Subject: Constitutional Law 1

Topic: International Criminal Court (ICC)

Title: Pangilinan et al. v. Cayetano, et al.
Citation: G.R. Nos. 238875, 239483, and 240954, March 16, 2021

FACTS:
The three petitions herein assail the validity of the Philippines ' withdrawal
from the International Criminal Court in March 2018.

Historically, since 1996, the country has made efforts to establish the Court
and has signed the Rome statute in 2000. It was not until 2011 that the
International Criminal Court's Rome Statute became a valid and binding
treaty when Senate concurrence to the Rome Statute was obtained, a
requirement provided in the 1987 constitution.

In 2009, with Senate concurrence to the Rome Statute still pending, Republic
Act No. 9851 was signed into law, replicating many of the Rome Statute's
provisions.

In 2016, Rodrigo Roa Duterte became the President of the Philippines. Since
then, a complaint and a "supplemental confirmation" has been filed before
the International Court on alleged summary killings when President Duterte
was the mayor of Davao City and about his "war on drugs". These were filed
by Atty. Jude Sabio and Sen. Trillanes with Rep. Gary Alejano, respectively.
The complaints set forth a preliminary examination by Prosecutor Bensouda
of the ICC in the Philippines regarding the matter.

In March 2018, the Philippines announced its withdrawal from the

International Criminal Court. Subsequently, they submitted its Notice of
Withdrawal through a Note Verbale to the United Nations
Secretary-General's Chef de Cabinet.
In G.R. No. 238875, petitioners-senators argue that, as a treaty that the
Philippines validly entered into, the Rome Statute "has the same status as an
enactment of Congress," as "a law in the Philippines." They aver that the
country's withdrawal from a treaty requires the concurrence of at least
two-thirds of the Senate.

In G.R. No. 239483, petitioner Philippine Coalition for the International

Criminal Court and its members assert that the withdrawal from the Rome
Statute impaired their rights to life, personal security, and dignity.

The Integrated Bar of the Philippines filed its own Petition and an Omnibus
Ex-Parte Motion for Consolidation and Inclusion in the Oral Arguments
docketed as G.R. No. 240954.

ISSUE:
1. WON petitioners have sufficiently discharged their burden of showing that
this case is justiciable?

2. WON the Philippines' withdrawal from the Rome Statute through a Note
Verbale delivered to the Secretary-General of the United Nations is valid,
binding, and effectual?

3. WON the Philippines' withdrawal from the Rome Statute places the
Philippines in breach of its obligations under international law?

4. WON the Philippines' withdrawal from the Rome statute will diminish the
Filipino people's protection under international law; and even if it does,
whether or not this is a justiciable question?

RULING:
1. No. The Court finds that the contention of petitioners is mere surmises.
According to the Court, ample protection for human rights within the
domestic sphere remains formally in place. Also, Contrary to petitioners'
claim, these cases do not deal with the results of the ongoing preliminary
examination by Prosecutor Bensouda.

This Court must exercise restraint in the face of political posturing and must
anchor its determinations, not on political results, but principles and the text
found in the Constitution and law. The most basic of these principles are
parameters that determine the justiciability of cases.

The Petitions are moot. They fail to present a persisting case or controversy
that impels this Court's review. In resolving constitutional issues, there must
be an "existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory. "

2. Yes. The President's withdrawal from the Rome Statute follows the
mechanism provided in the treaty. The Rome Statute itself contemplated and
enabled a State Party's withdrawal. A state party and its agents cannot be
faulted for merely acting with~n what the Rome Statute expressly allows.

Furthermore, unlike requiring Senate concurrence to make treaties valid and

effective, the same cannot be said in withdrawing from treaties or
international agreements. Similarly, no constitutional or statutory provision
grants the President the unilateral power to terminate treaties. This vacuum
engenders the controversy around which the present consolidated Petitions
revolve.

3. No. Withdrawing from the Rome Statute does not discharge a state party
from the obligations it has incurred as a member. Even if it has deposited the
instrument of withdrawal, it shall not be discharged from any criminai
proceedings., Whatever process was already initiated before the
International Criminal Court obliges the state party to cooperate.

Until the withdrawal took effect on March 17, 2019, the Philippines was
committed to meet its obligations under the Rome Statute. Any and all
govem Inental acts up to March 1 7, 2019 may be taken cognizance of by the
International Criminal Court.

4. No. This fear of imagined diminution of legal remedies must be assuaged.

The Constitution, which embodies our fundamental rights, was in no way
abrogated by the withdrawal. A litany of statutes that protect our rights
remain in place and enforceable.

RA 9851 covers rights similarly protected under the Rome Statute.

Consequently, no new obligations arose from our membership in the
International Criminal Court. Given the variances between the Rome Statute
and R.A. 9851, it may even be said that the Rome Statute amended RA 9851.
It recognizes that the State must" 'exercise its criminal jurisdiction over those
responsible for international crimes."

It has been opined that the principles of law in the Rome Statute are
generally accepted principles of international law. Assuming that this is true
and considering the incorporation clause, the Philippines' withdrawal from
the Rome Statute would be a superfluity, thus, ultimately ineffectual. The
Philippines would remain bound by obligations expressed in the Rome
Statute.

Thus, petitioners' concern that the country's withdrawal from the Rome
Statute abjectly and reversibly subverts our basic human rights appears to
be baseless and purely speculative. All told, the consolidated Petitions are
dismissed for failing to demonstrate justiciability.
Mechanisms that safeguard human rights and protect against the grave
offenses sought to be addressed by the Rome Statute remain formally in
place in this jurisdiction.

