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 TREATY TERMINATION AND THE FAULTS
OF PHILIPPINE FORMALISM*

RaphaelA. Pangalangan

ABSTRACT

The 1987 Constitution expressly requires Senate approval for

a treaty to become "valid and effective" but is silent on treaty
withdrawal. President Rodrigo Duterte has seized upon the
textual gap to withdraw the country from the Visiting Forces
Agreement with the United States of America, without Senate
approval. On March 20, 2020, the Senate majority bloc, for
the first time in history, opposed Dutertian rule and argued
that because the Constitution requires Senate concurrence for
treaty conclusion, senatorial imprimatur is likewise needed for
treaty termination. Neither of these views finds its place in
Philippine constitutional order. But while their ends conflict,
the error is shared: an overreliance on legal text. On one hand,
the Senate rightfully invokes the separation of powers, yet
unduly limits that constitutional principle to constitutional
provisions. On the other hand, the President ignores how the
gray in-betweens of black letter law have long been filled by
an unwritten yet time-honored principle. This paper provides
a third approach. By shifting the focus from the written text
to the unwritten tenet, the paper defines the limits to a
presidential treaty power free from the faults of Philippine
formalism.

Cite as Raphael Pangalangan,Treaty Termination and the Faults of PhilippineFormalism,

93 PHIL L.J. 709, [page cited] (2020). The article was developed from the author's news column
with the Philippine Daily Inquirer.Mishearng ConstitutionalSilence , PHIL. DAILY INQUIRER, May
2, 2020, available at https://opinion.inquirer.net/130834/mishearing-constitutional-silence.
** Member of the Philippine Bar; Assistant Professor and Associate Dean, Jindal
Global Law School, O.P. Jindal Global University; LL.M., University of Cambridge (2020);
M.St. in International Human Rights Law, with Distinction, University of Oxford (2019);
Grad.D. in Advanced Studies on Human Rights and Humanitarian Law, American University
(2017);J.D., University of the Philippines (2016); B.A. Philosophy, cum laude, University of the
Philippines (2012). Opinions expressed are those of the author and do not necessarily reflect
the official policy or position of any other agency, organization, employer, or company.

709
710 PHILIPPINE LAWJOURNAL [VOL. 93

Auxiliaries [...] may be useful and

good in themselves, butfor him who calls
them in they are always
disadvantageous; for losing one is
undone, and winning, one is their
captive.
Nicollo Machiavelli1

INTRODUCTION

The Philippine democratic experiment continues to disconnect legal

text from its underlying tenet.

Article VII, Section 21 of the 1987 Constitution expressly requires

Senate approval for a treaty to become "valid and effective," but is silent on
treaty withdrawal. President Rodrigo Duterte has seized upon the textual gap
to withdraw the country from the Visiting Forces Agreement (VFA) with the
United States of America (US), and to do so on his own without Senate
approval. On March 20, 2020, through Resolution No. 39, the Philippine
Senate tasked the Supreme Court to interpret the meaning of silence.2

Senate President Vicente C. Sotto III argues that because "the

Executive and the Legislative branches of government have a shared
competency on treaty-making [...] the concurrence of the Senate is [likewise]
necessary [for] its abrogation." 3 Just two years prior, in Pangilinanv. Cayetano-
the ICC UithdrawalCase-the Office of the Solicitor General (OSG) advanced
an opposing school of thought. The OSG argued that because the
Constitution expressly requires Senate concurrence for ratification but is silent
on withdrawal, treaty termination is within the President's residual jurisdiction
and sole discretion. 4

1 NICCOLO MACHIAVELLI, THE PRINCE 57 (Penguin Books, 2004) (1532).

2 S. Res. No. 39 18th Cong. 1st Sess. (2020). Resolution Asking the Honorable
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.
3 Address by Vicente Sotto III, Speech of Senate President Vicente C. Sotto III on Proposed
Senate Resolution 337 asking the Supreme Courtof the Philippinesto rule on whether or not the concurrence
of the Senate is necessay in the abrogation of a treay previousy concurred in by the Senate, SENATE
WEBSITE, Mar. 2, 2020, at https://www.senate.gov.ph/pres srelease/2020/0302_prib2.asp
4 Office of the Sol. Gen. Consol. Comment (On the Petitions for Certiorari and
Mandamus dated May 16, 2018 and June 8, 2018) [hereinafter "OSG Comment'], ¶ 60,
Pangilinan v. Cayetano, GR. No. 238875 & G.R. No. 239483, July 6, 2018.
2020] TREATY TERMINATION 711

The Senate and the Solicitor General stand on opposite sides of the
same coin. They recognize that the Constitution is silent on treaty withdrawal
but construe that void differently. Their ends conflict, yet their error is shared:
hyper-textualism.

This paper adopts a third approach. By shifting the focus from the
written text to the unwritten tenet, it defines the unspoken limits to
presidential treaty power free from the faults of Philippine formalism.

Part I looks at the history and treaty status of the VFA. Part II
continues by summarizing the opposing views advanced by the Senate and
OSG regarding treaty withdrawal. Part III reviews the 1987 Constitution's
treaty regime as interpreted in Philippine Supreme Court jurisprudence.
Lastly, Part IV confronts the crux of the issue: first, by addressing whether
legislative imprimatur is needed for treaty withdrawal; and second, by
identifying in which legislative body the authority is lodged.

I. THE VFA IN A NUTSHELL

Though Article VII, Section 21 provides for the general paradigm of

treaty entry, the 1987 Constitution codifies a special provision that applies to
treaties which involve the presence of foreign military bases, troops, or
facilities in the Philippines.5

Article XVIII, 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 the other contracting State.

Article XVIII, Section 25 of the 1987 Constitution disallows foreign

military bases, troops, or facilities in the country, unless the agreement is: (a)
entered into by treaty; (b) duly concurred in by the Senate and, when so
required by Congress, ratified by a majority of the votes cast by the people in

5 Bayan v. Zamora [hereinafter "Bayan'], GR. No. 138570, 342 SCRA 449, 482,
Oct. 10, 2000.
712 PHILIPPINE LAWJOURNAL [VOL. 93

a national referendum; and (c) recognized as a treaty by the other contracting

state.6

Pursuant to this provision, on October 5, 1998, then President Joseph

Estrada ratified the VFA between the Philippines and the US. In line with
Article VII, Section 21 of the 1987 Constitution, 7 the treaty was transmitted
to and concurred in by the Senate on May 27, 1999.

