Crashing the party
No treaty or international agreement shall be valid unless concurred in by two-thirds of all the members of the Senate.” This is the constitutional language on the role of the Senate in the government’s treaty making power.
The diplomatic power, including the power to enter into treaties, is affirmatively conferred on the President. So says the Constitution’s Article on the Executive. The Senate participates but passively. Theirs is a checking mechanism that usually accompanies express grants of power to one branch.
Does this power to concur in entering into treaties also include the lesser power to concur in exiting from treaties? Sec. Harry Roque points out that there is no express mention anywhere of the Senate’ concurrence in withdrawing from treaties.
Shared power? Certain quarters would have Presidential decisions to withdraw subject to the same Senatorial veto. As far back as the planned EDCA withdrawal, we had already been hearing this chorus from the Liberal Party Senators. They are singing the same tune with President Rodrigo Roa Duterte’s ICC withdrawal. They argue that the treaty making power is exercised conjointly by the two branches.
This is a inaccurate depiction of the process. It is the President who enters into treaties. The Senate only concurs in what the President endorses to them. Its not the other way around.
We’ve been hearing a lot lately about the President’s architectural functions in the area of foreign policy. Jefferson, Hamilton, Montesquieu, among many others, located this power in the Executive. The indirect arguments, likewise, bolster the President’s predominant role in treaty making and unmaking. Notably, his is the office assigned to appoint and receive Ambassadors. This means his is the power to recognize foreign governments and engage in relations with them.
US Bases. This pre-eminent role in the conduct of foreign affairs is the reason why, whether or not we agree, the President alone can opt out of treaties. Justice Sutherland’s famous formulation of the Executive’s
functional advantage provides a key insight: “He, not Congress, has the better opportunity of knowing the conditions that prevail in foreign countries … He has his agents in the form of diplomatic, consular and other officials … “.
In the US, Presidents Bush and Carter both terminated treaties already ratified by the Senate. The Anti Ballistic Missile Treaty with the Soviet Union and the Mutual Defense Treaty with Taiwan. The Carter termination reached the US Supreme Court but the latter declined to rule, several of its members invoking political question grounds.
Assault on Congress. As if the daily cargo of burdens were not enough to give Congress pause, comes now this slew of attacks making their jobs even harder. First, the Faeldon frontal challenge on the Senators’ inquisitorial arrogance. Second, we have this sedition charge against Senator Sonny Trillanes for remarks made against the President in the Senate. Third, the spectacle of PCSO director Sandra Cam flouting decorum in her treatment of Reps. Arnie Teves and Danny Suarez in the House.
For many, a fight back against the oppressive atmosphere in congressional hearings is a matter deserving of support. Truly, Faeldon, Cam and co. are even hailed as heroes by those who could not summon the same audacity against Congressional scrutiny.
Return of the onions. Decency and dignity do lose their way in many an inquiry. There would be no hypersensitivity to this treatment if it were not pervasive. PRRD makes no secret of his distaste for this “hot seat” practice to the point of even daring his men to walk out of hearings. The very reason for the introduction of “respect for witnesses’ rights” in the 1987 Constitution was the pre-martial law experience with this legislative third degree.
Breaches of decorum should be inexcusable in hearings. But with more reason should the same be actionable if from the witnesses themselves. There is a fine but clear demarcation between badgering a witness for its own sake and the righteous thundering away to extract evidence clearly implicated by the facts. Yes, we have seen withering glowers and raised voices on the legislative floor from even the most respected members. They do cause great discomfiture but how many truths have they ferreted out, how much shenanigans exposed?
Our charge. Our Senators and Congressmen have a commitment to represent us the best way they can. Of course, norms of decency should guide them in their actions but never to the extent of distracting them from their avowed duties. And if, in the performance thereof, they are derailed in a manner questionable, they should take the necessary action to protect themselves.
I just don’t know if a resolution expressing their sense against a particular executive official is a good way to flex their muscle. Whether it is Mr. Faeldon or Ms. Cam, our legislators’ advice is, at best, advice to the President. If not followed, it puts the President in a spot and ends up diminishing Congress’s own stature.
Survival instincts. Contempt is another matter. This coercive power belongs to Congress as a matter of self preservation. They exercised it against a recalcitrant Commissioner Faeldon and, of course, they may exercise it against an unrepentant director Cam.
It would be more credible, however, if they were to train this lens first on themselves first. In so doing, they give heightened moral footing to any punishments meted out. They also sidestep accusations of being self-righteous.
A perfect opportunity comes with the case against Sen. Trillanes. There is no serious dispute that the Senators enjoy absolute immunity for remarks made on the Senate floor. But this does not exempt them from their own chamber’s discipline.
Congress has actually exercised this self rebuke in the past. The case of Cong. Sergio Osmena Jr. comes to mind where the House, dominated by the President’s party men, suspended him for 15 months for his privilege speech alleging corruption against President Carlos P. Garcia.