Senators Francis “Kiko” N. Pangilinan, Franklin M. Drilon, Paolo Benigno “Bam” Aquino IV, Leila M. De Lima, Risa Hontiveros, And Antonio ‘sonny’ F. Trillanes Iv, Petitioners, vs. Alan Peter S. Cayetano, Salvador C. Medialdea, Teodoro L. Locsin, Jr., And Salvador S. Panelo
G.R. No. 238875, March 16, 2021
In 2017, Atty. Jude Sabio filed a complaint before the International Criminal Court pertaining to alleged summary killings when President Duterte was the mayor of Davao City. The Office of International Criminal Court Trial Prosecutor Fatou Bensouda (Prosecutor Bensouda) commenced the preliminary examination of the atrocities allegedly committed in the Philippines pursuant to the Duterte administration’s “war on drugs. On March 15, 2018, the Philippines announced its withdrawal from the International Criminal Court. It formally submitted its Notice of Withdrawal through a Note Verbale to the United Nations Secretary-General’s Chef de Cabinet. The Secretary General received this communication the following day. Through these actions, the Philippines completed the requisite acts of withdrawal. This was all consistent and in compliance with what the Rome Statute plainly requires. By this point, all that was needed to enable withdrawal have been consummated. Further, the International Criminal Court acknowledged the Philippines’ action soon after it had withdrawn.
Three Petitions for Certiorari and Mandamus were filed, assailing the executive’s unilateral act of withdrawing from the Rome Statute for being unconstitutional.
1. Whether or not petitioners have sufficiently discharged their burden of showing that this case is justiciable.
2. Whether or not 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.
- Whether President Duterte’s unilateral withdrawal from the Rome Statute did not transgress legislative prerogatives.
- Whether or not the Philippines complied with all the requisites for withdrawal from the Rome Statute
3. whether or not the Philippines’ withdrawal from the Rome Statute places the Philippines in breach of its obligations under international law.
4. whether or not 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.
The consolidated Petitions in G.R. Nos. 238875, 239483, and 240954 are DISMISSED for being moot.
1. NO. Judicial review has its limits. In deciding matters involving grave abuse of discretion, courts cannot brush aside the requisite of an actual case or controversy. The clause articulating expanded certiorari jurisdiction requires a prima facie showing of grave abuse of discretion in the assailed governmental act which, in essence, is the actual case or controversy.
The consolidated Petitions are dismissed for failing to demonstrate justiciability. The unfolding of events, including the International Criminal Court’s acknowledgment of withdrawal even before the lapse of one year from initial notice, rendered the Petitions’ moot, removing any potential relief from this Court’s sphere.
On March 19, 2019, the International Criminal Court itself, through Mr. O-Gon Kwon, the president of the Assembly of States Parties, announced the Philippines’ departure from the Rome Statute effective March 17, 2019. It made this declaration with regret and the hope that such departure “is only temporary and that it will re-join the Rome Statute family in the future.”218 This declaration, coming from the International Court itself, settles any doubt on whether there are lingering factual occurrences that may be adjudicated. No longer is there an unsettled incident demanding resolution. Any discussion on the Philippines’ withdrawal is, at this juncture, merely a matter of theory.
(a) The president, as the primary architect of foreign policy, negotiates and enters into international agreements. However, the president’s power is not absolute, but is checked by the Constitution, which requires Senate concurrence. As the chief executive, the president swore to preserve and defend the Constitution, and faithfully execute laws. This includes the duty of appraising executive action, and ensuring that treaties and international agreements are not inimical to public interest. The abrogation of treaties that are inconsistent with the Constitution and statutes is in keeping with the president’s duty to uphold the Constitution and our laws. Thus, even sans a judicial determination that a treaty is unconstitutional, the president also enjoys much leeway in withdrawing from an agreement which, in his or her judgment, runs afoul of prior existing law or the Constitution. In ensuring compliance with the Constitution and laws, the president performs his or her sworn duty in abrogating a treaty that, per his or her bona fide judgment, is not in accord with the Constitution or a law. Between this and withdrawal owing to a prior judicial determination of unconstitutionality or repugnance to statute however, withdrawal under this basis may be relatively more susceptible of judicial challenge. This may be the subject of judicial review, on whether there was grave abuse of discretion concerning the president’s arbitrary, baseless, or whimsical determination of unconstitutionality or repugnance to statute.
The president enjoy unbridled authority to withdraw from treaties or international agreements. Any such withdrawal must be anchored on a determination that they run afoul of the Constitution or a statute. Any such determination must have clear and definite basis; any wanton, arbitrary, whimsical, or capricious withdrawal is correctable by judicial review. Moreover, specific circumstances attending Congress’s injunction on the executive to proceed in treaty negotiation, or the Senate’s specification of the need for its concurrence to be obtained in a withdrawal, binds the president and may prevent him or her from proceeding with withdrawal.
(b) The withdrawal has been communicated and accepted, and there are no means to retract it. This Court cannot extend the reliefs that petitioners seek. The Philippines’s withdrawal from the Rome Statute has been properly received and acknowledged by the United Nations Secretary-General, and has taken effect. These are all that the Rome Statute entails, and these are all that the international community would require for a valid withdrawal. Having been consummated, these actions bind the Philippines.
3. NO. Pacta sunt servanda is a generally accepted principle of international law that preserves the sanctity of treaties. In withdrawing from the Rome Statute, the President complied with the treaty’s requirements. Compliance with its textual provisions cannot be susceptible of an interpretation that his act violated the treaty. Hence, withdrawal per se from the Rome Statute does not violate pacta sunt servanda.
Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member. Article 127(2) provides:
A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was as a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. (Emphasis supplied)
A state party withdrawing from the Rome Statute must still comply with this provision. Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.
4. NO. Petitioner’s 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. 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
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