The VFA consists of two documents: the "Agreement Regarding the

Treatment of US Armed Forces Visiting the Philippines" and the "Agreement
Regarding the Treatment of RP Personnel Visiting the USA" ("Counterpart
Agreement"'). Generally speaking, the VFA regulates the visits of Philippine
and US military personnel and further defines matters of criminal jurisdiction
inter alia.8 According to the Department of Foreign Affairs Secretary
Theodore Locsin, the treaty affects Philippine legal order by:

1. Ensuring operability of other Philippines-US defense

arrangements and modalities of cooperation;

2. Allowing the US to provide a total-package approach on

defense articles that would be compatible with equipment,
assets, and systems that are already in place;

3. Promoting interoperability between the Philippines' forces

and law enforcement agencies and their US counterparts; and

4. Allowing for the continued support for addressing non-

traditional security threats.

The constitutionality of the VFA was challenged and upheld by the

Philippine Supreme Court.9 In Bayan v. Zamora and Nicolas v. Romulo, the

6 Nicolas v. Romulo [hereinafter "Nicolas"], G.R. No. 175888,

578 SCRA 438, 456,
Feb. 11, 2009.
7 CONST. art. VII, § 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."
8 Bagan, 342 SCRA 449, 484. See, generally, Agreement between the Government of
the Republic of the Philippines and the Government of the United States of America
Regarding the Treatment of United States Armed Forces Visiting the Philippines, arts. V, VII,
VIII, Feb. 10, 1998, Phil.-U.S., available at https://www.officialgazette.gov.ph/1998/02/10/
agreement-between-the-government-of-the-republic-of-the-philippines-and-the-government-
of-the-united-states-of-america-regarding-the-treatment-of-united-states-armed-forces-
visiting-the-philippines-f
9 Id; Nicolas, 578 SCRA 438, 456; Arigo v. Swift, G.R. No. 206510, 735 SCRA 102,
Sept. 16, 2014; Laude v. Jabalde, G.R. No. 217456, 775 SCRA 408, Nov. 24, 2015.
2020] TREATY TERMINATION 713

respective petitioners therein claimed that the VFA was not recognized by the
US as a treaty but as an executive agreement, thus failing to satisfy the third
treaty-requisite enshrined in Article XVIII, Section 25 of the 1987
Constitution.

With much controversy, the Supreme Court rejected the contention.

In stark conflict with the language of the Constitution which requires a
military-base agreement to be "recognized as a treaty by the other contracting State,"
the Court ruled that it was "not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require the other
contracting State to convert their system to achieve alignment and parity with
ours." 10 All that was required was for the agreement to be recognized in order
to be legally binding. The fact, therefore, that the US recognized the VFA as
an executive agreement was sufficient. 11 The Court ruled:

[I]t is inconsequential whether the United States treats the VFA only
as an executive agreement because, under international law, an
executive agreement is as binding as treaty. To be sure, as long as the
VFA possesses the elements of an agreement under international
law, the said agreement is to be taken equally as a treaty.12

The Supreme Court ignored the difference between a treaty and an

executive agreement recognized in Philippine legal order. Interestingly, it
further implied that the VFA did not need to undergo a senate ratification
process at all because the VFA was, in truth, but an implementing agreement
of a pre-existing compact, the Mutual Defense Treaty (MDT).

Accordingly, as an implementing agreement of the RP-US Mutual

Defense Treaty, it was not necessary to submit the VFA to the US
Senate for advice and consent, but merely to the US Congress under
the Case-Zablocki Act within 60 days of its ratification. It is for this
reason that the US has certified that it recognizes the VFA as a
binding international agreement, i.e., a treaty, and this substantially
complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.13

According to the Supreme Court, the VFA's form was a moot issue.
Having merely implemented the provisions of the MDT, the VFA could have
been entered into as an Executive Agreement ab initio.

10 Nicolas, 578 SCRA 438, 466-467.

11 Id. at 467.
12 Baan, 342 SCRA 449, 488.

13 Nicolas, 578 SCRA 438, 461.

714 PHILIPPINE LAWJOURNAL [VOL. 93

The VFA being valid and effective, the Philippines and the United
States subsequently entered into the Enhanced Defense Cooperation
Agreement (EDCA) via executive agreement, 14 which "authorizes the US
military forces to have access to and conduct activities within certain 'Agreed
Locations' in the Philippines." 15 The EDCA was likewise challenged before
and upheld by the Supreme Court for failing to comply with Article XVIII,
Section 25 of the 1987 Constitution. The Court rejected the contention, ruling
that the EDCA merely enforced the provisions of the VFA and the MDT and
could thus come in the form of an executive agreement. 16

On January 23, 2020, a day after presidential ally Senator Ronald

"Bato" dela Rosa's US visa was confirmed to have been cancelled, 17 Duterte
threatened to withdraw the Philippines from the VFA. A Notice of
Withdrawal was sent to the US Embassy on February 11, 2020. Pursuant to
Article IX of the VFA, the termination would have taken effect 180 days
thereafter, or on August 2, 2020.18

In "light of political and other developments in the region," on June

1, 2020 Duterte ordered the suspension of the Philippines' withdrawal from
the VFA for a period of six months. 19

14 Agreement Between the Government of the Republic of the Philippines and the
Government of the United States of America on Enhanced Defense Cooperation, Apr. 28,
2014, Phil.-U.S., available at https://www.officialgazette.gov.ph/downloads/2014/04apr/
20140428-EDCA.pdf
15 Saguisag v. Ochoa, GR. No. 212426, 779 SCRA 241, 317, Jan. 12, 2016.
16 I. at 403.
17 Aika Rey, Dela Rosa confirms U.S. visa canceled, RAPPLER, Jan. 22, 2020, at
https:/ /www.rappler.com/nation/249936-b ato-dela-rosa-confirms-us-visa-canceled-january-
2020
18 Agreement between the Government of the Republic of the Philippines and the
Government of the United States of America Regarding the Treatment of United States
Armed Forces Visiting the Philippines, art. 9, Feb. 10, 1998, Phil.-U.S., available at
https://www.officialgazette.gov.ph/ 1998/02/ 10/agreement-between-the-government-of-
the-republic-of-the-philippines-and-the-government-of-the-united-states-of-america-
regarding-the-treatment-of-united-states-armed-forces-visiting-the-philippines-f. Duration
and Termination This agreement shall enter into force on the date on which the parties have
notified each other in writing through the diplomatic channel that they have completed their
constitutional requirements for entry into force. This agreement shall remain in force until the
expiration of 180 days from the date on which either party gives the other party notice in
writing that it desires to terminate the agreement.
19 DFA Note Verbale No. 2020-2622 (June 1, 2020), available at
https://www.pna.gov.ph/articles/1104738
2020] TREATY TERMINATION 715

