VFA case will be "better" than the ICC case. "Mas may stake ang mga tao, the lawmakers who are sensitive to the national security unlike 'yung sa ICC na human rights," De Lima said in response to a letter sent by Rappler. (There are more stakeholders, the lawmakers who are sensitive to the national security unlike in the ICC case that it's about human rights.)

De Lima said that if the Supreme Court rules that terminating the VFA needs Senate concurrence, then it must also rule that withdrawing from the ICC has the same requirement.

"Same ruling dapat ang VFA at ICC," said De Lima. (VFA and ICC should have the same ruling.) –

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.