Christian AL M.

Tac-an October 8, 2021

JD-4

Discussion Paper

This study is about the recent ruling of the Supreme Court on the case of Pangilinan vs Cayetano wherein the
said court unanimously upheld the unilateral termination by President Duterte of the treaty wherein the Philippines
acceded to the Rome Statute that created the International Criminal Court (ICC). The Senate had given its concurrence
to this International Criminal Court treaty in 2011, but President Duterte terminated this treaty in 2018 without Senate
concurrence. Under Section 21, Article 7 of the 1987 Constitution:
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.

Basing on this law, the President has no power to terminate any domestic law using his Executive power alone. Under
the 1987 Constitution, Congress enacts, amends, or repeals a law, the President executes the law, and the Judiciary
declares a law void if it contravenes the Constitution. A law enacted by Congress may be vetoed by the President and
this veto may be overturned by two-thirds vote of each chamber of Congress. This is the fundamental check and balance
among the three co-equal and independent branches of government to ensure that no one person or branch of
government is above the law.
In the present case, the Supreme Court approved of the mirror principle in which that the manner of entering into the
treaty should be the same manner in terminating a treaty. Since a treaty can take effect only with the concurrence of the
Senate, then a treaty can only be terminated with the concurrence of the Senate. Therefore, President Duterte has no
power to unilaterally terminate the International Criminal Court treaty that had previously been given Senate
concurrence.
Thus, the termination of the International Criminal Court treaty should have not been valid and effective under the
Constitution unless two-thirds of all the Members of the Senate will concur.

In addition, a look at Section 2, Article 2 of the 1987 Constitution provides that:

The 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.

For this reason, President Duterte’s unilateral termination of the ICC treaty is valid and binding on the Philippines under
international law but unconstitutional under Philippine law. The Supreme Court should have not upheld the cancellation
of the ICC treaty as it was unconstitutional.