II. A BATTLE OF THE BRANCHES

Senate Resolution 39, series of 2020 marks the first occasion the
majority bloc of the Philippine Senate challenged Dutertian rule. Through the
Resolution, the Senate asked the Supreme Court to order Duterte to obtain
Senate concurrence to validly withdraw from the VFA. Senate President Sotto
invoked what may be referred to as the acte contraire theory-or more plainly,
the "mirror principle"-which requires treaty termination to "reflect" the
procedure of treaty conclusion. This rule of construction suggests "[t]he same
degree of legislative participation [be] legally required to exit from as to enter
an international commitment." 20

Interestingly, Senate Resolution 39 is a 180-degree turn-around from

the majority bloc's sentiment less than two years prior. 21 Today, the
majoritarian sentiment echoes the minority opposition's views in the ICC
Wl ithdrawalPetitions.

A. Majoritarian Echo of Minority Views

The VFA debacle is a familiar story. On March 17, 2018, Duterte

ordered the Philippines' withdrawal from the Rome Statute. 22 Opposition
senators Francis N. Pangilinan, Franklin M. Drilon, Paolo Benigno Aquino
IV, Leila M. De Lima, Risa Hontiveros, and Antonio F. Trillanes IV-a
minority bloc-challenged the constitutionality of the withdrawal before the
Philippine Supreme Court in the ICC Withdrawal Case.23 Like the majority bloc
after them, they likewise argued that because the 1987 Constitution expressly
requires Senate concurrence to make a treaty "valid and effective," 24 treaty-
termination requires concomitant senatorial imprimatur 25 an argument
echoed in two subsequent petitions filed by the Philippine Coalition for the
International Criminal Court (PCICC)26 and the Integrated Bar of the

20 Harold Hongju Koh, PresidentialPowerto Terminate InternationalAgreements,128 YALE

L.J. 432 (2018).
21 S. Res. No. 289, 17th Cong.1st Sess. (2017). Resolution expressing the sense of the
Senate the Termination of, or Withdrawal from, Treaties and International Agreements
concurred in by the Senate shall be valid and effective only upon Concurrence by the Senate.
See also S. No. 63, 17th Cong. (2017).
22 ICC Statement on The Philippines'notice of withdrawal:State partzcipationin Rome Statute
system essential to internationalrule of law, ICC Press Release, ICC WEBSITE, Mar. 20, 2018, at
https://www.icc-cpi.int/Pages/item.aspx?name=prl371.
23 Pangilinan v. Cayetano, G.R. No. 238875, May 16, 2018.
24 CONST. art. VII, § 21.
25 Pangilinan v. Cayetano, G.R. No. 238875, May 16, 2018.
26 Petition for Certiorari and Mandamus [hereinafter "PCICC Petition'], ¶ 1, Phil.
Coal. for the Intl Criminal Court (PCICC) v. Exec. Sec'y, G.R. No. 239483, June 8, 2018. The
716 PHILIPPINE LAWJOURNAL [VOL. 93

Philippines (IBP), respectively 27 (collectively, the ICC TiYthdrawal Petitions). All

three petitions build off a fundamental constitutional law doctrine: the
separation ofpowers.

Under the Philippine legal framework, "legislation belongs to

Congress, execution to the executive, and settlement of legal controversies to
the judiciary." 28 The PCICC argues:

[O]nce a treaty has been submitted to the Senate for its concurrence
and has in fact received the Upper House's concurrence, it likewise
ceases to be the subject of the exclusive prerogative of the office of
the Chief Executive. It becomes a shared duty of the Executive and
the Legislature; it becomes subject to the system of checks and
balances inherent in the very notion of the separation of powers. 29

Invoking the case of Pharmaceuticaland Health Care Association of the

Phikppines v. Health Secretary Duque,30 the PCICC argues that "[t]reaties become
part of the law of the land through transformation under Article VII, Section
21 of the Constitution" and are thus "transformed into municipal law that can
be applied to domestic conflicts." 31 Since the Rome Statute has been
"transformed into domestic law via the concurrence of at least two-thirds of
all members of the Senate in an appropriate resolution," 32 the Supreme Court
is asked to declare the unilateral withdrawal void, and to compel "the
Executive Department to submit the question of the constitutional necessity
and propriety of such withdrawal to the Senate of the Philippines for its
concurrence." 33

PCICC "is an NGO of individuals and corporate entities that campaigned for the Philippines
to become a State Party to the Rome Statute and is duly established under the laws of the
Republic of the Philippines." See also About the PCICC, PCICC WEBSITE, at
https://pcicc.wordpress.com/about.
27 Seegeneral/y Petition for Certiorari and Mandamus, Integrated Bar of the Phil. (IBP)
v.Exec. Sec'y [hereinafter "IBP Petition"], G.R. No. , Aug. 22, 2019. See also
About Us, PCICC WEBSITE, atwww.ibp.ph/about.html
28 JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY 678 (3d, 2009); Angara v. Electoral Comm'n, 63 Phil. 139, 156
(1936).
29 PCICCPetition, ¶ 70.
30 G.R. No. 173034, 535 SCRA 265, Oct. 9, 2007.
31 PCICCPetition, ¶ 94.
32 Id. ¶ 95.

33 Id. at 2.
2020] TREATY TERMINATION 717

The same theory is further nuanced in the IBP Petition:

The constitutional doctrine of separation of powers co-exists with

equally important constitutional doctrine of sharing of powers. The
doctrine of sharing of powers is reflected in the various provisions
of the 1987 Constitution requiring two branches of government to
act together in order to take the required legal action... "One of
the mechanisms of sharing of powers is the power to enter into
treaties or international agreements as provided in Sec. 21, Article
VII[.]34

The IBP petition likewise rightfully distinguishes treaty-sourced rules,

which "have the force and effect of the provisions of a statute enacted by
Congress," 35 from mere executive agreements, which "do not have the force
and effect of the statutory provisions" and "must [thus] conform to existing
statutes." 36 Because treaties are given equal juridical status with traditional
legislation, "withdrawal from a treaty is tantamount to the repeal of a domestic
law" 37 in "violation of Section 2, Article VI of the 1987 Constitution[,] which
vests the legislative power in the Congress." 38

The petitions conclude with the acte contrairedoctrine: the power to do

confers the power to undo. 39 What is thus "required to withdraw from the
Rome Statute is the same action that the legislature performed to make the
Rome Statute valid and effective in the first place, i.e. through a concurrence
of at least two-thirds of members of the Senate."40

The petitions cite the South Africa High Court's DemocraticAlliance

Case41 and the United Kingdom Supreme Court's Miller v. Secretary of State42 to
support their common cause. In the former, the High Court of Gauteng
(Pretoria) "declared the withdrawal procedure initiated by the Republic of

34 IBP Petition,1134-35.
3s Id. ¶40.
36 d. ¶ 42.
37 Id. ¶ 59.
38 Id. ¶ 59.
39 Maria Frankowska, Competence of State Organs to Denounce a Treaty: Some Internaland
InternationalLegal Problems, in 7 POLISH Y.B. INTL L. 277, 278 (1975).
40 IBP Petition, ¶ 64.

