The case of Senator Joel Villanueva is of first impression[1], if only because it no longer involves just a question of preventive suspension, but of removal from public office of a sitting legislator as an administrative penalty.
The Supreme Court has ruled in a long line of cases that preventive suspension arising out of an administrative proceeding is not a penalty. In The Board of GSIS vs. Velasco, the High Court ruled that a preventive suspension “is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated.”
But the Ombudsman’s holding in Senator Villanueva’s case is not a question of preventive suspension but one of an order by a constitutional body to the legislature – in this case the Senate – to remove and dismiss a member of the Upper House.
Senator Villanueva, so the Ombudsman holds, is being punished for his participation in a ₱10-million scam involving the use of his pork barrel when he was a party-list congressman.
Hence, the question arises: may the Ombudsman, in fact, order the Senate to do so?
There is, at the very least, an apparent conflict between the Ombudsman’s dismissal order and Section 16(3), Article VI of the1987 of the Constitution, which provides the manner in which members of the Senate may be disciplined, suspended or expelled. It states:
Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.
The provision is clear: only the Senate has the power to determine the fitness to hold office of any of its members.
What this means is that the Ombudsman’s dismissal order will still go through a vote by all the members of the Senate to be implemented. And the threshold for an affirmative vote is two-thirds of all of its members.
As in any legal controversy, the final say will have to come from the Supreme Court, the final interpreter of what the law means. 
If and when the matter is brought up to the High Court, this will certainly be an opportunity for it to further clarify the metes and bounds of the powers of our Office of the Ombudsman as a constitutional body.

[1]a case in which a question of interpretation of law is presented which has never arisen before in any reported case.

Rep. Harry Roque supports Duterte’s possible abrogation of EDCA

The President may abrogate Philippine commitments under the Enhanced Defense Cooperation Agreement (EDCA) by himself because, as we have argued for so long, the document is not even a treaty – lopsided as it already is in favor of American interests – and it is well within his prerogative as chief architect of the nation’s foreign policy.

That it is within presidential prerogative to recall a treaty for any international agreement for that matter is ironically confirmed by US law and practice.

The Third Restatement of the Foreign Relations Law of the United States – an authoritative commentary on international law and international relations– states thus: [T]he President has the power: (a) to suspend or terminate an agreement in accordance with its terms; [and] (b) to make the determination that would justify the United States in terminating or suspending an agreement because of its violation by another party or because of supervening events, and to proceed to terminate or suspend the agreement on behalf of the United States.[1]

In so far as contemporary American practice itself is concerned, a leading American legal scholar, Prof. Henkin, has likewise opined that “[a]t the end of the twentieth century, it is apparently accepted that the President has authority under the Constitution to denounce or otherwise terminate a treaty. . .”[2]

In any case, the US has not and does not even treat the EDCA as well as the Visiting Forces Agreement (VFA), from which EDCA is traced by Philippine authorities, as a treaty. Both of these documents have not been ratified by the US Senate. VFA, on the other hand, has had to go through the constitutional process through the treaty clause of the 1987 charter. EDCA was justified by the Supreme Court as a mere ancillary agreement proceeding from the VFA itself.

In our system, as our Supreme Court has held in Pimentel v. Executive Secretary, in which we lost a challenge to the initial decision of the Chief Executive (then President Gloria Macapagal Arroyo) not to send the ratification papers of the Rome Statute of the International Criminal Court to the Senate for the latter’s concurrence under the Treaty Clause:

The President, being the head of state, is regarded as the sole organ and authority in external relations and is the country’s sole representative with foreign nations. As the chief architect of foreign policy, the President acts as the country’s mouthpiece with respect to international affairs. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole authority to negotiate with other states.[3]

The President can withhold the ratification papers of a treaty from the Senate. He can likewise decide to abrogate treaty commitments as the chief architect of Philippine foreign policy.

In any case, President Duterte is not without precedent from American practice itself. We can cite US President George W. Bush, who “unsigned” the Rome Statute that established the International Criminal Court (ICC) and had earlier been signed by his predecessor, Bill Clinton.

Unlike the US, the Philippines remains a party to the world’s first permanent international criminal tribunal established to try the most heinous of international crimes. In fact, a Filipino sits as a judge at the IC, former UP College of Law Dean and former Inquirer publisher Raul Cano Pangalangan, who just made a name for himself by sentencing an ISIS member to a jail term for the war crime of the destruction of a historical site, in a landmark ruling.

The US reason for unsigning, of course, is that it does not want to be subject to such an international mechanism for accountability for international crimes.

