Pangilinan v. Cayetano, et al.

G.R. Nos. 238875, 239483, and 240954

Facts:
The Rome Statue is a multilateral treaty that established the International
Criminal court, where the gravest crimes under international law are prosecuted.
Since 1996, under President Ramos’ presidency, the Philippines has participated
in the court’s establishment, taking an active role in the deliberations as a member of
the Drafting Committee.
On December 28, 2000, the Philippines, through then President Estrada, signed
Rome Statute of the International Criminal Court. President Esrada’s act of signing the
Rome Statute signified the Philippines’ intent to be bound by the provisions of the treaty,
subject to the domestic requirements for its validity and enforceability.
On December 11, 2009, with Senate concurrence to the Rome Statute still
pending, the President Arroyo signed into law Republic Act No. 9851, otherwise known
as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity. Republic act No. 9851 replicated many of the Rome
Statute’s provisions.
Senate concurrence to the Rome Statue was obtained following President
Aquino election. On August 23, 2011, the Senate, with a vote of 17-1, passed
Resolution No. 564-enabling the Philippines’ consummate accession to the Rome
Statute.
On August 30, 2011, the Philippines deposited the instrument if ratification of the
Rome Statue. On November 1, 2011, the Rome Statute entered into force in the
Philippines. The country was the 16 th state party to belong the Group of Asia-Pacific
Parties in the International Criminal Court.
On June 30, 2016, President Aquino’s term ended and President Duterte took his
oath as chief executive.
On April 24, 2017, Atty. Jude Sabio filed a complaint before the International
Criminal Court pertaining to alleged summary killings when Presidents Duterte was the
mayor of Davao City.
On June 6, 2017, Senator Trillanes and Representative Alejano filed a
“supplemental communication” before the International Criminal Court with regard to
President Duterte’s drug war.
 On February 8, 2018, the Office of ICTC Prosecutor Fatou Bensouda
commented 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 that it was withdrawing from the
International Criminal Court. President Duterte claimed that the country never became a
state party to the Rome Statute since the treaty was not published in the Official
Gazette.
On March 16, 2018, the Philippines formally submitted its Notice of Withdrawal
from the International Criminal Court to the United Nations. Enrique Manalo, the
Permanent representative of the Republic of the Philippines to the United Nations in
New York, deposited the Note Verbale to Maria Luiza Ribeiro Viotti, Chief de Cabinet of
the United Nations’ Secretary General Antonio Guterres.
On March 17, 2018, the Secretary-General of the United Nations received the
notification from the Philippine government.
Herein, petitioners assail the validity of the Philippines’ withdrawal from the ICJ.

Issues:
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?
3. Whether or not the Philippines’ withdrawal from the Rome Statute places the
Philippines in breach of its obligation under international law?
4. Whether or not the Philippines’s withdrawal from the Rome Statute will diminish
the Filipino people’s protection under international law: even if it does, whether or
not this is a justiciable question?

Ruling:
I.
No. Petitioners insist that the protection of human rights will be weakened, yet
their contentions are, mere surmises. Ample protection for human rights within the
domestic sphere remain formally in place. It is a canon of adjudication that “the court
should not form a rule of constitutional law broader than is required by the precise facts
to which it is applied.”
Contrary to petitioners’ claim, these cases do not deal with the results of the
ongoing preliminary examination by Prosecutor Bensouda. Article 127 of the Rome
Statute covers that. 54 Neither at issue here is whether a future president may decide to
re-enter the Rome Statute and secure the requisite Senate concurrence. It is possible
whatever the results in these cases are, a future administration under a new president
can make that decision.
The Petitioners 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.”
On March 19, 2019, the International Criminal Court itself, through Mr. O-Gon
Kwon, thee president of the Assembly of State Parties, announced the Philippines
departure from the Rome Statute effective March 17, 2019. Any discussion on the
Philippines’ withdrawal is, at his juncture, merely a matter of theory.