41 Democratic All. v. Minister of Intl Rel. and Cooperation and Others (Council for
the Advancement of the South African Constitution Intervening) [hereinafter "Democratic
All."], (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP);
2017 (1) SACR 623 (GP), Feb. 22, 2017.
42 R (on the application of Miller and another) (Respondents) v. Secretary of State

for Exiting the European Union (Appellant) [hereinafter "R (Miller)"], (2017) UKSC 5, Jan.
24, 2017.
718 PHILIPPINE LAWJOURNAL [VOL. 93

South Africa in October 2016 null and void as it had not been approved by
Parliament." 43

The Court therein ruled:

It would have been unwise if the Constitution had given power to

the executive to terminate international agreements, and thus
terminate existing rights and obligations, without first obtaining the
authority of parliament. That would have conferred legislative
powers on the executive: a clear breach of the separation of powers
and the rule of law.

In sum, since [...] the national executive requires prior

parliamentary approval to bind South Africa to an intemational
agreement, there is no cogent reason why the withdrawal from such
agreement should be different. The national executive did not have
the power to deliver the notice of withdrawal without obtaining
prior parliamentary approval.44

The High Court declared the notice of withdrawal made without

parliamentary imprimatur to be unconstitutional and invalid. It thus ordered
"the President of the Republic of South Africa [...] to forthwith revoke the
notice of withdrawal." 45 An instrument of "withdrawal of notification of
withdrawal" was thereafter filed on March 7, 2017 with the UN Secretary
General. 4 6

On the other hand, the UK Supreme Court in Miller ruled that

because EU Treaties are a source of domestic legal rights, "the change in the
law must be made in the only way in which the UK constitution permits,
namely through Parliamentary legislation."47

Notably, these cases relied on by the ICC VithdrawalPetitionsbuild off

on the same theory of separation of powers in two ways. Democratic Alliance
highlights the procedural aspect, invoking the steps to do in order to undo,
while Miller examines the separation of powers substantively-that the

43 DemocraticAll., (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017]
2 All SA 123 (GP); 2017 (1) SACR 623 (GP), Feb. 22, 2017.
44 Id. at 1156-57.
4s Id. at ¶84.
46 See Intl Criminal Court, South Africa: Withdrawal of Notification
of Withdrawal,
C.N.121.2017.TREATIES-XVIII.10 (Depositary Notification) (Mar. 7, 2017), available at
https://treaties.un.org/doc/Publication/CN/2017/CN.121.2017-Eng.pdf
47 K (Miller), UKSC 5, at ¶ 121.
2020] TREATY TERMINATION 719

amendment of legal order is fundamentally a parliamentary, that is, legislative,

prerogative.

B. The OSG Theory

In the ICC Tithdrawal Case, the OSG adopted a textualist approach

and argued that "the language employed in the Constitution must be given
their ordinary meaning"-verba legis non est recedendum.48 It claimed that Article
VII, Section 21 of the 1987 Constitution is clear: Senate concurrence is
required for treaty ratification and for ratification alone.4 9 It argued:

[T]he decision to withdraw from a treaty is tacitly an executive

function. Had the framers of the Constitution intended to put a
limitation on the power to withdraw from a treaty, they would have
expressly required Senate participation in such act. But, they did
not.50

Diametrically opposing the petitioner's allegations, the OSG defends

the President's exclusive and plenary jurisdiction over treaty termination
through the same fundamental but unspoken principle: the separation of
powers. 51 "[H]ad it likewise been intended that treaty process be a legislative
act... such process would have been provided under Article VI of the
Constitution on the Legislative department, instead of Article VII on the
Executive department." 52 Instead, Article VII, Section 1 of the 1987
Constitution "confers the Executive power upon the President," under which
he acts as the "sole organ and authority in external affairs." 53 As "the Chief
Executive and architect of the nation's foreign policy, the President withdrew
from the Rome Statute sans the concurrence of the Senate" 54-a question of
policy and inherently a political determination. 55

The OSG argues treaty withdrawal is not, therefore, tantamount to

"an abrogation or repeal of a law, which is the sole function of the
legislature." 56 On the contrary, it is fundamentally executive in nature,

48 OSG Comment, ¶ 150.

49 Id. ¶ 152.
so Id. ¶ 60.
s1 Id. ¶¶64-65.
52 Id. ¶ 60.
53 Id. ¶ 58, citing Bayan, 342 SCRA 449, 494.
54 Id. ¶ 59.
S Id. ¶61.
56 Id. ¶ 95.
720 PHILIPPINE LAWJOURNAL [VOL. 93

considering Duterte was merely effecting what the Rome Statute expressly
allows: 57

[I]n giving the Instrument of Withdrawal dated 15 March 2018, the

President simply exercised his power to enforce and implement
laws, specifically Article 127 of the Rome Statute. The President,
thus, acted in full accordance with the terms of the treaty itself.
Verily, the President does not need Senate concurrence in the
implementation of laws, including treaties. 58

The OSG likewise dismissed the petitioners' reliance on the Democratic

Ai ance and Miller cases by simply pointing out how "the structure and design
of the Philippine Constitution is vastly different[.]" 59 Unlike in these foreign
contexts, the OSG claims that the 1987 Constitution, "in clear and
unambiguous terms, has given the President, as the head of the State and
government, the exclusive prerogative to conduct the country's foreign affairs
and serve as sole representative to foreign nations." 60

The Philippines' withdrawal from the ICC came into force on March
17, 2019 pursuant to the one-year period codified in Article 127 of the Rome
Statute. As with the VFA, the question a priori remains: Was the withdrawal
valid? 61

III. THE PHILIPPINE TREATY REGIME

A. Treaty Ratification: Historically a Shared

Power

The first official codification of a Philippine treaty clause in the

country's legal history was through the Malolos Constitution of 1899:

Article 66. Peace treaties shall not be definitive unless approved by the
Assemby through a vote.