But again, the Rome Statute is a treaty, while the EDCA is not under US practice, so there is all the more reason for President Duterte to withdraw our commitments to the EDCA.

In the case of President Duterte, his decision to abrogate from the EDCA, if it comes to that, is for the interest of the Filipino people, precisely because the EDCA in an unequal agreement. As shown by the case of Jennifer Laude, like the VFA, the EDCA continues to prioritize the welfare of US servicemen on Philippine soil and makes short shift of Philippine sovereignty.

Moreover, by the smallest measure of subterfuge, the EDCA violates the constitutional provision that no foreign military bases may be allowed on Philippine soil except under a treaty ratified by the Senate (Section 25, Article XVIII).

In addition, contrary to claims by American and Philippine authorities, there is no provision at all in the agreement expressly obligating the US armed forces to transfer military hardware and technology to the AFP, under EDCA.




[3] G.R. No. 158088, July 6, 2005

Statement of Rep. Harry L. Roque on the cancellation of the bilateral talks of Presidents Obama and Duterte

I stand behind and admire President Duterte’s espousal for an independent foreign policy. I am concerned, however, that the President’s undiplomatic language may unnecessarily cause diplomatic wrinkles, much like the cancellation of his bilateral talks with President Obama. An independent foreign policy need not result in the disturbance of friendly relations with our traditional allies. […] More →

Harry Roque files bill renaming Libingan ng Mga Bayani

Kabayan Party-list Representative Harry L. Roque filed a bill on Wednesday seeking to rename the Libingan ng Mga Bayani (LNMB) to Libingan ng Mga Bayani at Mga Dating Pangulo. Roque filed  House Bill 3287 in connection with President Rodrigo Duterte’s plan to bury the remains of former President Ferdinand Marcos at the LNMB. “It appears […] More →

Statement of Rep. Harry L. Roque on President Duterte’s threat to withdraw the Philippines’ membership from the United Nations

The threat of President Duterte to withdraw the Philippines’ membership from the United Nations (UN) is impulsive, imprudent, and contrary to the interests of the nation. The UN is an organization that embodies fundamental principles of international peace and cooperation. The Philippines has relied on the UN and its Charter in its defense against China’s […] More →

Charter change will not help poor

Charter change will not help poor Originally published on July 6, 2016 10:30 pm by Llanesca T. Panti, The Manila Times Charter change will not help poor – lawmaker Amending the 1987 Constitution to implement federalism— a system wherein regions will be self-governing under a federal government—will not solve widespread poverty, a lawmaker said Wednesday. […] More →

Maligayang pagbati, Onesimo!


Maligayang pagbati sa mga nagtapos sa mga programa ng Onesimo Foundation!

Dumalo si Atty. Harry Roque ng KABAYAN Party List sa graduation ceremonies ng Onesimo Foundation.

“Sa lahat ng aking mga layunin at adbokasiya, ang Onesimo Foundation ang isa sa mga pinakamalapit sa aking puso. Ang Onesimo ay isang faith-based organization na tumutulong sa mga urban youth. Ang organisasyon na ito ay itinaguyod namin ng aking kaibigan na si Chris Schneider halos dalawang dekada na ang nakalipas. Si Chris ay isang Swiss na tapat ang pagmamahal at paglilingkod sa mga Pilipino. Nagsi More →

KABAYAN sa Aklan

KABAYAN sa Kalibo

KABAYAN sa Kalibo

Mayad-ayad nga hapon, Kalibo!
Saeamat sa inyong pagtanggap sa Team KABAYAN Party List!
Pangabay iboto KABAYAN Party List, #30 sa inyong balota!

#KABAYANPartyList #30KABAYANPartyList #HarryRoque

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KABAYAN sa Cauayan, Isabela


Atty Harry Roque ng KABAYAN Party List sa Cauayan, Isabela 4March2016

Naimbag nga bigat yu amin, Cauayan!
Salamat sa inyong pagtanggap sa KABAYAN Party List. Agyaman kami apo!

Sumama po kami nang dumalo si UNA standard bearer Jejemar Binay sa kanyang probinsiya, Isabela.

Pakiboto po KABAYAN Party List, #30 sa inyong balota!

#KABAYANPartyList #30KABAYANPartyList #HarryRoque

More →

KABAYAN sa Pondohan Series

KABAYAN sa Pondohan Series

KABAYAN sa Pondohan Series

Pakiboto po KABAYAN Party List #30 sa balota

#30KABAYANPartyList #KABAYANPartyList #HarryRoque

– More →