IMPLEMENTATION OF INTERNATIONAL AGREEMENTS IN THE REALIZATION OF THE ASEAN CHARTER By: Solomon M. Hermosura and Sandra Luna-Arias 1 Philippine National Committee, ASEAN Law Association The President of the Philippines negotiates, concludes and implements international agreements. 1. As mandated by the 1987 Philippine Constitution, legislative power shall be vested in the Congress, 2 executive power... in the President, 3 and judicial power... in one Supreme Court and in such lower courts as may be established by law. 4 2. The Supreme Court has ruled that the President has the sole authority to negotiate and enter into treaties 5 or international agreements. 6 The President also implements international agreements. 7 The power to enter into an international agreement is in essence an executive power. 8 The President determines if an international agreement should be in the form of a treaty or executive agreement. 1. Under Executive Order (EO) No. 459 (1997), the President may enter into an international agreement either in the form of a treaty or executive agreement. 9 2. Treaties require legislative concurrence after executive ratification. 10 The Constitution provides that no treaty shall be valid and effective unless concurred in by at least twothirds of all the Members of the Senate, 11 one of the two houses of Congress. 1 Mr. Hermosura is the General Counsel of Ayala Corporation and Managing Principal of Ayala Group Legal, the inhouse legal unit of Ayala Corporation and Ayala Land Inc. and their subsidiaries. Ms. Luna-Arias is also a member of the Ayala Group Legal. 2 Article VI, Section 1. References to the Congress, the President, the Supreme Court and other offices and officers and to the Constitution and other laws are references to the officers and offices and laws of the Philippines unless otherwise indicated. 3 Article VII, Section 1 4 Article VIII, Section 1 5 Pimentel Jr. vs. Office of the Executive Secretary (2005), 462 SCRA 622 (citations omitted) 6 Bayan Muna vs. Romulo (2011), 641 SCRA 244 7 Bayan (Bagong Alyansang Makabayan) vs. Zamora (2008), 342 SCRA 449; Administrative Code of 1987, Book I, Section 51 8 Neri v. Senate Committee on Accountability of Public Officers and Investigations (2008), 564 SCRA 152 9 EO No. 459, Sections 1 and 2 10 Ibid, Section 2 11 Article VII, Section 21 1
3. On the other hand, executive agreements are similar to treaties except that they do not require legislative concurrence. 12 4. The Supreme Court has declared: Under international law, there is no difference between treaties and executive agreements in terms of their binding effects on the contracting states concerned, as long as the negotiating functionaries have remained within their powers. Neither, on the domestic sphere, can one be held valid if it violates the Constitution. Authorities are, however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement aspect. As has been observed by US constitutional scholars, a treaty has greater dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the President, the Senate, and the people; a ratified treaty, unlike an executive agreement, takes precedence over any prior statutory enactment. 13 5. It must be noted that the Supreme Court qualified its ruling that there is no difference between treaties and executive agreements in terms of their binding effect with the condition that the negotiating functionaries have remained within their powers. Consequently, the President may enter into an international agreement through an executive agreement only if the President can implement the agreement on his own, pursuant to the Constitution and existing laws, without the need of Congress. If Congressional action is needed for implementation, the agreement should be in the form of a treaty concurred in by the Senate, or should be subject to the reservation that certain measures for the implementation of the agreement is subject to the enactment by Congress of enabling legislation. 6. Thus, in 2003, President Gloria Macapagal-Arroyo concluded the Non-Surrender Agreement with the United States through an executive agreement in the form of Exchange of Notes. She could do so because, as the Supreme Court held, in agreeing to conclude the Agreement through Exchange of Notes, President Macapagal-Arroyo acted within the scope of the authority and discretion vested in her by the Constitution and she did nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her office. 14 7. On the other hand, then President Joseph E. Estrada chose treaty as the form for the 1998 Visiting Forces Agreement (VFA) between the Philippines and the United States. He thus sought the concurrence of the Senate to his ratification. This was pursuant to the Constitution which denied the President the authority to allow in the Philippines foreign military bases, troops or facilities except under a treaty duly concurred in by 12 EO No. 459, Section 2 13 Bayan Muna vs. Romulo, supra 14 Ibid 2