Article 68. The President of the Republic needs to be authorized by a

special law:

57 See ROME STATUTE, art. 127.2.

58 OSG Comment, ¶ 106.
59 Id. ¶ 115.
60 Id. ¶ 151.
61 See Raphael Lorenzo Pangalangan, Mishearing the Sound of Constitutional Silence:

Unspoken Limits to PresidentialTreaty Power, ATENEO L.J. (forthcoming).

2020] TREATY TERMINATION 721

4. To ratify treaties of offensive and defensive alliance, special

commercial treaties, treaties that stipulate subsidies to a foreign
power, and any other treaty that compels Filipinos to perform any
individual obligation. 62

The clauses would be overtaken by history. After the Philippines

switched hands from the Spanish colonial regime to the American colonizing
power through the Treaty of Paris of 1898,63 the Philippines would be denied
treaty-making power. Under the 1902 Organic Act64 and 1916 Jones Law,65
the Philippines was treated as a sui generis adjunct to US legal order. The
country's legislation, jurisprudence, and treaty obligations were thus,
effectively, colonial creations. 66

Sovereign autonomy and the powers thereof would only once again
be vested in an independent Philippine government, at least in principle,
under the 1935 Constitution. Article VII, Section 11(7) thereof reflects the
modern language of the Philippine treaty clause: "The President shall have the
power, with the concurrence of a majority of all the Members of the NationalAssembly,
67
to make treaties[.]"

The 1935 Constitution would be amended to raise the voting

threshold from majority to a two-thirds supermajority standard, 68 similar to
that of the US Constitution. 69 Though briefly suspended under the 1943
Constitution of the Japanese imperial era, 70 the first post-colonial constitution

62 CONST. (1899), art. 66, 68. (Emphasis supplied.)

63 Treaty of Peace Between the United States and the Kingdom of Spain (Treaty of
Paris), Dec. 10, 1898, Spain-U.S., available at https://www.officialgazette.gov.ph/1898/12/
10/treaty-of-peace-between-the-united-states -of-america-and-the-kingdom-of-spain-treaty-
of-paris-signed-in-paris-december-10-1898
64 PHIL. ORGANIC ACT (1902).
65
JONES LAW (1916).
66 See e.g. Kuroda v. Jalandoni, 83 Phil. 171 (1949).
67 CONST. (1935), art. VII, §11(7). (Emphasis supplied.)
68 CONST. (1935), as amended, art. VII, § 10(7). "The President shall have the power,
with the concurrence of two-thirds of all the Members of the Senate to make treaties[]"
69 U.S. CONST. art. II, § 2, cl. 2 "He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided two thirds of the Senators present
concur[.]" See S. PRT. 106-71, 106th Cong. 2nd Sess. (2001). Treaties and Other International
Agreements: The Role of the United States Senate, A Study Prepared for the Committee on
Foreign Relations United States Senate by the Congressional Research Service Library of
Congress, available at https://www.govinfo.gov/content/pkg/CPRT-106SPRT66922/pdf/
CPRT-106SPRT66922.pdf
70 CONST. (1943), art. II, 12. "The President, with the concurrence of majority of
all its members, conclude treaties [.]"
722 PHILIPPINE LAWJOURNAL [VOL. 93

would be ultimately revived after the second world war and remain until the
dictatorship of Ferdinand E. Marcos, Sr. During his dictatorial regime, Marcos
attempted to reinvent Philippine legal order through the "New Society." A
new constitution-the 1973 Constitution-was put in place, under which the
legislative body, the Batasang Pambansa, likewise shared in the treaty-making
process: "Except as otherwise provided in this Constitution, no treaty shall be
valid and effective unless concurred in by a majority of all the Members of the
BatasangPambansa."7 1

It was not until the 1986 People Power Revolution that the dictator
Marcos was "forced out of office and into exile after causing twenty years of
political, economical and social havoc." 72 Corazon C. Aquino was declared
the President of the Philippine revolutionary government, 73 through which
the 1973 Constitution was abolished. In its void, Aquino issued Proclamation
No. 3 creating the Provisional 1986 Freedom Constitution. 74 The Freedom
Constitution did not codify a rule on treaty-making, though it has been
jurisprudentially recognized that the Philippines remained bound by principles
of international law.75

The Freedom Constitution would be later replaced by the present-day

1987 Constitution, which declares that, "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." 76

Since the inception of Philippine constitutional sovereign order,

notwithstanding veering political winds and concomitant shifts in legal
provision, treaty-making has remained a joint exercise of executive and
legislative power. 77

71 CONST. (1973), art. VII, § 14(1).

72 Marcos v. Manglapus, G.R. No. 88211, 177 SCRA 668, 683, Sept. 15, 1989. See
generally Raphael Lorenzo Pangalangan, Gemmo Bautista Fernandez & Ruby Rosselle Tugade,
MarcosianAtrocities: Histocal Revisionism and the Legal Constraints on Forgetting, 19 ASIA-PAC. J.
HUM. RTS. & L. 140 (2018).
73 Id. at 681.
74 Proc. No. 3 (1986), adopting a Provisional Constitution.
75 See Republic v. Sandiganbayan, G.R. No. 104768, 407 SCRA 10, 58 ,July 21, 2003.
76 CONST. art. VII, § 21.
77 Philippine treaty practice has not consistently complied with Article 7, Section 21.
For example, Optional Protocol 2 (OP2) to the International Covenant on Civil and Political
Rights is considered to be ratified, although no such concurrence was given by Senate.
Senators explain that the OP2 was considered "impliedly concurred in" through the passage
of RA 9346 abolishing the death penalty under Philippine penal laws. Notably, even legal
digressions recognize the need for legislative action. See S. No. 63, 17th Cong. (2017).
2020] TREATY TERMINATION 723

Under the 1987 Constitution, the power to ratify treaties remains

vested in the President, subject to the concurrence of the legislature. In its
current formulation, the acting legislative body is the Senate whose role is
limited to giving or withholding its consent to the ratification of treaties. 78
Once that consent is given, the treaty is automatically conferred the force and
effect of municipal law. Indeed, international law and municipal law are so
tightly entwined in Philippine legal tradition that, in case of express or implied
conflict, one would repeal another through the principle of lexposteriorderogat
prori.79 As will be shown in Part IV, this doctrine is one of two ways of
effecting treaty withdrawal.