OPINION ABOUT SUBJECT MATTER:

Stated in Senate No. 2436 (an act providing for senate concurrence in the
abrogation, termination or repeal of treaties and international agreements)
as introduced by Senator Leila M. De Lima which explains that:

- The 1987 Constitution, Article 11, Section 1, proclaims it a basic

Principle of our system of government that "It]he Philippines is a
democratic and republican State," and that "sovereignty resides in the
people and all government authority emanates from them."
- Section 2 further proclaims, again as a basic Principle, 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."
- Article VII, Section 21, provides that "[nJo treaty or international
agreement shall be valid and effective unless concurred in by at least
two-thirds of all the Members of the Senate."
- Art. XVIII on Transitory Provisions, Section 4, provides that "All
existing treaties or international agreements which have not been
ratified shall not be renewed or extended without the concurrence of at
least two-thirds of all the Members of the Senate."

On 16 March 2021, the Supreme Court, in the case of Sen. Francis Pangilinan,
et. al. v. Cayetano, G.R. No. 238875, proclaimed that "the President's
discretion to withdraw [from treaties] is qualified by the extent of legislative
involvement on the manner by which a treaty was entered into or came into
effect. The President cannot unilaterally withdraw from treaties that were
entered into pursuant to the legislative intent manifested in prior laws, or
subsequently affirmed by succeeding laws. Treaties where Senate
concurrence for accession is expressly premised on the same concurrence for
withdrawal likewise cannot be the subject of unilateral withdrawal.

The imposition of Senate concurrence as a condition may be made

piecemeal, through individual Senate resolutions pertaining to specific
treaties, or though encompassing legislative action, such as a law, a joint
resolution by Congress, or a comprehensive Senate resolution."

Thus, according to the Supreme Court, a law may be passed to impose

Senate concurrence as a condition prior to withdrawal from treaties.

Justice Carpio is further quoted saying, "I think what the Senate should do is
to say that the President can never unilaterally withdraw from a treaty
without the consent of the Senate, and they should be very categorical about
that. The moment you show any doubt about your prerogative, you will lose it
and this is exactly what happened here;"

The role of the Senate in treaty-making has been considered essential since
the drafting of the United States Constitution, from which our Constitution
was derived.

In his paper entitled "The Treaty-Making Power of the President and the
Senate", former U.S. Senator Augustus Bacon emphasized the role of the
Senate saying, "indeed, the importance of the Senate in the making of
treaties was held in such esteem that a serious and determined effort was
made to require two-thirds of the entire Senate to ratify a treaty, whether
present or not.?"
He added that "[o]f the treaty-making power, of the duty of the President,
and of the duty of the Senate, it may properly be said that there is imposed
by the constitution a reciprocal and a common duty, one in which each has
the advantage of the services of the other, one in which there can be no
compulsion, one in which each can defeat the work of the other, one in which
the cooperation and the combination of the two, from the inception to the
end, is necessary in order to comply fully with the intention and design of the
Constitution-makers in this regard."

He added that "it is a salutary practice for the President to be advised by the
Senate whether there should or should not be an attempt to make a treaty,
or to interfere in any manner with the affairs of other nations. There are
Senators who have been in office for a generation and whose advice and
counsel would be valuable to any President, however learned and able and
patriotic he might be. It has rarely happened that a President, is superior, in
either natural or acquired ability, to the average ability of the Senate. It has
frequently happened that the President chosen has been without any
experience in national public affairs. There may be at some time in the future
an impulsive and strong-willed or, even possibly, a weak President. An
election to the Presidency does not ipso facto endow one with all knowledge
and all wisdom; and it is not an unreasonable suggestion that, in the
aggregate of ninety Senators, many of them men of great capacity and of
large experience, there is more of knowledge of public affairs, more of
conservatism, more of correct judgment of the requirements of public
interest, than is possessed by any one man in the United States, whoever he
may be."

In our history, the concurrence of the majority of Congress was required by

the
1935 Constitution before entering into treaties and other international
agreements. This legislative role was largely removed during the 1973
Constitution, which allowed the chief executive to "enter into international
treaties or agreement as the national welfare and interest may require."

Since a treaty has the approval of both the President and the Senate, it has
the same impact as a statute.

The Senate represents the legislative will of the whole country. As such, it
stands to reason that the Senate expresses its power to give or withhold
concurrence to treaties and international agreements which likewise
necessitated legislative concurrence prior to their ratification. In as much as
a law requires both executive and legislative action before it is repealed, it is
submitted that a treaty, akin to a law, should also require both executive and
legislative action.

Otherwise, it would lead and, indeed, has already led to an absurd situation,
whereby an action of unilateral withdrawal by the Executive, not sanctioned
by the Filipino people through their duly elected representatives in the
Legislature, would be legally and constitutionally invalid and, supposedly,
ineffective domestically, yet has been considered binding on the Philippines
as a State on the international level. Such a situation does not only create a
legal conundrum, but also leads to a very real and dangerous erosion of our
international standing and relationships in the international community, by
putting into question the strength and reliability of our commitment to
fulfilling our international obligations.

Since the Constitution and the Laws abhor absurdities, and explicitly states
that the Philippines is a democratic and republican state, wherein
sovereignty resides in the people, and that it "adopts the generally accepted
principles of international law as part of the law of the land" and "adheres to
the policy of", among others, "amity with all nations", it is imperative, in the
interest of abiding by the principle of pacta sunt servanda, which is arguably
the oldest principle of international law, to to resolve this untenable
contradiction in a manner consistent with the basic principles, including the
system of checks and balances, set forth in our Constitution.