The ZTE "Executive Agreement" and E0 459

[atty36252]

If it is true, that the ZTE deal is an "executive agreement", it should have complied with Executive Order 459, quoted below.

Negotiations shall be made only with the participation of the DFA, as required by this EO and the Administrative Code of 1987. The authority to negotiate must be requested from the President, through the Secretary of Foreign Affairs.

Executive Agreements are like treaties, except that they do not require legislative concurrence. They may include compacts, conventions, declarations, or acts. There is no mention of commercial contracts.

Note too, the domestic requirements under Section 7, before the executive agreement takes effect.

MALACAÑANG
MANILA
BY THE PRESIDENT OF THE PHILIPPINES

EXECUTIVE ORDER NO. 459

PROVIDING FOR THE GUIDELINES IN THE NEGOTIATION OF INTERNATIONAL AGREEMENTS AND ITS RATIFICATION

WHEREAS, The negotiations of International agreements are made in pursuance of the foreign policy of the country.

WHEREAS, Executive Order No. 292, otherwise known as the Administrative Code of 1987, provides that the Department of Foreign Affairs shall be the lead agency that shall advised and assist the President in planning, organizing, directing, coordinating and evaluating the total national effort in the field of foreign relations.

WHEREAS, Executive Order No. 292 further provides that the Department of Foreign Affairs shall negotiate treaties and other agreements pursuant tom the instructions of the President , and in coordination with other government agencies;

WHEREAS, there is a need to establish guidelines to govern the negotiation and ratification of international agreements by the different agencies of the government.

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order:

SECTION 1. Declaration of Policy. - It is hereby declared the policy of the State that the negotiations of all treaties and executive agreements, or any amendment thereto, shall be coordinated with, and made only with the participation of, the Department of Foreign Affairs in accordance with Executive Order No. 292. It is also declared the policy of the State that the composition of any Philippine negotiation panel and the designation of the chairman thereof shall be made in coordination with the Department of Foreign Affairs.

SECTION 2. Definition of Terms.

1. 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 single instruments.
2. Treaties - international agreements entered into by the Philippines which require legislative concurrence after executive ratification. This term may include compacts like conventions, declarations, covenants and acts.
3. Executive Agreement - similar to treaties except that they do not require legislative concurrence.
4. Full Powers - authority granted by a Head of State or Government to a delegation head enabling the letter to bind his country to the commitments made in the negotiations to be pursued.
5. National Interest - advantage or enhanced prestige or benefit to the country as defined by its political and/or administrative leadership.
6. Provisional Effect - recognition by one or both sides of the negotiation process that an agreement be considered in force pending compliance with domestic requirements for the affectivity of the agreement.

SECTION 3. Authority to Negotiate. - Prior to any international meeting or negotiation of treaty or executive agreement, authorization must be secured by the lead agency from the President through the Secretary of Foreign Affairs. The request for authorization shall be in writing, proposing the composition of the Philippine delegation and recommending the range of positions to be taken by that delegation. In case of negotiations of agreements, changes of national policy or those involving international arrangements of permanent character entered in to the name of the Government of the Republic of the Philippines, the authorization shall be in the form of Full Powers and formal instructions. In case of other agreements, a written authorization from the President shall be sufficient.

SECTION 4. Full powers - The issuance of Full Powers shall be made by the President of the Philippines who may delegate this function to the Secretary of Foreign Affairs.
The following persons, however, shall not require Full Powers prior to negotiating or signing a treaty or an executive agreement, or any amendment thereto, by virtue of the nature of their functions:

1. Secretary of Foreign Affairs,
2. Heads of Philippine diplomat missions, for the purpose of adopting the next of a treaty or an agreement between the Philippines and the State to which they are accredited;
3. Representative accredited by the Philippines to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

SECTION 5. Negotiations.

1. In cases involving negotiations of agreements, the composition of the Philippine panel or delegation shall be determined by the President upon the recommendation of the secretary of Foreign Affairs and the lead agency if it is not the Department of Foreign Affairs.
2. No treaty or executive agreement, or any amendment thereto, shall convene a meeting of the panel members prior to the commencement of any negotiations for the purpose of establishing the parameters of the negotiating position of the panel. No deviation from the agreed parameters shall be made without prior consultations with the member of the negotiating panel.

SECTION 6. Entry into Force and Provisional Application of Treaties and Executive Agreements.

1. A treaty or an executive agreement enters into force upon compliance with the domestic requirement stated in this Order.
2. No treaty or executive agreement shall be given provisional effect unless it is shown that a pressing national interest will upheld thereby. The Department of Foreign Affairs, in consultation with the concerned agencies, shall determine whether a treaty or an executive agreement, or any amendment thereto, shall be given provisional effect.

SECTION 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. - The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

1. Executive Agreements.
1. All executive agreements shall be transmitted to the Department of foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accue to the Philippines arising from them.
2. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall them be returned to the Department of Foreign Affairs for appropriate action.
2. Treaties.
1. All treaties regardless of their designation, shall comply with the requirements provided in sub-paragraph 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be require

[atty36252]

Section 21 of Article VII of the Constitution provides as follows:

Section 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.

Construing this provision, the Supreme Court in Bayan v Zamora held that:

"Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treaties or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective."


So, kung yan ang lusot ni Glo, kailangang mag-sumamo siya sa Senado para ma-ratify ang "executive agreement."

[jvitug]

Good stuff, thanks!

[delor]

Internet in the United States is growing as a free internet, Hawaii is the latest to join the bandwagon.

Why not look at this before we bang our heads on ZTE or NBN Projects, Why did our smart heads never thought of this system, see www.kokuawaireless.com and see for yourselves.

[atty36252]

Great link.

Just want to correct the spelling, because I could not access the site.

It is

www.kokuawireless.com/

Thanks for the tip. I hope the people in the Philippines will heed the tip. We don't even need the government. Just some grassroots organizing.