B. Distinguishing Treaty from Executive

Agreement

Two types of international agreements 80 are recognized under

Philippine law: (i) treaties; and (ii) executive agreements. Executive Order 459,
series of 1997 draws a thin delineation between the two:

Treaties - international agreements entered into by the Philippines

which require legislative concurrence after executive ratification. 8 1

Executive Agreements - similar to treaties except that they do not

82
require legislative concurrence.

The "distinction" is circular and says nil on the ontological nuances

between the two species of interstate compacts. The Philippine Supreme
Court has attempted to fill that lacuna through two thresholds: substantiality
and po/ticalintent.

78 Pimentel v. Exec. Sec'y, G.R. No. 158088, 462 SCRA 622, 637, July 6, 2005.
79 Sec'y of Justice v. Lantion, G.R. No. 139465, 322 SCRA 160, 197, Jan. 18, 2000.
"[A] treaty may repeal a statute and a statute may repeal a treaty."
80 Exec. Order No. 459 (1997), providing for the Guidelines in the Negotiation of
International Agreements and its Ratification, § 2(a). "International agreement shall refer to a
contract or understanding, regardless of nomenclature, entered into between the Philippines
and another government in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments."
81 2)
82 2(c)
724 PHILIPPINE LAWJOURNAL [VOL. 93

First, in the 1961 case of Commissioner of Customs v. Eastern Sea Trading83

the Supreme Court ruled:

International agreements involving political issues or changes of

national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those
embodying adjustments of detail carrying out well established
national policies and traditions and those involving arrangements
of a more or less temporary nature take the form of executive
agreements. 84

The test of substantiality echoes the traditional separation of powers

framework: the creation of new law must come with legislative imprimatur
and, thus, be in treaty form. On the other hand, the mere "carrying out" or
the implementation of policies and traditions comes in the form of executive
agreements, which does not require legislative action.

Jurisprudence of more recent vintage has, however, taken a different

view. In Bayan Muna v. Romuo, 85 the Supreme Court expressly departed from
Eastern Sea Trading:

The categorization of subject matters that may be covered by

international agreements mentioned in Eastern Sea Trading is not
cast in stone. There are no hard and fast rules on the propriety of
entering, on a given subject, into a treaty or an executive agreement
as an instrument of international relations[...] Verily, the matter of
form takes a back seat when it comes to [the] effectiveness and
binding effect of the enforcement of a treaty or an executive
agreement. 86

Bayan Muna essentially echoes the EO 459 framework. What

distinguishes treaty from executive agreement is a question of political intent.
Indeed, EO 459 expressly vests the Department of Foreign Affairs, acting on
behalf of the President, the authority to determine and distinguish one from
the other. 87 Because the Constitution does not classify any subject to be within
or beyond the realm of treaty-form, "[t]he primary consideration [...] is the
parties' intent and desire to craft an international agreement in the form they

83 G.R. No. L-14279, 3 SCRA 351, Oct. 31, 1961.

84 Id. at 356.

85 GR. No. 159618 [hereinafter "Bayan Muna"], 641 SCRA 244, Feb. 1, 2011.
86 Id at 260-261.
87 Exec. Order No. 459 (1997), § 9. "The Department of Foreign Affairs shall
determine whether an agreement is an executive agreement or a treaty."
2020] TREATY TERMINATION 725

so wish in order to further their respective interests."88 It is only when the

parties involved agree to enter into a treaty, in contrast to any other type of
agreement, that the Constitution prescribes the "need [for the] concurrence
of the Senate by a vote defined therein to complete the ratification process." 89
Once that political choice is made through the President's and Senate's
ratifying acts, the treaty status is binding. Thus:

[A]n executive agreement that does not require the concurrence of

the Senate for its ratification may not be used to amend a treaty
that, under the Constitution, is the product of the ratifying acts of
the Executive and the Senate. The presence of a treaty, purportedly
being subject to amendment by an executive agreement, does not
obtain under the premises. 90

C. Treaty Amendment Adolfo v. CFI

The VFA Withdrawal Petition may be a recent problem, but that is

not to say it is a novel one. Half a century ago, the Philippine Supreme Court
faced a similar issue in Adolfo v. CFI, a case involving the US-RP Military
Base Agreement of 1947 and the custody over one Albert L. Merchant, who
was then charged for less serious physical injuries through reckless
imprudence.

Article 13(5) of the 1947 Military Bases Agreement provides:

2. The Philippines shall have the right to exercise jurisdiction over

all other offenses committed outside the bases by any member of
armed forces of the United States.

5. In all cases over which the Philippines exercises jurisdiction the

custody of the accused, pending trial and final judgment, shall be
entrusted without delay to the commanding officer of the nearest
base, who shall acknowledge in writing that such accused has been
delivered to him for custody pending trial in a competent court of
the Philippines and that he will be held ready to appear and will be
produced before said court when required by it. The commanding
officer shall be fumished by the fiscal (prosecuting attorney) with a

88 Id
89 Id
90 Id.
91 Adolfo v. Ct. of First Instance of Zambales [hereinafter "Adolfo"], G.R. No. L-
30650, 34 SCRA 166, July 31, 1970.
726 PHILIPPINE LAWJOURNAL [VOL. 93

copy of the information against the accused upon the filing of the
original in the competent court. 92

Merchant did not dispute that the crime he was charged with was
committed outside a military base in Barrio Manggahan, Subic, Zambales. He
claimed, however, that as a civilian component of the US Naval Base at Subic
Bay, he was not a member of the US armed forces within the purview of the
Bases Agreement. The petitioner, Municipal Judge of Subic Hon. Nicolas C.
Adolfo, rejected Merchant's claim, Article XIII(5) of the Base Agreement
having already been amended by the RP-US Mendez-Blair Agreement of
August 10, 1965. Allegedly, in its amended state, the Bases Agreement would
embrace military officers and civilian components alike. In his Order, the
petitioner advanced the view that:

[E]ven if the right of custody of a commanding officer over the

person of an accused civilian component of the base is not
prescribed by the original Base Agreement, nonetheless such a right
is now provided for in paragraph 5 of the Agreed Official Minutes
of the Agreement, entered into between the Philippines and the
United States on August 10, 1965, to wit: '5. In all cases over which
the Republic of the Philippines exercises jurisdiction, the custody of
an accusedmember of the United States' armed forces, dvlian
component, or dependent, pending investgation, trial and finaljudgment,
shall be entrustednithout delay to the commanding oficer of the nearestbase. 93

The Order was subsequently annulled by the respondent Court of

First Instance (CFI). Echoing the doctrine of the separation of powers, the
Supreme Court upheld the CFI Decision on the ground that the Mendez-Blair
Agreement had not been submitted to the Senate for ratification. Because the
President's treaty-making power is subject to the concurrence of the Senate,
the power to amend the same treaties is similarly vested in those organs. "The
Chief Executive, with all his vast powers, cannot suspend the operation of a
statute, afortiori he cannot exercise the greater power to amend or to revoke a
statute."