the Senate. 15 As held by the Supreme Court, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines and is subject to the constitutional requirement of a treaty. 16 Pursuant to the Philippine Constitution, the ASEAN Charter is a treaty and part of the law of the land. 1. On October 7, 2008, the Senate concurred with the ratification by the President of the ASEAN Charter. Thereafter, on November 3, 2008, the Philippines deposited its instrument of ratification with the Secretary General of the ASEAN. 17 2. The Senate concurrence to the ratification by the President transformed the ASEAN Charter into a treaty in accordance with the Constitution, which provides that a treaty or international agreement becomes valid and effective when concurred in by at least two thirds of all the Members of the Senate. 18 3. In accordance with the Vienna Convention on the Law of Treaties, to which the Philippines is a party, the Philippines is bound by the ASEAN Charter and must perform it in good faith. 19 4. It can also be said that the President can pursue the Purposes and Principles of ASEAN 20 independent of the ASEAN Charter. The Constitution declares that (T)he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 21 The Purposes and Principles of ASEAN are consistent with this State policy. The realization of the ASEAN Charter will entail the implementation of measures approved by the ASEAN Summit. 1. The ASEAN Summit, composed of the Heads of State or Government of the Member States, is the supreme policy making body of ASEAN. 22 2. The ASEAN Summit shall... deliberate, provide policy guidance and take decisions on key issues pertaining to the realisation of the objectives of ASEAN, important matters of 15 Article XVIII, Section 25 16 Bayan (Bagong Alyansang Makabayan) vs Zamora, supra 17 http://www.asean.org/22054.htm 18 Article VII, Section 21 19 Article 26, Pacta sunt servanda 20 ASEAN Charter, Chapter 1 21 Article 2, Section 3 22 Article 7, par. 2 (a) 3
interest to Member States and all issues referred to it by the ASEAN Coordinating Council, the ASEAN Community Councils and ASEAN Sectoral Ministerial Bodies. 23 3. As a basic principle, decision-making in ASEAN shall be based on consultation and consensus. 24 Where consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made. 25 The Philippines may express its concurrence to measures for the realization of the ASEAN Charter through an executive agreement or a treaty. 1. The President may use an executive agreement if he can implement the measure pursuant to his powers. That would not be the case if the measure is prohibited by statutes enacted prior to the executive agreement because the President may not defeat legislative enactments by indirectly repealing the same through an executive agreement. 26 2. But the President rightly exercised his right to enter into an executive agreement in respect of the Agreement on the Privileges and Immunities of ASEAN dated October 25, 2009. The President can implement the Agreement without the need of an enabling legislation from Congress. The President has also implemented the removal of tariffs in compliance with certain ASEAN agreements because the Philippine Tariff and Customs Code authorize the President to modify or remove tariffs. 3. However, where a measure to implement the ASEAN Chapter requires an enabling legislation, the President shall use a treaty for the measure. A treaty, which shall be concurred in by the Senate, takes precedence over any prior statutory enactment. 27 The Philippines is a responsible ASEAN citizen and is in compliance with its ASEAN obligations. 1. Since the entry into force of the ASEAN Charter on December 15, 2008, the Philippines has been taking all necessary measures to implement the provisions of the Charter and comply with all obligations of membership. This paper will mention some of those measures. 2. The Philippines has established (a) the Office of ASEAN Affairs to serve as the ASEAN National Secretariat of the Philippines, (b) the Philippine Council for Regional Cooperation to address concerns arising from or within the context of the ASEAN, and 23 Article 7, par. 2 (b) 24 Chapter VII, Article 20, par. 1 25 Chapter VII, Article 20, par. 2 26 Gonzales vs. Hechanova (1963), 9 SCRA 230 27 Bayan Muna vs Romulo, supra 4
(c) the International Cooperation Services of the Department of Transportation and Communication to pursue agreements or projects under the ASEAN Charter relating to transportation. 3. The Philippines actively supports the establishment of the ASEAN Community, including the ASEAN Economic Community. It is part of the ASEAN-6 where [M]ore than 99 percent of the products in the CEPT [Common Effective Preferential Tariff] Inclusion List (IL) have been brought down to the 0-5 percent tariff range. As a result of the reduction or elimination of tariffs, (T)he ASEAN Free Trade Area (AFTA) has now been virtually established. 28 4. That the Philippines is a responsible citizen of the ASEAN is also shown by its prompt response to, and enthusiastic support for, the various declarations and agreements for the realization of the ASEAN Charter. For example, in May 2010, following the entry into force in December 2009 of the ASEAN Agreement on Disaster Management and Emergency Response (AADMER), the President signed into law the Philippine Disaster Risk Reduction and Management Act (Republic Act No. 10121) incorporating the principles set forth in the AADMER. 28 ASEAN website - http://www.asean.org/19585.htm 5