II.
Yes. Article 127 of the Rome Statue provides mechanisms on how a state party
may withdraw from it:
a. A State Party may, by written notification addressed to the Secretary-General of
the United Nations, withdraw from this Statue. The withdrawal shall take effect
one year after the fate of receipt of the notification, unless the notification
specifies a later date.
b. A State shall not be discharged, by reason of its withdrawal, from the obligations
arising from this Statue while it was a Party to the Statute, including any financial
obligations which may have accrued. Its withdrawal shall not affect ay
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.

The President’s withdrawal from the Rome Statute was in accordance with the
mechanism provided in the treaty. The Rome Statue itself contemplated and
enabled a State Party’s withdrawal. A State party and its agents cannot be faulted
for merely acting within what the Rome Statute expressly allows.
 Treaty-making is a function lodged in the executive branch, which is headed by
the president. Nevertheless, a treaty’s effectively depends on the Senate’s
concurrence, in accordance with the Constitution’s system of checks balances.
While Senate concurrence is expressly required to make treaties valid and
effective, no similar express mechanism concerning withdrawal from the treaties or
international agreements is provided in the Constitution or any statute. 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.
Having laid out the parameters and underlying principles of relevant foreign
concepts, and considering our own historical experience and prevailing legal
systems, this Court adopts the following guidelines as the modality for evaluating
cases concerning the president’s withdrawal from international agreements.
First, the president enjoys some leeway in withdrawing from agreements which
he or she determines to be contrary to the Constitution or statutes. Thus, a valid
treaty or international agreement may be effective just as a statute is effective. It has
the force and effect of law. Still, statues enjoy preeminence over international
agreements. In case of conflict between a law and a treaty, it is the state that must
prevail.
Second, the president cannot unilaterally withdraw from agreements which were
entered into pursuant to congressional imprimatur.
Third, the President cannot unilaterally withdraw from international agreements
where the Senate concurred and expressly declared that any withdrawal must also
made with its concurrence.
At no point and under no circumstances does the president enjoy unbridled
authority to withdraw from treaties of international agreements. Any such withdrawal
must be anchored on a determination that they run afoul of the Constitution or a
stature. Any such determination must have clear and definite basis; any wanton,
arbitrary, whimsical, or capricious withdrawal is correctible by judicial review.
Moreover, specific circumstances attending Congress’ 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.

III.
No. The Philippines aspired to the establishment of an international criminal court
that would dispense justice efficiently and effectively; an institution that was
ineffective in addressing the problem of impunity of the perpetrators of the most
heinous violations of the law of humanity would not serve justice or help to maintain
international peace and security. The positions of the Philippines, consistent with its
constitutional and legal traditions, was based on those considerations and on its
desire to uphold the current evolution of international law.

IV.
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 statues that protect our rights remain in place and
enforceable.

Republic Act. No. 9851, or the Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity, echoes
substantive provisions of he Rome Statute. It was signed into law on December 11,
2009, two years before the Senate concurred with the Rome Statute. Republic Act
No. 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 Republic Act No 9851, it may
even said that the Rome Statute amended Republic Act No. 9851.
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 hound by
obligations expressed in the Rome Statute.
Treaties may become the basis of customary international law. While States
which are not parties to treaties or international agreements are not bound thereby,
such agreements, if widely accepted for years by many States, may transform into
customary international laws, in which case, they bind even signatory States.
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.
The unfolding of events, including the International Criminal Court’s
acknowledgement 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.
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. Further, the International Criminal Court retains jurisdiction, over any
and all acts committed by government actors until March 17, 2019. Hence,
withdrawal from the Rome Statute does not affect the liabilities of individuals
charged before the International Criminal Courts for acts committed up to this date.
As guide for future cases, this Court recognizes that, as primary architect of
foreign policy, the President enjoys a degree of leeway to withdraw from treaties
which are bona fide deemed contrary to the Constitutions or our laws, and to
withdraw in keeping with the national policy adopted pursuant to the Constitution and
our laws.
However, the President’s discretions to withdraw is qualifies 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 law, or
subsequently affirmed by succeeding laws.