Absent senate concurrence, the Mendez-Blair "Agreement" remained

as a mere proposal. The making of the treaty having been undertaken under
the joint auspices of the President and the Senate, its amendment or revision

92 Agreement between the Republic of the Philippines and the United States of

America Concerning Military Bases, art. XIII, Mar. 14,1947, Phil.-U.S., 61 Stat. 4019, T.I.A.S.
No. 1775.
93
Adolfo, 34 SCRA 166, 168.
2020] TREATY TERMINATION 727

must similarly be undertaken by both agencies of the State as directed by the

Constitution.

Though Adolfo was decided under the 1935 Constitution, it remains

good case law. But as will be shown in Chapter IV(B), that is not to say that
it is the only law applicable to amending treaty limits.

IV. UNSPOKEN LIMITS TO PRESIDENTIAL TREATY POWER

A. Treaty Termination: Ontological Query

Under the principle of separation of powers, the making of laws is

allocated to the legislative department, its enforcement to the executive
department, and the settlement of disputes to courts of justice. 9 4 In the ICC
WYithdrawal Case, the OSG had argued that treaty-withdrawal is a policy
decision falling within the President's exclusive jurisdiction as chief architect
in foreign relations. The OSG is mistaken. Considering how international law,
may it be conventional or customary, is given equal juridical status with
municipal law under the 1987 Constitution, 95 its modification is fundamentally
legislative in character.

Placed left, right, and center of the VFA Tithdrawal Case is thus a
question of ontology. The status of the VFA as a treaty determines not only
how we bind, but also, how we unbind ourselves from it. The OSG would
argue that the judicial branch should defer to presidential prerogative and rule
in favor of the withdrawal's validity. The OSG is only partially correct. When
the President submitted the VFA to the Senate for its approval, he lifted the
agreement from the executive realm to the legislative realm and thus subjected
it to legislative processes. For the Supreme Court to now decide that treaty
withdrawal requires legislative imprimatur would be to engage in neither
judicial overreach nor judicial activism. On the contrary, it would be an
exercise of judicial restraint. For the Court to decide that legislative approval
is required to abrogate a treaty previously concurred in by the Senate, the
Court is giving full effect to the President's decision to bring in the
congressional arm in the treaty-making process. It is the Supreme Court
standing by the executive's characterization of an international agreement qua
treaty law within the system of checks and balances.

94 Santiago v. Guingona, G.R. No. 134577, 298 SCRA 756, 773, Nov. 18, 1998, citing
Javellana v. Exec. Sec'y, G.R. No. L-36142, 50 SCRA 30, 84, 87, Mar. 31, 1973.
95 Poe-Llamanzares v. Comm'n on Elections, GR. 221697, 786 SCRA 1, Mar. 8,
2016, citing Razon v. Tagitis, 621 Phil 536, 600 (2009).
728 PHILIPPINE LAWJOURNAL [VOL. 93

Declaring the unilateral withdrawal from the VFA unconstitutional is

deference to, and not a disregard of, the separation of powers.

It is a jurisprudentially recognized rule that an executive agreement

cannot amend a treaty, 96 yet Duterte now attempts to withdraw from the VFA
by mere presidential say-so. The President may be "the chief architect of
foreign policy," 97 but when foreign policy crystalizes into international law
which is of equal juridical status to municipal law under the 1987
Constitution-then its amendment or repeal is no longer only executive but
fundamentally legislative in character. Article VII, Section 21 of the 1987
Constitution codifies that framework by requiring the consent of two-thirds
of all the members of the Senate to give a treaty the force and effect of law.98
Though constitutional text provides only for treaty conclusion, it is the same
underlying constitutional principle-the separation of powers-that requires
legislative imprimatur for treaty termination. Duterte himself has subscribed
to this rule by time and again submitting treaty amendments for Senate
concurrence. 99

Under the 1987 Constitution, treaty limits cannot be altered by mere

executive agreement.1 00 Having established that the principle of the separation
affords Congress a role in treaty conclusion and termination alike, all that is
left to be determined is the form legislative imprimatur must take. In this
respect, the 1987 Constitution is no longer silent.

B. Legislative Imprimatur: Senate or

Bicameral Action?

Invoking the principle of acte contraire, Senate President Sotto argues

that the Senate is the proper legislative body to "concur" in treaty withdrawal.
So the argument goes: "If a treaty in force has the status of municipal law, it
follows by necessary implication that the Senate-as part of the legislative
branch should have a say on its fate." 101

96 Bayan Muna, 641 SCRA 244, 263.

97Akbayan v. Aquino, G.R. No. 170516, 558 SCRA 468, 534, July 16, 2008, citing
Bayan, 342 SCRA 449, 494.
98 See Tahada v. Angara, G.R. No. 118295, 272 SCRA 18, 81, May 2, 1997, but see
MERLIN MAGALLONA, THE PHILIPPINE CONSTITUTION AND INTERNATIONAL LAW 64 (2013)
on the doctrine of transformation.
99 See e.g. S. Res. No. 95, 17th Cong. 2nd Sess. (2018). Resolution Concurring in the
Accession to the Protocol of 1997 to Amend the International Convention for the Prevention
of Pollution from Ships, 1973, as Modified by the protocol, of 1978 Relating Thereto.
100 Id
101 Ryan Hartzell Carino Balisacan, Was President Duterte's unilateralwithdrawal of the
Philippinesfromthe Rome Statute legaly valid?CAMBRIDGE INT'L L.J. (2018). See also Ryan Hartzell
2020] TREATY TERMINATION 729

Though syllogistically sound, a real problem remains: filed before the

courts is a question of law, not logic. Unfortunately, these two realms are not
necessarily co-extensive. 102 As observed by Professor Hannah Woolaver,
Associate Professor in International Law at the Public Law Department of
the University of Cape Town, of those states that have codified rules on treaty
withdrawal, most "apply distinct rules to joining and leaving treaties."
Interestingly, these states leave treaty withdrawal to the sole discretion of the
executive. 103 The mirror principle thus lacks legal footing not only in the
Philippines, but also beyond its borders in state practice.

Petitioners rightfully argue that upon ratification by the Senate, a

"treaty acquires the status of a municipal law" and may thus "amend or repeal
a prior law and vice-versa[.]" 10 4 As a form of law, the treaty's amendment or
repeal should be subject to the same rules of law. Under the 1987 Constitution,
legislative power is vested in Congress, "which consists of a Senate and a House
of Representatives." 105 Following the legal submission to its logical
conclusion, the legislative role in treaty withdrawal cannot be claimed by the
Senate per se but by the legislature in general.

Legislative power having been vested in a bicameral Congress, the

legislative role in treaty termination cannot be claimed solely by the Senate.
Absent a special provision conferring treaty withdrawal power to any
particular body, the general rules of law-making apply. Legislative imprimatur
must, therefore, take either one of two forms: (i) a statute passed by both the
Senate and the House of Representatives; or (ii) a subsequent treaty through
the principle of lexposteriorderogatpriori(a later law repeals an earlier one).

Carino Balisacan, Potential Legal Challenges to President Rodrigo Duterte's Decision to Withdraw the
Philippinesfromthe Rome Statute, 91 PHIL. L.J. 774, 783 (2018). "If a treaty in force has the status
of municipal law, does it not follow that the Senate, as part of the legislative branch, should have
a say in its fate? Giving the President the unfettered discretion to terminate treaties vests him
wit legislative power that he could not otherwise exercise vis-d-vis ordinary municipal laws.
While considerations of foreign policy and matters of state, which are within the province of
the executive, might urge this differential treatment for treaties, [...] the solution most
consistent with the constitutional order is for the President and the Senate to share treaty-
termination powers, as they do treaty making."
102 See OLIVER WENDELLJR. HOLMES, THE COMMON LAW 1 (1881). "The life of the
law has not been logic; it has been experience." See also Prosecutorv. Ruto and Sang, Separate
Opinion Judge Eboe-Osuji, ICC-01/09-01/11, April 5, 2016, para. 314.
103 Hannah Woolaver, From Joining to Leaving: Domestic Law's Role in the International

Legal Validiy of Treaty Withdrawal, 104 EUR. J. INT'L L. 73, 76 (2019).

104 Suplico v. Nat'l Econ. and Dev. Auth. [hereinafter "Suplico"], G.R. No. 178830,
558 SCRA 329, 3 7 6 , July 14, 2008, citing Sec'y of Justice v. Lantion, 379 Phil. 165, 170, Jan. 18,
2000.
105 CONST. art. VI, § 1. See also § 26-27.
730 PHILIPPINE LAWJOURNAL [VOL. 93

To summarize, while the nature of the agreement may be a political

question, the political answer has long been given. Had the President chosen
to keep the VFA within his sole domain as Chief Executive, he could have
signed it as an executive agreement. The President could have signed it on his
own, and thus withdraw from it on his own as well. But when he decided to
treat the agreement as a treaty, he proclaims the need to go to the Senate hat
in hand for its approval. Once concurred in, the treaty is conferred the force
and effect of law equal to domestic legislation. Its amendment and repeal are
thus, likewise, subject to the rules of domestic and international law-making
under Article VI, Section 1 and Article VII, Section 21 of the 1987
Constitution.

V. CONCLUSION

The constraints on the President's power to withdraw from a treaty

may not be expressly imposed by constitutional text, but they are echoed
throughout Philippine constitutional tradition. Philippine jurisdiction has long
recognized that it is for the legislature to make laws, for the executive to
enforce them, and for the judiciary to settle disputes arising therefrom. In that
constitutional scheme, the Chief Executive cannot impair substantive rights.
No president, not even a populist leader such as Duterte, has the
constitutional authority to unilaterally withdraw from a treaty-a source of
substantive law equal to legislation under the Philippine domestic legal
framework.

Treaty withdrawal thus requires more than a mere executive act, but
legislative imprimatur. The issue that remains is determining the proper
legislative body. This paper submits that power is lodged with either: (i) the
bicameral Congress under traditional legislative processes; or (ii) the Senate
acting under Article VII, Section 21 of the 1987 Constitution. Like treaty
conclusion, and as is in line with the general framework of Philippine
constitutional tradition, treaty withdrawal is a shared power between the
executive and legislative branches-through a bill passed by both houses of
Congress and signed by the President, 106 or in the form of a subsequent treaty
made by the President and duly concurred in by the Senate. 107

Given all our troubles, one real problem is that we have the wrong
legal theory. Extreme formalism makes us see only what is familiar; we fail to
recognize old problems that come in new forms and different faces. The

106 Art. VI, § 26. See also § 27.

107 Art. VII, § 21. See also Suplico, 558 SCRA 329, 376.
2020] TREATY TERMINATION 731

separation of powers may be long-established, yet we remain blind to the fact

that the alleged lacuna legis in the provision has long been filled by age-old
principle. Yet in that same breath, we confine tenet to the text, failing to
distinguish between spirited legal interpretation and the wanton invocation of
a phantom provision.

Both the OSG and the Senate claim to champion the spirit of the
Constitution. They claim to uphold the ratio legis by invoking verba legis
interpretations of silence. Their formalism is flawed. The OSG claims that
silence leaves the matter to presidential discretion, ignoring the separation of
powers. The Senate, on the other hand, claims a role in treaty termination by
clinging to the same constitutional provision the OSG relies on. They feign
fidelity to both constitutional text and tradition, yet have revealed how true
loyalties lie with rote recitations of legal provisions.

The Tithdrawal Cases is symptomatic of a larger issue at play-one

that has permeated every level of legal order, from bar exam-fixated classroom
education to mechanized courtroom litigation: an infatuation with legal
text. 108 Philippine legal thinking has processed the otherwise complex by
attempting to unapologetically compartmentalize growing debates within the
confines of predefined codes, as if a lawyer's highest calling is to match
trenchant social problems with humdrum legal provisions. We should realize
that the issues of our time are rarely ever so simple. Legal jousting is not
simply a battle of text against tenet, verba versus ratio-it is the interminable
pas de deux of provision and principle.

Philippine legal order does not lack in doctrine; the Philippine legal
formalist lacks indoctrination. For the Philippine justice project to pave a way
forward, we must realize it is not enough for the law to be recapitulated,
reinterpreted, or redefined.

A legal culture must be reinvented.

- 000
-

108 See Raphael Pangalangan,Raising the Bar, PHIL. DAILY INQUIRER, May 2, 2020,
available at https://opinion.inquirer.net/129413/raising-the-bar